14 August 2011

Still no land title certainty a decade after independence

East Timor Legal News 14/08/2011 - After more than a decade since independence, there is still no comprehensive land law in East Timor to resolve the many and violent conflicts over land ownership that have fed instability in the country on more than one occasion (1) . Under the USAID-funded Land Law Program, a policy framework for a transitional land law was formulated but this has failed to lead to legislation clarifying land ownership. (1a)

Instead, successive governments have failed to deal with the complex land issues in East Timor and have limited legislative interventions to the assertion of the state's claims to land. The latest manifestation of this is the 2011 Government Decree-Law No 6/2011 of 9 February Compensation for Evacuating State Land.

There is still no transparent legal mechanism for determining what land the state is entitled to and no effective judicial review of executive decisions of the Minister for Justice who determines whether a particular parcel of land is lawfully owned by the state. That is an entirely administrative process made under the provisions of Law No 1 of 2003 on the Juridical Regime of Real Estate Part 1  Ownership of Immovable Property. Section 8(2) of that law provides that a judicial appeal filed against an eviction warrant does not suspend an ongoing administrative eviction.

The above mentioned Government Decree continues this pattern.  

The assertion and enforcement of the state's alleged rights has resulted in the dislocation of the poor and added to social conflict. The most recent example of this is the eviction of residents from the former Indonesian Brimob headquarters building in Dili. An analysis of this case has been conducted by the East Timor Land Network which was critical of both the government's actions and the propaganda it had put about to justify the evictions. (2)

It has also been deployed as a means of political persecution of opposition by the previous Fretilin government when it evicted former Indonesian-period Governnor of the then Province of Timor Timur from his residence of 22 years (3) and the repression of the media critical of the government(4).

Certainty of land title is an essential element of not only the civil peace but also of economic development. The recognition and protection of customary land tenure systems is also of central concern to local communities whose age-old customary legal systems have regulated land use, ownership and disputes. (5)

After the expenditure of millions of dollars and veritable hordes of foreign experts, land problems continue to vex East Timor. These problems can only be resolved through a just and long-overdue law.

(1) See, for example, Ethnicity, Violence and; Land and Property Disputes in Timor-Leste
(1a) A draft land law has been produced but has not advanced through the proper policy or legislative processes. Public consultations on the draft by the Minister of Justice have been condemned by civil society as highly deficient and defective. See, for example: Flawed, deficient and insufficient public consultations on East Timor's draft land law and East Timor Draft Land Law public consultations: Minister Lobato continues charade   
(2) 8 Myths about Evictions in Dili and the Ex-Brimob Case; see also Protests as East Timor police evict 1,000 squatters
(3) 2004 Executive Eviction of Mario Viegas Carrascalao by Fretilin Government
(4) Suara Timor Lorosae's background on eviction from the building
(5) see, for example, Communal Rights on Adat Land in East Timor; Community land in East Timor - A New Tragedy of the Commons?

See further Rede ba Rai (East Timor Land Network) Statement on the Expropriation Law   

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