Saturday, 19 May 2012
SOME OBSERVATIONS ON THE REPORT ON RESEARCH FINDINGS AND POLICY RECOMMENDATIONS FOR A LEGAL FRAMEWORK FOR LAND DISPUTE MEDIATION PREPARED BY TIMOR-LESTE LAND LAW PROGRAM*
Historial Note: When this article was first published in 2004, it was so objected to by USAID (the funder of the Land Law Program) that it was removed following complaints by USAID to the author's then employer who directed that the article be removed. The suppression of the critique of the Land Law Program's work was anti-democratic and authoritarian. The article has therefore been re-published in the hope that the deficiencies in the Land Law Program might be addressed.
The East Timor Land Law Program is being implemented by ARD Inc., the National University of Timor Lorosa'e and the National Directorate of Land and Property. The LLP is conducting various researches to provide reports and recommendations to the Government of East Timor on land policy options and land legislation.
The complexity of the land problems in East Timor can not be underestimated and is a central policy issue critical for the maintenance of the civil peace, economic development, the guarantee of the basic right to land and opportunities to right as many injustices that occurred in relation to land under the Indonesian occupation as possible. The Land Law Program is considering problems such as land taxation and valuation, the administration and leasing of State land, land held by foreigners, and expropriation.
It has also researched and produced a report on land disputes published at http://landlawprogram.com/web/pdf/research/PolicyRecom-e.pdf and has circulated this report with a request for comments. A round-table conference on this report was held at Hotel Timor on 02 April 2003. The time for discussion of this report was severely restricted to only a few hours and no opportunity was provided for participants to ask questions and receive further information elucidating the report. Due to the importance of the topic, the consultative process would have benefited from more time and opportunity to request further clarification from the authors of the report.
In a discussion of a legal framework for land dispute mediation generally, and in particular, in the context of the possibility of utilising traditional dispute resolution mechanisms, there are several central issues that ought to be addressed.
1. Description of Traditional Dispute Resolution Mechanisms
To provide valuable context, the report should be augmented with a description of the existing traditional dispute resolution institutions; their nature, including how they are constituted, how they function and how successful they are at resolving land disputes, the knowledge and competence of the constituent members of the institutions, the rules governing their operation, how procedures before them are initiated, where they continue to operate and where they do not continue to operate in Timor-Leste.
None of this appears in the report.
The project should have enquired into the nature of the traditional dispute resolution mechanisms so that policy-makers could make an informed decision on whether or not they could or should be used for the resolution of land disputes. An analysis of traditional dispute resolution mechanisms should have been included in the report. A good starting point for the survey of existing literature would have been the Report by the United States Institute for Peace entitled Reconciling Justice ‘Traditional’ Law and State Judiciary in East Timor.
In regard to this issue, it ought to be noted that the description of adat (which is the basis of all traditional customs, laws and norms) at page 3 as a term “used to refer to the ritual aspects of life” demonstrates a profound lack of understanding of the meaning of adat. Adat is much more than the ritual aspects of life. Adat is, rather, a comprehensive conceptualization of the world by traditional societies throughout the whole of the Southeast Asian archipelago. Adat is comprised of the basic fundamentals of the way of life of the community which originates from the traditions and customs of the people which are followed by the community concerning what is appropriate and just. Adat constitutes the norms and rules regulating social relations and power structures in a community. Rituals are merely one expression of adat.
It is for the reason that adat is not merely about rituals but constitutes a far more meaningful concept for traditional communities that there ought to have been included in the research and the report, an account of the adat dispute resolution mechanisms in Timor-Leste; particularly since the report recommends that these mechanisms be incorporated into the legal system for the purposes of a land dispute resolution legal framework. There are many legal and anthropological writings on the adat dispute resolution mechanisms in other parts of the archipelago which could have been drawn upon to identify the basic features of these mechanisms but, again, no effort has been made to conduct a comparative study of them. Such a comparative study would have been a most useful initial step in describing and assessing the nature and effectiveness of these systems. And that ought to have been augmented by empirical research under the auspices of the LLP to identify and describe the traditional dispute resolution institutions in Timor-Leste.
The mere fact that traditional dispute resolution mechanisms continue to function and continue to be resorted to is not a sufficient justification for the assertion that, therefore, they ought to be formalized into the legal system of Timor-Leste. This assertion arises, it seems to me, from a defective underlying legal philosophy in the report which appears at page 5 where the following words appear: “[b]ased on the principle that law should reflect and respond to social reality rather than impose new structures...” This approach ought not to be uncritically accepted. The essence of law is that it expresses the state of society to which its members aspire. Law is directed to the modification of undesirable behavior which generates social problems. There is always a gap between the social realty and what the law commands. Murder is an undesirable phenomenon and one to which society does not aspire. The social reality that murder occurs does not mean that the law ought to sanction murder. In fact, the opposite is the case. The social reality that theft occurs does not mean that the law ought to countenance theft as an acceptable form of social behavior. In fact, the opposite is the case.
Similarly, the fact that traditional justice systems operated, does not, ipso facto, mean that the law ought to incorporate those systems. If what is desired in Timor-Leste is an impartial legal system which does not “resort to the supernatural to legitimize solutions” to social conflict, then the law ought to express that ideal rather than entrench a social reality that is not consistent with the principles of the rule of law enacted by democratically elected representatives of the nation. If what is desired is not a society “based on feudal relationships both in the social and religious (non-formal religions) aspects” , then the law ought not to entrench principles arising from such a social organisation. (per Gusmao X Speech on the Occasion of the Opening of the Conference on Traditional Justice).
This is not to suggest that the concept of incorporating elements of traditional justice in a formal land dispute mediation mechanism should be rejected, per se. However, extreme caution should be exercised to ensure that only those elements of traditional justice systems that are consistent with fundamental principles of fairness, non-discrimination and equality before the law are absorbed into any new State-sanctioned dispute resolution mechanism (see further below section on the Constitution of Timor-Leste).
2. Description of Adat Land Law systems in Timor-Leste
A correlative matter which ought to have been included in this report is a description of the adat land law systems of Timor-Leste.
If traditional dispute resolution mechanisms are to be used for land disputes that involve traditional land rights, then there ought to be an account of the nature of the adat land law rules and the adat land rights which continue to operate in Timor-Leste.
No regard has been paid in this report to any existing research on traditional land rights in Timor-Leste; a prime example of which is the research conducted by the Director of DNTP, Mr. Pedro de Sousa Xavier, on this matter – see the Director’s Skripsi from his studies at the Indonesian National Land Academy. There is also research on this matter conducted during the Indonesian occupation which might have been the subject of some critical analysis to inform this report (for example, Report on Research into Adat Land Law of Timor-Leste, Sumardjono, M. Yogyakarta 1994/1995).
3. Traditional Norms, Customs and Customary Law and the RDTL Constitution
Another compelling reason for why the report should have gone into (1) the nature of adat land law; and (2) the adat dispute resolution mechanisms in Timor-Leste arises from Article 6 of the RDTL Constitution. Article 2.4 of the Constitution provides that [t]he State shall recognise and value the norms and customs of East Timor that are not contrary to the Constitution and to any legislation dealing specifically with customary law (unofficial English translation)
Some authors argue that this means that the State has a constitutional obligation to recognise customary land laws. For example, the following statement: "The RDTL Constitution recognises customary rights over land" appears at page 33 of The Customary Use and Management of Natural Resources in Timor Leste A discussion paper prepared for a regional workshop on “Land Policy Administration for pro-Poor Rural Growth” ** But the provisions do not refer to the State having a constitutional obligation to recognise customary law. It refers to the legislation that might be enacted to deal with customary law. There is no constitutional obligation imposed by this provision to recognise customary rights over land. It refers not to customary rights to land at All but rather to the norms and customs of East Timor - things that are quite distinct from and fall short of the status of customary law in any event. The distinction between noms and customs is one that is clearly articulated in all three disciplines of sociology, anthropology, legal anthropology.
The assertion that the State recognises customary rights in land is also questionable because there is presently no legislation on customary land right at all. The construction and meaning of legal provisions of a Constitution are difficult matter that even qualified jurists struggle with. But there are absolutely no grounds for the assertion that the State recognises customary land rights in East Timor. The constitutional provision only refers to legislation in the context of Timor-Leste's norms and customs (not customary land rights) - and legislation is something, in the absence of an exact constitutional provision conferring an obligation to legislate in clear and unambiguous language, is a matter within the inherent discretions in the law-making bodies.
Furthermore, contemporary Statism does not generally admit a plurality of legal systems outside the positive law enacted by the democratic institutions of the State. This provision confers on the State a discretion to enact laws relating to norms and customs. It does not impose a Constitutional obligation on the State to recognise customary law (or customary land rights arising from customary law).
The problem is worse when one realises that the Constitution confers ownership of natural resources on the State. It does not confer any rights on customary legal systems.
Furthermore, Law No 10 of 2003 makes it clear beyond doubt what the sources of law in East Timor do not include customary law. Section 2 provides:
Sources of law
1. Legislation is the only immediate source of law in Timor-Leste.
2. Legislation is generic provisions issued by the competent organs of the State;
3. The sources of law in the Democratic Republic of Timor-Leste are:
(a) The Constitution of the Republic;
(b) Laws emanated from the National Parliament and from the Government of the
(c) Subsidiarily, regulations and other legal instruments from UNTAET, as long as
these are not repealed, as well as Indonesian legislation under the terms of section 1
of the present law.
This Parliamentary law confirms the proper interpretation of Article 2.4 of the Constitution that is set out above in contrast to that which underlies certain other assertions which, on the analysis here, are clearly wrong.
The recommendations that the East Timorese State must recognise customary land rights or that it should recognise customary resource management are even more surprising when one turns to the Constitution again to discover the following provision:
1. The resources of the soil, the subsoil, the territorial waters, the continental shelf and the exclusive economic zone, which are essential to the economy, shall be owned by the State and shall be used in a fair and equitable manner in accordance with national
2. The conditions for the exploitation of the natural resources referred to in item 1 above should lend themselves to the establishment of mandatory financial reserves, in accordance with the law.
3. The exploitation of the natural resources shall preserve the ecological balance and prevent destruction of ecosystems.
One other provision of the Constitution confirms the general concept of private property and is inconsistent with a recommendation relating to communal management of resources that seems to be dependent on an erroneously perceived constitutional obligation to recognise customary land rights. Any management can not necessarily arise from communal traditional ownership unless that ownership is expressly legislated by the Parliament of East Timor. And in the absence of a constitutional obligation to recognise customary land rights, in the presence of an express constitutional provision that confers ownership of the natural resources of East Timor on the State, and in the absence of any reference to communal or traditional land rights in the Constitution in Article 54 dealing with private property, the prospects for customary land tenure systems that are so integral to customary land tenure systems are bleak.
In relation to Article 54 and particularly Article 54.4 of the Constitution that deal with private property and the right to land, it is also worth noting that customary land law systems are not private property as private property is conceptualised in Western legal thought (and which is the most likely concept that was in the minds of the drafters and lawmakers when the Constitution was adopted). Customary land tenure systems are by their ancient nature and attributes common tenure systems of communal ownership - not of individual legal ownership out of which individualised land rights may arise in accordance with the uses and customs of the particular adat law community. And while some such individualised customary land rights may be analogous to the Western fee simple or propriedade perfeita, they always remaines subject to the communal authorities to which they could be forfeited and which usually prohibited the alienation of those rights to entities (individuals, clans, tribes, etc.) who were not members of the social group in question.
A communal land tenure system applies to the adat territory of the relevant kin group (tribe, clan, lineage and so on). Only members of the adat community may acquire the rights that exist in the particular system. Those rights might be transferred or bequeathed to descendant members of the kin group (in rare cases, outsiders may acquire land rights in that territory but usually limited ones that fall short of even a type of leasehold, for example, right of use of limited term or seasonal share-cropping rights) but their existence depends on the communal right. They do not become private property in land as referred to in the Constitution. They could only become so if they were recognised in express legislation as such and converted into statutory rights much as was effected under the Indonesian Basic Agrarian Law 1960. Then they become alienable and free from constraints of the customary land tenure system where the right originated as a traditional individualised right. Of course, such a process has severe ramifications for the communal land tenure systems as they are eroded away over the course of time and eventually the very existence of the community is threatened. If the community vanishes, the communal tenure system Iand the individualised rights in it, also vanish. This was the land policy of the New Order regime in Indonesia since the enactment of the Basic Agrarian Law in 1960. Though this law proclaimed adat law as the new fundamental basis of land law in post-colonial Indonesia, in reality, customary rights were either ignored or systematically violated whenever they came into conflict with the interests of the military State that had formed alliances with both municipal and international capital.
More Constitutional Objections to the Report's Recommendations
Returning for a moment to Article 2.4 Constitution, while this provision may provide a sound legal basis for the adoption of traditional dispute resolution mechanisms (subject to the State's discretionary exericise of the general legislative powers rather than any Constitution obligation), any adoption of norms, customary uses and customary law must be subject to yet other provisions of the Constitution which impact on traditional land tenure systems. Of fundamental note here are the provisions of the Constitution concerning the equality of men and women set out in Article 16 of the Constitution:
(Universality and Equality)
1. All citizens are equal before the law, shall exercise the same rights and shall be subject to the same duties.
2. No one shall be discriminated against on grounds of colour, race, marital status, gender, ethnical origin, language, social or economic status, political or ideological convictions, religion, education and physical or mental condition;
(Universalidade e igualdade)
1. Todos os cidadãos são iguais perante a lei, gozam dos mesmos direitos e estão sujeitos aos mesmos deveres.
2. Ninguém pode ser discriminado com base na cor, raça, estado civil, sexo, origem étnica, língua, posição social ou situação económica, convicções políticas ou ideológicas, religião, instrução ou condição física ou mental.
and in Article 17:
(Equality between women and men)
Women and men shall have the same rights and duties in all areas of family life and political, economic, social, cultural.
(Igualdade entre mulheres e homens)
A mulher e o homem têm os mesmos direitos e obrigações em todos os domínios da vida familiar, cultural, social, económica e política. (Original text)
It is well known that most of the local traditional land systems in Timor-Leste discriminate against women by limiting their capacity to acquire land rights. This is common also in the vast majority of such systems – a famous exception being the Minangkabau of West Sumatera and, as the report itself identifies, that which prevails in the District of Manatuto in Timor-Leste, both of which are matrilineal and discriminate against men. Only bilineal systems treat men and women equally.
Accordingly, where traditional dispute resolution mechanisms, in applying the rules of the local adat land law, discriminate against either men or women, the application of those adat systems through the traditional dispute resolution mechanisms would be unconstitutional and in breach of the fundamental human rights of the citizens of Timor-Leste against whom the discrimination occurred.
It is surprising that this report does not analyse these basic problems; particularly since the research superficially identifies such discrimination in both of the regions studied; namely, Ermera and Manatuto.
Such deficiencies can hardly be considered as sound bases for the development of land policy and legislation when they are unable to identify the critical provisions of the basic law that are supremely paramount to the Margaret Mead-type illusions of sociologists and anthropologists who refuse or are incapable of performing a legal analysis of the central problems of their research.
The comment made in the report at pages 35 – 36 of the English version about the possible unpopularity of changing systems which traditionally discriminate against citizens based on their sex is unedifying. Indeed, the “popularity test” implicit in this statement as a guide to the determination of policies and laws must be rejected since it fails to take account of the legal Constitutional framework within which Government policies and laws must be developed. Similarly, if the setting up of traditional dispute resolution mechanisms shows a bias in favour of men and against women, then such mechanisms would also be contrary to the Constitution and should not be given formal recognition in the State’s positive law.
This is a matter in which sociological or anthropological considerations can not considered as the determinants of policy.
It is a matter of law and the supremacy of law as the fundamental guiding principle for policy formulation.
The Constitution is the supreme law of the land and must be acknowledged, implemented and respected -without exception. This is an incontrovertible proposition. This should be explicitly stated in the report’s recommendations.
4. Analysis of the Types and Nature of Land Disputes in Timor-Leste
The second fundamental issue, and one which is mentioned at page 3 bullet point 4 of the English version of the report, is the types of land disputes that might be amenable to resolution through traditional dispute resolution institutions. Unfortunately, although this issue is recognized in the report, there is no subsequent discussion of it. This is yet another grave deficiency. Policy formulation and development will require further information on this area. In view of the resources and the access to data which have been made available to the researchers, it is disappointing the report does not inform policy makers about the types and numbers of land disputes of which the Project should be aware.
The classification of the types, nature and number of land disputes which have been registered at the National Land and Property Directorate is essential for policy formulation because there are very clearly some types of land disputes which would be far beyond the competence and capacities of traditional dispute resolution mechanisms and which should only be resolved by the State Courts of Timor-Leste.
The report broadly classifies the types of land disputes in Part 2 but this is rather buried at page 39 where there are 6 broad classes of the some types of disputes; namely: ownership, parcel boundary, inheritance, suco boundary, harvest rights and “other”.
But this classification could be strengthened in the following ways:
1. There should be a description, analysis and account of the types of ownership disputes or the number of ownership disputes which have already been received by DNTP;
2. The distinction between ownership disputes and inheritance disputes is misleading because an inheritance dispute is merely another type of ownership dispute;
3. The two separate classes of boundary disputes – parcel and suco – are essentially the same type of dispute; namely, boundary dispute.
4. There is no assessment of whether or not traditional dispute resolution mechanisms are capable of resolving the different types of disputes.
Land Disputes which are not amenable to Traditional Dispute Resolution Mechanisms and which should be left to the formal Courts
Disputes about the ownership of land are the most complex and difficult to resolve; particularly where a title based on State law is concerned.
Examples of ownership disputes which, in my view, are not amenable to traditional dispute resolution mechanisms include the following:
1. a contest between: (a) a claim of individual ownership based on a right arising under traditional land law; and (b) a claim of individual ownership based upon a formal legal title issued by either the Portuguese colonial government or the Indonesian government on the same parcel of land;
2. a contest between: (a) a claim of individual ownership based on a Portuguese period title and (b) a conflicting Indonesian period individual title on the same parcel of land;
3. a contest between: (a) a claim of communal land ownership and (b) a claim based on an individual title issued by either the Portuguese or Indonesian governments;
4. a boundary dispute concerning parcels of land in respect of which there exist formal State law-based titles.;
5. an inheritance land ownership dispute which involves a formal State law-based title; and
6. any dispute between a citizen or a traditional community group and the State.
All of these classes of disputes require an investigation and examination of the formal legal titles and complicated land laws which traditional authorities are not competent to perform. Furthermore, the determination of such fundamental legal democratic rights such as land rights involving positive State law should, and can, only be determined by the judicial organs of the State.
Accordingly, these classes of disputes should be expressly excluded from the operation of any traditional dispute resolution mechanisms.
The Land Law Project report is devoid of any discussion of these important analyses. It seems axiomatic that an examination of dispute resolution mechanisms for land conflicts would have embarked upon such an analysis. It defies explanation why this was not done - particularly having regard to the considerable resources that were made available through USAID and the American taxpayer for the East Timor Land Law Program.
Land Disputes which might be amenable to Traditional Dispute Resolution Mechanisms
Examples of land ownership disputes which might be amenable to traditional dispute resolution mechanisms are:
1. a contest between: (a) an individualized traditional adat land right which has never been the subject of conversion to a State-law based title and (b) a claim by the traditional community or its leaders that the land is communal land;
2. a contest between two claimants where each claimant is claiming to have a title based on the operation of the local adat land law system;
3. a boundary dispute between two parcels of land in respect of which there is established two adat land law titles;
4. a boundary dispute between two adat communities (although this would be subject to any administrative divisions of the territory of Timor-Leste based on State law in which case the matter would have to be left to the State courts);
5. an inheritance ownership dispute between members of an adat community concerning a traditional land title.
This brief examination of classes of land disputes for the purposes of determining which kind of disputes might be amenable to resolution through traditional dispute resolution mechanisms is not exhaustive but merely demonstrative of some of the main types of land disputes which ought to be considered in this context.
5. Rural/Urban Dichotomy
The report recommends, at pages 8 – 9 of the English version, that no distinction be made in the application of a land dispute mediation law between rural and urban areas, because “evidence suggests that the local dispute resolution mechanism processes remain of relevance in urban areas”. But the report does not state what this evidence is. As a policy information resource, critical assertions such as this are in need of more convincing proof. The research which purports to underlie the report and its recommendations was not conducted in the main urban centre of Dili and so there is no apparent evidence to support this claim. It is clear that there is a vast difference between the state of urban society in Timor-Leste and the conditions in rural areas. Certainly, the traditional social organisation which once prevailed in the areas now covered by urban centres has disappeared or has become so deconstructed as to be unrecognizable against those which continue to exist in rural areas.
Furthermore, almost all of the positive-law based land titles issued during the Portuguese and Indonesian eras are for land in urban areas and, as is argued in this paper, land disputes involving statutory land rights are way beyond the competence and capacity of traditional dispute resolution mechanisms and must be left for resolution by the State Courts.
Therefore, it is imperative that disputes over land in urban centres not be the subject of traditional dispute resolution institutions but that they be referred to the Courts for judicial determination.
Under the applicable law, traditional systems are acknowledged “to the extent that they continue to exist”. For example, Article 3 of the Basic Agrarian Law of 1960 that provides that:
In view of the provisions contained in paragraphs (1) and (2) of Article 2, the implementation of the ulayat (traditional communal land rights systems) rights and other similar rights of adat-law communities --as long as such communities in reality still exist - shall be such that it is consistent with national interests and the State’s interests and shall not contradict the laws and regulations of higher levels.
6. Form of Law on Land Dispute Resolution – Law of the National Parliament or Government Decree Law?
The report asserts in several places (pages 8, 10, 12, 14 and 15) that the form of the law which is justified and recommended is a Government Decree-Law.
This does not seem to be correct.
At page 8, it is sought to justify the recommendation that the form of the law be a Decree-Law by referring to Land Law No 01-2003, Articles 12 and 13, under which land claims must be presented to DNTP “so as to trigger, as appropriate, mediation processes or administrative procedures, to be determined by law”. It is then stated in the report that, ‘[c]onsequently, as one of its mandates, DNTP has legal authority to facilitate mediation processes for the resolution of land disputes”.
But this statement is an unfortunate interpretation of what Articles 12 and 13 provide. Those articles do not confer any mandate on DNTP to facilitate the mediation of land disputes. There is nothing in the provisions which justify such an assertion. On the contrary, all that is mandated by those Articles is the mere receipt of claims by DNTP (Article 12.2 and 13.1). Furthermore, the provisions expressly state that the actual mediation of claims and the restitution of property are to be regulated in the future by another law – Articles 12.1 and 13.1.
At page 12, it is stated that “Option 1…is not appropriate because it undermines the formal legal role in the mediation process assigned to DNTP by Provision 12 of Land Law 01-2003”. And again at page 14, the statement appears that this law “has already given DNTP the role of processing land claims and disputes with mediation”.
These statements are not entirely justified by the text of the provisions of Articles 12 or 13.
Article 12 does not confer any formal legal role on DNTP in the mediation process. It can not do so because there is no mediation process set out in any law yet. Under the applicable Indonesian-based law, mediation only exists for commercial disputes. It merely provides for the receipt of claims by DNTP. There is nothing in Article 12 which justifies any reference to the “formal role of DNTP in the mediation process”.
Apart from these erroneous statements about what Law No 01-2003 actually provides, the fact of the matter is that there is a compelling argument that the proper form of law for the mediation of land disputes is a law enacted by the National Parliament. Both Articles 12 and 13 refer to a lei – Law; by which is meant a law of the National Parliament. There is nothing in Articles 12 and 13 which justify the assertion made in this report that the appropriate form of the mediation law is a Decree-Law. On the contrary, when one looks at the provisions of Law No 01 - 2003, one sees the word “lei”. One does not see the word “Decreto-Lei-”. By contrast, Article 4.2 of Law No 01-2003 provides that :
“A disposição de bens do património imobiliário privado do Estado é regulamentada por decreto-lei.”
The relevant parts of Articles 12 and 13 read, respectively:
12.1. Os cidadãos nacionais cujos bens imóveis tenham sido ilegalmente apropriados ou ocupados por terceiros devem apresentar as suas reivindicações relativas ao direito de propriedade sobre esses bens no prazo de um ano a contar da data da entrada em vigor da presente lei, para poderem fazer funcionar os procedimentos de mediação ou restituição administrativa dos respectivos títulos de propriedade, nos termos que a lei venha a estabelecer.
13.1. Os cidadãos estrangeiros devem, no prazo de um ano a contar da data da entrada em vigor da presente lei, fornecer à DTP todos os dados sobre os bens imóveis de que foram proprietários até 19 de Maio de 2002, para os efeitos que a lei venha a estabelecer.
The contrast between the provisions of Articles 4, 12 and 13 is very clear; Article 4 expressly refers to decreto-lei while Articles 12 and 13 refer to lei.
By the words of Article 4, Law No 01-2002 expressly confers on the Government the power to enact a Decree-Law regulating the disposition of the State’s immovable patrimony. Articles 12 and 13 confer no such discretion on the Government. On the contrary, these Articles refer not to a Decree Law but to a Law – and that must be a law enacted by the Parliament.
The analysis in the report which concludes that the proper form of law for land dispute mediation is a Decree-Law flies in the face of the actual words of Law No 01-2003 and should be re-stated.
Consequently, the proper form of law for the mediation of land disputes is not a Decree-Law by the Government, as this report recommends, but must be a Law enacted by the National Parliament of Timor-Leste.
Furthermore, the acknowledgment of traditional dispute resolution mechanisms and the introduction of an alternative dispute resolution system is a new basic modification of the legal system that it ought to be confirmed by the Parliament and not merely by a Decree Law.
7. Flawed Research Methodology
The research methodology is also flawed. It canvasses only 142 respondents in the 13 Districts and is therefore unrepresentative in methodological terms. Nor is there any gender breakdown for respondents in the survey. These shortcomings in the methodology have implications for the integrity of the research as a legitimate indicator for policy formulation.
The report requires additional data and analysis in order to fully inform policy makers to make a decision on the issue of the traditional dispute resolution mechanisms for land disputes. These are the suggested additions:
1. a description of the traditional dispute resolution mechanisms in Timor-Leste;
2. a description of the adat systems of land law in Timor-Leste;
3. a consideration of the provisions of the Constitution and how they impact on the continuing operation of traditional dispute resolution mechanisms and adat land law systems. The reports’ recommendations should state explicitly that only elements of traditional dispute resolution mechanisms that are consistent with the Constitution can be incorporated into a State-sanctioned land dispute mediation mechanism. Elements that are inconsistent with the Constitution (such as those that discriminate against women and the guarantee of equality of all citizens before the law) must be excluded;
4. an account of the types, nature or numbers of land disputes which have already been registered by DNTP;
5. an assessment of the types of land disputes which would be amenable to traditional dispute resolution mechanisms and the types of disputes which should be left to the formal State Courts;
6. a reconsideration of the assertion that a Decree-Law is the appropriate legal instrument for regulating land disputes by traditional dispute resolution mechanisms and a revision of the analysis of the relevant provisions of Law No 1 of 2003 on the Juridical Regime on Immovable Goods to correctly reflect the text of these provisions;
7. a reconsideration of the profound differences between rural and urban areas and the nature of land disputes in those areas;
Finally, there appears to be some serious deficiencies in the methodology for the research which have implications for the subsequent findings and recommendations. Broader and more detailed research, with a breakdown of respondents according to gender, age, etc. should be completed.
Fundamental legal policy - particularly one dealing with the highly political and contentious nature of the land law system - can not be developed without the policy-makers and the law-makers of the Government and Parliament being informed by sound policy advice based upon erudite, complete and properly researched informatic and descriptive data.
*This article was prepared in response to an invitiation to attend Round-Table Discussions held by the Land and Property Directorate, Department of Justice under the auspices of the Land Law Program that is being implemented in conjunction with the Land and Property Directorate and the University of Timor Lorosa'e and other parties. It was presented by the author to the Land Law Program.
** Dili, December 2003 Prepared by Claudia D’Andrea, PhD With research assistance from Oscar da Silva of Yayasan Hak And two case studies by Laura S. Meitzner Yoder Editing and project management by Oxfam Sponsored by OXFAM in Timor Leste, in collaboration with Deutsche Gesellschaft Fur Technisce Zusammenarbeit (GTZ-German Technical Cooperation) and the Direcção de Terras e Propriedades (DTP, Directorate of Land and Property) of Timor Leste November 2003
***The author has 25 years experience in land law and land administration in Australia, Indonesia, East Timor and Bangladesh and served as the UNTAET Property Rights Adviser in the East Timor Transitional Administration Departments of Infrastructure and Justice.
Warren L. Wright BA LLB
Dili 08 April 2004
1. A Note on Land Rights in East Timor (Indonesian Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor) & the Purported Suspension of Article 5 by Government Regulation No 24 of 1992