Original Citation: 2004 ETLJ 7
TRANSLATION OF REPORT ON RESEARCH INTO ADAT LAND LAW OF EAST TIMOR
Written by Chairperson of Research Team
Dr. Maria S.W. Sumardjono SH MCL MPA
Suyitno, SH, MS
Herry Iswanto, SH, SU
Wahyu Widodo, SH, MHum
Nurhasan Ismail, SH, MSi
Rafael Edy Bosko, SH
Dra. Hery Listyawati, SH
Cooperation between NATIONAL LAND AGENCY and FACULTY OF LAW OF GAJAH MADA UNIVERSITY
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................. 2
LIST OF CHARTS ..................................................................................... 3
FOREWORD ............................................................................................ 4
CHAPTER I INTRODUCTION ................................................................ 5
A. Background for Issues ........................................................ 5
B. Issues ................................................................................ 5
C. Purpose of Research .......................................................... 6
D. Overview of References ..................................................... 6
CHAPTER IIMETHODOLOGY OF RESEARCH ............................... 9
A. Location ............................................................................ 9
B. Respondents ...................................................................... 9
C. Types of Data and How to Collect Them ............................ 9
D. Analysis ............................................................................ 10
E. Difficulties in Analyzing .................................................... 11
CHAPTER III RESULTS OF RESEARCH AND DISCUSSIONS ........ 11
A. Adat Power ....................................................................... 11
B. Land Right of Adat Law Community ................................. 18
C. Individual Rights on Land ................................................. 23
1. Right of Ownership ...................................................... 26
2. Collective Right of Ownership on Land ......................... 27
3. Right of Use on Land ................................................... 27
4. Right of Precedence ..................................................... 28
5. Right to Enjoy Land Produce ....................................... 29
6. Right on Position Land (Rae Ha/Kuda Ata) ................. 29
CHAPTER IVCONCLUSIONS ........................................................ 31
REFERENCES ............................................................................. 33
LIST OF CHARTS (Charts not available)
CHART 1 : Structure of Adat Power within Irabin Community (Viqueque) .... 11
CHART 2 : Structure of Adat Power within Belibo Community (Bobonaro) ... 12
CHART 3 : Structure of Adat Power within Oekosi Community ..................... 13
CHART 4 : Structure of Adat Power within Suro-Craic Community (Ainaro) .. 14
CHART 5 : Structure of Adat Power within Iliomar Community (Los Palos) ... 15
Research into any aspect of East Timor is always interesting and poses a challenge of its own. Research into East Timor’s Adat Law is even more interesting because, in general, anything related to East Timor can lead to turmoil if it is left undetected and, in particular, land issues in East Timor --which are the object of this research-- also have the potential to bring about conflicts.
In view of the above, the Team of the Faculty of Law of Gajah Mada University --in this case, the Center for Land Law Studies-- feels grateful for the trust given by the National Land Agency --in this case, the Research and Development Center-- to conduct the research in 1994/1995.
It is the team’s hope that whatever output the research has produced can be of use to the application of land law theories/concepts in East Timor and can contribute to the formulation of just and useful policies which can give legal certainties to East Timorese people.
Finally, the team wishes to thank everybody who has participated in the implementation of this research.
Head of Center for Land Law Studies
Dr. Maria S.W. Sumardjono, SH, MCL, MPA
A land policy can be well-formulated and effectively executed if it is based on the actual conditions, needs, and value system which are developing in the relevant community. Similarly, in order to be successful, the efforts to regulate the conversion of land rights in conformance to the adat law of East Timor need to be based not only on written documents but also on the current facts about land possession and land use in the area.
Earlier studies of land rights in East Timor seem to have put emphasis on the analysis of secondary data and not on the analysis of special aspects. With regard to adat lands, for example, these studies offer general analyses in the form of descriptions about the existence of ulayat lands, about the types of rights on individual lands, and about the coming into existence of rights on individual lands. It is, therefore, necessary to conduct cross-checking especially concerning the possibility of the existence of other types of adat land rights whose characteristics are similar to those of adat land rights found in areas outside of East Timor.
A number of other aspects which need to be studied further are those related to the types of rights and to the subjects who have been possessing and using lands up to the present. Besides, things pertaining to the structure and mechanism of adat institutions who play a role in the granting and recognition of land rights for community members also need to be studied further.
Certainly, an adat land study should not overlook the possibility of the existence of hak ulayat (ulayat right) as the foundation for the existence of individual lands. With regard to ulayat lands, numerous aspects can be studied further concerning the object and territory of hak ulayat and the subject of hak ulayat and the powers he/she has. These three elements constitute the criteria for evaluating the actual existence of hak ulayat. The object is tied to the territory and all the natural resources which are contained in it and covered by the right while the subject is the community which is still seen as possessing the territory. The existence of the subject is recognized as long as, in reality, it still has the power and authority to regulate the use, utilization, and possession of the land in question. One factor which is not to be neglected is that this power to regulate is still respected by the community.
In view of the above, the following issues have been studied as proposed :
a.What is the structure of adat power which has authority on land like?
b.How is the existence of hak ulayat within the scope of the local adat community?
c.What is the pattern of individual possession and ownership of land within the local adat community?
C. Purpose of Research
This research is aimed at producing insights concerning the following:
a.the structure of adat power both in the general sense and in relation to land;
b.the possibility of the existence of hak ulayat and, if it exists, the area of the hak ulayat object which is possessed by the adat law community and the subject/adat law community and adat law figures who has the power to regulate the use of the ulayat land in question;
c.the pattern of individual possession and ownership of land within the local adat community.
D.Overview of References
The integration of East Timor into the sovereign territory of the Republic of Indonesia has brought about certain consequences on the legal sectors especially as a result of the application of national law to the area. One of these legal sectors is land law. One certain issue is that the application of national land law to a new area has to deal with the fact that the area in question already has its own land law which is based on custom. This means that there should be a process of integration between one land law and the other. If such a process is to proceed well, adat lands should be identified.
There are two types of adat lands, namely those that are communally possessed by all the members of the adat law community in question and those that are individually possessed. Those that are communally possessed are known as hak ulayat lands (Iman Sudiyat, 1978). On the other hand, individual lands are those which are possessed with the following rights: hak milik (right of ownership), hak menikmati hasil (right to enjoy produce), hak pungut hasil karena jabatan (right to collect produce because of one’s position), hak pakai (right of use), and rights which come into existence as a result of land sale/purchase agreements such as hak gadai (right of mortgage/right of pledge), and hak sewa (right of lease).
A hak milik comes into existence when the individual relationship with a certain share in the hak ulayat land has been going on for a long time. A hak milik can be possessed by an individual, but it can also be possessed by a kinship unit (kesatuan kerabat), a clan branch, or a dusun (village). This hak milik adat (adat right of ownership) can also be acquired by clearing/reclaiming a land or by purchasing a land as is the case with hak milik dusun (village ownership right) in Bali or with tanah pusaka (heritage land) in Minangkabau.
Hak menikmati hasil (right to enjoy produce) is a right granted by an adat law community to an outsider although it can be granted to an insider too. Normally, the term of a hak menikmati hasil is one harvest period. However, the term of such a right can cover several harvest periods, in which case the right in question is seen as one that is granted several times consecutively.
Hak pungut hasil karena jabatan (right to collect produce because of one’s position) is granted to a leader/caretaker of the adat law community in question on a certain part of the hak ulayat land, e.g. tanah bengkok in the case of Java.
Hak pakai (right of use) is a right on a certain part of a Hak Milik land which is granted by the group owning the land to one of its members. This takes place in, for example, Minangkabau, where kinship units grant their members with hak pakai on certain parts of tanah pusaka (heritage lands) (Ter Haar, 1960:73-76).
Hak gadai and hak sewa (and also certain types of hak milik) come into existence as a result of land sale/purchase agreements. Under Adat Law, there are three types of land sale agreements, and they are as follows: jual gadai, jual tahunan, and jual lepas. A jual gadai agreement, which results in the coming into existence of hak gadai (right of mortgage), takes place when one hands over his/her land to another person who pays him/her a certain amount of money in cash, but the person who hands over the land retains the right to get the land back when he/she returns the money which he/she has received. A jual tahunan agreement, which results in the coming into existence of hak sewa (right of lease), takes place when one hands over his/her land to another person who pays him/her a certain amount of money in cash, but the person who pays the money will return the land without having to go through any legal action after several harvest periods have passed. A jual lepas agreement takes place when one hands over his/her land for good to another person who pays a certain amount of money in cash.
The three land sale agreements, all of which have land as their object, are generally characterized by the following things. First, they have to be made before the leader of the adat law community at the presence of (or to the knowledge of) the heirs and the owners of the adjacent land parcels. This way, the agreement in question is “incorporated” into the legal system (i.e. recognized by law) and affects third parties. Secondly, the agreement in question takes effect at the time it is declared before the leader of the adat law community. Thirdly, the common reason for the making of such an agreement is that the owner of the land needs cash (Ter Haar, 1960: 87-92).
Between the two groups of lands as described above, namely lands which are communally possessed and lands which are individually possessed, there is some kind of “tug-of-war” relationship in the sense that as the individual rights on land become stronger, the communal rights become weaker.
This “tug-of-war” relationship can have different impacts on the growth and existence of the two groups of land. The group of adat lands which are individually possessed tends to be increasingly strong due to some internal as well as external factors. Human beings basically have the tendency to strengthen what they have and to provide it with some unique features. Such a tendency is inseparable from their desire to obtain recognition from the other members of the community. The tendency in which the group of individually possessed adat lands becomes increasingly strong is caused not only by the existence of some magic ties between individuals and their lands (Iman Sudiyat, 1982:7) but also by the fact that even human beings in the traditional community have economic-rational considerations in their behaviour which encourage them to strengthen their legal relationship with land (Hayami and Kikuchi, 1987:22). Moreover, the entry of new values such as commercialization and monetization into the socio-economic relationship of the community has given rise to individualization of land ownership both through the interaction between production and external economic agents and through regulatory intervention by the political power such as the kingdom or the colonial administration (Aass, 1984: 126; Suhartono, 1991:94-122).
The existence of some dynamism in the pattern of land possession by individuals as described above is confirmed by the fact that there are different levels of individual land rights as mentioned earlier. Different levels of individual land rights have occurred in all adat law communities throughout the archipelago (Kano, 1984: 44-45; Iman Sudiyat, 1977). Although the terms used differ from one adat law community to another due to the different languages used, they all refer to the concept of different levels of land possession.
Theoretically, the process in which individual land possession becomes increasingly strong can be followed by the weakening of hak ulayat although, in reality, that is not always the case. In some adat law communities, the strengthening of individual land rights has been followed by the weakening and extinction of hak ulayat. In some other adat law communities, however, the existence of hak ulayat has been maintained despite the strengthening of individual land rights.
The view above is consistent with the fact that earlier studies and research have ended up with two different conclusions. The first conclusion tends to deny the existence of hak ulayat on the basis of the historical fact that the intervention of kingdoms into adat law communities has resulted in the latter losing their independence and autonomy in regulating the allocation, utilization, and use of lands in their territories (East Kalimantan’s Subdirectorate for Agrarian Affairs, 1979). As part of the territory of a kingdom, an adat law community had to abide by the principles of the land law adopted by the king. One of such principles was that all the lands located within the territory of the kingdom belonged to the king and people could possess and use the lands only upon consent of the king. This principle officially rendered the powers of adat law communities as regards land ineffective.
The second conclusion tends to recognize the existence of hak ulayat. Even Collier et al (1979) in their research into the patterns of land possession in Javanese rural areas suggest that communal obligations concerning land are still maintained by certain communities in East Java. Several more specific studies confirm this second conclusion. Iman Sudiyat et al (1975) suggests that hak ulayat still exits in certain groups of adat law communities such as those at the marga (kinship), suku (clan), and nagari (village) levels. Another study (Mering Ngo, 1990) reveals that hak ulayat is still maintained by the Daya Kayan community. A similar thing is said by Coomans (Mubyarto, 1991:48), namely the fact that a fixed cycle of shifting cultivation with well-defined rules is still maintained indicates that the norms of hak ulayat still exist although the acreage is shrinking with the entry of forest concessionaires.
To determine whether hak ulayat still exists or not, the following three criteria can be used (Maria SW Sumardjono, 1993): (1) there is a well-defined territory used as the place of living of the adat law community in question which serves as the object of hak ulayat; (2) there are legal subjects who utilizes the ulayat land; and (3) there are authority and figures who exercise power in the following: (a) regulating and determining the allotment, use, and ownership of land in the territory; (b) regulating and determining the legal relationship between the legal subject and the land; (c) regulating and determining the legal relationships and legal actions concerning the land in the territory. It is important to note that whether the three criteria above are fulfilled or not should be evaluated with the involvement of the members of the adat law community in question.
METHODOLOGY OF RESEARCH
This research was conducted in two provinces, namely East Timor and East Nusa Tenggara. In this regard, East Nusa Tenggara was used for comparative purposes. East Timor was purposefully chosen for certain considerations which, among others, are as follows: (1) the security/safety condition of East Timor was good enough for the research to take place and (2) Research Assistants were available to remove obstacles in language and communication.
Six locations in East Timor were chosen and they were as follows:
1. Soro-Craic in Ambeno;
2. Illiomar in Los Palos;
3. Balibo in Bobonaro;
4. Kamenasa in Suai;
5. Irabin in Viqueque;
6. Bobocasse in Ambeno.
East Nusa Tenggara was also purposefully chosen for the reason that this province has cultural similarities in addition to cultural differences with East Timor. Two locations in East Nusa Tenggara were chosen, and they were the district of Belu and the district of Timor Tengah Utara.
Respondents were selected using the “accidental sampling” method from those who met this criterion: that they are key persons who are knowledgeable about adat land law. They were adat figures (liurai and tua adat) and community figures (kepala desa or village chiefs). In this regard, no limits were imposed on the number of respondents. Thus, the number of respondents differed from one location to another. A total of 17 respondents were obtained with the following breakdown: 12 adat figures and 5 community figures.
C.Types of Data and Method of Data Collection
Two types of data were collected, and they were as follows:
The primary data were information which was obtained directly from the adat figures and community figures concerning the adat power structure, the
existence of hak ulayat and individual land rights, and the forms of legal relationship whose object is land. The primary data were obtained by means of interviews.
The secondary data were the results of earlier studies concerning the communities in East Timor and East Nusa Tenggara.
The analysis was descriptive-qualitative, and it was made using the primary data with the help of the secondary data.
E.Difficulties in Research
The implementation of this research was faced with a number of obstacles to the maximum acquisition of data. These obstacles were, among others, as follows:
1.The difficulties in obtaining key persons who are really knowledgeable about adat land law as well as about the developments in adat land law itself as a result of the dispersion of people during the first days of the integration process. This was the reason why only a few respondents could be obtained.
2.The limited availability of research findings concerning the adat power structure. This is the reason why the discussions about the adat power structure in this paper are not very deep. Similarly, the way we use certain terminology and how we understand them may not be the same as how the members of the adat law community in question use and understand them.
To overcome these two obstacles, interviews were made not only with the key persons but also with representatives of government institutions which dealt in land issues. The interviews with the latter were made during a meeting held in Dili on 9 November 1994, and the information obtained from these interviews was used as the background for initial insights.
RESULTS OF RESEARCH AND DISCUSSIONS
Any community is characterized by the fact that it is composed of two groups, namely the minority group which rules and the majority group which is ruled. According to Weber, power or leadership in a community which adheres to traditional and magic values is based on charismatic considerations. Although charismatic values are inherent to a leader, a leader requires the support of several assistants in a hierarchical order. Thus, the leader and his assistants form a power structure.
A power structure can differ from one community to another depending on the complexity of the functions which are to be carried out and the size of the territory.
In East Timor, there are seven major cultures, each of which has a number of adat law communities. Each community has an adat power structure which tends to be different from that of the other communities. That the adat power structure of one community is different from that of another is illustrated by the following charts, which depict the adat power structures of the communities which serve as samples for this research.
ADAT POWER STRUCTURE OF THE IRABIN COMMUNITY (VIQUEQUE)
diagrams not available - check later editions
ADAT POWER STRUCTURE OF THE BELIBO COMMUNITY (BOBONARO)
ADAT POWER STRUCTURE OF THE OEKOESI COMMUNITY
ADAT POWER STRUCTURE OF THE SURO-CRAIC COMMUNITY (AINARO)
ADAT POWER STRUCTURE OF THE ILIOMAR COMMUNITY (LOS PALOS)
The charts above clearly show that there is a pluralism of ruling groups in East Timor’s adat law communities, in addition to the group of community members, which are referred to as reino/ruino, which functions to support the ruling groups. However, those charts also indicate that there is a hierarchy of ruling circles within an adat power structure. The highest layer in the hierarchy is where the kings (liurai) are, and they hold the highest power to rule, to regulate, to make policies, and to lead adat ceremonies. According to Manuel Verissimo, a liurai of Lo Palos, there are three ruling groups at the highest layer in the hierarchy of the adat power structure of the Iliomar (Los Palos) adat community, and they are as follows: Latoloho Rato (the group of land lords), Cailoro Rato (the second group), and Naiyo Rato (the third group). At the next layers in the hierarchy, there are assistants to the Liurai and these assistants have different designations as shown in the charts. The closer to the Liurai an assistant is shown in the chart, the closer to the Liurai he/she is in the hierarchy.
A few notes about the term/designation Liurai itself need to be discussed here. First, the term Liurai has two meanings as follows: (1) it is the designation of one who holds the highest power in the ke-liurai-an (the territory of the adat law community) in question and (2) it refers to an institution. In its second meaning, the term Liurai refers to a group of persons who together carry out leadership functions. The division of leadership functions among members of the Liurai institution is exemplified by that which is known to the adat law community in Bobonaro (BPHN, 1994:150). In the Liurai institution of the adat law community in Bobonaro, there is a Liurai who only carries out a religious/ritual function, namely to lead adat ceremonies in which offerings or sacrifices are given to the ruler of nature and to the souls of the ancestors. The Liurai who does this function is called Liurai loro. In addition, there is what is called Liurai daci, namely a Liurai who carries out daily administrative and social functions.
The existence of a Liurai institution is a reflection of the belief in the existence of two types of life, namely the macrocosm and the microcosm (Neonbatua, 1992: 88-90). Ritual/adat ceremonies are ways of connecting the members of the adat law community (microcosm) with the inhabitants of the macrocosm. That’s why a ritual/adat ceremony is necessarily led by a Liurai loro, who is seen as the incarnation of the creator. The existence of a Liurai loro is sometimes unreal and highly symbolic while the microcosm, namely the real world, is occupied by the living members of the adat law community. Because of this, the power to control the life of the inhabitants of the microcosm is vested fully in the hands of a Liurai daci.
Secondly, Liurais can be divided into two different groups according to how they came into existence in the first place (Xavier, 1994: 159-162; information from resource person, 1994). They are those who have been enthroned as part of a historical process which was started by their ancestors who first opened the land and those who are appointed by certain adat law communities to handle issues among these communities. These two groups have different types of authority over the land of the adat law community in question. A Liurai of the first group acts as ‘the land lord’ or the master of all the land and riches found in the territory of his ke-liurai-an and has the power to regulate land use and opening. On the other hand, a liurai of the second group does not have the status of a land lord. He/she is accorded with a tanah jabatan (position land) for use as his/her source of income.
Thirdly, efforts were once made by the colonial rulers (i.e. the Portuguese and the Japanese) to reduce the role and power of the Liurai. Such efforts were intended to facilitate their attempt at controlling the area and people of East Timor. The power of the Liurai was reduced by the establishment of a new position which was called Nai and whose place in the hierarchy was right below the liurai (Pereira (a), 1994: 159; (b) 1994: 10). As known to the members of the Bobonaro adat law community, the role of a Nai is big enough to affect the power of the Liurai and to convey the Liurai’s policies to his assistants at the lower levels. It is even said that the Nai has taken over the functions of the Liurai.
As part of their attempt to divide the territory of a liurai, the colonial rulers appointed the lesser leaders of adat law communities Liurais. Hence, liurais with smaller territories came into existence and separated themselves from those with larger territories (Suryosuwarno, 1994:16).
As for assistants to the liurai, they have different hierarchical systems and different designations among different adat law communities. In some adat law communities, there is only one level of assistants to the liurai, in some others two levels, and still in some others three levels. However, why there are such differences is not revealed in this research. As for the different designations for assistants to the liurai, the following can serve as examples: Naiju Muti, Tobe, and Amaf (in Ambeno); Kabu, Dato Cai Ua, and Umakain (in Irabim, Viqueque); Dato and Umafukun (in Belibo, Bobonaro); Capita, Chefe de Suco, Dato, Mak Sahar, and Kabu (in Ainaro); and Nukuhu and Nuak (in Los Palos). The relevant adat law community automatically understands that an assistant to the liurai which has this or that designation has this or that level in the hierarchy and carries out this or that function.
Generally, the duties of assistants to the Liurai can be divided between administrative duties and land duties. Their administrative duties are as follows:
a.to carry out orders given by the Liurai. In the case of an order concerning something that should be done by the reino (community members), it should be passed on to the reino on a command basis, namely from the highest-ranking assistant to the Liurai down to the lowest-ranking one, who will convey the order to the reino.
b.to keep adat norms from being violated. In the case of a violation against an adat norm for which a sanction is required, the assistants to the Liurai and the adat figures work together for the trial process.
c.to settle disputes/conflicts among community members. In this regard, the handling of a dispute is hierarchical. This means that a dispute should first be handled by the lowest-ranking assistant to the Liurai. If the lowest-ranking assistant to the Liurai fails to settle the dispute, a solution should be sought from the higher-ranking assistant. If necessary, a solution can be sought from the Liurai.
d.to receive grievances/complaints from members of the community and, if necessary, to pass them hierarchically on to the Liurai. This does not rule out the possibility for members of the community to raise their grievances direct to the Liurai.
e.to mobilize community members for some community work which is to be carried out for shared benefits, e.g. making preparations for an adat ceremony either at the subterritory level or at the territory (keliuraian) level.
f.(for the lowest-ranking assistants to the Liurai) to collect harvest produce for submission to the Liurai.
As for land issues, there is an assistant to the Liurai who is assigned and provided with the authority to handle them. In the context of East Timor’s adat land law, such authority is of two types as follows:
a.it is not accompanied by the power to control all the land in the territory of the ke-liurai-an in question because such power remains in the hands of the Lurai;
b.it is accompanied by the power to control all the land existing in the territory of the assistant to the Liurai in question because that is the way it has been since the beginning.
The distinction between the two types of authority as described above can be understood if the following two concepts are explained. The two concepts, namely “the ruler” and the implementor,” provide the substance of power within the context of East Timor’s adat land law. The ruler refers to the subject which has the authority to regulate land issues and to determine norms and policies concerning land issues while the implementor refers to the subject which is assigned to reinforce the adat norms concerning land issues.
In the case of the first type of authority as described in point a above, the ruler’s and implementor’s positions are held by different persons. In the Ainaro and Oekoesi (Ambeno) adat communities, for example, the ruler’s position is held by the Liurai while the implementor’s position is held by an assistant to the Liurai, namely Mak Sahar, who is assisted by Uma Lulik, who is an adat figure in charge of tet Ai Peu Luli (the oldest adat houses) in the case of the Ainaro adat law community or Naiju Muti (the oldest adat houses) in the case of the Ue-Cusse/Ambeno adat law community.
In the case of the second type of authority as described in point b, the ruler’s and implementor’s position are both held by an assistant to the Liurai, namely Nukuhu Hela-helar in the case of Iliomar (Los Palos) and Dato Cai Uca in the case of Irabin (Viqueqe) and Belibe (Bobonaro). The Nukuhu Hela-helar is concurrently a clan chief while the Dato Cai Uca holds the authority for his/her own territory, which is called ke-dato-an.
Some information from another resource person says that the ruler’s and implementor’s position are also held together by the Umakain/Umafukun chief for his/her own territory.
The consolidation of the ruler’s position and the implementor’s position in the hand of a Nukuhu or Dato or Umakain/Umafukun Chief has some historical background: they are regarded as the ones who first reclaimed the land or ancestors of those who first reclaimed the land and as having the status of a ruler who exercises power and uphold adat norms in the area of land. The Liurai is appointed by land lords and his job is to implement duties and functions in general administration.
The powers in the area of land are the same for different adat law communities. These powers are, among others, as follows:
a.the power to grant permission concerning the reclamation of land on which members of the community will work on and to lead adat ceremonies on the opening of land;
b.to accept or to re-control land which has been abandoned by the person who used to work on it. (This power is effective only in adat law communities which allow the return of a reclaimed land direct to the Liurai or the land ruler;
c.to determine the allotment of land for various uses, e.g. cemeteries, pasture lands, adat houses and other holy/sacred places, as well as public facilities. The allotment of lands for use as holy/sacred places shall be made in line with directions provided by the other adat figures;
d.to determine adat norms concerning how to use pasture lands, cemeteries, and public facilities with approval of the other adat figures;
e.to grant permission concerning the conversion of pasture lands into lands for other uses. (This power is effective only in adat law communities which allow changes in the use of pasture lands.);
f.to solve land disputes among members of the community.
A question has arisen as to whether the adat power structure as described above is still effective at present. There are a number of indications that it is still effective and binding to people although the territory of such structure is not as large as it used to be. These indications are, among others, as follows:
a.that adat houses (Uma Lulik/Umafukun) still function as centers of adat powers and adat ceremonies; [Each clan or subclan has its own adat house. However, the largest adat house exists at the clan level. According to data from some
other research (Depdikbud, 1993; BPHN, 1994), an adat house has continued to retain its strong influence on the life of the relevant adat law community. An adat house serves as the venue where adat leaders or Datos meet to work out solutions to current social problems. In addition, it serves as the center of adat ceremonies and as a place where to mobilize community members for community work (kerja gotong royong).]
b.that in daily life, especially in daily social life, adat leaders have greater influence than government-appointed officials. [Problems/conflicts which arise are easier to solve/to settle if decisions are sought from adat leaders. Even, government-appointed officials still resort to the powers/influence of adat leaders for the implementation of their duties. Historically, the powers of adat figures or adat elders were bigger than those of territory chiefs who were appointed by the Portuguese Colonial Administration, despite the efforts made by the latter to reduce or even to nullify the powers of the former.
The fact that the role and powers of adat elders/adat figures remain strong signifies that the intervention of the Government has never nullified adat powers. On the contrary, the use of adat leaders as a medium for the entry of outside influences has strengthened their role in the community, including that of selecting norms which are introduced by outsiders. In addition, the same fact indicates that the awareness on the part of the community of adat norms is still high. No matter what new norms are introduced, the solution to a dispute/conflict is regarded as binding if it is made on the basis of adat norms.
B.LAND RIGHTS OF ADAT LAW COMMUNITY
A territory, especially the land as its main element, is something which is inherent to power. Besides being one of the elements which constitute power itself, a territory also determines the size and magnitude of power both at the community level and at the state level. The larger the land which is controlled, the bigger the power. That’s why any attempt to enlarge a territory either through peaceful means or through wars can be seen as an attempt to increase the power held by the community or the state in question.
The description above serves to show how close is the relationship between a territory/land and the community which controls it. In a community which abides by traditional values, such relationship is not only juridical, in the sense that it signifies the existence of the right of the community as a whole to the land which it possesses, but also economical and juridical. It is because of these second and third characteristics that land is seen as a dwelling place, a place which provides a source of income, a place where the souls of the ancestors reside and supervise and
maintain life. Ter Haar (1960) depicts these relationships as follows:
“.......... members of the adat law community and land are mutually bound in a living relationship: land is where they live, land is what provides them with food, land is where they are buried, land is where the spirits which protect them and the souls of their ancestors reside, and land is where all the living forces ooze out. Hence, members of the adat law community are dependent on land.”
In literature, such a relationship has different names such as hak ulayat, hak pertuanan, hak purba, and beschikkingsrecht (Iman Sudiyat, 1978; Ter Haar, 1960).
The fact that East Timorese communities remain strongly adherent to their adat legal norms clearly implies the existence of legal relationships between these communities on one hand and the land which forms their territories on the other hand. However, the attempt to find a specific term for this land right of the adat community has failed. At least, this research has had difficulties finding one. The resource persons did suggest a number of terms, but these terms refer more to positions within the adat power structure or to the names of dusuns or villages than to the land right of the adat community. One study (Suryosuwarno, 1993) reveals a number of terms for this right, e.g. Rae Nain (Tetun), Nina Guivala or Rai Fuik (Baucau), Rea bu/Rea Foruno (Uato lari), Rea let (Lacluta), and Maa likasang (Ossu).
In the following pages of this report, in order to make this report easy to understand, the term hak ulayat will be used to refer to the land rights of adat law communities in East Timor.
What has been described above signifies the following two possibilities: (1) not all adat law communities in East Timor have specific terms for their adat land rights and (2) not just any adat community member or leader correctly understands the norms of adat law, including the terms used.
Despite the possible differences between the fact and its interpretation, the existence of the land rights of the adat law community is something which cannot be denied. In reality and in substance, such rights do exist. Members of a community [a suku (clan) or a dusun (village)] are fully aware of the binding norms that are applicable within the environment of their adat territory. The use of land by any one for any purpose should be in conformity to the norms. For this reason, there should be an adat leader with the power to regulate land use. A permit should be sought when one wants to clear up or to use a land parcel. This fact indicates that there is legal awareness among the members of the community that some sort of ulayat right still exists. Another fact which strengthens such an indication is the occurrence of a border conflict between one community and another, especially when the boundary of the administrative territory of one village --which has been fixed under Act on Rural Administration)-- is seen as infringing on the boundary of the “hak ulayat” territory of another adat-law community. Such a conflict indicates that an adat-law community is claiming for a certain territory.
As for the boundary of the hak ulayat territory, there is a gap between the understanding of it at the conscious level and the understanding of it at the reality level. What is meant by this is as follows: adat elders know that the jurisdiction of the hak ulayat of their suku (clan)/dusun goes as far as a certain river or a certain mountain or a certain big tree but they have no knowledge about where the true boundary points are. This condition can be traced back to the historical process of adat-law communities in East Timor. According to the available information, the possession of land by an adat-law community in East Timor (either at the dusun/suku level or at the Rae Nain/Ke-liurai-an level) developed through a number of processes as follows:
1. Initially, a number of families who were related to one another in blood cleared up land. With time, they cleared up more and more land as the number of the members of the families grew. Finally, they developed into an adat-law community the size of a dusun or suku or Rae Nain/Liurai. The possession of land by this adat-law community is not limited to the lands which have been opened for agricultural and dwelling purposes. It also includes the lands which they use for purposes related to hunting and to the collection of forest produce to meet the needs of their own members. Usually, huts/shelters are built on the lands where they hunt for animals or collect forest produce so that they can have a rest inside them.
2.Adat-law communities also expanded the hak ulayat territories through wars among themselves. The suku/Rae Nain or Liurai which won a war could expand their hak-ulayat territory as far as the line where they could push the losing enemy. This method of land expansion seems to have been part of the adat norms which they abide by.
3.When a suku (clan) or dusun (village) or Liurai received some of the land belonging to another suku for giving help and protection to the latter, this would result in the former’s hak ulayat territory expanding. This meant that the former’s hak ulayat territory would include the land which was given to them by the latter.
4.The boundaries of the hak ulayat territories of a number of sukus/dusuns have been distinctly fixed and clear boundary marks have been installed by the higher authority. To maintain these boundaries, special officials called Makleats have been appointed and are posted at certain places to control them. One makleat was appointed from each of the adjacent sukus.
In the case of earlier generations, each adat-law community could easily locate the boundary of their hak ulayat territory by referring to the marks which they had installed or seen. In the case of the later generations, however, their knowledge about the boundary became less and less clear because this knowledge was passed on to them from generation to generation through adat stories and poems. The problem is that the knowledge which they received from such stories and poems was never verified through on-the-spot checking. It was possible that the boundary marks which had been installed and agreed upon by earlier generations, e.g. a stone on the hill/in the river or a large shady three, had disappeared or had undergone some changes.
In such a situation, adat-law communities (sukus/dusuns/liurais) which are located adjacent to each other are faced with a potential conflict over the boundary of their hak ulayat territories. Such a potential conflict can become actual if there is some intervention from an outside party, e.g. one which has to fix distinct boundaries for purposes related to the establishment of villages. In such a case, the participation of adat elders of each community needs to be sought.
Hak ulayat basically contains two elements, i.e. possession and authority. The first element signifies that all the members of the suku/dusun/ke-liurai-an has equal rights and equal opportunities to utilize and collect land produce, forest produce, fish, and all the other resources which exist within the territory of their hak ulayat. This element of possession stays permanently with each individual who is a member of the adat-law community in question, except for those who have relinquished their status as members of the community. Among certain adat-law communities in East Timor, it is possible for members to relinquish their status as members of the communities.
The element of authority signifies the authority to regulate, and this authority is delegated to Liurai, Mak Sahar, Naiju Muti, Nukuhu Hela-helar, Dato, and Umakain or Umafukun.
The element of authority has the strength to apply internally and externally. As far as the strength of this authority to apply internally is concerned, there are two things worth noting:
1.Among adat-law communities in East Timor, there are differences in the way they determine the strength of the legal relationship between the members and the hak ulayat land. Most communities have determined that members can possess and utilize land and bequeath it to their descendants. However, some have determined that members can only possess and utilize land but cannot hand it down to their descendants.
2.As for the “tug-of-war” relationship between hak ulayat and individual rights, some communities apply it and the others don’t. With the communities which apply such relationship, the hak ulayat and individual rights can strengthen or weaken. This means that hak ulayat will weaken when individual rights strengthen and the other way around. Individual rights among certain adat-law communities in East Timor can weaken for any of the following reasons: one member has abandoned his land parcel and left it untoiled, resulting in weeds/other wild trees growing; one member has been expelled from the community for violating certain adat norms; or one member has relinquished his membership in the suku/community in question. When any of this happens, the individual right in question will disappear and, on the contrary, the hak ulayat will strengthen.
According to the text-books on adat law (see Iman Sudiyat, 1978; Ter Haar, 1960), this tug-of-war relationship is generally found in adat-law communities in Indonesia. From the available data about East Timor, however, such relationship is applied by only a few adat-law communities, e.g. one suku in the village of Bobocasse (Ambeno) and one in the village of Suai.
On the other hand, there are adat-law communities in East Timor, e.g. those in Ainaro, Los Palos, Bobonaro, and Viqueque, which do not recognize the tug-of-war
relationship between hak ulayat and individual rights. In these communities, once an individual cleared up a piece of land to the knowledge of the adat elders, held a ritual for that purpose, and installed a boundary mark, e.g. a big tree or stone, he will possess the land forever even if he may subsequently leave the land untoiled. Thus, the authority of hak ulayat over the land parcels which have been cleared up and given to members is very weak.
The fact that some communities apply such relationship and the other do not signifies that the incidence of individualized possession of land in the latter is higher than that in the former. The fact that land can be granted to individual members for ever indicates that individuals have a very strong position. In trying to clarify this fact, one observer has been trapped in the idea that the second group of communities has developed rational economic considerations which have led individuals to competition for land possession for their own benefits. This may not be true because such communities observe norms of equilibrium, which prevent anyone from doing something which is harmful to the interests of other people or which closes the opportunities for other people to possess land. These norms of equilibrium are reflected in one of the functions of Uma Lulik, namely to maintain the value of mutual cooperation and that of solidarity to the interests of other people. These values motivate people to possess land which is just large enough for their own needs and their capabilities to till it.
The strength of hak ulayat to apply externally is associated with the possibility for outsiders to utilize land or to collect forest produce within the territory of hak ulayat in question. The available data indicate that with regard to the strength of hak ulayat to apply externally, the adat-law communities in East Timor can be divided into two groups, namely those which provide outsiders with opportunities to utilize their land under certain conditions and those which does not provide outsiders with such opportunities. Respondents for this survey have been taken from the first group of communities, and information about the second group of communities has been obtained from resource persons. The communities of the second group are located far from the center of the district administration.
Another phenomenon found among East Timorese adat-law communities is that there are two typologies of hak ulayat. The first is that within the territory of ke-liurai-an (Rae Nain), there is only one hak ulayat which applies to the whole territory. This typology of hak ulayat is found in adat-law communities in which the authority to regulate land possession is in the hands of the Liurai, e.g. those adat-law communities in Ainaro and Oekoesi (Ambeno). The second is that within the territory of ke-liurai-an (Rae Nain), there are two levels of hak ulayat. This typology of hak ulayat is found in adat-law communities in which the authority to regulate land possession is not in the hands of the Liurai but is held by a lesser leader, namely Dato or Nukuhu Hela-helar and Umakain or Umafukun or Nuak Hela-helar, as can be found in the suku of Illiomar (Los Palos), of Balibo (Bobonaro), and of Irabin (Viqueque).
In the text-books on literature, Ter Haar (1960) refers to the second typology as “hak ulayat rangkap” (double hak ulayat). The term “double” itself has two different meanings as follows:
1.The environment of the territory of hak ulayat consists of forests and beaches. In other words, a community is seen as having “double hak ulayat” if the environment of the territory of hak ulayat in question consists of forests and beaches.
2.There are two layers of adat leaders, namely adat leaders at the territory level and adat leaders at the dusun level although, administratively, these two layers of adat leaders form one unity.
The existence of the two levels of hak ulayat, which is known to some East Timorese adat-law communities, seem to correspond to the second meaning of Ter Haar’s double hak ulayat, namely the existence of two layers of adat leaders within the same territory of ke-liurai-an (Rae Nain). The first level of hak ulayat is controlled by Dato (in Rabin and Balibo) or Nukuhu Hela-helar (in Los Palos), who are also called “tuan tanah” (land lords). Through an adat ritual, hak ulayat of the first level is divided into several hak ulayats of the second level, which are controlled by the heads of Umakain/Umafukum/Nuak Hela-helar, and --at the same time-- the boundary marks for the hak ulayat of each Umakain are provided. Each Umakain has autonomous authority to regulate and distribute the hak ulayat land to its members. Meanwhile, Dato retains the authority over empty land which has not been granted to Umakains.
C. INDIVIDUAL RIGHTS TO LAND
Within the environment of traditional communities, individual rights form part of the whole aspect of the life of the community. Similarly, land rights which are held by individuals are seen as part of the hak ulayat. In such communities, individual land rights and hak ulayat are inseparable from each other because they are two sides of the life of the community which have some kind of tug-of-war relationship. This means that when the existence of individual rights is becoming increasingly visible, the existence of hak ulayat is becoming increasingly weak.
This tug-of-war relationship provides one of the principles which determine the existence of individual rights to land. Apart from this, there are other principles which are adhered to by East Timorese adat-law communities although there have been changes in the applications of these principles due to developments within the communities and to their contact with outside values. Among these principles are the following:
1. The type of land right which an individual member of an adat-law community can have depends on the status of his membership in the community. Those who have the status as suku (clan) members have the opportunity to have stronger legal relationship with land (to have stronger rights to land) than other members.
In connection with these differences in the status of membership among members, there are three patterns of grouping according to how the community sees and the presence of members of other Liurais/Sukus/Umakains and treats them. How one community sees and treats members of other communities also show how open they are to values coming from outside. The more open they are to such values, the more complex the pattern of grouping is although this may not affect the principle of land possession. The three patterns of grouping are as follows:
a.The first pattern is one in which the community divides people into “warga dalam” (internal members) and “warga luar” (external members). The use of the term “internal members” shows that the community in question is more open than some others to the presence of members of other sukus in their hak ulayat territory. This is so because internal members are divided further into two subgroups, namely “Ema Rai Nain” (suku members) and Ema Lao Rai/Ema Rai Seluk (newcomers).
Ema Rai Nain or suku members (say, members of suku A) are those who were born within the territory of suku A, i.e. those whose parents are descendants of members of suku A. They have and abide by the same customs and shelter under the same rumah adat (Uma Lulik/Umafukun or adat house). In other words, they can be called “warga pribumi” (indigenous members). Ema Lao Rai/Ema Rai Seluk or newcomers are those who are non-members of suku A but live within the hak ulayat territory of suku A. The reason why they live there is that they have married women of suku A.
“Warga luar”/external members or Ema Matac (foreigners) are those who are non-members of suku A and live outside of the hak ulayat territory of suku A.
b.The second pattern is one in which the community divides people into “warga masyarakat adat” (adat-community members or Ema Rai Nain) and “orang luar” (outsiders/foreigners or Ema Matac). “Warga masyarakat adat” are the same as warga suku as described in point A. “Orang luar” are those who are non-members of the adat community, no matter whether they live inside or outside of the hak ulayat territory of the community in question.
c.The third pattern is one in which the adat-law community recognizes only its own suku members. This is an adat-law community which is closed to the presence of members of other sukus/adat-law communities. Information concerning the condition of customs, especially with regard to land, among such adat-law communities is not available. However, according to one resource person, such adat-law communities still exist in East Timor.
The different patterns of grouping of members among different adat-law communities do not have consequences to the principle of land possession. This means that under the first and second patterns, only those who are internal members (suku members/adat community members) can have strong land rights while external members (newcomers or foreigners) can have land rights which are not very strong.
Of note about the different patterns of grouping is that there have been different developments among different adat-law communities in the way they treat and see the presence of members of other communities as shown in the three patterns above. This indicates that it may not be impossible to find adat-law communities in East Timor (other than those which served as samples for this survey) which allow members of other communities to have land rights which are as strong as those held by their own members.
2.The marriage system is a factor which also determines the type of land right which a married individual can have. In this regard, marriage is to be seen from whether or not a dowry (“belis”) is paid. This “belis” also determines where the new married couple can live. There are two types of marriage as follows:
a.Marriage with “belis” or “habani,” namely marriage which is accompanied with the payment of a certain amount of money or a certain object as agreed upon. With the payment of this dowry, the wife and the born-to-be children will become members of the husband’s suku. This means that the family will live within the hak ulayat territory of the husband’s suku. The consequence of such marriage to the ownership and possession of land is that the family can have land rights which are strong.
It is possible that the belis has not been paid in full or has not been paid at all when the wedding takes place. In such a case, according to the resource person, the new family has a choice to make between living in the environment of the husband’s or wife’s relatives or living in another new place. The consequence to this is that the new family can have land rights which are weak until the belis is paid in full. When the belis has been paid in full, the husband can take his wife into the environment of his relatives.
b.Marriage without belis or habanis, namely marriage which is not accompanied with any payment to the relatives of the wife. The consequence to this marriage is that the husband has to live in the environment of the wife’s relatives. This will cause the new family to have weaker land rights because, in such a case, the husband is seen as a newcomer, who is only allowed to have weaker land rights.
3.A study of the existing text-books reveals that there is a process with certain stages one has to go through in order to be able to have stronger land rights. The process starts off with the opening of land, and the stages are as follows: hak mendahului (right to precede), hak memakai (right to use), and hak memiliki (right to own). There are certain requisitions to fulfill before one can move from one stage to another.
However, not all the stages in the process are strictly adopted by all the adat-law communities in East Timor. As a matter of fact, there are two different phenomena with regard to how this process is applied in East Timor. In several adat-law communities such as those found in Ainaro, Los Palos, Bobonaro, and Viqueque, the process does not cover all the four stages as mentioned above. This
means that after one has opened a parcel of land, he can immediately start owning it. In the case of other adat-law communities such as those found in Ambeno and Suai, one has to meet certain requisitions to move from one stage to another and, finally, to the stage of owning the land. According to another study (Suryosuwarno, 1994), the process of owning the land without having to go through certain stages and to meet certain requirements is generally adopted in areas where the population is high. Clearly, the reason for this is that the competition among members in high-population areas is very tight. So, they have to till and possess the land immediately after they have opened it.
In view of the principles above, adat-law communities in East Timor recognize different types of land rights, both stronger ones and weaker ones. How strong or how weak a land right is determined by how long one can possess or own the land parcel in question. In the case where one can own the land forever and can bequeath it to his descendants, the right on the land which he possesses is strong. The different types of land rights are as follows:
1.Right of Ownership
There are different terms used to refer to right of ownership in East Timorese adat-law communities, and they are among others: rae niniyan, mea dada, rae baha, and rae emaniyan. The first three refer to the right of ownership in which case the whereabouts of the land owner is known and the owner tills the land actively. The last one, namely rae emaniyan, refers to the right of ownership in which case the whereabouts of the owner is not clearly known but people know that the land parcel in question is owned by a certain person named, say, A. Rae emaniyan is recognized by adat-law communities which do not apply the principle of kadaluwarsa (expiration) to the ownership of land on an absentee basis. In such adat-law communities, which are found in Ainaro, Los Palos, Bobonaro, and Viqueque, one will not lose his right of ownership on a land parcel no matter how long he may have left the land in question abandoned, provided that the boundary marks or the ownership marks are still clear.
In principle, all the land existing in the hak ulayat territory of a Liurai/suku/dusun can be turned into objects of ownership with the status of rights of ownership, with the exception of those land parcels which have been determined for use to serve public interests such as pastures, cemeteries, bathing areas, areas for use as worship places, and adat houses. The ownership marks can be large, productive trees such as coffee plants, coconut trees, candle-nut trees, areca-nut trees, mango trees, and sengon (albizzia chinensis) trees as well as piles of stones and wells. Different ownership marks also show different uses of land parcels, i.e. wet fields, dry fields, and residential areas.
Only members of the adat-law community, i.e. members of the Liurai/suku/dusun, can have rights of ownership on land. Newcomers from other sukus, both those who have lived in the hak ulayat territory of the adat-law community in question and those who have not, cannot have rights of ownership on land.
2.Collective Right of Ownership on Land
It seems that not every adat-law community recognizes the existence of a collective right of ownership on land. Of the six adat-law communities surveyed, five recognize the existence of such rights. The terms which they use to refer to such rights are, among others, Rae Han Ramutuk/Rae Hali Ramutuk (Ainaro), Koekouwar (Los Palos), and Maca Qui/Maca Usa (Viqueque). According to Suryosuwarno’s study (1994), such rights are referred to as Rai Uman in adat-law communities in Kovalima and Aileu.
As for the holders of collective rights of ownership on land in the five adat-law communities which recognize the existence of such rights, no data have been obtained However, in certain adat-law communities, it is said that such collective rights are held by several families that are associated under a clan. The terms for such clans are, among others: Mao Ais Mao/Bela Asa and Besi Mube (Ambeno), Fatu and Ama Dato (Bobonaro). Such clans have the collective rights because these rights have been granted to them by the Liurai or Dato in appreciation of their merits.
In principle, the land owned under a collective right of ownership on land is used and tilled by every family of the clan in question. Only, the status of possession differs from one adat-law community to another.
a. Some adat-law communities let the collectively owned land remain undivided, but each family is given the opportunity to possess it with a right of use and to till it for a certain period of time. After the period of time ends, the land is to be returned to its status as collectively owned land and the opportunity to possess and till it is to be given to another family. In Bobonaro, for example, the period of time is 2 years.
b.Some other adat-law communities allow the collectively owned land to be subdivided among all the families of the clan in question under the condition that an agreement has first to be achieved among the families concerning the subdivision. In Viqueque, some of the collectively owned land parcels have been totally subdivided.
3.Right of Use on Land
A right of use on land can be held by members of the adat-law community as well as by newcomers. It is transient in nature: it lasts for a certain period of time which has been agreed upon or predetermined. Unlike an individual right of ownership, a right of use can not be bequeathed or transferred to another party.
Amongst the parties which can hold a right of use are as follows:
a Community members (ema rai nain) within the environment of an adat-law community which recognizes certain stages in the process leading to one’s ownership of land. Theoretically, the right of use comes into existence following the right to precede (hak mendahului). In reality, however, it is difficult to identify whether this is always the case. The only way to identify this is by trying to understand how well aware the members of the adat-law community in question are of the stages in the process.
b.The families associated under the clan which has the collective right of ownership on land. In this case, the right of use encumbers the collectively owned land. After a predetermined period of time, the right of use will expire and the land in question will return to the status of collective ownership.
c.A woman can have a right of use as a result of hibah (grant/bequest) from her parents. According to Law of Inheritance, women --especially those living within communities which adhere to the patrilineal kinship system-- shall not receive inheritance from their parents. However, in the case of certain communities, parents clan grant land to their daughters for use by them during the rest of their life. When they die, the land has to be returned to their parents or brothers. In other words, women cannot bequeath the land --which has the status of right of use-- to their descendants.
d.A male newcomer who married a female member of the adat-law community in question with belis can open land to provide for his family. However, this right of use will expire at the time he dies and it can not be passed down to his children. His children will get inheritance from their father’s relatives.
4.Right to Precede (Hak Mendahului)
This right can be held only by members of the adat-law community in question on land which they have opened, and it can be passed down to their descendants. Those who can have the right to precede are as follows:
a.Those who open land (This is true especially in the case of adat-law communities which recognize the existence of several stages in the process leading to one’s owning land. The opening of a new land parcel creates the right to precede, which is used to till the land.)
b.Right-of-ownership or right-of-use holders who have left their land idle for a long period of time, resulting in wild grass growing on it. (Under such condition, the individual right on the land in question weakens. Eventually, only the right to proceed will remain.)
The holder of the right to precede has to give other people the opportunity to use the land in question. However, one who wants to use the land should first obtain permission to do so from the holder of the right to precede. Even, an opportunity is open for the holder of the right to precede to fully transfer this right to the person who intends to use the land in question.
5.Right to Enjoy Land Produce
This right is allotted for newcomers or outsiders. With this right, a newcomer or outsider can only plant something on the land and enjoy the produce. His authority over the land is limited to the plant growing on it. The land itself remains under the status of hak ulayat of the relevant adat-law community. The right to enjoy land produce is referred to as holo deit han deit, which literally means to right to plant something just to be able to eat.
In theory, the right to enjoy land produce is effective only until the end of the harvest period. In some cases, however, the possession of the land in question continues even after the end of the harvest period and the holder of the right in question or his descendants finally think they already own the land. This is what has recently led to problems. To prevent such problems, a rule has been imposed, namely that the holder of the right to enjoy land produce or his descendants shall not plant big trees/hard-crop plants which are productive and shall not cut down big trees which already exist, if any. The planting of a large tree is seen as a sign of opening land, something which results in the creation of an ownership right.
6.Right on Position Land (Rae Ha/Kuda Ata)
The right on tanah jabatan (position land) is not something which is inherent to an individual, but it is inherent to an individual’s position. In East Timor, the right on position land is available for Liurais, especially those who became so through appointment by Datos or suku chiefs. This right is given to a Liurai for use as a means of living while he serves as a Liurai.
The land rights as described above can be obtained only in certain ways, and these are inseparable from the religious/magic/sacred belief of the community and from the existing power relations and kinship/friendship relations. These ways are as follows: opening land, the granting of rights by Liurais/Datos, and kinship/friendship.
Opening land is the most common way of obtaining a land right. This process starts off with a notice to the Liurai or to the authorized adat elder. Such a notice concurrently serves as a request for permission to open land. After having opened land, the person in question slaughters an animal, e.g. a cow/a goat or a pig, and shares the meat with his neighbours. This sharing of meat is intended to serve as a notice to all the members of the adat-law community in question that the land has been opened. A certain part of the animal that has been slaughtered, e.g. the head, is then put at a certain corner of the land that has been opened and, at the same time, boundary marks are put up, e.g. large trees, piles of stones, or wells.
Another way of acquiring a land right is the granting of a land right by the Liurai to a number of families within the same suku (clan) for collective ownership purposes. The granting of a land right for collective ownership purposes is
accompanied by a certain ritual. In the old days, a part of the ritual was to drink a mixture of blood taken from each of the members of the clan. This was intended to symbolize the families’ togetherness in possessing and utilizing the collectively owned land. In addition, they treaded on the land as a symbol that they were committed to working on the granted land and to staying together in working on the land. Another part of the ritual was to put up boundary marks.
Still another way of acquiring a land right is by requesting another person, especially a father-in-law or a close friend, to expand the land he possesses/owns. The requester then works on the extension to the land silently. Initially, he works on the extension to the land with the status as a “dependent.” Eventually, however, this status can develop into a certain type of land right, e.g. right of use or, even, right of ownership. This way of acquiring a land right seems to have been a new development as indicated by the fact that it contains both communal (egalitarian) and rational-economic values. The communal values are reflected by the action to help another person possess and work on a land parcel. On the other hand, the rational-economic values are reflected by the fact that there is some economic orientation. This way of acquiring a land right does not require the requester to perform certain rituals or to slaughter an animal. Hence, it is more economical than the other ways of acquiring a land right. The person who has extended the land will have a certain share in the harvest output for as long as the requester works on the extension to the land with the status as a “dependent.”
In addition to the different types of land rights as described above, there are in East Timorese adat-law communities certain actions or legal relationships with land as the object. Among these legal relationships are penor (pawning/security), lisuk (production-sharing), and hibah (grant).
No detailed information was obtained about penor and hibah. Pawning is known in Ambeno. In this area, a pawning relationship comes to an end and the land returns to the owner when the loan is paid off. Granting is also known by several adat-law communities such as those in Ambeno and Bobonaro. In these adat-law communities, land is granted only to daughters because daughters do not inherit land. A granting relationship requires that the daughter receiving the granted land can use it only as long as she lives. When she dies, the land has to be returned to her brothers or to the parents.
Production-sharing relationships are found in adat-law communities in Ainaro, Bobonaro, and Viqueque. Production-sharing relationships are of two types. The first are those in which all expenses are borne by the owner of the land and the harvest output is divided into four parts, of which three go to the owner of the land and the other one goes to the person who actually works on the land. The second are those in which the expenses are shared by the owner of the land and the worker. For example, the worker provides manpower and the owner of the land provides seeds and buffaloes (to be used for plowing the land). In this case, the harvest output is to be divided into two parts, of which one goes to the owner of the land and the other to the worker.
CONCLUSIONS AND IMPLICATIONS OF POLICY
In East Timorese adat-law communities, adat norms and adat-law institutions are still effective. This is reflected not only by the fact that members of each adat-law community behave in conformance to adat norms and adat-law institutions but also by the fact that the Government’s intervening regulation in East Timor requires the involvement of the adat figures and the implementation of the adat norms if it is to be successful.
As far as the area of land is concerned, the adat institutions which remain strongly effective are as follows:
In certain gradation, hak ulayat still shows its existence and this can be seen from the fact that adat leaders such as the Liurai/Dato/Umakain Chief still exercise their authority in regulating land issues. Even members of adat-law communities still show their conformance to adat norms and their loyalty to the adat figures. Besides, hak ulayat territories still visibly exist although the boundaries are beginning to be vague due to a historical process which has led to a gap between the understanding of the boundaries at the conscious level and the actual boundaries.
With certain ke-liurai-ans, there is only one level of hak ulayat for the whole territory of the keliuraian in question. With other keliuraians, however, there are two levels of hak ulayat, namely the kedatoan level and the umafukun/umakain level. Within each hak ulayat territory, the members of the adat-law community in question is in a stronger position to establish stronger legal relationship with land or to have stronger land rights than newcomers/outsiders. Even so, certain adat-law communities have began to be open to newcomers/outsiders and to accept them as warga dalam (internal members).
In East Timorese adat-law communities, there exist individual rights and common rights on land as well as legal actions with land as the object. The individual rights are as follows: hak milik (right of ownership), hak pakai (right of use), hak mendahului (right of precedence), hak menikmati hasil (right to enjoy land produce), hak milik bersama atas tanah (joint right of ownership), and hak atas tanah jabatan (right on position land). Which of these individual rights one can have depends on the status of his membership in the adat-law community in question and on the type of marriage which he had.
As for the legal actions with land as the object, there are three types of them, namely gadai (pawning), hibah (granting), and bagi hasil (production-sharing). Lease relationships are not found within the environment of adat-law communities; rather, they are found within the environment of urban communities.
Implications of Policy
The results of this research show that traditional rulers/adat leaders still play a strong role in the social life of East Timorese adat-law communities. Individual ownership of land has not relaxed the function of adat leaders as a central institution whose decisions concerning legal relationships between community members and land are well-respected. In view of this, East Timorese adat leaders absolutely needs to be involved in making policies concerning land. Furthermore, the Government needs to understand the structure of power in East Timorese adat-law communities correctly so as to be able to find the key figures who really understand adat land law and are well-respected by their peoples.
Legalistic-formalistic approach is inappropriate when it comes to applying land policies in East Timor. The way of thinking of the locals, their perceptions, and their expectations need to be taken into consideration so that formal (national) rules can be gradually and peacefully accepted through an internalization process by East Timorese people.
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