Asia Briefing N°110 9 Sep 2010, crisisgroup
This overview is also available in Tetum, Portuguese and Indonesian.
Eight years after independence, Timor-Leste is still without a legal basis for determining ownership of land. In its absence, the challenges of enforcing property rights have grown more complex and increased the potential for conflict. The politically charged task of sifting through overlapping claims inherited from the country’s two colonial administrations has been complicated by widespread illegal occupation of property after the displacement of over half the population that followed the 1999 referendum. The legal and social uncertainties this created magnified the effects of the country’s 2006 crisis, causing further mass displacement in the capital and beyond. Resolution of these uncertainties through new laws, regulations and policies is necessary to reduce conflict, diminish the risk of further instability and to provide a clear way to resolve past and future disputes.
Land disputes have grown out of a history of displacement that includes forced relocations, military occupation and deadly internal upheavals. Despite this troubled history, few disputes over land ownership lead to violence. Many have been resolved or at least managed through informal mediation, a marker of the strength of customary understandings of land tenure and local communities. Yet some cases remain beyond the capacity of village chiefs, local elders or religious leaders to fix. Others are “pending” in anticipation of long-promised legislation expected to clarify cases that have complex (and undocumented) historical roots. The risk is that this has created expectations that legislation alone will be unable to meet. Many of these issues are more political than technical and will not be resolved by the application of titling laws. Given the weaknesses of the Timorese legal system, support to existing mediation will need to be strengthened alongside new laws to provide a realistic option for those parties ready to settle out of court.
Draft legislation on land titling before parliament will be an important first step towards better management of land disputes and pave the way to enforcement of a new civil code to govern all property rights. It will provide the first legal proof of ownership and provide protections in a growing property market. It will also raise the stakes in ownership disputes and thus the risk of conflict. While the collection of land claims underway in many of the country’s urban areas has shown the level of disputes to be below 10 per cent, it has also brought dormant issues to the surface, such as problems with intra-familial inheritance and tensions over land between communities.
The government has so far been unable to provide alternative housing to the displaced or evicted, an essential element of the constitutional right to housing. A worst-case scenario is for a new land administration system that would legalise dispossession without providing basic protections to those who may be evicted due to either illegal occupation or government expropriation. Land in Dili and other urban areas is already at a premium. Protections in the draft legislation for land held under customary ownership – the vast majority of the nation’s land – are very weak, especially in the face of broad powers granted to the state. In many communities, the individual titles offered by the new legislation are unlikely to be appropriate or in demand. It is the government’s prerogative to develop the country, but without agreeing to clear and enforceable protections for those who will require resettlement, it risks simply creating discontent and rejection of the state’s authority, weakening the very rights it seeks to reinforce. The government’s new ambitious plans for development by 2030 make resolution of such questions more urgent.
Strengthening property rights in Timor-Leste will require more than a law. It needs further consultation and agreement on how to manage community land holdings, particularly as the country seeks to encourage new investment. To address these concerns, a medium-term goal should be to develop a comprehensive land use policy that incorporates community priorities. Earlier donor-driven attempts have fallen short. High-level government engagement and improved mediation will also be required to solve many of the political challenges that surround the more intractable land disputes. While a law on titling remains the first step, to date the draft is poorly understood. Broader debate anchored by wider public information on the law and its implications should be a prerequisite for its passage. This needs to be balanced against the risk of creating even more delays.
As the government plans for accelerated development and identifies areas for donor support, its priorities should include:
Dili/Brussels, 9 September 2010