Formal land tenure in East-Timor: an insider's perspective
Who has control over which piece of land? Since independence in 2002 East Timor has been struggling to create a land tenure system that can deal with the grievances of past colonial ruling and conflict, and address the needs of its citizens, says researcher Bernardo Almeida. PhD defence on September 24 2020.
Land plays a central role in many aspects of human activity. Land is necessary for subsistence, housing and in many cases, land is also part of people's social identity, spirituality and kinship. Whether conducted collectively or individually, human activities are somehow dependent on access to and control of land. Therefore, competition for this limited resource must be regulated to avoid conflict.
Almeida's research focuses on the development of formal land tenure systems, which are the laws, institutions and practices created by the states to regulate land tenure. Taking the case of East Timor – a former Portuguese colony, occupied by Indonesia in 1975 and independent since 2002 after a long and painful fight by its people – this research shows the difficulties of developing state systems that can address land problems caused by colonialism, violence and autocratic ruling.
Balance of interests
The study of formal land tenure systems is very important in today's world. Formal land tenure systems play an important role in addressing key societal problems such as insecurity, poverty, inequality, destruction of nature, and cultural and social estrangement. By regulating access to and use of land, these systems can prevent or reduce conflict, promote stronger economic growth, create more equality, prevent the overuse of land necessary for conservation, and protect people's spiritual, cultural and historical connection to land. However, if poorly implemented, formal land tenure systems can also cause or aggravate these same problems.
In all societies, land tenure systems need to strike a balance between the different interests around land, and the various options to establish this balance are at the center of political debates. However, in some countries the conditions necessary are weak or non-existent. Factors such as conflict, colonial legacy, authoritarianism, corruption, weak state institutions and weak rule of law undermine the role of the of the formal land tenure systems in promoting a better life for citizens. My research focuses specifically on how countries can develop their formal land tenure systems under such conditions.
Almeida lived and worked in East Timor for many years. 'A considerable part of this research is based on my professional experience in East-Timor as a university law teacher and land adviser to the Ministry of Justice, which methodologically can be classified as 'participant observation'. This insider's perspective, which is fairly rare in the academic literature, shows the state from the inside and puts the reader in the shoes of a politician or a bureaucrat, giving a new perspective about the problems and dilemmas that they face in the development of a formal land tenure system.'
Lack of adequate solutions
The development of the Timorese formal land tenure system has been a difficult process, the researcher concludes. 'The country's history is marked by colonialism, occupation, authoritarianism and violent conflict, and all of these factors are reflected in land-related grievances that still exist today, and to which the existing formal land tenure system has still not given an adequate answer. For instance, the customary rights through which most Timorese access and benefit from land were mostly ignored by the formal systems from Portugal and Indonesia. The situation remained similar after independence, leaving most Timorese without formal land rights and therefore exposed to the possibility of being evicted from their land by the state at any time.'
Although some progress has been made since independence in 2002, the result is still a formal land tenure system that gives almost no certainty about land rights, provides little protection to those who cross the path of state-led infrastructure projects, and is quite vulnerable to opportunistic abuse by elite members of Timorese society. 'Although better laws will not solve all land-related problems, they do help and are therefore are worth investing in, but require adequate attention to the lawmaking process', Almeida explains. 'Moreover, new technology and overly complex systems have a limited role in promoting a fairer formal land tenure system. States need to get their ideology right, protecting citizens' basic rights and needs must be at the heart of land administration; state officials, practitioners, academics, and the general population, through their actions and inactions, are also doing politics that influence land tenure.'
This research is an interesting basis to inform future political, legal and administrative changes in the country's formal land tenure system.
Almeida hopes his research will contribute to an improved formal land tenure system in East-Timor. 'My research provides a deep analysis of problems and dilemmas of developing the Timorese formal land tenure system. Therefore, this research is an interesting basis to inform future political, legal and administrative changes in the country's formal land tenure system. As someone that has been involved in the development of the formal land tenure in East-Timor for many years, both as a practitioner and a researcher, I'm interested in promoting and being part of these changes.'
Beyond East-Timor, the research raises a number of new questions and innovative approaches to the study of formal land tenure systems. Knowledge about the work of these systems in practice is essential, the researches notes. 'Purely legal reviews provide little – and at times even skewed – knowledge about the work of these systems in practice. For instance, changing laws without a deep knowledge about the political environment in which the laws are developed, the process through which laws will be drafted and approved, and the administrative structures that are going to implement them risks to cause more problems than solutions.'
Land problems in East Timor, as in countries in similar circumstances, are extremely complex and one should be doubtful of easy fixes and 'one-size-feats-all' approaches. Only through fruitful interactions between researchers, practitioners, state officials, politicians and most important the people on the ground can these problems be better understood and progressively addressed.
Supervisor Prof. A.W. Bedner about Bernardo Almeida's research:
'The Van Vollenhoven Institute is regularly contacted by people from the professional field who are interested in writing a PhD on the basis of their experience in management, the judicial system or involvement in development projects. Often it turns out that writing is more difficult than they had imagined, but every now and then the final outcome is quite outstanding. This is certainly true of Bernardo's doctoral thesis. The five years when he worked as a legal adviser in land matters at the Ministry of Justice of East Timor has provided him with unique insights into how a post-conflict country tried to establish a new system of land rights. His command of the languages Tetum, Portuguese and English enabled him to communicate with all parties, from local farmers to UN officials. In addition, he spent time studying the theoretical literature on land use and the history of Timor.
This has provided many new insights, most of which do not give grounds for optimism. For example, aid projects by the international community are mainly aimed at the technical side of land registration, but overlook the complicated issues related to ownership ratios. Reducing political issues to the use of correct measurement techniques has dramatic consequences for the land use of poor farmers and urban dwellers who nearly always lose out. The same applies to legislative programmes, where advisers with a social science background underestimate the legal aspects of the issues and where lawyers take little notice of the empirical reality. This creates legislation that is nigh on impossible to implement. Bernardo's dissertation calls for a more interdisciplinary approach, requiring in-depth knowledge of the law and society by officials and advisers involved in drafting legislation; but this is just one of the aspects of this in-depth study.'
Text: Floris van den Driesche