08 October 2011

East Timor Law and Justice Bulletin: Justice Ministry's evictions of residents is not b...

East Timor Law and Justice Bulletin: Justice Ministry's evictions of residents is not b...: East Timor Legal News 08 October 2011 Source: Suara Timor Lorosae October 4, 2011 language source: Tetun - MP Fernanda Lay from the National...

Land dispute in Suai leads to violence and court proceedings

On 05 August 2011 the Suai District Court tried Case No. 23/PEN/2011/TDS involving a land dispute.

This trial was presided over by judge Jose Maria de Araujo (Presiding Judge at the Suai District Court), while the Public Prosecution Unit was represented by Zélia Trindade and the defendant was represented by Public Defender João Henrique de Carvalho.

The defendant GFG was charged with committing the crime of light maltreatment against the victim JDP. The incident occurred because the defendant ordered the National Directorate of Land and Property to measure the victim’s land, and at that time the victim was not at home. The victim’s wife phoned the victim to inform him that GFG had come to measure their land with a representative from the National Directorate of Land and Property, so the victim immediately came to that location and when JDP arrived at the scene the defendant leaped towards the victim and pushed the victim JDP in the chest and used his hand to strike the victim twice on the cheek.

The public prosecutor charged the defendant under Article 145 of the Penal Code on light maltreatment. The court explained to the two parties that Article 106.3 of the Penal Code stipulates that this case is a semi-public crime of which the prosecution can only be initiated after the right to file complaint has been exercised, and the court adjourned the hearing for 20 minutes to allow the parties to engage in conciliation.

When the hearing continued the victim JDP told the court that he had forgiven the defendant and requested for the defendant not to repeat such acts against others in the future.

After hearing the statement of the victim, pursuant to Article 71 of the Criminal Procedure Code and Article 107 of the Penal Code (on the bearers of the right to file complaint), the court validated this amicable settlement.

03 October 2011

22 September 2011

East Timor land law fuels fears of evictions, conflict

AlertNet Written by: 21 Oct 2010 Thin Lei Win DILI (AlertNet) - Rights groups in East Timor warn that anger over the threatened eviction of some 500 people from a downtown Dili neighbourhood could spill over into conflict amid fears the government is preparing to take back more land.

Activists and researchers say further evictions could happen if draft legislation on land ownership going through parliament is passed as expected.

Fifty-three families in Aitarak Laran were served with an eviction notice in Portuguese - a language most do not read - a little over a month ago through their local chief, according to Rede ba Rai (the Timor-Leste Land Network), a coalition of 20 non-governmental organisations that work on land issues.

So far the government has provided no alternative housing, although it says it is willing to offer a small amount of compensation.

"Aitarak Laran is one example of how the government is disregarding basic human rights to land and housing," said Shona Hawkes from local NGO La'o Hamutuk.

The community has lived in houses used by former Indonesian government officials since 1999, after East Timor voted overwhelmingly for independence in a referendum that led to violence and widespread displacement.

Rights groups say the government now wants the land to build a national library and museum funded by an Italian oil company, and has shown scant regard for how residents will cope.

But Minister of Justice Lucia Lobato told AlertNet the community are unwilling to enter into dialogue with the government, and did not show up to two meetings she attended, sending a local NGO to represent them instead.

Moreover, she said they are demanding compensation for each family member. "We will not negotiate about the price, because they are occupying government land and houses illegally, so we give a little money based on the government's ability."

The residents may be moved by force, she added, if they do not comply with the order to leave.

"The risk with eviction cases like the one we're seeing right now in Aitarak Laran is growing frustration over the lack of clarity regarding rights and protections afforded to those living illegally on state land," Cillian Nolan, a Dili-based analyst for International Crisis Group (ICG), told AlertNet.

Without an adequate offer of compensation or alternative housing, "there's a risk of conflict over the issue as frustration grows," he said.

In a September report, ICG said the draft land legislation will provide the first legal proof of ownership, provide protection in a growing property market, and is an important first step towards better management of disagreements over land. But it will also raise the stakes in ownership disputes and in turn the risk of conflict.

CONTROVERSY OVER STATE OWNERSHIP

A history of displacement since the Portuguese colonial era, which began in the sixteenth century, has left the tiny state of East Timor without a proper legal basis to decide ownership of land.

Most recently, in 2006, factional violence uprooted 150,000 people, mainly in Dili, many of whom have been unable to return to their homes.

More than half the population was made homeless in the aftermath of the 1999 referendum when pro-Jakarta militias destroyed 70 percent of the country's infrastructure, including some 68,000 houses, as well as land records.

Many, like those in Aitarak Laran, ended up occupying housing abandoned by the Indonesian government, even though living conditions have been far from ideal.

"(The Aitarak Laran community) is living in housing that is well below any definition of adequate, on land that is prone to flooding," said Rede ba Rai spokesperson Meabh Cryan.

The site, directly opposite the presidential palace, is considered government land under a 2003 law which says that all state land during the Portuguese and Indonesian eras, as well as land abandoned by foreigners or those fleeing to west Timor, should be transferred to the Timorese authorities.

Rights group say this definition is too wide in a country where very few people have land titles, and warn the new legislation could provoke a crisis.

Under the Transitional Land Law, which will replace the 2003 law, anyone who has occupied a piece of land after December 31, 1998, cannot gain title to it. Civil society groups have questioned the controversial cut-off date, as it means "squatters" who lost their homes in the 1999 post-referendum violence have no rights to the land on which they are living.

LACK OF CONSULTATION

There are also concerns over two other laws in the legislative package that have not undergone public consultation, especially the Expropriation Law which would allow the state to take land for any public or private purpose.

Rights groups accuse the legal company that drafted that law of conflict of interest as it represents a Portuguese property developer in East Timor.

And Rede ba Rai's Cryan said public consultation on the Transitional Land Law was little more than a token gesture as communities did not receive copies of the complex law until the day of the discussions.

Rules for day-to-day land decisions were sent to parliament in December 2008 as part of a new civil code, followed by the rest of the legislation in March 2009. None of these are available in the local dialect Tetum.

"Our concern is that many people, particularly in the rural areas, are unaware of the content of the draft land law, or of its implications for their land security and livelihoods," said Paul Joicey, Oxfam's country director for East Timor.

Other criticisms of the legislation include its neglect of the customary land systems based on social hierarchy and clans that have so far defined how most Timorese live, and prioritisation of people with formal land certificates who tend to be the rich.

The government has given some ground, agreeing to consider the Expropriation Law separately because of its far-reaching implications and the lack of public consultation.

But any changes will come too late to help the families in Aitarak Laran who now face losing their livelihoods as vegetable traders, small businesses and civil servants, as well as facilities including their church, schools and health clinic.

"The old regimes which threatened the people have already passed," community members said in a statement. "The people who have suffered do not deserve to be further threatened during independence."

(Additional reporting by Tito Belo)

20 September 2011

18 September 2011

National Parliament to approve Land and Property Law in October

Source: The Dili Weekly Friday, 16 September 2011 19:24 Written by Ezequiel Freitas - MP Manuel Tilman said the Land and Property Law will be approved in the month of October and will help ease land dispute tensions.

The Land and Property Law that is currently being debated within the National Parliament will according to Member of Parliament Manuel Tilman be approved by October but he warned that if it is not, it will then only be finalized in the New Year.

“Because on 15 October the new budget will come in and everything will grind to a halt,” said MP Tilman last week at the National Parliament in Dili.

The MP added the law has already been passed in its generality and currently is being debated in its detail and the law will not be able to be approved prior to the Civil Code Law being approved.

In the meantime, MP Mario Viegas Carascalao said the Land and Property Law has been with Commission A of the National Parliament since last year but so far it has not yet fully been debated.

“We only had one meeting in Commission A to discuss the Land and Property Law. Not all the members of Commission A were present, only four of us turned up but we decided this law should be made a priority,” said the MP.

He believes Commission A is not competent enough to consider this particular draft law. “If Commission A is not able to consider it we can create an eventual commission and present it to the plenary because our plan is that by the end of October this law must be finalized because people are killing each other over land disputes.”

At the same time MP Estanislao da Silva said the Land and Property Law was already with Commission A and it was not yet known when it will send it to the plenary to be further debated.

“The community is fighting over land and that is why recently the government approved a decree law so that land not under dispute can be registered and with clear ownership. I urge the community to not kill one another over land and to wait until this law is approved so that disputes can be settled.”

ETLJB: The last available version of the draft land law that ETJLB has published is Law for a Special Regime for the Determination of Ownership of Immovable Property Version 3

The public consultation on the draft land law was deficient and non-participatory. See for example: Timor-Leste Draft Flawed, deficient and insufficient public consultations on East Timor's draft land law 

Rede ba Rai Press Release: Only brief thoughts from Baucau on the new Land Law allowed

31 August 2011

Women and Land in Timor-Leste - Issues in Gender and Development

Abstract: Gender and development being fundamental issues, it is important to emphasise the role of women in rural development, gender–specific approaches to development and women’s status in the national and international legal systems. The main aim of this article is to analyse the position of women in Timor-Leste by examining social aspects, with an emphasis on gender roles, the family and the community, access to natural resources and women’s status within the legal system and traditional legal structures, with special attention to land and women’s land rights. This study is based on documentary sources and studies made by the authors about Timor-Leste. The contribution of the women of Timor-Leste to development is heavily constrained by the degree of gender inequality present in traditional/customary law and social practices, and in-equality of access to natural resources, especially land. In overall terms, we would argue that the Human Rights Based Approach (HRBA) is one of the best approaches to guarantee gender equality, and that this approach should be considered in the formulation of rural policies and the creation and implementation of rural development programmes and projects in Timor-Leste. 


Extract on land conflicts from The Asia Times 30 August 2011

Resentment over slow development amid apparent graft could be exacerbated by a looming crisis over land rights and ownership. While Fretilin has yet to state its position on the country’s proposed land law, the issue could be an election game-breaker should anyone run with a populist program.

After 24 years of brutal Indonesian occupation followed by post-independence upheavals, Portuguese-era and Indonesian-era land claims about who is entitled to stay where and why means there is more heat than light in Timor-Leste’s land debate.

Some claims of ownership date to Indonesian times – an apparent contradiction given that Jakarta’s occupation was deemed illegal under international law, while the Timor-Leste state is likely to claim much of the land that is not covered by the few Portuguese or Indonesian-era papers.

The code could – if applied to the letter – entitle the state to evict tens of thousands of Timorese in Dili, and more elsewhere. Many Timorese settled on available land after 1999′s independence referendum, which sparked chaos as Indonesia’s army and affiliated Timorese militias wreaked havoc as they withdrew.

While it is unclear if there is any direct link with a nearby Indonesian commercial project slated for the area, the details of which have not been made public, gang-related violence in Zumalai in the south of the country saw 100 houses torched.

According to one Timorese media personality who asked to remain anonymous, the PNTL – Timor-Leste’s national police force – asked for assistance from the army to deal with the fallout from the attacks. While this might signal better relations after rivalries between the police and army played a part in the 2006 near-cataclysm, it raises questions about the strength and reliability of the police.

While the UN maintains a contingent of 1,280 foreign police in Timor-Leste, full control of policing was handed to the Timorese in a step-by-step process starting in 2009. In Zumalai, the arson is said to have been triggered by the stabbing of a gang member who was also a police officer. Many of the country’s police are thought to be members of Timor-Leste’s martial arts groups and street gangs, some of which also have links to political figures.

The land law has yet to be settled in parliament, but nonetheless the Timorese authorities are already pushing ahead with clearances to make way for projects, not only in rural areas but in the heart of the capital.

At a derelict backstreet building once occupied by some of the “petitioners” – the army cadres whose dismissal in 2006 helped trigger the street fighting that year – Asia Times Online spoke with Eufrajio Fernandes, part of a group of 175 families who were driven from their homes in Bairo Pite in Dili on January 20, to make way for a police housing project.

“They came at 4am, they did not give us any warning,” he recalls. “They just came in the dark of night and kicked us out.” The group was given $2,000 per household as compensation, money which came from the police rather than the Ministry for Land and Property.

“We cannot do much with this amount,” he says, adding that he purchased land for $1,700 on the rock-strewn slopes of the mountains surrounding Dili. Whether he will be entitled to keep the plot is open to question, given the country’s legal limbo over land, but he has already spent the remaining $300 on living costs since January.

His friend Alberto Soares Gama puts the group’s anger in context. “In Zumalai there was burning and fighting, so the government acts to intervene. Here, we have been peaceful, but they ignore us,” he says, referring to letters addressed to various government ministries. “They just fobbed us off with excuses.”

Extracted from Potent mix for Timor-Leste – Asia Times August 30th, 2011 http://www.atimes.com/atimes/Southeast_Asia/MH31Ae01.html  accessed 31/08/2011

09 July 2011

Hotel Dili case casts doubt on Timor law

Hotel Dili, East Timor
The Jakarta Post, 4 July 2001 By Damien Kingsbury VICTORIA, Australia (JP): Possession, it has been said, is nine-tenths of the law, although this dictum has rarely applied in East Timor under its successive administrations. More common has been incompetence, chicanery and corruption, which has applied in the case of the Favaro
family and the Hotel Dili.

The Dili District Court has just ruled that Gino and Ernesto Favaro do not legally own the Hotel Dili, which their family owned and ran from 1971 until December 1975, and they have owned and run again since 1998. Now District Judge Rui Dos Santos has ruled in favor of ownership by Helene Baros, who occupied the hotel for a few weeks in 1999. This decision comes after a string of competing claims to ownership of property that have been complicated by appeals to Portuguese and Indonesian law.

Under the United Nations Transitional Administration in East Timor (UNTAET), property legally owned under Indonesian law is still legally owned, except in cases where it has been abandoned and subsequent claims
have been made.

Frank Favaro had bought the Hotel Dili in 1971, and relocated his family to what was then Portuguese Timor. The family abandoned the hotel in the face of Indonesia's military invasion of December1975. As with so much
other property, the hotel was confiscated by the Indonesian authorities and sold to supporters of the new regime.

Pinto Soares, sister of a pro-Indonesian East Timorese governor, bought the Hotel Dili. However, with no visitors, it quickly went broke. When I visited in 1995, the hotel was closed and shuttered, with rubbish blowing in its courtyard. Given the bleak environment of oppression and suspicion in East Timor at that time, this was not a surprising outcome.

When Frank Favaro's sons, Gino and Ernesto, attempted to claim legal title of the hotel soon after, there was little real opposition although, given the change of legal statute, a sale was proposed instead of simple return. The purchase price reflected the lack of business and the Favaro's continuing claim to ownership. The purchase was legal under Indonesian law, as had been their family's original ownership under Portuguese law. Gino and Ernesto Favaro returned to Dili in 1998 and re-opened for business.

The Hotel Dili did a roaring trade with UN workers, journalists and aid workers during the lead-up to the independence ballot of Aug. 30 1999. But Gino and Ernesto Favaro were marked for retribution by Eurico
Guterres and the violent Aitarak militia, who were headquartered immediately behind the hotel. It was obvious that after the announcement of the vote that all hell would break loose and, like many others, the staunchly pro-independence Favaro brothers were in genuine fear of their lives.

On Sept. 4, 1999 the shooting and destruction started in earnest. The Favaro's scrambled from their hotel to a refugee ship, fleeing first to Kupang in West Timor and then to Jakarta and Darwin. Anyone who stayed
in Dili for the following two black weeks in September 1999, or who was quick to return, as was Helene Baros, could have claimed virtually the whole town, after it was abandoned in the face of terror, violence and
forced expulsion.

Yet this period has only been regarded transitional for the purposes of law. In this context, the Favaro brothers returned to Dili after the arrival of the international troops (Interfet) to reclaim and rebuild their hotel, which again became a thriving business.

Now, without being allowed the opportunity of appearing in defense, the Favaro's ownership of the hotel has been stripped from them by the local court, in favor of Helene Baros.

It is not clear on what legal grounds the Dili District Court overturned UNTAET's own ruling on legal possession, although it could not have been under Indonesian or Portuguese law. It is true that some East Timorese
don't like the Favaro's somewhat brash style and the brothers arecertainly not apologetic about being enthusiastic small capitalists. But these are not legal matters.

The ruling therefore raises serious doubts about the legal administration in East Timor, which is already under question over competence and external influence in judicial outcomes. Such legally doubtful decisions will certainly deter outside investment in East Timor, and will seriously hamper local development.

There are, of course, continuing practical difficulties in creating a new state, and in bringing up to speed a largely untrained local administration. But the Hotel Dili decision shows that East Timor is still a long way from attaining the goals of proper administration and judicial impartiality its people aspired to when they voted for independence almost two years ago.

Dr Damien Kingsbury is senior lecturer in international development at Deakin University, who edited Guns and Ballot Boxes: East Timor's Vote for Independence, (MAI 2000)

Land Dispute, Case No. 18/Civil/2009/TDD

On 10 May 2011 the Dili District Court conducted a hearing in Civil Case No. 18/Civil/2009/TDD relating to a land dispute between the plaintiff AMS and the respondent AS.

The land in dispute is located in Bebora - Dili and is 300 meters squared. The plaintiff or his representative claimed that the aforementioned piece of land belongs to them, and the land was obtained through an auction which was carried out by the Military Court of Surabaya/Indonesia on behalf of Captain AZ in 1996.

Prior to the auction, the land was seized by the Indonesian government because evidence indicated that AZ was involved in a criminal case.

The respondent claimed to be the owner of the land which was obtained from CHH (a Timorese person of Chinese descent) in 1981. In 1982 the front section of the land was leased to Pertamina for 25 years.

The witness HH testified that the auction was a scam because he was not informed about the auction by any party including the court during the Indonesian occupation. The land in dispute was registered in the name of the witness but because of the political conflict in 1999, he gave power of attorney to his adopted son AS.

The trial was presided over by a panel of judges comprising Rosa Brandão, SH, João Ribeiro, SH and Alvaro Maria Freitas, SH. The plaintiff was represented by Arlindo Sanches, SH, and the respondent was represented by Pedro Apariçio, SH. Both of the legal representatives were private lawyers.

The court adjourned the trial until 1 June 2011 at 2.30pm to hear testimony from other witnesses.