Can distributing Effective Registration Certificates resolve the land problem?
9 January 2012
In March 2010, the Council of Ministers approved three laws about land: the Land Law, the Real Estate Financing Fund and the Expropriation Law. These draft laws are currently before Parliament, awaiting discussion. But in November 2011, the process of measuring land under the Ita Nia Rai Project (INR -- "Our Land") had already measured 50,584 parcels and declared 54,509 in towns in all 13 districts. Of these 50,584 parcels, 10.3% were disputed and 89.7% had no dispute.
On 10 December 2011, Minister of Justice Lucia Lobato made a public declaration that 8% were disputed, and therefore the Ministry of Justice (MJ) is distributing Effective Registration Certificates (which are not valid as Land Ownership Certificates), although in November INR's data showed that 10.3% are disputed.
The Land Law has not been approved by Parliament, but in March 2011 the Ministry of Justice began to develop Decree-Law No. 27/2011, the Regime for Regularization of Ownership of Immovable Property in Undisputed Cases (also Tetum or Portuguese) which the President of the Republic promulgated in July 2011. This Decree-Law is to give land ownership certificates to Timorese citizens where there is no land dispute based on the data registered by INR. These certificates will apply only to individual and small-group landowners, and not to customary land, because it has not yet been registered.
However, re-publication of the maps was required before distributing certificates, so that everyone could participate in giving their information to accurately determine who should get a certificate. The INR project only republished the first Liquica map from 22 August to 20 September. Manatuto's first republication was from 5 September to 4 October. Ainaro was republished from 26 September to 25 October, at the same time as the second republication for the remaining data collection areas in Liquica and Manatuto.
On 10 December 2011 in Liquica, the Minister for Justice distributed Effective Registration Certificates to 15 community representatives: 5 from Liquica, 5 from Manatuto, and 5 from Ainaro. These community representatives then have to register their certificates at the National Directorate of Land and Property (DNTPSC) District offices. (Example of a certificate in Tetum.)
Although Decree-Law 27/2011 is to regulate land ownership, on 10 December the Minister for Justice immediately distributed Effective Registration Certificates, and when people want to guarantee their right or to transfer their right to another person, they need to register with the district DNTPSC office. If they don't register they will lose their right.
On 2-3 December 2011, La'o Hamutuk spoke with the Chefe do Suco and community members in Maumeta Suco (Liquica). They were worried about the Effective Registration Certificates which the MJ was about to distribute, which means that the local residents are not yet clear about their rights. They told La'o Hamutuk "If the Government wants to take our land in the future, they can just take it because we don't have certificates to show that we are the true owners of the land." Community members also questioned why the Ministry of Justice and Ita Nia Rai project have to spend a lot of money, only to give Effective Registration Certificates which contradict the Minister's 17 August statement in Liquica to distribute land ownership certificates, not registration certificates. The community proposed that it would be better to give Land Ownership Certificates to guarantee their rights so that they can do what they wish.
La’o Hamutuk's concerns about distributing certificates
1. The Decree-Law does not follow the Law's structure
Under Article 95 of Timor-Leste's Constitution, only Parliament has the power to make laws about rights, freedoms and guarantees. Laws which impact on people's fundamental rights must go through the Parliamentary processes, and cannot be done by Decree-Law. Under the legislative hierarchy, the Constitution states that a Parliamentary framework law should guide the land sector, and Decree-Laws or Ministerial Decrees can be made later to complement this framework law. Decree-Law 27/2011 created by the Minister for Justice doesn't follow the legal hierarchy, and many people don't yet know about this law because there was no community consultation. This Decree-Law is linked to the draft Land Law, using concepts like direitu perfeitu, hak guna usaha, hak guna bangunan and aforamentu. Since all Decree-Laws about land must be under the framework land law approved by Parliament, how can the Ministry of Justice make and implement a Decree-Law about land, when the framework land law itself hasn't been approved by Parliament? What is the Justice Ministry's interest in distributing certificates quickly, without resolving 10.3% disputed cases, which would make everyone clear about their land rights? La'o Hamutuk thinks that Parliment should ask the Ministry to stop implementing this Decree-Law, because it doesn't follow a valid process.
2. Data from the Ita Nia Rai Project is not accurate enough to give certificates
According to information La'o Hamutuk received in Dili, Liquica, Oecusse and Manatuto, some community members and Government officials are concerned that the data taken from Ita Nia Ria is not good enough to distribute certificates. Actually, the Ministry of Justice first evaluated Ita Nia Rai's work in the districts, to see if the registration process is truly credible or not, before deciding on future actions, because in some cases Ita Nia Rai's work was not good. In Comoro, Aldeia Kampung Baru, Comoro (Dili) the Ita Nia Rai team measuring Sr. Jose Pereira's land placed boundary markers without his neighbors' presence; in Aldeia Makelap (Oecussi), farmers state that the INR staff came to five sucos in town, but registration is only happening in one suco, and isn't complete, creating confusion among residents who haven't yet registered with INR. In Suco Maumeta (Liquica), INR staff measured people's land in the middle of the the river or the sea. However, when the map was republished from 22 August to 20 September, there was no red (disputed) area.
In Oecusse town, the State took 1-7 meters of community land to make a sewer after Ita Nia Rai had finished registration. This automatically impacts on data INR had already entered into their system. In Manatutu and Liquica, when Ita Nia Rai surveyed the land, they marked boundaries with a single stone or tree. What happens if someone moves the stone or tree? We seriously question the ethics of distributing certificates to the community based on a project which has received complaints from many quarters. A valid land survey process for certificates should be done by Timor-Leste's National Directorate of Land and Property (DNTP), based on a Land Framework Law, not by a U.S.-funded project which is interested in privatizing land in Timor-Leste, rather than in Timor-Leste's people's welfare.
3. Experience of other countries
In Cambodia, the government wrote a law almost the same, to give undisputed land or housing titles. The government didn't resolve land disputes, and eventually disputed land was abandoned, because local residents didn't have sufficient capability to bring disputed cases to court. The state used this tactic to take a lot of land from community people, especially the most vulnerable.
Timor-Leste, as a nation under democratic rule of law, needs community participation when the state develops policies and laws, especially laws which strongly relate to their lives. This is the only way to really guarantee people's rights under rule of law.
The Timor-Leste Institute for Development Monitoring and Analysis (La’o Hamutuk)