A Sociolegal Analysis of Formal Land Tenure Systems

Learning from the Political, Legal and Institutional Struggles of Timor-Leste

Bernardo Ribeiro de Almeida

• Publisher: Routledge
• Year: 2022
• Print ISBN: 9781032051703
• eBook ISBN: 9781000563405
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

This sociolegal study focuses on the political, legal and institutional problems and dilemmas of regulating land tenure. By studying the development of the Timorese formal land tenure system, this book engages in the larger debate about the role of state systems in addressing and aggravating social problems such as insecurity, poverty, inequality, destruction of nature, and cultural and social estrangement.

Land tenure issues in Timor-Leste are complex and deeply shaped by the nation's history. Taking an insider's perspective based on the author's experience in Timorese state administration, and through the investigation of five analytical themes –political environment, lawmaking, legal framework, institutional framework, and social relationships and practices– this book studies the development of the Timorese formal land tenure system from independence in 2002 to 2018. It shows how political, legal, and administrative decisions on land administration are made, what and who influences them, which problems and dilemmas emerge, and how the formal system works in practice. The result is a portrait of a young nation grappling with the enormous task of creating a land tenure system that can address the needs of its citizens in the wake of centuries of socio-political tumult and huge fluctuations in resources. The book concludes by highlighting the importance of lawmaking and how abuses of power can be curbed by adequate administrative processes and laws. Finally, it argues that land administration is primarily a political matter. The political dimension of technical solutions must be considered if we aim to achieve fairer formal land tenure systems.

The pertinence of the topics covered, the multi-disciplinary perspective, and the research methodology followed make this book appealing to a variety of readers, including international organizations, practitioners, academics and students engaged in land administration, post-colonial and -conflict issues, lawmaking, rule of law, public administration and issues of access and exclusion.

Chapter 1 Introduction

DOI: 10.4324/9781003196396-1

Introduction

After lecturing on land rights for one semester in the law degree of the National University of Timor-Leste, I accepted the challenge of returning to the country for six months to work as the legal adviser for the land sector at the Timorese Ministry of Justice (MoJ).¹ The briefing about my tasks was short: we need a legal land adviser to support the ministry and National Directorate of Land, Property and Cadastral Services (DNTPSC)² in their daily activities, and to provide technical support to the finalisation and approval process of the new draft Land Law Package. I was told to buy a ticket and come as soon as I could.

1 My position at MoJ was co-financed by the Justice System Programme of the United Nations Development Programme (UNDP). 2 For simplicity I always refer to this institution as DNTPSC, but this institution has had other names since its creation (Chapter 7).

In January 2010 I landed in Timor-Leste, ready to start my new job. When introduced to DNTPSC’s national director for the very first time, he gave me a strong hug and said benvindo maun! (‘Welcome brother!’ in Tetum). He held my hand, with his fingers interlacing mine, and for the next five minutes talked about the various things he was working on, while I was thinking if leaving my law-firm job back in Portugal had been the best decision. This was the start of a five-year adventure, working as the land adviser for the MoJ of Timor-Leste, which profoundly marked my academic interests and my professional career in land-related issues.

Land tenure issues in Timor-Leste are complex and deeply shaped by the nation’s history. Post-colonialism, post-conflict, and the less-mentioned but equally important post-authoritarianism, combined with ambitions of development and prosperity, make land tenure one of the most socially, politically, and legally intricate problems of this young country. Taking my professional experience in the country as the departure point, this book—an adaptation of my PhD thesis—focuses on the processes, problems, and dilemmas of developing the Timorese formal land tenure system since the country’s formal independence in 2002 until the end of 2017.

Coming from the inside of the state administration, this book shows how political, legal, and administrative decisions on land administration are made, what and who influence them, which problems and dilemmas politicians and state officials face, and how the formal land tenure system works in practice. In other words, I try to lead the reader to see how the state works from the inside. To achieve this objective this book is based on an analytical framework described below, which is composed of five analytical themes: (1) the political environment at the national level; (2) the law-making process; (3) the legal framework (or the law on the books); (4) the institutional framework that implements state legislation; and (5) the social relationships and practices around land tenure. A case study at the end of the book illustrates how all these themes interact with each other: the politics that influence a troubled law-making process, the inapplicable legislation that resulted from that process, the high discretion of state officials, and the limited protection that the formal land tenure system can provide to those that come in the path of the state. The result is a portrait of a young nation grappling with the enormous task of creating a land tenure system that can address the needs of its citizens, in the wake of centuries of cultural and political tumult, huge fluctuations in wealth and resources, and seeking to find its place on the world stage as a new nation.

By studying the design, implementation, and impact of the formal land tenure system, this book enquires into the role of the state in addressing and causing land-related issues in Timor-Leste. The relationship of the Timorese with land, customary land arrangements, and the political economy of land are already well described in the existing literature.³ However, a perspective that can take into consideration the roles of the formal land tenure system and the problems and dilemmas to implement it, and explain what and who influence political, legal, and administrative decisions on land administration, is still missing. This book aims to fill this gap. Moreover, this book also gives a historical account of the development of the Timorese formal land tenure system.

3 Among others, Fitzpatrick, 2002; Urresta and Nixon, 2003, 2004, 2004a; Yoder, 2005; McWilliam and Traube, 2011; Nixon, 2012; Fitzpatrick et al., 2013; Bovensiepen, 2015.

By describing the case of Timor-Leste this book also intends to contribute to the larger debate about formal land tenure systems and their role in improving people’s living conditions in developing countries.⁴ First, by proposing and testing a framework of analysis that allows a clearer comprehension of the roles, influences, functioning, and limitations of formal land tenure systems. Simplified frameworks of analysis, based for instance on the dualistic idea of ‘law on the books and law in practice’ overlook key factors of a formal land tenure system, and therefore provide only partial overviews. As demonstrated in this book, only a broader analysis can allow us to understand the reasons for the successes and failures of a land tenure system.

4 The term ‘developing country’ is controversial, raising questions regarding what development really is and how it can be measured (Heady, 1979: 84; Dann, 2013: 202). The term is loosely used to refer to countries with low gross national product and which are receivers of development assistance from other countries and international organisations (Otto, 2007: 13). Other authors have been using other expressions such as ‘the Global South’, but these alternatives also raise their own issues. In absence of a better alternative, I use the expression ‘developing country’, but acknowledging its limitations.

Second, this book highlights the assumptions in which the development of formal land tenure systems are based, and the consequences of their practical implementation when these assumptions are not in place (Chapter 2). During colonial times, changes in land tenure were already seen as the solution to improve people’s lives. During the post-colonial era, and more recently after De Soto’s controversial book ‘The Mystery of Capital’, land tenure returned to the agendas of politicians, development agencies, and academics as one promising area for tackling development issues. However, the debate around land tenure systems has been marked by wrong assumptions, misconceptions, and hidden agendas. In modern states, the development and territorialisation of formal land tenure systems is done under the assumptions that the state represents the collective will of the people, and its actions will balance collective and individual interests and goals, ultimately providing tenure security and well-being to the people. It is also under these assumptions that formal land tenure systems are promoted in developing countries, with the objective of addressing past injustices, and promoting peace and prosperity. This book provides the literature with another example of how this balance between collective and individual interests is difficult, and how in practice the formal land tenure system can easily be captured by elites, and become a tool of state oppression, inequality, and dispossession.

Finally, this book highlights that land governance is not easy, especially in developing countries. Even when politicians and state officials are genuinely committed to using the formal land tenure system to improve people’s living conditions, the development and territorialisation of a formal land tenure system is still difficult. Land tenure, especially in contexts of post-colonialism and post-conflict, is a wicked problem, with multiple interdependencies, influenced by various factors, where the resolution of one problem reveals or creates new ones. While literature is often very critical of land governance choices taken and the results obtained, it frequently fails to acknowledge the difficult problems and dilemmas that lead to those choices and results (Chapter 2). By taking an insider’s position this book shows the state from the inside, highlights these problems and dilemmas, and puts the reader in the shoes of politicians and state officials. It shows how formal land tenure systems are much more the result of tensions between different stakeholders, interests, and worldviews than the product of unified and well-thought-through processes. A better knowledge of these problems and dilemmas by researchers and practitioners is paramount for better academic research and interventions on land administration.

Framework of analysis—Land Tenure System Analysis Model

One of the struggles when writing this book was to find an analytical framework that could give a deep understanding of the Timorese formal land tenure system. I wanted to avoid a simple dualist view like the frequently used ‘law on the books and law in practice’, which does not explain how the law came to be the way it is, and why the law on the books differs from the law in practice. Instead, I wanted a framework that showed how this land tenure system has been formed, the influences that shape it, its relationship with other land tenure systems, and how it impacts the everyday life of the Timorese.

In my search for an adequate analytical framework I came across the framework developed by Benda-Beckmann et al. for the study of property (Benda-Beckmann et al., 2006: 14).⁵ These authors raise issues with evolutionary frameworks that divide property into what they call ‘the big four’ categories: private, state, communal, and open access property. Benda-Beckmann et al. consider that these categories do not provide useful and consistent criteria for property analysis, and that the study of property should focus instead on different and interrelated ‘layers of social organization’ (2006: 15), or sub-systems as called by Barry (2015: 28). In other words, they show the importance of looking at the arenas where land gets a social value. These layers are (1) ideology, (2) the legal and institutional systems, and (3) the social relationships and social practices. Benda-Beckmann et al. point out that property works very differently in each of these layers of social organisation, and property can only be understood if one looks at each of these layers and the intersections between them. The authors argue that their framework allows for a vision beyond the legal categories of property, eliminates the problems that other approaches have in not distinguishing between categorical and concretised property relationships, and allows for an understanding of property practices in context.

5 In Chapter 2 I raise some issues with the expression ‘property’, but I use it here for now. The authors argue that property ‘concerns the organization and legitimation of right and obligations with respect to good that are regarded as valuable’ (2006: 2). In this book I call the rights and obligations referred by these authors land rights or land tenure, and the mechanisms to organise and legitimise them land tenure systems.

Barry provides a critique of this framework, arguing that while it provides a good tool for explaining and predicting problems, it does not offer any tools for action against the problems the authors describe (2015: 30). Moreover, the complexity of this framework’s analysis is not so attractive to international organisations and politicians, who need more simple and digestible messages (ibid.). While Barry’s critique is factually correct, it does not diminish the relevance of Benda-Beckmann et al.’s framework. First, as this book shows, the initial step to address complex social problems, such as those raised by land tenure, is to have deep knowledge about them and their possible solutions (Seidman and Seidman, 2006; 2008), and a broad framework that provides more knowledge is therefore relevant. Second, the fact that the complexity of a framework of analysis raises low interest from international organisations and politicians says more about the problems of these actors than about the framework. It is correct that governments and international organisations often work in less than ideal scenarios, and limitations such as time and resources can make in-depth research very difficult or even impossible (Chapter 5). But this should not distract them from trying as much as possible to understand the realities in which they are working.

However, while the multi-layered framework of Benda-Beckmann et al. provided a good point of departure in my search for an analytical framework, it could not be easily operationalised for the reasons described below. Inspired by this framework, and prompted by its gaps, I have modified it and developed my own framework: the Land Tenure System Analysis Model.

The modifications were the following. First, I adjusted the scope and name of the first layer of social organisation from ideology to political environment. The authors do not define ideology, leaving unclear what, in their view, should be analysed. A strict definition of ideology as political theories about societal organisation, the role of the state, and how resources should be shared, such as capitalism, communism, and neoliberalism, provides a very limited scope of analysis (Schwarzmantel, 2008: 36). In Timor-Leste, as in many other countries, political theory plays a very limited role in political debates and decisions. Therefore, focusing the analysis on political theories would provide very limited results. Ideology can also be defined in broader terms, including political theories, less theoretically structured visions and aspirations for the country, and the values that inform those visions and aspirations. But even this broader definition of ideology is limited. Every country has several contextual factors that, in parallel with ideology, influence political debates and decisions around land tenure systems (e.g., historical context, economic situation, rule of law). Focusing only on ideology, even if broadly defined, would overlook these contextual factors and provide a partial view of this layer of analysis. Therefore, Chapter 4 looks into the ‘political environment’, which encompasses political theories, aspirations, visions and values of the elite but also the contextual factors that guide the political debates around land tenure.

The second modification clarifies the object of the second layer of social ordering—the ‘legal-institutional layer’—where the authors look into the categories of rights formed by laws and institutions. However, also in this case the definition of these concepts makes it difficult to set their boundaries. To address this issue, in Chapter 6 I focus on the ‘legal framework’, where I describe the Timorese legislation relevant for land tenure. In this description I pay attention to the main legal structures and concepts, but also to legislative gaps and contradictions. When possible I also provide the interpretation that courts and state institutions have made of specific legislation. While this conceptualisation of the second layer can, at a first glance, lose some of the analysis proposed by Benda-Beckmann et al., its object becomes clearer, and the possible losses are compensated by the other changes proposed below. One final detail regarding the layers was to add, as part of the third one, the ideas that people have regarding land tenure.

The third modification was to clearly identify key intersections between the different layers. While Benda-Beckmann et al. mention the importance of looking at these intersections, they are less clear in pinpointing them. The first intersection that I identified and included in my model was law-making, as it brings together the political environment and the legal framework; it is through law-making that poli...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Dedication
• Contents
• List of maps
• List of figure
• List of tables
• List of abbreviations
• Between abstract principles of justice and everyday sticky wickets—a foreword
• Acknowledgments
• 1 Introduction
• 2 Formal land tenure systems
• 3 Land tenure systems throughout Timor-Leste’s history
• 4 The political environment
• 5 The making of land laws
• 6 Land tenure legislation in Timor-Leste
• 7 Land institutions
• 8 Social relationships, ideas, and practices around land tenure and the formal land tenure system
• 9 The layers in movement—the formal land tenure system and the Suai Supply Base
• 10 Conclusions
• References
• Index