Has Timor-Leste left behind its violent past?
Has Timor-Leste left behind its violent past?
Briefing 110 / Asia

控制东帝汶土地冲突

概述

在国家独立八年后,东帝汶仍没有为认定土地所有权建立相应的法律法规。而法律依据的欠缺使得维护财产所有权面临更复杂的挑战,并增加了发生冲突的可能性。由于东帝汶历史上曾经存在两个殖民当局,所以导致了对非法占用土地的重复索赔的政治遗留问题。而随1999年全民公决而来的是全国超过半数的人口流离失所,这使得非法占用土地的现象普遍存在,并让筛查重复索赔的工作难上加难。土地所有权问题所造成的法律和社会不确定性扩大了东帝汶2006年政治危机的影响,导致了在首都及更大范围地区的更多人流离失所。因此,为了减少冲突,降低不确定性加剧所带来的风险,使解决已有和潜在纠纷有章可循,通过建立新的法律、法规和政策来消除法律和社会不确定性必不可少。

长久以来,强制搬迁、军事占用、致命的内部动乱所造成的流离失所是产生土地纠纷的根源。尽管这些问题在历史上长期存在,但由土地所有权引发的纠纷很少上升至暴力冲突。许多纠纷通过非正式的调解就能得到解决或至少得到控制,表明了对土地所有权和地方部族的习惯谅解的力量。但仍有些纠纷超越了村长、当地长老或宗教领袖所能够解决的能力范围。还有一些纠纷则因其复杂(和缺乏事实证明)的历史根源而搁置,有待承诺已久的立法给予澄清。但风险在于,由此产生的期待单靠立法将无法满足。因为许多纠纷是政治问题而不只是技术层面的问题,不是运用法律就可以解决的。鉴于东帝汶法律制度存在缺陷,需要在新建立法的同时更加支持已有调解方式的存在,由此为不想对簿公堂的纠纷双方提供一个现实的解决方式。

有关土地所有权的立法草案将会提交议会审议,这是更好地管理土地纠纷的第一步,将为执行新民法,监管所有类型的财产所有权铺平道路。它将首次为所有权提供法律证明并为不断成长的房地产市场提供法律保护,但它也将提升权属纠纷的利害关系,加剧冲突发生的风险。虽然在该国的许多城市收集的土地申诉显示纠纷的比例低于10%,但它也使一些隐藏的问题浮出水面,比如家庭内部的继承权问题和相邻部族之间的土地所造成的紧张局势。

政府目前还未能向难民和因受到驱逐而无家可归的人群重新提供住所,这本是宪法规定中有关房屋的一项基本权利。如果新的土地管理制度将土地强占合法化,并且不能为那些因非法占领或政府征用而被驱逐的居民提供基本保护,后果将不堪设想。帝力和其他一些城市的土地已经溢价。立法草案中为按照习惯持有的土地所有权——绝大部分的国有土地——所提供的保护非常薄弱,特别是当国家享有广泛的权利的时候。在许多部族,新立法所定义的个人土地所有权并不太可能是适当的或是需要的。进行国家发展建设是政府的特权,但如果不能对于向需要被安置的人群提供明确和可执行的保护达成共识,将有可能只会造成对国家权威的不满和反对,削弱其旨在加强的权利。而东帝汶政府计划于2030年完成的新的宏伟发展计划使解决这样的问题变得刻不容缓。

在东帝汶,加强产权需要的不仅仅是法律。它还需要对如何管理部族土地所有权进行进一步的磋商和协议,特别是在国家旨在鼓励新投资的情况下。为解决这一问题,中期目标应设立为制定一项全面的土地使用政策,与部族优先政策结合起来。此前的以捐助者为本的尝试没有达到目标。还需要政府高层的参与和对调解的改善,以解决许多围绕更棘手的土地纠纷产生的政治挑战。虽然建立有关产权的法律还只是第一步,但外界对于该草案迄今为止仍知之甚少。然而,有关法律的公开信息越广泛,所引发的辩论就会越广泛。法律的含义应该是通过该法律的先决条件。这需要与可能导致更长时间的延误的风险相互平衡。

由于计划加快发展速度,并确定了捐助者的支持领域,因此政府应首先实施以下步骤:

  • 在议会审议通过土地法及相关立法之前,对其影响进行进一步的咨询和说明;
  • 立即清晰阐明有关向被认定为非法占用而需要迁出的人群提供基本保护和重新安置的计划;
  • 在政府如何保护部族权利和在习惯使用权下获得土地所有权的问题上与当地部族共同努力;
  • 加强对伴随正式土地所有权的非正式调解程序的支持;
  • 对于建立将部族需要和政府目标结合起来的全面的土地和房屋政策开始进行讨论。

帝力/布鲁塞尔, 2010年9月9日 

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:

  • further consultation and explanation of the implications of the land law and associated legislation before passage by parliament;
  • immediate clarification on basic protections and resettlement plans for those who will have to move after being deemed illegal occupants;
  • engagement with local communities on how the government can protect the rights of communities and access to land held under customary tenure;
  • strengthened support to informal mediation processes alongside the formal land titling; and
  • beginning discussion on a comprehensive land and housing policy that would incorporate community needs and government objectives.

Dili/Brussels, 9 September 2010

Commentary / Asia

Has Timor-Leste left behind its violent past?

Timor-Leste seems to have passed the test. With last Saturday’s parliamentary poll, it has now held three elections this year without significant violence. This will allow for the withdrawal of a UN peacekeeping mission whose 1,100-strong police component has long seemed out of synch with local realities. Its violent recent past may increasingly look like history, although the poor country that celebrated only the 10th anniversary of the restoration of its independence in May still faces numerous challenges.

Concerns that the formation of a new coalition government might give rise to violence, as occurred following the 2007 elections, now look misplaced as provisional results show only four parties due to take seats in parliament (official results are due next week). A look at the seat results shows that the CNRT (National Congress for Timorese Reconstruction) has increased its share from 18 to 30 seats, and looks likely to form another government with former coalition partner Partido Democrático (eight seats) and maybe Frenti-Mudança (two seats).This is good for stability in the short term, but it also carries risks. A stronger government composed of fewer parties may be able to pursue clearer legislative objectives, but it will put great pressure on FRETILIN as perhaps the only party in opposition. As a young country only ten years on from independence, Timor-Leste’s parliament continues to consider questions of fundamental importance to the country’s future on which there is much debate, such as how to spend the billions in its Petroleum Fund, or how to structure land administration. Chosen from party lists and not constituencies, giving them little incentive to engage with communities, Timor-Leste’s parliamentarians to date have struggled to provide either an effective check on the executive or a constructive partner by initiating their own legislation. CNRT’s dominance will mean less active scrutiny and will further erode its role as an instrument of accountability.

The elections were not violence-free. There were some minor incidents of stone throwing and a report of three houses being burnt in Viqueque district in the last few days. But even in this volatile part of Timor-Leste, it was much less than the hundreds burnt around the 2007 polls. When we visited the district in May and asked why, the answer from the police, local government, chefes de suco, and civil society workers alike was unanimous – the threats from heads of the police and army had worked. Their blunt warnings that troublemakers would be shot were backed up with high-profile joint patrols and those contemplating violence got the message. It was a victory for “conflict prevention” that raised new questions about how the country will be governed in the future.

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