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Legal Analysis on MOU: Part III

Web Manager’s Note:

The following text originally comes from a facebook discussion on MOU (Memorandum of Understanding) signed by ETG and Council of Pilung on January 2012 (please check our timeline, and the content of MOU here). We re-post the discussion here for it greatly helps us to comprehend the legal issues involved in MOU.

It is the third part of the conversation, mainly between Mr. John Waayan K Fillmed, Mr. Clement Yow Mulalap, and Mr. Henry Norman. The main topic is about the traditional legitimacy of pilung’s land acquisition.

Resource: http://www.facebook.com/groups/404462399564440/permalink/531768123500533/

John Waayan K Fillmed

Clement Yow Mulalap Siro, from your legal point of view, does the council of pilung have the right to take land from individuals. I mean take it by force, telling people I am going to take your land for the village to use. Under our current laws can they do that? Even better; can they take it for their own use? Can they take land away from people just because they are the chief of a village. This is a concern that has been shared with me. I don’t think so but I could be wrong.

January 11 at 10:36pm

Clement Yow Mulalap Waayan,

Siro.

The short answer to your questions is: As far as I know, there are no formal written laws in Yap that explicitly permit Council Members (as well as traditional chiefs in general) to take the actions you describe, but if our customs and traditions allow our chiefs to take those actions, then those actions are legally valid in Yap, including in a court of law. The formal legal system in Yap defers to customs and traditions when they arise and apply in any legal proceedings. The question, then, is whether our customs and traditions allow a traditional chief to forcibly and unilaterally take part or all of someone’s land in the chief’s village for either the chief’s personal use or for the use of the village. To answer this, we must discuss our customs and traditions.

Here is what I know about our customs and traditions regarding the seizure/encumbrance of one’s land in Yap by others in the person’s village. (In the interest of brevity, I will stick to discussing village chiefs and private land in individual villages, rather than municipality-wide chiefs and private land that lies in multiple villages in a municipality under an individual landowner’s name. The discussion should essentially be the same in either scenario.) Please correct me if I am wrong. I apologize for any errors in my understanding.

As far as I know, there are two main traditional ways in which land belonging to a Yapese can be seized or otherwise encumbered by others in the landowner’s village. The first way is what is called “kol e binaw.” From what I’ve been told, “kol e binaw” occurs only as a punishment for transgressions committed by the person whose land is being seized, and only after a village-wide discussion that results in a decision to carry out the seizure of land. It bears mentioning, though, that when land is seized in “kol e binaw,” the expectation is that there will eventually be a “biyul” (typically by certain relatives of the transgressor-landowner) seeking the release of the seized land. In Yapese culture, when a “biyul” is properly tendered, the recipient of the “biyul” is not supposed to refuse it. Thus, land seizure (“kol e binaw”) is usually not intended to last an extended period of time, let alone permanently. Furthermore, while the land is seized by a village, nothing can be done with or on the land unless the village meets and decides what can be done.

Therefore, as far as I know, a traditional chief cannot decide, on his own initiative, to seize someone’s land in “kol e binaw.” The chief’s village must meet first and decide whether to seize the person’s land, and that meeting cannot take place unless that person first commits a transgression against the village that demands punishment. If the purpose of the “kol e binaw” is, for example, business development, then such a land seizure is not permitted under our customs and traditions, as far as I know.

The second main traditional way in which a piece of land in Yap land can be encumbered by the landowner’s village is when a village decides to construct a community structure (such as a peebay or faluw, or perhaps a kanawo ni malang) that will lie at least in part on the private land of a villager. However, such a project cannot take place unless there is a village-wide discussion first, one that involves the affected landowner, and one in which the village decides to go ahead with the project for the community’s benefit. During and after that discussion, the village chief is supposed to do all he can to convince the landowner that it is vital for the village to use at least part of his land for the project. The chief is also supposed to “ta talin ko an tafen,” i.e., present the landowner with traditional valuables as a sort of grateful acknowledgment (as well as compensation) for the landowner allowing the village to use his land for the project. However, the landowner can refuse the offer, as long as the refusal is done respectfully and with delicate care. Even if the landowner gives his consent, the landowner retains ownership of the affected land. He grants the village certain “use rights” on the land, but he retains ultimate ownership.

Therefore, as far as I know, a traditional chief cannot decide, on his own, to snatch someone’s land for the village’s use. If the village needs to use someone’s land for a village project, there must be a village-wide discussion and decision first, and the chief must go through the proper protocol in formally requesting the landowner’s land for the village’s use. No matter how beneficial the project may be, it cannot encumber the private property of a village landowner without significant and open public discussion by the village prior to the encumbrance, and the encumbrance cannot proceed without the landowner’s consent.

Finally, as far as I know, a traditional chief cannot seize anyone’s land in the chief’s village just for the chief’s personal use. Just because someone is a chief, that does not mean that the person is “suwon” over all the land in his village. While a traditional chief is a “lung” of his village when the village deals with other villages, the traditional chief is not a dictator. The chief derives his power—his “lung”—not just from his estate, but also from the people in his village. It makes little sense for the chief to have the authority to essentially snuff out the identities of his fellow villagers—for that is what happens when someone’s land is taken away from him. The traditional chief cannot take actions without proper prior consultations/discussions in the chief’s village, and even then, there are certain actions that a traditional chief just cannot take. The seizure of someone’s land for the chief’s personal use is one such forbidden action, as far as I know.

Again, this is my personal understanding of Yapese customs and traditions. If anyone has a different understanding, please share with us. Again, I apologize if I have erred, especially if I have offended anyone as a result.

Siro.

January 12 at 12:38am

Henry K.O. Norman

Very interesting, Mr. Mulalap, thank you! I find it somewhat interesting that in both cases described *nothing can be done* with or on the land in question without extensive and village-wide discussions (I guess in Sweden, this would be called a community hearing), which I assume must also reach a consensus of some sort (Majority? Chiefs only?). Now, with that in mind…

Are there no such customary and/or traditional rules when it comes to what a *private land owner* (assuming this is actually possible in Wa’ab (much that I have read here and in other sources indicates that most land is *not* “privately owned” in the “Western” sense)) can or can not to with or on the owned land?

As I am a foreigner, please do not spend much time on these my curiosity driven questions! Kam’magar gow!

January 12 at 12:46am

Clement Yow Mulalap

Greetings, Mr. Norman. Thank you for the questions and your interest.


As far a
s I know, a private Yapese landowner has wide authority to do most anything on his land. However, the landowner’s activities on the land cannot pose a “public nuisance,” so to speak, to other people and their land in the village. Such a “nuisance” can be excessive noise/clamor generated by a structure or activity on the landowner’s property. It can also be disruptive heavy foot traffic through the village to a structure or event in the landowner’s property. And, of course, it can be actual environmental harm generated on the landowner’s property and inflicted on other people and/or their land in the village. If the village feels that the landowner’s activities on his land harm the village in a significant way, then the village can censure the landowner (“ba’king”), seize the landowner’s land (“kol e binaw”), and/or perhaps (in extreme cases) banish the landowner and his family from the village.

Additionally, as far as I know, there may be certain plants/landmarks on a piece of land that cannot be disturbed because of their talismanic value for the village in which the land is situated. Also, some estates/villages have traditional sociopolitical connections to other estates/villages elsewhere on the island, and an important aspect of maintaining those connections is the regular offering of tributes from the land’s bounty; those tributes cannot occur if the land’s bounty (e.g., betelnut, pepper leaf, certain root crops) is severely diminished, so those estates/villages that engage in those tributes are supposed to strive to preserve their land’s bounty as much as possible. Furthermore, a piece of land is subject to the traditional restrictions imposed on the land’s use by certain members (e.g., mafen, matam, matin) of the family whose estate has authority over the land. Such restrictions can vary from estate to estate, but the restrictions generally aim to preserve the land’s bounty as much as possible, so as to nourish current generations and as many generations in the future as the land will bear. Finally, there are certain plants, animals, and other natural objects on a piece of land that enjoy cultural protections from being harmed by certain members of the estate that has authority over the land. These protections are important aspects of the Yapese clan system (“nik” or “ganong”), wherein each Yapese clan is linked by ancient customs to certain plants/animals/ natural objects–which, therefore, must not be harmed by their respective clan members.

These are just a few traditional barriers to the uninhibited exploitation of ostensibly “private” land in Yap by Yapese landowners. These barriers make sense, because if many land parcels in a village lose their natural bounties and/or become “public nuisances,” that village’s traditional socio-political status in Yap’s complex system of political authority can weaken. And, of course, the degradation of a land parcel’s natural bounty weakens the estate which has authority over the land parcel.

Oh, and before I forget, I want to clarify that when I speak of private Yapese landowners, I do not disregard the rights that Yapese can have over pieces of land even if they do not “own” the land. The term “private Yapese landowners” is a gross simplification of a complex traditional land tenureship system in Yap. I have discussed this concept before in this group, but I want to be clear anyway.

I wholeheartedly welcome comments from others in this group about our customs and traditions. I do not claim to be an expert on Yapese customs and traditions; I simply share what I have been told, what I have heard, and what I have observed. I deeply apologize to others in this group for any errors in my comments.

Siro.

January 12 at 1:35am

Dolores Yilibuw

Yow, if i’m not mistaken the “Kol binaw” can also be done by the villagers to their chief and banish him from the village, which is why respect is pivotal in a village, just because you’re a chief does not mean you can disrespectfully yank everyone’s chains, even chiefs can be deposed by their own “subjects.” anyway, you all feel free to disagree, you won’t hurt my feelings, i’m just saying what i heard long long ago. thanks and peace.

January 13 at 4:20pm ·

John Waayan K Fillmed

Kamagar Clement Yow Mulalap I asked because the concern came and wanted a second opinion on it. I will share the information.

January 14 at 5:38pm

Resource: http://www.facebook.com/groups/404462399564440/permalink/531768123500533/

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