land policies, titling schemes and the legal reform process in timor-leste

LAND POLICIES, TITLING SCHEMES AND

THE LEGAL REFORM PROCESS IN TIMOR-LESTE

Increasing Women’s Access to Justice in the Asia-Pacific:

A Common Framework for Programming on

Women’s Access to Land and Property

Regional Consultation Programme June 9 – 10, 2014, Bangkok, Thailand

Bernardo Almeida and Horácio da Silva

Land Policies, Titling Schemes and the Legal Reform Process in Timor-Leste

Background:

Land tenure in Timor-Leste is the result of the nation’s complex history:

• Almost 500 years of Portuguese colonial rule: limited recognition of customary land rights;

and land titling was used mostly to give elites access to agricultural land, as well as regulate

access to land in urban areas.

• Japanese invasion (World War II): killed and displaced between 40,000 and 70,000

Timorese.

• 24 years of violent Indonesian occupation: displacement; forcible resettlement; arbitrary

dispossession; and overlapping land titles, a number of them with dubious legitimacy.

• Violence after the referendum for independence: massive displacement and destruction of

the country’s infrastructure; the return of thousands of IDPs and refugees to a devastated

country caused a run for any property that was left behind by the Indonesian state and the ones

that fled the country; all the land records made and kept during Indonesian administration were

destroyed.

• Political crises of 2006: displacement; destruction of property and a new wave of occupations.


Current Situation:

• Overlapping land claims: Portuguese land title holders; Indonesian land title holders;

customary based land claims; long-term occupants; poor squatters.

• It has not yet been possible to approve legislation to address these challenges.

• Frail regulation and protection for customary land claims.

• Strong spiritual links to the land by the population.

• Indonesian legislation was kept in force until the approval of Timorese legislation; however,

the current practice is to wait for the approval of legislation.

• Weak rule of law.

• Weak land tenure security.

• No legal protection for poor squatters.

• High rate of urbanization, especially in the capital Dili.

• Pressure for obtaining land access, both from government development projects and new

investments. Lack of appropriate legal framework and inexperience with safeguard

mechanisms.

• Other challenges: poverty; illiteracy; high population growth rate; reduced economic

diversification; very young population; high unemployment.


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Referendum

for

Independence

Land Law Project I and II (USAID)

• Social Science research

•Capacity building

•Legislation drafting (only 2 laws

regarding lease contracts were

effectively approved).

Approval of the Constitution:

•Art. 17- Equality of men and women

•Art. 54- Right to private property

(only nationals can own land)

Law 1/2003:

•Definition of state land (does not take into

consideration customary land and

circumstances in which land became state

land)

• 1 year for land claims (unclear process

regarding who should claim and legal

outcome of those claims)

UN Transitional administration:

No legislative action regarding

land tenure

2006 Political Crisis

Ita Nia Rai (USAID):

• Systematic land claim process

(focus on urban areas of district

capitals; no legal basis)

•Legislation drafting (after

transferred for the MoJ).

Draft of the Land Law

Approved and sent to

Parliament

Ita Nia Rai is handed

over to MoJ

Gov. hires a private

company to do the

national cadastre

Land Law

Approved by

Parliament and vetoed

by the President

New draft of the Land

Law approved and sent

to ParliamentDecree-Law 27/2011:

•Legalization of the systematic land claim process

•Registration of property rights to undisputed land

claims

Approval of the Civil Code:

•Regulation of different land rights

• Some recognition of customary land rights

•Regulation and some protections of spouses

property

• Protection of inheritance rights for spouses and

descendants.

Challenges:

• Timor-Leste ranks 134th in the UNDP Gender Inequality Index

• Most of the land is ruled de facto by customary systems: the majority of the ethno-linguistic

groups are patrilineal (minority of matrilineal communities). The patrilineal groups tend to

exclude women from accessing land: only through the husband’s right to land, and excluded of

inheriting land.

• In the cadastral process developed by USAID in urban areas, 20% of the land claims were

presented by individual women and 11 percent by couples (40% of the claims were presented

by men and the rest by the state, communities and legal entities).

• Mentality change, especially in areas where customary rule is the de facto ruling system.

• Protection of customary land tenure of external threats.

• Pro-poor land tenure protection.

• Rule of law: transform the written rules in followed rules; avoid ad hoc procedures.

• Full implementation of legislation: high percentage of the legislation do not have the regulatory

framework approved.

• Development of the law-making process.


Lessons learned:

• The law cannot be seen as the only mechanism for social change; other mechanisms for social

transformation should be paired with the approval of legislation (especially in cases of weak

rule of law).

• The approval of legislation cannot be dissociated from the strengthening of the rule of law and

institutional development.

• Which one to do first: approval of legislation or institutional development? The chicken and

the egg dilemma.

• Informed advocacy can have an important impact on the law-making process.

• In a complex context such as Timor-Leste, donor intervention should have a long-term vision.


Solutions and opportunities:

• Current high population growth and quick urbanization rate of the Timorese society represent

an entry point for social change regarding gender inequality.

• Current status of ‘informality’ of most of land rights represents an opportunity to correct

inequality in future formalization procedures.

• Over ambitious or complex laws tend to fail more that more specific and realistic legislation.

• Developing the law-making process – law-drafting standards for donors involved in legal

drafting. (Seidman and Seidman).


land policies, titling schemes and the legal reform process in timor-leste

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