Increasing Women’s Access to Justice in the Asia-Pacific:A Common Framework for Programming on Women’s Access to Land and Property 

1. 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

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

3. 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.
Land Policies, Titling Schemes and the Legal Reform Process in Timor-Leste

4. 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.
Land Policies, Titling Schemes and the Legal Reform Process in Timor-Leste

5. 2014201320122011201020092008200720062005200420032002200120001999
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 Parliament
Decree-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.

6. 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.
Land Policies, Titling Schemes and the Legal Reform Process in Timor-Leste

7. 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.
Land Policies, Titling Schemes and the Legal Reform Process in Timor-Leste

8. 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