Zottis, Rezende Advogados


East Timor was a former colony of Portugal, a situation that lasted until 25 April 1976, when the Portuguese Constitution was amended to remove the ultra-marine territories. However, before East Timorese could exercise their right to self-determination, their territory was illegally occupied by Indonesia. This situation remained until October 22, 1999, when, through an agreement between Portugal and Indonesia, Timor passed to the administration of the United Nations and then, in 2002, became a legally independent country through the exercise of its self-determination right.

Portugal never recognized East Timor as a part of Indonesia, nor the unilateral declaration of independence promoted by the revolutionary force, claiming to be the administering power of that territory even while the occupation continued after 1976, even has claimed as void an international treaty between Indonesia and Australia on that condition. The United Nations also recognized Portugal as the de iure holder of the right over the Timorese territory while Indonesia exercised its de facto sovereignty over the territory illegally through the use of violence.

In terms of internal legislation, Decree-Law 308-A/75 regulated the issue of Portuguese nationality for those born in ultra-marine territories. In any case, this Decree-Law was revoked by Law 113/88, of 29 December.

In order to solve this issue, on October 3, 1981, Law 37/81 came into force, which considered the children of a Portuguese father or mother born in territories under Portuguese administration in accordance with its article 1,a).

That being said, in light of the interpretation of the Nationality Law, it should be noted that Portugal only ended its status as the administering power of East Timor on 22 October 1999, when the United Nations started to exercise control over the territory in order to guarantee its right to self-determination.

The provision about the territories under Portuguese administration only came to be amended with the advent of Organic Law No. 2/2006, of 17/04, which removed this precept from the legislation, but without removing the effects produced until then that apply to all those born before October 22, 1999.

Complementing this situation is Decree 322-A/2001, which in its article 10 makes free of tax the acts listed in article 1 of Decree-Law 249/77, 14th June, as well as the documents and processes related to it. This Decree-Law in turn regulates the civil registration acts or parish registry acts with civil effectiveness, concerning Portuguese citizens, drawn up in the former colonies. The legal diploma guarantees that the acts may be officially entered in the Portuguese civil registry books at the request of the interested parties based on the original registration certificate.

In these cases, the registration will be made by inscription and not by transcription according to the Civil Registration Code: “Article 52 Birth and death certificates of Portuguese citizens that occurred in Portuguese territory, when declared directly at the competent office; b) Birth and death certificates of Portuguese citizens that occurred abroad, when declared under the conditions of the previous sub-paragraph;”.

Also: “Article 49 (1) – The documents issued in a foreign country, in conformity with the local law, may be used as a basis for registration acts or to instruct proceedings regardless of previous legalization, provided that there are no reasonable doubts about their authenticity”.

The former Civil Registry Code (Decree-Law 51/78), in its article 10 provided: “The birth of foreign citizens occurring in Angola, Mozambique, Green Cape Island, Guinea and S. Tomé and Príncipe during the Portuguese administration may enter the Portuguese civil registry by direct declaration of the interested parties.”

The Civil Registry Code of 1967 thus provided about the Acts performed in the overseas provinces:

Article 9
1. Registration acts drawn up in the overseas provinces may enter the civil registry of the metropolis on the basis of a full copy certificate issued less than six months previously.
2. A registration made on the basis of the certificate referred to in the preceding paragraph shall result in the cancellation of the original registration; for this purpose, the official who makes the registration shall notify, within three days, the holder of the book in which the registration is recorded.

Thus, considering the situation explained above, the understanding is that persons born in the territory of East Timor, whose administration was de iure exercised by Portugal until 22 October 1999, the date on which the territory passed under United Nations administration, should be considered Portuguese of origin under article 1 of Law 37/81.

Moreover, the registration must be done without fees according to article 10 of Decree 322-A/2001, which can, depending on the case, be done by inscription, as the territory nowadays Timor-Leste was considered Portuguese, under the terms of article 52, or by transcription in the cases of article 53, both of the Civil Registry Code.

Finally, it should be noted that East Timor is not a member of the Hague Convention on the Apostille of Documents. However, considering the fact that the legal acts performed in Timor-Leste up to 22nd October 1999 were de iure performed by Portuguese authorities and according to the law of this country, I consider, based on article 12 of the Civil Code, that there would be no requirement for their legalization through the Portuguese Embassy in Dili, as the effects already produced by the facts that the law is intended to regulate are safeguarded.

Thus, under current legislation, those born in Timor-Leste up to 22 October 1999 are Portuguese by origin by virtue of article 1(a) of Law 37/81. In addition, children born after that date are also Portuguese by virtue of article 1(c) of Law 37/81. Such applications for nationality must be submitted to the General Register of Civil Status and Nationality competent to deal with ultra-marine affairs.

Keywords: Portuguese Nationality. East Timor. East Timorese. Ultra-marine. Law 37/81. Nationality Law. General Register of Civil Status and Nationality.

Deixe um comentário

O seu endereço de e-mail não será publicado. Campos obrigatórios são marcados com *

Rolar para cima