Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Guatemala (Ratification: 1996)

1. The Committee refers to the observation it is making this year.

2. Article 1 of the Convention. The Committee notes from the information communicated by the Government that of a total population of 10.5 million, 5.1 million are indigenous, composed of 24 ethnic groups. It also notes that some 1.38 million indigenous people live in urban areas, and 3.75 million in rural areas.

3. Article 2. The Committee notes the information provided by the Government on the work undertaken for the implementation of the Peace Agreements, which has resulted in the creation of a number of joint committees, two special commissions and one on the recognition of indigenous languages and sacred places. It also notes that the indigenous peoples themselves have organized eight national permanent commissions on questions including women, indigenous law and constitutional reform for which there are corresponding mechanisms for dialogue with the Government. The Committee notes, however, that the MINUGUA report referred to in the observation indicates in paragraph 88 that, while the joint committees are important mechanisms for discussion and consultation, they also have encountered problems including: (1) the representative nature of the indigenous side has been questioned as the broad and dispersed indigenous movement evolves; (2) the Government’s representatives have not always had the power to take decisions; and (3) there have been budgetary limitations on their functioning, and for disseminating and consulting on their proposals. Recalling that these are important mechanisms for the implementation of the Convention and for consolidating the Peace Agreements, the Committee hopes the Government will do everything possible to improve their functioning and that it will keep the Committee informed of their progress in future reports.

4. Article 3. The Committee notes from the report that there is a draft legislative decree to amend the Penal Code and make racial discrimination a crime, which the Committee understands still has not been adopted. Please indicate in the next report the progress that has been achieved in this respect.

5. Article 4. The Committee notes the information provided in the Government’s report on the functioning of the Joint Commission of Reform and Participation at all Levels, which was established by Government Agreement No. 649-97. It notes that this Commission has completed proposals for reforms to the Municipal Code and to the law concerning the National System of Development Councils, and has carried out various studies concerning participation of indigenous peoples in decision-making in various fields. The Committee also notes that following the failure of the constitutional reforms, the Commission has decided to revise its proposals. Please provide information on the form this has taken.

6. The Committee notes from the MINUGUA report cited above (paragraphs 79-82) the serious problems caused by the fact that many indigenous peoples are undocumented, particularly indigenous women in rural areas. It notes the adoption of a law concerning documentation (Ley Temporal de Documentación), but also notes MINUGUA’s comment that no regulations have been adopted to apply it, and that the lack of training of the civil registrars has limited its effect. Please provide information on the measures taken to make this legislation effective.

7. Article 6. See the observation.

8. Article 7. As concerns participation of indigenous peoples in decisions concerning development as it affects them, the Committee notes that the Government has referred to urban and rural development councils, but has not indicated whether they have indigenous participation and if so at what level, nor has it supplied information on their workings. It has also indicated that many consultations are carried out concerning development plans, in the context of decentralization.

9. On the need to undertake studies, in cooperation with the peoples concerned, to assess the impact on them of planned development activities, and the obligation to preserve and protect the environment they inhabit, the Government has referred to the bodies responsible for this, and states that there are 124 areas declared protected, which are inhabited by indigenous communities, though unfortunately only 99 of them have an officially assigned administrator. At the same time the Council of Mayan Organizations of Guatemala (COMG), in its observations on the Government’s first report, said that there was little coordinated planning concerning development, and that no impact studies are carried out. The Committee requests the Government to provide information on how the consultation of indigenous peoples’ organizations concerning development, including for the preservation of the environment, is carried out in practice.

10. Articles 8, 9 and 10. The Committee notes that a provision which would have recognized customary law of the indigenous peoples, was included in the constitutional reforms that were not adopted. It notes from the report, however, that a recent reform of the Penal Procedure Code (Decree No. 79-97) created Community Justices of the Peace who are empowered to apply "the uses and customs of the different communities for the solution of conflicts"; this, however, applies only to conflicts and not to other areas of law. The Government has also signalled a growing interest among state institutions to recognize cultural diversity, such as the recruitment of some bilingual officials for the Public Defender’s office and in the judiciary support services, the research being carried out into customary law, as well as the training programme for judicial interpreters of indigenous languages being carried out with the support of MINUGUA. In addition, it notes the incorporation of cultural training in the National Civil Police Academy, and the launching of a process of consultation with indigenous organizations by the Human Rights Prosecutor. The COMG says in its comments, on the other hand, that the creation of the Community Justices of the Peace is a violation of the Agreement on the Identity and Rights of the Indigenous Peoples, in which the Government promised to respect the right of indigenous peoples to handle their own internal affairs.

11. The MINUGUA report devotes considerable space (paragraphs 56-67) to this question, concluding that there is a real prejudice against indigenous customary law on the part of the "practitioners" (operadores) of the justice system, mostly based on ignorance of both the languages and the cultures of the indigenous peoples. The report states (paragraph 58) that "In some cases, the cultural barrier can mean that cultural differences are criminalized." The report also indicates that there have been some advances in this area, citing the increase in posts for judicial interpreters, and encouragement of the recruitment of judges who speak indigenous languages in areas where indigenous peoples are in the majority. Nevertheless, the few institutions, national and international, which are trying to provide bilingual and bicultural officials, cannot cope with the demand. Finally, the MINUGUA report indicates that studies have shown that the majority of indigenous peoples in the country retain and exercise their own normative systems for their internal affairs.

12. The Committee notes the fundamental nature of this problem, and that the measures so far taken have not been able to respond adequately to the need. It encourages the Government to continue to work on this problem, in consultation with the indigenous peoples, and to provide information in its next report about the progress achieved and the additional measures being taken.

13. Article 11. The Committee refers to its comments under Conventions Nos. 29 and 105 concerning the exaction of forced labour from indigenous peoples, and the impunity of those who impose it. It requests the Government to provide detailed information on the suppression of forced labour among indigenous peoples, including the implementation of the "Food for Work" programme in indigenous communities.

14. Article 12. The Committee notes that the Government indicated in its first report that access to justice is available to all for no cost, and that in order to allow access by members of the indigenous peoples to labour inspectors, all those working in indigenous areas must be bilingual. Other measures concerning bilingual officials have also been indicated (see above). The Committee notes in this connection the report of the United Nations Special Rapporteur on the Independence of Judges and Lawyers on his mission to Guatemala (UN document E/CN.4/2000/61/Add.1 of 6 January 2000) in which he indicates in paragraph 108 that: "The most common contention the Special Rapporteur encountered was that the Mayan people have suffered from discrimination before the courts. There were allegations that this discrimination, including by judges, extended to indigenous defence lawyers, witnesses and court officials. A facet of this discrimination was that there is allegedly no budget allocation for the provision of interpreters."

15. The Committee requests the Government to provide information on the methods which have been taken or are contemplated to guarantee to these peoples the right to initiate legal proceedings and to understand and be understood in them in order to protect their legal rights.

16. Articles 13-19. Land. The Committee notes the statement in the Government’s report that land-related conflicts in Guatemala are extremely complex because of the many causes of such conflicts - historical, ethnic, political, religious, etc. - intensified by the internal armed conflict, the lack of a national land register and the inadequacy of the General Property Register, among other causes. The Government states that the Agreement on Socio-economic Aspects and the Agrarian Situation recognizes the importance of the resolution of land conflicts for the construction of peace, and the Government therefore promised to put into place a Presidential Office for Legal Assistance and the Resolution of Land Conflicts (CONTIERRA), which was done in July 1997. The Committee notes also the creation of the Joint Committee on the Land Rights of Indigenous Peoples, and a number of other measures in this regard. The comments by the workers’ organizations point to continuing problems in this area, to loss of rights by indigenous communities and incursions on their lands, and related problems. The MINUGUA report refers (paragraph 73) to the lack of official recognition of indigenous land rights, lack of precision in the definition of boundaries of indigenous lands and the frequent absence of land registration.

17. The Committee requests the Government to provide detailed information in its next report on the measures taken or contemplated in this area, including the abovementioned questions and:

-  progress on the adoption of the Basic Law on Land (Ley del Fondo de Tierras);

-  whether procedures have been established for consultation of indigenous communities before undertaking or permitting any programme for the exploration or exploitation of natural resources on indigenous lands (Article 15(2));

-  the practical application of customary indigenous agrarian law in the transmission of land rights (Article 17);

-  information on measures taken or contemplated to prevent unauthorized intrusions onto indigenous lands (Article 18).

18. Article 20. Conditions of work. The Committee notes from the Government’s reports that no special measures have been taken to protect the rights of indigenous peoples in the field of labour, though the Ministry of Labour continues its process of decentralization to the different regions of the country. The comments by the COMG and the Central Organization for Rural and Urban Workers (CTC) indicate that serious exploitation of indigenous workers continues to exist in agriculture, domestic service and manufacturing, and that labour inspection for these peoples exists only in theory. The Committee requests the Government to provide detailed information on the measures taken to provide labour inspection in areas and occupations in which indigenous peoples are concentrated, with particular attention to the detailed comments which the Committee has made on the application by Guatemala of the Labour Inspection (Agriculture) Convention, 1969 (No. 129).

19. Articles 21 and 22. The Committee notes that in the context of the Peace Agreements, the Government committed itself to a large programme of vocational training for indigenous workers. It notes from the report the large number of indigenous students who have so far been trained, and requests the Government to continue providing information on this in future reports.

20. Article 23. The Committee notes that the Government has provided no information on the promotion of traditional handicrafts and rural-based industries, and that the COMG and the CTC state that no such programmes exist. Please provide information in the next report on any measures that may be contemplated in this regard.

21. Articles 24 and 25. Social security and health. The Committee notes the information the Government has provided on the number of health posts and other medical facilities in indigenous areas. It notes the statements in the information provided by the COMG and the CTC that there are no hospitals in Mayan areas, only some health posts, and that they are staffed by monolingual persons who do not speak the languages of the communities in which they work. Please provide additional information on the measures contemplated to provide adequate health coverage in areas inhabited by indigenous peoples.

22. Articles 26-30. Education. The Committee notes with interest the detailed information communicated by the Government in this respect. It notes that the Joint Committee for Educational Reform submitted its Design for Educational Reform in July 1998, and that draft legislation on this subject is before the Congress. The COMG and the CTC indicate, on the other hand, that reform is blocked by interested parties who focus on a monolingual approach and are not interested in educational reform. The abovementioned MINUGUA report indicates that, while budgetary provision is adequate, and there has been an increase in the coverage of education, and the Design of the Educational Reform corresponds to the obligations undertaken in the Peace Agreements, there remain many gaps in indigenous education. Please continue to provide information in this regard.

23. Article 31. Means of communication. The Committee notes the statement in the Government’s report that significant means of access to radio communications have been provided to indigenous communities. It also notes that the COMG and the CTC indicate that the access provided is very limited, and emphasize the need for radio communications to help educate the indigenous population about their rights, including the provisions of Convention No. 169. Please provide additional information in this regard in the next report.