In my capacity as Special Rapporteur on the rights of indigenous peoples, I have visited Timor-Leste from 8 to 16 April 2019. I thank the Government for having invited me and for its excellent cooperation during the visit.
I would especially like to appreciate the open and constructive dialogue that characterised all my discussions with authorities.
During my visit, I met with the President, the Minister of Foreign Affairs and Cooperation, the Minister for Legislative Reform and Parliamentary Affairs, the Minister for Education, Youth and Sports, the Minister for Justice, senior representatives of several Ministries, members of the judiciary, the Prosecutor General’s Office, the Public Defender’s Office, the independent national human rights institution (Provedora de Direitos Humanos e Justica), parliamentarians, several traditional Elders (Lia Nain) and a broad range of civil society organisations.
I held meetings in Dili and I visited indigenous communities in Ermera, Liquica and Atauro. I held several separate meetings with women throughout my visit.
Among my priorities during the visit, I studied diverse issues affecting indigenous peoples, including customary justice systems, community land issues, education, conservation and climate change adaptation and mitigation measures.
I have also taken into account recommendations previously issued by human rights mechanisms, including the Special Rapporteur on extreme poverty who visited the country in 2011.
Timor-Leste is one of the world’s newest countries, having restored independence in 2002. Since its emergence from occupation and conflict, it has made remarkable progress in establishing legal and institutional frameworks and has made strong commitments to international human rights standards and national social development policies.
I am impressed by the pride the Timorese take in their cultural heritage and how indigenous practices have translated into important gains in environmental conservation. These can serve as inspiring examples for other countries.
Timorese indigenous culture and languages are particularly diverse and have been retained throughout colonisation and occupation. The vast majority of the country shares indigenous values and spiritual beliefs which are reflected instrong local institutions, customary justice and land management. Unlike many indigenous peoples, the Timorese achieved self-determination in political terms. Timor-Leste supported the adoption of the Declaration on the rights of indigenous peoples in the United National General Assembly in 2007 and the Constitution contains several provisions which explicitly recognise Timor-Leste’s customs, traditional values and cultural heritage. The Government’s invitation for my visit further underlines the recognition of the importance attached to indigenous peoples’ rights in the country.
This said, I have also noted that the country is still coming to terms with its colonial legacy which has created inherent biases among Timorese against their own culture. This has at times impacted on the development of inclusive and culturally adequate national policies and legislation.
One of the main thematic priorities during my visit was to study the relationship between the formal and customary justice systems.
In the 17 years since its independence, Timor-Leste has faced remarkable challenges in establishing a judicial system. The normative framework and institutional structures needed to be established from zero and deal with a complex post-conflict situation.
While significant progress has been achieved, access to the formal justice system remains a challenge for the majority of the population. Courts have only been established in four locations, which in practice means that geographic access is extremely difficult for most people. The backlog of thousands of cases presents an additional challenge.
Surveys have shown that more than half of the population have little knowledge of the formal justice system and of concepts such as ‘prosecutor’ and ‘lawyer’. Around a third of those who have been to court reportedly did not understand the procedures used.
Language is a major challenge in ensuring access to justice as most judges were trained in Bahasa Indonesia under Indonesian rule and were then required to operate in the official languages Portuguese and Tetum. Judicial actors thus operate in languages that are not mother-tongue for the majority of the population. Only in 2017 was Tetum explicitly recognised as an official language in the judicial sector (Decree No. 11/2017) and interpreters in indigenous mother-tongue languages remain unavailable.
The vast majority of conflicts are settled in the customary justice system at the hamlet (aldeia) or village (suco) level. These are decided by local Elders (Lia Nain) or the elected Suco Council according to customary rules established by the local community. These rules are based on spiritual traditions of sacred practice (Lulik) which for many centuries have regulated community relationships according to kinship in sacred houses (Uma Lulik). Local regulations and moral codes of conduct are often referred to as Tara Bandu, ‘hanging prohibitions’ as these traditionally were signalled by placing items in trees. Strong compliance is ensured by the sense of community belonging and spiritual duty, sanctions may for example entail community work.
During Indonesian occupation, indigenous customary justice practices were banned in many places, however since 2002 have become increasingly revitalised. For most Timorese these customary practices are an integral part of everyday life and play a central role in resolving disputes between individuals and communities, such as land disputes, conflict between communities and natural resources management. These practices focus on maintaining community and environmental harmony, in contrast to the formal justice system, which is perpetrator focused. Customary justice is the natural first resort for the vast majority of the population.
During my visit, I have witnessed in several locations and through discussions with community members how indigenous traditional knowledge and customary justice regulations, whether oral or in writing, have contributed to important forest and marine conservation outcomes. I also learnt about how customary practices were incorporated into transitional justice measures by the Commission on Reception, Truth and Reconciliation (CAVR) through the concept of Nahe Biti, which meansrolling out the mat, experiences from which valuable lessons can be learnt.
This said, there are practices in the customary justice system that need to be amended to comply with human rights standards. For example, although domestic violence has been defined as a public crime requiring investigation in the formal justice system since 2010. While an increasing number of such cases are being brought before the formal justice system, in practice these types of crimes also continue to be addressed through customary justice. Hearings in customary justice systems are commonly conducted in public, which is clearly unsuitable for crimes relating to vulnerable victims of domestic violence and child abuse. Some customary justice practices entail physical punishments which contravene international human rights norms.
In this regard I would like to recall that the United Nations Declaration on the rights of Indigenous peoples in Articles 5 and 34 affirms the right to maintain and strengthen indigenous legal institutions and juridical systems or customs, with the caveat that these should be in accordance with international human rights standards.
The Constitution of Timor-Leste in Art. 2.4 explicitly notes that ‘the States shall recognise and value the norms and customs of Timor-Leste that are not contrary to the Constitution and to any legislation dealing specifically with customary law’. The Constitution and the Penal Code do however not give guidance on how such customs should be recognised and addressed in practice.
Often communities speak about the complementarity between the customary and formal justice systems and do not see a contradiction between the two. This perspective has also been echoed to me by several judicial actors in the formal justice system in Timor-Leste.
Customary justice practices by indigenous peoples are not static and in my experience, indigenous communities are generally open to incorporating human rights guarantees in their practices. This change needs to come from within indigenous communities but can be encouraged by increased awareness raising of international and national legal standards through culturally appropriate dialogue. In this regard, I wish to note that such dialogue needs to aim at mutual exchange of how both systems can address their shortcomings and increase knowledge of procedures and best practices in the respective systems. I have seen many examples across the world, including in my own country the Philippines and in Latin America, where the two systems can act in a mutually reinforcing manner.
I therefore welcome the measures announced by the Timor-Leste Government to undertake participatory consultations across the country on how the formal and customary justice systems can harmonise their co-existence and strengthen their contribution to ensuring access to justice. I look forward to continuing my engagement with the Government through technical assistance on this matter. Ensuring justice for all is a key objective of Sustainable Development Goal 16 and Timor-Leste could provide important lessons for other countries.
Lands, territories and resources
Over 90% of the lands in Timor-Leste are governed by customary land tenure systems and most are not formally registered. Traditional leaders decide most conflicts over these lands as well as on disposition and management.
During the Indonesian occupation, individual certificates over customary lands were issued in favour of people who did not necessarily have any traditional relationship to these lands. Timorese who were forced to leave their lands during the civil war and the crisis that followed, and who later decided to return to these lands, were faced with people who had occupied their lands in their absence.
I recognise the efforts of the Government of Timor-Leste to address the complex issues on land in the country. As already mentioned, the Constitution makes a reference to customary law in Article 2.4, which is quoted above.The Parliament passed the Special Regime on the Determination of Ownership of Land (No. 13/2017 (hereafter the Land Law) that for the first time in history regulates land ownership in the country and addresses conflicting claims. The law is a positive response to the appeal for the Government to address the complex land problems. However, two years since its adoption, the Land Law has not been implemented because subsidiary legislation has yet to be passed.
Despite this, land registration has been initiated. However, few communities have claimed communal titles, likely because they are unaware of the possibility of registering such titles. I was informed that people have little or no knowledge about the registration and had no full comprehension of the impact and implications of the registration on their customs and traditions. I was also told that sacred sites and water resources are not being properly mapped.
I have received information that land conflicts may have been caused by and are at risk of escalating, if the SNC registration continues and therefore I call on the Government to urgently review the current registration process.
This is an opportune moment to complement the legal framework towards full respect and recognition of customary land tenure systems and traditional practices governing lands and resources, and fully acknowledging the full nature of customary lands. In the development of complementary laws to implement the Land Law and in the undertaking of land registration, I urge the Government to conduct inclusive and extensive consultations with people in the villages, especially those who have the historical knowledge of traditions and customs, women, and other stakeholders, to ensure that the complementary laws will be designed in a manner that does not deny the Timorese of their customary lands and traditional practices and at the same time respect the equal rights of women in decision making and property rights.
In the formulation of legislation and policies, I urge the Government to be guided by its commitment to the UN Declaration on the Rights of Indigenous Peoples, especially Articles 8, 10, 25 – 29, and Article 32 which deals with the right to land, territories and resources, the obligation not to conduct forced removals and measures for prevention and redress and the need for free, prior and informed consent.
Finally, I am concerned with how development priorities that include resource extraction could impact negatively on indigenous peoples’ rights and on the environment. I was informed that large government infrastructure projects are being implemented on customary lands with limited information, consultation and compensation, which has resulted in the displacement of communities from their lands.
The case of the Tasi Maneproject for instance was brought to my attention. I was informed that this was launched despite inadequate information about the environmental and social impacts of the project and without meaningful consultation with the affected communities.
Implementing national projects in this manner is a serious concern as it risks undermining laws and policies that protect indigenous peoples’ rights and customary practices related to their lands, territories and natural resources. I call on the Government to regulate development projects and to ensure that the obligation to undertake consultations with all affected stakeholders is fulfilled. I was also informed about ongoing efforts to draft a decree law on evictions and I call on the Government to ensure that any such measure is fully in line with international human rights standards.
During my visit, I was pleased to see how all interlocutors recognise the importance of traditions and customs in order to protect and preserve the natural resources, the environment and the country’s rich biodiversity. Among the key environmental concerns today are deforestation, burning of forests, natural disasters exacerbated by climate change and limited waste management. These have resulted in, among other things, decreased food resources, floods and landslides and have contributed to the overall poor nutrition status of many in Timor-Leste.
I welcome that in its strategic development plan, the Government recognises the importance of strengthening the customary bond or relationship of Timorese to nature and to the lands, as a way forward in conserving and protecting the environment and resources. Indeed, empirical evidence has proven that indigenous peoples’ traditional management of resources has been effective in keeping territories resilient to climate change. Traditional knowledge systems, biodiversity conservation and sustainable use, climate change adaptation and mitigation measures are now recognised under the Convention on Biological Diversity and the UN Framework Convention on Climate Change.
In my meetings with Government officials and visits to various communities, I have been informed about the revival of the Tara Bandu in relation to conservation, including mangroves reforestation and restrictions on fishing zones for regeneration. I encourage Timor-Leste to further strengthen and revitalise customary laws and practices in the management of their land and marine resources.
As the world celebrates the International Year of Indigenous Languages this year, I would like to highlight the rich diversity of indigenous languages in Timor-Leste. There are more than 7000 languages in the world and more than 5000 of these are indigenous. Indigenous peoples’ languages are not only tools of communication and education but are integral to their identity, culture and history. Internationally, indigenous languages are gaining recognition and the use of these languages are being invigorated. I call on the Government to take further measures to protect and revitalize and promote the more than 30 languages in Timor-Leste.
In education, a key issue is the language of instruction, which are Tetum and Portuguese. In most places, the majority of the population speaks and understands Tetum. However the vast majority do not speak nor understand Portuguese. A 2016 assessment of a pilot project run by the Ministry of Education and the National Commission of UNESCO in schools in three districts has shown that using mother tongue at the early stages of education, remarkably increases the performance of students. Despite the very positive results, education in mother tongue has not been implemented beyond the three pilot areas, and I urge the Government to expand it across the country.
Overall, the Government has put in place a strong legislative and policy framework on education, and has acknowledged existing disparities, obstacles and challenges in its 2017 Inclusive Education Policy. During my visit, I have observed several of these challenges, some of which were also noted by the Special Rapporteur on extreme poverty in 2011, including the inadequate infrastructure of schools. Education is intrinsically linked to achieving developments related to poverty reduction and health, and I urge the Government to reflect in its budget allocations that education is a national priority.
Poverty, the rights to food and health
Timor-Leste has the highest rate of chronic malnutrition in South East Asia and among the highest in the world. Statistics indicate that nearly half of all children under 5 years of age suffer from chronic malnutrition and around 36 % percent of the population is chronically food insecure.
I was told about existing initiatives to use local indigenous crops such as cassava and sweet potato and I strongly encourage the Government to focus on increasing production of these to address the incidence of malnutrition. I take note of the Strategic-Development-Plan 2011-2030 and the 2017 SDG Roadmap and call on the Government to assign adequate resources for their effective implementation and for the strengtheningof the Bolsa de Mae programme.
I met with several persons with disabilities who told me about the lack of appropriate policies and services, especially in rural areas. They stated that they feel invisible as their situation is not adequately recorded in statistics nor adequately addressed by Government policies on education, health and access to justice.
I wish to conclude by reiterating my commitment to continuing the dialogue initiated during this visit, and look forward to working with the Government in a spirit of cooperation on the implementation of my recommendations.
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