BEYOND LAW Nº 27
Legal Pluralism, Indigenous Law
and the Special Jurisdiction
in the Andean Countries
Raquel Yrigoyen Fajardo*
The recognition of indigenous peoples and of their right to control their institutions, habitat and territories, to self-government, legal systems, authorities, identity, languages and culture, as well as their right to par ticipate in the regional and
national plans that may affect them, has supposed a long, as of yet inconclusive,
struggle in Latin America. The 16 th century ideology of the natural infer iority of the
indigenous people, the republican heritage of the notion of the nation-state and
the state-law identity of the 19th century have impeded the full recognition of the
dignity of different peoples and cultures and of the diverse indigenous legal systems. This situation has been contested by the different indigenous and peasant
movements and also, over the past decade, by important normative changes. This
article exposes the tendencies of the constitutional reforms in the Andean countries to signal to the similar legal framework that may lead to a pluralist horizon
that allows the construction of the bases of a multi-cultural state.
INTRODUCTION
The recognition of Indigenous People, and their rights to control their own institutions, habitat and
territories, to self-governance, legal systems, authorities, identity, languages and culture—as well
as their right to participation in the regional and national plans that might affect them—has entailed
a long and as of yet inconclusive struggle in Latin America. The colonial reality put the native
peoples in a condition of political subordination, economic exploitation and cultural devaluation.
The ideology of the natural inferiority of the Indians, elaborated in the 16th century to legitimize the
imposition, still remains strong beneath the surface of many political parties on the continent. On
the other hand, the republican heritage of the idea of the nation-state and the identification of state
law since the 19th century have hindered the full recognition of the equal dignity of different peoples
and cultures, as well as of the diverse indigenous legal systems, which have had to survive under
conditions of illegality and subordination. This situation has been contested by different indigenous as well as by peasant movements during the past decade, as a result of important normative
shifts, which I wish to address here.
In the final decade of the 20th century there was a tendency that resembled the constitutional
reforms initiated by the countries that make up the Andean Community of Nations: 1 Colombia,
Peru, Bolivia, Ecuador and Venezuela. These countries had ratified Agreement 169 of the 1989 International Working Group on Indigenous People and Tribes in Independent Countries (Organización
Internacional del Trabajo sobre Pueblos Indígenas y Tribales en Países Independientes de 1989), which gave
*
1
Ph.D. Candidate , University of Barcelona. Editor, Por tal of Law and Society (http://
www.alertanet.org).
Cartagena Accord, signed on March 10, 1996. See www.comunidadandina.org
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them a similar legal framework. Among the normative reforms, I would like to highlight the recognition of: a) the pluri-cultural nature of the state/nation/republic, b) the rights of indigenous people
and peasant communities, c) indigenous law and special jurisdiction. Although these reforms are
not exempt from contradictions and limitations, it is fitting to interpret them from a pluralist perspective that allows for the construction of the bases of a pluri-cultural state.
THE CONTEXT OF THE CONSTITUTIONAL REFORMS
The last decade of the 20th century, what can be called a “pluralist horizon” emerged as a new model
for the multi-cultural generation.2 It occurred in the context of the international questioning of 500
years of “Discovery/Invasion,” the adoption of Agreement 169 by the International Working Group,
movements for the restoration of the rights of indigenous people, and constitutional reforms in
more than 15 Latin American countries.3 The core of these changes is that they question three basic
legacies of prior periods. First, they consider the recognition of indigenous people as political subjects and not merely as the object of a politics dictated by others; that is, as subjects with rights to
control their own institutions and self-define their own destinies. This is important for dismantling
the ideology of inferiority and the supposed need for the tutela established in the colonial period to
legitimize the political subordination and economic exploitation of native peoples. Second, they
question two central legacies of republican legality: the binomials nation-state and state-law. They
break down the idea that the state represents a homogeneous nation (with a single cultural, linguistic and religious identity), and come to recognize cultural, linguistic and legal diversity. In questioning the state’s monopoly on legal production, different degrees of legal pluralism are admitted,
recognizing the rights of indigenous and peasant peoples and communities to have their own law,
authorities, and forms of justice.
Along with the reforms which introduced pluralistic considerations comes another international tendency: the reception of the so-called “neoliberal” socio-economic model, which is based
on promoting deregulating mechanisms to smooth international transactions, freeing them from the
rules of competition and the market. The idea of the protectionist –welfare—state is abandoned. In
many countries the effect of these policies has been to facilitate the presence of multinational extraction corporations (timber, petroleum, mineral) on indigenous territories, where the state has turned
over broad powers to the companies while restricting those of the indigenous people who inhabit
the area. The conflicts between such companies and indigenous people have not been long in coming.
THE CONTENT OF CONSTITUTIONAL REFORMS IN THE ANDEAN COUNTRIES4
The Andean countries that have reformed the constitution to include some form of recognition of
indigenous law and special jurisdiction are: Colombia (1991), Peru (1993), Bolivia (1994), Ecuador
(1998) and Venezuela (1999). A comparative framework of the constitutional reforms in these countries allows us to see some common characteristics. These states, in turn, are signatories of Agreement 169 of the International Working Group on Indigenous People and Tribes in Independent
Countries.
2
3
4
During the colonial era, diversity was dealt with through a politics of subordination and segregation; during independence and the early republic through politics of assimilation or indigenous
cultural disappearance, and since the mid-20th centur y, through integrationist politics which
partially recognize indigenous rights yet retain their subordinate status. See: Marzal (1986) and
Yrigoyen (1995).
Van Coott (1999).
For this point I use and update the article: Raquel Yr igoyen, “Reconocimiento Constitucional del
Derecho Indígena y la Jurisdicción Especial En Los Países Andinos (Colombia, Perú, Bolivia, Ecuador)”, in: Revista Pena y Estado # 4. Buenos Aires, INECIP and Editorial El Puerto, 2000.
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Background: Pluralist Characterization of the Nation and the State
The first change one observes in these constitutional texts is the recognition of the pluri-cultural
and multiethnic character of the state configuration or of the nation, which is the first time that this
has occurred in the history of these republics. This is very important because it is the basis for
recognizing linguistic and legal plurality, as well as the recognition of specific indigenous rights.
The verb used in the constitutions is “recognize,” to the extent that the constitution is not “creating”
the situation of cultural diversity, but rather recognizing it. 5 By officially assuming the pre-existence
of indigenous peoples and thereby making amends for a historical negation, the constitutions also
recognize the preceding laws and open the possibility of co-existence and democratic participation.
The fifth paragraph of ILO Agreement 169 explicitly states:
Recognizing the aspirations of such people to assume control of their own institutions and
ways of life and their economic development, and to maintain and strengthen their identities, languages and religions within the framework of the States in which they live.
The Formula for Recognition of Legal Pluralism in Andean Countries
The formulas employed by the Andean countries for the recognition of customary or indigenous
law contain similar elements and scopes, with a few variations worth considering. The recognition
of indigenous legal systems turns a democratic harmonization with the national legal system and
state powers into a possibility. It also allows for the reduction of institutional violence.6
The constitutional formulas employed in Andean countries generally include the recognition
of the jurisdictional or justice-related functions of indigenous community and/or peasant authorities according to their customary law, or their own norms and procedures, within the territorial
sphere of indigenous or peasant peoples or communities. That is to say, they recognize the organs of
indigenous conflict resolution, and their norms and procedures. The limit to this recognition can be
likened—with some variations—to that of Agreement 169 of the IWG, which states that there should
be no incompatibility between customary law and the fundamental rights defined by the national
legal system, nor with internationally recognized human rights. Some constitutional formulas are
much more limited on this point, but in this case the Article takes precedence, as I analyze below.
Additionally, all of the constitutional texts make reference to a constitutional law which coordinates
or harmonizes a special jurisdiction or indigenous legal functions with the national legal system or
state powers.
Given that the Andean countries have ratified Agreement 169 of the IWG, the Agreement
should be interpreted alongside the constitutional text. It is worth noting that Article 35 of the
Agreement should be used here as an interpretive criterion, as it establishes the primacy of those
norms (including national agreements and policies) which afford the most rights and advantages to
indigenous people (IP). The analysis that follows can also be applied to a great extent to the states
5
6
1991 Colombian Constitution, Art. 7: “The state shall recognize and protect the ethnic and cultural
diversity of the Colombian nation.” 1993 Peruvian Constitution, Ar t. 2: All people have rights ,
paragraph 19: “To their ethnic and cultural identity. The state shall recognize and protect the
ethnic and cultural plurality of the nation.” Amendment to the 1994 Bolivian Constitution, Ar t. 1:
“Bolivia [shall be] free, independent, sovereign, multi-ethnic and plur icultural [...].” 1998 Ecuadorian Constitution, Ar t. 1: “Ecuador as a social state of law is sovereign, unitar y, independent,
democratic, pluricultural and m ultiethnic.” 1999 Venezuelan Constitution, Article 100: “The popular cultures which are par t of the Venezuelan identity enjoy special attention, recognizing and
respecting intercultur ality under the principle of the equality of cultures (...).”
Some object to constitutional recognition of indigenous legal systems, using the argument that
the “creation” of many systems w ould generate chaos. Yet the constitutions are not creating
an ything, but rather recognizing something which already exists in the social reality. What it
does create are bridges of understanding and articulation, and conditions for their development.
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that have ratified Agreement 169 of the IWG without including explicit constitutional reforms to
recognize indigenous law.
Agreement 169 of the IWG establishes, among other provisions:
Art. 8.2: Such peoples must have the right to preserve their own customs and institutions as
long as these are not incompatible with the fundamental rights defined by the national legal
system, or with internationally recognized human rights. Whenever necessary, procedures
should be established to resolve conflicts that may arise in the application of this principle.
Art. 9.1: To the extent that they are compatible with the national legal system and with internationally recognized human rights, the methods customarily adopted by said peoples for
the repression of crimes committed by their members must be respected.
The Point of Recognition
The first thing that stands out in Agreement 169 of the IWG and the constitutional texts of the
Andean countries (AC) is that there is recognition of three minimum elements:
a)
The system of customary norms or law, including the normative and regulatory powers of
peasant and indigenous communities and peoples (in the cases of Peru and Bolivia),
b)
The special jurisdictional function (SJ) or the capacity to impart or administer justice. This
includes the autonomous validity and efficacy of the SJ’s decisions, and
c)
The institutional system of authorities, or the power to govern with one’s own institutions of
self-government, including their own mechanisms for designating, changing and legitimating
authorities.
Before constitutional reform, the regulation of the different Andean communities only allowed for custom as a secondary source of law, operating in law’s absence and never in contradiction to it (contra legem), which could constitute a crime. By recognizing the functions of justice and
jurisdiction of the indigenous/peasant peoples and communities following their own law and applying it through their own authorities, [the constitutional reforms] explicitly admit the existence of
different organs of judicial, legislative and executive power for the production of law and legitimate violence. They admit the so-called customary law not only as a source of law, but rather as its
own law which can even be applied against [state] law. 7
This is the position of constitutional scholars Bernales and Rubio. The recognition of a special
jurisdiction “allows for the exercise of the jurisdictional function by an organ or organizations that
are distinct from the Judicial Power, limiting the principle of the unity and exclusivity of the Judicial
Power for that purpose, as enshrined in Section 1 of Article 139” (Bernales 1999: 682). Hence, when
indigenous or communal authorities exercise these jurisdictional functions, the ordinary courts must
refrain from intervening or risk acting unconstitutionally, notes Rubio. 8 In any case, the court would
have to prove that it was dealing with matters outside of the competency of special jurisdiction
(such as when events take place outside of their territorial sphere).
Special jurisdiction includes all of the powers of any jurisdiction: Notio, Iudicium, Imperium or
Coercio. That is, the authority to review relevant issues, including operative functions such as calling
witnesses, collecting evidence (Notio); the ability to resolve relevant issues using its own law
7
8
In the case of Peru this subject was explicitly debated in the Constitutional Assembly (Congreso
Constituyente): the recognition of legal pluralism would allow for the application of customary
law even when it violates [state] law, and that is why this norm merits constitutional—as opposed to merely legal—status (Diario de Debates CCD, 12 April 1993 and 23 June 1993).
“We also understand that when a process of this type exists, the ordinary tribunals should restrain themselves, even when they can act ‘de oficio,’ as f ailure to do so would be unconstitutional under this article (149)” (Rubio1999: 208).
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(Iudicium), and, finally, the ability to use force to render effective its decisions when necessary. This
includes actions that may restrain rights, such as executing detentions, demanding payment or
labor, etc. (Coercio or Imperium). 9 Colombia’s Constitutional Court has repeatedly recognized the
jurisdictional nature of indigenous people, including the afore-mentioned powers.
Acts of personal coercion derived from the exercise of the special jurisdictional function (within
its territory and according to its laws) do not, by definition, constitute the usurpation of functions
of ordinary jurisdiction, or the crime of kidnapping, illegal privation of freedom or any other type
of crime, but are rather like the arrest, communal labor, imprisonment, seizure or containment to
which people are subject under the legitimate order of ordinary jurisdiction. As recognized by the
constitution itself, this represents the exercise of a right—the right of peoples and communities to
exercise jurisdictional functions. As the exercise of a right cannot be considered a crime, not only
can its exercise not be prohibited, it must moreover be protected and legitimized. The Constitutional Court of Colombia has repeatedly recognized these powers of special jurisdiction. This clearly
includes not only general coercive powers, but also specific punitive powers which are outside of
the realm of ordinary criminal jurisdiction (San Martín: 90-91).
The Official Subject of Law
Agreement 169 of the IWG has “indigenous peoples” as the official subject of law, while the constitutions of the Andean countries mention “peoples,” “communities,” “peasant and native communities” and “peasant councils” (rondas campesinas). The constitutional text and the Agreement should
be interpreted systematically, using the interpretation most favorable to indigenous people. Based
on Agreement 169, Indigenous Peoples in general have the authority to apply their customary law
and exercise jurisdictional functions— not only in the communal instances mentioned in some constitutions (Peru). The concept of people (pueblo) is more comprehensive than that of community as it
can include forms of communal organization that are not recognized by the law or, while recognized, that do not fall within the letter of the law. This concept of people also includes supracommunal organizations, extended ethnic groups, federations or so-called “un-contacted people”
with marginal legal status.10
To understand the effects of the definition of “indigenous people,” one must consider the
right to self-definition enshrined in Agreement 169 (Article 1, section 2). If in fact the term “people”
is broader than the term “community” that does not mean that these rights should not be recognized when there are only communities and not indigenous people with all their components. It is
worth remembering that it is precisely colonial and republican history that has had the negative
effect of pulverizing many peoples into communities, diluting and transforming many of the elements of their identities. In some cases this impact includes the loss of indigenous languages, communal ownership of land (due to the expansion of haciendas during the republic), supra-communal
power structures, and the very act of calling themselves indigenous, due to the negative connotation assigned to that word. The term “indigenous” was successfully substituted by that of “peasant” (campesino) in several countries beginning mid-century and continuing until the present (Peru,
Bolivia, and other Latin American countries such as Guatemala during the agrarian reform of 1952).
It is important to realize that indigenous peoples and cultures are not static, even though concep-
9
10
See: Sánchez Botero and Jaramillo (2000: 130-131), who in turn cite the Omeba Legal Encyclopedia in their definition of jurisdiction. Volume XVII, p. 538-9, SA. Buenos Aires .
Article 1, Section 1 says: b) it follows from Agreement 169 that the same shall be applied “to
those peoples in independent countries considered indigenous due to the fact that they have
descended from populations which inhabited a country or geographic region belonging to the
country during the conquest, colonization, or establishment of current state boundaries, and
who—regardless of their legal situation—conserve all or part of their own social, economic, cultural
and political institutions.”
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tions of them tend to be. Cultures and forms of social organization are constantly transforming and
re-creating themselves. Therefore, there are many collectives—either Andean or of some other
origin—that have their own identity differentiating them from the rest of national society, with
their own legal culture and institutions, but which no longer speak indigenous languages nor maintain customary elements which are considered part of the stereotypical indigenous identity. 11
Indigenous Authorities
The constitutional charters mention the power of the authorities of indigenous/peasant peoples/
communities to exercise jurisdictional or justice-related functions. The constitutions of Colombia,
Peru and Ecuador simply speak of “authorities,” while in contrast the Bolivian constitution is more
explicit in indicating “natural authorities,” as is that of Venezuela, which speaks of “legitimate authorities.” The reference to the “authorities of indigenous peoples or communities” alludes to those
individuals or collectives (assemblies, collegiate bodies) which, according to the indigenous systems, have the authority to govern, resolve conflicts or regulate social life. This includes the authority of indigenous peoples and communities to have their own institutional system for self-governance, the organization of social order and conflict resolution—what we would call justice or
jurisdictional functions. This right, which relies on [indigenous people’s] own authorities, means
that such authorities are named or designated under indigenous rules and have the powers that
indigenous peoples assign to them. Agreement 169 of the IWG refers to the recognition of the
“institutions” of indigenous peoples, which would include not only specific authorities but also the
form of institutional organization. Here it is fitting to include also the institutional systems that are
“appropriated” by indigenous peoples, even though they are of foreign origin. State practices that
imply the nomination or imposition of certain people—indigenous or otherwise—as authorities of
indigenous peoples or communities become incompatible with this right. Moreover, they would
constitute a violation of the right to “cultural life” (article 27 of the International Pact on Civil and
Political Rights), the right to self-identification (Agreement 169 of the IWG), and the constitutional
norms recognizing the organizing autonomy of indigenous communities and peoples.
Jurisdictional Authorities
With regard to territorial, material and personal authority, the constitutions of Colombia and Peru
share, a grosso modo, the same criteria based on territorial authority. The Bolivian constitution does
not explicitly mention the topic. The Ecuadorian constitution speaks of jurisdiction with regard to
“internal conflicts” without specifying whether this is with regard to territory, people or subject.
The Venezuelan constitution limits territorial and personal authority. I will analyze the scope of
these against the backdrop of Agreement 169 of the IWG.
Territorial Jurisdiction
In principle, Agreement 169 of the IWG (Articles 13-15) recognizes that indigenous peoples have the
right to land and territory as a space for collective management. This refers to the place that they
11
The 1982 Canadian Constitution offers an interesting example of how to grant rights to collectives that do not properly fall within the category of “indigenous ,” but which have an indigenous
heritage and identity differentiating them from the rest of the national society. This is the case
with the Métis, a multiracial (mestizo) collective arising from the combination of members of the
First Nations, Inuits and Europeans, but with their own identity and demanding the application
of rights recognizing them as indigenous people. In 1982 an amendment was added to the
Canadian Constitution for the purpose of including the Métis among the aboriginal people of
Canada and recognizing the rights belonging to these people (Section 35, 2), despite the fact
that they were not properly an indigenous people. The criterion used was that the Métis consider themselves to possess their own unique cultural identity, which is neither indigenous nor
Western (Borrows and Rotman 1998: 465-497).
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occupy or utilize in some way for activities that allow for their material and cultural reproduction.
Hence, having jurisdictional authority over that which occurs within such a space is part of the very
definition of territorial rights. Jurisdiction over territory is nonetheless a minimum, not a constraint, as the reach of the indigenous jurisdiction can extend to material and personal authority. In
fact, under personal authority, the indigenous jurisdiction could have extra-territorial authority.
In the Colombian and Peruvian constitutions, the founding criterion of the indigenous jurisdiction is territorial. That is, the indigenous jurisdiction and customary law are the rule within the
territorial space of indigenous or peasant people or communities. In these countries, the constitution and laws recognize the territorial space/collective lands of indigenous, peasant or native peoples
and/or communities.
In Bolivia and Ecuador there is no specific mention of a territorial jurisdiction. Nonetheless, a
fitting interpretation of territorial rights as recognized by Agreement 169 of the IWG would be that
to the extent that matters of justice or administration and the application of norms are granted to
the authorities of indigenous people or communities, those same powers must apply within the
territories occupied and used in some way by such people. The Venezuelan Constitution expressly
points out that indigenous authorities have the right to apply “their applications of justice” within their
territory (habitat). Yet it also includes a limitation to personal authority that I will comment on later.
It is important to distinguish territorial jurisdiction in order to better understand cases and
therefore to validate the decisions of the indigenous jurisdiction and law. 12 Indigenous law and the
special jurisdiction have authority with respect to events, cases or situations, or legal relations that
occur within the territorial sphere of indigenous peoples, peasant or native communities, or peasant
councils (rondas).13 Yet the efficacy of such decisions has a national scope.14
In order to give meaning to the concept of a “territorial sphere” it is important to use Agreement 169 of the IWG, which defines territory as “the totality of the habitat of the regions that the
peoples occupy or utilize in some way” (Art. 13.2) and even includes among territorial rights “lands
that are not exclusively occupied by them, but to which they have traditionally had access for their
traditional and subsistence activities” (Art. 14.1). The territorial sphere is thus not equivalent to the
proprietary lands of indigenous people, communities or councils, but rather to the geophysical space
that they use in some way. This is important because in many countries not all indigenous peoples or
communities have title to their land or perfectly delineated borders. Moreover, there are communities that lack any legally recognized communal lands. In some cases, such as that of the Peruvian
Constitution of 1993, the sale of communal lands is permitted unless it results in the disappearance
of the community as a collective entity subject to rights.15 The important point is that it deals with
the space upon which these peoples and communities interact in some way. It is in this space, therefore, that indigenous/communal justice and law are applied. In this respect the Colombian Constitutional Court has established the precedent that the term “territory” not only refer to legally
recognized lands, but also to those habitually occupied by an indigenous community16 or “those
12
13
14
15
16
I take this definition from Sánchez et al. 1999: 132
The Colombian Constitutional Cour t has upheld the same criterion: “In Ruling ST-496 of 1996
(…) it was affirmed that one of the elements of this jurisdiction is (...) of a geographic nature,
which allows each community to judge matters which occur within its territory (...)” (Sánchez et
al. 1999: 132).
We can see the validity of the decisions of indigenous authorities throughout the national territory; for example, using the national police to return fugitives to the indigenous territory and
indigenous authorities so that the imposed punishment can be carried out in indigenous territory. See Ruling ST-349 of 1996 (Sánchez et al. 2000: 133).
In Peru, the peasant councils of farms and villages do not have communal lands but do have
delineated public spaces along the edges of the farm, village or hamlet (which is the space of
the registered families who participate in the assemblies).
“For example, this is the case with Ruling T-254 of 1994: despite the fact that the indigenous
community had not even legalized the property on the occupied land, the Court considered the
exercise of the legal capacities within the territory on which the community had settled to be a
precedent” (Sánchez et al. 2000: 133).
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partially possessed areas which comprise not only habitats and exploited lands but which also constitute the traditional realm of their economic and cultural activities” (Ruling T-384 of 1994).17
A point on the Venezuelan case: the Venezuelan constitution is the only one which expressly
reduces the territorial authority to personal authority as indicated in Article 260:
The legitimate authorities of the indigenous peoples may apply in their region (hábitat) only
those instances of justice based on their ancestral traditions which affect their members [...].
Hence, it appears to follow from this article that the indigenous jurisdiction can only be applied to cases within the [indigenous] territory or habitat that affect its members, while it cannot be
applied—even within the [indigenous] habitat—when a third party, meaning non-indigenous persons, is affected. There are two principles in conflict here. One alludes to the idea that a legal system
applies to those who participate in the same social and cultural frameworks. However, this principle
can be countered by another: the need to strengthen and appropriately guarantee the recognized
collective rights of indigenous peoples as enshrined in several articles of the Constitution. Here a
systematic interpretation becomes necessary. If the third parties carry out acts within indigenous
territory which in no way affect indigenous rights or goods, then it would not make sense for
indigenous law and jurisdiction to be enforced. Yet in the event that the third parties affect or in
some way compromise the goods, rights or relevant interests of indigenous peoples or their members, such peoples have the right to intervene to protect said rights. The Venezuelan Constitution
itself, in articles 119 and 121, recognizes the right to “existence and self-organization,” 18 such as the
right to native lands, culture, form of organization, practices and customs. Therefore, if third parties enter indigenous territories or habitat and commit acts which affect or in some way compromise the existence, customs, rights or collective goods of indigenous peoples or their members, then
the indigenous peoples have a legitimate right to intervene and defend their rights. This is not to
imply, however, that any specific mechanisms that are developed to resolve intercultural conflicts
are permissible, even if they violate human rights.
Additionally, there is also an extra-territorial competence or jurisdiction for the case of indigenous people who commit acts outside of the sphere of indigenous territory, which I will analyze
later.
Material Competence
The indigenous special jurisdiction has the competence to review all matters that it deems convenient within its territorial realm (that of the indigenous people/community) and, under certain
circumstances, even outside of that territory, with regard to certain members. Neither the constitutions of the Andean countries nor Agreement 169 establishes a limit on the subject matter or the
seriousness of crimes that can be handled under indigenous law. And where the law makes no
distinction, the interpreter cannot distinguish, cut down or reduce. This breadth is consistent with
17
18
Sánchez et al. (2000: 133).
Venezuelan Constitution, “Ar ticle 119, on the right to e xistence and autonomous organization:
The state shall recognize the existence of indigenous peoples and communities, their social,
political and economic organization; their cultures, practices and customs, languages and religions, as well as their territory and native rights to the lands that they have traditionally occupied and which are necessary to develop and guarantee their ways of life. It shall be the task
of the National Executive, with the participation of indigenous peoples, to demarcate these
lands and guarantee the right to collective ownership, which shall be inalienable, non-negotiable and non-transferable, in accordance with the Constitution and the law.”
“Article 121, on the right to indigenous cultural and ethnic identity: Indigenous peoples have
the right to maintain and develop their ethnic and cultural identity, w orldview, values, spir ituality
and sacred spaces of worship. The state shall encourage the valuation and diffusion of indigenous people’s cultural manifestations, [and recognizes] indigenous people’s rights to their
own education and a curriculum which is intercultural and bilingual and which pays heed to their
socio-cultural par ticularities, values and traditions.”
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the fact that the special jurisdiction or justice must conform with “their norms and procedures”
(Colombian Constitution), “customary law” (Peruvian Constitution), “customs and procedures”
(Bolivian Constitution), “customs or customary law” (Ecuadorian Constitution), or “ancestral traditions, norms and procedures” (Venezuelan Constitution); that is, in accordance with the ruling legal
system of the indigenous people or community. Because each legal system has its own way of classifying and reconstructing social facts according to its own values and categories, it is also up to
each system to define which social facts seem relevant to merit its intervention. Moreover, the very
construction of relevant facts is culturally conditioned, and does not necessarily coincide with or
correspond to the categories of official law, even though such categories might be utilized for reasons of comparison. This breadth of subject matters is also dealt with in Agreement 169, which
mentions, tellingly, matters referring to the ownership and use of land, methods for punishing
crimes, the form of social, political and economic organization. In summary, indigenous legal systems have the authority to oversee all matters, regardless of gravity or scope, in which they have an
interest in making such matters agree with their norms and procedures.19
A point with regard to the Venezuelan Constitution: it states that the application of instances of
justice within the [indigenous] habitat is to be “based on ancestral traditions.” This does not necessarily
mean that indigenous people are subjects of the past and cannot innovate. That is why, in the interests of developing a systematic interpretation, it is necessary to underscore the fact that the recognition of the special indigenous law and jurisdiction provided by the Constitution and Agreement
169 of the IWG does not refer to specific norms, traditions, customs or procedures, but rather to the
power to self-regulate and resolve those social conflicts that are deemed relevant.
In summary, the special jurisdiction has the power to review matters that it considers relevant, whether or not they are codified in official law, considered mild or serious, or whether they
qualify as criminal or civil under official law, as the special jurisdiction is not determined by state
law, but rather by its own law. 20 The Peruvian constitutional scholar Marcial Rubio clarifies this
point in his analysis of the extent of Article 143 of the 1993 Peruvian Constitution:
Jurisdiction shall be exercised according to customary law. This means that the customs of
the place will be applied (…). Any type of custom may be applied: those that fill a gap in the
law and those that reinforce the law because they are mentioned within it (…) but also those
that go against the law (traditionally prohibited under our law), and it is precisely for such
cases that such authorization is necessary (Rubio 1999: 200).
Criminal law scholar César San Martín also accepts this point of view in pointing out that the
special jurisdiction (also called the community, indigenous or traditional jurisdiction) constitutes an
exception to the ordinary jurisdiction, and in such cases it is the ordinary jurisdiction which must not
intervene.21 The Colombian Constitutional Court has made a similar ruling, recognizing the competence of the special jurisdiction even in cases of homicide (Sánchez et. al. 2000: 132). Any external
reduction of the matters that can be reviewed under the special jurisdiction would be counter to the
19
20
21
Some legal efforts at constitutional development in some countries (such as Peru, Argentina,
Mexico), attempt to reduce the material competence of indigenous people to fewer or less serious cases, or only to civil or criminal cases where public goods are not at stake. Nonetheless,
this limitation has no legal basis in either the constitutions or in Agreement 169 of the IWG,
which explicitly mentions criminal matters.
Bernales 1999, Rubio 1999, San Mar tín 1999, Peña 1994, Yrigoyen 1994, 1995.
“Criminal infractions fall under the ordinary jurisdiction, which is the basic or common form of
jurisdiction. All processes that are not explicitly attributed to other jurisdictions fall under the
ordinary jurisdiction, exceptions to this must be casuistically laid out in terms of scope and procedures. From this point of view there are, as noted above, three types of special jurisdiction:
first is the juvenile jurisdiction (jurisdicción tutelar [menores]). Second is military jurisdiction. Third
is traditional jurisdiction, which is dedicated to the application of customary criminal law for matters deemed criminal under the law which are committed by members of the Native and Peasant
Communities within their territory” (San Martín 1999: 90-91).
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BEYOND LAW Nº 27
constitutional ruling and would affect the fulfillment of Agreement 169 of the IWG. In any case, the
special jurisdiction itself can decide, if it sees fit, to delegate matters or cases to the ordinary jurisdiction for review, or to ask for military or police support. The lack of legal arguments establishing
limits to the jurisdictional competence of indigenous peoples reflects the persistence of the colonial
idea that the indios only have the competence to handle small or marginal cases that do not affect the
law.
Personal Competence
Personal competence has only been explicitly mentioned in one constitution. The wording of the
Colombian and Peruvian Constitutions can be understood as meaning that the indigenous jurisdiction extends to all individuals within indigenous territory, such that it in effect establishes the basis
for territorial competence. In Bolivia it depends on what is established by “their customs and procedures.” And in Ecuador it depends on what their own law defines as an “internal matter,” hence
there are cases in which indigenous people and communities consider a case to be internal when it
takes place within their territory or affects indigenous individuals or goods, even when such cases
involve the participation of non-indigenous people. In almost every country the communities are
mixed, the migration rates are high and the inter-ethnic relations are frequent and complex.
The right to one’s own law has two bases. One, which might be characterized as cultural, is
the fact of the individual’s participation in a certain cultural system. In principle each human person
or group has the right to be judged within the normative system pertaining to their culture. The
other—which may be characterized as political—deals with the protection of a collective’s power to
control its institutions and determine what happens within its territory, thereby guaranteeing its
reproduction as a collective and the rights of its members. This second basis avoids the possibility
that people who do not belong to indigenous peoples or communities (i.e., non-indigenous) might
commit harmful acts within the indigenous territory claiming as a defense that they cannot be
judged under such a system. In general, harmful acts that occur within indigenous communities and
are committed by non-indigenous actors usually result in no reparation at all as such individuals try
to free themselves from the control of the indigenous systems and are beyond the reach of the state.
Moreover, the intervention of state mechanisms in indigenous peoples and communities has chipped
away at indigenous legal systems, thereby affecting the very life of the community. The constitutions of the Andean countries show a clear commitment to protect the cultural and biological existence of indigenous peoples, as well as to strengthen indigenous law. And Agreement 169 of the IWG
highlights among its considerations, “the aspirations of the Indigenous Peoples to control their
institutions.” Here it is clear that indigenous law is strengthened by affirming its application over
indigenous and non-indigenous people throughout indigenous territory, with the goal of protecting
indigenous rights and goods. This allows for the strengthening of indigenous community life and
avoids the intervention or presence of the police, judges, or other agents of state law, who for
centuries have weakened indigenous peoples and communities. This in turn is the operating logic of
any legal system. In summary, when we examine the constitutional goal of recognizing and strengthening the special jurisdiction within the [indigenous] territorial realm, we do not find arguments
which a priori exclude from judgment any non-indigenous individuals who commit punishable acts
within communal territory. 22
22
This point is a matter of discussion in Colombian jurisprudence as well as in other countries. It
attempts to take into account whether the outsiders were familiar with indigenous customs. In
practical terms, the communities apply some rules to outsiders, especially with regard to compensation for damages, but not others that depend on a person’s participation in the culture
and the community. Cultural belonging is an impor tant criterion for judging any person—indigenous or not—but it should not be used as a pretext for outsiders to evade responsibility for
damages done to indigenous/peasant peoples/communities.
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Another point of contention with regard to personal competence involves the voluntary or
obligatory nature of the system for indigenous people. That is, whether indigenous people who do
not wish to be subjected to the jurisdiction are required to do so, or whether they can turn to
another system. The different Andean constitutions clearly establish that the authorities of the indigenous people and communities have the power to apply indigenous law and the special jurisdiction or indigenous justice. That is, the authority rests in said people and in their institutions for
collective decision-making. It is not up to individuals to decide whether or not they will be subjected to indigenous law or justice. As with every legal system, the indigenous legal systems have
areas of obligatory intervention—such as when goods that the community considers part of the
public interest are affected—and optional areas of intervention—such as in individual or family
matters—, yet the system as a whole is obligatory and is imposed on individuals; otherwise the
very validity of the system itself would be at stake. Agreement 169 of the IWG establishes the rights
of indigenous people (IP) to apply their own methods to the prosecution of crimes committed by
their members (Article 9.2). It establishes, on the one hand, the rights of IP members before the
state, to be judged by the methods of their own people rather than according to state law. Yet
because the responsibility of IP is to the collective rather than to individuals, the system is not
voluntary for people as individuals; thus individuals are in no position to legally flee from their
system when they find it “inconvenient” to pay for a mistake, work, or comply with a sanction. In
any case, under the special jurisdictional power of indigenous people, the people themselves do
have the ability to consider under what circumstances they choose to intervene, which cases they
judge directly, or even when they might request the collaboration of the police or ordinary jurisdiction. The rulings of the Colombian Constitutional Court are consistent on this point, maintaining
that the community—not individuals—has the power of jurisdiction, and that its members cannot
escape from it when it is convenient (i.e., to flee sanction). The special jurisdiction also includes the
right to rely on the help of the public forces (police) when some individuals attempt to flee from
indigenous justice without paying for the damages caused within the community.23
Another subject is that of personal competence with regard to indigenous people outside of
the indigenous territory/habitat. Here the cultural basis for law would apply. In dealing with situations or events that only affect indigenous people but which take place outside of communal territory (for example a conflict between a couple or an issue within a family), it is clear that indigenous
law and jurisdiction can intervene, as the cultural and normative framework is still in effect for such
persons. In such cases it would be up to the indigenous jurisdiction to decide whether or not to
intervene. In such cases an appropriate parallel can be made to international law, as there are civil
and even criminal cases in which national systems have extra-territorial powers in order to define
rights and obligations or sanctions, such as family relations, inheritance and succession, and some
types of crime. I insist that this depends on the decision of the indigenous bodies as to whether or
not to decide to intervene. It is sufficient for the affected person to demand the intervention of his
or her system and to question the intervention of the ordinary jurisdiction, when this is part of the
legal practice of a certain community or people. If the special jurisdiction is ready to intervene, the
ordinary jurisdiction must step aside.
In the cases of the competence of the ordinary jurisdiction, including those in which acts
occurred outside of the territorial realm, [the law] is required to consider the cultural conditioning
of the indigenous actors during judgment and sanction. This could conceivably lead to an indigenous territorial exemption and affect the goods and rights of third parties, including the attenua-
23
This is the ruling of the Colombian Constitutional Cour t. To guarantee the coercive power of the
indigenous special jurisdiction (ius imperium), the Court has ordered the Colombian police to
collaborate with indigenous authorities in the capture of those who have fled indigenous territory as a wa y to evade sanction: Ruling ST-349 of 1996. See: Sánchez Botero et al. (2000:
142).
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BEYOND LAW Nº 27
tion of punishment, when the actions are not considered reprehensible in the relevant indigenous
culture.24 Two principles are at work here. In the first place, a person cannot be condemned for
committing acts that are acceptable within his or her culture, as he or she can offer no real defense.
In the second place, when dealing with issues that are differently valued by different cultures, the
equal dignity of cultures prevents one cultural orientation from criminalizing a practice that is culturally accepted by other peoples. In any case, there is a vast task here for intercultural dialogue
and agreement.
Human Rights: Limit or Standard
The only limit to customary law established by Agreement 169 (Article 8.2) is the non-violation of
fundamental and human rights. In this sense, those who attempt to suggest that the special jurisdiction should be subordinated to the ordinary jurisdiction, or that it cannot interfere with the ordinary jurisdiction, or that it should be controlled or reduced, are using an interpretation that is not
in harmony with either the letter or the spirit of Agreement 169, nor with the principles of a systematic, teleological and progressive interpretation.
The Peruvian Constitution establishes a similar limit in Article 149, which indicates that the
exercise of special jurisdictional powers should be done in conformity with customary law “as long
as it does not violate the fundamental rights of the individual.” The constitutions of the other
Andean countries tend to be more restrictive. Those of Colombia, Bolivia, Ecuador and Venezuela
limit the recognition of the special jurisdiction (Colombia) or of indigenous justice (Bolivia), functions of justice (Ecuador) or applications of justice (Venezuela) with regard to the constitution and
its laws. The Venezuelan Constitution also adds the notion of public order (orden público) as an
exception. In such a case, it is obvious that the indigenous special jurisdiction will be severely limited. Given that such limitations are less favorable to indigenous communities than the provision of
Agreement 169 of the IWG, the norm which concedes more rights and advantages to such communities is the one which takes effect, as laid out by Article 35 of Agreement 169 of the IWG, which has
legal standing in all of the Andean countries. Along these lines, the Colombian Constitutional Court
has upheld a ruling that if the special jurisdiction had to respect the entire constitution and all of the
laws, it would become void of meaning, hence it need only respect what are called the fundamental
minimums: the right to life (no killing), physical integrity (no torture), freedom (no enslavement),
and the predictability of the sanction as a principle of due process.25
I argued above that the exercise of jurisdictional functions can involve certain legitimate, legal
restrictions on rights (detentions, investigations, sanctions, some forms of personal coercion, etc.)
which do not constitute a crime or violation of human rights per se. If a certain measure violates
human rights, then that measure should be analyzed, but the mere use of the special jurisdiction by
indigenous communities and authorities does not itself constitute a violation.
Intercultural Interpretation of Human Rights
In the different constitutions of the Andean countries, the state recognizes the pluri-cultural character of the nation/state/republic and, consequently, the right to cultural diversity. Moreover, it recognizes legal pluralism, with the corresponding right to an indigenous/peasant special jurisdiction
(with its legal and jurisdictional powers). Therefore, the definition and interpretation of human
rights cannot remain in the hands of a single cultural orientation nor a single institutional system
without jeopardizing the right to diversity. Human rights must be defined and interpreted based on
24
25
This is dealt with in Article 15 of the Peruvian Criminal Code of 1991, under the heading of the
error of culturally conditioned understanding. It is also established by Agreement 169 de la
IWG (Art. 9, section 2: 10 and 12).
See: Sánchez Botero (1998) and Sánchez et al. (2000).
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intercultural dialogue. Thus, any perceived violation must be handled within the Andean countries
themselves. Under no circumstances can the mere exercise of the special jurisdiction, where appropriate, be considered a violation of human rights, given that it is a constitutional right.
In the case of possible conflicts between customary law and human and fundamental rights,
Agreement 169 of the IWG states that adequate procedures must be established to resolve such conflicts (Article 8.2). Such procedures have not been established and must be created in consultation
with indigenous people (Article 6). The objective of such procedures would be to guarantee an
intercultural interpretation of the events and of the law itself in order to honor the recognition of
the right to diversity as laid out in the different constitutions of the Andean countries. One possibility might be the creation of mixed courts composed of state judges and indigenous or community
authorities who employ moderate rules to resolve apparent conflicts between the special jurisdiction and human rights (rather than based on a single law: either state law or customary law), trying
to understand the different positions (from their own cultural frameworks) and promoting arrangements to prevent violence and the violation of human rights (attending to the demands and
needs of all sides).26 The goal is for the indigenous/communal peoples and authorities not to remain
as mere bystanders of an ever-distant exercise of jurisdictional power, passively submitting to the
interpretation of ordinary judges, but rather for jurisdictional authorities to be truly vested with all
the powers granted to them by the constitution. The construction of a pluri-cultural state should
start with respect for the equal dignity of differences and be based on dialogue and negotiation.
This is the position advanced by Will Kymlicka, one of the foremost advocates of the theory of
multicultural citizenship, who says that in multicultural situations involving indigenous people, national minorities, or cultures with a certain level of self-governance, the fact that such groups submit to a human rights framework does not necessarily mean that they must answer to national law
or national courts, but rather that they can create courts with equitable participation from both the
federal jurisdiction and said indigenous peoples or minorities.27
Coordination
The different constitutions establish that there should be a law of coordination between the special
jurisdiction and the national legal system (Colombia), judicial power (Peru) or national justice system (Venezuela). Ecuador and Bolivia use the term “harmonization” (compatibilización).28 First, it is
important to point out that this is a law of “coordination” and not of “regulation,” as some have
mistakenly understood. The validity of the special jurisdiction is not subject to this law, as repeatedly clarified in the decisions of the Colombian Constitutional Court, whose constitution is the
basis for other Andean constitutions.29 Second, it is important to point out that the word “coordination” establishes a horizontal relationship rather than one of control, revision, or some form of
subordination. The point is to establish a system that allows for a harmonious and peaceful relationship between the special jurisdiction and the ordinary jurisdiction under democratic—not subordi-
26
27
28
29
I have addressed this proposal in other works (Yrigoyen 1994, 1995 and 1999). The make up
of these mixed tribunals does not exclude the support of anthropological or community-based
experts. A similar proposal has been made by the Peasant Councils in their regional (2000)
and national (2001) meetings.
Kymlicka questions the assumption that indigenous peoples must submit to the constitution or
to federal courts composed entirely of non-indigenous. He suggests “the creation of a bilateral
human rights tribunal (…) in which both parties [would be] equally represented” (Kymlicka 1996:
232-3).
I offer some possible suggestions for a Law of Coordination in Yrigoyen (1994 and 1999).
“The right to administer justice within their territory and to rule according to their own norms and
procedures (…) is immediately effective and requires no further ruling by the Colombian state
to be recognized.” Ruling of the Colombian Constitutional Court: T-254 of 1994, C-139 of 1996,
C-349 of 1996, T-496 of 1996 and T-23 of 1997 (Sánchez et al. 2000: 118). This is also the
position of Rubio 1999, Bernales 1999, Yrigoyen 1994, 1995.
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nate—conditions. One of the needs for coordination is the establishment of rules on the resolution
of conflicts over competence, mechanisms for cooperation and mutual aid. Third, within a democratic mindset of intercultural dialogue, the law must establish procedures to resolve perceived
conflicts between human rights and the special jurisdiction. Yet this coordinating power does not
automatically bestow upon the authorities of the ordinary jurisdiction the power to control or oversee the authorities of the special jurisdiction. Fourth, the law would also have to create adequate
mechanisms for direct coordination between the special jurisdiction and different public entities
such as the police, the Public Ministry, local governments, the Public Registry (for example, to record
the special jurisdictional decisions which modify property registries or individual records). Fifth,
the law must create a normative adjustment between the constitution, Agreement 169 of the IWG
and all other national regulations, so as to further develop aspects that are not clear in the constitution. While the law can in no way reduce or restrict rights, it can broaden or develop them. This law
would have to be discussed with indigenous people in order to have legal status (according to
Article 6 of Agreement 169 of the IWG) and legitimacy (consensus), as a first step toward the
construction of a pluri-cultural state.
REFERENCES
ALERTANET- Portal de Derecho y Sociedad/ Portal on Law & Society. www.derechoysociedad.com .
América Indígena (1999). Pluralismo Jurídico y Derechos Indígenas en América Latina. Mexico: Instituto Nacional Indigenista,
Vol. LVIII, 1-2.
Bernales, Enrique (1999). La Constitución de 1993. Análisis comparado. Lima: Constitución y Sociedad ICS.
Borja, Emiliano (2001). Introducción a los Fundamentos del Derecho Penal Indígena. Valencia: Tirant lo Blanch.
Borrows, John and Leonard Rotman (1998). Aboriginal Legal Issues. Markham, Ontario: Butterworths.
Clavero, Bartolomé (2000). Ama Llunku, Abya Yala: Constituyencia Indígena y Código Ladino por América. Madrid: Centro
de Estudios Constitucionales.
Congreso Constituyente Democrático (1993). Actas del Debate. 29a. “P” Sesión permanente (vespertina), 20 July1993.
Hurtado Pozo, José (1995). Impunidad de personas con patrones culturales distintos. Revista Derecho Nº 35. Lima: Facultad
de Der echo, PUCP.
Kymlicka, Will (1996 ). Ciudadanía Multicultural. Barcelona: Paidos.
Marzal, Manuel (1986). Historia de la Antropología Indigenista: Mexico y Perú. Lima: PUCP.
Mesa de Pluralidad Jurídica y Derechos Étnicos (1994). Pluralidad Cultural y Derechos Étnicos. Propuesta de reforma
constitucional. In Desfaciendo Entuertos, N. 3-4.
Rubio Correa, Marcial (1999). Estudio de la Constitución Política de 1993 . Volume V. Lima: PUCP.
Sánchez Botero, Esther (1998). Justicia y Pueblos Indígenas de Colombia. Bogota: UNC and UNIJUS.
Sánchez, Esther and Isabel C. Jaramillo (2000). La Jurisdicción Especial Indígena. Bogota: Universidad Nacional.
San Martín, César (1999). Derecho Pr ocesal Penal. Vol. I. Lima: Ed. Grijley.
Santos, Boaventura de Sousa (1998). La Globalización del Derecho. Bogota: ILSA.
——(1994). Entrevista. In Desfaciendo Entuertos , 3-4, pp. 27-31.
——(1991). Estado, Derecho y Luchas Sociales. Bogota: ILSA.
Van Cott, Donna Lee (1999). Constitutional Reform and Ethnic Rights in Latin America. New York: St. Martin Press.
Yrigoyen Fajardo, Raquel (2000a). “Tratamiento Judicial de la Diversidad cultural y la jurisdicción especial en el Peru.”
In XII Congreso Internacional. Der echo Consuetudinario y Pluralismo Legal: Desafíos del Tercer Milenio . Arica:
Universidad de Chile and Universidad de Tarapacá (272-285).
——(2000b). “Un balance de la post-reforma: Constitución Pluralista, Judicatura Monista.” In Institute of Latin American Studies, University of London. April, 2000.
——(1999a). Pautas de Coordinación entre el Derecho Indígena y el Derecho Estatal. Guatemala: Fundación Myrna Mack.
——(1999b). “Reconocimiento constitucional del derecho indígena y la jurisdicción especial en los Países Andinos
(Colombia, Perú, Bolivia, Ecuador).” In Revista Pena y Estado, 4.
——(1996a). “Control Penal y Diversidad Étnico-cultural.” In Diego, María et al (coord.). Conflicto Social y Sistema Penal.
Salamanca: COLEX and Universidad de Salamanca.
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——(1995a). De la Criminalización de la diferencia cultural a la legitimación de un orden pluralista (Perú, Países Andinos).
Master ’s Thesis in the Penal System and Social Problems. Bar celona: Universidad de Barcelona.
——(1995b). Constitución, Jurisdicción Indígena y Derecho Consuetudinario. Lima: CEAS and Desfaciendo Entuertos.
——(1994). “Apuntes sobre el artículo 149 de la Constitución Peruana: Alcances, límites, consecuencias y retos.” In
Desfaciendo Entuertos, 3-4, pp. 19-26.
——(1993). Las Rondas Campesinas de Cajamarca. Una aproximación desde la antropología jurídica. Lima: PUCP.
——(1992). “Pluralidad Jurídica y Propuestas de Reforma Constitucional.” In Primer Taller Nacional sobre Rondas
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ILSA - Instituto Latinoamericano de Servicios Legales Alternativos. http:/www./ilsa.org.co/
46
-Considering…the evolution of
international law since 1957 and the
situation of indigenous peoples (…)
it is advisable to adopt new
international norms regarding this
issue, with the aim of eliminating the
orientation towards assimilation of
the previous norms;
-Recognizing the desire of these
people to assume control of their
own institutions and ways of life and
of their economic development and
to maintain and strengthen their
identities, languages, religions,
within the boundaries of the state in
which they live.
Art. 8.2: Such peoples must have the
right to conserve their own customs
and institutions as long as these are
not incompatible with the fundamental rights defined by the national
legal system, or with internationally
recognized human rights. Whenever
necessary, procedures should be
established to resolve conflicts that
might arise in the application of this
principle.
Art. 9.1: To the extent that they are
compatible with national legal
system and with internationally
recognized human rights, the
methods traditionally employed by
such people for the repression of
crimes committed by their members,
must be respected.
2.
Text recognizing
Legal Pluralism
a)Indigenous and
Customary Law
b) the Indigenous
Jurisdiction and
c) Indigenous
Institutions
(independent
authorities and
institutions)
AGREEMENT 169
OF THE IWG
1.
BASIS:
State recognizes the
pluri-cultural nature
of the nation or it is
defined as such.
POINTS
OF COMPARISON
Ar t. 246: The authorities of the indigenous
peoples can exercise
jurisdictional powers
within their territory in
accordance with their
own norms and
procedures whenever
these are not contrary
to the Constitution and
laws of the Republic.
The law will establish
the ways of coordinating this special
jurisdiction with the
national legal system.
Ar t. 7: The state
recognizes and
protects the cultural
and ethnic diversity of
the Colombian nation.
1991 POLITICAL
CONSTITUTION
OF THE REPUBLIC
OF COLOMBIA
Ar t. 149: The authorities of the peasant and
native communities,
with the support of the
peasant councils
(rondas), can exercise
jurisdictional powers
within their territory in
accordance with
customary law as long
as this does not violate
fundamental rights of
the person. The law
establishes forms of
coordination of such
special jurisdiction with
the justices of the
peace and with the
other instances of the
judicial power.
Art. 2: Everyone has
rights, inc. 19:To their
ethnic and cultural
identity. The state
recognizes and
protects the ethnic
and cultural plurality
of the nation.
1993 POLITICAL
CONSTITUTION
OF THE REPUBLIC
OF PERU
Art. 171: (...)
The natural authorities
of the indigenous and
peasant communities
can enforce the
administration and
application of their
norms as an alternative solution to
conflicts, in accordance with their
customs and procedures whenever these
are not contrary to the
Constitution and its
laws . The law will
harmonize these
functions with the
duties of the state.
Art. 1: Bolivia—free,
independent, sovereign, multiethnic and
pluri-cultural, and
constituting a unitary
Republic— adopts for
its government the
democratic, representative form based on
the solidarity of all
Bolivians.
1994 REFORMS
TO THE POLITICAL
CONSTITUTION
OF THE REPUBLIC
OF BOLIVIA
RECOGNITION OF LEGAL PLURALISM AND INDIGENOUS LAW INTHE ANDEAN COUNTRIES
Ar t. 100: The popular
(base) cultures that
constitute the
Venezuelan identity
merit special attention,
recognizing and
respecting [their] intercultural [nature] under
the principle of the
equality of cultures
(...).
Art. 260: The legitimate
authorities of the
indigenous peoples
can apply instances of
justice within their
territory based on
ancestral traditions
according to their own
norms and procedures
which only affect their
members, as long as
they are not contrary
to this Constitution, the
law, and public order.
The law will determine
the form of coordination of this special
jurisdiction with the
national judicial
system.
Art. 191: (...)
The authorities of the
indigenous peoples
exercise legal
functions, applying
their own norms and
procedures for the
resolution of internal
conflicts, in accordance with customary
law, whenever these
are not contrary to the
Constitution and its
laws . The law will make
these functions
compatible with the
national judicial
system.
1999 POLITICAL
CONSTITUTION
OF THE REPUBLIC
OF VENEZUELA
Art. 1. Ecuador is a
social state of law
which is sovereign,
united, independent,
democratic, pluricultural and
multiethnic. Its
government is
republican, presidential, elective, representative, responsible,
alternative, [promotes]
participation and has a
decentralized
administration (...).
1998 POLITICAL
CONSTITUTION
OFTHE REPUBLIC
OF ECUADOR
BEYOND LAW Nº 27
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47
1. Their own norms
and procedures
2. Indigenous people’s
authorities
3. Jurisdictional
functions.
1. Customary law,
2. Authorities of the
communities and
Peasant Councils/
Indigenous peoples
3. Jurisdictional
functions.
1. In general: not specifically
mentioned (art. 8.2)
2. With regard to repression of
crimes: members of indigenous
groups (art. 9.1).
7.
Personal
Competence
No mention of whether
this applies only to
indigenous people.
Only establishes a
territorial criterion
without limits on
material/subject.
Important to understand that applies to
everyone within
indigenous terr itory.
1. All issues, unlimited
All issues, unlimited.
2. Including criminal subjects:
“repression of crimes committed by
their members.”
6.
Material
Competence
Within their territorial
realm: the indigenous
people’s territory.
Not explicitly mentioned.
No mention of whether
limited to peasants and
natives. Only establishes a territorial
criterion without limits
on subjects. Can be
understood as
applying to everyone
within peasant/
indigenous terr itory.
All issues, unlimited.
Within their territorial
realm: the territory of
peasant communities,
native communities,
peasant councils and
indigenous peoples.
1. Indigenous people in independent 1. Indigenous peoples. 1. Peasant Communities
countries
2. Native Communities
2.Tribal peoples.
3. Peasant Councils
(Rondas Campesinas)
4. Through ratification
of Agreement 169 of
the IWG, also:
Indigenous peoples.
1. Their own customs/ customar y
law.
2. Their own institutions
3. Their own methods for the control
of indigenous peoples (including
methods for control of crime).
5.
Territorial
Competence
4.
The beneficiaries
of rights
and recognition
3.
Subject
of recognition
and respect
1. Customary law,
norms, customs and
procedures
2. Indigenous people’s
authorities
3. Functions of justice.
No mention of whether
limited to indigenous.
Only establishes a
territorial criterion
without limits on
subject.
Can be understood as
applying to everyone
within peasant/
indigenous terr itory.
All issues, unlimited.
Within their territorial
realm: territory of
indigenous and
peasant communities
and indigenous
peoples.
Indigenous Peoples.
1. Traditional and
ancestral norms and
procedures
2. Indigenous people’s
authorities
3. Application of
instances of justice.
Speaks of “internal
conflicts” (not explicit
whether this refers to
territory, subjects or
issues).
All issues, unlimited.
Only affects their
members (indigenous
peoples).
All issues, unlimited.
Not indicated, although Within their territory.
there is mention of
“internal conflicts”
(unclear whether this
pertains to issues,
subjects of the law, or
territory).
1. Indigenous commu- Indigenous peoples.
nities
2. Peasant communities
3. Through ratification
of Agreement 169 of
the IWG, also:
Indigenous peoples.
1. Their own norms,
customs and procedures
2. Natural authorities
of communities/
indigenous peoples
3. Powers to administer and apply their own
norms as an alternative solution to
conflicts.
BEYOND LAW Nº 27
ILSA - Instituto Latinoamericano de Servicios Legales Alternativos. http:/www./ilsa.org.co/
48
The law shall determine the form of
coordination of:
a) the special
jurisdiction with
b) the national legal
system.
There is still no law.
Chapter III of Judicial
Power and the Justice
System. Section One:
General Provisions.
The law will harmonize:
a) the functions of
justice of indigenous
peoples, with
b) those of the national
legal system
There is still no law.
Section VIII of Judicial
Function.
The only article on
judicial power.
Systematic treatment.
The law will harmonize:
a) these functions
(administration and
application of their
norms), with
b) the responsibilities
of the powers of the
state.
There are several
norms, but no specific
law.
Chapter referring to
the Judicial Function.
Located at the end of
chapter.
The law of coordination:
a) of special jurisdiction, with
b) justices of the
peace and the judicial
power.
It is still not a law.
Chapter referring to
judicial power. Located
at end of chapter. Also
calls it special
jurisdiction. Not a very
systematic treatment.
Ratified in 1993 (legally Ratified in 1992
deposited in 1994)
- Article 9, section 1
The chapter that
refers to the Jurisdictional Function
highlights two types of
jurisdiction:
a) ordinary
b) special or indigenous, within the
autonomous regime of
the indigenous
peoples.
Ratified in 1991
10.
Systematic location
ILSA - Instituto Latinoamericano de Servicios Legales Alternativos. http:/www./ilsa.org.co/
11.Ratification of
Agreement 169
Part I: General Policy.
- Article 8, section 2
Ratified in 1998
Ratified May 22, 2002.
Norms and procedures cannot be
contrary to
1. Constitution, and
2. Laws
3. Public order.
The law will establish
forms of coordination:
a) of special jurisdiction, with
b) the national legal
system.
This has not been
reglamented by law,
but there is jurisprudence.
Norms and procedures of Customary
Law cannot be
contrary to:
1. Constitution and
2. Laws.
(...) [S]hould establish mechanisms
9.
Law of Coordination to resolve conflicts in the application
of the principle of incompatibility
or Harmonization
between
a) the conservation of their own
customs and institutions and
b) fundamental human rights.
1. In general, that their customs and
institutions not be incompatible:
a) with the fundamental laws
recognized by the national judicial
system, and
b) with internationally recognized
human rights.
2. In criminal matters, methods of
control must be compatible with:
a) the national legal system, and
b) internationally recognized human
rights.
Customs and
procedures cannot be
contrary to:
1. Constitution and
2. Laws of the
Republic.
1999 POLITICAL
CONSTITUTION
OF THE REPUBLIC
OF VENEZUELA
Must not violate:
1. The fundamental
rights of the person.
1998 POLITICAL
CONSTITUTION
OFTHE REPUBLIC
OF ECUADOR
Norms and procedures cannot be
contrary to
1. Constitution and
2. Laws of the
Republic.
8.
Limits
1991 POLITICAL
CONSTITUTION
OF THE REPUBLIC
OF COLOMBIA
1994 REFORMS
TO THE POLITICAL
CONSTITUTION
OF THE REPUBLIC
OF BOLIVIA
AGREEMENT 169
OF THE IWG
1993 POLITICAL
CONSTITUTION
OF THE REPUBLIC
OF PERU
POINTS
OF COMPARISON
RECOGNITION OF LEGAL PLURALISM AND INDIGENOUS LAW INTHE ANDEAN COUNTRIES
BEYOND LAW Nº 27
49