Legal Pluralism, Indigenous Law and the Special Jurisdiction in the Andean Countries

8/12/2019 Legal Pluralism, Indigenous Law and the Special Jurisdiction in the Andean Countries

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Legal Pluralism, Indigenous Lawand the Special Jurisdictionin the Andean Countries

Raquel Yrigoyen Fajardo*

The recognition of indigenous peoples and of their right to control their institu-

tions, habitat and territories, to self-government, legal systems, authorities, iden-

tity, languages and culture, as well as their right to participate in the regional and

national plans that may affect them, has supposed a long, as of yet inconclusive,

struggle in Latin America. The 16 thcentury ideology of the natural inferiority of the

indigenous people, the republican heritage of the notion of the nation-state and

the state-law identity of the 19thcentury have impeded the full recognition of the

dignity of different peoples and cultures and of the diverse indigenous legal sys-

tems. 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 coun-

tries 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 cultureas wellas their right to participation in the regional and national plans that might affect themhas entaileda long and as of yet inconclusive struggle in Latin America. The colonial reality put the nativepeoples 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 theimposition, still remains strong beneath the surface of many political parties on the continent. Onthe other hand, the republican heritage of the idea of the nation-state and the identification of statelaw since the 19thcentury have hindered the full recognition of the equal dignity of different peoplesand cultures, as well as of the diverse indigenous legal systems, which have had to survive underconditions of illegality and subordination. This situation has been contested by different indig-enous as well as by peasant movements during the past decade, as a result of important normativeshifts, which I wish to address here.

In the final decade of the 20thcentury there was a tendency that resembled the constitutionalreforms 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 Inter-national Working Group on Indigenous People and Tribes in Independent Countries (OrganizacinInternacional del Trabajo sobre Pueblos Indgenas y Tribales en Pases Independientes de 1989), which gave

* Ph.D. Candidate , Universi ty o f Barce lona. Ed itor, Porta l of Law and Socie ty (h t tp : / /

www.alertanet.org).1 Cartagena Accord, signed on March 10, 1996. See www.comunidadandina.org

ILSA - Instituto Latinoamericano de Servicios Legales Alternativos. http:/www./ilsa.org.co/


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them a similar legal framework. Among the normative reforms, I would like to highlight the recog-nition of: a) the pluri-cultural nature of the state/nation/republic, b) the rights of indigenous peopleand peasant communities, c) indigenous law and special jurisdiction. Although these reforms arenot exempt from contradictions and limitations, it is fitting to interpret them from a pluralist perspec-tive that allows for the construction of the bases of a pluri-cultural state.

THE CONTEXT OF THE CONSTITUTIONAL REFORMS

The last decade of the 20thcentury, what can be called a pluralist horizon emerged as a new modelfor the multi-cultural generation.2 It occurred in the context of the international questioning of 500years 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 inmore than 15 Latin American countries.3 The core of these changes is that they question three basiclegacies of prior periods. First, they consider the recognition of indigenous people as political sub-jects and not merely as the object of a politics dictated by others; that is, as subjects with rights tocontrol their own institutions and self-define their own destinies. This is important for dismantlingthe ideology of inferiority and the supposed need for the tutelaestablished in the colonial period to

legitimize the political subordination and economic exploitation of native peoples. Second, theyquestion two central legacies of republican legality: the binomials nation-state and state-law. Theybreak down the idea that the state represents a homogeneous nation (with a single cultural, linguis-tic and religious identity), and come to recognize cultural, linguistic and legal diversity. In question-ing the states 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 interna-tional tendency: the reception of the so-called neoliberal socio-economic model, which is basedon promoting deregulating mechanisms to smooth international transactions, freeing them from therules of competition and the market. The idea of the protectionist welfarestate is abandoned. In

many countries the effect of these policies has been to facilitate the presence of multinational extrac-tion corporations (timber, petroleum, mineral) on indigenous territories, where the state has turnedover broad powers to the companies while restricting those of the indigenous people who inhabitthe 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 ofindigenous 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 coun-tries allows us to see some common characteristics. These states, in turn, are signatories of Agree-ment 169 of the International Working Group on Indigenous People and Tribes in IndependentCountries.

2 During the colonial era, diversity was dealt with through a politics of subordination and segrega-

tion; during independence and the early republic through politics of assimilation or indigenous

cultural disappearance, and since the mid-20th century, through integrationist politics which

partially recognize indigenous rights yet retain their subordinate status. See: Marzal (1986) and

Yrigoyen (1995).3 Van Coott (1999).4 For this point I use and update the article: Raquel Yrigoyen, Reconocimiento Constitucional del

Derecho Indgena y la Jurisdiccin Especial En Los Pases Andinos (Colombia, Per, Bolivia, Ec-

uador), 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-culturaland multiethnic character of the state configuration or of the nation, which is the first time that thishas occurred in the history of these republics. This is very important because it is the basis forrecognizing 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 creatingthe situation of cultural diversity, but rather recognizing it. 5 By officially assuming the pre-existenceof indigenous peoples and thereby making amends for a historical negation, the constitutions alsorecognize 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 andways of life and their economic development, and to maintain and strengthen their identi-ties, 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 recognitionof indigenous legal systems turns a democratic harmonization with the national legal system andstate powers into a possibility. It also allows for the reduction of institutional violence.6

The constitutional formulas employed in Andean countries generally include the recognitionof the jurisdictional or justice-related functions of indigenous community and/or peasant authori-ties according to their customary law, or their own norms and procedures, within the territorialsphere of indigenous or peasant peoples or communities. That is to say, they recognize the organs ofindigenous conflict resolution, and their norms and procedures. The limit to this recognition can belikenedwith some variationsto that of Agreement 169 of the IWG, which states that there shouldbe no incompatibility between customary law and the fundamental rights defined by the nationallegal 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 coordinatesor harmonizes a special jurisdiction or indigenous legal functions with the national legal system orstate powers.

Given that the Andean countries have ratified Agreement 169 of the IWG, the Agreementshould be interpreted alongside the constitutional text. It is worth noting that Article 35 of theAgreement should be used here as an interpretive criterion, as it establishes the primacy of thosenorms (including national agreements and policies) which afford the most rights and advantages toindigenous people (IP). The analysis that follows can also be applied to a great extent to the states

5 1991 Colombian Constitution, Art. 7: The state shall recognize and protect the ethnic and cultural

diversity of the Colombian nation. 1993 Peruvian Constitution, Art. 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 pluricultural [...]. 1998 Ecua-

dorian Constitution, Ar t. 1: Ecuador as a social state of law is sovereign, unitar y, independent,

democratic, pluricultural and multiethnic. 1999 Venezuelan Constitution, Article 100: The popu-

lar cultures which are part of the Venezuelan identity enjoy special attention, recognizing and

respecting interculturality under the principle of the equality of cultures (...).6 Some object to constitutional recognition of indigenous legal systems, using the argument that

the creation of many systems would generate chaos. Yet the constitutions are not creating

anything, 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 develop-

ment.



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that have ratified Agreement 169 of the IWG without including explicit constitutional reforms torecognize 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 aslong as these are not incompatible with the fundamental rights defined by the national legalsystem, or with internationally recognized human rights. Whenever necessary, proceduresshould 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 inter-nationally recognized human rights, the methods customarily adopted by said peoples forthe 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 theAndean 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 ofpeasant 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. Thisincludes the autonomous validity and efficacy of the SJs decisions, and

c) The institutional system of authorities, or the power to govern with ones own institutions ofself-government, including their own mechanisms for designating, changing and legitimatingauthorities.

Before constitutional reform, the regulation of the different Andean communities only al-lowed for custom as a secondary source of law, operating in laws absence and never in contradic-tion to it (contra legem), which could constitute a crime. By recognizing the functions of justice andjurisdiction of the indigenous/peasant peoples and communities following their own law and ap-plying 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 legiti-mate violence. They admit the so-called customary law not only as a source of law, but rather as itsown law which can even be applied against [state] law. 7

This is the position of constitutional scholars Bernales and Rubio. The recognition of a specialjurisdiction allows for the exercise of the jurisdictional function by an organ or organizations thatare distinct from the Judicial Power, limiting the principle of the unity and exclusivity of the JudicialPower for that purpose, as enshrined in Section 1 of Article 139 (Bernales 1999: 682). Hence, whenindigenous or communal authorities exercise these jurisdictional functions, the ordinary courts mustrefrain from intervening or risk acting unconstitutionally, notes Rubio. 8 In any case, the court wouldhave 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, ImperiumorCoercio. That is, the authority to review relevant issues, including operative functions such as callingwitnesses, collecting evidence (Notio); the ability to resolve relevant issues using its own law

7 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 constitutionalas op-

posed to merely legalstatus (Diario de Debates CCD, 12 April 1993 and 23 June 1993).8 We also understand that when a process of this type exists, the ordinary tribunals should re-

strain themselves, even when they can act de oficio, as fai lure to do so would be unconstitu-

tional 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. Thisincludes actions that may restrain rights, such as executing detentions, demanding payment orlabor, etc. (Coercio or Imperium).9 Colombias Constitutional Court has repeatedly recognized thejurisdictional nature of indigenous people, including the afore-mentioned powers.

Acts of personal coercion derived from the exercise of the special jurisdictional function (withinits territory and according to its laws) do not, by definition, constitute the usurpation of functionsof ordinary jurisdiction, or the crime of kidnapping, illegal privation of freedom or any other typeof crime, but are rather like the arrest, communal labor, imprisonment, seizure or containment towhich people are subject under the legitimate order of ordinary jurisdiction. As recognized by theconstitution itself, this represents the exercise of a rightthe right of peoples and communities toexercise jurisdictional functions. As the exercise of a right cannot be considered a crime, not onlycan its exercise not be prohibited, it must moreover be protected and legitimized. The Constitu-tional Court of Colombia has repeatedly recognized these powers of special jurisdiction. This clearlyincludes not only general coercive powers, but also specific punitive powers which are outside ofthe realm of ordinary criminal jurisdiction (San Martn: 90-91).

The Official Subject of Law

Agreement 169 of the IWG has indigenous peoples as the official subject of law, while the consti-tutions of the Andean countries mention peoples, communities, peasant and native communi-ties and peasant councils (rondas campesinas). The constitutional text and the Agreement shouldbe interpreted systematically, using the interpretation most favorable to indigenous people. Basedon Agreement 169, Indigenous Peoples in general have the authority to apply their customary lawand exercise jurisdictional functions not only in the communal instances mentioned in some con-stitutions (Peru). The concept of people(pueblo) is more comprehensive than that of community as itcan include forms of communal organization that are not recognized by the law or, while recog-nized, that do not fall within the letter of the law. This concept of people also includes supra-communal organizations, extended ethnic groups, federations or so-called un-contacted peoplewith marginal legal status.10

To understand the effects of the definition of indigenous people, one must consider theright to self-definition enshrined in Agreement 169 (Article 1, section 2). If in fact the term peopleis broader than the term community that does not mean that these rights should not be recog-nized when there are only communities and not indigenous people with all their components. It isworth remembering that it is precisely colonial and republican history that has had the negativeeffect of pulverizing many peoples into communities, diluting and transforming many of the ele-ments of their identities. In some cases this impact includes the loss of indigenous languages, com-munal ownership of land (due to the expansion of haciendas during the republic), supra-communalpower structures, and the very act of calling themselves indigenous, due to the negative connota-tion assigned to that word. The term indigenous was successfully substituted by that of peas-ant (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 See: Snchez Botero and Jaramillo (2000: 130-131), who in turn cite the Omeba Legal Ency-

clopedia in their definition of jurisdiction. Volume XVII, p. 538-9, SA. Buenos Aires .10 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

whoregardless of their legal situationconserve 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 andre-creating themselves. Therefore, there are many collectiveseither Andean or of some otheroriginthat have their own identity differentiating them from the rest of national society, withtheir own legal culture and institutions, but which no longer speak indigenous languages nor main-tain 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 moreexplicit in indicating natural authorities, as is that of Venezuela, which speaks of legitimate au-thorities. The reference to the authorities of indigenous peoples or communities alludes to thoseindividuals or collectives (assemblies, collegiate bodies) which, according to the indigenous sys-tems, have the authority to govern, resolve conflicts or regulate social life. This includes the author-ity of indigenous peoples and communities to have their own institutional system for self-gover-nance, the organization of social order and conflict resolutionwhat we would call justice orjurisdictional functions. This right, which relies on [indigenous peoples] own authorities, means

that such authorities are named or designated under indigenous rules and have the powers thatindigenous peoples assign to them. Agreement 169 of the IWG refers to the recognition of theinstitutions of indigenous peoples, which would include not only specific authorities but also theform of institutional organization. Here it is fitting to include also the institutional systems that areappropriated by indigenous peoples, even though they are of foreign origin. State practices thatimply the nomination or imposition of certain peopleindigenous or otherwiseas authorities ofindigenous peoples or communities become incompatible with this right. Moreover, they wouldconstitute a violation of the right to cultural life (article 27 of the International Pact on Civil andPolitical Rights), the right to self-identification (Agreement 169 of the IWG), and the constitutionalnorms recognizing the organizing autonomy of indigenous communities and peoples.

Jurisdictional AuthoritiesWith regard to territorial, material and personal authority, the constitutions of Colombia and Perushare, agrosso modo, the same criteria based on territorial authority. The Bolivian constitution doesnot explicitly mention the topic. The Ecuadorian constitution speaks of jurisdiction with regard tointernal 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 ofthese 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 theright 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 collec-

tives 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 Mtis, 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 Mtis 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 Mtis con-

sider 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 verydefinition of territorial rights. Jurisdiction over territory is nonetheless a minimum, not a con-straint, as the reach of the indigenous jurisdiction can extend to material and personal authority. Infact, under personal authority, the indigenous jurisdiction could have extra-territorial authority.

In the Colombian and Peruvian constitutions, the founding criterion of the indigenous juris-diction is territorial. That is, the indigenous jurisdiction and customary law are the rule within theterritorial space of indigenous or peasant people or communities. In these countries, the constitu-tion and laws recognize the territorial space/collective lands of indigenous, peasant or native peoplesand/or communities.

In Bolivia and Ecuador there is no specific mention of a territorial jurisdiction. Nonetheless, afitting interpretation of territorial rights as recognized by Agreement 169 of the IWG would be thatto the extent that matters of justice or administration and the application of norms are granted tothe authorities of indigenous people or communities, those same powers must apply within theterritories occupied and used in some way by such people. The Venezuelan Constitution expresslypoints out that indigenous authorities have the right to apply their applications of justice within theirterritory (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 andtherefore to validate the decisions of the indigenous jurisdiction and law.12 Indigenous law and thespecial jurisdiction have authority with respect to events, cases or situations, or legal relations thatoccur within the territorial sphere of indigenous peoples, peasant or native communities, or peasantcouncils (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 Agree-ment 169 of the IWG, which defines territory as the totality of the habitat of the regions that thepeoples occupy or utilize in some way (Art. 13.2) and even includes among territorial rights landsthat are not exclusively occupied by them, but to which they have traditionally had access for theirtraditional and subsistence activities (Art. 14.1). The territorial sphere is thus not equivalent to theproprietary 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 orcommunities have title to their land or perfectly delineated borders. Moreover, there are communi-ties that lack any legally recognized communal lands. In some cases, such as that of the PeruvianConstitution of 1993, the sale of communal lands is permitted unless it results in the disappearanceof the community as a collective entity subject to rights.15 The important point is that it deals withthe space upon which these peoples and communities interact in some way. It is in this space, there-fore, that indigenous/communal justice and law are applied. In this respect the Colombian Consti-tutional Court has established the precedent that the term territory not only refer to legallyrecognized lands, but also to those habitually occupied by an indigenous community16 or those

12 I take this definition from Snchez et al. 1999: 13213

The Colombian Constitutional Court 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 (...) (Snchez et

al. 1999: 132).14 We can see the validity of the decisions of indigenous authorities throughout the national ter-

ritory; 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 terri-

tory. See Ruling ST-349 of 1996 (Snchez et al. 2000: 133).15 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).16 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 (Snchez et al. 2000: 133).



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partially possessed areas which comprise not only habitats and exploited lands but which also con-stitute 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 expresslyreduces the territorial authority to personal authority as indicated in Article 260:

The legitimate authorities of the indigenous peoples may apply in their region ( hbitat) onlythose 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 ap-plied to cases within the [indigenous] territory or habitat that affect its members, while it cannot beappliedeven within the [indigenous] habitatwhen a third party, meaning non-indigenous per-sons, is affected. There are two principles in conflict here. One alludes to the idea that a legal systemapplies to those who participate in the same social and cultural frameworks. However, this principlecan be countered by another: the need to strengthen and appropriately guarantee the recognizedcollective rights of indigenous peoples as enshrined in several articles of the Constitution. Here asystematic interpretation becomes necessary. If the third parties carry out acts within indigenousterritory which in no way affect indigenous rights or goods, then it would not make sense forindigenous 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 mem-bers, such peoples have the right to intervene to protect said rights. The Venezuelan Constitutionitself, in articles 119 and 121, recognizes the right to existence and self-organization, 18 such as theright to native lands, culture, form of organization, practices and customs. Therefore, if third par-ties enter indigenous territories or habitat and commit acts which affect or in some way compro-mise the existence, customs, rights or collective goods of indigenous peoples or their members, thenthe indigenous peoples have a legitimate right to intervene and defend their rights. This is not toimply, however, that any specific mechanisms that are developed to resolve intercultural conflictsare permissible, even if they violate human rights.

Additionally, there is also an extra-territorial competence or jurisdiction for the case of indig-enous people who commit acts outside of the sphere of indigenous territory, which I will analyzelater.

Material Competence

The indigenous special jurisdiction has the competence to review all matters that it deems conve-nient within its territorial realm (that of the indigenous people/community) and, under certaincircumstances, even outside of that territory, with regard to certain members. Neither the constitu-tions of the Andean countries nor Agreement 169 establishes a limit on the subject matter or theseriousness of crimes that can be handled under indigenous law. And where the law makes nodistinction, the interpreter cannot distinguish, cut down or reduce. This breadth is consistent with

17 Snchez et al. (2000: 133).18 Venezuelan Constitution, Ar ticle 119, on the right to existence and autonomous organizat ion:

The state shall recognize the existence of indigenous peoples and communities, their social,political and economic organization; their cultures, practices and customs, languages and reli-

gions, as well as their territory and native rights to the lands that they have traditionally occu-

pied 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-nego-

tiable 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, worldview, values, spir ituality

and sacred spaces of worship. The state shall encourage the valuation and diffusion of indig-

enous peoples cultural manifestations, [and recognizes] indigenous peoples 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 tradi-tions, norms and procedures (Venezuelan Constitution); that is, in accordance with the ruling legalsystem of the indigenous people or community. Because each legal system has its own way of clas-sifying and reconstructing social facts according to its own values and categories, it is also up toeach system to define which social facts seem relevant to merit its intervention. Moreover, the veryconstruction of relevant facts is culturally conditioned, and does not necessarily coincide with orcorrespond to the categories of official law, even though such categories might be utilized for rea-sons of comparison. This breadth of subject matters is also dealt with in Agreement 169, whichmentions, tellingly, matters referring to the ownership and use of land, methods for punishingcrimes, the form of social, political and economic organization. In summary, indigenous legal sys-tems have the authority to oversee all matters, regardless of gravity or scope, in which they have aninterest 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 ofjustice within the [indigenous] habitat is to be based on ancestral traditions.This does not necessarilymean that indigenous people are subjects of the past and cannot innovate. That is why, in the inter-

ests of developing a systematic interpretation, it is necessary to underscore the fact that the recog-nition of the special indigenous law and jurisdiction provided by the Constitution and Agreement169 of the IWG does not refer to specific norms, traditions, customs or procedures, but rather to thepower 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 rel-evant, whether or not they are codified in official law, considered mild or serious, or whether theyqualify as criminal or civil under official law, as the special jurisdiction is not determined by statelaw, but rather by its own law. 20 The Peruvian constitutional scholar Marcial Rubio clarifies thispoint 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 ofthe 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 thosethat go against the law (traditionally prohibited under our law), and it is precisely for suchcases that such authorization is necessary (Rubio 1999: 200).

Criminal law scholar Csar San Martn also accepts this point of view in pointing out that thespecial jurisdiction (also called the community, indigenous or traditional jurisdiction) constitutes anexception to the ordinary jurisdiction, and in such cases it is the ordinary jurisdiction which must notintervene.21 The Colombian Constitutional Court has made a similar ruling, recognizing the compe-tence of the special jurisdiction even in cases of homicide (Snchez et. al. 2000: 132). Any externalreduction of the matters that can be reviewed under the special jurisdiction would be counter to the

19 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 se-rious 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.20 Bernales 1999, Rubio 1999, San Martn 1999, Pea 1994, Yrigoyen 1994, 1995.21 Criminal infractions fall under the ordinary jurisdiction, which is the basic or common form of

jurisdiction. All processes that are not explicit ly attributed to other jurisdic tions fall under the

ordinary jurisdiction, exceptions to this must be casuistically laid out in terms of scope and pro-

cedures. From this point of view there are, as noted above, three types of special jurisdiction:

first is the juvenile jurisdiction (jurisdiccin tutelar [menores]). Second is military jurisdiction. Third

is traditional jurisdiction, which is dedicated to the application of customary criminal law for mat-

ters deemed criminal under the law which are committed by members of the Native and Peasant

Communities within their territory (San Martn 1999: 90-91).



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constitutional ruling and would affect the fulfillment of Agreement 169 of the IWG. In any case, thespecial jurisdiction itself can decide, if it sees fit, to delegate matters or cases to the ordinary juris-diction for review, or to ask for military or police support. The lack of legal arguments establishinglimits to the jurisdictional competence of indigenous peoples reflects the persistence of the colonialidea that the indios only have the competence to handle small or marginal cases that do not affect thelaw.

Personal Competence

Personal competence has only been explicitly mentioned in one constitution. The wording of theColombian and Peruvian Constitutions can be understood as meaning that the indigenous jurisdic-tion extends to all individuals within indigenous territory, such that it in effect establishes the basisfor territorial competence. In Bolivia it depends on what is established by their customs and pro-cedures. And in Ecuador it depends on what their own law defines as an internal matter, hencethere are cases in which indigenous people and communities consider a case to be internal when ittakes place within their territory or affects indigenous individuals or goods, even when such casesinvolve the participation of non-indigenous people. In almost every country the communities aremixed, the migration rates are high and the inter-ethnic relations are frequent and complex.

The right to ones own law has two bases. One, which might be characterized as cultural, isthe fact of the individuals participation in a certain cultural system. In principle each human personor group has the right to be judged within the normative system pertaining to their culture. Theotherwhich may be characterized as politicaldeals with the protection of a collectives power tocontrol its institutions and determine what happens within its territory, thereby guaranteeing itsreproduction as a collective and the rights of its members. This second basis avoids the possibilitythat people who do not belong to indigenous peoples or communities (i.e., non-indigenous) mightcommit harmful acts within the indigenous territory claiming as a defense that they cannot bejudged under such a system. In general, harmful acts that occur within indigenous communities andare committed by non-indigenous actors usually result in no reparation at all as such individuals tryto 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 chippedaway at indigenous legal systems, thereby affecting the very life of the community. The constitu-tions of the Andean countries show a clear commitment to protect the cultural and biological exist-ence of indigenous peoples, as well as to strengthen indigenous law. And Agreement 169 of the IWGhighlights among its considerations, the aspirations of the Indigenous Peoples to control theirinstitutions. Here it is clear that indigenous law is strengthened by affirming its application overindigenous and non-indigenous people throughout indigenous territory, with the goal of protectingindigenous rights and goods. This allows for the strengthening of indigenous community life andavoids the intervention or presence of the police, judges, or other agents of state law, who forcenturies have weakened indigenous peoples and communities. This in turn is the operating logic ofany legal system. In summary, when we examine the constitutional goal of recognizing and strength-

ening the special jurisdiction within the [indigenous] territorial realm, we do not find argumentswhich a priori exclude from judgment any non-indigenous individuals who commit punishable actswithin 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 com-

pensation for damages, but not others that depend on a persons participation in the culture

and the community. Cultural belonging is an important criterion for judging any personindig-

enous or notbut 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 orobligatory nature of the system for indigenous people. That is, whether indigenous people who donot wish to be subjected to the jurisdiction are required to do so, or whether they can turn toanother system. The different Andean constitutions clearly establish that the authorities of the in-digenous people and communities have the power to apply indigenous law and the special jurisdic-tion or indigenous justice. That is, the authority rests in said people and in their institutions forcollective decision-making. It is not up to individuals to decide whether or not they will be sub-jected to indigenous law or justice. As with every legal system, the indigenous legal systems haveareas of obligatory interventionsuch as when goods that the community considers part of thepublic interest are affectedand optional areas of interventionsuch as in individual or familymatters, yet the system as a whole is obligatory and is imposed on individuals; otherwise thevery validity of the system itself would be at stake. Agreement 169 of the IWG establishes the rightsof indigenous people (IP) to apply their own methods to the prosecution of crimes committed bytheir members (Article 9.2). It establishes, on the one hand, the rights of IP members before thestate, to be judged by the methods of their own people rather than according to state law. Yetbecause the responsibility of IP is to the collective rather than to individuals, the system is notvoluntary 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. Inany case, under the special jurisdictional power of indigenous people, the people themselves dohave the ability to consider under what circumstances they choose to intervene, which cases theyjudge directly, or even when they might request the collaboration of the police or ordinary jurisdic-tion. The rulings of the Colombian Constitutional Court are consistent on this point, maintainingthat the communitynot individualshas the power of jurisdiction, and that its members cannotescape from it when it is convenient (i.e., to flee sanction). The special jurisdiction also includes theright to rely on the help of the public forces (police) when some individuals attempt to flee fromindigenous justice without paying for the damages caused within the community.23

Another subject is that of personal competence with regard to indigenous people outside ofthe indigenous territory/habitat. Here the cultural basis for law would apply. In dealing with situ-

ations or events that only affect indigenous people but which take place outside of communal terri-tory (for example a conflict between a couple or an issue within a family), it is clear that indigenouslaw and jurisdiction can intervene, as the cultural and normative framework is still in effect for suchpersons. In such cases it would be up to the indigenous jurisdiction to decide whether or not tointervene. In such cases an appropriate parallel can be made to international law, as there are civiland even criminal cases in which national systems have extra-territorial powers in order to definerights and obligations or sanctions, such as family relations, inheritance and succession, and sometypes of crime. I insist that this depends on the decision of the indigenous bodies as to whether ornot to decide to intervene. It is sufficient for the affected person to demand the intervention of hisor her system and to question the intervention of the ordinary jurisdiction, when this is part of thelegal practice of a certain community or people. If the special jurisdiction is ready to intervene, theordinary jurisdiction must step aside.

In the cases of the competence of the ordinary jurisdiction, including those in which actsoccurred outside of the territorial realm, [the law] is required to consider the cultural conditioningof the indigenous actors during judgment and sanction. This could conceivably lead to an indig-enous territorial exemption and affect the goods and rights of third parties, including the attenua-

23 This is the ruling of the Colombian Const itutional 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 terri-

tory as a way to evade sanction: Ruling ST-349 of 1996. See: Snchez Botero et al. (2000:

142).



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tion of punishment, when the actions are not considered reprehensible in the relevant indigenousculture.24 Two principles are at work here. In the first place, a person cannot be condemned forcommitting 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, theequal dignity of cultures prevents one cultural orientation from criminalizing a practice that is cul-turally accepted by other peoples. In any case, there is a vast task here for intercultural dialogueand agreement.

Human Rights: Limit or Standard

The only limit to customary law established by Agreement 169 (Article 8.2) is the non-violation offundamental and human rights. In this sense, those who attempt to suggest that the special jurisdic-tion should be subordinated to the ordinary jurisdiction, or that it cannot interfere with the ordi-nary jurisdiction, or that it should be controlled or reduced, are using an interpretation that is notin harmony with either the letter or the spirit of Agreement 169, nor with the principles of a system-atic, teleological and progressive interpretation.

The Peruvian Constitution establishes a similar limit in Article 149, which indicates that theexercise 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 otherAndean countries tend to be more restrictive. Those of Colombia, Bolivia, Ecuador and Venezuelalimit the recognition of the special jurisdiction (Colombia) or of indigenous justice (Bolivia), func-tions of justice (Ecuador) or applications of justice (Venezuela) with regard to the constitution andits laws. The Venezuelan Constitution also adds the notion of public order (orden pblico) as anexception. In such a case, it is obvious that the indigenous special jurisdiction will be severely lim-ited. Given that such limitations are less favorable to indigenous communities than the provision ofAgreement 169 of the IWG, the norm which concedes more rights and advantages to such commu-nities is the one which takes effect, as laid out by Article 35 of Agreement 169 of the IWG, which haslegal standing in all of the Andean countries. Along these lines, the Colombian Constitutional Courthas 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 fundamentalminimums: 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, legalrestrictions 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 violateshuman rights, then that measure should be analyzed, but the mere use of the special jurisdiction byindigenous 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 charac-

ter of the nation/state/republic and, consequently, the right to cultural diversity. Moreover, it rec-ognizes legal pluralism, with the corresponding right to an indigenous/peasant special jurisdiction(with its legal and jurisdictional powers). Therefore, the definition and interpretation of humanrights cannot remain in the hands of a single cultural orientation nor a single institutional systemwithout jeopardizing the right to diversity. Human rights must be defined and interpreted based on

24 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).25 See: Snchez Botero (1998) and Snchez et al. (2000).



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intercultural dialogue. Thus, any perceived violation must be handled within the Andean countriesthemselves. Under no circumstances can the mere exercise of the special jurisdiction, where appro-priate, 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 con-flicts (Article 8.2). Such procedures have not been established and must be created in consultationwith indigenous people (Article 6). The objective of such procedures would be to guarantee anintercultural interpretation of the events and of the law itself in order to honor the recognition ofthe right to diversity as laid out in the different constitutions of the Andean countries. One possibil-ity might be the creation of mixed courts composed of state judges and indigenous or communityauthorities who employ moderate rules to resolve apparent conflicts between the special jurisdic-tion and human rights (rather than based on a single law: either state law or customary law), tryingto understand the different positions (from their own cultural frameworks) and promoting ar-rangements to prevent violence and the violation of human rights (attending to the demands andneeds of all sides).26 The goal is for the indigenous/communal peoples and authorities not to remainas mere bystanders of an ever-distant exercise of jurisdictional power, passively submitting to theinterpretation 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 shouldstart 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 ofmulticultural citizenship, who says that in multicultural situations involving indigenous people, na-tional minorities, or cultures with a certain level of self-governance, the fact that such groups sub-mit to a human rights framework does not necessarily mean that they must answer to national lawor national courts, but rather that they can create courts with equitable participation from both thefederal jurisdiction and said indigenous peoples or minorities.27

Coordination

The different constitutions establish that there should be a law of coordinationbetween the special

jurisdiction and the national legal system (Colombia), judicial power (Peru) or national justice sys-tem (Venezuela). Ecuador and Bolivia use the term harmonization (compatibilizacin ).28 First, it isimportant to point out that this is a law of coordination and not of regulation, as some havemistakenly understood. The validity of the special jurisdiction is not subject to this law, as repeat-edly clarified in the decisions of the Colombian Constitutional Court, whose constitution is thebasis for other Andean constitutions.29 Second, it is important to point out that the word coordina-tion establishes a horizontal relationship rather than one of control, revision, or some form ofsubordination. The point is to establish a system that allows for a harmonious and peaceful relation-ship between the special jurisdiction and the ordinary jurisdiction under democraticnot subordi-

26 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-basedexperts. A similar proposal has been made by the Peasant Councils in their regional (2000)

and national (2001) meetings.27 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).28 I offer some possible suggestions for a Law of Coordination in Yrigoyen (1994 and 1999).29 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 (Snchez et al. 2000: 118). This is a lso the

position of Rubio 1999, Bernales 1999, Yrigoyen 1994, 1995.



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nateconditions. One of the needs for coordination is the establishment of rules on the resolutionof conflicts over competence, mechanisms for cooperation and mutual aid. Third, within a demo-cratic mindset of intercultural dialogue, the law must establish procedures to resolve perceivedconflicts between human rights and the special jurisdiction. Yet this coordinating power does notautomatically bestow upon the authorities of the ordinary jurisdiction the power to control or over-see the authorities of the special jurisdiction. Fourth, the law would also have to create adequatemechanisms for direct coordination between the special jurisdiction and different public entitiessuch as the police, the Public Ministry, local governments, the Public Registry (for example, to recordthe 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 IWGand all other national regulations, so as to further develop aspects that are not clear in the constitu-tion. While the law can in no way reduce or restrict rights, it can broaden or develop them. This lawwould have to be discussed with indigenous people in order to have legal status (according toArticle 6 of Agreement 169 of the IWG) and legitimacy (consensus), as a first step toward theconstruction of a pluri-cultural state.

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Documents

Legal Pluralism, Indigenous Law and the Special Jurisdiction in the Andean Countries