Sunday, June 27, 2010

Indigenous Law and Global Constraints: Bolivia, Decolonization of Law, Constitutionalism and Human Rights

Since the election of Evo Morales to the Presidency of Bolivia, that nation has sought to  transform itself from the modern expression of multicultural Latin American state grounded in the cultural and legal norms of its Spanish colonial period into something else.  Rejecting Spanish culture as subordinating, Bolivia has sought to reconstitute itself as a post modern state--a plurinational political unit assembled from a collection of individual and constitutionally recognized ethnic and racial juridical persons which together would constitute a state organized and governed through a variety of normative systems dependent on location, ethnicity, religion and other constitutionally recognized legal markers. 

This movement toward post modern statehood has produced significant tensions not only within Bolivia bit between these efforts and emerging conceptions of constitutionalism,  indigenous rights and autonomy, state organization, and global human rights.   Over the past several years those conflicts have been sharpened in contests for authority and legitimacy between emerging systems of indigenous law making, the traditional western system of justice that at some level overlays the indigenous systems, and global systems of human rights, including those which obligate Bolivia through  its membership in the Organization of American States. 

At the state level, the tensions are well understood and somewhat conventional.  Indigenous systems of law are arising that to some extent do not mimic Western, or Spanish-Latin American systems of justice--from the nature of procedural rights of defendants,  to the conduct that produces breaches, to the forms of punishment meted out to individuals convicted of violations of indigenous law.  At the same time, it was not clear how those systems would fit within the standard patterns of hierarchies of law, especially with reference to the overarching norms of constitutional law.  The arguments on both sides were tinged with both legalism and cultural-social arguments grounded in subordination and suppression of cultural expression not in accord with dominant Western values.  By 2006, the English press had picked up these tensions.
As they walked through the market square I noticed some coloured ropes slung around their chests. The ropes were chicotes or whips and the men wearing them were mallkus - the word for prince or leader in the Aymara language. Francisco Espejo, an elderly man whose teeth were stained green from chewing coca leaves, was one of them. He said he was delighted that whipping is now an officially sanctioned punishment. "When we had attorneys from the Western justice system, they put people behind bars for 20 years," he said."Those with money bought good lawyers and didn't go to jail so what kind of justice was that? "It's much better to give someone a few lashes and be done with it."One of President Evo Morales's biggest campaign promises was to revolutionise the justice system. He vowed to promote pre-Columbian community-based courts in which village elders try wrongdoers and determine how they should be punished.This practice, which predates the Incas, has three main rules which are: Amu Sua - Don't Steal; Amu Llulla - Don't Lie, and Ama Quella - Don't Be Lazy. 
Lucy Ash, Bolivia Goes Back to the Whip, BBC News Online, Nov. 23, 2006. Issues of subordination, on one side, and intimations of arbitrariness and thus of a basic breach of rule of law notions, were not far from the surface of the conflict.  
"Community justice was a very secretive practice," explained Waskar Ari, an Aymara Indian and university professor."When the Bolivian state was controlled by whites they used Western justice as a way of subordinating the Indians and the memory of that is still strong in some parts. "That is why some people are still afraid to talk about these things." But under President Morales the underground is going mainstream. Granting traditional justice official status alongside national laws is a vital part of what he calls his "decolonisation" strategy. 
Id. Those issues remain unresolved.  They are, however coming closer to crisis as  both sides move to deploy their respective systems to protect their rights.  
A Bolivian Indian community once again applied the so-called principle of “native justice” by killing an accused murderer in the southwestern province of Potosi, where two weeks ago four policemen met the same fate, the press reported Wednesday. . . . Community leaders in Uncia turned over the bodies of the four lynched police officers last week, but only after the cops’ loved ones signed a pledge not to seek criminal charges against the killers. Even so, this week the families decided to initiate legal action against the Indian communities and said they were considering filing charges against government officials and police commanders for dereliction of duty.

This has put the Morales government in something of a bind--seeking both to extend indigenous legal autonomy but also seeking governmental control over the borders of that autonomy.  As early as 2008, responding to growing reports of indigenous justice where Western notions of due process or prisoner dignity appeared to be observed, the Morales government sought to gain some control over the autonomy movement.  "The lynching of criminals caught in the act is a widespread practice in Bolivia's Andean region, where the indigenous people claim it as a form of "community justice." Yet the Morales government, though advocating legal recognition for many Indian traditions and institutions, says that lynchings cannot be tolerated." Morales Supporters Lynched Accused Thieves, CNN iReport, Nov. 18, 2008.  Yet the misgivings of the central government were tempered by its anti-colonialist and anti-subordination policies, through which  its actions were filtered.  In response to continued manifestations of non-Western indigenous justice, and Western concerns about its  legitimacy, the Morales government offered the hope that time and the cleansing efforts of anti-colonialist practice would eventually solve the "problem" of "lynching."
The question in the minds of many legal experts is whether incidents such as the lynchings here will decrease as the Indians sense that they have more legal recourse, or increase as they legally dispense the summary justice that characterizes their approach.  Petronilo Flores, the Justice Ministry's community justice director, said that indigenous justice had been in effect for centuries and that the new constitution was an attempt to address "persistent colonial attitudes in Bolivia that indigenous justice doesn't work, that anything associated with Indians is no good."
Mob rule taints Bolivia indigenous law, Los Angeles Times,   Feb. 1, 2009.  But the development of indigenous justice systems grounded on what might constitute grave breaches of procedural and substantive rights among Western normative systems persisted.  The increased global awareness along with those activities produced legislation in 2010.  
Lawmaker Cecilia Ayllon, from the ruling party and chairwoman of the Plural Justice Committee said that the main change introduced to the original bill was the inclusion of two basic principles of the ‘community justice’, respect for human rights and for life. Ayllon admitted however that ‘native justice’ already enshrined in the 2009 Constitution sponsored by President Evo Morales “is being wrongly interpreted and used for political purposes” such was the case of the public lynching in Potosí of several policemen by ‘ayllus guerreros’ (indigenous clans).
Bolivia votes ‘native justice’; four policemen lynched by indigenous mobs, MercoPress, June 10, 2010.  "Congress still has to work on a bill that circumscribes ‘ordinary justice’ and ‘native justice’. The interpretation bill for which congress has 180 days should help with ‘different jurisdictional problems surfacing plus ensuring the necessary harmony that must exist between both systems’."  Id.  This is particularly important, as a constitutional matter since, for example, the Bolivian Constitution prohibits capital punishment, but indigenous justice might compel such a penalty extracted in a manner and through the effectuation of ritual that other communities within Bolivia might find repugnant to their own beliefs and law.  "Some Aymara and Quechua Indian communities of the Andean highlands say lynchings are part of the indigenous justice system that was recognized in the constitution enacted last year at the urging of Morales, but the government rejects that argument. Officials say the recognition of traditional justice is not a license for vigilantism. The government also points to the constitutional ban on capital punishment."  Bolivian ombudsman: Bodies of slain cops already buried, La Prensa (San Antonio) July 1, 1010 ("Rolando Villena, who in recent days went to the scene of the crime, told the media that the Indians, according to their beliefs, buried the bodies face down "so that the souls of those who had been killed would not persecute those who had killed them.". . . ."The communities admitted that they carried out justice with their own hands. After having tortured them in a most cruel way, they killed them, but they were not burned," Villena said Tuesday." Id.). 

Bolivia appears to provide a variant of the difficulties of maintaining the cohesion of a pluri-national state.  In the case of Bolivia, the situation illustrates the difficulties of papering over  a  functional incompatibility among a number of critical sub-national groups with fundamentally antagonistic positions through a constitutional system that appears increasingly to resemble a formally constituted abstraction rather than a  blueprint for a functioning state apparatus.  Yet Bolivia is not unique.  The recent efforts to use the mechanics of elections  to legitimate a change of government  through a change of constitution in Kyrgyzstan suggests a related set of tensions--among majority and minority ethno-national groups for control of the state apparatus.  For a valuable discussion, see,  M. Ulric Killion, Kyrgyzstan: The road from “Mobocracy”, to Constitutional Reform (June 15, 2010. Perhaps Russia's current president is right (though for the wrong reasons) with respect to these sorts of efforts. "Speaking to journalists at the G-20 meeting in Toronto, President Dmitry Medvedev poured cold water on the referendum's goal of changing Kyrgyzstan's Constitution from a president-dominated system into one in which a popularly-elected parliament holds the lion's share of power. He also warned that the tiny central Asian country faced the "threat of breaking up" and being overrun by "extremists.""  Fred Weir,Why Russia's Medvedev is blasting ally Kyrgyzstan, Christian Science Monitor, June 28, 2010.  The break up is not so much a consequence of the choice of the structure for a state apparatus--unless the object of the state apparatus is to hold a state together any cost--as it is a consequence of people's no longer (if ever) constituting a single demos (whatever the efforts at appropriate "education" in that regard has been attempted and no matter what the desire of larger states eager to maintain the stability of borders and states.
But the scope of the problem might be  more complicated. It implicates not merely division of authority within a state, and the structuring of a constitutional system (along with its related issues of democratic legitimacy and adherence to appropriate substantive values), but global human rights values (and the legal obligations of the Bolivian state).  The forms of indigenous justice--and its conflict with global values--has come to the attention of some members of human rights civil society.  Impunity Watch has noted the issue recently, for example. R. Renee Yaworsky, Four Police Officers Lynched in Bolivia, Impunity Watch (May 29, 2010). 

More importantly, the Inter-American Commission on Human Rights noted in a 2007 it concern both with the state of the issue of the implementation of indigenous law within the legal framework of Bolivian rule of law and with the toleration of the more unconventional methods of indigenous justice said to be an integral part of such systems. Organization of American States, Inter-American Commission on Human Rights, Access to Justice and Social Inclusion: The Road Towards Strengthening Democracy in Bolivia, OEA/Ser.L/V/II., Doc. 34, 28 June 2007 (original language Spanish).
291. In the midst of this rather confused panorama of legal, jurisprudential and political considerations, the IACHR observed two aspects which need to be clarified in the light of indigenous peoples’ rights under international human rights law, especially ILO Convention 169.234
292. On one hand, the Commission is concerned that some of the most senior State bodies and certain sectors of civil society, including some of the communications media, persist in the idea that "taking justice into one's own hands" or lynchings are a reflection of community justice. The Commission reiterates that acts of this kind constitute gross violations of human rights and they must be investigated and punished by the State and that they cannot be understood as consistent with indigenous law and justice in the sense recognized in the Constitution and internationally,235 for the fundamental assumption in applying them is precisely the respect of human rights.236 It is regrettable that such lynchings are used as a means of stigmatizing indigenous justice and denying it full recognition, when in fact one of their principal causes is the tenuous writ of the Prosecutors’ Office and the judiciary and their inability to prosecute and punish crimes in more than half of Bolivian territory, as detailed above (paragraphs 63 and 65).
293. The Commission also wishes to clarify the scope and ranking of recognition of indigenous peoples' conflict resolution methods, provided they comply with the prior assumption of compatibility with constitutional and international human rights provisions. The Commission considers that the recognition of community justice as an "alternative means" must not be interpreted as resulting from the lack of coverage of the official justice system, and must therefore not be conditioned on the continuity of official institutional weaknesses. On the contrary, indigenous law and justice must be recognized as a human right of a collective nature, without any implication that the State is thereby exempt from providing those peoples the services of official justice due to them as Bolivian citizens, whereby they are guaranteed access to justice in the context of conflicts with non-indigenous individuals or arising outside the community territory.
294. As the Constitution itself indicates, the scope and effective application of the law requires a legislative framework that will reconcile, on one hand, the power of indigenous peoples and peasant communities to apply their own rules and mechanisms for dispute settlement, and on the other hand the functions of various State bodies, in particular but not exclusively those involved in criminal prosecution.
295. The Commission observed that the ambiguity in this legal framework, together with the total absence of regulation to date, constitutes the principal cause of the confusion over this issue that prevails both in civil society and in the various State institutions of Bolivia. There have been some attempts to draft legislation in this area, but they have not prospered. . . . 
Id. Para. 291-295, pp. 79-81 (footnotes omitted).  And thus a conundrum for the government of Bolivia.  Whatever the state of its ideological campaigns, or its collective desire to render sections of Bolivia Spanish free, the constitution of the state, of which indigenous peoples form a part, carries with it the constraints of Bolivia's obligations as a member of the community of states (in general) and under the rules of conduct mandated for members of the international organizations of which it is a member--not the least of which is the OAS. Those rules might well reach to any political settlement within Bolivia that appears to deny non-indigenous peoples access to justice.  Consider, for example a recent case on this point from an incident in Brazil.  REPORT Nº 25/09, Case 12.310, Sebastião Camargo Filho (BRAZIL).

Thus Bolivia may well be sitting at the nexus point of two great tensions in the organization of its legal system as it seeks to rearrange its institutional relationship with newly recognized autonomous constitutional actors marked by indicators of race, ethnicity or whatever other status markers the Bolivian people choose to privilege.  On the one hand, those arrangements require a reworking of traditional constitutional ordering.  It may well be that a single constitution musty provide space for the development simultaneously of autonomous systems of law that, though they communicate with each other, remain apart.  The relationship among those systems and the apparatus of control at the national level are still a long way form resolution.  On the other hand, whatever constitutional settlement is made within Bolivia, its legitimacy will be tested in part by conformity to global standards.  That judgment will not be made by indigenous communities working towards reinventing their  legal systems, nor by agents of the state seeking to preserve some sort of unity within the emerging pluri-national state, but by international actors.  The legitimacy of those actions, in turn, may depend in some measure on assessments by international civil society actors and the political will they might be able to muster in democratic states whose relations with Bolivia may be measured by  such assessments.

No comments: