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Central American University - UCA  
  Number 429 | Abril 2017



The ghost of Maya justice is haunting the country

The ghost of Maya justice is haunting the country

José Luis Rocha

The ghost of Maya justice is haunting Guatemala. Self-righteous talk show guests, guardian angels of positive law, omnipresent pens in opinion pages, big capital, unconditional addicts of national sovereignty and even champions of human rights have all united against it. While this ghost has always been there, huddled in the highlands, embodied in common law, it now wants to penetrate the State, to acquire citizenship rights in a plural legal system and even have indigenous law recognized in the Guatemalan Constitution.

Three concepts

Community, common and indigenous law are not equivalent concepts. Community law refers to the mechanisms of local justice, which also exist in non-indigenous communities, such as the Brazilian favela that Boaventura de Sousa Santos calls Pasárgada, whose regulations and procedures he analyzes in his book Sociología jurídica crítica: Para un nuevo sentido común en el Derecho (Critical juridical sociology: For a new common sense in law). Common law refers to custom-based norms, while indigenous law is a legal system with its own meaning and procedures. In the cases of the Maya peoples, all three overlap.

Maya law (indigenous law) is what governs Maya villages (community law) and earns its legitimacy, particularly with the local population, as a form of justice based on ancestral precepts (common law). We will use the three terms interchangeably.

In Ecuador and Bolivia

Common law has provided an instrument for Latin American indigenous peoples to resolve their conflicts, express their traditions and reproduce their identity. Without being recognized as a right by national legislations, it has been exercised on the margins, in secret, or even against the grain of the state apparatuses’ administrative regulations.

The end of the military regimes in Latin America opened up spaces for indigenous struggles and respect for their institutions and self-determination mechanisms. In some countries, indigenous law obtained a level of recognition that is presumably substantial and lasting, as part of a process of re-founding a State that recognizes itself as pluri-national. Since 2008 and 2009, respectively, the Constitutions of Ecuador and Bolivia have recognized the equality of indigenous law. According to article 179 of the Bolivian Constitution, ordinary legislation and “peasant native indigenous jurisdiction” have the same ranking, although some criticize the fact that Bolivia’s indigenous jurisdiction is confined to rural areas and that indigenous magistrates are required to be lawyers. Ecuador has legalized the application of indigenous law to indigenous and non-indigenous people, but only in indigenous villages. That has happened in two very different countries, as only 7% of Ecuador’s population in indigenous, compared to 62% of Bolivia’s.

The legal country doesn’t reflect the real one

Guatemala is almost a decade behind in moving toward recognition of a key aspect of pluri-nationality. Despite their demographic weight (or perhaps due to the antibodies such weight produces?), Guatemalan indigenous peoples haven’t obtained this kind of recognition. To the contrary, a 1999 referendum rejected proposed reforms to the Constitution that included official recognition of indigenous law. Guatemala’s indigenous peoples are at a disadvantage because the legal country isn’t aligned with the demography of the real country.

In 1998, the United Nations Development Programme (UNDP) calculated that 41.7% of Guatemala’s population was indigenous, the same percentage that the UN’s Economic Commission for Latin America and the Caribbean calculated in 2010. Some indigenous organizations, such as the Maya rights advocacy organization, Maya Ombudsperson’s Office, and the National Indigenous and Peasant Coordinating Body (CONIC), put this figure as high as 60%. The dispute over the number, which rises or falls according to the source’s political position, is highly significant. Perhaps these high numbers instil fear and trigger the offensive, sometimes brutal, reactions that violate political correctness with no shame, such as those expressed openly in the opinion pages of the Guatemalan media in opposition to Maya justice and its constitutional recognition.

Indigenous leaders and intellectuals have presented their arguments and indigenous organizations exerted pressure in February 2016 through roadblocks and peaceful protests. Both the strength of the demands and the reactions are symptomatic of the tension US anthropologist Charles Hale found in Guatemala over a decade ago. He stated that the triumphs of indigenous empowerment are irrefutable and that one revealing index of this empowerment is the anxiety felt by many ladinos (mixed Spanish-indigenous people or Amerindians who have become Hispanicized) and even more importantly by those with no indigenous ancestry who fear their long period of absolute control is disappearing.

A coherent reform

On April 25, 2016, in the framework of a package of constitutional reforms, the International Commission against Impunity in Guatemala (CICIG), the country’s Public Ministry and its Human Rights Ombudsperson proposed including the following paragraph in article 203 of the Constitution: “The authorities of the indigenous peoples shall be able to exercise jurisdictional functions in accordance with their own norms, procedures, uses and customs, as long as they do not contradict the rights enshrined in the Constitution and internationally-recognized human rights. To this end, the necessary coordinations must be developed between the Official Justice System and the indigenous authorities.”

With slight changes to the language, that proposal has been under discussion in Guatemala’s Congress since October 2016. As currently drafted, it consists of replacing the closing phrase of article 203 of its Constitution (“No other authority will be able to intervene in the administration of justice”) with the following two paragraphs: “The ancestral indigenous authorities exercise jurisdictional functions in accord with their own institutions, procedures, norms and customs as long as they do not contradict the rights enshrined in the Constitution and internationally-recognized human rights.

“The decisions of the ancestral indigenous authorities are subject to the control of constitutionality. The needed coordinations and cooperation must be developed between the ordinary legal system and the legal system of the indigenous peoples; and any conflicts of responsibility should be resolved by the Jurisdiction Conflicts Tribunal in accord with the law.”

According to Edgar Raúl Pacay Yalibat, a former president of Guatemala’s Supreme Court of Justice, this call for recognition is merely coherent with article 66 of the Constitution: “Protection of ethnic groups. Guatemala is made up of diverse ethnic groups, including indigenous groups of Maya ancestry. The State recognizes, respects and promotes their ways of life, customs, traditions, forms of social organization, use of indigenous dress among men and women, languages and dialects.” He argues that indigenous law is a central part of their customs, traditions and forms of social organization and is therefore already recognized.

A recovered right

The common law of indigenous peoples was recovered—not created—in the 1990s, when it was variously labeled as indigenous common law, the Maya legal system, Maya justice and indigenous justice. Historians dusted off documents in which the Spanish Crown recognized the laws of the indigenous peoples. According to legal historian Antonio Dougnac Rodríguez, such laws and customs were sanctioned by the Spanish Crown in 1530, 1542 and 1555. On August 6, 1555, at the request of Juan Apobezt, an indigenous chief in Vera Paz, Guatemala, King Charles I declared by royal decree: “We approve and look favorably upon the good laws and good customs that you have long had among you and have for your governance and policing, and those that all of you together have made and reordered …”

Among the half-truths and downright lies bequeathed to us by inquisitor and subsequent bishop Diego de Landa, converter of idolatrous souls, executor of apostate bodies and burner of pagan codices, are a number of lines about the presumed pre-Columbian customs of the Mayas: “A thief had to reimburse the value, and was besides enslaved, however small the theft, which was a reason why they had so many slaves, especially in times of hunger…. If the thief was one of the chiefs or leading men, they assembled and having seized him scarified both sides of his face from the beard to the forehead, which constitutes a major dishonor.” (Yucatan Before and After the Conquest by Diego de Landa, translated by William Gates, 1937)

“Here goes a thief!”

In 1937, US anthropologist Charles Wagley described how the legal system in Santiago, Chimaltenango, punished an accused woman, while a similar case was also described in the documentary Two Justices (2012) by political scientist Rachel Sieder and anthropologist Carlos Flores: “If it is proved that the accused is a thief, the mayor and the councilors lead him through the town and display him in front of everybody, while the crowd surrounds and follows him. A marimba and a drum draw attention to the thief, who is forced to carry what he has stolen on his head. The people shout: ‘Here goes a thief!’ The councilors then escort him to San Pedro, where the intendant sends him to the jail in Huehuetenango or Guatemala City. Those who have suffered this public shaming seldom return to the town after having served their sentences.”

The autonomy of indigenous governments even continued to exist in the early years of President Jorge Ubico’s 13-year regime, which was the period during which Wagley conducted his work. Nonetheless, that autonomy didn’t last given his highly repressive nature and his contempt for the country’s indigenous people, once allegedly stating they resembled donkeys. While he abolished Indian slavery, he replaced it with vagrancy laws requiring that indigenous farmers work an assigned number of hours on certain plantations to maintain an equal distribution of workers among landowners and established a decree essentially making it legal to kill an indigenous farmer for refusing to comply with the new laws.

Still in 1967 Guatemalan anthropologist Joaquín Noval wrote that “for a long time the Guatemalan indigenous community developed and maintained a combined political and religious organization governed by an age-based hierarchy that served to link the community with the formal aspect of religion and with the State, at the same time isolating it by reinterpreting the regulations of these national elements in local terms. The regulations of the formal Church and the national government did not directly reach the individual, the family and particular groups, but were rather screened by the indigenous sources of power.” Noval presents indigenous authorities as intermediaries and translators rather than creators and sources of law, although he does acknowledge that they organized police services.

The Army’s “law”

Guatemalan anthropologist and Jesuit priest Ricardo Falla has described step by step the process through which, starting in the 1960s, the Army gradually attributed powers to itself that went well beyond its traditional coercive role, to the detriment and abuse of the deliberative and decision-making arenas of the Ixcán cooperatives. Over the decades, militarism not only reduced the indigenous communities’ already extremely diminished margins of self-government, but also appropriated and monopolized responsibilities corresponding to other branches of the State and controlled cooperativism and even trade.

The Army became the overarching institution in areas where other state branches had shrunk or never reached in the first place. Its coercive capacity expanded with the creation in late 1981 of the Civil Self-Defense Patrols (PACs), legalized by the 1984 Constituent Assembly. British researcher Roddy Brett author of The Origins and Dynamics of Genocide: Political Violence in Guatemala (2016) , explains that the PACs were predominantly under military supervision and became an instrument for the massacre and selective murder of individualse accused of collaborating with or participating in the rural insurgency.

The “law” of the PACs

According to Army spokespeople, between 300,000 and 500,000 males ranging in age from 15 to 60 participated in the PACs in 850 towns, patrolling vast areas in squads of 10 to 14 people and doing searches that could last for several days and had to be repeated every three days. Brett cites a report by the Archbishopric of Guatemala’s Human Rights Office that states there were still 375,000 PAC members in 1995, before they were disarmed as part of the 1996 Peace Accords.

The Army gave the heads of the PACs and the military commissioners the power to judge and execute and their interventions were not limited to the political sphere. They also settled marital conflicts, fights, robberies and property problems. During those years Maya common law was exercised only clandestinely or not at all.

The community power structures were dismantled and supplanted. Guatemalan historian Matilde González has stressed the significance of this dramatic transformation in terms of common law: “The conflict mediation and negotiation mechanisms that the authorities of Custom or AC (Catholic Action) had possessed were replaced by arbitrary application of the PACs’ disciplinary norms and measures. Verbal and physical violence became the mechanism used to settle differences.” As British researcher Rachel Sieder explains, that counterinsurgent violence left people with no peaceful or culturally appropriate mechanisms to regulate their coexistence.

After the war

With weekly meetings between the PACs and the military commissioners and an average of over 22 months of volunteer work per patrol member between 1983 and 1996, the PACs allowed the Army to keep an iron grip on the communities. But as the PACs’ authority came from the coercive power of the Army and not from community consensus, the dissolving of the military commissioners in 1993 and of the PACs themselves in various localities in 1995, followed by their complete demobilization in 1996, reopened a space for recovering the old community bodies of authority and legality.

In the period before that recovery and following the signing of the peace accords, the department of Quiché saw a wave of lynchings of supposed delinquents who were beaten to death or burned alive. Lynchings were particularly common in the most war-torn areas as a mechanism to reduce insecurity in the context of waning coercive power in which institutionality was still just a promise. Indigenous justice was a need just waiting for its opportunity.

The time for “minority” rights came in the nineties

Roddy Brett sustains that during the preparations to celebrate the 500th anniversary of the “discovery” of the Americas in 1992, different indigenous movements questioned the celebrations and the Liberal postulates of governments that ignored cultural diversity and the continuation of varied forms of colonial oppression. It was a favorable context for platforms of struggle for the rights of indigenous peoples. The awarding of the Nobel Peace Prize to Rigoberta Menchú that same year was part of a wave of reappraisal and recognition of indigenous people.

Those events didn’t just spontaneously occur; the international context provided fertile ground for these initiatives to flourish. Also in 1992, for example, the UN approved the “Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.” This international backdrop promoted supranational support for the reemergence of Maya law and makes its official recognition in a pluralist legal system possible now.

International organizations have influenced Maya rights advocacy organizations since their start-up, supporting initiatives that link local activism to international human rights agendas. In the 1990s international funding for indigenous issues strengthened Maya organizations and causes and their diversification, These funding channels included the World Bank and its special ““Indigenous Fund”; USAID, which sponsored the strengthening of civil society entities with a preferential option for Maya organizations; and patronage from the European Community and individual Scandinavian countries, which made possible the emergence of the Coordinating Body of Organizations of the Maya People (COPMAGUA).

The 1990s: Maya law

The Maya Ombudsperson’s Office was born in 1993 from the fusion of two human rights networks operating in the departments of Quiché and Sololá. Its long-term objectives have been the recovery of the indigenous population’s collective cultural rights, including local authority structures, and the re-establishment and formalizing of the Maya legal system. It is a conception that includes the political structure as part of culture.

At the beginning the talk in Sololá was about a “conflict resolution system” but it then moved on to common law and Maya law. The Sololá activists had worked on recovering the indigenous mayor’s office since 1992, but international support was crucial: in 1994, the Canadian Embassy granted the Maya Ombudsperson’s Office long-term financial support that allowed it to consolidate and expand its networks and work. Around 1994-95 they started to use the term Maya law, politicizing common law with the demand for pluralization of the legal system.

1995 saw the signing of the Agreement on the Identity and Rights of Indigenous Peoples (AIDPI), based on the International Labour Organization’s Convention No. 169 on Indigenous and Tribal Populations in Independent Countries. The last chapter of the AIDPI outlines the need for constitutional reforms that recognize the multiethnic, multicultural and plurilingual nature of the nation-State in Guatemala and also “the capacity of the indigenous communities to use common law,” including an exception similar to the one the Spanish Crown established 500 years earlier: “When it is not incompatible with internationall y recognized human rights and those in the national Constitution.”

Less dangerous?

The reduction of human rights violations in the world also favored a change in the parameters of social struggle from universal individual rights to collective ethnic rights. Brett observes that “protesting over culturally-based marginalization and oppression within a nation-State that had treated the class-based opposition with ferocious and indefatigable brutality appeared to be politically more effective and less dangerous than doing so based on demands of economic exclusion…. Demands for law based on ethnic factors appeared to be less threatening to the interests of the elite and were supported by an increasingly effective indigenous movement that was operating in a favorable national and international context.”

The neoliberal model stressed administrative decentralization policies, greater local participation in the provision’of public goods and recognition of ethnic diversity. The recognition of Maya justice appears to dovetail with these three neoliberal proposals, but the Maya movement’s struggles for respect for its culture include elements at the very heart of its demand that are not at all innocuous and cannot be classified as emanations of neoliberal diversionism.

“We’re touching the elite”

Over ten years ago, Charles Hale reported that the Maya flourishing, supported in part by the multiculturalism the State adopted, had produced evident concern, apprehension and ambivalence among Chimaltenango’s ladinos. Ample reasons for the intensification of this concern appeared soon after: a demand for legal plurality, recognition of local authorities and demands for land titles for indigenous communities as a cultural right. Maya flourishing had moved away from the domesticable neoliberal version to become a potential opportunity to resolve thousands of territorial disputes in a country with high levels of agrarian unrest. Between 1997 and 2013, the Presidential Commission for the Resolution of Land Conflicts and the Agrarian Affairs Secretariat registered 6,482 agrarian conflicts involving some two million people, 44% of them in the departments of Alta Verapaz, Izabal, Quiché and Huehuetenango.

Rafael Chanchavac Cux,CONIC’s deputy coordinator at the time, emphasized the conflictive aspect: “Our land redistribution proposals touched the elite’s interests. For us, our culture comes from nature, from the land. But the government only talks about and recognizes ethnic identity, not the culture of land tenure.”

The right to their own rights system

“Indigenism” in Latin America, which developed most in Mexico, Peru and Brazil, has taken different forms. They include a simple folkloric and investigative interest in indigenous aspects; formulation of the “be” and “must be” of their struggles; a presentation of indigenous people as a higher culture and race, and even a model of future society; the cultural as opposed to racial conception of “indigenous”; and the subsuming of indigenous struggles into classical Marxist categories. The latter was the position taken by José Carlos Mariátegui, one of the leftist thinkers who most concentrated on what he termed “the indigenous problem.”

In his 1928 book, Seven interpretive essays on Peruvian reality, Mariátegui predicted the indigenous struggle against the feudal order, but attributed a role to it that largely focused on land. For both Mariátegui and other indigenists (Luis E. Valcárcel and José María Arguedas, to cite two significant cases), indigenous peoples had rights to land, to a well-paid job, to education, to state support, to reproduce their culture. They had economic, social, cultural and political rights, but not including the political right to practice their own law. They only had rights derived from a superimposed system of rights, rather than ones that emanated from an autonomous source and expressed their own system of rights. That is precisely the crux of the profoundly counterhegemonic nature of the Maya demand for recognition of their legal system: it is a right that creates rights.

Promoting difference

Legal plurality was the forbidden fruit of multiculturalism. The dominant position among Guatemala’s powerful ladinos before the war was the promotion of difference, conceived of as separate and unequal. The military governments and the cultured sectors defended different variants of assimilation. The military imposed what Hale calls “disciplinary assimilation,” while the cultured sectors imposed a kind of condescending integration.

Encouraged by supranational entities and pressured by the indigenous organizations, the neoliberal State promoted a multiculturalism that took up the thesis of difference. The struggle for equality incorporated the struggle for recognition of differences, but the Maya organizations imbued the differences with new content. In the case of Maya justice, it included equal legal validity where there was inequality, and complementarity and coordination where there was separation. This re-editing of difference is a main course—not just a neoliberal dessert—that certain sectors in Guatemala are unable to digest.

CACIF alarmed about a legal “schism”

Big capital’s rejection of the reform to article 203 of the Constitution currently being debated in Guatemala was unanimous. Felipe Bosch of the Pollo Campero group and president of the Foundation for the Development of Guatemala (FUNDESA) raised the alarm during the closing ceremony of the National Meeting of Businesspeople in 2016, claiming that recognition of indigenous justice would further divide Guatemalans.

This was echoed by Salvador Paiz of the Hiper Paiz group, currently owned by Walmart, who is also vice president of FUNDESA: “I only have admiration for the ancestral indigenous authorities…. However, the proposed text on indigenous jurisdiction leaves gaps and more questions than answers…. The irresponsible approval of reforms that lack adequate coordination mechanisms, do not contain enough limits and are full of ambiguities will undoubtedly weaken our whole justice system.”

The Agricultural, Commercial, Industrial and Financial Associations’ Coordinating Committee (CACIF) set out its position in a statement of November 7, 2016: “It is not necessary to make any constitutional modification on the issue of legal pluralism, given that it is not possible to have parallel legal systems as this undermines legal certainty and equality in the eyes of the law, calls for a subjective application of the law and therefore generates confusion and again undermines certainty.”

Big Guatemalan capital has closed ranks against the constitutional recognition—in fact any type of recognition—of indigenous justice. They see it as an attempt at legal independence, with the aggravating factor that the independentistas aren’t Creoles such as themselves, separating from the capital city’s centralism, but indigenous people claiming legal community jurisdiction. They see such recognition as attacking the elites’ own centralism. Charles Hale describes the ideal country for one sector of Guatemalans as a country with neither indigenous people or ladinos, in what amounts to “a vision of classic assimilation that implicitly favors those from the dominant culture.” Iin the legal area that ideal banks on legal uniqueness.

Legal unity in a sea of regulatory systems?

The problem isn’t, as CACIF proclaims, the potential danger of a parallel legal system. A number of entities in Guatemala establish norms applied to different minorities that often contradict national legislation. For example, the Catholic Church condemns people who live together out of wedlock and doesn’t allow divorce, enjoying the ability to apply punishments ranging from light penitence to excommunication. It censors the use of contraceptives, which are constantly promoted by both the government and the United Nations Population Fund, thereby openly opposing the official demographic policy and acting against the nation-State’s project in this sense. The exclusion of women from the priesthood represents a daily abuse of gender equity, but no State demands a change in that or dares to intervene in the power of ecclesiastical jurisdiction.

Many Evangelical churches prohibit their members from enjoying rights recognized in national legislation, but CACIF isn’t worried about such citizens being subjected to a regime that stops them being equal in the eyes of Guatemalan positive law. In the non-religious sphere, organizations of the United Nations system often establish regimes for hiring and the use of intellectual property that openly contradict the legislation of the nation-States to whose citizens they apply. But none of this concerns CACIF. Nor would it even dream of demanding abolition of the Army for operating in accordance with “alternative” codes, taking on legal and policing powers to create a parallel legality that enabled and legitimized civilian massacres in the early 1980s.

Groups with their own codes

Different formal and non-formal normative systems coexist in every society. US philosopher Michael Walzer had already pointed out that positive law is only a small portion of the rules we have to observe and the obligations we commit to in order to live in society.

Obligations emanate from many sources, so people must determine their obligations by examining whether they consent to them or even to various conflicting ones. Paiz and Bosch would have come into conflict with the tacit code of both CACIF and their closest social circles had they come out in favor of indigenous justice.

Different regulations are constantly colliding. The thousands of military people who did not declare in the genocide trial of former President and retired General Ríos Montt put a military group loyalty code over their duty as citizens. Businesspeople who fail to denounce a colleague’s money laundering are protecting their own economic interests and lives, but with a clear conscience because they belong to a select dominant group with its own code of conduct above and before being Guatemalan citizens. Secret societies and churches are examples of groups with formal regulations that are frequently incompatible with the positive law of supposedly national coverage. That normative plurality is a fact that constantly breaks the legal unity over which CACIF is tearing out its hair.

Walzer holds that those groups can have very structured codes. Their big difference with the State is that they can only demand authority over a limited fragment of a country’s inhabitants and only over part of their behavior. Belonging to one of these groups implies obeying its rules with equal or greater force than the laws of that great group known as the State. These groups have enormous weight as they determine by heritage and biography what an individual accepts to do as a member of a particular community,.

What the Maya are calling for

Some of these groups, such as different churches and the Army, have their own legal system. So do the Maya groups and they are now calling for its official recognition. The idea of de facto legislation becoming a right backed by the Constitution is panicking CACIF. It argues that such recognition opens the doors to subjectivity and uncontrollable elements that threaten state unity. Perhaps they think it would institutionalize the possibility of disobeying. But such official recognition is the most sensible way to avoid the kind of incompatibility between indigenous justice and official justice that exists between the latter and other normative systems. Indigenous justice does not promote any schism. Legal diversity precedes positive law, which must live with and even to turn a blind eye to other systems. Institutionalized legal pluralism has the potential to make the state system compatible with one that is informal in certain aspects and formal in others.

Denying official recognition in the form of institutionalized legal pluralism is to deny that this plurality is already a fact. Work needs to be done on that basis to avoid shutting the door to the possibility of what Boaventura de Sousa Santos would call an “ecology of legal knowledge.”

CACIF isn’t satisfied with the possibility of coordination. Not even subordination is enough for it. It needs the fiction of a monolithic unity to ensure the State’s control. Any other formula, in its view, threatens the Guatemalan State’s unity. But its call for unity to disqualify Maya justice isn’t valid because plurality neither implies nor proposes breaking that unity.

The reality is that legal pluralism is a fact and is embodied in coordination between the two justice systems, with ladinos presenting their cases to indigenous tribunals, trials initiating in indigenous community assemblies and continuing in state courts, and auxiliary mayors having the power to judge murders and other serious crimes. This is a significant advance, as research conducted at the end of the 1990s shows that Maya justice never judged acts involving blood and death, only minor offenses such as the theft of agricultural produce and domestic animals, injuries, usurping of land, arguments, and damages to crops or persons caused by animals.

Standardize to centralize

Legal plurality as a threat to State unity theoretically raises problems that are already being successfully resolved in practice. But raising them is still significant if we understand it as an unequivocal sign of the panic affecting the dominant groups in Guatemalan society. Perhaps CACIF and the best-informed detractors of indigenous justice find echoes, or a dangerous realization, in the assessment and proposals contained in “Guatemala: from the centralist bourgeois republic to the popular federal republic,” a 1984 document attributed to the Solidary Action and Aid Movement (MAYAS).

Identified as one of the emblematic, perhaps founding, texts of Maya ethnic self-identity, it contains a forceful attack on the way the Guatemalan State has built its unity around uniformity. It presents Guatemala as a territory that harbors multiple native nationalities (indigenous peoples) and one artificial one (ladinos), with the latter having implemented a bourgeois colonial order that centralizes to standardize and standardizes to centralize better. Given that, it proposes that the Maya nationalities be constituted as autonomous political entities “to safeguard the right to existence and to the expression of cultural difference; and to reject the fallacious ideology of nation-State centralism, which sees difference as incompatible with efficacy and union, or progress as implying cultural uniformity and standardization.”

A provocative text

According to this document, participation and integration into the ladino State aren’t good enough. For this reason indigenist proposals are seen as separatist, autonomist or secessionist. But those who drafted this text aren’t leaning towards a separatist solution (creating a Maya republic), a hegemonist one (taking state power through a parliamentary majority) or even semi-autonomist one (small concessions within the ladino State). Their proposal is a federalist one: the majority Maya groups would obtain a deep form of autonomy through control and administration of integrated geographical and political districts under equal conditions in a federal State.

The proposal isn’t at all crazy. At least one theory of liberal tradition argues a demographic basis for demanding the federalist restructuring of the State. According to the UNDP, Mayas account for between 75% and 100% of the population in five departments (Totonicapán, Sololá, Alta Verapaz, Quiché and Chimaltenango) and between 50% and 75% in another four (Huehuetenango, Baja Verapaz, Quetzaltenango and Suchitepéquez).

The MAYAS document describes “chemically pure” types in which one finds none of the mixed and even contradictory positions found among Mayanists, Mayas and other activists both then and now. Its brilliant proposal is submerged in a text of hybrid terminology including both Marxist bad habits and new ideas that pushed firmly and lucidly to open a way in the gloom. It was a very premature proposal for the first half of the eighties, but it was a trailblazer offering an alternative to the moderates’ traditionalism, the Left’s tutelary assimilationism and the Army’s disciplinary assimilationism. It was no small thing in the early eighties and is still a provocative text that helps stimulate thinking and proposals.

It’s not separatism

Practicing Maya justice isn’t aimed at exercising any kind of control over the State, but rather at attaining respect and recognition, with collaboration and complementarity as an associated step. The right to indigenous justice is more in line with the nationalisms of community tradition developed by indigenous people seeking self-determination but not independence.

That understanding is borne out by the facts. As practiced, legal pluralism distances itself from assimilationism because it recovers and also builds on the tradition of the ancestors. But it also distances itself from a separatist position. Legal pluralism doesn’t amount to positive separatism. As Sieder notes, today’s legal anthropology has shown how the dividing lines between indigenous and state law are negotiated in daily practice.

The confrontational and dilemmatic theoretical visions (state justice or indigenous justice; or one vs. the other) are being overcome in practice, a turnaround made possible through combining, collaborating and mutual strengthening that demonstrate the hybrid nature of Maya justice and its potential to multiply the communicating channels with official justice. As Boaventura de Sousa Santos argues, “What is diverse is not disunited. What is unified is not uniform. What is equal does not have to be identical. What is different does not have to be unjust.”

Are the punishments and sentences so severe?

One of the most hackneyed accusations against Maya justice is that it is unjust because its sentences are excessive, given that they include corporal punishments. Newspaper opinion pages and blogs in Guatemala have been filled with comments arguing against indigenous barbarity by people aiming to emulate Cesare Beccaria, the 18th-century Italian jurist who proposed abolishing physical torture in his book On Crimes and Punishments.

These punishments have been labelled as belonging to the Maya tradition by their supporters and as alien by their detractors, a combination of stances that has led to three positions among defenders of Mayan law: those who vindicate the tradition of physical punishments, those who reject them as foreign to that tradition and those who even condemn them as colonial vices. Its most critical detractors, meanwhile, insist that physical punishments belong to that tradition, as I have yet to read an adversary of Maya justice who fails to mention such punishments.

Normally no legal system is disqualified out of hand simply due to the harshness of some of its laws, articles and punishments. For example, many activists in the United States fight against the death penalty but don’t extend that specific opposition to demanding the abolition of the entire legal system of states that include it.

A hidden premise to this out-of-hand, un-nuanced disqualification, which insists Maya communities have no right to judge and punish because their sanctions are very severe is that physical punishments are not only inherent to but predominant in the Maya justice system. But as Rachel Sieder notes, indigenous peoples’ legal systems are dynamic, not static. The Maya system includes a variety of punishments in which the reparation of damages—in strict compensation for the losses caused—occupies a central position and is the only punitive constant. Physical punishments are reserved for the most serious crimes and only used on certain occasions, many fewer than the morbid media coverage would lead us to assume, and they are not inextricably linked.

Detractors and defenders

One of the cases of Maya justice collected by US anthropologist Charles Wagley, who lived in Santiago, Chimaltenango, in 1937, was of an adulteress punished with flagellation, although he noted that this form of punishment was no longer applied. The strongest physical punishments he recorded were in fact applied by ladino justice, such as the 150 lashes and six-month prison sentence for two indigenous authorities from Chimalteca accused and found guilty of stealing even through the only evidence against them was the word of one ladino.

Detractors of Maya justice assume there are abominable clauses, articles or procedures that define the essence of Maya law. In the opposite corner, meanwhile, are essentialists of another stripe, who defend Maya justice with humanitarian inclinations that lead them to exclude from what is considered “authentically Maya” anything they find repellent and smacking of barbarity, without trying to understand its context or significance. CACIF is one of the former, while the latter include Anders Kompass, who was the UN representative in 2011 when he called on “the indigenous communities to identify their best practices, stop indigenous law from being distorted, and reject violent practices that run against their ancestral principles.”

Kompass’ position is a condescending idealization of Maya law, which also presumes that it has fixed essential features and that he knows them. But Maya law has no fixed clauses, and like any other legal and conglomerate body of procedures, it can’t pretend to have achieved perfection. It makes no sense to present Maya justice as a perfect and “authentic” system. It is being improved, for example, by legal experts. Those who deny indigenous people’s right to practice their own law by citing its weaknesses or who want to give them lessons about authenticity don’t get this.

Maya justice reintegrates the community

Some simple comparisons of severity between Maya justice and the legal systems of many nation-States dispel absolutist positions on either side of the debate, and in most cases show Maya justice off to a better light. In the case of homicide, for example, Maya punishment often involves 20 chicotazos (blows with a switch) and some form of material compensation for members of the victim’s family. There is no prison sentence and no exclusion. In contrast, the punishment for homicide in most legal systems is 30 or more years of imprisonment, life imprisonment or even death with a crippling loss of civil rights should they ever be released. Maya justice involves reintegration into the community, something impossible in many legal codes, particularly that of the United States, because, as sociologist of law Thomas Mathiesen observed, prisons don’t rehabilitate, train or reinsert anyone, but rather “prisonize” them, forcing them to adopt habits and customs from the penitentiary system that are the opposite of rehabilitating. In addition, they are stigmatized and segregated for the rest of their lives, as has happened with many former convicts in Germany, who end up homeless.

While attacks against Maya justice focus on the harshness of the punishments, any assessment of a system’s benefits must be analytically separated from the issue of legal plurality, which implies above all the conciliation of state sovereignty with the co-existence of two legal systems. Defenders of indigenous justice don’t have to defend specific sanctions, as the underpinnings of legal systems lie neither in the softness of penalties or the benefits of a penal code.

The mark of war

It is regrettable that tradition should enter into the debate mainly through the linking of punishments to ancestral Maya tradition. But it is also revealing and symptomatic of the post-war context in which the reassessment of Maya justice and the forces opposing it is currently taking place.

Recovering “custom” is complicated because Guatemala emerged from a prolonged and unforgettable stage in which indigenous authorities were annulled, replaced, harassed and even sometimes killed by the Army. The revitalization of custom, its reformulation as indigenous law and its daring incursion as part of a legal pluralism is happening in a postwar environment and bears its mark.

In the environment of insecurity that invaded the communities when a stop was put to the omnipresent armed forces, the lynching of presumed delinquents was one of the responses aimed at reducing the levels of anxiety and producing order. The reconstitution of the old community authorities or establishment of certain new ones made another solution possible: the application of community justice. The legitimacy this required came from common law and from what it was said the ancestors had done.

They help the ladino more”

In the best of all possible worlds, the ideal situation would have been full access to official justice in equal conditions. But in 1998 Juan de Dios González explained that “the Q’eqchis’ perception of the official justice system is that the authorities do not investigate the cases presented to them well, the judges deceive or steal, the employees ‘extract money,’ problems are complicated rather than resolved and there is discrimination and racism. Illiteracy, ignorance of Spanish and the distances between communities and courts are also factors that make it difficult to turn to this system.”

Some people interviewed in research studies conducted two decades ago declared that “ladino judges help ladinos more, and don’t help natives much.” As one auxiliary mayor stated, “We don’t trust the court because we’ve suffered discrimination due to the clothes we wear and our language.”

The complaints repeated ancestral accusations: official justice is negligent, corrupt, inefficient, onerous, excluding and racially biased. The latter two complaints used to justify the need for their own kind of justice reveal the colonial nature of official justice, as it involves systematic—not contingent, random or occasional—discrimination. Ladinos receive less excluding and negligent justice with better treatment in the courts than indigenous people, and they exercise a differentiated kind of citizenship prohibited to indigenous people. And this is the crux of the matter: CACIF is holding out against admitting a reality that its members—like all ladinos—benefit from: indigenous people are not Guatemalans in the same sense as they are; they do not have the same representation in the State or the same rights as other Guatemalans.

After a long history of brutal colonization

The crucial aspect of the reasoning behind the imperative of Maya justice doesn’t lie in its superior goodness, lower costs or proven efficacy. It’s not a question of choosing between two law firms, but rather of opting for the system that offers the greatest inclusion and greatest exercise of citizenship. As Boaventura de Sousa Santos points out, “Citizens’ mobilizing of judges is a way of exercising citizenship and participating politically.” The justification for having their own justice appears to be an anti-colonial citizenship-building vindication.

There’s a historical basis for the right to one’s own justice: indigenous law is a decolonizing action of vindication following a history of colonization perpetuated still by conventional law. De Sousa Santos sustains that “the idea of post-colonialism means that, if there was a historical injustice, a transitional period of positive discrimination in favor of the oppressed populations has to be allowed.” In this case, that positive discrimination is the possibility of the right to their own law.

Like any other system of justice, the Maya system involves social costs and areas that are constantly undergoing a process of improvement and has done so throughout its long history. But the issue is not whether Maya justice has had or could have uses and episodes that reproduce different forms of domination, or whether it is better or worse than Guatemala’s national system. The issue, quite simply but eloquently, is that it’s not a colonial instrument.

A justice “contaminated” by the context

Guatemalan researcher Aura Cumes says that “having fostered a pure idea of Maya law also has its costs, as there are differentiations of sex and gender in the application of justice and male power predominates in the way it is practiced to the detriment of women.” Cumes also mentions that leaders who favor a hard line have replaced elders and leaders of a proven trajectory in certain communities, and warns that the postwar tensions could favor practices with a punitive emphasis and the imposition of severe physical punishments.

Maya justice isn’t a tradition transmitted unpolluted, but is permeated by context, or “contaminated” by national social problems, as Cumes reports; thus it could reasonably be expected to reproduce gender imbalances and resort to violence. And as Sieder adds, indigenous legal systems aren’t harmonious: they’re tainted by internal power conflicts just as official systems are.

Boaventura de Sousa Santos rightly observed that “there’s nothing inherently good, progressive or emancipatory about ‘legal pluralism.’” adding that “the political assessment of non-official legality depends on the class in whose name it operates, as well as the social goals it is aimed at.” Although Santos is not unaware that justice in the Brazilian favelas relieves the official courts of responsibilities, and can legitimize class domination and maintain order in an environment inclined to outbreaks of violence, it is also one of the few instruments favela residents have to strengthen the stability of their settlements and resist the intervention of the dominant classes.

The Guatemalan context provides legal pluralism an emancipating potential because it is in itself an exercise in decolonization. And that implies that there’s something inherently backward and colonialist in denying the right to practice indigenous law in that context.

The validity of and need for collective rights

The dual bases for the validity of and need for Maya justice is thus the imperative of exercising collective rights and the fact that this collective has been systematically oppressed as a group.

Colonial oppression didn’t stop with the country’s independence from Spain in 1821, but rather carried on right up to the present in institutions, visions and habits that reproduce the colonial nature of power in the state courts. When we come up against communities subjected to systematic oppression, their members can only respond by exercising their collective rights, which foster preservation of the community and social restitution.

Canadian political philosopher Will Kymlicka has warned that the liberal theory on which both anti-immigrant arguments and arguments jealously defending national sovereignty are based restricts citizenship to the members of a particular group. It is thus beholden upon the defenders and practitioners of that theory to explain why “differentiated rights” and “differentiated citizenship” should not be granted to other particular groups within a State. The same reasons supporting citizenship for Guatemalans are valid for demanding citizenship and differentiated rights for Mayas: possessing their own languages and institutions and a common history. The demand is based on belonging to a distinct culture.

In the case of the Maya communities, we are first of all talking about a group that has been denied citizenship for centuries. In this sense, a de facto negative differentiated citizenship in Maya history, in the form of denial of their rights, has preceded the differentiated citizenship they are currently demanding and want to imbue with positive contents. The Maya peoples, rather than inventing a legacy of segregation, are taking up a historical legacy and giving it contents that seek a form of integration that makes the monolithic nation-State uncomfortable.

It’s a cultural demand

This is a well-established culture that’s not improvising a legal regime, but rather demanding recognition of a pre-existing one. The cultural demand at the heart of the reform to article 203 and in the declarations of Maya leaders is very relevant because legal systems have a palpable symbolic dimension insofar as their practices punish behaviors in order to underpin the values that maintain a society’s cohesion.

The Maya communities have values that coincide with those established in Guatemala’s legal codes (respect for life, physical integrity and honor), but their worldview and system of values imply a relationship with the land and nature, with the human environment, that’s not at all reflected in Guatemalan positive law.

Legal self-determination, which in practice leads not to isolation but rather to coordination, is based on tradition and demanded as the result of exclusion, both of which are collective events.

Pressures from without and within

A particularly thorny issue has emerged with the move towards legal pluralism: the presence of more than one legal order with official recognition in the same social field; a multiple legal obligation system. This perturbing presence raises many concerns that require reflection about practices, because they will perhaps find ways of resolving themselves in practice sooner than in theory.

One not minor concern has to do with the sovereignty of the Guatemalan nation-State: the admission that other non-state authorities can exercise legal government over certain citizens and/or in certain areas. Although the State reserves its right to the last word, a certain degree of autonomy in the government of the indigenous people and/or indigenous villages has found its way onto the stage.

Sociologist Saskia Sassen considers this a phenomenon typical of globalization, with pressures from both above (supranational organizations such as the United Nations and the International Monetary Fund) and below (villages, municipalities) that make decisions that used to be attributed to States. Today, in discussing the reform to the Constitution, the Guatemalan State has responded to both levels of pressure to recognize indigenous law. In fact, there has been an alliance between supra-state powers and local powers to promote legal pluralism, with the CICIG and the Public Ministry requesting the proposed reform and the local Maya authorities and organizations exerting pressure.

At least in relation to minorities and their rights, this is not something novel to the current globalization. International relations expert Stephen D. Krasner has tracked the occasions on which powerful States and their coalitions have imposed respect for the rights of minorities in their territory on other States, in clear violation of their sovereignty. In 1878, the Treaty of Berlin forced the Ottoman Empire to protect Armenians and Romania to grant equal rights to Jewish people.

The keynote of these forced agreements tends to be that the strongest States are seeking stability to safeguard their own interests, while the States under pressure obtain some benefit, be it recognition as new nations or independent nations, the removal of troops occupying their territory, military support, resources…. The problem is that the subjugated States cave in under pressure when they are most vulnerable and then withdraw from the agreements when they recover their strength.

So what will happen in Guatemala if the consensus among the elites is re-established following the situation of weakness affecting the current State? That danger is a reason to insist on one of Krasner’s main findings: those agreements have greater force when strengthened by internal actors. This is a point in favor of Maya justice, but one that needs to be cultivated because there are cases, as documented by Ricardo Falla in the Ixcán, in which there is dissent among the Maya communities regarding the application of indigenous law. There are also cases, mostly circumstantial, in which family members related to delinquents accused the auxiliary mayor of basing himself on a law that is “foreign and violates national sovereignty,” referring to ILO Convention 169. This implies certain risks for Maya justice. The other point in favor is that legal pluralism has in practice untied some of the theoretical knots through bold coordinations that, while not free of dangers, have left it clear that pluralism does not imply replacement, arbitrariness, subjectivity and an attack on unity.

500 years without a State to defend them

One of Hannah Arendt’s main findings in her classic, The Origins of Totalitarianism, is that minorities became stateless due to the sharing of territories and populations among nation-States resulting from the First World War.

The “share-out” that affected Guatemala’s indigenous people happened 500 years ago and has left them without a State to defend them ever since. Legal pluralism is a small but significant correction to that situation of plundering and violence, providing a decolonizing opening that was previously closed.

But opposition to that opening is visceral. CACIF’s reaction is part of a long line of denial, suppression and subjugation of indigenous peoples that began with Legislative Secree No. 14 of 1824, which suggested the extinction of indigenous languages and was hammered home with Legislative Decree No. 165 of 1876, which declared the indigenous people of San Pedro Sacatepéquez and San Marcos to be ladinos.

Even deep into the 1990s, authorities from the Public Ministry displayed their discomfort through comments like the following: “What’s happening is that indigenous people want their own judicial authorities,” and “the Maya authorities of certain populations aren’t legally constituted and the traditional authorities’ management and knowledge of crimes and offenses is a serious problem because they are violating the laws of the country.”

In the next part, we’ll look at a Maya authority who has been practicing common law for over a decade, as doing so explains what they’re doing and why and how they’re doing it.

José Luis Rocha is a researcher at El Salvador’s Central American University José Simeón Cañas and associate researcher at the Institute for Research and Social Projection on Global and Territorial Dynamics (IDGT) of Guatemala’s Rafael Landívar University.

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