Native-style justice spreads as official law
SALQUIL GRANDE, GUATEMALA — The corn-seller, wearing the embroidered blouse and red skirt of the local Mayans, bursts into the mayor's office from the clamor of the marketplace and sobs. She's been robbed.
Witnesses come in and mill around the mayor's wooden table, excitedly giving their versions of what happened.
This is justice, Mayan-style.
The village in Guatemala's highlands has never had a police station, a courthouse, or a lawyer. Instead, villagers administer justice through discussion and consensus, as they have for centuries in a native tradition being recognized across Latin America.
The mayor sends an aide to find the suspect. Within an hour, the thief returns the woman's money. The two of them leave the mayor 25 cents each for administrative costs.
Traditions like Salquil Grande's are being seen in various places as what most state legal systems are not: accessible, prompt, inexpensive, and culturally and linguistically sensitive - focusing on reparation for damages and rehabilitation rather than punishment.
Panama, Chile, Ecuador, Colombia, and Bolivia have all recognized indigenous rights to some degree in the last decade.
In Colombia, for example, natives in the Amazon region organize land ownership collectively, while native groups in Chile apply their laws where they are the majority.
"After centuries of considering [native justice] primitive, barbaric, and pagan, it must now be viewed as a credible and workable alternative to the European way of doing things - different but not inferior," says Ian Chambers of the United Nations International Labor Organization (ILO), which created an international convention on rights of indigenous peoples.
In Guatemala, where the majority of the population is indigenous, recognition of native traditions is seen as a necessity in rebuilding civil society as a whole. Despite the widespread use of Mayan law, however, it is not officially recognized in Guatemala. That would change later this year if voters approve proposed constitutional changes.
But recognition is only a first step. Native communities face enormous challenges in repairing traditions damaged by colonization and, more recently, war.
Some of the more than 150 mob lynchings in Guatemala in the past two years have occurred in native villages where former leaders of Army-controlled civil patrols have supplanted traditional elders.
Some Guatemalans have equated Mayan law and lynching - erroneously, native leaders and legal experts say - to add fuel to their opposition to official recognition of Mayan law. The legal and business elites are suspicious of a system that puts collective rights ahead of individual rights.
"If you legalize it, people could be tried under a system with norms they aren't familiar with, in a language they don't understand, without access to professional advice," warns Roberto Ardon, director of a the powerful Guatemalan business lobby group, CACIF.
Ironically, this is what indigenous people say they face in the state system. Moreover, they say, the survival of Mayan law is not just about maintaining traditions, it's about avoiding the alienation they feel in Guatemala's European-style courts.
The state legal system "doesn't attempt to resolve conflicts. It makes them worse," says Juan Leon, director of Defensoria Maya, a group trying to rebuild damaged traditions by transplanting knowledge from healthy communities to those that have lost their elders.
While both sides defend their traditions, legal observers say neither will stay unchanged. Many countries have created systems with multiple jurisdictions.
GREENLAND, the ILO's Mr. Chambers points out, is part of Denmark yet has its own legal and educational system based on indigenous customs. It has "a refreshing absence of prisons," having adopted the native tradition of forcing criminals to pay restitution, adds Chambers, who was an adviser to the peace talks ending Guatemala's 36-year civil war in 1996.
Indeed, as Guatemala moves to recognize its Mayan majority, European and indigenous traditions are already beginning to blur into a new and unique reality.
In Chajul, a few hours up the road from Salquil Grande, the town's first-ever indigenous justice of the peace is trying to bring Mayan traditions to his role as representative of the state judicial system.
"When I first arrived here, I felt like Christopher Columbus," says Fernando Ajuchan Xicai, patting a stack of law books on his desk. "I felt I was bringing a set of foreign laws that the people have never seen and didn't understand." Instead of resolving disputes with arbitrary rulings and fines that had alienated impoverished residents in the past, Mr. Ajuchan uses discussion and consensus.
And in nearby Nebaj, a new legal clinic has settled more than 500 land disputes in the past year using a similar strategy. At the end of the process, the parties walk away with a legal document that is valid in the state system and gives them legal title to their land, says Nicolas Rivera, the clinic's director.
"In front of a judge you either win everything or lose everything," says Mr. Rivera, an indigenous lawyer who speaks the local language. "Here we reach compromise."