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Legal Pluralism, Indigenous Law and the Special Jurisdiction in the Andean Countries
Raquel Yrigoyen Fajardo*

The recognition of indigenous peoples and of their right to control their institutions, habitat and territories, to self-government, legal systems, authorities, identity, languages and culture, as well as their right to par ticipate in the regional and national plans that may affect them, has supposed a long, as of yet inconclusive, struggle in Latin America. The 16 th century ideology of the natural infer iority of the indigenous people, the republican heritage of the notion of the nation-state and the state-law identity of the 19th century have impeded the full recognition of the dignity of different peoples and cultures and of the diverse indigenous legal systems. This situation has been contested by the different indigenous and peasant movements and also, over the past decade, by important normative changes. This article exposes the tendencies of the constitutional reforms in the Andean countries to signal to the similar legal framework that may lead to a pluralist horizon that allows the construction of the bases of a multi-cultural state.

INTRODUCTION
The recognition of Indigenous People, and their rights to control their own institutions, habitat and territories, to self-governance, legal systems, authorities, identity, languages and cultureas well as their right to participation in the regional and national plans that might affect themhas entailed a long and as of yet inconclusive struggle in Latin America. The colonial reality put the native peoples in a condition of political subordination, economic exploitation and cultural devaluation. The ideology of the natural inferiority of the Indians, elaborated in the 16th century to legitimize the imposition, still remains strong beneath the surface of many political parties on the continent. On the other hand, the republican heritage of the idea of the nation-state and the identification of state law since the 19th century have hindered the full recognition of the equal dignity of different peoples and cultures, as well as of the diverse indigenous legal systems, which have had to survive under conditions of illegality and subordination. This situation has been contested by different indigenous as well as by peasant movements during the past decade, as a result of important normative shifts, which I wish to address here. In the final decade of the 20th century there was a tendency that resembled the constitutional reforms initiated by the countries that make up the Andean Community of Nations: 1 Colombia, Peru, Bolivia, Ecuador and Venezuela. These countries had ratified Agreement 169 of the 1989 International Working Group on Indigenous People and Tribes in Independent Countries (Organizacin Internacional del Trabajo sobre Pueblos Indgenas y Tribales en Pases Independientes de 1989), which gave

*
1

Ph.D. Candidate , University of Barcelona. Editor, Por tal of Law and Society (http:// www.alertanet.org). Cartagena Accord, signed on March 10, 1996. See www.comunidadandina.org

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them a similar legal framework. Among the normative reforms, I would like to highlight the recognition of: a) the pluri-cultural nature of the state/nation/republic, b) the rights of indigenous people and peasant communities, c) indigenous law and special jurisdiction. Although these reforms are not exempt from contradictions and limitations, it is fitting to interpret them from a pluralist perspective that allows for the construction of the bases of a pluri-cultural state.

THE CONTEXT OF THE CONSTITUTIONAL REFORMS

The last decade of the 20th century, what can be called a pluralist horizon emerged as a new model for the multi-cultural generation.2 It occurred in the context of the international questioning of 500 years of Discovery/Invasion, the adoption of Agreement 169 by the International Working Group, movements for the restoration of the rights of indigenous people, and constitutional reforms in more than 15 Latin American countries.3 The core of these changes is that they question three basic legacies of prior periods. First, they consider the recognition of indigenous people as political subjects and not merely as the object of a politics dictated by others; that is, as subjects with rights to control their own institutions and self-define their own destinies. This is important for dismantling the ideology of inferiority and the supposed need for the tutela established in the colonial period to legitimize the political subordination and economic exploitation of native peoples. Second, they question two central legacies of republican legality: the binomials nation-state and state-law. They break down the idea that the state represents a homogeneous nation (with a single cultural, linguistic and religious identity), and come to recognize cultural, linguistic and legal diversity. In questioning the 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 international tendency: the reception of the so-called neoliberal socio-economic model, which is based on promoting deregulating mechanisms to smooth international transactions, freeing them from the rules of competition and the market. The idea of the protectionist welfarestate is abandoned. In many countries the effect of these policies has been to facilitate the presence of multinational extraction corporations (timber, petroleum, mineral) on indigenous territories, where the state has turned over broad powers to the companies while restricting those of the indigenous people who inhabit the area. The conflicts between such companies and indigenous people have not been long in coming.

THE CONTENT OF CONSTITUTIONAL REFORMS IN THE ANDEAN COUNTRIES4

The Andean countries that have reformed the constitution to include some form of recognition of indigenous law and special jurisdiction are: Colombia (1991), Peru (1993), Bolivia (1994), Ecuador (1998) and Venezuela (1999). A comparative framework of the constitutional reforms in these countries allows us to see some common characteristics. These states, in turn, are signatories of Agreement 169 of the International Working Group on Indigenous People and Tribes in Independent Countries.
2

3 4

During the colonial era, diversity was dealt with through a politics of subordination and segregation; during independence and the early republic through politics of assimilation or indigenous cultural disappearance, and since the mid-20th centur y, through integrationist politics which partially recognize indigenous rights yet retain their subordinate status. See: Marzal (1986) and Yrigoyen (1995). Van Coott (1999). For this point I use and update the article: Raquel Yr igoyen, Reconocimiento Constitucional del Derecho Indgena y la Jurisdiccin Especial En Los Pases Andinos (Colombia, Per, Bolivia, Ecuador), in: Revista Pena y Estado # 4. Buenos Aires, INECIP and Editorial El Puerto, 2000.

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Background: Pluralist Characterization of the Nation and the State

The first change one observes in these constitutional texts is the recognition of the pluri-cultural and multiethnic character of the state configuration or of the nation, which is the first time that this has occurred in the history of these republics. This is very important because it is the basis for recognizing linguistic and legal plurality, as well as the recognition of specific indigenous rights. The verb used in the constitutions is recognize, to the extent that the constitution is not creating the situation of cultural diversity, but rather recognizing it. 5 By officially assuming the pre-existence of indigenous peoples and thereby making amends for a historical negation, the constitutions also recognize the preceding laws and open the possibility of co-existence and democratic participation. The fifth paragraph of ILO Agreement 169 explicitly states:
Recognizing the aspirations of such people to assume control of their own institutions and ways of life and their economic development, and to maintain and strengthen their identities, languages and religions within the framework of the States in which they live.

The Formula for Recognition of Legal Pluralism in Andean Countries

The formulas employed by the Andean countries for the recognition of customary or indigenous law contain similar elements and scopes, with a few variations worth considering. The recognition of indigenous legal systems turns a democratic harmonization with the national legal system and state powers into a possibility. It also allows for the reduction of institutional violence.6 The constitutional formulas employed in Andean countries generally include the recognition of the jurisdictional or justice-related functions of indigenous community and/or peasant authorities according to their customary law, or their own norms and procedures, within the territorial sphere of indigenous or peasant peoples or communities. That is to say, they recognize the organs of indigenous conflict resolution, and their norms and procedures. The limit to this recognition can be likenedwith some variationsto that of Agreement 169 of the IWG, which states that there should be no incompatibility between customary law and the fundamental rights defined by the national legal system, nor with internationally recognized human rights. Some constitutional formulas are much more limited on this point, but in this case the Article takes precedence, as I analyze below. Additionally, all of the constitutional texts make reference to a constitutional law which coordinates or harmonizes a special jurisdiction or indigenous legal functions with the national legal system or state powers. Given that the Andean countries have ratified Agreement 169 of the IWG, the Agreement should be interpreted alongside the constitutional text. It is worth noting that Article 35 of the Agreement should be used here as an interpretive criterion, as it establishes the primacy of those norms (including national agreements and policies) which afford the most rights and advantages to indigenous people (IP). The analysis that follows can also be applied to a great extent to the states

1991 Colombian Constitution, Art. 7: The state shall recognize and protect the ethnic and cultural diversity of the Colombian nation. 1993 Peruvian Constitution, Ar t. 2: All people have rights , paragraph 19: To their ethnic and cultural identity. The state shall recognize and protect the ethnic and cultural plurality of the nation. Amendment to the 1994 Bolivian Constitution, Ar t. 1: Bolivia [shall be] free, independent, sovereign, multi-ethnic and plur icultural [...]. 1998 Ecuadorian Constitution, Ar t. 1: Ecuador as a social state of law is sovereign, unitar y, independent, democratic, pluricultural and m ultiethnic. 1999 Venezuelan Constitution, Article 100: The popular cultures which are par t of the Venezuelan identity enjoy special attention, recognizing and respecting intercultur ality under the principle of the equality of cultures (...). Some object to constitutional recognition of indigenous legal systems, using the argument that the creation of many systems w ould generate chaos. Yet the constitutions are not creating an ything, but rather recognizing something which already exists in the social reality. What it does create are bridges of understanding and articulation, and conditions for their development.

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that have ratified Agreement 169 of the IWG without including explicit constitutional reforms to recognize indigenous law. Agreement 169 of the IWG establishes, among other provisions:
Art. 8.2: Such peoples must have the right to preserve their own customs and institutions as long as these are not incompatible with the fundamental rights defined by the national legal system, or with internationally recognized human rights. Whenever necessary, procedures should be established to resolve conflicts that may arise in the application of this principle. Art. 9.1: To the extent that they are compatible with the national legal system and with internationally recognized human rights, the methods customarily adopted by said peoples for the repression of crimes committed by their members must be respected.

The Point of Recognition

The first thing that stands out in Agreement 169 of the IWG and the constitutional texts of the Andean countries (AC) is that there is recognition of three minimum elements: a) b) c) The system of customary norms or law, including the normative and regulatory powers of peasant and indigenous communities and peoples (in the cases of Peru and Bolivia), The special jurisdictional function (SJ) or the capacity to impart or administer justice. This includes the autonomous validity and efficacy of the SJs decisions, and The institutional system of authorities, or the power to govern with ones own institutions of self-government, including their own mechanisms for designating, changing and legitimating authorities.

Before constitutional reform, the regulation of the different Andean communities only allowed for custom as a secondary source of law, operating in laws absence and never in contradiction to it (contra legem ), which could constitute a crime. By recognizing the functions of justice and jurisdiction of the indigenous/peasant peoples and communities following their own law and applying it through their own authorities, [the constitutional reforms] explicitly admit the existence of different organs of judicial, legislative and executive power for the production of law and legitimate violence. They admit the so-called customary law not only as a source of law, but rather as its own law which can even be applied against [state] law. 7 This is the position of constitutional scholars Bernales and Rubio. The recognition of a special jurisdiction allows for the exercise of the jurisdictional function by an organ or organizations that are distinct from the Judicial Power, limiting the principle of the unity and exclusivity of the Judicial Power for that purpose, as enshrined in Section 1 of Article 139 (Bernales 1999: 682). Hence, when indigenous or communal authorities exercise these jurisdictional functions, the ordinary courts must refrain from intervening or risk acting unconstitutionally, notes Rubio. 8 In any case, the court would have to prove that it was dealing with matters outside of the competency of special jurisdiction (such as when events take place outside of their territorial sphere). Special jurisdiction includes all of the powers of any jurisdiction: Notio, Iudicium, Imperium or Coercio. That is, the authority to review relevant issues, including operative functions such as calling witnesses, collecting evidence (Notio); the ability to resolve relevant issues using its own law

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 opposed to merely legalstatus (Diario de Debates CCD, 12 April 1993 and 23 June 1993). We also understand that when a process of this type exists, the ordinary tribunals should restrain themselves, even when they can act de oficio, as f ailure to do so would be unconstitutional under this article (149) (Rubio1999: 208).

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(Iudicium), and, finally, the ability to use force to render effective its decisions when necessary. This includes actions that may restrain rights, such as executing detentions, demanding payment or labor, etc. ( Coercio or Imperium). 9 Colombias Constitutional Court has repeatedly recognized the jurisdictional nature of indigenous people, including the afore-mentioned powers. Acts of personal coercion derived from the exercise of the special jurisdictional function (within its territory and according to its laws) do not, by definition, constitute the usurpation of functions of ordinary jurisdiction, or the crime of kidnapping, illegal privation of freedom or any other type of crime, but are rather like the arrest, communal labor, imprisonment, seizure or containment to which people are subject under the legitimate order of ordinary jurisdiction. As recognized by the constitution itself, this represents the exercise of a rightthe right of peoples and communities to exercise jurisdictional functions. As the exercise of a right cannot be considered a crime, not only can its exercise not be prohibited, it must moreover be protected and legitimized. The Constitutional Court of Colombia has repeatedly recognized these powers of special jurisdiction. This clearly includes not only general coercive powers, but also specific punitive powers which are outside of the realm of ordinary criminal jurisdiction (San Martn: 90-91).
The Official Subject of Law

Agreement 169 of the IWG has indigenous peoples as the official subject of law, while the constitutions of the Andean countries mention peoples, communities, peasant and native communities and peasant councils (rondas campesinas ). The constitutional text and the Agreement should be interpreted systematically, using the interpretation most favorable to indigenous people. Based on Agreement 169, Indigenous Peoples in general have the authority to apply their customary law and exercise jurisdictional functions not only in the communal instances mentioned in some constitutions (Peru). The concept of people ( pueblo) is more comprehensive than that of community as it can include forms of communal organization that are not recognized by the law or, while recognized, that do not fall within the letter of the law. This concept of people also includes supracommunal organizations, extended ethnic groups, federations or so-called un-contacted people with marginal legal status.10 To understand the effects of the definition of indigenous people, one must consider the right to self-definition enshrined in Agreement 169 (Article 1, section 2). If in fact the term people is broader than the term community that does not mean that these rights should not be recognized when there are only communities and not indigenous people with all their components. It is worth remembering that it is precisely colonial and republican history that has had the negative effect of pulverizing many peoples into communities, diluting and transforming many of the elements of their identities. In some cases this impact includes the loss of indigenous languages, communal ownership of land (due to the expansion of haciendas during the republic), supra-communal power structures, and the very act of calling themselves indigenous, due to the negative connotation assigned to that word. The term indigenous was successfully substituted by that of peasant (campesino) in several countries beginning mid-century and continuing until the present (Peru, Bolivia, and other Latin American countries such as Guatemala during the agrarian reform of 1952). It is important to realize that indigenous peoples and cultures are not static, even though concep-

10

See: Snchez Botero and Jaramillo (2000: 130-131), who in turn cite the Omeba Legal Encyclopedia in their definition of jurisdiction. Volume XVII, p. 538-9, SA. Buenos Aires . Article 1, Section 1 says: b) it follows from Agreement 169 that the same shall be applied to those peoples in independent countries considered indigenous due to the fact that they have descended from populations which inhabited a country or geographic region belonging to the country during the conquest, colonization, or establishment of current state boundaries, and 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 and re-creating themselves. Therefore, there are many collectiveseither Andean or of some other originthat have their own identity differentiating them from the rest of national society, with their own legal culture and institutions, but which no longer speak indigenous languages nor maintain customary elements which are considered part of the stereotypical indigenous identity. 11
Indigenous Authorities

The constitutional charters mention the power of the authorities of indigenous/peasant peoples/ communities to exercise jurisdictional or justice-related functions. The constitutions of Colombia, Peru and Ecuador simply speak of authorities, while in contrast the Bolivian constitution is more explicit in indicating natural authorities, as is that of Venezuela, which speaks of legitimate authorities. The reference to the authorities of indigenous peoples or communities alludes to those individuals or collectives (assemblies, collegiate bodies) which, according to the indigenous systems, have the authority to govern, resolve conflicts or regulate social life. This includes the authority of indigenous peoples and communities to have their own institutional system for self-governance, the organization of social order and conflict resolutionwhat we would call justice or jurisdictional 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 that indigenous peoples assign to them. Agreement 169 of the IWG refers to the recognition of the institutions of indigenous peoples, which would include not only specific authorities but also the form of institutional organization. Here it is fitting to include also the institutional systems that are appropriated by indigenous peoples, even though they are of foreign origin. State practices that imply the nomination or imposition of certain peopleindigenous or otherwiseas authorities of indigenous peoples or communities become incompatible with this right. Moreover, they would constitute a violation of the right to cultural life (article 27 of the International Pact on Civil and Political Rights), the right to self-identification (Agreement 169 of the IWG), and the constitutional norms recognizing the organizing autonomy of indigenous communities and peoples.
Jurisdictional Authorities

With regard to territorial, material and personal authority, the constitutions of Colombia and Peru share, a grosso modo, the same criteria based on territorial authority. The Bolivian constitution does not explicitly mention the topic. The Ecuadorian constitution speaks of jurisdiction with regard to internal conflicts without specifying whether this is with regard to territory, people or subject. The Venezuelan constitution limits territorial and personal authority. I will analyze the scope of these against the backdrop of Agreement 169 of the IWG.
Territorial Jurisdiction

In principle, Agreement 169 of the IWG (Articles 13-15) recognizes that indigenous peoples have the right to land and territory as a space for collective management. This refers to the place that they
11

The 1982 Canadian Constitution offers an interesting example of how to grant rights to collectives that do not properly fall within the category of indigenous , but which have an indigenous heritage and identity differentiating them from the rest of the national society. This is the case with the 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 consider themselves to possess their own unique cultural identity, which is neither indigenous nor Western (Borrows and Rotman 1998: 465-497).

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occupy or utilize in some way for activities that allow for their material and cultural reproduction. Hence, having jurisdictional authority over that which occurs within such a space is part of the very definition of territorial rights. Jurisdiction over territory is nonetheless a minimum, not a constraint, as the reach of the indigenous jurisdiction can extend to material and personal authority. In fact, under personal authority, the indigenous jurisdiction could have extra-territorial authority. In the Colombian and Peruvian constitutions, the founding criterion of the indigenous jurisdiction is territorial. That is, the indigenous jurisdiction and customary law are the rule within the territorial space of indigenous or peasant people or communities. In these countries, the constitution and laws recognize the territorial space/collective lands of indigenous, peasant or native peoples and/or communities. In Bolivia and Ecuador there is no specific mention of a territorial jurisdiction. Nonetheless, a fitting interpretation of territorial rights as recognized by Agreement 169 of the IWG would be that to the extent that matters of justice or administration and the application of norms are granted to the authorities of indigenous people or communities, those same powers must apply within the territories occupied and used in some way by such people. The Venezuelan Constitution expressly points out that indigenous authorities have the right to apply their applications of justice within their territory (habitat). Yet it also includes a limitation to personal authority that I will comment on later. It is important to distinguish territorial jurisdiction in order to better understand cases and therefore to validate the decisions of the indigenous jurisdiction and law. 12 Indigenous law and the special jurisdiction have authority with respect to events, cases or situations, or legal relations that occur within the territorial sphere of indigenous peoples, peasant or native communities, or peasant councils (rondas) .13 Yet the efficacy of such decisions has a national scope.14 In order to give meaning to the concept of a territorial sphere it is important to use Agreement 169 of the IWG, which defines territory as the totality of the habitat of the regions that the peoples occupy or utilize in some way (Art. 13.2) and even includes among territorial rights lands that are not exclusively occupied by them, but to which they have traditionally had access for their traditional and subsistence activities (Art. 14.1). The territorial sphere is thus not equivalent to the proprietary lands of indigenous people, communities or councils, but rather to the geophysical space that they use in some way. This is important because in many countries not all indigenous peoples or communities have title to their land or perfectly delineated borders. Moreover, there are communities that lack any legally recognized communal lands. In some cases, such as that of the Peruvian Constitution of 1993, the sale of communal lands is permitted unless it results in the disappearance of the community as a collective entity subject to rights.15 The important point is that it deals with the space upon which these peoples and communities interact in some way. It is in this space, therefore, that indigenous/communal justice and law are applied. In this respect the Colombian Constitutional Court has established the precedent that the term territory not only refer to legally recognized lands, but also to those habitually occupied by an indigenous community16 or those
12 13

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I take this definition from Snchez et al. 1999: 132 The Colombian Constitutional Cour t has upheld the same criterion: In Ruling ST-496 of 1996 () it was affirmed that one of the elements of this jurisdiction is (...) of a geographic nature, which allows each community to judge matters which occur within its territory (...) (Snchez et al. 1999: 132). We can see the validity of the decisions of indigenous authorities throughout the national territory; for example, using the national police to return fugitives to the indigenous territory and indigenous authorities so that the imposed punishment can be carried out in indigenous territory. See Ruling ST-349 of 1996 (Snchez et al. 2000: 133). In Peru, the peasant councils of farms and villages do not have communal lands but do have delineated public spaces along the edges of the farm, village or hamlet (which is the space of the registered families who participate in the assemblies). For example, this is the case with Ruling T-254 of 1994: despite the fact that the indigenous community had not even legalized the property on the occupied land, the Court considered the exercise of the legal capacities within the territory on which the community had settled to be a precedent (Snchez et al. 2000: 133).

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partially possessed areas which comprise not only habitats and exploited lands but which also constitute the traditional realm of their economic and cultural activities (Ruling T-384 of 1994).17 A point on the Venezuelan case: the Venezuelan constitution is the only one which expressly reduces the territorial authority to personal authority as indicated in Article 260:
The legitimate authorities of the indigenous peoples may apply in their region (hbitat) only those instances of justice based on their ancestral traditions which affect their members [...].

Hence, it appears to follow from this article that the indigenous jurisdiction can only be applied to cases within the [indigenous] territory or habitat that affect its members, while it cannot be appliedeven within the [indigenous] habitatwhen a third party, meaning non-indigenous persons, is affected. There are two principles in conflict here. One alludes to the idea that a legal system applies to those who participate in the same social and cultural frameworks. However, this principle can be countered by another: the need to strengthen and appropriately guarantee the recognized collective rights of indigenous peoples as enshrined in several articles of the Constitution. Here a systematic interpretation becomes necessary. If the third parties carry out acts within indigenous territory which in no way affect indigenous rights or goods, then it would not make sense for indigenous law and jurisdiction to be enforced. Yet in the event that the third parties affect or in some way compromise the goods, rights or relevant interests of indigenous peoples or their members, such peoples have the right to intervene to protect said rights. The Venezuelan Constitution itself, in articles 119 and 121, recognizes the right to existence and self-organization, 18 such as the right to native lands, culture, form of organization, practices and customs. Therefore, if third parties enter indigenous territories or habitat and commit acts which affect or in some way compromise the existence, customs, rights or collective goods of indigenous peoples or their members, then the indigenous peoples have a legitimate right to intervene and defend their rights. This is not to imply, however, that any specific mechanisms that are developed to resolve intercultural conflicts are permissible, even if they violate human rights. Additionally, there is also an extra-territorial competence or jurisdiction for the case of indigenous people who commit acts outside of the sphere of indigenous territory, which I will analyze later.
Material Competence

The indigenous special jurisdiction has the competence to review all matters that it deems convenient within its territorial realm (that of the indigenous people/community) and, under certain circumstances, even outside of that territory, with regard to certain members. Neither the constitutions of the Andean countries nor Agreement 169 establishes a limit on the subject matter or the seriousness of crimes that can be handled under indigenous law. And where the law makes no distinction, the interpreter cannot distinguish, cut down or reduce. This breadth is consistent with
17 18

Snchez et al. (2000: 133). Venezuelan Constitution, Ar ticle 119, on the right to e xistence and autonomous organization: The state shall recognize the existence of indigenous peoples and communities, their social, political and economic organization; their cultures, practices and customs, languages and religions, as well as their territory and native rights to the lands that they have traditionally occupied and which are necessary to develop and guarantee their ways of life. It shall be the task of the National Executive, with the participation of indigenous peoples, to demarcate these lands and guarantee the right to collective ownership, which shall be inalienable, non-negotiable and non-transferable, in accordance with the Constitution and the law. Article 121, on the right to indigenous cultural and ethnic identity: Indigenous peoples have the right to maintain and develop their ethnic and cultural identity, w orldview, values, spir ituality and sacred spaces of worship. The state shall encourage the valuation and diffusion of indigenous 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 traditions, norms and procedures (Venezuelan Constitution); that is, in accordance with the ruling legal system of the indigenous people or community. Because each legal system has its own way of classifying and reconstructing social facts according to its own values and categories, it is also up to each system to define which social facts seem relevant to merit its intervention. Moreover, the very construction of relevant facts is culturally conditioned, and does not necessarily coincide with or correspond to the categories of official law, even though such categories might be utilized for reasons of comparison. This breadth of subject matters is also dealt with in Agreement 169, which mentions, tellingly, matters referring to the ownership and use of land, methods for punishing crimes, the form of social, political and economic organization. In summary, indigenous legal systems have the authority to oversee all matters, regardless of gravity or scope, in which they have an interest in making such matters agree with their norms and procedures.19 A point with regard to the Venezuelan Constitution: it states that the application of instances of justice within the [indigenous] habitat is to be based on ancestral traditions. This does not necessarily mean that indigenous people are subjects of the past and cannot innovate. That is why, in the interests of developing a systematic interpretation, it is necessary to underscore the fact that the recognition of the special indigenous law and jurisdiction provided by the Constitution and Agreement 169 of the IWG does not refer to specific norms, traditions, customs or procedures, but rather to the power to self-regulate and resolve those social conflicts that are deemed relevant. In summary, the special jurisdiction has the power to review matters that it considers relevant, whether or not they are codified in official law, considered mild or serious, or whether they qualify as criminal or civil under official law, as the special jurisdiction is not determined by state law, but rather by its own law. 20 The Peruvian constitutional scholar Marcial Rubio clarifies this point in his analysis of the extent of Article 143 of the 1993 Peruvian Constitution:
Jurisdiction shall be exercised according to customary law. This means that the customs of the place will be applied (). Any type of custom may be applied: those that fill a gap in the law and those that reinforce the law because they are mentioned within it () but also those that go against the law (traditionally prohibited under our law), and it is precisely for such cases that such authorization is necessary (Rubio 1999: 200).

Criminal law scholar Csar San Martn also accepts this point of view in pointing out that the special jurisdiction (also called the community, indigenous or traditional jurisdiction) constitutes an exception to the ordinary jurisdiction, and in such cases it is the ordinary jurisdiction which must not intervene.21 The Colombian Constitutional Court has made a similar ruling, recognizing the competence of the special jurisdiction even in cases of homicide (Snchez et. al. 2000: 132). Any external reduction of the matters that can be reviewed under the special jurisdiction would be counter to the

19

20 21

Some legal efforts at constitutional development in some countries (such as Peru, Argentina, Mexico), attempt to reduce the material competence of indigenous people to fewer or less serious cases, or only to civil or criminal cases where public goods are not at stake. Nonetheless, this limitation has no legal basis in either the constitutions or in Agreement 169 of the IWG, which explicitly mentions criminal matters. Bernales 1999, Rubio 1999, San Mar tn 1999, Pea 1994, Yrigoyen 1994, 1995. Criminal infractions fall under the ordinary jurisdiction, which is the basic or common form of jurisdiction. All processes that are not explicitly attributed to other jurisdictions fall under the ordinary jurisdiction, exceptions to this must be casuistically laid out in terms of scope and procedures. From this point of view there are, as noted above, three types of special jurisdiction: first is the juvenile jurisdiction (jurisdiccin tutelar [menores]). Second is military jurisdiction. Third is traditional jurisdiction, which is dedicated to the application of customary criminal law for matters deemed criminal under the law which are committed by members of the Native and Peasant Communities within their territory (San Martn 1999: 90-91).

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constitutional ruling and would affect the fulfillment of Agreement 169 of the IWG. In any case, the special jurisdiction itself can decide, if it sees fit, to delegate matters or cases to the ordinary jurisdiction for review, or to ask for military or police support. The lack of legal arguments establishing limits to the jurisdictional competence of indigenous peoples reflects the persistence of the colonial idea that the indios only have the competence to handle small or marginal cases that do not affect the law.
Personal Competence

Personal competence has only been explicitly mentioned in one constitution. The wording of the Colombian and Peruvian Constitutions can be understood as meaning that the indigenous jurisdiction extends to all individuals within indigenous territory, such that it in effect establishes the basis for territorial competence. In Bolivia it depends on what is established by their customs and procedures. And in Ecuador it depends on what their own law defines as an internal matter, hence there are cases in which indigenous people and communities consider a case to be internal when it takes place within their territory or affects indigenous individuals or goods, even when such cases involve the participation of non-indigenous people. In almost every country the communities are mixed, the migration rates are high and the inter-ethnic relations are frequent and complex. The right to ones own law has two bases. One, which might be characterized as cultural, is the fact of the individuals participation in a certain cultural system. In principle each human person or group has the right to be judged within the normative system pertaining to their culture. The otherwhich may be characterized as politicaldeals with the protection of a collectives power to control its institutions and determine what happens within its territory, thereby guaranteeing its reproduction as a collective and the rights of its members. This second basis avoids the possibility that people who do not belong to indigenous peoples or communities (i.e., non-indigenous) might commit harmful acts within the indigenous territory claiming as a defense that they cannot be judged under such a system. In general, harmful acts that occur within indigenous communities and are committed by non-indigenous actors usually result in no reparation at all as such individuals try to free themselves from the control of the indigenous systems and are beyond the reach of the state. Moreover, the intervention of state mechanisms in indigenous peoples and communities has chipped away at indigenous legal systems, thereby affecting the very life of the community. The constitutions of the Andean countries show a clear commitment to protect the cultural and biological existence of indigenous peoples, as well as to strengthen indigenous law. And Agreement 169 of the IWG highlights among its considerations, the aspirations of the Indigenous Peoples to control their institutions. Here it is clear that indigenous law is strengthened by affirming its application over indigenous and non-indigenous people throughout indigenous territory, with the goal of protecting indigenous rights and goods. This allows for the strengthening of indigenous community life and avoids the intervention or presence of the police, judges, or other agents of state law, who for centuries have weakened indigenous peoples and communities. This in turn is the operating logic of any legal system. In summary, when we examine the constitutional goal of recognizing and strengthening the special jurisdiction within the [indigenous] territorial realm, we do not find arguments which a priori exclude from judgment any non-indigenous individuals who commit punishable acts within communal territory. 22

22

This point is a matter of discussion in Colombian jurisprudence as well as in other countries. It attempts to take into account whether the outsiders were familiar with indigenous customs. In practical terms, the communities apply some rules to outsiders, especially with regard to compensation for damages, but not others that depend on a persons participation in the culture and the community. Cultural belonging is an impor tant criterion for judging any personindigenous 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 or obligatory nature of the system for indigenous people. That is, whether indigenous people who do not wish to be subjected to the jurisdiction are required to do so, or whether they can turn to another system. The different Andean constitutions clearly establish that the authorities of the indigenous people and communities have the power to apply indigenous law and the special jurisdiction or indigenous justice. That is, the authority rests in said people and in their institutions for collective decision-making. It is not up to individuals to decide whether or not they will be subjected to indigenous law or justice. As with every legal system, the indigenous legal systems have areas of obligatory interventionsuch as when goods that the community considers part of the public interest are affectedand optional areas of interventionsuch as in individual or family matters, yet the system as a whole is obligatory and is imposed on individuals; otherwise the very validity of the system itself would be at stake. Agreement 169 of the IWG establishes the rights of indigenous people (IP) to apply their own methods to the prosecution of crimes committed by their members (Article 9.2). It establishes, on the one hand, the rights of IP members before the state, to be judged by the methods of their own people rather than according to state law. Yet because the responsibility of IP is to the collective rather than to individuals, the system is not voluntary for people as individuals; thus individuals are in no position to legally flee from their system when they find it inconvenient to pay for a mistake, work, or comply with a sanction. In any case, under the special jurisdictional power of indigenous people, the people themselves do have the ability to consider under what circumstances they choose to intervene, which cases they judge directly, or even when they might request the collaboration of the police or ordinary jurisdiction. The rulings of the Colombian Constitutional Court are consistent on this point, maintaining that the communitynot individualshas the power of jurisdiction, and that its members cannot escape from it when it is convenient (i.e., to flee sanction). The special jurisdiction also includes the right to rely on the help of the public forces (police) when some individuals attempt to flee from indigenous justice without paying for the damages caused within the community.23 Another subject is that of personal competence with regard to indigenous people outside of the indigenous territory/habitat. Here the cultural basis for law would apply. In dealing with situations or events that only affect indigenous people but which take place outside of communal territory (for example a conflict between a couple or an issue within a family), it is clear that indigenous law and jurisdiction can intervene, as the cultural and normative framework is still in effect for such persons. In such cases it would be up to the indigenous jurisdiction to decide whether or not to intervene. In such cases an appropriate parallel can be made to international law, as there are civil and even criminal cases in which national systems have extra-territorial powers in order to define rights and obligations or sanctions, such as family relations, inheritance and succession, and some types of crime. I insist that this depends on the decision of the indigenous bodies as to whether or not to decide to intervene. It is sufficient for the affected person to demand the intervention of his or her system and to question the intervention of the ordinary jurisdiction, when this is part of the legal practice of a certain community or people. If the special jurisdiction is ready to intervene, the ordinary jurisdiction must step aside. In the cases of the competence of the ordinary jurisdiction, including those in which acts occurred outside of the territorial realm, [the law] is required to consider the cultural conditioning of the indigenous actors during judgment and sanction. This could conceivably lead to an indigenous territorial exemption and affect the goods and rights of third parties, including the attenua-

23

This is the ruling of the Colombian Constitutional Cour t. To guarantee the coercive power of the indigenous special jurisdiction (ius imperium), the Court has ordered the Colombian police to collaborate with indigenous authorities in the capture of those who have fled indigenous territory as a wa y to evade sanction: Ruling ST-349 of 1996. See: Snchez Botero et al. (2000: 142).

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tion of punishment, when the actions are not considered reprehensible in the relevant indigenous culture.24 Two principles are at work here. In the first place, a person cannot be condemned for committing acts that are acceptable within his or her culture, as he or she can offer no real defense. In the second place, when dealing with issues that are differently valued by different cultures, the equal dignity of cultures prevents one cultural orientation from criminalizing a practice that is culturally accepted by other peoples. In any case, there is a vast task here for intercultural dialogue and agreement.
Human Rights: Limit or Standard

The only limit to customary law established by Agreement 169 (Article 8.2) is the non-violation of fundamental and human rights. In this sense, those who attempt to suggest that the special jurisdiction should be subordinated to the ordinary jurisdiction, or that it cannot interfere with the ordinary jurisdiction, or that it should be controlled or reduced, are using an interpretation that is not in harmony with either the letter or the spirit of Agreement 169, nor with the principles of a systematic, teleological and progressive interpretation. The Peruvian Constitution establishes a similar limit in Article 149, which indicates that the exercise of special jurisdictional powers should be done in conformity with customary law as long as it does not violate the fundamental rights of the individual. The constitutions of the other Andean countries tend to be more restrictive. Those of Colombia, Bolivia, Ecuador and Venezuela limit the recognition of the special jurisdiction (Colombia) or of indigenous justice (Bolivia), functions of justice (Ecuador) or applications of justice (Venezuela) with regard to the constitution and its laws. The Venezuelan Constitution also adds the notion of public order (orden pblico ) as an exception. In such a case, it is obvious that the indigenous special jurisdiction will be severely limited. Given that such limitations are less favorable to indigenous communities than the provision of Agreement 169 of the IWG, the norm which concedes more rights and advantages to such communities is the one which takes effect, as laid out by Article 35 of Agreement 169 of the IWG, which has legal standing in all of the Andean countries. Along these lines, the Colombian Constitutional Court has upheld a ruling that if the special jurisdiction had to respect the entire constitution and all of the laws, it would become void of meaning, hence it need only respect what are called the fundamental minimums: the right to life (no killing), physical integrity (no torture), freedom (no enslavement), and the predictability of the sanction as a principle of due process.25 I argued above that the exercise of jurisdictional functions can involve certain legitimate, legal restrictions on rights (detentions, investigations, sanctions, some forms of personal coercion, etc.) which do not constitute a crime or violation of human rights per se. If a certain measure violates human rights, then that measure should be analyzed, but the mere use of the special jurisdiction by indigenous communities and authorities does not itself constitute a violation.
Intercultural Interpretation of Human Rights

In the different constitutions of the Andean countries, the state recognizes the pluri-cultural character of the nation/state/republic and, consequently, the right to cultural diversity. Moreover, it recognizes legal pluralism, with the corresponding right to an indigenous/peasant special jurisdiction (with its legal and jurisdictional powers). Therefore, the definition and interpretation of human rights cannot remain in the hands of a single cultural orientation nor a single institutional system without jeopardizing the right to diversity. Human rights must be defined and interpreted based on

24

25

This is dealt with in Article 15 of the Peruvian Criminal Code of 1991, under the heading of the error of culturally conditioned understanding. It is also established by Agreement 169 de la IWG (Art. 9, section 2: 10 and 12). See: Snchez Botero (1998) and Snchez et al. (2000).

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intercultural dialogue. Thus, any perceived violation must be handled within the Andean countries themselves. Under no circumstances can the mere exercise of the special jurisdiction, where appropriate, be considered a violation of human rights, given that it is a constitutional right. In the case of possible conflicts between customary law and human and fundamental rights, Agreement 169 of the IWG states that adequate procedures must be established to resolve such conflicts (Article 8.2). Such procedures have not been established and must be created in consultation with indigenous people (Article 6). The objective of such procedures would be to guarantee an intercultural interpretation of the events and of the law itself in order to honor the recognition of the right to diversity as laid out in the different constitutions of the Andean countries. One possibility might be the creation of mixed courts composed of state judges and indigenous or community authorities who employ moderate rules to resolve apparent conflicts between the special jurisdiction and human rights (rather than based on a single law: either state law or customary law), trying to understand the different positions (from their own cultural frameworks) and promoting arrangements to prevent violence and the violation of human rights (attending to the demands and needs of all sides).26 The goal is for the indigenous/communal peoples and authorities not to remain as mere bystanders of an ever-distant exercise of jurisdictional power, passively submitting to the interpretation of ordinary judges, but rather for jurisdictional authorities to be truly vested with all the powers granted to them by the constitution. The construction of a pluri-cultural state should start with respect for the equal dignity of differences and be based on dialogue and negotiation. This is the position advanced by Will Kymlicka, one of the foremost advocates of the theory of multicultural citizenship, who says that in multicultural situations involving indigenous people, national minorities, or cultures with a certain level of self-governance, the fact that such groups submit to a human rights framework does not necessarily mean that they must answer to national law or national courts, but rather that they can create courts with equitable participation from both the federal jurisdiction and said indigenous peoples or minorities.27
Coordination

The different constitutions establish that there should be a law of coordination between the special jurisdiction and the national legal system (Colombia), judicial power (Peru) or national justice system (Venezuela). Ecuador and Bolivia use the term harmonization (compatibilizacin ).28 First, it is important to point out that this is a law of coordination and not of regulation, as some have mistakenly understood. The validity of the special jurisdiction is not subject to this law, as repeatedly clarified in the decisions of the Colombian Constitutional Court, whose constitution is the basis for other Andean constitutions.29 Second, it is important to point out that the word coordination establishes a horizontal relationship rather than one of control, revision, or some form of subordination. The point is to establish a system that allows for a harmonious and peaceful relationship between the special jurisdiction and the ordinary jurisdiction under democraticnot subordi-

26

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28 29

I have addressed this proposal in other works (Yrigoyen 1994, 1995 and 1999). The make up of these mixed tribunals does not exclude the support of anthropological or community-based experts. A similar proposal has been made by the Peasant Councils in their regional (2000) and national (2001) meetings. Kymlicka questions the assumption that indigenous peoples must submit to the constitution or to federal courts composed entirely of non-indigenous. He suggests the creation of a bilateral human rights tribunal () in which both parties [would be] equally represented (Kymlicka 1996: 232-3). I offer some possible suggestions for a Law of Coordination in Yrigoyen (1994 and 1999). The right to administer justice within their territory and to rule according to their own norms and procedures () is immediately effective and requires no further ruling by the Colombian state to be recognized. Ruling of the Colombian Constitutional Court: T -254 of 1994, C-139 of 1996, C-349 of 1996, T -496 of 1996 and T-23 of 1997 (Snchez et al. 2000: 118). This is also 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 resolution of conflicts over competence, mechanisms for cooperation and mutual aid. Third, within a democratic mindset of intercultural dialogue, the law must establish procedures to resolve perceived conflicts between human rights and the special jurisdiction. Yet this coordinating power does not automatically bestow upon the authorities of the ordinary jurisdiction the power to control or oversee the authorities of the special jurisdiction. Fourth, the law would also have to create adequate mechanisms for direct coordination between the special jurisdiction and different public entities such as the police, the Public Ministry, local governments, the Public Registry (for example, to record the special jurisdictional decisions which modify property registries or individual records). Fifth, the law must create a normative adjustment between the constitution, Agreement 169 of the IWG and all other national regulations, so as to further develop aspects that are not clear in the constitution. While the law can in no way reduce or restrict rights, it can broaden or develop them. This law would have to be discussed with indigenous people in order to have legal status (according to Article 6 of Agreement 169 of the IWG) and legitimacy (consensus), as a first step toward the construction of a pluri-cultural state.

REFERENCES
ALERTANET- Portal de Derecho y Sociedad/ Portal on Law & Society. www.derechoysociedad.com . Amrica Indgena (1999). Pluralismo Jurdico y Derechos Indgenas en Amrica Latina. Mexico: Instituto Nacional Indigenista, Vol. LVIII, 1-2. Bernales, Enrique (1999). La Constitucin de 1993. Anlisis comparado. Lima: Constitucin y Sociedad ICS. Borja, Emiliano (2001). Introduccin a los Fundamentos del Derecho Penal Indgena. Valencia: Tirant lo Blanch. Borrows, John and Leonard Rotman (1998). Aboriginal Legal Issues. Markham, Ontario: Butterworths. Clavero, Bartolom (2000). Ama Llunku, Abya Yala: Constituyencia Indgena y Cdigo Ladino por Amrica. Madrid: Centro de Estudios Constitucionales. Congreso Constituyente Democrtico (1993). Actas del Debate. 29a. P Sesin permanente (vespertina), 20 July1993. Hurtado Pozo, Jos (1995). Impunidad de personas con patrones culturales distintos. Revista Derecho N 35. Lima: Facultad de Der echo, PUCP . Kymlicka, Will (1996 ). Ciudadana Multicultural. Barcelona: Paidos. Marzal, Manuel (1986). Historia de la Antropologa Indigenista: Mexico y Per. Lima: PUCP. Mesa de Pluralidad Jurdica y Derechos tnicos (1994). Pluralidad Cultural y Derechos tnicos. Propuesta de reforma constitucional. In Desfaciendo Entuertos, N. 3-4. Rubio Correa, Marcial (1999). Estudio de la Constitucin Poltica de 1993 . Volume V. Lima: PUCP. Snchez Botero, Esther (1998). Justicia y Pueblos Indgenas de Colombia. Bogota: UNC and UNIJUS. Snchez, Esther and Isabel C. Jaramillo (2000). La Jurisdiccin Especial Indgena. Bogota: Universidad Nacional. San Martn, Csar (1999). Derecho Pr ocesal Penal. Vol. I. Lima: Ed. Grijley. Santos, Boaventura de Sousa (1998). La Globalizacin del Derecho. Bogota: ILSA. (1994). Entrevista. In Desfaciendo Entuertos , 3-4, pp. 27-31. (1991). Estado, Derecho y Luchas Sociales. Bogota: ILSA. Van Cott, Donna Lee (1999). Constitutional Reform and Ethnic Rights in Latin America. New York: St. Martin Press. Yrigoyen Fajardo, Raquel (2000a). Tratamiento Judicial de la Diversidad cultural y la jurisdiccin especial en el Peru. In XII Congreso Internacional. Der echo Consuetudinario y Pluralismo Legal: Desafos del Tercer Milenio . Arica: Universidad de Chile and Universidad de Tarapac (272-285). (2000b). Un balance de la post-reforma: Constitucin Pluralista, Judicatura Monista. In Institute of Latin American Studies, University of London. April, 2000. (1999a). Pautas de Coordinacin entre el Derecho Indgena y el Derecho Estatal. Guatemala: Fundacin Myrna Mack. (1999b). Reconocimiento constitucional del derecho indgena y la jurisdiccin especial en los Pases Andinos (Colombia, Per, Bolivia, Ecuador). In Revista Pena y Estado, 4. (1996a). Control Penal y Diversidad tnico-cultural. In Diego, Mara et al (coord.). Conflicto Social y Sistema Penal. Salamanca: COLEX and Universidad de Salamanca.

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(1995a). De la Criminalizacin de la diferencia cultural a la legitimacin de un orden pluralista (Per, Pases Andinos). Master s Thesis in the Penal System and Social Problems. Bar celona: Universidad de Barcelona. (1995b). Constitucin, Jurisdiccin Indgena y Derecho Consuetudinario. Lima: CEAS and Desfaciendo Entuertos. (1994). Apuntes sobre el artculo 149 de la Constitucin Peruana: Alcances, lmites, consecuencias y retos. In Desfaciendo Entuertos, 3-4, pp. 19-26. (1993). Las Rondas Campesinas de Cajamarca. Una aproximacin desde la antropologa jurdica. Lima: PUCP. (1992). Pluralidad Jurdica y Propuestas de Reforma Constitucional. In Primer Taller Nacional sobre Rondas Campesinas, Justicia y Derechos Humanos. Cajamarca: Obispado de Cajamarca and CEAS.

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

RECOGNITION OF LEGAL PLURALISM AND INDIGENOUS LAW INTHE ANDEAN COUNTRIES

1991 POLITICAL CONSTITUTION OF THE REPUBLIC OF COLOMBIA 1993 POLITICAL CONSTITUTION OF THE REPUBLIC OF PERU 1994 REFORMS TO THE POLITICAL CONSTITUTION OF THE REPUBLIC OF BOLIVIA Art. 1: Boliviafree, independent, sovereign, multiethnic and pluri-cultural, and constituting a unitary Republic adopts for its government the democratic, representative form based on the solidarity of all Bolivians. Art. 1. Ecuador is a social state of law which is sovereign, united, independent, democratic, pluricultural and multiethnic. Its government is republican, presidential, elective, representative, responsible, alternative, [promotes] participation and has a decentralized administration (...). Art. 191: (...) The authorities of the indigenous peoples exercise legal functions, applying their own norms and procedures for the resolution of internal conflicts, in accordance with customary law, whenever these are not contrary to the Constitution and its laws . The law will make these functions compatible with the national judicial system. Ar t. 246: The authorities of the indigenous peoples can exercise jurisdictional powers within their territory in accordance with their own norms and procedures whenever these are not contrary to the Constitution and laws of the Republic. The law will establish the ways of coordinating this special jurisdiction with the national legal system. Ar t. 149: The authorities of the peasant and native communities, with the support of the peasant councils (rondas), can exercise jurisdictional powers within their territory in accordance with customary law as long as this does not violate fundamental rights of the person. The law establishes forms of coordination of such special jurisdiction with the justices of the peace and with the other instances of the judicial power. Art. 171: (...) The natural authorities of the indigenous and peasant communities can enforce the administration and application of their norms as an alternative solution to conflicts, in accordance with their customs and procedures whenever these are not contrary to the Constitution and its laws . The law will harmonize these functions with the duties of the state. 1998 POLITICAL CONSTITUTION OFTHE REPUBLIC OF ECUADOR 1999 POLITICAL CONSTITUTION OF THE REPUBLIC OF VENEZUELA

POINTS OF COMPARISON

AGREEMENT 169 OF THE IWG

1. BASIS: State recognizes the pluri-cultural nature of the nation or it is defined as such. Ar t. 7: The state recognizes and protects the cultural and ethnic diversity of the Colombian nation. Art. 2: Everyone has rights, inc. 19:To their ethnic and cultural identity. The state recognizes and protects the ethnic and cultural plurality of the nation.

-Consideringthe evolution of international law since 1957 and the situation of indigenous peoples () it is advisable to adopt new international norms regarding this issue, with the aim of eliminating the orientation towards assimilation of the previous norms; -Recognizing the desire of these people to assume control of their own institutions and ways of life and of their economic development and to maintain and strengthen their identities, languages, religions, within the boundaries of the state in which they live.

Ar t. 100: The popular (base) cultures that constitute the Venezuelan identity merit special attention, recognizing and respecting [their] intercultural [nature] under the principle of the equality of cultures (...).

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2. Text recognizing Legal Pluralism a)Indigenous and Customary Law b) the Indigenous Jurisdiction and c) Indigenous Institutions (independent authorities and institutions)

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Art. 8.2: Such peoples must have the right to conserve their own customs and institutions as long as these are not incompatible with the fundamental rights defined by the national legal system, or with internationally recognized human rights. Whenever necessary, procedures should be established to resolve conflicts that might arise in the application of this principle. Art. 9.1: To the extent that they are compatible with national legal system and with internationally recognized human rights, the methods traditionally employed by such people for the repression of crimes committed by their members, must be respected.

Art. 260: The legitimate authorities of the indigenous peoples can apply instances of justice within their territory based on ancestral traditions according to their own norms and procedures which only affect their members, as long as they are not contrary to this Constitution, the law, and public order. The law will determine the form of coordination of this special jurisdiction with the national judicial system.

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3. Subject of recognition and respect 1. Customary law, norms, customs and procedures 2. Indigenous peoples authorities 3. Functions of justice. 1. Traditional and ancestral norms and procedures 2. Indigenous peoples authorities 3. Application of instances of justice.

1. Their own customs/ customar y law. 2. Their own institutions 3. Their own methods for the control of indigenous peoples (including methods for control of crime).

1. Their own norms and procedures 2. Indigenous peoples authorities 3. Jurisdictional functions. 1. Customary law, 2. Authorities of the communities and Peasant Councils/ Indigenous peoples 3. Jurisdictional functions. 1. Their own norms, customs and procedures 2. Natural authorities of communities/ indigenous peoples 3. Powers to administer and apply their own norms as an alternative solution to conflicts. 1. Indigenous commu- Indigenous peoples. nities 2. Peasant communities 3. Through ratification of Agreement 169 of the IWG, also: Indigenous peoples. Within their territorial realm: territory of indigenous and peasant communities and indigenous peoples. All issues, unlimited. Indigenous Peoples.

4. The beneficiaries of rights and recognition

1. Indigenous people in independent 1. Indigenous peoples. 1. Peasant Communities countries 2. Native Communities 2.Tribal peoples. 3. Peasant Councils (Rondas Campesinas) 4. Through ratification of Agreement 169 of the IWG, also: Indigenous peoples. Within their territorial realm: the indigenous peoples territory. Within their territorial realm: the territory of peasant communities, native communities, peasant councils and indigenous peoples. All issues, unlimited.

5. Territorial Competence

Not explicitly mentioned.

Not indicated, although Within their territory. there is mention of internal conflicts (unclear whether this pertains to issues, subjects of the law, or territory). All issues, unlimited. All issues, unlimited.

6. Material Competence No mention of whether this applies only to indigenous people. Only establishes a territorial criterion without limits on material/subject. Important to understand that applies to everyone within indigenous terr itory.

1. All issues, unlimited All issues, unlimited. 2. Including criminal subjects: repression of crimes committed by their members.

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No mention of whether limited to peasants and natives. Only establishes a territorial criterion without limits on subjects. Can be understood as applying to everyone within peasant/ indigenous terr itory. No mention of whether limited to indigenous. Only establishes a territorial criterion without limits on subject. Can be understood as applying to everyone within peasant/ indigenous terr itory. Speaks of internal conflicts (not explicit whether this refers to territory, subjects or issues).

7. Personal Competence

1. In general: not specifically mentioned (art. 8.2) 2. With regard to repression of crimes: members of indigenous groups (art. 9.1).

Only affects their members (indigenous peoples).

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RECOGNITION OF LEGAL PLURALISM AND INDIGENOUS LAW INTHE ANDEAN COUNTRIES

1991 POLITICAL CONSTITUTION OF THE REPUBLIC OF COLOMBIA Norms and procedures cannot be contrary to 1. Constitution and 2. Laws of the Republic. Must not violate: 1. The fundamental rights of the person. Customs and procedures cannot be contrary to: 1. Constitution and 2. Laws of the Republic. Norms and procedures of Customary Law cannot be contrary to: 1. Constitution and 2. Laws. 1993 POLITICAL CONSTITUTION OF THE REPUBLIC OF PERU 1994 REFORMS TO THE POLITICAL CONSTITUTION OF THE REPUBLIC OF BOLIVIA 1998 POLITICAL CONSTITUTION OFTHE REPUBLIC OF ECUADOR 1999 POLITICAL CONSTITUTION OF THE REPUBLIC OF VENEZUELA Norms and procedures cannot be contrary to 1. Constitution, and 2. Laws 3. Public order.

POINTS OF COMPARISON

AGREEMENT 169 OF THE IWG

8. Limits

1. In general, that their customs and institutions not be incompatible: a) with the fundamental laws recognized by the national judicial system, and b) with internationally recognized human rights. 2. In criminal matters, methods of control must be compatible with: a) the national legal system, and b) internationally recognized human rights. The law will establish forms of coordination: a) of special jurisdiction, with b) the national legal system. This has not been reglamented by law, but there is jurisprudence. The law of coordination: a) of special jurisdiction, with b) justices of the peace and the judicial power. It is still not a law. Chapter referring to judicial power. Located at end of chapter. Also calls it special jurisdiction. Not a very systematic treatment. The law will harmonize: a) these functions (administration and application of their norms), with b) the responsibilities of the powers of the state. There are several norms, but no specific law. Chapter referring to the Judicial Function. Located at the end of chapter. The law will harmonize: a) the functions of justice of indigenous peoples, with b) those of the national legal system There is still no law.

(...) [S]hould establish mechanisms 9. Law of Coordination to resolve conflicts in the application of the principle of incompatibility or Harmonization between a) the conservation of their own customs and institutions and b) fundamental human rights.

The law shall determine the form of coordination of: a) the special jurisdiction with b) the national legal system. There is still no law.

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Section VIII of Judicial Function. The only article on judicial power. Systematic treatment. - Article 9, section 1 The chapter that refers to the Jurisdictional Function highlights two types of jurisdiction: a) ordinary b) special or indigenous, within the autonomous regime of the indigenous peoples. Ratified in 1991 Ratified in 1993 (legally Ratified in 1992 deposited in 1994) Ratified in 1998

10. Systematic location

Part I: General Policy. - Article 8, section 2

Chapter III of Judicial Power and the Justice System. Section One: General Provisions.

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11.Ratification of Agreement 169

Ratified May 22, 2002.

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