Community justice ppt

Community Justice in Bolivia

Nejla E. CalvoMetcalf Fellow 2010

Middlebury College ‘12

June-August 2010

OPENING WORDS:First, I would like to thank the Rhode Island

Foundation for allowing me the opportunity to carry out this research project through the Michael P. Metcalf Grant. I had a wonderful experience in June-August of 2010 and I am excited to share it with whoever will listen. The topic of my presentation is a controversial one. The implementation of community justice systems in rural Bolivian communities has been thought to give rise to forms of mob rule and violence. Some argue that community justice is an honorable, traditional form of dealing with community crimes, while others believe that community justice leads to lynching and unjust legal procedures.

What is community justice?• The revised Bolivian Constitution recognizes the practice of “justicia comunitaria”. It grants the right for indigenous communities to operate under their own legal system, separate from official state law.

• In the new Bolivian constitution, the state recognizes indigenous groups' practice of "community justice" based traditional customs. In its traditional form in indigenous Andean villages, community justice emphasizes reconciliation and rehabilitation.

(Daniel Goldstein, Director of the Center for Latin American Studies at Rutgers University)

The DebateSupporters

• "Rather than violent torture and execution, community justice promotes the 'reeducation' of community members who violate collective norms and rules, and the reincorporation of these offenders back into the community (Goldstein).”

• It is a move toward using dialogue, community service work, and the restoration of harmony as a basis for dealing with conflicts.

• Bolivia's Minister of Community Justice, Valentín Ticona, insists that its linkage to lynching is a false one and that, in fact, the fundamental principle of the community justice system is respect for human life.

Critics• It is a license for

violence and brutality against those suspected of offending community values and norms.

• New York-based Human Rights Foundation has warned that Bolivian constitutional proposals for community justice will “endanger some of the fundamental rights of Bolivian citizens.”

• Cite recent lynching incidents in Bolivia as evidence of what community justice would mean if fully implemented.

More Criticisms• “Communal justice entirely disregards due process. In

theory, it enables indigenous communities to address their needs in a fair and disinterested manner. In practice, it is judicial terror. It is breathtaking that the Morales government wishes to enshrine such arbitrary and barbaric practices and make them legally unappealable,” said Thor Halvorssen, president of the Human Rights Foundation (HRF). In 2008, HRF published a report on Bolivia’s communal justice system.

• “This system would allow the government to subjugate Bolivia’s population under the threat of an instant trial with deadly consequences,” said Halvorssen.

• The Morales government proposes to make communal justice the only system of law available to indigenous communities—with no right to appeal and no due process guarantees for the accused.

My investigation

• How I conducted my research: – Written sources

• (law journals, books, newspaper articles, state publications, primary legal documents)

– Interviews • (professors, lawyers, community members)

– Field observations (Choquicota, Oruro)

Goal: I sought to observe what the effects of the recently added constitutional amendment were and how the concept of community justice translated into practice.

Background Information• Evo Morales was elected Bolivia’s first

indigenous president on January 22, 2006 with 53.7% of the popular vote.

• In December 2009, Morales won

presidential elections again (63% of popular vote) and continued to his second term of presidency.

• He is the leader of the political party called the Movement for Socialism (MAS), which aims at giving more power to the country's indigenous and poor communities by means of land reforms and the redistribution of natural gas wealth.

New Constitution

One of Morales's prime electoral promises was to establish a Constitutional Assembly to re-write the Bolivian constitution. After his election in 2006, a Constitutional Assembly was established and was given 12 months to write a new Bolivian Constitution. The draft Constitution was finally approved in December 2007, however, leaders of several opposition parties stated they would not recognize the new text. Thus, a national referendum was held on January 25, 2009, in order to gain popular approval before codification. The new constitution came into effect on February 7, 2010, with a 61.7% majority vote.

Community Justice AmendmentA particular amendment to the rewritten

Constitution was that of community justice. Basically, it grants the right to a form of justice delivered by a surrounding community, independent of governmental authority. The purpose of the inclusion of community justice in national law is to recognize the traditional juridical practices of indigenous Bolivians. However, community justice in practice can often be interpreted as the absence of state authority, leading to an arbitrary system of law that can be used to justify human rights violations (such as lynching, vigilante violence, and other forms of mob rule).

Sociopolitical and Historical Context

• The continued practice of community justice is also a response to Bolivia’s corrupt civic and social structure.

• Bolivia has been a democratic state for 28 years, yet it is still struggling to produce a rule of law that respects human rights.

• The existing judicial system is a reflection of realities that don’t apply to the indigenous communities, so communities must take justice into their own hands.

Legal Framework– National Political Constitution:

• Art. I: Bolivia was constituted in a United Social State of Plurinational Communitary Rights, free, independent, sovereign, democratic, intercultural, decentralized and with autonomies. Bolivia is founded on the principle of legal pluralism.

• Art. 190. I: The original indigenous towns and nations exercise their judicial functions and powers through their own authorities.

• Art. 191. II: The original indigenous peasant jurisdiction is excercised in the personal, material, and territorial spheres.

– UN declaration regarding the rights of indigenous peoples:• Plurinational State Law #1110 (2007)• Art. 5: The right to retain their own judicial institutions

• Art. 18: The right to participate in decision-making in matters that affect their rights

• Art. 34: The right to promote, develop and maintain their institutional structures, customs, and legal systems

Bolivian Legal System• What is legal pluralism?

• Multiplicity of existing practices in a single socio-political context

• The interaction of different systems• It doesn’t imply totally denying the existence of

National Law, it is one of many that exist •“It is a process that unwinds power structures

unravels class inequalities as well as practices of subordination in the economic, social, political and cultural domains.” (Gomez Balboa 2006)

n my opinion, it seems as if the system of legal pluralism gives rise to confusion about where jurisdiction lies. Also, while the decentralization of state authority may prevent tyranny and control by the wealthy elite, it also leaves room for special interests and local corruption to take hold.

Traditional Law• It is the basis of application for community justice.

• “Traditional law is fundamentally oral, transmitted by successive generations without the need to be incorporated into a written document in order to achieve legitimacy by community members.” (SC 0295/2003)

– Oral tradition is important to indigenous communities due to illiteracy within the majority of the population. Indigenous communities communicate using different dialects, such as Aymara and Quechua (and are often not fluent in Spanish).

• Elements that Constitute Traditional Law1.Norms, practices and customs2.A conflict resolution process3.Authorities and collective bodies

• General Characteristics of Traditional Law– Acknowledgement of it being mandatory

– Repeated and generalized practices

• Specific Characteristics of Traditional Law – Long tradition of practices in given cultural context

– Administered by community authorities, controlled by the assembly

– It operates on local and direct levels

– Oral and flexible

– Open to outside influences

– Access to rapid and low cost resolutions

– Priority is given to maintenance of peace rather than punishment

Community Justice in PracticeMain concepts:• “Justice”: give to

each what they deserve

• “Taripaña”: establish harmony in the community

• Disciplinary action without state intervention

• Principle objective is to maintain peace

• Abides by the morals and values of the community

Characteristics of Community Justice

• Known and applied traditional norms• Election of competent authorities• Rotating systems of authorities [land owners,

“jaqichasña” (married), position considered an obligatory service]

• Simple and affordable process• Assembly as a body of social control• Direct presence of both parties• Oral feature (in the native language)• The process and punishment must be agreed upon

and accepted by the assembly

The Process

(1) Charges: between families, before indigenous authorities, before the Community Assembly

(2) Investigation of the case: Witnesses, cross-examination, field investigations, written documents, oath

(3) Resolution: moral, social and legal sanctions

Report of the IncidentCommunicate

the crimes to

authorities

The family of the

victim presses charges

The case is

communicated

to the defendant

If he admits

(pleads guilty)

there is an

agreement on

compensation

for damage

inflicted

If he does not admit,

then the investigation

commences with the permission of

the deities (gods)

The objective is

not punishment,

but the restoration

of peace

Investigation of the case

• Characteristics: oral testimony (there is fear of lying in front of the assembly so they are more likely to tell the truth), charges and defense

• Witnesses: there are no limitations on who can be a witness, but they do analyze the credibility of the witness

• The rebuttle: the testimonies are confronted, both parties challenge each other to testify under oath

• Field investigation: visual inspection at the place of the incident, reconstruction of the scene to understand how it took place

• Instrumental test: statements are recorded in [written] Acts

• The Oath: If one lies under oath, there is a greater risk of suffering

from dishonor and emotional harm

Resolutions Resolution

of the case between families/parties

• Arrive at a discreet resolution

• Take into account the degree of the crime

• Separation of cohabitants if necessary

Resolution of the case

before indigenous

authorities

• Before the mayor and also the “jilakata”

• The “jach’a jucha” (a serious crime) is decided upon according to the interests of the community

Resolution of the case before the

Community Assembly

• The Community Assembly has no flexibility for repeat offenders

• Participation by all community members

• Community Assembly has maximal decision-making authority

Community Justice vs. Lynching

What is lynching?

It is a “private and illegal collective action that can result in the death of a victim, in response to acts and conducts of the victim, and the victim is vastly outnumbered by the lynchers.” (Carlos Salinas 2001:10)

Characteristics of Lynchings

• Collective action with a single purpose

• Illegal• May or may not result in

death of victim• Immediate reaction to

crime committed• Greater number of

lynchers than the accused of the crime

• Response to the absence of authority

News HeadlinesLa justicia

comunitaria no es asesina

Desde mediados de los años 90 se discute en Bolivia la inclusión de la justicia comunitaria. En EE.UU. ya hay universidades tribales y programas donde se forman abogados versados en justicia tribal. La actual Constitución la contempla y el proyecto de nueva CPE la menciona específicamente. En los estatutos autonómicos no está mencionadaCOMMUNITY

JUSTICE IS NOT MURDER

AYO AYO: It was one of the most cruel cases of lynching. Instead of restoring the balance, problems arose in the community after the assasination of Mayor Altamiro.

QuickTime™ and a decompressor

are needed to see this picture.

Felix Patsi is a government official who was charged with drunk driving and had to make 1,000 adobe tiles as punishment under community justice.

Headline Story: Policemen in Potosí

• Many news headlines discuss the issue of vigilante violence under the community justice amendment to the new constitution. For example, the Latin American Herald Tribune reported [Friday, June 4, 2010], that leaders of indigenous communities in southwestern Bolivia recently lynched four allegedly corrupt police officers. After a peasant assembly, these leaders presented a document in which they request the application and respect for community justice on the matter. These are leaders of the Ayllus Guerreros (Warrior Clans) of Potosi, who want La Paz to grant them freedom to trade in contraband merchandise brought in from Chile without any intervention by authorities. The Warrior Clans are so called because of their nearly 200-year-long history of involvement in conflicts over land, responsible for approximately 10,000 deaths since 1830.

• At first, the leaders have refused to return the bodies of the four policemen despite requests from the government. The Indians claimed that the lynchings were an exercise of community justice, because the policemen were accused of murdering a taxi driver and extorting from local peasants. Indian leaders offered to discuss turning over the bodies on the condition that authorities agreed not to investigate the lynchings, but the government did not accept this offer. The Interior Minister Sacha Llorenti said “There will not be any type of pardon or amnesty. Any crime of this kind has to be investigated, and those responsible (must be) tried and punished.”

• The Indians were said to have buried the bodies face down so that the souls of those who had been killed would not persecute those who had killed them. Some Aymara and Quechua Indian communities of the Andean highlands say lynchings are part of the indigenous justice system that was recognized in the constitution enacted last year under Morales, but the government rejects that argument. Government officials say the recognition of traditional justice is not a license for vigilantism. Also, the government points to Bolivia’s constitutional ban on capital punishment.

• This story is a prime example of how community justice can be misinterpreted and used to support vigilante violence. It is the purpose of my investigation to find out how exactly community justice is defined, how it functions in practice, and in which situation it is justified and according to whom.

Interviews• There are different opinions and perspectives

surrounding the topic of community justice. I attempted to gather thoughts from both sides of the debate.

• Interviewees:– Marco Mendoza (La Paz lawyer)– Alfredo Mamani (Aymara lawyer)– German Guaygua (Aymara Professor)– Elizabeth Kayonari (Professor and community

volunteer)– Luz Maria Calvo (Anthropologist)

Elizabeth Kayonari• “What happens is that justicia comunitaria should not interfere with the

laws of the republic, so they can’t keep somebody, they have to turn him in. So the investigators come and the townspeople tell him the whole story. The police conducted an investigation and they were sure that the man was guilty. When they searched his pockets he had many ID’s, he was probably a pick pocket. Anyway, by this time he was sitting down, and the community wanted to turn him into his mallku, to the chief of his community. But they couldn’t figure out who that would be or which community he actually belonged to because he had so many IDs. They usually tell the mallku to take care of the son of his own community. But in this case they didn’t know so they turned him over to the police. And as they expected, the police let him go and he came back again to taunt the townspeople. That is how I got my notion of justicia comunitaria: all the problems of the community should be solved within the community by the people, according to however they see fit.”

• “So I believe that justicia comunitaria should not be looked down upon, it has been going on for 400-500 years. And now this one wicked community [Uncía, Potosí] is getting so much attention.” – Potosí was the town where four policemen were lynched (please refer to the Word

Document attached with this presentation, under the section “News Headlines”).

(La Paz Professor and indigenous Community Education Volunteer)

German Guaygua

• “This theme has been debated over and over again. It is one of the most innovative proposals of the constitution. Now, how do we implement the concept of community justice?... In some cases there is a marked process of “reinvicación” [taking back lost cultural values]. In other cases, such as with the Aymaras, Quechuas, and Guaranies, it not a matter of recovering the cultural values, because they are still very much alive. The Aymaras take justice into their own hands, such as in Achacachi… they are more rebellious and confrontational.”

• “It is really a political process and if you don’t know the historical context, then it is difficult to properly understand. When people portray it as barbaric and violent, then it reveals ignorance to the reality of another culture.”

• “There are strengths and weaknesses to the ongoing process of community justice. Communal authorities are closely related to the ownership of land. If you own land, you not only have the right to exercise authority, but the duty to do so. There is also an automatic rotation of authorities tied to land ownership. When they take office, it is not just a political event, but a cultural and religious event as well, a

celebration.”

(Aymaran Professor of Sociology in La Paz)

XXIV Jach’a Mara Tantachawi Suyu Jach’a Carangas

Choquecota MarkaJune 18-21, 2010

While there, I was able to sit in on an official meeting of Mama and Tata Autoridades (male and female leaders of Aymara clans) regarding justicia ordinaria and originaria. They outlined their definitions of original versus ordinary justice.

I had the privilege to attend the annual meeting and changing of authorities of all of the Marcas (towns/villages) of the Jach’a Carangas region. I traveled 7 hours by car from the city of La Paz to the town of Choquecota in the department of Oruro.

This was the general assembly meeting for the indigenous authorities and community members of the Carangas region. This larger meeting was held first in the morning, in order to discuss the events that were to take place in the following days. The large assembly then split into subcomittees and held longer meetings about specific topics. The smaller group meeting that I attended focused on the topics of “Original Justice and Community Justice” (featured in the next slide).

Main Assembly Meeting

Meeting on Justicia Comunitaria

Oruro Lawyer Dra. Marta Echeverría: “I have lived in the West and have been a judge for many years. There is a lot of contraband going on [in the rural communities of Bolivia]. I don’t mean to point fingers but if you have been protecting the activities of contraband, then your community could be at risk. Justice is at risk. If there is an authority figure that is involved with contraband, then another authority figure should step in and correct his mistakes… Authorities must be impartial to cases and should not be involved as accomplices or as ‘cover ups’ to a case.”

Click on <-- picture to play video

QuickTime™ and aAVC Coding decompressor


Document Excerpts

Original Justice Comission

1. “The law of jurisdictional demarcation should serve a double function: (1) to establish the territorial, personal, and material legal boundaries of the peasant communities and (2) to establish and develop mechanisms of coordination and cooperation in the justice system.”

“We call attention to the following fundamental values and principles of our native nation which serve as the driving force of our justice system:

Good living: in order to achieve harmonious living with nature based on the 4 principles of the ‘Chakana’… that express our Aymara Cosmovision.”

After 4 hours of discussion, the authorities composed a document explaining their understanding and definitions of justicia comunitaria.

Aymara New Year celebration


http://www.travelblog.org/South-America/blog-510156.html

CLICK LINK BELOW FOR MORE PHOTOS & EXPLANATION OF CEREMONY FROM MY TRAVEL BLOG:







Llama Sacrifice


Click on picture --> to play video





Changing of the Authorities




After the llama sacrifice, we made our way down the mountain and danced in a group toward the center plaza of the community. The ceremony of the changing of the authorities ensued.

Conclusions• Justicia comunitaria is a complicated and controversial topic

that must be properly understood by all Bolivians (rural and urban).

• Justicia comunitaria is not the same as lynching. • Justicia comunitaria is a necessary process of administering

justice in the absence of government organization in rural areas.

• The recent recognition of justicia comunitaria in the revised political constitution has not significantly affected its practice in any specific positive or negative manner.

• The true notion of justicia comunitaria has at times been perverted by both participants and observers, which gives rise to further conflict rather than peaceful resolution.

Policy Recommendations:• (1) Survelliance: Communication and regulation between

the state and local authorities. – (a) Hire government specialists to review community justice cases

and give recommendations for improvements or cite instances of human rights violations.

– (b) Create a centralized database for the documentation of community justice procedures in varying communities, analyze the positive and negative consequences of these cases, and allow policy revisions to ensue.

• (2) Flexibility: Allow for creative law making on the national level; allow that revisions to legislation can be made and specified in order to ensure that the government has an active role in understanding the needs of the communities

• (3) Regulation: Unify “community justice” procedures within national legislative boundaries.

General Recommendation

I believe that education is the key to filling the gaps of miscommunication and misunderstanding surrounding this topic. If urban Bolivians know more about how the traditional process functions, they would hold more respect for the practice of justicia comunitaria. If more rural Bolivians properly understood the true functions of justicia comunitaria, there would be less perversions and abuses of the necessary process of justice administration in Andean communities.

Acknowledgements

Thank you to all those who helped bring this experience to fruition, especially the Rhode Island Foundation, Roberto Calvo, Yasare Calvo, Laura Calvo, Luz Maria Calvo, Maria Angelica Kirigin, Dr. Marco Mendoza, Dra. Marta Echeverría, Susan Ellison, Dr. German Guaygua, Dr. Alfredo Mamani, Elizabeth Kayonari, the community members of Choquicota, and the Defensor del Pueblo de La Paz.

Community justice ppt

Education

Transcript of Community justice ppt