|
|
Alternative justice in
Peru |
|
Inter-American
Development Bank |
 Lawyers
and judges aren’t always the most popular people in town. But what would we do
if we didn’t have a functional, equitable justice system? How would we resolve
our differences, deter crimes and punish offenders, or convince businesses that
our communities were safe places to invest?
Many
rural communities in Latin America are confronted with exactly these kinds of
problems. Language barriers and their remote locations make it difficult for the
state to provide these communities with adequate justice and governance systems.
As such, they have had to come up with innovative solutions by relying on
customary law, which some claim is based on the traditions of their indigenous
ancestors.
Categories of NSJS in
rural Peru
In a
paper titled “Non-State Justice Systems in Latin America,” Julio Faundez, law
professor at Warwick University in the U.K., identifies four main types of
non-state justice systems (NSJS) in rural communities in Peru:
-
Rondas campesinas (or
night watch patrols) are made up mainly of independent small farmers and were
initially formed in the province of Cajamarca to protect private property,
though some also handle other offenses, such as slander, assault and domestic
disputes. Males of the community between 18 and 60 are required to serve on
the Rondas. Criminals are usually handed over to the community’s General
Assembly, made up of peasant landowners from the community, which determines
guilt or innocence and metes out punishments.
-
Rural Centers for the
Administration of Justice were
established to help peasant communities reconstitute civil society after the
war against Shining Path guerrillas and to provide them with prompt, efficient
access to justice. Their members include community representatives, a
representative of the local women’s association, the mayor, the justice of the
peace and the teniente gobernador (local police). Similar to a court, the
centers hear and resolve cases of domestic violence, assault, theft, and
property and family disputes, usually conducted in Quechua or the local
indigenous language. Decisions of the centers are recorded in Spanish to
guarantee that they are recognized by the community, center and state.
-
Justices of the peace (jueces
de paz), or lay magistrates, are officers of the state who are popularly
elected and act mainly as conciliators. They also have limited jurisdiction in
matters such as debts, misdemeanors, alimony and some cases of domestic
violence. Though there is a substantial number of laws and regulations that
govern their functions, Peru’s Code of Civil Procedure instructs them to apply
local culture and practices in their activities.
-
Indigenous communities (comunidades
campesinas or comunidades nativas) are empowered under the Peruvian
constitution to administer their own customary law, provided they do so within
the limits of the constitution. Private family conflicts are usually resolved
by the extended family or by a council of elders. The political organs of the
community such as the General Assembly deal with conflicts and disputes of
wider community interest.
Customary law
 In
a presentation at IDB headquarters on his paper, Faundez said that the
constitutions of some Latin American countries (Bolivia, Colombia, Ecuador,
Nicaragua, Panama, Paraguay and Peru) recognize the existence of indigenous
customary law, as long as it is generally consistent with national law. This
gives customary law and non-state justice systems (NSJS), in general, “a level
of legitimacy that until recently was unthinkable,” Faundez states in his
paper.
That
legitimacy is tenuous, however, particularly since rural indigenous communities
are using customary law not only as a justice system, but also for governance
purposes. They aren’t the only ones using non-state mechanisms to govern,
though.
In
many Latin American countries, the state itself sanctions the use of non-state
mechanisms for justice administration. For instance, in Peru 4,000-5,000
justices of the peace provide justice services to nearly half the population.
Crime and punishment
Though “inhuman” or cruel punishments for those found guilty of committing
criminal acts are the exception rather than the norm, there have been cases,
usually in isolated areas, where severe punishments have been meted out by
non-state justice systems, such as corporal punishment or banishment, Fuandez
attests. But on the whole, NSJS have evolved away from extreme punishments,
toward the concept of restorative justice.
Faundez reports in his paper that rural indigenous communities, in particular,
tend to place a very high value on the restoration of harmony and equilibrium in
their approach to dispute resolution, crime and punishment. This helps to
explain why the concept of restorative justice, featuring a confession, an
apology and atonement for any harm, has been accepted in the NSJS of those
communities.
Reducing gender bias
“There’s no question that there’s strong gender bias in most NSJS in rural
Peru,” Faundez affirmed, “but there has been a marked move toward gender
equality in recent years in those systems.” He credits the training provided by
NGOs in Departments such as Ayacucho and Cajamarca for much of that progress, as
well as the increase in dialogue between community groups and state officials
from organizations such as the Office of the Ombudsman (Defensoría del pueblo).
But
gender bias in justice administration in rural indigenous areas isn’t quite the
cut-and-dried issue that it may seem to outsiders. In the Amazonia region of
Peru, for example, women are strongly discouraged from marrying outside the
community.
Why?
Not because the community dislikes foreigners, per se (after all, men face no
such limitations). The underlying reason is that when a woman marries, her
property is transferred to her husband. By prohibiting women from marrying
outsiders, the community is trying to protect its land.
A delicate balance
Faundez’ paper shows that the relationship between NSJS and the state is an
uneasy one, at best. There are language barriers to overcome, as well as
physical, geographical barriers. In addition, legislation regulating non-state
justice systems can be complex, inadequate, unclear, or even contradictory.
Regulations limit the jurisdiction of the justices of the peace, for example,
but many are required to exceed that jurisdiction as a result of demand of local
communities. rondas campesinas are one of the most effective organs of local
governance, with great successes in controlling crime, but many ronda members
have been sent to jail for usurping the functions of the police and judiciary.
Nevertheless, progress is being made and there are also clear examples of where
NSJS and the state are working hand-in-hand. The Rural Centers for the
Administration of Justice, which include both community leaders and state
officials in the judicial process, are one such example. Another is the
Peruvian Congress’ new law on Rondas Campesinas, passed in December of 2002,
which, while fairly ambiguous, seems to give the Rondas the right to continue to
administer justice.
Without a doubt, much
work needs to be done to integrate NSJS with the more “official” state judiciary
system. While no one has all the answers on how to do that, Faundez suggests
that multilateral or bilateral organizations may be able to assist with this
process by supporting a combination of training, knowledge-sharing events,
additional studies, technical assistance and the replication of successful NSJS
such as the Rural Centers for the Administration of Justice.
Revista INTER-FORUM is affiliated with
(ICCAP) Any reproduction in part or whole is strictly forbidden without the authors written authorization
Top
April 22, 2003
|
