WORLD WORLDWIDE ITALY News Journal Update - (en) Sicilia Libertaria: Relativism: Legal pluralism: the Mexican case (3) (ca, de, it, pt, tr)[machine translation]

 

In the latest issues of Sicilia libertaria we have been interested in
"legal relativism", reflecting on some cases of contradiction between
Italian legal norms and the normative experiences of emigrants coming
from countries or cultures with different traditional or formal norms
and in clear contrast with the Italian ones; see the case of forced
marriages which have also produced violence and deaths, always female.
Since these were individual cases, we asked ourselves what was happening
in those countries where, in addition to state norms, there are also
particular norms produced by ethnic groups within local states. For this
reason, we have dealt with countries such as Venezuela and Bolivia, with
an indigenous presence and whose constitutions, which are cutting edge
in terms of human and cultural rights (at least on paper), include the
recognition of local legal norms and, in part, they command their
respect. We have seen that, unfortunately, these constitutions imposed a
limit on this recognition: that local rules did not contradict the
dominant state ones. Evidently, the totalitarian form of the bourgeois
state, even when it claims to respect the so-called minorities, and they
are not always so, at least numerically, cannot afford the luxury of
completely accepting a relativism that would open the floodgates of its
radical crisis. On the other hand, the historical political weakness of
the indigenous peoples, clearly due to genocide and continued social and
cultural repression, has not allowed them to have sufficient strength to
impose themselves, except in cases of armed rebellion. And when they did
it politically, as in the case of Bolivia, they had to mediate with the
strong non-indigenous economic powers and accept the form of the
traditional state.

However, there is at least one example in which these processes took
place differently: the Mexican case. Located in Central America, Mexico,
official name "United Mexican States", is a country of large territorial
extension (almost two million kilometres, more than six times the size
of Italy) with a population of approximately one hundred and thirty
million individuals, of which approximately twenty million
self-recognize as such, even if only twelve million live in communities
and territories recognized as indigenous by the state, being able to
identify around seventy ethnic groups, each with its own language and
culture, including traditional legal forms. Even if these are high
demographic numbers, it is necessary to clarify that at the beginning of
the twentieth century more than half of the Mexican population was
indigenous and even one of them, the Zapotec Benito Juárez, had been
president of the republic in the mid-nineteenth century. Unfortunately,
his successors were strongly anti-indigenous, so much so that at the
beginning of the twentieth century many indigenous people joined the
revolutionary movement led by Emiliano Zapata. The constitution of 1916
was the result of this rebellion, even if the "modernization" of the
country during this century marginalized indigenous participation,
without ever managing to extinguish the drive for rebellion, sometimes
even armed. Precisely this continuous tension with the central state,
associated with a greater sensitivity of non-indigenous groups and
international institutions, such as the UN and the ILO, has allowed,
from the nineties of the last century onwards, important constitutional
changes in relation to the Mexican indigenous peoples , particularly
with the amendments to the second article in 2014.

The current constitution already declares in its first article that any
ethnic discrimination is prohibited, while in the second, entirely
dedicated to indigenous peoples, it reaffirms the pluricultural
character of the state. Going beyond old models based on biology, it
proclaims that ethnic belonging must be based on everyone's decision:
"Awareness of one's indigenous identity must be a fundamental criterion
for determining to whom the provisions on indigenous peoples apply."
This principle is associated with that of autonomy, both in the
management of social life and in the form of election of the leaders of
each community, following "the proper forms of internal government". The
same principle also applies to the administration of justice: "Apply its
own regulatory systems in the regulation and resolution of its own
internal conflicts, subject to the general principles of this
Constitution, respecting individual guarantees, human rights and, above
all, dignity and the integrity of women" (Article 2).

Even if the limitation given by the need not to contradict the very
constitution of which the cited article is part continues to appear, as
we have seen in other Latin American constitutions, in practice we find
ourselves faced with a different reality from those we have already
occupied: the right to the Right!

The legal figure that allowed the implementation of this right to have
its own legal forms was that of the "Indigenous Municipal Courts"
(juzgados comunes indígenas). These are legal systems that theoretically
apply traditional indigenous rules, also proceeding with their
formalization, inserted into the local legal system of each state
(Mexico is a federation of states). In this way, these municipal courts
began to be created in states with a greater indigenous presence, such
as Campeche or Chiapas, among others. For example, in the state of
Puebla, six have been established, while in Quintana Roo, a territory
with a strong Mayan presence, seventeen. As in other cases, their
function consists in resolving criminal, civil, family disputes, with
value only within the indigenous community or territory of their
competence, without power over the non-indigenous populations present in
the same territory, for whom justice applies. general of the state. In
case of disputes between natives and non-natives, a mixed forum is
constituted.

In general, even with the foreseeable contradictions, the "indigenous
municipal courts" have worked relatively well, even if accompanied by
controversies from non-indigenous jurists and lawyers, convinced that
their very presence limits the prerogatives of the federal state. Behind
this resistance to accepting the existence of a legal pluralism there
are clear right-wing ideologies and parties (such as: a state, a
culture, a language), even if there is no lack of implicit and even
explicit support from figures and parties who claim to left. Not being
able to eliminate these experiences of indigenous autonomy, supported by
the dictates of the constitution, the central and local state
institutions attempt to erode the space of the indigenous courts,
perceiving their convening power and, above all, the symbolic value they
have acquired, reducing the asymmetry in the relationships that
indigenous peoples have historically had with the state. In this sense,
for indigenous organizations, mediators between the population at large
and the state, indigenous courts are a space of resistance and, at the
same time, of the production of power. This can be clearly perceived
particularly in the case of the Zapatista revolt in the Lacandona jungle
in Chiapas, where social autonomy and resistance to state penetration
have created "liberated spaces" and autonomous management. We will deal
with this in our next intervention on the topic of legal pluralism.

(For further information: Aragón Andrade, Orlando (2010): "El pluralismo
jurídico en los juzgados municipales de Michoacán. Una propuesta teórica
para su estudio". Revista Pueblos y fronteras digital, v. 6, n. 9, pp.
155-179
(http://redalyc.uaemex.mx/src/inicio/ArtPdfRed.jsp?iCve=90616141007);
Buenrostro Alba, Manuel (2014): "Justicia y derecho entre los mayas de
Quintana Roo". Diario De Campo, n. 4-5, pp. 63-69
(https://revistas.inah.gob.mx/index.php/diariodecampo/article/view/5725).

Emanuele Amodio

https://www.sicilialibertaria.it/
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