LEGAL PLURALISM AND THE THREAT TO HUMAN RIGHTS IN THE NEW PLURINATIONAL STATE OF BOLIVIA.

• Published date: 01 January 2018
• Author: Cooper, James M.
• Date: 01 January 2018

INTRODUCTION 4
                I. THE HISTORY AND USE OF INDIGENOUS CUSTOMARY LAW IN
                 BOLIVIA 12
                II. CHANGES IN BOLIVIA'S LEGAL FRAMEWORK UNDER THE
                 MORALES GOVERNMENT 25
                 A. The New Political Constitution of the State of Bolivia 25
                 B. The Vice-Ministry of Community Justice and the
                 Implementation of Indigenous Customary Law 28
                III. BOLIVIA'S INTERNATIONAL LEGAL OBLIGATIONS 34
                 C. Treaties of the Americas 34
                 1. American Convention on Human Rights 34
                 2. American Convention to Prevent and Punish Torture 35
                 D. Other International Treaties and Sources 36
                 1. Rome Statute of the International Criminal Court 36
                 2. Convention against Torture and Other Cruel, Inhuman
                 or Degrading Treatment or Punishment - including
                 the Optional Protocol 37
                 3. Convention on the Elimination of All Forms of
                 Discrimination against Women--including Optional
                 Protocol 38
                 4. International Covenant of Civil and Political Rights 10
                 5. Convention on the Rights of the Child 41
                 6. Supplementary Convention on the Abolition of Slavery
                 the Slave Trade, and Institutions and Practices Similar
                 to Slavery 41
                 7. International Covenant on Economic, Social and
                 Cultural Rights 42
                 8. United Nations Declaration on the Rights of
                 Indigenous Peoples 44
                 9. American Declaration of the Rights of Indigenous
                 Peoples 46
                IV. THE TENSION BETWEEN INDIGENOUS CUSTOMARY LAW AND
                 BOLIVIA'S INTERNATIONAL LEGAL OBLIGATIONS 48
                 A. Some Direct Threats to the Separation of Powers, Due
                 Process and Other Fundamental Human Right 48
                 B. Justicia Comunitaria: Sources and Process 51
                V. CONCLUSION 54
                 A. Legal Pluralism and Legal Monism 54
                 B. Conflicts in a Legally Pluralistic State 57
                 C Legal Pluralism in Other Countries 63
                

INTRODUCTION

On January 21, 2006, Evo Morales stood among the archaeological remains of the Tiwanaku civilization that flourished thousands of years ago near the shores of Lake Titicaca. Addressing an assembled crowd, he promised to end the "colonial and neoliberal model." (2) A day later, a new era began for Bolivia with Morales' swearing in as the country's President. (3) On January 22, 2006, during his inauguration speech from the Government Palace President Morales raised his fist and proclaimed that 500 years of oppression would be replaced by 500 years of indigenous (4) rule. (5)

It did not take long for Morales to act on the promises he made during his presidential campaign. On May 1, 2006, Morales nationalized the oil and gas industries in Bolivia. (6) On June 3, 2006, Morales launched his

"agrarian revolution" land reform plan by handing over roughly 9,600 square miles of state-owned land to poor indigenous people. (7) Other programs included the introduction of indigenous-centric education programs, (8) the expansion of growing areas to cultivate coca, (9) and the continuation of decentralization programs in rural areas. (10) Following the July 2, 2006 election of deputies, Morales established a Special Assembly to create a new constitution for the reestablishing of the State of Bolivia on August 6, 2006. (11) A New Constitution (12) with 411 articles was approved by Constituent Assembly deputies on December 9, 2007. (13) The New Political Constitution for the State of Bolivia (hereinafter "the New Constitution of Bolivia") was passed with 61% support in a national referendum on January 25, 2009, and contained many novel provisions intended to undo centuries of discrimination against and marginalization of Bolivia's indigenous people. (14) On February 9, 2009, President Morales promulgated the New Constitution at an event in the Aymara-dominated city of El Alto.

Bolivia's indigenous population comprises more than two-thirds of the "total population of about eight million, the largest proportion in South America." (15) The majority of these people live below the poverty line, (16) most earning less than two dollars a day. (17) Since the Spanish conquest of the Americas, the indigenous people have been enslaved by their colonial masters and marginalized in the post-independence, or "national," period. (18)

"[T]he legal propositions advanced on behalf of the rights of possession asserted by the Spanish Crown and against the human rights of indigenous peoples included Divine right, treasure trove and the barbarism of the Indians." (19) Following independence, indigenous people were further subjected to forced labor, had restrictions put on their movements, and were marginalized from civil society during the respective national periods throughout the region.

[I]ndigenous people were generally regarded as infamous and noncitizens. The presumed modernity of the elites was bound up with a paternalism that extended from the household to the society at large. Bolivian leaders... saw themselves as bringing light, civilization, and progress to barbarous and backward people. (20)

Historically, most of the indigenous communities received little or no government support. As late as the 1930s, indigenous citizens were not welcome in the white sections of La Paz, the nation's capital. Often, they were forced to bathe and change into "western" clothing before entering the city. A 1925 decree prohibiting indigenous people from areas near the main square was on the books until 1944. (21)

The New Political Constitution of the State of Bolivia attempts to reverse much of the historic injustice and systemic discrimination by, among other things, broadening the definitions of property to include communal ownership, extending limited autonomy to regional prefects, enshrining indigenous language and education rights, and reaffirming state control over Bolivia's vast natural gas reserves. (22) It is no surprise then that when President Morales, winding up his campaign to approve the new constitution in late January 2009, stated from the Presidential Palace, "After 500 years, we have retaken the Plaza Murillo!" (23)

One of the more controversial elements of the New Political Constitution of the State of Bolivia is the implementation of traditional justice systems previously termed usos y costumbres and referred to by the Bolivian Government as justicia comunitaria (community justice). (24) Articles 190, 191, and 192 provide for community justice for the indigenous people and campesinos of Bolivia, a separate legal system that runs concurrently with the national legal system of the country or what is called "ordinary justice." This bifurcated approach has long been a feature in Bolivia's legal culture, albeit in a less formalized or constitutionally mandated way:

Despite a formal jurisprudential hegemony, state legal institutions
                are in practice weak in Bolivia, particularly outside of the few major
                cities, which has had the effect, among other things, of enabling law
                to develop primarily as a cultural and discursive system of
                representation, one which is imbricated with social lives and
                identities in such a way that 'law' embodies both the normative
                (systems of rules enforceable, and enforced by, locally legitimate
                authorities) and the nonnormative, in the sense that law, in addition
                to acting as law, also constitutes other key social categories. (25)
                

This emerging system of indigenous custom is an example of legal pluralism and a manifestation of the plurilateral nature of the refounded state of Bolivia, as promoted by the Morales regime. Supporters view the constitutional recognition of community justice and its integration into Bolivia as part of the panoply of indigenous rights. "In part this derives from the legacy of colonial rule, when a separate, subordinate legal system for indigenous subjects--la Republica de Indios--existed alongside the colonists' law." (26) Many indigenista proponents of community justice system view its new constitutionally protected status as the best manner by which to respect traditional customs, to ensure self-determination, and to promote autonomy. (27)

The centuries during which they were marginalized and isolated from state-sanctioned forms of dispute resolution, indigenous peoples had to resort to their own customs to resolve disputes. With the neoliberal state that Bolivia embraced under President Gonzalo Sanchez de Lozada, there was a noticeable increase in such recourse to self-help often expressed through mob violence: "The vigilante lynching of criminal suspects has become a common practice in the marginal barrios of Bolivian cities, with the majority of such incidents being reported in the southern zone of Cochabamba." (28) The rules, language, and geographical barriers that existed made this a matter of self-help and self-preservation. Municipalization efforts during the 1990s, as part of the neoliberal project, along with other policies pursued as part of the Washington Consensus (29) also provided an impetus towards self-help mechanisms including those for dispute resolution. (30)

The critics of community justice, however, are many. There are some practices that are glaring breaches of fundamental human rights protections. In addition to the lack of due process, the issue of a lack of judicial integrity also surfaces. Often the same person doing the judging is also the municipal authority, reducing the separation of powers to a historic relic. Moreover, there is no right to appeal. Corporal punishment, including the use of the whip, is commonplace. (31) Women's hair has been shaved in cases of alleged adultery. (32) Communities have resorted to vigilantism and public lynching in the name of indigenous justice. (33)

The most high-profile case of such mob violence occurred on March 7, 2009, when hundreds of indigenous peasants attacked and looted the home ofVictor Hugo Cardenas, an Aymara intellectual and former Vice-President of Bolivia, some 56 miles west of La Paz. Cardenas' wife, Lidia Catari, and other family members were injured in the attack. (34) "In the Cardenas case, indigenous Bolivians determined that the provision on land holdings gave them the green light to apply indigenous communal justice." (35) It was also...