Distinguished Speakers from the United Nations visit the University of New Mexico School of Law
On October 23, 2014, Francisco Calí Tzay, Chair of the United Nations Committee on the Elimination of Racial Discrimination (CERD), and Lindsay Robertson, Advisor to the CERD Chair on Indigenous Issues presented “The United Nations and the Rights of Indigenous Peoples” at the University of New Mexico School of Law. You can view this insightful presentation in the video below.
During President Calí Tzay’s visit to the University of New Mexico, Tribal Law Journal Staff Member Javier Amaya interviewed President Calí Tzay. This interview concerned the state of indigenous Mayan Law in Guatemala, and the relationship between Mayan Law and the Guatemalan Federal Government. You can listen to the interview in the video below.
Below are four discerning blogs by University of New Mexico School of Law students commenting on and analyzing the interview with Calí Tzay.
Customary Law and Nahuales
By Javier Amaya Student Staff Member
According to Maya tradition, every baby is born with a Nahual. Nahuales are usually animals that represent the connection existing between humans and nature. A Nahual is considered to be the other half of a person, a protective spirit.
In my interview with Francisco Calí Tzay, President of the United Nations Committee on the Elimination of Racial Discrimination, Mr. Calí Tzay explains how Nahuales interact with Mayan law. Nahuales define people. It is believed that Nahuales present an influence on a person’s character and his actions. A person and his Nahual are considered to complement and affect each other. As a result, when a person commits an offense in the community, his Nahual is looked at to determine his punishment.
Depending on the person’s Nahual, the community can decide to increase or decrease his punishment. If a person’s Nahual is one that is unstable and violent, that person’s punishment will be lessened because of the influence that Nahual has over him. On the other hand, if the person’s Nahual is one associated with reason and control, the person would be given an aggravated punishment. Since a Nahual influences a person’s actions, he is expected to act in accordance to his Nahual’s characteristics. A person that is expected to act peacefully but does not will be punished, while a person who is expected to create chaos will be punished with acceptance because a Nahual’s influence is something a person cannot escape.
Guatemala’s Political Struggle to Recognize the Indigenous Mayan System of Justice
By April Wilkinson Student Staff Member
Francisco Cali Tzay (Mayan Kaqchikel) of Guatemala, is the President of the United Nations Committee on the Elimination of Racial Discrimination (CERD). He visited the University Of New Mexico School Of Law to discuss the legal recognition the Mayan traditional legal system in Guatemala is currently facing. During his interview, Cali Tzay described the ongoing comparative analysis between the Mayan legal system and national government system of justice as “legal sacreligion.” The Mayan legal system is not based on a series of separate areas of law, such as civil, criminal or labor law. It is a legal system based on customary law where a single legal analysis is applied to an issue regardless of whether it is criminal or civil. The system is effective because it is culturally appropriate to the people and has a national scope, reaching Mayan communities across Guatemala.
The Mayan legal system is separate and distinct from the national government’s legal system. For example, the Mayan system is based on oral custom not written law. Cali Tzay explained that there is historical evidence that Mayans once utilized written codes of law, but these were destroyed during Spanish conquest of the territory that comprises modern day Guatemala. Mayans were thereafter forced to adopt an oral custom to perpetuate their customary law. This oral custom continues to carry the force of law in Mayan communities today and remains the only legal system that reaches the remote and rural Mayan communities. In this way, the Mayan system of justice is considered more comprehensive than Guatemala’s national justice system.
The Mayan legal system is effective because it is aligned with the culture of the Mayan people. Judges in the Mayan system are appointed to positions from within the community and are generally not legally trained. These positions are unpaid, and all community members are eligible for appointment. Due to this, the entire community participates and understands how their legal system functions, and customary law is perpetuated generation to generation. As a result, the consideration of the facts, the application of customary law and sentencing are consistent and efficient and work to maintain the harmony of the community.
Punishment within the Mayan legal system reflects the importance the Mayan culture places on the common interest of the community, opposed to the interest of the individual. For example, one effective punitive aspect of traditional Mayan justice is shaming. This is done by bringing an individual’s offense to the attention of the public, and distributing the embarrassment and accountability to the entire family. However, in contemporary times, shaming is not always viewed as effective. Cali Tzay explained that some Mayan communities have appropriated punitive methods of punishment from outside the Mayan culture that negatively impact the traditional legal system. These include instances of lynching and lashings. Under the Mayan world view, these types of punishment are considered a human rights offense because they are applied to a single individual, inconsistent with the Mayan belief in distributive justice. Unfortunately, negative publicity of the lynchings and lashings has brought about nationwide criticism of the Mayan traditional justice system, even among the Mayan people themselves.
Under the Mayan legal system, jurisdiction applies to all individuals who have consented to reside in the Mayan community. Similar to Ex Parte Crow Dog, 109 U.S. 556 (1883), a United States Federal Indian Law case, Cali Tzay described a scenario where a Mayan man killed his friend in a fight fueled by alcohol. After Mayan law was applied, the offender was sentenced to make reparation to the decedent’s family by providing for their survival until they were able to care for themselves. A national legal system judge later criticized the Mayan community for failure to properly punish the crime and levied a harsher sentence against the offender. This is one example of the conflict between the national legal system’s jurisprudence and the Mayan application of customary law.
Despite this conflict, court judges nationwide are beginning to take a look at the Mayan legal system as a model of alternative dispute resolution. Guatemala is struggling with political unrest and corruption, which has stalled the functionality and effectiveness of the national courts. This has forced the Guatemalan government to acknowledge the Mayan legal system as a help in resolving disputes in Mayan communities that the national legal system cannot address. The Mayan system operates efficiently and effectively because of the trust the indigenous people have in it to appropriately address the issues. In contrast, the national system has procedural loopholes that permit the offender to return to the community with either a minor penalty or to await trial. Cali Tzay explains that there are even some Mayans who prefer to take their chances in the courts of the national legal system in hopes of either taking advantage of a loophole, or receiving lesser sentences or even an acquittal. This may explain why some Mayan communities have appropriated the more severe punishment methods; the methods are seen as a way to counter an ineffective national legal system and to address the criminal offenders living in the community.
Recognition of the Mayan legal system is a political issue in Guatemala, and those politics are changing as understanding of the Mayan traditional system of justice grows. Customary law efficiently and appropriately resolves disputes within the Mayan communities. Cali Tzay anticipates that the Mayan legal system will serve to not only perpetuate the culture of the Mayan people, but also to demonstrate a model of alternative dispute resolution for the Guatemalan national legal system.
Mayan Justice and Non-Traditional Justice Systems Forced Upon Indigenous Peoples
By Rachel Felix Student Staff Member
In Guatemala, the Mayan legal system faces a political struggle to be recognized and respected by the national government. Calí Tzay, a Mayan leader from Guatemala and President of the United Nations Committee on the Elimination of Racial Discrimination (CERD), recently visited the University of New Mexico’s School of Law to discuss the Mayan legal system. In particular, Calí Tzay addressed current practices adopted as “traditional justice” within the Mayan legal system that are not actually derived from traditional Mayan culture.
In 1997, the Mayan legal system changed and, “systematized the branches of the legal system… it’s more complete than the national system.” At the community level, Mayan traditional justice systems work to maintain harmony in the community through what has been accepted as indigenous customs and norms. However, some customs and norms of the Mayan legal system do not accurately reflect Mayan traditional justice. Instead, these adopted “traditions” were forced upon the Mayan people through colonial efforts to defeat the Mayan civilization. Incorporation of non-traditional customs and norms is also attributed to the past 36 years of internal war.
Lynching is one such outside form of justice that has been adopted as a traditional method. Calí Tzay states, “[Lynching] is something I am against because that is not solving any problems in Guatemala… unfortunately, the practice of lynching is becoming part of the Mayan people’s system of law, but that was not the case historically.” In Mayan communities, the practice of lynching began as a form of torture during the Spanish Inquisition. Although it is not rooted in traditional Mayan justice, lynching receives national media attention as representative of the Mayan Legal System: “the media are [paying] attention [to] the Mayan legal system and they focus on the lynching but it’s not true … It was not an indigenous custom … but people are saying it is.”
Community shaming, however, is a traditional Mayan method of justice. Some Mayan communities achieve the traditional goals of shaming through lynching. The incorporation of shaming through lynching is an example of how indigenous peoples might accept customs and practices that are rooted in experiences outside the scope of traditional justice. Another example of a traditional custom used by the Mayan legal system is the purported tradition that Mayan customs and laws are embedded in oral tradition. However, this is actually a forced tradition. Efforts to colonize the indigenous nations of Latin America resulted in the destruction of the written language and laws of the Mayan people, a historical fact that is often overlooked today. Instead, it is widely accepted in Latin America that Mayans traditionally did not use writing. Calí Tzay described this in his interview, “a [Spaniard] historian … wrote he was crying after the Spaniards burned a Mayan library … we used to write … the oral tradition was forced on us. …” In addition Calí Tzay stated, “I don’t know how the Mayan people are applying the Mayan legal system because unfortunately … the custom people have is repression, beating the people, so now they believe that the … way to apply the Mayan custom is to hit somebody, to administer 40 lashes.” These negative remnants of “traditional” justice influenced by violence are not truly representative of traditional aspects of the Mayan legal system but were forced upon the system by years of oppression by the Spanish.
Despite the fact that these harsh methods of justice and lack of written law are not traditional to Mayans, Calí Tzay noted that indigenous people are often ignored by the national government. They are viewed collectively as inferior, second class citizens based on misrepresented customs that traditionally did not belong within their legal system. Hopefully, as people such as Calí Tzay have an opportunity to speak to the world, this misperception of “traditional” justice will fade and the Mayan justice system will be better understood and recognized by the Guatemalan government.
The Traditional Mayan System of Justice
By Katie McGarvey University of New Mexico Law Student
In an interview conducted at the University of New Mexico, indigenous scholar Cali Tzay presented the traditional Mayan system of justice as a necessary and legitimate, albeit controversial, alternative to the national justice system of Guatemala.
The national system, as described by Tzay, is broken, ineffective, and corrupt. Bribery and intimidation are common, and victims of crime are rarely made whole through the judicial system. Furthermore, due in part to to resource scarcity and language barriers, the national judicial system is inaccessible to many rural communities. As such, for many Guatemalans, the Mayan system of justice is considered to be more trustworthy and effective and is often the only available mechanism of justice.
Use of the Mayan justice system in Guatemala is a source of national and international tension, for several reasons. Within Guatemala, there has been a historical pattern of oppression of indigenous populations by the dominant culture. The cultural traditions of the country’s native peoples, including the tradition of Mayan justice, have been looked down upon as primitive and substandard.
A second source of controversy surrounding the Mayan justice system is the use of public lashings as punishment for certain crimes. Nationally and internationally, opponents of the practice call it a violation of human rights, condemning it as an inhuman and unjust practice. Proponents of traditional justice argue that the practice is legitimate and an effective means of bringing justice to communities with little other recourse. Proponents note that the practice is reflective of the Mayan culture’s conscious choice to favor community harmony over individual rights. They argue that to forbid the practice would only serve to, once more, strip indigenous people of their voice and cultural autonomy.