INDIGENOUS LEGAL SYSTEMS IN BOLIVIA

BY

PIERRE ROUSSEAU*, LL.L., M.A.

* Sooke, BC, Canada, Email: jnpr2010@gmail.com

© Pierre Rousseau, March 2011.

Abstract.

Bolivia is one of few countries where Indigenous peoples are the majority of the

population and has embraced Indigenous legal traditions and legal pluralism. With its

new constitution (2009), there is a formal recognition of Indigenous legal systems and a

new law delimiting jurisdictions between Indigenous legal systems and the mainstream

system was recently sanctioned. This paper explores this new legislation that recognizes

fundamental principles like self-government, the relationship with Mother Earth, cultural

diversity, legal pluralism and, most importantly, the equality of Indigenous legal systems

with the mainstream system. We will explore what is included in that legislation after an

overview of the status of Indigenous legal traditions in the Andes region of South

America.

Introduction.

I was involved in Aboriginal justice in Canada for many years and while I was in Bolivia

during the winter 2009 – 2010 as an international volunteer on a governance project with

the Aymara people near La Paz, I realized that Indigenous legal traditions were

omnipresent in those communities. Further, it was during a referendum campaign (the

referendum took place at the same time as the presidential election, on 6 December 2009)

where a number of Indigenous communities had the opportunity to vote for their

“autonomy” or self-government, which included the formal recognition of their legal

systems as equal to the mainstream system. I thought it would be an interesting story for

people who are interested in Indigenous legal traditions in Canada and, perhaps, an

inspiration for where this could go if those traditions were to be officially and formally

recognized here.

Indigenous Legal Traditions in the Andes and Canada.

Bolivia is a country situated in the centre of South America that became independent

from Spain in 1825 and has now a population of roughly ten million people.1 The

majority of its population is of Indigenous ancestry (roughly 60% according to the 2001

1 The World Factbook, online: Central Intelligence Agency <https://www.cia.gov/library/publications/the-world-factbook/geos/bl.html#top>.

2

census2) and its president, Evo Morales, is himself Aymara. Most Indigenous Bolivians

live in the high lands (including the Altiplano) and are either Quechuas or Aymaras or

both. The low lands (the eastern part of the country situated in the Amazon basin) are

inhabited by more recent immigrants, mainly of European ancestry but also include a

significant proportion of Indigenous peoples of various nations. The new constitution

(2009) recognizes thirty-seven Indigenous languages as official languages of Bolivia in

their respective territories, with Spanish as common language.3

Since the Europeans’ arrival in the Americas, the colonial authorities have imposed their

legal systems across the continent but, nonetheless, Indigenous legal traditions continued

to exist in Andean countries and have been used extensively in Indigenous communities

that had little contact with the mainstream, colonial community. However, in recent

years there had been an increased reliance on the mainstream legal system (with police

and courts) but the new Bolivian constitution recognizes the rights of Indigenous nations

to their own Indigenous legal systems, as equals to the mainstream (called “ordinario”,

ordinary) legal system.4

In order to relate to the situation in Canada, we also need to look at what has been

happening in northern North America. Like the Spaniards, both French and British

colonial powers imposed their legal traditions to Aboriginal Canadians, rejecting or

ignoring the fact that these peoples had their own legal traditions. This happened earlier

in the first settlements and it eventually extended, at the beginning of the twentieth

century, to the Canadian Arctic. To illustrate this typically colonial approach, a quote

from Crown counsel opening statement to the jury in a matter involving two Inuit men,

Sinnisiak and Uluksuk, charged with the murder of Fathers Rouvière and Le Roux

(Edmonton, 14 August 1917) is particularly revealing:

These remote savages, really cannibals, the Eskimo of the Arctic regions have got to be taught to recognize the authority of the British Crown… It is necessary that they

2 República de Bolivia – Censo de Población, online: Instituto nacional estadística de Bolivia <http://www.ine.gob.bo/cgi-bin/Redatam/RG4WebEngine.exe/PortalAction?&MODE=MAIN&BASE=TallCreac&MAIN=WebServerMain.inl>.3 Constitución política del Estado, Bolivia, 2009, s 5 I. [CPE]4 Ibid, s 30 (14), 179, 190 – 192.

3

should understand that they are under the Law, just in the same way as it was necessary to teach the Indians… that they were under the Law; that they must regulate their lives and dealings with their fellow men, of whatever race, white men or Indians, according to, at least, the main outstanding principles of that law, which is part of the law of civilization, and that this law must be respected on the barren lands of North America… The code of the savage, an eye for an eye, a tooth for a tooth, a life for a life must be replaced among them by the code of civilization.5

Fortunately, things have changed since then and it is now widely accepted that Aboriginal

peoples had their own systems of laws and conflict resolution at the time of contact6 and

that many of those laws and processes survived until today despite governments’ attempts

at assimilation. Yet, while those traditions are now recognized, most criminal matters are

processed through the mainstream legal system and very seldom by Aboriginal dispute

resolution mechanisms and in those few cases, they depend entirely on the goodwill of

the police or the prosecutor7. Further, Canada has never ratified Convention 169 of the

International Labour Organisation (ILO), which states at article 9 “To the extent

compatible with the national legal system and internationally recognised human rights,

the methods customarily practised by the peoples concerned for dealing with offences

committed by their members shall be respected.”8

Back to South America, most Andean countries ratified Convention 1699 and have

constitutionally recognized the rights of Indigenous peoples to their own legal traditions

and conflict resolution processes. As an illustration of the importance of such rights and

their rapport with the mainstream courts, we can look at decision T-523/97 of the

Constitutional Court of Colombia10 that specifically recognizes the Indigenous legal

5 R.G. Moyles, British Law and Arctic Men – The Celebrated 1917 Murder Trials of Sinnisiak and Uluksuk, First Inuit Tried Under White Man’s Law (Burnaby: The Northern Justice Society, SFU, 1989) at 38.6 John Borrows, Indigenous Legal Traditions in Canada, (2005) 19 Washington University Journal of Law & Policy at 167.7 Through informal diversion programs and Criminal Code sanctioned alternative measures (Criminal Code, RSC 1985, c C-46 s 717). 8 Indigenous and Tribal Peoples Convention, 1989 (No. 169), Office of the United Nations High Commissioner for Human Rights, online <http://www2.ohchr.org/english/law/indigenous.htm>9Bolivia 1991, Chile 2008, Columbia 1991, Ecuador 1998, Peru 1994, Venezuela 2002. Convention No. C169, International Labour Organisation online <http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169> 10 Sentencia T-523/97: Francisco Gembuel Pechene v. Luis Alberto Passu, Governor of the Indigenous community of Jambaló and Luis Alberto Finscue, President of the Association of

4

authority to deal with a homicide. In this case, the “offender” was accused of causing the

death of the victim by denouncing him to the guerilla. He was dealt with through the

community dispute resolution process and was sentenced to be lashed, banished and he

lost the right to be elected to any public charge. The Court found that the process was

valid because the traditional way to deal with disputes for the Páez people had been

followed and he was allowed to have a defender that understood the language and

traditions of the community. Further, the Court determined that the sanctions did not

exceed what was acceptable since the offender knew beforehand that those sanctions

could be imposed if he committed that type of crime and that the lashing was merely

symbolic (on the lower part of the legs, without leaving any scar or injury) and did not

amount to torture. This decision illustrates how careful are the courts in the Andean

countries to promote and support Indigenous legal traditions.

Indigenous legal traditions in Bolivia.

Before we get into the details of the Indigenous legal systems in Bolivia, it is worth

understanding the context in which this is happening. As mentioned, Indigenous peoples

in Bolivia have been using their own dispute resolution mechanisms and governance

models in their communities, mainly because the State had little if any interest in what

was happening in those “remote” communities. The expansion of the mainstream legal

system did put a strain on its resources and, unless the police were involved in a matter or

parties resorted to lawyers to deal with an issue, the traditional system was still in use

because it was inexpensive, quick and relevant to Indigenous peoples. When the

mainstream system was involved, there were many critics that said the system was

foreign and was staffed by people who knew little about those peoples and who where

remote from them and were “transients” in the communities, ignoring local realities.

Colque writes that often, they functioned thinking more about their wallets or their

political interests than resolving issues with fairness and justice.11

Indigenous Chiefs of the Northern Area of the Cauca Department, 15 October 1997 [translated by author].11 Gonzalo Colque, Autonomías indígenas en tierras altas – Breve mapeo para la implementación de la Autonomía Indígena Campesina (La Paz: Fundación Tierra, 2009) at 12.

5

The new legislative framework.

The constitution provides for a specific legislation defining respective jurisdictions

between the Indigenous and mainstream systems: the Law to Delimit Jurisdictions (Ley

de Deslinde Jurisdiccional - LDJ)12 as sanctioned by both the Plurinational Legislative

Assembly13 and the Senate on 16 December 201014. The final legislation followed

approximately 18 months of consultation with various stakeholders, including Indigenous

nations and it is said that technocrats did not have the last word but Indigenous nations

did.15 The purpose of that legislation is to provide a framework for interaction between

legal systems in a country where legal pluralism is the norm but some Indigenous leaders

are critical of the restrictions imposed on Indigenous jurisdictions.16

The foundation of Indigenous jurisdiction.

The Indigenous jurisdiction is based on its own authority17, which means the traditional

Indigenous authority is responsible for its own legal system since the Constitution also

recognizes traditional Indigenous governance, based on their respective cultures18. Those

authorities must apply their own values, cultures, standards and procedures, within the

parameters of the Constitution and must respect basic human rights like the right to life,

the right to legal defense and other rights as defined by the Constitution19. The LDJ is

even more specific in terms of respect of human rights and provides for full respect of

Indigenous and human rights according to the Constitution and international human

rights instruments.20 In a previous draft of the legislation, those rights were within the

12 CPE, supra note 3 at 192 III.13 Ibid, s 145. The Constitution provided for a new legislative assembly that is now called “Asamblea Legislativa Plurinacional”. 14 Ley sancionada de Deslinde Jurisdiccional, Centro de Documentación e Información – Bolivia (CEDIB) online <http://www.cedib.org/index.php?/alerta-legislativa-2010/ley-sancionada-de-deslinde-jurisdiccional-fuente-www.erbol.com.bo.html>. [LDJ]15 Senado abre debate sobre la Ley de Deslinde Jurisdiccional, Cambio, La Paz 10 December 2010, online <http://www.fmbolivia.tv/2010/12/senado-abre-debate-sobre-la-ley-de-deslinde-jurisdiccional/> 16 Nuni: Ley de Deslinde que sera tratada en el Senado fue cambiada, Erbol, La Paz 13 December 2010.17 CPE, supra note 3 at 179 I.18 Ibid, s 290 II, 296.19 Ibid, s 190 II.20 LDJ, supra note 14 at 5, 6.

6

Indigenous jurisdictions and were protected through constitutional control by a joint court

composed by authorities from the Indigenous legal system involved and the

corresponding mainstream legal system and they had to interpret the issues interculturally

as well as the legal protections of the Constitution and international human rights

according to the legal framework of Indigenous autonomy. The final text simply

removes Human rights issues from the ambit of Indigenous jurisdictions, as we will see.21

Within their respective jurisdictions, there is absolute equality22 between Indigenous legal

systems and the mainstream courts. Obviously this will not be easy but Bolivia seems to

be willing and eager to confront this challenge. When we compare that with the situation

in Canada, where Indigenous legal systems have no specific status within or in parallel to

the mainstream courts and where Indigenous rights are interpreted by mainstream courts

that have little if any involvement with the Aboriginal communities, let alone any

knowledge of the legal traditions of the Aboriginal nation involved in the issue, we can

appreciate the chasm between the Bolivian and the Canadian approaches.

Applicable Indigenous laws and Basic Principles.

A previous version of the LDJ (May 2010) included a definition of Indigenous laws (in

Spanish: “Derecho Propio”) as “the set of rules based on ancient values, cultural

principles, procedures and practices that regulate social life of indigenous nations

and peoples … to maintain harmony and balance among its members and with

nature”.23 Those laws are protected by the constitution24 but the final LDJ does not

anymore mention or define them specifically but at section 7 it indicates that an

Indigenous nation has the power over justice “in accordance with its own justice

system” that can be exercised by its authorities.25 The LDJ’s basic principles refer to

the “spiritual relation between Indigenous peoples and Mother Earth” and their

21 Ibid, s 10 II (a).22 Ibid, s 3 “Hierarchical Equality” [translated by author].23 Proyecto de Ley de Deslinde Jurisdiccional, section 6, online, Ilustre Colegio de Abogados de La Paz <http://www.icalp.org.bo/web/2010-07-26/proyecto-de-ley-de-deslinde-jurisdiccional.htm>. [translated by author]24 CPE, supra note 3 at 192 III.25 LDJ, supra note 14 at 7. [translated by author]

7

right to “maintain and strengthen their own spiritual relation with their lands and

territories that they traditionally owned, occupied or used and for which they are

assuming its responsibility for future generations”.26 Further, in terms of legal

pluralism, it states that the “coexistence and independence of all legal systems must

be respected and guaranteed within the Plurinational State, as equals”.27 The other

fundamental principles are:

The unity and integrity of the Plurinational State must be respected.

Cultural diversity.

Intercultural interpretation.

Complementarity and concurrence of each jurisdiction’s efforts.

Independence (no interference between jurisdictions).

Gender equality and fairness.28

Equal opportunities for children, youth, elders and persons with

disabilities.29

Gender equality includes not only equality before any Indigenous legal system but

also equality in having access to any position and function within the legal system as

well as in the decision-making process, the judgment and the imposition of

sanctions.30 This is particularly crucial as I observed during a project with an

Aymara community in the Altiplano (Oruro district) that traditional indigenous local

governance was almost restricted to men. Indeed, during the years 2005 to 2009,

out of 79 people who were part of the traditional leadership, only 4 were women.

That is not to say that women did not play a significant role in the community as

most of those positions included the incumbent’s spouse but men constituted the

overwhelming majority of formal positions. On the other hand, women occupied the

majority of municipal positions in the mainstream system during those years.31

26 Ibid, s 4 (b). [translated by author]27 Ibid, s 4 (e). [translated by author]28 Gender equality is also protected under s 8 and 11 of the CPE, supra note 3.29 LDJ, supra note 14 at 4. 30 Ibid, s 4 (h).31 When I was there, the four councillors were women and the mayor was a man.

8

Human Rights.

Basic human and constitutional rights are recognized by all jurisdictions,

particularly the right to life.32 Gender equality is a fundamental right and any form

of violence against children, youth and women is prohibited.33 The death penalty

and lynching are formally prohibited34 as being “a violation of human rights”. This is

particularly interesting because during the debate on the development of formal

Indigenous jurisdictions, many opponents argued that lynching would be part of

Indigenous legal systems, referring to a number of lynching that had happened in

the country during the past few years. For example, two men accused of child

sexual assaults were taken by members of their own communities and were

eventually set on fire and died of the consequences of that “sentence” and the

opponents were falsely saying that this was an example Indigenous legal traditions.

In fact, lynching in Bolivia is quite frequent because the police and the courts are

unable to enforce the laws and because Indigenous jurisdictions were not yet

formally recognized. Thus, a mob mentality developed and took over dealing with

alleged criminals for want of other means. Yet, indigenous authorities were

adamant that lynching and the death penalty were not part of their legal traditions

but the opponents would hear nothing of that. Hence, those dispositions are a

compromise to convince the opposition to support the LDJ and, by extension, the

whole concept of legal pluralism.

Jurisdiction.

Indigenous jurisdiction is based on the bond between members of the respective

Indigenous nation or people35 and is personal, material and territorial, and must

apply simultaneously36:

32 LDJ, supra note 14 at 5 I.33 Ibid, s 5 II and IV.34 Ibid, s 5 V and s 6.35 CPE, supra note3 at 191 I.36 LDJ, supra note 14 at 8.

9

Personal: according to the constitution, they apply to any and all members of the

relevant Indigenous nation acting as plaintiffs, defendants, informants or accused,

including any party to any other recourse.37 Thus, if one of the parties is indigenous,

it seems that the Indigenous legal system would apply, even to the non-indigenous

party. However, the LDJ appears to have narrowed this, stating “the members of the

respective indigenous nations or peoples are under Indigenous jurisdiction”.38

According to Xavier Albó, the LDJ violates the constitution because it applies only to

indigenous peoples on their territories. He gives the example of, on the one hand, a

non-indigenous person steals grain from an indigenous person on indigenous land:

he will be under the ordinary jurisdiction as he is not indigenous. On the other

hand, an Indigenous who steals a car in the city would also be under the ordinary

jurisdiction as he would not be on his nation’s territory. Thus, there is an inequality

because the Indigenous offender in the city should be under the Indigenous

jurisdiction if they were equal.39

Material: it will hear all matters related to Indigenous peoples and as determined

by the LDJ.40 Previous versions of the act were very broad and granted jurisdiction

over any matter, conflict and offense, including homicides, violent assaults, serious

crimes etc.41 The final version is much more restrictive and while it recognizes a

broad jurisdiction over matters, or conflicts that were traditionally and historically

dealt with under their own standards, proceedings and knowledge in accordance

with their self determination, there is a list of matters that are excluded from

Indigenous jurisdictions. That list is significant and includes:

Criminal matters involving international laws;

Crimes against humanity;

37 CPE, supra note 3 at 191 II (1).38 LDJ, supra note 14 at 9. [translated by author]39 Xavier Albó, ¿Ley de deslinde o de subordinación jurídica? Página Siete (17 December 2010) online < http://www.ftierra.org/ft/index.php?option=com_content&view=article&id=4319:iley-de-deslinde-o-de-subordinacion-juridica&catid=98:noticias&Itemid=175> Mr. Albó is a well-known and respected anthropologist in Bolivia, expert in Indigenous matters.40 CPE, supra note 3 at 191 II (2).41 Proyecto de ley, supra note 21 at 7 and 8.

10

Crimes against the safety of the State;

Terrorism;

Corruption when the State is the victim;

Human trafficking;

Drug trafficking;

Any crime against the body integrity of children and youth;

Rape and murder;

Civil matters where the State is a party;

Labour law;

Mining, oil and gas laws;42

It is interesting to consider that in the previous version the Indigenous system was

dealing with matters involving corruption, illegal substances and drugs, assaults

against children and teenagers, in possible coordination with the mainstream

system while for offences against the state’s safety, tax and customs fraud and

international crimes (genocide, war crimes and crimes against humanity), that

coordination with mainstream courts was mandatory.43 In those latter cases, the

Indigenous authority was to co-preside with the mainstream courts and had a duty

to report those crimes.44

The government may have had second thoughts about the initial project’s broad

jurisdictions and while many indigenous leaders are very unhappy with those

restrictions45, M. Juan Carlos Pérez who is with the High Chamber Intercultural

42 LDJ, supra note 14 at 10 II.43 Proyecto de ley, supra note 21 at 14 I.44 Ibid, s 14 II and III.45 Supra, note 16: Pedro Nuni, Member of the Plurinational Legislative Assembly for the Beni District says: “There has been changes to the draft legislation that we saw… and it appears it is intentional”. He says that the changes will subordinate the Indigenous legal systems to the ordinary system: “We consider this is a framework that tend to subordinate one legal system under another.” He says section 10 that exclude major criminal offences from the Indigenous jurisdiction is a “padlock” that keeps those cases in the ordinary system. [translated by author]See as well: Sanción de Ley de Deslinde Jurisdiccional deja descontentos a indígenas y campesinos, Erbol, La Paz, 17 December 2010, online: http://www.indigena.erbol.com.bo/noticia.php?identificador=2147483938412

11

Commission for Indigenous, Native, Peasant Nations and Peoples states that it was

done to protect Indigenous nations from the influence of Western laws and lawyers

and to focus on conflict instead of offences, which is more consistent with

Indigenous cultures.46 Yet, despite this reduction in jurisdiction, this is still in stark

contrast with Canadian criminal practice allowing communities to be involved only

with minor matters as part of diversion programs or alternative measures.47

Territorial: it applies to legal relationships and events that occur or has any effect

within an Indigenous jurisdiction.48 The previous version of the LDJ was broader,

extending the Indigenous jurisdiction to any legal matter that occurs outside of the

Indigenous territory when the rights of that nation are violated.49 Likewise, conflicts

between two members of the Indigenous nation, whether they occur within their

territory or outside, were within their jurisdiction.50 Finally, Indigenous

jurisdictions could deal with any issue, conflict between people who are not

members of the group when the offense occurs on their territory or they violate one

of their laws and that cause damage to the community.51 These last minute changes

may suggest that the equality between Bolivia’s legal systems is not quite achieved.

Process.

More recently, the Confederación de Pueblos Indígenas de Bolivia (CIDOB) decided not to participate in the elaboration of regulations to be passed under the LDJ: Erbol 17 March 2011: http://www.indigena.erbol.com.bo/noticia.php?identificador=214748394204446 In an interview with the press agency Erbol in La Paz on 9 December 2010. Fundación Tierra, online, <http://www.ftierra.org/ft/index.php?option=com_content&view=article&id=4239:rair&catid=98:noticias&Itemid=175>47 For example, the Public Prosecution Service of Canada’s policy on alternative measures is clear: “Generally, [alternative measures] will be most suitable for younger adult offenders and those with no criminal record, who have committed minor offences.” Public Prosecution Service Canada, the Federal Prosecution Service Deskbook, chapter 14, Alternative and Extrajudicial Measures, online < http://www.ppsc-sppc.gc.ca/eng/fps-sfp/fpd/ch14.html>. 48 CPE, supra note 3 at 191 II (3) and LDJ, supra note 14 at 11. 49 Proyecto de ley, supra note 21 at 8 II.50 Ibid, s 8 III.51 Ibid, s 8 IV.

12

While the previous version of the LDJ dealt with the appointment of judicial

officers52, the final version does not address it directly but recognizes their right to

administer justice according to their own legal systems and governance models

under the constitution53. In other words, Indigenous legal systems may rely on

individuals to make rulings or panels of individuals, as a group on any matter,

dispute or conflict over which they have jurisdiction in the nation’s territory. They

must apply the nation’s world-view, social, cultural and legal traditions as a self-

governing entity.

In Bolivia I witnessed how a civil dispute between an individual and his community

was dealt with. The individual owned a large piece of land and had a herd of lamas

that were using all that land for pasture (through rotation) while some neighbours

were lacking sufficient space for their own lamas. The Ayllu (community) council

decided that this individual had to share his pastures with his neighbours under the

principle that Indigenous territories should be for the benefit of all and even though

private land is possible in Bolivia if they are not within specific lands set aside for

Indigenous nations54, there is still a strong sense of community ownership on those

private lands. The individual appealed to the two Mallku (leaders of that particular

cluster of Ayllus) and I attended the hearing that took place in the Mallku’s office.

The individual explained his situation and the two Mallku asked him questions

about how much land he really needed and why he could not share with his

neighbours. No one represented the Ayllu but the Mallku were acting as

interrogators and decision makers. It was very informal and after all the arguments

had been discussed, they recessed and met together, without the applicant, and

finally agreed to disagree… Thus, since the two Mallku could not agree, the decision

of the Ayllu stood.55

52 Ibid, s 7. The authority to determine the process and deliver justice can be found in each Indigenous nation’s governance model and they are responsible for appointing individuals that will exercise this power either individually or collectively.53 LDJ, supra, note 14 at 7.54 Tierra Comunitaria de Origen (TCO) or Original Communal Land.55 Please note that this is only an example of the process and may not be entirely accurate in terms of Aymara laws as this hearing was held mostly in Aymar aru, their indigenous language and I

13

Decisions are final.

Decisions of Indigenous legal systems are mandatory and final, having the character

of res judicata and everyone, including public authorities must comply with those

decisions.56 There is no appeal or judicial review to the mainstream system of

decisions made within the Indigenous legal system.57

Coordination and cooperation in the context of legal pluralism.

Indigenous authorities have the duty to coordinate their actions with the

mainstream legal system in order to achieve an effective legal environment based

on legal pluralism, particularly to reinforce social harmony, individual and collective

rights and a guaranteed access to justice individually, collectively or at the

community level.58 Coordination mechanisms defined by the LDJ include:

A transparent access system to information;59

A framework or other way of facilitating the dialogue about human rights

and exchanging experiences in matters of conflict resolution;60

In terms of cooperation, all different legal systems and courts must work together

within this legal framework.61 The mainstream judicial and administrative

authorities as well as the Public Prosecutor62, the Police, the prison authorities and

any other relevant institution must cooperate forthwith with Indigenous authorities

and share information with them when requested.63 Conversely, Indigenous

authorities must assist mainstream courts if and when required.64

benefited from some explanation and translation in Spanish from the Mallku.56 LDJ, supra, note 14 at 12 I and CPE, supra note 3 at 192 I.57 LDJ, supra note 14 at 12 II.58 Ibid, s 13 I.59 Ibid, s 14 (a).60 Ibid, s 14 (b) (c).61 Ibid, s 15.62 Ministerio Público.63 LDJ supra note 14 at 16 II (a).64 Ibid, s 15 II and III.

14

Sanctions.

In Canada, it is often said that restoring harmony between the parties and in the

group as well as rehabilitation are the main focus of Aboriginal processes and that

punishment, per se, is not part of Aboriginal cultures. In Bolivia, the LDJ is not

specific on that issue but it does mention a number of sanctions that are not

acceptable. As mentioned earlier, lynching and the death penalty are prohibited65

but a few other sanctions are also prohibited: the loss of land or the banishment of

elders or people with disabilities are also prohibited for matters of non compliance

with communal duties, charges, contributions and community work.66 No other

limitation or restriction can be found in the legislation. From what I have been able

to learn in Bolivia, sanctions are generally in the nature of community work,

donation to community projects or charities and/or payment of fines. Given the

LDJ’s dispositions on cooperation,67 it is also likely that prison terms will be part of

the sanctions that can be imposed. Prison terms might be considered as a type of

banishment and it is also likely that banishment is part of traditional sanctions

when an individual becomes too disruptive to the community.

Final Disposition.

The act will be translated, published and communicated in the language of all

Indigenous nations of Bolivia.68

Conclusion.

Bolivia has undertaken a series of very challenging changes in terms of legal

pluralism and it will be very important to monitor the situation as it might provide

lots of answers to our own challenges. Yet, there are much more to do and the issue

of urban Indigenous people does not appear to have been addressed. The

recognition of separate legal systems will only take place on Indigenous territories

65 Ibid, s 5 V and 6.66 Ibid, s 5 III.67 Ibid, s 16 II (a) that includes correctional authorities.68 Ibid, Disposición Final, Única. Perhaps limited to the 37 indigenous languages recognized in the constitution. Supra, note 3 at 5 I.

15

that will become autonomous or self-governing. For instance what will be the

situation in El Alto, near La Paz, a city with a population of roughly 900,000 with

approximately 85% of Indigenous ancestry? Like Canada, many Indigenous people

in Bolivia have moved to the main cities of La Paz, El Alto and Santa Cruz so that

they can find employment or even simply to take advantage of city life, particularly

post-secondary education. Since they are not indigenous territories, the new

legislation does not apply; how will their legal traditions be recognized? This is not

to say there are no alternatives in those large urban centres, quite the contrary, as

Bolivia does have a network of community justice centres but they are mainstream,

akin to what we have in Canada in our restorative or community justice programs.

The restrictions on Indigenous jurisdictions and the lack of consultation of the final

version of the LDJ are also likely to become an issue. At this point, we know that

eleven communities have embraced autonomy during the last referendum69 and

they can now establish their own legal system but we can speculate there will be

many more communities to join autonomy in the future. I suggest it will be an

exciting experience to join them and observe how they develop their own legal

systems, as it might be a lesson in self-governance for many of us.

69 Huacaya, Tarabuco, Mojocoya (Chuquisaca dept.), Charazani, Jesús de Machaca (La Paz dept.), Pampa Aullagas, San Pedro de Totora, Chipaya, Salinas de Garci Mendoza (Oruro dept.), Chayanta (Potosi dept.) and Charangua (Santa Cruz dept.).

16

BILBIOGRAPHY

LEGISLATION

Constitución política del Estado, Bolivia, 2009

Criminal Code of Canada, RSC 1985, c C-46

Ley de Deslinde Jurisdiccional, Bolivia, online, Centro de Documentación e Información

– Bolivia (CEDIB) <http://www.cedib.org/index.php?/alerta-legislativa-2010/ley-

sancionada-de-deslinde-jurisdiccional-fuente-www.erbol.com.bo.html>.

Proyecto de Ley de Deslinde Jurisdiccional, online, Ilustre Colegio de Abogados de La

Paz <http://www.icalp.org.bo/web/2010-07-26/proyecto-de-ley-de-deslinde-

jurisdiccional.htm>.

JURISPRUDENCE

Pechene, Francisco Gembuel v. Luis Alberto Passu, Gobernador del Cabildo Indígena de

Jambaló and Luis Alberto Finscue, Presidente de la Asociación de Cabildos de la

Zona Norte del Departamento del Cauca, Sentencia T-523/97, Corte constitucional

de Colombia, 15 October 1997.

SECONDARY MATERIAL: MONOGRAPHS

Colque, Gonzalo, Autonomías indígenas en tierras altas – Breve mapeo para la

implementación de la Autonomía Indígena Campesina (La Paz: Fundación Tierra,

2009).

Moyles, R.G., British Law and Arctic Men – The Celebrated 1917 Murder Trials of

Sinnisiak and Uluksuk, First Inuit Tried Under White Man’s Law (Burnaby: The

Northern Justice Society, SFU, 1989).

SECONDARY MATERIAL: ARTICLES

Albó, Xavier. “¿Ley de deslinde o de subordinación jurídica?” (2010) Página Siete (17

December) online <http://www.ftierra.org/ft/index.php?

17

option=com_content&view=article&id=4319:iley-de-deslinde-o-de-subordinacion-

juridica&catid=98:noticias&Itemid=175>

Borrows, John. “Indigenous Legal Traditions in Canada” (2005) 19 Washington

University Journal of Law & Policy 167.

SECONDARY MATERIAL: OTHERS

Bolivia, República de – Censo de Población, online: Instituto nacional estadística de

Bolivia

<http://www.ine.gob.bo/cgi-bin/Redatam/RG4WebEngine.exe/PortalAction?

&MODE=MAIN&BASE=TallCreac&MAIN=WebServerMain.inl>.

Nuni: Ley de Deslinde que sera tratada en el Senado fue cambiada, Erbol, La Paz 13

December 2010.

Office of the United Nations High Commissioner for Human Rights, Indigenous and

Tribal Peoples Convention, 1989 (No. 169) online

<http://www2.ohchr.org/english/law/indigenous.htm>

Public Prosecution Service Canada, the Federal Prosecution Service Deskbook, chapter

14, Alternative and Extrajudicial Measures, online <

http://www.ppsc-sppc.gc.ca/eng/fps-sfp/fpd/ch14.html>.

Senado abre debate sobre la Ley de Deslinde Jurisdiccional, Cambio, La Paz 10

December 2010, online <http://www.fmbolivia.tv/2010/12/senado-abre-

debate-sobre-la-ley-de-deslinde-jurisdiccional/>

The World Factbook, online: Central Intelligence Agency

<https://www.cia.gov/library/publications/the-world-factbook/geos/bl.html#top>.

18