Reviving the Mayan way of justice; Tradition: Guatemala's Indians, wracked by centuries of exploitation and a long civil war, return to an old practice for settling disputes


SAN ANDRES SEMETABAJ, Guatemala -- Brothers Francisco and Manuel Morales Ajqui, Mayan Indians who farm broccoli and corn in the Guatemalan highlands, have been squabbling for years over the rich fields their father left them.

The family feud revolves around a right of way. Whenever Manuel gets mad at Francisco, he blocks the narrow path that leads uphill through his fields, making it impossible for Francisco to get to his crops.

It is a minor dispute but a festering one, and for years the Morales family had no one to help them resolve it. Like most Guatemalans, they do not speak Spanish. The closest court is in a distant city where the judge does not speak the Moraleses' Indian tongue, Kakchiquel. The language barrier bred distrust that no interpreter could overcome.

Guatemala's Mayas are among the poorest people in the Americas. Centuries of repressive governments exploited them under laws most Mayas considered alien. Tens of thousands of Mayas died in this country's brutal civil war.

The 36-year war also eroded traditional Indian justice systems. In many towns like San Andres Semetabaj, a village of 9,000 near the tourist destination of Lake Atitlan, an Indian mayor used to mediate disputes. But during the war, the powerful army weakened the authority of local mayors. When the war ended in 1996, the military shrank, leaving a power vacuum in many towns.

Now, under guarantees for Indian rights written into the 1996 peace accords, Mayan Indians like the Moraleses are rebuilding their traditional forms of justice. San Andres has set up a community court of three lay judges who hear cases in Kakchiquel and who make rulings based on Indian traditions.

On a recent Monday morning, the three judges donned their cowboy hats, climbed into the back of a rusty pickup truck, and rode out to the Morales place. Armed with a measuring tape, the judges hiked through a patchwork of fields as the brothers used machetes to cut stakes to mark a new right of way.

"We have this problem all the time. It's our most common type of case," said judge Efrain Juracan, a local leader who was named to the court, although his experience is in vegetable quality control. The peasant tradition of dividing land among sons, he said, often creates spats over access.

"With the document we are going to prepare, we are leaving it clear for future generations. No one will have the right to block the path," Juracan said.

The Morales brothers remained gruff with each other as the judges measured the land, but they were pleased with the opportunity to air complaints in their language. And they were willing to respect the resulting piece of paper, even though they can neither read nor sign their names.

"Without their help, we couldn't resolve anything," Francisco said through a Kakchiquel interpreter. "They speak our language. They understand us better. We don't understand Castile." Castilian, an antiquated term for Spanish, conveys non-Mayan ways, evokes colonial-era resentments, and symbolizes the deep divide between Mayas and Guatemalans of European descent.

In post-war Guatemala, the government is trying to overcome ancient resentments, officially recognizing Mayan languages and expanding bilingual education programs. Five community courts like the one in San Andres were established last year under a pilot program to allow Mayas to administer justice according to their own traditions.

"Guatemala's Indian peoples have applied traditional justice for more than a millennium. They have their own methods to resolve conflicts, and recently they have fought to be able to apply justice according to their customs," said Angel Figueroa, a judge who launched the program when he was serving as president of the Guatemalan Supreme Court.

The new community judges are mostly unschooled, but their word is law. The community courts operate without lawyers, which would be too expensive for the peasants, who line up in earth-stained trousers and recycled-tire sandals to consult with the judges.

Juracan's busy court relies on Indian customs to rule on everything from abusive husbands to a woman who lent fertilizer to her neighbor and was never paid back.

"One of the principles we use in indigenous law is maintaining family and community unity," said Leonardo Cabrera, member of a national committee that advocates allowing Indians to practice traditional law.

Creativity, as well as tradition, comes into play in delicate cases. San Andres judges ordered a wife to take her cheating husband back, and ordered her husband to sign a paper recognizing that this was his very last chance.

"If they had no kids, we would not have discouraged her from kicking him out," said judge Nicolas Chumil. "But since they have kids, they should stay together. People understand this court is different because we work on reconciliation and listen to everyone."

Indigenous-rights specialists say that similar community courts work around the world to solve small conflicts through mediation, reflecting a global trend to recognize native traditions. Other examples are the councils of elders that function as courts in Native American communities in the United States and Canada.

"This is part of a trend in contemporary law all over the world, of trying to take conflict resolution out of court systems," said Guillermo Padilla, who serves with the United Nations mission that monitors the peace accords in Guatemala.

The judges have also become valuable leaders in towns that are struggling to fill the postwar authority vacuum, and in a country that does not have enough police officers to go around.

"The mere presence of authority has brought about harmony," Figueroa said.

In San Andres, the new judges managed one night to calm a mob of villagers intent on lynching some outsiders accused of beating a young man. It was a tribute to the respect the judges command, for dozens of lynchings occur every year in Guatemala, especially in towns where there is little faith in local judicial authorities.

The courts have created some dispute. Some Guatemalans argue that community courts mean a separate justice for Indians and violate constitutional guarantees of equal justice for all.

The authority of the courts has yet to be tested in the larger judicial system, because none of their rulings has yet been appealed. They must also survive a nationwide referendum on constitutional reforms that recognize traditional Mayan justice administration as common law.

But Indian leaders are urging that the courts be given wider jurisdiction, beyond the minor crimes and disputes they handle now.

Cabrera argued that every Mayan village has the right to choose the model and scope for its own administration of justice, whether through a council of elders or a community court. "Indigenous law is dynamic, not static," he said.

Pub Date: 1/25/99

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