Pluri-National States and Poly-Legalism in Bolivia--Indigenous Justice, Lynching and Constitutional Order

In 2009 Bolivia adopted a new constitution.  The Bolivian Constitution can be accessed here in the original Spanish.   English version HERE

On February 7th, 2009, Morales inaugurated the new constitutional era in Bolivian by enacting the New Bolivian Constitution, proclaiming the initiation of a new socialist communitarian state in Bolivia and celebrating the change of a political system that was inherited from the Spanish empire. Today, 36 indigenous communities and groups have the right to territory, language and their own communitarian justice. The new Bolivian Constitution also allows Morales to seek a second term of 5 years as President of Bolivia.

The Constitution of the Plurinational State of Bolivia,The New Bolivian Constitution Grants More Rights to the Previously Forgotten Indigenous Citizens, Oct. 12, 2009.   The Constitution  includes a number of important innovations generally overlooked by a global elite academy.  See, e.g. Larry Catá Backer,Democracy Part VII: Constitutionalism and Indigenous Peoples in the Bolivian Constitution, Law at the End of the Day, December 9, 2007; Larry Catá Backer, An Apartheid for All Seasons: Bolivia and its Autonomy Movements,   Law at the End of the Day, May 3, 2008.

One of the more interesting changes introduced by the Bolivian constitution wad the creation of autonomous and constitutional status  based not on territory but on membership in ethnic or racial communities.  Beyond the recognition of constitutional personality, the 2009 Constitution recognizes the legitimacy of justice systems traditional to these constitutional communities--especially those of indigenous communities.    But like all pluralist efforts that are enshrined within hierarchical legal systems--like that essential to notions of constitutionalism--the moment comes when autonomy comes into conflict with the superior legal order.  That appears to be happening now in Bolivia as legislators try to mediate tensions between notions of indigenous justice and the basic protections accorded under the Bolivian constitution itslef under the superior guidance of the national legislature. 

Recently those tensions reached a boiling point.  The issue was, depending on one's perspective, either one of the expression of the power of indigenous peoples to execute offenders in accordance with their traditions, or  lynching.  Mabel Azcui, Fears Grow of Dual Justice System as Bolivian Clans Take Law Into Own Hands, El País (English Version), June 16, 2010.       

The Bolivian Congress last Friday approved legislation further empowering indigenous communities by recognizing their right to administer traditional laws and punishments.  The move cam after  a series of lynchings were reported in the media in recent weeks raising concerns that the country was effectively sanctioning a parallel system for Indian groups.

Id.  But the law raises more jurisdictional questions than provides answers.  The most recent set of incidents have highlighted these issues.  They involve the executions by Indian communities of several police officials accused of corruption and of another person accused of sexual crimes.  Id.  In the later case, "the Indians took [the accused] from his home, whipped and beat him to death in front of a school and later buried him."  Id.  The bodies of the police officials were returned only on a promise that the State would not initiate criminal prosecutions nuder Bolivian law for the actions taken under Indigenous law.   Id.  But, that has not prevented the families of the slain officers from seeking justice through the invocation of their own law systems.  And it is in that effort that the great clash of law systems within Bolivia is likely to take place.

Last week, the families decided to initiate legal action against the Indian communities and said they were considering filing charges against government officials and police commanders for dereliction of duty.  The Indians of Uncia say that the lynching is part of the Indigenous justice system, but the government rejects the argument.

Id.  The political opposition in Bolivia has taken up the issue.  Norma Piérola, an opposition lawmaker has  sought to limit indigenous jurisdiction.  She is especially concerned that Indigenous law decisions be subject to judicial review within the court system of the state.  In any case, the "government says that indigenous representatives must now outline their justice system, and submit it to Congress.  It adds that lynching would not be recognized as part of the indigenous justice system." Id.  But that, of course, begs two questions--(1) what is lynching ; and (2) who gets to decide the issue.  Beyond that, Bolivia provides an interesting constitutional wrinkle on the problems of multi-jurisdiction, now applied not to territorial but to cultural, racial or other groups recognized as constitutionally distinct.