R. Aída Hernández Castillo






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National Law and Indigenous Customary Law:

The struggle for justice of indigenous women in Chiapas, Mexico *

( publicado en Maxine Molyneux ans Shahra Razavi (editoras) Gender, Justice Development and Rights Oxford, Oxford University Press, 2002 Pp.384-413)

R. Aída Hernández Castillo


(CIESAS-México)

aidaher@juarez.ciesas.edu.mx

Introduction

During the course of the past two decades official projections of national identity in Mexico have undergone important changes. By the early 1990s a state discourse characteristic of post-revolutionary nationalism focused on the existence of a mestizo nation1 was superseded as legislation was approved which recognized Mexico as a multicultural nation. This was considered by many as a victory for the Mexican Indian movement and was also claimed as a triumph by the Zapatista guerrillas. However, this supposed shift to official acceptance of multiculturalism is far from free of contradictions. In some cases, ‘pro-indigenous’ legislation – provisions recognizing the right of indigenous people to their own norms and practices (usos y costumbres) – has, in practice, worked to the disadvantage of weak and marginalized groups within indigenous communities. In particular, indigenous women now face the dual task of defending their rights to their own culture vis-à-vis the Mexican state, while at the same time questioning essentialist and static perceptions of ‘culture’ and ‘tradition’ within the Indian movement that have negative implications for the full realization of women’s rights. This paper analyzes some of the dilemmas facing indigenous women in Chiapas in their struggle for rights within the new macro-political context of multiculturalism. Linked to this, it examines the ways in which certain academic paradigms used to analyze indigenous normative systems can impede the development of proposals for reform to ensure greater access to justice for indigenous women.

The political debate over the right of indigenous peoples to cultural difference, self-determination, and autonomy gathered new strength after 1 January 1994, when Mayan peasants in the South-East of Mexico rose up against a national project they considered centralist and exclusive. This indigenous movement, known as the Ejército Zapatista de Liberación Nacional (EZLN) (Zapatista National Liberation Army) violently rejected the neo-liberal policies promoted by the government of President Carlos Salinas de Gortari (1988-1994).2 On the same day that the North American Free Trade Agreement (NAFTA) 3 came into effect, the indigenous peoples of Chiapas called the world’s attention to the failings of the new economic model. The reality on the ground in Chiapas was sharply at odds with the official version, promoted by Salinas, that poverty and marginality had been eradicated and that Mexico had become a ‘first world’ country.

Together with mestizo peasants, members of the Tzotzil, Tzetzal, Chol, and Tojolabal ethnic groups declared war on the ‘illegal dictatorship of Carlos Salinas de Gortari and his official party [PRI]’. The political discourse of the Zapatistas identified as the immediate cause of the uprising the negative effects of neo-liberal policies on the lives of thousands of indigenous peasants in Mexico. At the same time they linked their struggle to the five-hundred-year-old resistance movement of indigenous peoples against colonial and post-colonial racism and economic oppression. In later statements, as their specific demands as ‘indigenous peoples’ became clearer, the Zapatistas began to appropriate and reinterpret the meaning of ‘indigenous autonomy’.4 Their demands for autonomy within the framework of a multicultural nation-state made evident the urgent need to recast the official centralized and culturally homogenizing national project. The Zapatistas took up the demands of other groups in Mexican society, and became the first guerrilla movement in Latin America to advocate and prioritize gender demands within their own political agenda. However, when the EZLN demanded both the right of indigenous peoples to form governments in accordance to their own normative systems,5 and the rights of indigenous women to hold local posts of authority, inherit land and have control over their own bodies6 they entered troublesome terrain. In many cases such rights for women were contrary to the traditional practices of indigenous communities, apparently making demands for indigenous self-government and for recognition of indigenous women’s rights mutually exclusive.

Organized indigenous women have taken up the challenge of reconciling these two demands. On the one hand they are calling on the Mexican state to recognize indigenous peoples’ rights to self-determination within the framework of a reformed nation-state; on the other they are struggling within their own communities and organizations for a critical re-thinking of their prevailing normative systems.7 In response both to autonomist/Zapatista and government discourses, organized indigenous women have pointed out that while gender inequalities exist within state law, they also exist within so-called indigenous law (or ‘customary law’). They have confronted the essentialist perspectives of some sectors of the indigenous movement, which glorify certain cultural traditions, arguing instead in favor of change. As one document from the organized indigenous women’s movement states: ‘we want to find paths through which we may view tradition with new eyes, in such a way that will not violate our rights and will restore dignity to indigenous women. We want to change those traditions that diminish our dignity.’ 8

Such viewpoints were expressed at the negotiating table between the government and the EZLN, set up twelve days after the Zapatista uprising. Partly as a result of the pressure applied by the indigenous women’s movement, the San Andrés Accords, signed both by the Zapatista commanders and by representatives of the government (see note 5) committed the government to respect indigenous autonomy in the following terms:

‘Indigenous peoples have the right to free self-determination, and, as the means of their expression, autonomy from the Mexican government to ... [a]pply their own normative systems in the regulation and resolution of internal conflicts, honoring individual rights, human rights, and specifically, the dignity and integrity of women..’. 9

Much of the evidence presented in this paper derives from an investigation into the ways in which national law and indigenous customary law operates in response to indigenous women’s demands for justice in Chiapas within this new political context. With the participation of Tzeltal, Chol and Tzotzil women, an interdisciplinary research team explored the extent to which both national law and indigenous customary law responded to women’s denunciations of sexual and domestic violence.10 The experiences and concerns of indigenous women that emerged during the course of the research highlighted the dangers of affording primacy to idealized notions of ‘indigenous culture’ and indigenous customary law. Such dichotomized perceptions tend to understand ‘indigenous law’ as reflecting a completely different cultural logic to ‘national law’: the former supposedly being guided by an ethos of conciliation, rather than that of punishment, which is ascribed to the national legal system. However, by idealizing indigenous normative systems, such approaches singularly fail to recognize the unequal power relations that exist within indigenous communities, particularly gender inequalities. In practice, leaving the resolution of conflicts over sexual and domestic violence to local indigenous authorities often means lack of access to justice for women.

Women’s experiences with national and traditional authorities have revealed the networks and inequalities of power that exist at the various levels of both justice systems. Providing greater autonomy for indigenous communities is not in and of itself sufficient to ensure the ‘dignity and integrity’ of indigenous women. Proposals advanced by indigenous women proposals to ‘re-invent tradition’ under new terms signal a need to re-define the traditional debate between cultural relativism – which puts a primacy on the need to respect cultural differences - and universal values, such as human rights and women’s rights. Respect for the rights of indigenous people does not mean the abandonment of universal values in the name of ‘respecting culture’. Rather we need to consider how universal values, such as human rights, are understood, translated and claimed in local contexts, and which political and legislative strategies will ensure the greatest access to justice for those to whom it has traditionally been denied.

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