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Antecedents: the Constitutional Amendment and its Political Uses
On 28 January 1992, the Mexican government approved an amendment to the Fourth Article of the Constitution, which recognized the multicultural character of the nation.11 This had been preceded by an important amendment to Article 220 of the Federal Penal Procedures Code, which recognized the validity of expert testimonies in reconstructing the cultural context in which a crime is committed. The amendment stated: ‘when the accused belongs to an indigenous ethnic group an effort will be made to follow expert testimony in order that the judge may….better understand [the] cultural difference [of the accused] to the national norm [sic]’.12 The revision of the code of penal procedures allowed for certain sentences to be reduced in the light of what are perhaps best called ‘mitigating cultural circumstances’. In other words, if an indigenous group’s traditional norms and practices were in contradiction with federal law (such as, for example, detaining an offender until they pay compensation or obliging them to carry out community service) then these cultural differences could be taken into account by the sentencing judge.
At the time, proponents of the defense of cultural diversity welcomed this legislative change as a step towards a new relationship between indigenous peoples and the nation state. However, evidence soon emerged of the contradictory interpretations which could arise. In August 1993 a family of Lacandon Indians came to the Women and Children’s Support Centre (Centro de Apoyo a Mujeres y Menores, CAMM) in San Cristóbal de Las Casas, Chiapas, seeking legal support to denounce the murder of a twelve year old Lacandon girl by her husband, the American anthropologist Leo Bruce. The victim’s relatives recounted a history of domestic violence within the marital home that mirrored the accounts of many women, indigenous and non-indigenous, who came to the centre. However, they maintained they had not intervened on previous occasions because of the husband’s ‘right’ to discipline his wife, a right that was recognized by the Lacandon community as a whole. This same argument was later adopted by Bruce’s legal defense, which argued that he had been attempting to ‘discipline’ his wife according to Lacandon tradition. 13 Taking advantage of the reform of the penal procedures code, Leo Bruce’s uncle, the well-known linguist Robert Bruce, provided an anthropological expert testimony in which he demonstrated his nephew’s attachment to indigenous norms and practices (usos y costumbres). (Bruce had learnt the Lacandon language, changed his clothing and lifestyle to fit those of the Lacandon community, and identified himself as Lacandon). Although no cultural argument could be used to justify the killing, mitigating cultural circumstances could commute the crime from murder to accidental death, or homicide. The prosecution also prepared expert anthropological testimonies in order to counter the defense’s arguments. However, before the complex legal and anthropological debate could take place, the Ejercito Zapatista de Liberación Nacional (EZLN) took the municipalities of Altamirano, Chanal, Huixtán, Las Margaritas, Oxchuc, Ocosingo and San Cristobal on 1 January 1994, opening the doors of the municipal jails in the process. Bruce escaped, together with many other prisoners.
Despite the lack of resolution of the case, the expert anthropological expert testimony made in Bruce’s defense provides a clear example of the ways in which affording primacy to ‘culture’ can disadvantage indigenous women. Another example of the contradictory ways in which anthropological expert testimonies may use the ‘cultural argument’ against women was seen after 32 women and 12 men were murdered by paramilitary groups14 in the Tzotzil community of Acteal, in the municipality of San Pedro Chenalhó, Chiapas, on 22 December 1997. The government’s Comisión Nacional de Derechos Humanos (CNDH) (National Human Rights Committee) asked specialists to elaborate expert anthropological reports for the defense of the Tzotzil paramilitaries accused of the massacre, exploring ‘the cultural practices of the Tzotzil of San Pedro’. The implicit assumption was that the violence in Acteal, and the mutilations of pregnant women, children and elders that had occurred in the massacre, might somehow be ‘explained’ in cultural terms. Many anthropologists refused the CNDH’s request and argued instead that prior to the appearance of paramilitary groups in the region, violence had not been a principal case of death among the people of San Pedro Chenalhó. Between Between 1988 and 1993 only 16 violent deaths were recorded in the municipality, yet following the Zapatista uprising and the ensuing militarisation of Chiapas they increased considerably and began to involve firearms. In addition, no previous record exists of mass aggression against women – violent deaths of women had previously occurred only as a result of domestic violence or witchcraft accusations. No mutilations of pregnant women had ever been recorded. In short, there was no evidence of cultural practices that would permit the Acteal massacre to be linked to indigenous world-views or to indigenous ‘rites of war’. Nevertheless, anthropological expert opinion is still being used in the defense of some of the 57 paramilitaries convicted of material responsibility in the massacre, who were sentenced to 35 years in prison [WHEN? ARE THEY MOUNTING A LEGAL APPEAL?]. While neither the contents of specialist reports nor the names of those who carried them out has been made public, the defense continues to argue that the massacre took place within a context of ‘customary interfamilial fights’ among the Tzotzil. Yet in fact the violence in Acteal has little to do with the way conflicts have traditionally been resolved among the highland Tzotzil, and is better explained as a consequence of the broader strategy of ‘low intensity warfare’ and paramilitarisation currently being applied in Chiapas in order to combat the Zapatistas (Hernández Castillo 1998a).
Paradoxically, expert anthropological testimony - originally conceived as a tool for the defense of groups especially vulnerable to the blindness of national law to cultural differences - has become a weapon wielded by powerful elites to protect their wider interests. The way in which the legal teams defending the San Pedro paramilitaries and Leo Bruce made recourse to the amendments to the fourth article of the Constitution and the federal criminal procedures code calls into question the utility of such legal reforms, at least when they remain unaccompanied by additional measures to ensure that indigenous women and other vulnerable groups are able to use them to their benefit.
Voices of Women: Challenging ‘Culture’
During the 1990s Zapatista women became some of the most important advocates of indigenous women’s rights, through the so-called Women’s Revolutionary Law. This charter, created in consultation with Zapatista, Tojobal, Chol, Tzotzil, and Tzeltal women, was made public on 1 January 1994 and has been of great symbolic importance for thousands of indigenous women who are members of peasant, political and cooperative organizations. It contains ten articles, which enumerate a number of rights of indigenous women. These include, inter alia, the right to political participation and to hold leadership posts within the political system; to a life free of sexual and domestic violence; to decide how many children they want to have; to a fair wage; to choose a spouse; to an education; and to quality health services. Although many indigenous women are not aware of the detailed contents of the charter, its mere existence has become a symbol of the possibility of a fairer way of life for women. In a way, the Zapatista Women’s Revolutionary Law has helped create what Karl-Werner Brand calls a ‘cultural climate’ which allows the de-naturalization of women’s inequality and the questioning of existing social and political behavior (1992:2). Anna María Garza has observed this new ‘cultural climate’ among the Tzotzil women of San Pedro Chenalhó:
‘During the first months after the armed uprising, the debate in San Pedro
Chenalhó about the new law seemed to be taking place in the fields and the
hamlets, between relatives, couples, and neighbors: in places where there are no
clear boundaries between private and public realms, between the political and
every-day activities. Discussions within the community were very different from
those carried out in forums, round-tables, and workshops. While in the forums
each article of the law was read and analyzed, and all sorts of proposals voiced
and recorded, in the indigenous settlements of Chenalhó the image of
revolutionary women and the idea of women’s rights were enough to ignite a
debate which was very much interpreted in the light of concrete situations and
conflicts. In its Women’s Revolutionary Law, the EZLN had succeeded in
capturing the problematic of the daily lives of indigenous communities, and the
need to break with the existing consensus around masculine authority’. (Garza
Caligaris 1999: 40).
Since the EZLN uprising, indigenous women have met at local, regional, state and national gatherings. Under the pressure of their women members, the Indigenous National Congress and the National Assembly for Indigenous Autonomy have instituted national women’s meetings. Similarly, special groups for the discussion of problems specific to indigenous women were created within the structures set up for dialogue between the government and the EZLN. Women have used these spaces to claim their rights to change those practices, customs and traditions that they consider unfair. Many of the documents produced in these forums have vindicated the right of indigenous women to national citizenship and have taken up the national indigenous movement’s demand to maintain and recover their traditions. However, they also insist on women’s rights to change certain customs and traditions while retaining full membership of their respective ethnic groups.
The re-conceptualization of community traditions and culture from a women’s perspective has also influenced the political debate around autonomy. Organized indigenous women have appropriated the demand for autonomy made by the EZLN and other indigenous and peasant organizations, which proposes the establishment of a new political order to allow indigenous peoples to control their territories and resources. Since 1995, women from one of the oldest national organizations, The National Plural Indigenous Assembly for Autonomy (Asamblea Nacional Indígena Plural por la Autonomía, ANIPA), have played an important role in the re-conceptualization of a multicultural national project. In the Final Declaration of the First National Women’s Encounter of ANIPA - which took place in San Cristóbal de Las Casas in December 1995, attended by 270 women from different indigenous groups - women explicitly demanded the inclusion of a gender dimension in proposals to form autonomous, multi-ethnic regions:
‘We, the Yaqui, Mixe, Nahuatl, Tojobal, and Tlapaneca women….come from
afar to speak our word in this land of Chiapas [...] During these two days we
have talked about the violence we experience within our communities, at the
hands of our husbands, the caciques, and the military; of the discrimination we
are subjected to both as women and as Indians, of how our right to own land is
denied us and about how we want women’s opinions to be taken into account
[...] We want an autonomy with a woman’s voice, face, and consciousness, in
order that we can reconstruct the forgotten female half of our community’. (cited
in Gutiérrez and Palomo, 1999:67)
The demands of the women at ANIPA echoed the demands of Zapatista women. The latter, however, have concentrated their efforts on expanding the concept to include women’s autonomy within the larger autonomy of indigenous peoples. This gender perspective was developed in a proposal read to the National Indigenous Congress (Congreso Nacional Indígena), in October 1996 by women from Chiapas, Oaxaca, Guerrero, Querétaro, Veracruz, San Luis Potosí, Estado de México, Mexico City and Puebla. This referred to economic autonomy (defined as the right of indigenous women to have equal access and control over means of production), political autonomy (their basic political rights), physical autonomy (to have control over their own bodies and to live without violence), and socio-cultural autonomy (defined as the right to maintain specific identities as indigenous people).15
Equality and the Recognition of Difference
Opponents of proposals for greater indigenous autonomy in Mexico have argued that the legal recognition of rights based on notions of cultural difference and tradition is unjustifiable because the colonial origins of many institutions and cultural traditions of indigenous people mean they are not ‘authentic’ or ‘pure’ (Viqueira, 1999). Adherents to a liberal discourse of universal rights have also opposed proposals for autonomy and the legal recognition of ethnic difference on the grounds that such measures will merely deepen inequalities between mestizo and indigenous societies (Bartra, 1992, Viquiera, 1999). However, indigenous women’s efforts to critically reframe ‘tradition’ and to recast autonomy proposals in such a way that they guarantee the universal human rights of women has demonstrated that a multicultural project to recognize difference does not necessarily conflict with liberal notions of equality, rights and social justice.
Throughout the twentieth century the Mexican government’s policies towards the indigenous population were influenced at different times by discourses promoting equality and discourses promoting difference. The historical record has shown that the promotion of equal treatment for those who stand on unequal grounds has, in practice, denied the indigenous population’s access to justice. Paradoxically, however, the Mexican government’s recognition of a different cultural logic has also served to justify the exclusion and marginalization of indigenous peoples in the name of culture.
After the 1917 Revolution Mexico’s political class attempted to build a modern, homogeneous and mestizo nation. Spanish was imposed as the national language, denying indigenous peoples the right to use their languages. Laws were implemented which did not take the cultural context of plaintiffs and defendants into account, and which indigenous people did not understand. Indigenous political and religious institutions were disempowered, and new mestizo municipal authorities took over the political and economic power of entire regions.16 All these impositions took place in the name of the ‘right to equality’: all Mexicans had to be treated equally, despite the cultural, economic, and social differences that characterized this legally imposed citizenship.
However, the much sought-after de jure recognition of the right to cultural difference achieved in the 1990s has not meant improved access to justice for indigenous peoples. As indicated above, the practice of anthropological expert testimony by the Instituto Nacional Indigenista (National Indigenous Institute), INI,17 and by other government institutions such as the CNDH, can prove to be a double-edged sword that disadvantages those with least power within indigenous communities. In the past, the de facto recognition of ‘culture’ in certain regions of Mexico was used as a pretext to justify the exclusion and marginalization of ethnic minorities, and to legitimize pro-government Indian cacicazgos and other practices. In effect, only those indigenous institutions useful for ruling elites were recognized as ‘traditional’. In the name of ‘respect for culture’, indigenous women continue to be denied their right to own land, to inherit family property or to have political power. Today in the name of ‘culture’ the existence of paramilitary groups, funded and promoted by mestizo elites, is justified. And in the name of ‘culture’ a sense of ‘otherness’ and of ‘difference’ is construed in order to distort and impede political alliances between indigenous and non-indigenous people. In sum, discourses which emphasize the right to equality and discourses which emphasize the right to difference can both be used to hide, reproduce, or deepen the marginalization and exclusion of indigenous peoples. Legal recognition of the right to difference that relies on dichotomized visions counterpoising ‘state law’ against ‘indigenous customary law’ can ultimately serve to reinforce such tendencies.