Guatemala
The words of an indigenous authority: “This is how we apply Maya justice”
Maya justice complements and fills in for Guatemala’s official legal system
enabling the legal pluralism that enriches Guatemala’s legal ecology.
I listened to Manuel Hernández, who, together with other local authorities,
applied Maya justice in 38 Zacualpa villages, claiming to have healed them.
He explains how they got the perpetrators to confess by talking to them,
how they punished them with a switch, how their family took responsibility,
and how the wrongdoers provided restitution for their offense.
“We’ve done all of this without any incentive, any money.
We weren’t supported by any NGO. We did it all ourselves.”
José Luis Rocha
Last August I travelled to Tunijá, a village in Guatemala’s western highlands, some 190 km from the capital city and ten minutes by bus from the urban center of Zacualpa, the municipal capital. I had been invited by Manuel Hernández so he could talk to me about Maya justice. He asked me to arrive punctually at 6 am because he had a very full agenda that day. Don Manuel was head of the secretariat of the Zacualpa indigenous mayor’s office and also the “third mayor.” In Tunajá itself he was previously vice president of the Community Development Council (COCODE) and is currently its treasurer.
I climbed a steep hill, sometimes jumping over gigantic shiny rocks, and at others walking along the path, which the erosion of those rocks has covered in twinkling sand that sticks to one’s shoes like a layer of glitter. Don Manuel welcomed me with some xechas, a kind of bread, and black coffee. We talked on the veranda of his house, against a backdrop of clucking hens, growling dogs and slowly dripping rain on the corrugated metal roof. He spoke unhurriedly, his voice ranging between deep and high tones that held my attention like a magnet and transmitted the hidden passion that moves him.
“This is gold”
I visited him again this April, taking along a copy of what he had told me so he could review and fully approve it. There was more bread and black coffee and a very pleasant conversation full of mutual thanks. We sealed our complicity. By the next day he had read it and was surprised by how much he had revealed. He made some clarifications to the text and wrote the following in pencil in the margin: “Only some letters and some punctuation were missing. It’s gold.” Here is his gold, in italics, interspersed with comments I’ve inserted to contextualize the points of debate and let others who have pondered these troubling issues also speak.
“When the war came...”
My name is Manuel Hernández. I’m a member of COCODE. In 1997-99 I was president of the Education Committee (COEDUCA), which manages the teachers and school supplies and is in charge of the children. The Ministry of Education has its ideas that come from above somewhere, but we need ideas about how to educate children that come from our own language and way of being.
Don Manuel kicked off with a vindication of Maya ways. One of the pillars of his argument is the adaptation of Maya justice to its communities and history. Language—the vehicle of concepts—and customs are the sources from which this system flows.
What’s all this about educating the children? To be honest, we were divided before the war, with each of us on our own particular side with our own way of doing things. We had machismo and resentment in our hearts. Here in these villages people went around with long machetes at their waists. If someone insulted someone else he got a good whacking with the side of the machete. We didn’t talk things over with each other. Most of us worked on the farms. So we were divided. When the war came, it brought a lot of bad things but also nice things, in that we united then and talked to each other: “Hey, how are you doing? What can we do because the Army’s killing innocent people? It comes in and massacres children, mutts and cats, everything. And if the guerrilla forces come they pick people up and then leave them someplace all shot up.” Both fronts were killing innocent people, so that got the population communicating, talking, asking for God’s help. At the end of the war came the organization of agriculture, livestock. We accepted and listened to the institutions that started coming in. There were new ideas, but also problems.
With the decline of the conflict and human rights abuses, spaces—and resources— opened up for different activities. But there was also a power vacuum in which the long shadow of the war made itself felt. But that warlike chaos wasn’t purely negative. As don Manuel said, “It brought a lot of bad things but also nice things,” a statement that fits with the Maya dual vision of negative and positive elements complementing each other in favor of life, in this case the union that brings life. The Maya Ombudsperson’s Office notes that this duality determines the balance and is an objective reading of the cycles of life.
“There were young people up to no good”
There was lynching here in our village in 1999, both in Tunajá, municipality of Zacualpa, and in Tunajá, municipality of Joyabaj. About nine people were killed. During the armed conflict, people here had opted either for the guerrilla forces or the Army. Many of us didn’t understand—maybe due to the language—and we thought that one of those two was the solution. When the conflict ended, some of the men didn’t give up their arms. Later, after some killings, we found a sack half full of different caliber bullets for 22 rifles, 9 mms, AK-47s, Galils, there in a ravine, but no weapons. They only found the smallest ones. They immediately destroyed them, beat them flat, because in war they kill you if you speak against them. Things couldn’t go on like that with some former soldiers and guerrilla fighters keeping their weapons and organizing young people to cause trouble, damage communities, rob houses, control who gets money and even kill people. There were 10 young people up to no good in the 365 houses that existed at the time in Tunajá. And there were 7-8 youths also causing trouble in other villages with 300-500 houses.
“The law doesn’t address this problem”
That happened in 1999. We viewed it as a serious problem because the judges or police had their hands open to bribes. That’s still happening and in fact it’s even worse now. As president of COEDUCA I didn’t know what to do with the children because there were already organized young people committing serious mischief so it was dangerous to go around running errands in the morning or evening. It wasn’t possible, so people got really angry. They got hold of some of the youths and took them off to the judge. But nothing happened because the law says that even if someone is caught red-handed, they go free if there’s nobody to press charges; even if they’ve killed someone. The law doesn’t address this problem and the community doesn’t always agree on a particular case.
Maya justice has emerged as a legal system from the embers of the war and the non-functioning of the state justice system, an origin don Manuel wants to stress. There was a vacuum of authority and the Maya authorities filled it. But it wasn’t just a problem of corruption (judges taking bribes), but also the inappropriateness of the state justice system when it came to trying the cases.
Don Manuel mentioned the state system’s inability to address the lack of trust (nobody to press charges) and dissent (the community not always agreeing). He later mentions the justice officials’ lack of concern for two reasons: investigative ineptitude and a punishment system that neither prevents nor reintegrates.
Sociologist Boaventura de Sousa Santos points out another problem: “the official justice system corresponding to modern capitalism tends to be strict with respect to formalism, but lax in ethical matters.” In practice, this means that Guatemalan courts can only pronounce on offenses duly classified as crimes and not on all the injustices that affect individuals and communities.
The Maya cosmovision—and its legal system, like many other community systems— focuses particularly on caring for community health and therefore punishes anti-ethical relations, which only happens in the official rule of law when formalities are violated as well and injustices correspond to previously established categories.
Not doing community work (such as repairing a highway) has been penalized in the Maya system, but not in the state system because it’s not an obligation of Guatemalan citizens, although it is for a member of the Tunajá, Xicalcal, Samabaj, Chex or any other highland community. The same is true of adultery, making threats, refusing to take up a public post, abandoning one’s wife shortly after marriage and other matters in which Maya justice intervenes because such activities do harm to community relations.
“When they lynched nine people...”
And so it happened that they captured nine people and lynched them because they had nowhere to turn: if they handed them over to the judge, they’d be back again the next day. One they’d got hold of previously was released then killed the person who caught him. So that doesn’t work because it doesn’t make the wrongdoer, the village, the authority or the auxiliary mayor understand. Neither side understands the other.
About 20,000 gathered for the lynching. At that time there weren’t many cars, but this place filled up with cars from as far away as Zacualpa, Joyabaj and other places, driven by curiosity. Five cars came with AK-47s, Galils and various other arms. So I left. I escaped through the ravine because they were after me for being an auxiliary. We didn’t know what to do by then because although we were the local authorities, they already had the criminals in their hands. The crowd went to the judge’s office and pulled him out, then went to the police and forced the officers out and overturned and burned a vehicle. They forced those state authorities out of the municipality, which is why you don’t see any of them here.
That was how it all started. Later the parish priest came and we talked. We had to have a conversation about how to achieve the objective the judges required. So the people asked, “Who’s the authority now? If we trust the judge, he doesn’t do anything. If we trust the police, they don’t do anything. They may be there, but they don’t help us.” So they thought: we have our own ancestral authority, who’s the authority of the indigenous mayors’ offices. We’ll give them the job of overseeing things. Then they thought: what can the indigenous mayor’s offices do to calm the situation down? They gave them a list of the people doing bad things. There were about 160 in in various communities of the municipality of Zacualpa alone, in Chuchuca, Xejox, Pasojoc… two or three in each community. And there was a lot of information because the ones they burned had confessed everything: their names, which houses are theirs, who they are, who their parents are, whether they’re young or adults. All of this got written down.
A new order emerges from the lynchings
Maya justice re-emerged as an alternative to the lynchings. According to the Maya Ombudsperson’s Office, the first lynching happened in Escuintla in 1994. Citing data from the United Nations Verification Mission in Guatemala, the same source records at least 182 lynchings in just three years (1996-1998). Many murals have been painted on the outer walls of the indigenous mayor’s office in Chichicastenango, one of which depicts the lynchings, showing a pack of furious dogs. They appeared immediately after the Army massacres, as the sequence of a past that must not be repeated. Violence that boils over is like a primitive chaos from which a new order emerges. That violence had a transforming power: with the banning of the police and judges, the vacuum of de facto authority turned into a full-blown vacuum of authority. The violence dismantled the simulation of justice and opened the doors to a new order through the expansion of the old authorities’ powers. The limited information that used to reach the courts began to flow instead toward authorities who enjoyed local legitimacy.
“We indigenous people are the authority here ”The law tells us we mustn’t take a life, so pressure has to be applied in some way to those who do damage and take lives, but nothing happens. And that’s why the population got angry. Why are there so many more deaths and assaults in the capital city and in some departments? It’s because the authorities don’t apply the law, or don’t apply it equally. Because the life of the peasants, farmers, honest people, those who raise cattle give a lot of life to others. But what does a thief do? He just steals in the night and sleeps during the day. That’s what was happening so they got to thinking about that in 1999: who’s the highest authority in the Guatemalan territory and in the territory of the municipality? Here, it’s us, the indigenous people. So they named Basilio Ruiz (first elder of the indigenous mayor’s office), Juan Asquí Asquí (third mayor), Isabelo Morente (second mayor), Valerio Tomín Velázquez (first mayor), and me Manuel Hernández García (secretary), as well as some others, seven in all.This happened in Zacualpa and other K’iche’ communities. In Ixil communities, justice tends to be applied by the “auxiliary mayors,” accompanied by the aldermen and elders. Where there’s no auxiliary mayor due to the size of the community, the problems are resolved by the COCODEs.
The law of family involvement
This comes from paying attention to the war, and its remains, which conflicts between the community and the delinquents are also a part of. Lynching isn’t right, because it takes a life but leaves people who are still harming the community.
But the real conflict is with the national level, so we thought, how are we going to convince them? Let’s do a comparison: it’s like when you’re making a meal and looking for the right ingredient to give it real flavor. So we decided to make a law to give it flavor, appeal.
We decided to gather information about the people committing offenses and make their family responsible. If they become responsible, then the delinquents will be responsible too. Have the offenders tell the pure truth: if they no longer want to follow our customs, they should leave. Since their family doesn’t want them to go, it takes on the responsibility. That’s great medicine. We talk to the parents and make them understand that they’re responsible for the wrongdoer. And the family always promises the people that their children won’t do it again.
This kind of reprimand in front of their parents and the community appeals to respect for one’s elders. Rachel Sieder argues that “its aim is preventive: to guide, correct and ensure unity, balance and harmony within human relations and between people and nature.” And Guatemalan anthropologist Carlos Yuri Flores provides a clue to the reasoning behind this practice: “Much of what is at play in the communities is the building of consensuses from below.” Without the family’s participation, there’s no possibility of building such consensus. The law of family involvement was the essential condiment in the solution. And that’s why there’s a constant tug-of-war between the authorities and the community.
When we investigate, we meet with the community leaders: the COCODEs and auxiliary mayors. We have to meet and talk: How’s your community doing? What can we do to act and get the message across? Every week, those COCODEs inform the community about who’s been stealing and tells them: Please, take care of your family. Please tell the young women not to go out late at night; they can go do their errands, but not too late.”
The judges hadn’t been able to impose the law; instead they favored the thieves. And thieves aren’t grateful. For example, you can very calmly tell a thief: “Don’t do this.” The judge also talks that way, but doesn’t clarify why. They don’t talk to them about motives.
Getting to the core of the badness: motives
Once again the inadequacy of the official justice system comes up. They don’t talk about motives. In other words, they aren’t interested in getting to the core of the badness and spurn the persuasive and investigative power of conversation, a step in the process known as Tzi’jonem, a concept that combines the ideas of “word” and “truth, “as Tzij means “word” and Tzi’jonem refers to an exchange of truthful words, an action we refer to as “dialogue” in English. In the 1990s, Juan de Dios González, a researcher at Guatemala’s Rafael Landívar Universitym at the time, recorded a resident of the K’iche’ community of San Pedro Jocopilas, complaining that “they fine people, imprison them, ask for money, but don’t talk to the guilty.” González explained that this alluded “to the fact that when the authorities in
the K’iche’ community and in the other communities observed resolve conflicts they admonish and give advice aimed at rectifying the offenders’ behavior.” As González says, an extensive discussion is considered in itself to be a moral sanction for the perpetrator. But sanction isn’t the only aim of the discussion, as the group is also seeking to understand the motives. Obviously, this doesn’t mean that judges in the official system have no explanation for a robbery, but they don’t concern themselves with the dynamic of the bad action and the person’s history. Another facet of the laxity in ethical matters emerges here: judges don’t look into the moral fiber of the accused and the most profound depths of their acts, which the Maya interrogation forces them to reflect on publicly, exposing the subjects to both the community and themselves.
“Flogging wrenches the soul and touches the heart”
Only in this way were we able to get rid of the lynchings and also those situations the war left us. We made another law: depending on the offense involved, the person is flogged with a switch, known as a xik’a’y. Someone who’s stolen a chicken gets five lashes while someone who’s stolen a cow gets 15. People who kill someone have to provide for the dead person’s family and cover the funeral costs and also have to carry the victim to be buried. And in all cases it is announced to the people that they were the ones who committed the given offense.
By doing that we achieved the objective of controlling robberies and also rapes, because some youths rape girls and women here in the community and in the municipality. The punishment for them is 25 lashes, 20 for the person and the other 5 added according to the crime. It’s called the winaq law: 20 because the month has 20 days and 20 also represents jun winaq, a complete person with 20 fingers and toes. My grandfather handed this knowledge down to me: it used to be said that the sense of people who had committed an offense had dropped to their feet. It was no longer in their head and that was why they did crazy things. So the sense has to be raised up, the perpetrator is shaken up so sense returns to their head.
It’s hard, soul-wrenching. It’s not the same as setting on someone in the street, where one can withstand 50 kicks or 25 punches. One can take that, but not the xik’a’y. It’s soul-wrenching, it makes you moan. It touches the heart. I don’t know how. I’d say it’s more than lightning, because lightning’s electricity also touches the soul. They feel they’ve recovered their senses and say, “I’m human, not an animal.” And they recognize they’re causing damage. At the same time, they recognize that what they’ve done isn’t right. That’s hard.
The switch is a quince or peach branch. There’s one per community. During the ceremony they pass over it and “saturate” it [charge it with sacred energy]. They cense it [perfume it ritually with the odor of burning incense] and call on God to correct the person, to touch the person’s soul.
According to Rachel Sieder, the xik’a’y is the most controversial element, as is confirmed by the debates in Guatemalan newspapers and magazines. The word xik’a’y sometimes refers to the lashes and sometimes to the switch used to give them, which is how don Manuel uses the word. This punishment is usually applied by older people—the mayors or even the parents of the accused. Despite his attempt at pre-codification to show equality before the law, the diversity of punishments suggests a legislation still in movement. There may be equality before the law, but not before the xik’a’y: the lashes are said to hurt the arrogant more and the humble less. This unequal distribution is due to the fact that nimal (pride or arrogance) is considered to be Wuq’ub K’ix, one of the seven shames or anti-values that destroy and unbalance human relations. According to the Wajxaquib’ Noj Ombudsperson’s Office, pride “is an attitude of superiority and vainglory; an egocentrism in people. It is an emotional imbalance of the person and a personality disorder. Arrogance leads to deception, greed and not listening to advice, ignoring people and only valuing material things.”
The punishment has a metaphorical resonance because it’s a ceremony, not a punishment that seeks to break the body, although sometimes it does have that result. It’s not an instrumental punishment aimed at having a direct effect, but rather a ritual one, as it has a didactic end by analogy and by the religious authority with which the tool of justice—the switch—has been invested.
What is “pride” to Maya justice?
According to Santos, non-linguistic elements are also important in the legal management of conflicts, including: “Gestures, attitude, furnishings, the Bible, flags, portraits of political leaders, archives, written papers, the judge’s gavel, typewriters, clothes, the division and assignation of space in the courtroom, rituals for the initiation and conclusion of the proceedings, floor and visibility levels, and other similar factors.”
In the case of Maya justice, those non-linguistic elements include the “saturated” switch rather than the judge’s gavel, the documents and their rhetoric full of pre-codified formulas, the physical placement of the accused, the community surrounding the main protagonists, and the way of leading the accused, in addition to other ceremonial elements. The switch is perhaps the main one due to the powers attributed to it rather than the roughness with which it is wielded.
The number of lashes is linked to the Maya cosmovision. Sieder notes that “The number of xik’a’y depends on the magnitude of the problem or the wrong committed, but also on the climate, (since the branches hurt more if they’re wet). Four xik’a’y represent the four cardinal points of the Mayan cross (because the delinquents have lost their direction). Five xik’a’y include the fifth element, uk’u’x, or center of the earth. Nine xik’a’y signal the nine lunar cycles or the nine months of pregnancy (because the person who has committed a wrong brings this problem from birth). Twenty xik’a’y represent jun winaq’, or a complete person (counting the ten fingers and ten toes).”
Flogging to avoid more severe punishments
In the case of the trial of three thieves analyzed by Sieder, one mayor explained that “what we want is for the youngsters to become people again.” Don Manuel talked to me about the need to “raise the sense” that had gone to their feet, which is actually a Kantian idea. For Kant, free will is the connection between desires and actions because it is the awareness of being able to produce the object through action. Free will determined by reason is pure free will whereas free will determined by inclination (sensitive impulses, stimuli) is animal free will. Human free will is affected but not determined by impulses. We could say that the Maya punishment seeks to recover free will, returning to a point at which impulses do not dominate.
Some have condemned flogging as a human rights violation while others accept it as a necessary evil. Some Maya leaders have stated that physical punishments are a colonial inheritance, while others consider them part of their pre-Columbian legacy. Don Manuel is clearly among those who defend such punishments, attributing to them an indigenous ancestral sense and origin. But at no point does he defend them as a fixed legacy that has to remain. His recollection—which flows like a torrent in his explanation —pinpoints them as an explaining factor in a given context, which could be bound by a particular time. He says the punishment started to be applied after the lynchings and has had the effect, as Sieder also states, of replacing greater punishments and outbreaks of uncontrolled violence when the community considers that the guilty have been treated too softly. In this respect, punishment in Maya justice can be understood “as a means of containing popular demands for revenge and even more severe punishment.”
“We don’t want them here anymore”
Now, those people need to understand that if they’ve been talked to once, twice, three times and still do what they please, they have to be removed by producing a document and expelling them in front of the people. We don’t want to see that person here in the village. If another municipality or department puts up with that kind of business, then let them go there and do it. We don’t want them here. I think we’ve ousted two families. One in Tonalá, where a group of youths robbed someone who had gone to pick up his remittances and had 12,000 quetzals on him. They waylaid him along the way back and threatened him with a handmade weapon. We threw them out because they didn’t want to accept it so they went to the capital city as they couldn’t keep committing their misdeeds here. We expelled the whole family.”
As the objective being pursued is the restoration of community harmony, such severe sanctions as shaming in front of the community or expulsion from it are only rarely applied. Shame serves as both punishment and prevention, showing potential transgressors the consequences of actions that cause harm to the community, its assets and members. Expulsion is a last resort, when it’s the only way to reestablish community harmony.
Dialogue before punishment
The application of punishments has been exploited by those opposed to indigenous justice in general and Maya justice in particular. They tend to take elements out of context, strip them of their meaning and present them as the darkest, most barbarous aspects of such informal legal systems. There are hundreds of videos on YouTube with spurious versions of indigenous justice (threatened lynchings, focusing on the most spectacular moments of the application of punishments: the floggings, thrusting thieves onto ant nests, leaving them in the inclement sun for long periods of time…
However, they fail to mention the dialogue that precedes the punishment (during which both the community and those who committed the offense get to speak), the admission of guilt from those accused and, above all, the plea for forgiveness by the person preparing to administer the flogging. Referring to such deliberate and recurring bias, anthropologist Carlos Flores points out that “the editing and re-contextualizing of recorded material reveals the potential for manipulating information. They have often seen that these kinds of news programs or local newspapers tend to emphasize the sensationalism of the facts and reduce their coverage to moments such as the corporal punishment of the delinquents, when this exists. This plugs in to the collective imagination of a sizable sector of the dominant ladino world, which, impregnated with age-old racism and disinformation, simply considers such practices of community justice to be barbarous, without trying to understand the cultural contexts in which they take place.”
“Many families are thankful for the floggings”
What does the family have to be grateful for in relation to that punishment? It gives thanks that its child ended up corrected. The authorities call the delinquent out for the crime and they talk about it to convince the wrongdoer not to do it again. Then he or she rejoins the family and starts to work. Some have come to say thank you. The ones we dealt with two years ago came to thank us and they said that “if you hadn’t done it, I’d be dead. They’ve already killed some people, and they would have killed me, burned me to a cinder.”
This is the moment of Maltioxnik, the thanks that emanates from harmonizing relations. According to the Maya Ombudsperson’s Office, “The facilitators of the arrangement are profoundly thanked, which is occasionally expressed in words, sharing a lunch together, or making a donation with gifts of food.” Don Manuel tells of a Maltioxnik that happened years after some youths had committed the offense, once they acquired a broader view of the turning point that being subjected to Maya justice represented in their lives. The Maya Ombudsperson’s Office insists that perfection doesn’t exist in the Maya cosmovision: a person isn’t only bad or good. That’s why Maya authorities don’t condemn, as they know we’re all prone to make mistakes, which is part of a learning process.
Many families are so grateful because the people who were punished with the switch no longer do bad things. The worst they’ve said is, “Look, brother, I just can’t understand that.” Because they’ve brought men here to be punished from Nicaragua and Honduras. Once some Hondurans came here and they said, “Nobody grabs us. You should see what we’ve escaped from. Nobody’s going to frighten us off in a small municipality.” They started to kick over some tables and hit people there in the square. The mayor was called to calm things down.
The thing is, not just anyone can withstand that switch, because it’s been “saturated” in a Maya ceremony. I only saw one. Although I was secretary at the time, they assigned someone else at that moment to raise the man’s knowledge. The man was only given five xik’a’y. After the first blow, he said, “No bloody problem! I can take it!” After the second, he said, “Yes.” After the third, he asked forgiveness. After the fourth he threw himself on the floor. And after the fifth, he was dying. If you’re stubborn, you end up on the floor like that, but if you’re humble and modest it doesn’t hurt because you resign yourself to God’s will. That’s the strength of the lash.
If we associate humility with acceptance of guilt, Sieder said something similar in relation to feeling the punishment more or less depending on whether one is more arrogant or more humble: “I was told that those who had more guilt or who did not repent for their actions felt the punishment more strongly.”
“We measure the person until he confesses”
It’s not like before, when people said, “No, no we didn’t see. Who knows who it was.” No, sir, now ithe person responsible for the case has to be clarified. That’s why the indigenous mayor’s office investigates and gets perpetrators to explain what they did, how they did it and why.
Nobody’s accused without an investigation. How is it conducted? We have a value that is our ancestors’ analysis. We know the Mayas were here thousands of years ago. The Spanish—who pardon with your white skins, but my skin is brown—came 500 years ago, killed the Mayas and set themselves up to govern. What law did the Maya have previously? It was that both parties had to respect each other. We have a “nawal” corresponding to the day we were born: that day guides one’s life. That’s the analysis I’m talking about. If four or five Maya priests sit down, they start to measure the person. They say to him, “People here say you did it.” They ask him, “Where were you at such and such a time?” “Where’s your father, your mother?” “Who saw you where you were at such and such a time?” And they tell him more: “We’re not playing around here; the air, the water, the earth and the mountains are talking and say it was you.” And he says emotionally, “Yes, it was me.”
“The second punishment is restitution”
After confessing, the person also has to ask for forgiveness, return what was stolen, repair the door he broke to enter the house and commit the robbery and leave everything the way it was before. That’s the second punishment: restitution. If he hit someone, he has to pay for the healing process and take care of the victim until he’s healthy again. That’s not easy. Who’s going to be such an idiot that he robs a house if tomorrow he’s going to have to return all the things he took in front of everyone? It’s better to work and not commit offenses and shameless acts.
Obtaining the truth is a core element in Maya justice. Doing justice means finding the truth. The initial investigation reveals some information. This is Sik’nik, the moment at which those involved are called or visited in order to gather information in house-to-house questioning. But Utaik utatb’ixik ri tzij is the moment of seeking the truth among everyone, the moment at which the community is granted the right to speak.
The witnesses—who can be disinterested third parties or people related to either the victims or the accused—recount what they saw. Each gives his or her version talking to the whole community, not to the rival party. The K’iche’ expression q’atb’altzij is associated with the truthfulness of the words or versions of the events given by those involved in the dispute, as Sieder observes. That´s why the investigation involves listening to all the parties. But the whole truth can only be produced through a dialogue that seeks to delve into the deepest motivations. That’s why there’s both an investigation and a confession.
The moment and those responsible for finding “the truth” differ between the official system and the indigenous one. According to Sieder, for the indigenous authorities, the guilty people must tell the truth, recognize their error and promise to repair the damage. She contrasts this with the official justice system in which the accused cannot be incriminated through confession; it rather falls to the prosecution to prove their guilt. Kuyb’al mak is the recognition of the offense and plea for forgiveness. The Maya Ombudsperson’s office insists on a two-way action in that it must also be accepted by the injured party.
Restitution is common practice in Maya law. It is reached through theUsachik mak and Utoji’k mak, the moments during which the parties define the reparation of the damage and harm caused and all of the sanctions. With this compensation, it is expected that what happened will gradually be forgotten.
“That punishment really works”
We have some tattooed mareros [youth gang members] here. They come from the capital and some were born here now. They’re tattooed with the numbers 18 and 13 [corresponding to the biggest youth gangs operating in Central America: Mara Salvatrucha, or MS-13; and Mara Barrio 18, known in English as the 18th Street Gang]. I don’t know what pictures they also have tattooed on their back, their hand, even their forehead! There was also graffiti on the walls everywhere. What’s the reason for painting graffiti on the walls?
We asked them to please clean the walls painted with graffiti with their own hands. There’s no reason to use a brush. Water, yes, but no other material. No gesso or any other material to just cover it up. They have to clean it with their hands, and if they scrape their fingers, so be it, but the wall has to be left the way it was originally. What kind of fool is going to paint graffiti on a wall if they have to clean it with their fingers the next day? That’s a big price to pay, isn’t it? The law says that’s a great injustice, but it works.”
Some punishments are metaphorical actions. In this respect, Sieder mentions a group of three young people who were forced to carry the tires of the pick-up truck they had stolen, while some mareros in Tunajá were forced to carry the body of their victim (as a metaphor for taking responsibility for). She also encountered cases of those who had to remove the graffiti they had painted on a wall their bare hands (the fingers suffer what the wall suffered), a combination of restitution and physical punishment performed with exemplary symbolism.
But no meaningless physical punishment that doesn’t benefit anyone is imposed. Rather the punishment is designed to return things and the community as a whole to the way they were before the crime was committed: the wall is made clean again and the delinquent becomes a person and member of the community again.
”There’s no devil here, just people”
The objective we achieve is to be responsible. Fathers, grandfathers and uncles… and also aunts, grandmothers and mothers, because women were also involved. It’s now been 18 years since we came to this solution, the one we found here in Zacualpa. And I thank God for it, because I’m not a king or someone powerful or with a title. I haven’t even gone to the university. I just have a beard that’s a little long. But I’m not the bearded one nor am I superior. I’m a person from the countryside and in fact we’re all simple folk here. Even so, we were careful to leave verification. The discussion was taped and the agreements were written up in minutes.
Thanks to that, we made Zacualpa healthy, all 38 villages. We’ve cured them because we work well, with thanks to God and to those who are outside of our country, because the remittances are coming in normally and some have built houses and schools, and made roads or improved them. I’d say we live in peace.
When we first began putting things in order, we encountered problems with pickpockets who would come to parties and slip things out of pockets or cut bags open with knives. They aren’t from around here; they’re from Sololá and Chichicastenango. They come with magic because one doesn’t feel it when they cut the bag or take out money. We investigated who they were. The priests helped, because, like I said, we all have a glyph in our life, our nawal, from the day we were born, but we’ve lost it, because if we were to value this, we’d know that we’re more see-through than glass. We have value and one can see it. Much like dogs smelling things and hearing things, it’s noticed. When the Spaniards came, they oppressed us and killed us...They’d say to us: Don’t do that, kid, that’s the devil acting. What devil? There’s no devil here. The devil is like electricity with a positive pole and a negative pole... that there is. Sometimes one gets involved in delinquency because of the body’s weakness when we’re neutral. It isn’t the devil. They said there was a devil, but there’s none here. All those things are just part of our life.
The problem is people. But if one does what we did, the community controls that person. We see who did it and he or she won’t do it again. We have them under control: where they’re going, where they are, what they’re doing. And that way we protect the community’s goods. Because we all have something: one has cattle, another has a lot of land, another has a good woman, the other a good house. They’re invading those people, doing them great harm. Everyone is struggling. The one who has cattle didn’t get them by leaving a cow tied up there and just sitting around waiting for the herd to grow. One must struggle for everything. If you have 20 or 30 chickens, you need to bring them corn. If you have your little house, you have to struggle to build it. Don’t think a neighbor will come and offer you a couple of stones or a sack of sand. Those who struggle, get. And those who don’t struggle don’t get. Then the thieves come along to harm all that effort. It’s not fair.
The objective is to keep order in the community
There’s order in the community and a distribution of roles and of providers of chickens, eggs, beef, milk. Thievery disrupts this order and breaks the ethic of retribution that don Manuel emphasizes. The purpose of Maya justice is to maintain this order. The allusion to one having a “good woman” is probably to the problem of adultery or rape that Maya justice has to deal with. The issue isn’t about property per se (because we all have something), but about the social relations implicated, both in possession and in the couple’s relationship. That’s why, as Carlos Flores observes, Maya legality can be seen as the expression of strongly shared social norms that come into play under a corporative responsibility that in the final analysis concerns and affects the whole community.
“What we achieved is being destroyed”
Nowadays we’re sad because all that we achieved since 1999 is being destroyed. People have been killed in their homes again and many have fled. Who knows where they go. They don’t go out to plant anymore. They are abandoning their land and giving away their cattle. If tigers came or an animal from the mountain jumped out and ate people, we could deal with it and put an end to it. If a snake came from the mountain to devour people, we’d defend ourselves. We wouldn’t flee. But many are running away from the problems with people.
A pastor was murdered in recent months and it appears a young girl was killed at a party. In a year, five to six people have been murdered; shops in the mall and hardware stores have been ransacked. What do the authorities do? Who were the perpetrators? They say they don’t know, but I doubt that. Forgive me, my tongue is long, but I have doubts. This isn’t like in the capital. Here we know everybody’s faces, all our neighbors’ schedules. During our previous investigations we didn’t blame anyone from outside. We knew the offense was committed by families from right around here. And that’s how we solved about five thousand cases.
But now it’s more complicated. Before, cellphones weren’t used so much. Now there’s Internet and all. Now things are more messed up. Sometimes we, the indigenous, aren’t very skilled for this. Internet is a great service, but I don’t use it. I only use a “frijolito” [a little cellphone with only basic functions] for work. I don’t understand the Internet. I’m guessing there are probably nice things there. There are medicines, medicinal plants, how to raise cattle, how to raise chickens, pigs. If a 17-year-old studies about medicinal plants there, he or she could be a good doctor. A young person can learn how to raise chickens. But they don’t use it for that; instead they use it to see who wants a boyfriend, who’s offering himself to be the boyfriend, who has money, who sells marijuana... They’re free to use it that way. That’s why the Internet brings serious problems to society when we don’t have the education about how to use the device.”
“They can do justice”
Now the disease has started again because the political parties have divided us. And also because of those from human rights, who believe that by saving a person from 20 lashes they’re doing justice. “Where’s the constitutional article that deals with those punishments?” they ask, arguing that if it isn’t in the Constitution, it’s a human rights violation. Some went and reported the COCODEs and auxiliary mayors to the courts saying their rights were violated. That’s why we’ve had to leave justice in their hands. But we see that they aren’t doing a thing. If people go back to lynching, it will no longer be our fault, but that of the government authorities.
I don’t understand why they don’t stop crime, if it’s so easy. If they, who are lawyers and work in that, don’t even know the Guatemalan Constitution, much less do we in the countryside, who work with a hoe every day. I, as sort of an authority, don’t know the Guatemalan people’s Constitution very well. The country’s peasants and youth...don’t know it. Sometimes they don’t even know the Bible, even when they claim to be Catholics or Evangelicals. And that is why we seem to contradict ourselves: the Constitution of Guatemala is one thing and the community is another.
It’s been four years since they came in, so let them take care of justice. We’re no longer doing it. It’s sad how they talk about human rights now. They say we all have a right to life. There’s no right to take life away. Nobody has that right. Those words sound nice, but then look, who’s ordering the thieves to kill someone who’s at home peacefully? The farmer dies, the peasant dies, the merchant dies...
If I have a bag of ten quetzals it’s because I got up early to do business somewhere and make a little money. Why are they going to take my life away? The merchant isn’t harming anyone. The farmer isn’t harming anyone. He’s providing food and pays those who make fertilizers, insecticides, fungicides and those who sell seeds. He’s providing food for everyone. He brings the products out from the fields and sells them in the plaza so we all can eat, the children can eat, and he can buy supplies. But the delinquent comes along and takes his life, the life of someone valuable, who provides our municipality with food. And then those from the human rights say one shouldn’t take the life of the one who killed. We don’t take anybody’s life, and we don’t want anybody taking ours.
“The State doesn’t care about us”
The National Civil Police recently returned to Zacualpa. Now they are saying that the COCODEs have to collaborate with them by catching those delinquents and turning them in to them. While that sounds logical, the National Civil Police aren’t competent for doing justice. The Public Ministry has the role of investigating and the one who supposedly administers justice is the judge. And since there’s a law against corruption, the judges shouldn’t accept bribes, but who says they don’t grab it when the delinquent hands them a nice bundle... We sell anything for money. The judges don’t do anything. You capture someone, take them to court and once there the judge says: he ran away, the papers on the case got lost, he died… That’s what’s happening again in Zacualpa. That’s the problem: they’re violating our right as a people.
The judges don’t like us. I sincerely say that the State doesn’t want to see us because it doesn’t want to acknowledge us. We can’t communicate with the National Civil Police. The Public Ministry doesn’t want to acknowledge us either. They say we’re against the law. But we had a solution and good results. What good is it to raise our fist? [a reference to ousted President Otto Perez Molina’s campaign logo] What’s a fist going to do? Only injure us. We seek a solution with the parents, relatives and above all, we make the people responsible.
Human rights vs Maya justice?
Intervention, censorship and often uninformed and/or abusive human rights organizations have left polarized positions expressed through the false dichotomy of “Maya law vs human rights.” This dilemma draws a large part of the coordinates within which the debate about legal pluralism is taking place and undermines the possibilities of understanding and collaboration between the two legal systems.
Although there’s no lack of analysts who reject the interventionism of international NGOs and development agencies that try to “regulate customs” and “apply a form of censorship on Maya peoples’ own expression of justice,” a monitoring of the media shows a predominance of anathema towards Maya justice in favor of procedures assumed to be more civilized and objective. That adverse backdrop explains don Manuel’s reaction as he described the returning chaos in the absence of Maya justice, reaffirmed the search for responsibility that Maya justice pursues and compared the two systems.
“They only teach them more crime in prison”
Nowadays, the law of the State is doing nothing, absolutely nothing. And the judge, how much is he earning? And the Public Ministry, how much does it earn? How much money is the State spending there? We did everything that we’ve done without incentives. No money. No NGO support. We did it all on our own. What vehicles did we use to carry out the investigations? Our feet. Many times going out at night and enduring hunger. Thank God, I can endure hunger. I can go three days without eating and I endure. Lack of food doesn’t stop me.
Maya justice has five specific points: reparation of damages, shame before everyone, the flogging one gets, the family taking on responsibility and the pastors or anyone who gives them the talk, which is the Pixab’, a reminder of the wise teachings of our fathers and grandfathers. It’s not the same with the police. They sentence the husband, put him in jail, then ask for 5,000 quetzals for “talacha” [a bribe to avoid getting beaten in prison, the word is more generally applied to any gathering of funds among a group of people]. To pay the talacha he has to mortgage his land because we don’t have money. He has to borrow or mortgage the land or sell his house. Who suffers? The children, the wife. The wife had nothing to do with his crime, but is going to suffer the worst part. The child gets no education. And the man, what’s he going to do in jail? Who’s going to correct him there? Yet once there, some will teach him more crimes. If he’s useless, he’ll learn to be more useless there. When he comes back, he’ll be a refined thief. Prison doesn’t offer any solution. To the contrary, many have been killed in jail.
They killed a boy from here about two months ago. They say he smoked marijuana but who knows. They say they took him to jail, and since he didn’t have money to pay the talacha, they killed him. His parents went back in 24 hours to see him and he was already dead. Kicked and beaten to death. That’s how the government’s punishments end, with the death of those they lock up in prison or with worse behavior.
Don Manuel rejects the disqualifying of Maya justice. His comparison centers on the harshness of the punishment and the final result: official justice punishes with death—although it doesn’t subjectively intend to—and doesn’t restore community harmony. Throughout his account, however, other contrasts surface that explain why a system can—if adequate conditions come together—lead to one or another result.
Summarizing don Manuel’s arguments in Kantian terms, we can say that the nation-State’s justice seeks mere legality, i.e. that people conform to the law, behave in compliance with it),while Maya justice seeks the morality of one’s actions, i.e. the idea that duty—towards the community—be what motivates actions. That’s why the dialogue and counseling seek to recreate the situation in which the vows of duty towards the community are renewed: repentance and conviction of the need to behave according to the established norms takes place. The social contract is renewed. Whereas to comply with official laws, the subject submits, moved by the desire to avoid a police record, dodge a legal suit and escape a stint in prison or a heavy fine, the observance of Maya justice implies inner consent to comply with the norms because the subject has been taught—and the Maya legal process serves as a reminder—that the norms are there to protect the community.
The Maya system has a spiritual aspect
The comparative chart on the next pae above uses don Manuel’s argumentation and contrasts the characteristics of the official system within the same categories. We see that the official system has a technical focus governed by legalism (accommodating behavior to whatever isn’t categorized as a crime); is interested in mechanical motives and is content with adjudication of guilt. The Maya system has an aspect that is markedly spiritual (every detail makes sense when its place is found within a religious cosmovision), its goal is moral (internal acceptance of the norms and guilt, i.e. contrition and not only attrition), and it seeks understanding of the bad deed and production of the truth, which is the first step toward repentance, reparation of the damage caused and reintegration into the community to restore its harmony.
The rationalist paradigm of human conduct rests on the assumption that a person makes free choices. That’s why legal practice focuses on establishing correlations between crimes and motives. The main product of this connection is the establishment of guilt. Maya law seeks to understand, because according to its anthropology, whoever infringes upon community harmony is not a full person and that dehumanization must be cleared up internally and before the community by the subject who committed the offense, with the indigenous authorities as midwives. There’s a mystery within the offense, not a chain of events. The sequence of the wrongdoing is not an issue to be resolved by specialists, with their forensic techniques and identification of fingerprints. The wrong is not visible: it’s in the human heart. Only dialogue can bring out its features and its reason for being.
In the chart we see that Maya justice operates inversely to what Boaventura de Sousa detected in official justice: it’s strict in what’s ethical and lax in formalisms. As Kant observed, “Juridical duties are such as may be promulgated by external legislation; ethical duties are those for which such legislation is not possible.” One is based on the doctrine of law and the other on the doctrine of virtue. It can be inferred that in the Maya system the horizon is not liberalism’s rule of law but the rule of virtue. This rule is an aspiration whose full achievement requires the absence of coercion. Treating Maya justice as finished and perfect in its legal procedures—some sort of end to judicial history and realization of a utopia—dehumanizes Maya law.
The differences between the two justice systems motivate reflections such as that of De Sousa Santos: “Can whatever is an adequate process for an indigenous system be the same as due process for an official judicial system? No it cannot. But the indigenous system also has its due process. What is important in intercultural constitutionalism is that if differences exist, the objective is not consensus around uniformity but consensus to acknowledge those differences. And here is a fundamental principle for intercultural constitutionalism: the differences require appropriate institutions and the similarities require shared institutions.”
The challenge of Maya justice
Legal pluralism presents its challenges. How do you reconcile respect for the official justice system’s due process without losing the elements that guarantee a return or proximity to community harmony in the Maya system? With appropriate institutions. How do you achieve dialogue and collaboration between the two systems instead of the mutual disqualification that currently predominates? With shared institutions.
Appropriate institutions are the original challenge. A core aspect of Maya justice links its cosmovision with its procedures and make it preferable to air and resolve conflicts in the Maya community tribunals, where they can receive the appropriate treatment—spiritual—in accord with their cosmovision. As Santos said, “If I want to go to the Moon, I use science, but if I want to preserve biodiversity, I also need indigenous knowledge. So I maintain the idea that today we need what I call the ‘ecology of knowledge’.” Following this same logic, if I want to preserve the community and grant it harmony, I use Maya justice and not official justice’s legal technicalities.
José Luis Rocha is a researcher at El Salvador’s Central American University José Simeón Cañas and associate researcher at the Institute for Research and Social Projection on Global and Territorial Dynamics (IDGT) of Guatemala’s Rafael Landívar University.
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