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Alternative justice in Peru

Lawyers and judges aren’t always the most popular people in town. But what would we do if we didn’t have a functional, equitable justice system? How would we resolve our differences, deter crimes and punish offenders, or convince businesses that our communities were safe places to invest?

Many rural communities in Latin America are confronted with exactly these kinds of problems. Language barriers and their remote locations make it difficult for the state to provide these communities with adequate justice and governance systems. As such, they have had to come up with innovative solutions by relying on customary law, which some claim is based on the traditions of their indigenous ancestors.

Categories of NSJS in rural Peru

In a paper titled “Non-State Justice Systems in Latin America,” Julio Faundez, law professor at Warwick University in the U.K., identifies four main types of non-state justice systems (NSJS) in rural communities in Peru:

  • Rondas campesinas (or night watch patrols) are made up mainly of independent small farmers and were initially formed in the province of Cajamarca to protect private property, though some also handle other offenses, such as slander, assault and domestic disputes. Males of the community between 18 and 60 are required to serve on the Rondas. Criminals are usually handed over to the community’s General Assembly, made up of peasant landowners from the community, which determines guilt or innocence and metes out punishments. 

  • Rural Centers for the Administration of Justice were established to help peasant communities reconstitute civil society after the war against Shining Path guerrillas and to provide them with prompt, efficient access to justice.  Their members include community representatives, a representative of the local women’s association, the mayor, the justice of the peace and the teniente gobernador (local police).  Similar to a court, the centers hear and resolve cases of domestic violence, assault, theft, and property and family disputes, usually conducted in Quechua or the local indigenous language. Decisions of the centers are recorded in Spanish to guarantee that they are recognized by the community, center and state. 

  • Justices of the peace (jueces de paz), or lay magistrates, are officers of the state who are popularly elected and act mainly as conciliators. They also have limited jurisdiction in matters such as debts, misdemeanors, alimony and some cases of domestic violence. Though there is a substantial number of laws and regulations that govern their functions, Peru’s Code of Civil Procedure instructs them to apply local culture and practices in their activities. 

  • Indigenous communities (comunidades campesinas or comunidades nativas) are empowered under the Peruvian constitution to administer their own customary law, provided they do so within the limits of the constitution.  Private family conflicts are usually resolved by the extended family or by a council of elders. The political organs of the community such as the General Assembly deal with conflicts and disputes of wider community interest.

Customary law

In a presentation at IDB headquarters on his paper, Faundez said that the constitutions of some Latin American countries (Bolivia, Colombia, Ecuador, Nicaragua, Panama, Paraguay and Peru) recognize the existence of indigenous customary law, as long as it is generally consistent with national law. This gives customary law and non-state justice systems (NSJS), in general, “a level of legitimacy that until recently was unthinkable,” Faundez states in his paper. 

That legitimacy is tenuous, however, particularly since rural indigenous communities are using customary law not only as a justice system, but also for governance purposes.  They aren’t the only ones using non-state mechanisms to govern, though. In many Latin American countries, the state itself sanctions the use of non-state mechanisms for justice administration.  For instance, in Peru 4,000-5,000 justices of the peace provide justice services to nearly half the population.

Crime and punishment

Though “inhuman” or cruel punishments for those found guilty of committing criminal acts are the exception rather than the norm, there have been cases, usually in isolated areas, where severe punishments have been meted out by non-state justice systems, such as corporal punishment or banishment, Fuandez attests. But on the whole, NSJS have evolved away from extreme punishments, toward the concept of restorative justice.

Faundez reports in his paper that rural indigenous communities, in particular, tend to place a very high value on the restoration of harmony and equilibrium in their approach to dispute resolution, crime and punishment.  This helps to explain why the concept of restorative justice, featuring a confession, an apology and atonement for any harm, has been accepted in the NSJS of those communities.

Reducing gender bias

“There’s no question that there’s strong gender bias in most NSJS in rural Peru,” Faundez affirmed, “but there has been a marked move toward gender equality in recent years in those systems.” He credits the training provided by NGOs in Departments such as Ayacucho and Cajamarca for much of that progress, as well as the increase in dialogue between community groups and state officials from organizations such as the Office of the Ombudsman (Defensoría del pueblo).

But gender bias in justice administration in rural indigenous areas isn’t quite the cut-and-dried issue that it may seem to outsiders.  In the Amazonia region of Peru, for example, women are strongly discouraged from marrying outside the community. Why? Not because the community dislikes foreigners, per se (after all, men face no such limitations). The underlying reason is that when a woman marries, her property is transferred to her husband. By prohibiting women from marrying outsiders, the community is trying to protect its land.

A delicate balance

Faundez’ paper shows that the relationship between NSJS and the state is an uneasy one, at best. There are language barriers to overcome, as well as physical, geographical barriers. In addition, legislation regulating non-state justice systems can be complex, inadequate, unclear, or even contradictory.

Regulations limit the jurisdiction of the justices of the peace, for example, but many are required to exceed that jurisdiction as a result of demand of local communities. rondas campesinas are one of the most effective organs of local governance, with great successes in controlling crime, but many ronda members have been sent to jail for usurping the functions of the police and judiciary.

Nevertheless, progress is being made and there are also clear examples of where NSJS and the state are working hand-in-hand. The Rural Centers for the Administration of Justice, which include both community leaders and state officials in the judicial process, are one such example.  Another is the Peruvian Congress’ new law on Rondas Campesinas, passed in December of 2002, which, while fairly ambiguous, seems to give the Rondas the right to continue to administer justice.

Without a doubt, much work needs to be done to integrate NSJS with the more “official” state judiciary system. While no one has all the answers on how to do that, Faundez suggests that multilateral or bilateral organizations may be able to assist with this process by supporting a combination of training, knowledge-sharing events, additional studies, technical assistance and the replication of successful NSJS such as the Rural Centers for the Administration of Justice.

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