Mayan Justice in Guatemala: Shame, Property and Human Rights

Indigenous forms of imparting justice in Guatemala have become a point of controversy between Mayan communities and the government. This article is the first of three in-depth reports by Lucía Escobar into Mayan community justice, its norms, its values, and its controversies.

September 4, 2007

There's nothing like seeing José Macario Morales wearing his regional clothes from Chichicastenango, Quiché, Guatemala.

He looks like a priest out of some Mayan tale. Too bad he can't use the traditional clothing everyday, since the fineness of its thread, its detail, and minutely crafted needlework mean it has a price-tag of some $1,000. Macario counts himself among the 98.5% of the population of Chichicastenango who consider themselves indigenous Mayan K’iche’s, according to a 2002 report by Guatemala's National Institute of Statistics.

This town is famous for its market days—Thursdays and Sundays—and for being an obligatory destination for many tourists. The Catholic Church, built in 1540 by Dominican priests, with its 20 steps that symbolize the days of the Mayan calendar and the syncretism of its services scented with traditional Mayan incense, create one of the country's most characteristic postcards. This town between bluffs also produced the Popol Vuh, cornerstone of Mayan indigenous literature, as well as masks and ceremonial dress. There is also the pride of its present-day inhabitants who consider their town the authentic cradle of the k'iche' people.

The High Council works without pay for the entire community. Macario sits on the far-left, Tomás Calvo is in the center. (Lucía Escobar)

In Chichicastenango Macario is the highest ranking indigenous authority after Tomás Calvo, who also looks more distinguished when he wears his jacket adorned with colorful needlework depicting icons of Mayan cosmology, as well as his short black pants, his white handmade sack, and a red sute, or ceremonial headpiece. He holds the staff, which as in other aboriginal communities in the Americas, identifies him as a person of authority.

These two men are part of the Indigenous Mayoralty, which among other things oversees the cofrades or councilmen (who guard the community's treasures and religious images) and the principales (guardians of papers and old property titles). Neither Macario or Tomás know how to read or write, they speak little Spanish and hardly learned how to sign their names, but both are charged with guaranteeing the peace in the 86 cantones or cantons that make up the district of Santo Tomás de Chichicastenango.

Macario's job title changes according to who is speaking: assistant mayor, communal or indigenous mayor. But the work is the same—serving the people, solving conflicts, maintaining a culture alive. The indigenous mayoralties were born in colonial times when "Pueblos de Indios" or indigenous villages were constituted and the principales (people with authority) were chosen to impart justice, collect taxes for the monarchy and to disseminate Spanish laws and policies. The villages' isolation and the state's neglect meant that this structure for community and social services remained important for centuries, in some cases metamorphosing or disappearing according to the needs of each population.

Today Quiché is one of Guatemala's departamentos, or districts, where the Indigenous Mayoralty remains most active, and the leaders who integrate it are chosen in elections based on open assemblies within every canton. The top positions tend to be given to elders with special spiritual qualities, a proven track record in community service, and a talent for mediation and dialogue.

Macario is the first Indigenous Mayor to be reelected. His reelection was based on his work restoring communal assets. Before accepting the honor of reelection Macario had to consult with his wife. Since the position does not come with a salary, he is obliged to travel a great deal, and so he cannot contribute as much to sustaining his household, and the burden is being taken up by his wife.

Macario moves in various worlds; he might be in Guatemala's capital as a guest in a seminar on indigenous rights or lobbying at the national legislature, or—as was the case a few months ago—he might be traveling to Mexico and Bolivia representing indigenous authorities. Or he might be giving interviews to the international media, which often visits him in Chichicastenango.

He is also well known in the cantons where he travels often to resolve property issues or inter-communal disputes. For Macario, every matter he deals with is important, from the micro issues to the titanic problems.

K’ixiba’l’: Shame and Property

Chichicastenango's Indigenous Mayoralty possesses legal documents from 1905 that certify it as the proprietor of buildings and property in the downtown. Today, some of those assets are in hands of private companies. Other indigenous mayoralties, such as those of Totonicapán y Sololá, face the same problem.

This property issue has pitted Macario against Carlos Slim, the same Mexican billionaire that recently dethroned Bill Gates as the world's richest man.

Various years ago, in 1973, a city official illegitimately sold some of the Indigenous Mayoralty's communal properties in Chichicastenango. The official was able to do this by taking advantage of widespread ignorance among Guatemalans, including civil and legal authorities in the city, who did not know or did not want to understand the difference between the Municipality of Chichicastenango, which administers government assets, and the Indigenous Mayoralty of Chichicastenango, which administers communal, indigenous resources.

In other words, the municipal government began to usurp the rights of the Indigenous Mayoralty, selling communally held indigenous properties to private entities. One property was ceded to Guatel, today called Telgua, the Guatemalan telecommunications company owned by Slim. Another property was sold to the postal service, Correos S.A.

For years the indigenous authorities of Chichicastenango have attempted to recover their property assets, based on their belief in what is right and according to the three pillars of their judicial system: dialogue, consensus and harmony. The strategy they used is based on the word k’iche’ k’ixibal, which means shame. If they succeeded in making the owners of Telgua and Correos see that their purchase of the properties had been illegal, surely they would feel bad about it and make things right.

The façade of the Indigenous Mayoralty of Chichicastenango decorated with Mayan iconography. (David Pérez)

The indigenous authorities were able to secure appointments with officials at Correos and Telgua and show them the documents that confirmed the Indigenous Mayoralty as the legitimate owners. The Correos official said he had known nothing about the sale. He apologized to the Mayan authorities and gave back the property, which today is adorned with the name "Indigenous Mayoralty of Chichicastenango" and is used as an office and meeting hall.

The meetings with the phone company did not go so well. Since the meeting, the phone company has deployed all sorts of legal and economic resources in order to keep the property. The case is now at Guatemala's Supreme Court. Who knows how this case will end… Macario Morales vs. Carlos Slim.

Pixab’, El Xik’a’y: Human Rights

Every time that he enters the Indigenous Mayoralty or any other place that deserves the gesture of respect, Macario kneels, prays in k’iche’ to the religious images that are present and deposits his staff in front of them. After this ritual, he's ready for whatever may come. The most common issues that end up at the Indigenous Mayoralty for resolution are related to family violence, property disputes, inheritance issues and thefts.

According to the book Una Visión Global del Sistema Jurídico Maya (A Global Vision of the Mayan Judicial System), which was put out by the indigenous legal defense organization Wajxaquib’ No’j, indigenous legal authorities guide themselves according to philosophical and judicial values that seek to promote unity, equilibrium and harmony in human relationships and in relations with nature. These norms regulate conduct and coexistence among the Mayan people and are built on the deep foundations of the indigenous cosmology, or the Mayan way of seeing the world. Nature, cosmos, and human being are an interconnected trinity in indigenous thought.

When Macario, Tomás or other indigenous mayors view a case, they don't seem to base their decisions on theories that abound in the dozens of books that treat the subject of common law in academic, anthropological, or juridical terms. Instead, they are following a logical procedure in synch with their beliefs and customs.

One example is the day that Macario resolved a case of family violence in the village of Chupol. He received the complaint, analyzed the problem, and called those involved to testify on a Tziquin day in the Mayan calendar, which is propitious for romantic reconciliations. "We would never do it on a Friday the 13th," jokes Macario.

In the town of Chajul, community authorities address a case of domestic violence. (David Pérez)

Over the course of the oral trial those involved shared their points of view, ideas and reflections were exchanged, and the result was that the accused regretted the incident, asked for forgiveness and himself proposed a way of fixing the problem. The couple received the Pixab’, which is a series of guidelines and life advice given by community elders that are meant to trigger reflection and changes in attitude. At the end of the meeting, all the parties seemed satisfied.

Everything was done in the k’iche’ language, and no traveling to the district capital was necessary; there wasn't a cent spent and no lawyers were hired. Nor did the accused have to wait for weeks to receive a sentence, as would have been the case if the official judicial system had been used.

According to data at Guatemala's Oficina del Procurador de los Derechos Humanos (PDH) or Human Rights Legal Office, something like 98% of homicides in Guatemala go unsolved. The fact is that the government's courts rely on meager human and economic resources.

In one of the state-run courts of Chichicastenango there are 3,000 oral trials a year, most in the k’iche’ language, and with only two clerks, one secretary and two interns under the command of judge Juan José Jiménez Texas.

For his part, he says that if it were true that the Mayan legal authorities did their work well, then his court would not be so overwhelmed.

Jiménez says there is absolutely no relationship between his courts and the Mayan legal authorities. The judge, who has worked in Chichicastenango for four years, criticizes the use of the Xik’ay’ or whip in the Mayan legal processes, and shows photos of a woman with her back red and raw because of the blows, allegedly applied by an Indigenous Mayor.

The Xik’ay’ or whip, says Amílcar Pop, a Mayan lawyer specialized in Common Law, is a complicated and complex issue but part of Mayan Justice. Originally it was a physical punishment that the elders would inflict on repeat offenders, and it is carried out with the green branches of the peach or quince tree. The idea is not to inflict pain or scars, but to arouse public shame.

At a meeting organized by the Indigenous Mayoralty of Santa Cruz del Quiché to deal with the issue of the Xik’ay’, the attendants were not able to come to agreement on whether it should be used or not. What was acknowledged is that in some parts of the country this punishment is common and can be applied with excessive force due to the influence of pervasive violence and the Guatemalan civil war that lasted for 36 years.

Juan Zapeta, an ex–Indigenous Mayor in Santa Cruz del Quiché, thinks that many cases of the Xik'ay' occur in extreme situations, when a community is angered and pressures local authorities to apply severe punishments. In these cases, the community might threaten to lynch the accused if a whipping is not applied—or, in the case of a woman, if her head is not shaved. In these cases, says Zapeta, there is no dialogue, no consensus, and much less any sort of Mayan justice.

At the meeting about Xik'ay' other leaders spoke up in defense of the Mayan legal system.

"They accuse us of not respecting human rights, but we are ahead of the United Nations, which has needed hundreds of years to define collective rights, and the rights of nature, things the indigenous peoples have practiced and respected for years," said Fausto Otzim, of the Center for Mayan Research and Documentations (Centro de Documentación e Investigación Maya, or Cedim).

At the meeting, it was also decided that in all cases, the right to apply Mayan norms is a right that has to do with the self-determination of indigenous communities and in this sense can't ever be considered a violation of human rights.

In terms of the Xik'ay' debate, Macario says that in Chichicastenango, with its 86 cantons under his charge, he has never applied the Xik'ay' since the Pixab’ (advice and counseling) is more effective and persuasive when it comes to modifying negative behaviors.

"We are tireless, we don't have office hours. When we hear a case we simply work until it is done, we don't leave things half-finished, we don't sleep if there's work to be done, and everything is resolved in the end," said Juan Zapeta in a speech at the International Seminar on Indigenous Law organized by the Mesoamerican Center for Regional Research (Centro de Investigaciones Regionales de Mesoamérica or CIRMA).

Zapeta concluded: "Our work is great, what we do is great."

Lucía Escobar is a Guatemalan journalist. This article, previously published by El Periódico of Guatemala, was translated by NACLA and supported by the Becas AVINA de Investigación Periodistica. The AVINA Foundation is not responsible for its contents.


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