Informal Justice Systems: Charting a Course for Human - UN Women

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i. the indigenous native/aboriginal rural nations and peoples exercise their jurisdictional functions and responsibilities
through their authorities, and apply their principles, cultural values, own norms and procedures.
ii. the indigenous native/aboriginal rural jurisdiction respects the right to life, and the right to the defence of
the other rights and guarantees established in the present constitution.
moreover, article 191 defines the users of indigenous justice and the personal, subject matter and territorial jurisdiction
of this justice, while also referring to a future law on jurisdictional limits. it is also interesting that public
authorities and persons must respect indigenous justice decisions and that the state promotes and strengthens
indigenous ‘native/aboriginal rural jurisdiction’. 37
some latin american countries, particularly colombia, have important judicial precedents on constitutional issues
concerning the relationship between the law and justice systems of indigenous communities and those of the
non-indigenous majority. the legal protection of rights and the relationship between individual and collective
rights have been central questions for much of this jurisprudence. issues such as the constitutional, rather than the
ordinary legislative, basis of the law-making and jurisdictional authority of indigenous peoples and communities
have come to the fore. colombia’s 1991 constitution was one of the first in latin america to recognize indigenous
authorities’ exercise of judicial functions. 38 the constitution foresaw the adoption of legislation regulating the coordination
of jurisdiction between indigenous justice and the ordinary justice system. Due to a failure to pass such
legislation, the constitutional court had to attempt to regulate aspects of the relationship in its jurisprudence,
finally settling on a far-reaching interpretation of the judicial autonomy granted to indigenous peoples and communities.
39 the discussion of human rights and ijs in chapter Vi deals with some of these issues in greater detail.
When dealing with ijs, the process by which norms, rules and regulations are translated from the international to
the regional, national and local levels is very important. this process assumes various forms with differing effects
that involve what sally engle merry has termed the ‘vernacularization’ of human rights. 40 as harry englund points
out, 41 people involved in the process of translation may nominally invoke the language of human rights in order to
create or consolidate unequal social relations. 42
the importation of rights frameworks and the ‘translation’ process do not necessarily diminish the position of customary
law as a normative framework for ijs. there are many similarities between the core values of human rights
and customary law. in some areas, ijs may offer greater compliance with human rights standards than the formal
justice system, either normatively or practically. 43 the question of the relationship between culture and rights then
becomes one of how to square norms and practices with human rights without undermining the authority and
cohesiveness of local communities and their systems of governance.
exploring this question requires an analysis of how values and norms become contextualized and subject to change.
it also requires an effort to negotiate or adjust the norms, structures and procedures of ijs that do not comply with
human rights. What was formerly a confrontation may change into a concrete and practical discussion about
37 translated texts of these provisions are in the ecuador country study.
38 see article 246 of the constitution of colombia.
39 Van cott, D. l, 2000, op cit.
40 merry, s. e., 2006.
41 see Prisoners of Freedom: Human Rights and the African Poor, california series in Public anthropology, 2006.
42 a valuable recent contribution to this literature is State Violence and Human Rights by steffen jensen and andrew jefferson, 2009.
43 this is particularly true of the right to a remedy and to process-oriented rights more generally. ijs generally avoid the violations of
human rights that are associated with dysfunctional criminal justice systems, such as prolonged detention without trial and poor
conditions of detention.
a stuDy of informal justice systems: access to justice anD human rights