https://doi.org/10.37955/cs.v8i1.336
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eISSN: 2600-5743
Conflicts of competence of the
indigenous jurisdiction vis-à-vis the
ordinary jurisdiction
Los conflictos de competencia de la jurisdicción indígena
frente a la jurisdicción ordinaria
Jessica Diana Supe Guashco
Estudiante de la Facultad de Derecho y Ciencias Políticas.
Universidad Indoamérica
jsupe@indoamerica.edu.ec
https://orcid.org/0009-0005-9091-6390
Alexandra Anabel Jaramillo León
Abogada de los Juzgados y Tribunales del Ecuador, Mediadora avalada por el Consejo de la
judicatura, Magister en Derecho, mención en Derecho Procesal, Docente de la carrera de
Derecho de la Universidad Indoamérica
alexandrajaramillo@uti.edu.ec
https://orcid.org/0000-0002-7556-1166
ABSTRACT
The ordinary jurisdiction is governed by the common laws of law,
while the indigenous jurisdiction is governed by the customary law of
the traditions, customs and culture of indigenous peoples,
communities and nationalities; and, it is from the application of this
legal pluralism recognized by Art. 1 of the Constitution of the Republic
of Ecuador, where conflicts of jurisdiction arise between these two
jurisdictions, because there is no law regulating the coordination and
cooperation between the ordinary and indigenous jurisdiction. For
this reason, the main objective of the research is to analyze the
conflicts of competence generated in the applicability of the
indigenous jurisdiction vis-à-vis the ordinary jurisdiction. The
methodology is based on a qualitative approach, which is carried out
through the use of the bibliographic-documentary method, which is
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carried out through the analysis based on books, pamphlets, articles
and other documentary materials that allow developing a deep
investigation based on the collection of information of bibliographic
and documentary indoles of great relevance to expand knowledge.
This allows concluding that at present the indigenous jurisdiction is
managed as an isolated world trying to regulate the coexistence of
peace and harmony in its territory, and that the ordinary jurisdiction
observes the pronouncements of the National Court of Justice or
Constitutional Court of Ecuador, to be able to act in analogous cases,
making use of the sources of law that these provisions emanate.
RESUMEN
La jurisdicción ordinaria se rige por las leyes comunes del derecho,
mientras que, la jurisdicción indígena se rige por el derecho
consuetudinario propio de las tradiciones, costumbres y cultura de los
pueblos, comunidades y nacionalidades indígenas; y, es partir de la
aplicación de este pluralismo jurídico que reconoce el Art. 1 de la
Constitución de la República del Ecuador, donde surgen los conflictos
de competencia entre estas dos jurisdicciones, debido a que, no existe
una ley que regule la coordinación y cooperación entre la jurisdicción
ordinaria e indígena. Por esta razón, el objetivo principal de la
investigación es analizar los conflictos de competencia que se generan
en la aplicabilidad de la jurisdicción indígena frente a la jurisdicción
ordinaria. La metodología se basa en un enfoque cualitativo, que se
lleva a cabo mediante la utilización del método bibliográfico-
documental, que se realiza mediante el análisis en base a libros,
folletos, artículos y demás materiales documentales que permiten
desarrollar una profunda investigación en base a la recolección de
información de indoles bibliográfica y documental de gran relevancia
para ampliar el conocimiento. Esto permite concluir que en la
actualidad la jurisdicción indígena se maneja como un mundo aislado
tratando de regular la convivencia de paz y armonía en su territorio, y
que la jurisdicción ordinaria observa los pronunciamientos de la Corte
Nacional de Justicia o Corte Constitucional del Ecuador, para poder
actuar en casos análogos, haciendo uso de las fuentes del derecho que
estas disposiciones emanan.
Keywords / Palabras clave
jurisdiction, conflicts, indigenous jurisdiction, ordinary jurisdiction
competencia, conflictos, jurisdicción indígena, jurisdicción ordinaria
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Introduction
The indigenous justice was already applied since pre-Inca times,
governed by the customs and the cosmovision to which each of the
communities belonged, its settlement took place before the Spanish
conquest in Latin America. One way of doing justice within the
communities of indigenous peoples and nationalities was by means of
purification punishments without this being established within a
regulation. However, within the Ecuadorian territory was with the
Political Constitution of 1998, which is recognized as an alternative
way to resolve conflicts that are generated within the indigenous
peoples and nationalities through the application of rules under their
beliefs, customs and traditions, was thus raised as a way of judging
within the territories.
With the promulgation and enforcement of the 2008 Constitution,
indigenous justice has achieved greater value, since Article 1 in the
declaration of the State as a constitutional State of rights involves
interculturality and plurinationality, making this type of justice equal
in hierarchy to ordinary justice; However, due to the respect for the
function of indigenous justice, their ancestral knowledge and the
establishment of internal control provisions or norms, communities,
peoples and nationalities are treated differently, as holders of
collective rights that are established and guaranteed within the
supreme norm, through the granting of the right to self-determination,
which is manifested under their own autonomy and self-government
within the internal and local affairs to regulate the peaceful
coexistence of human beings in society. However, there have been
numerous conflicts with respect to the competence of each
jurisdiction.
Jurisdiction is defined as the legal limits that are distributed among
the different judicial authorities to exercise their power of jurisdiction
in some delimited and categorical process; therefore, it is necessary to
state that, within these limits in the jurisdictional field, jurisdiction is
given by reason of matter, territory, degree and person. (Bolivar et al.,
2021).
When speaking of competencies in terms of subject matter, it means
that both the indigenous and ordinary jurisdiction have the power to
hear and provide solutions to internal conflicts as long as they are not
contrary to the supreme law and international human rights
instruments, as they are susceptible to nullity due to the violation or
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infringement of the rights legally recognized in the national and
international legal system. Thus, the indigenous jurisdiction cannot
hear or resolve serious crimes that compromise a protected legal right.
Jurisdiction by reason of territory is the determination given to the
judicial authority based on geographical reasons or territorial
circumscription, i.e. the place where the act or omission to be judged
took place, the domicile of the procedural parties involved in the
litigation, on the basis of this type of jurisdiction the judicial bodies are
distributed.
Jurisdiction by degree involves the functional competence that is
determined by the hierarchical levels of the jurisdictional bodies; that
is to say, a case may be brought before judges of first instance within
the different Judicial Units, once this phase is concluded, any of the
procedural parties that are not satisfied with the sentence issued by
the competent authority may have access to specialized chambers of
the Provincial Court of Justice and from there to the National Court of
Justice and within the communities, peoples and nationalities, the
indigenous authorities have the power to do so.
Jurisdiction by reason of the person consists of conferring jurisdiction
to hear cases according to the division established by law for each
specific case, i.e., determining the quality with which a person appears
in the litigation, so that a strict procedure is followed for new cases to
be attributed to them by the courts having jurisdiction in the same
matter.
As for indigenous justice, since it has been declared of equal hierarchy
to ordinary justice, it has been competent to resolve internal conflicts
that arise within their territories; however, no individual regulations
have been presented to govern the application and individualization of
each of the jurisdictions, only doctrine referring to indigenous justice
has been observed. Within the constitutional provisions, Article 171 is
the only one that establishes that "the authorities of indigenous
communities, peoples and nationalities shall exercise jurisdictional
functions based on their ancestral traditions and their own law within
their territorial scope" (Constitution of the Republic of Ecuador, 2008,
art. 171).
Therefore, it has been the Constitutional Court who, through
judgments, has been establishing parameters to try to delimit and
resolve conflicts of jurisdiction that arise within the indigenous
jurisdiction. As a clear example we have one of the sentences that is No
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113-14-SEP-CC that was given July 30, 2014 issued by the
Constitutional Court of Justice on the La Cocha Case, in which it
alludes to the limits of competences that must be fulfilled within the
indigenous jurisdiction, thus establishing that, within this jurisdiction
cases on the inviolability of life may not be heard.
That said, the main objective of this scientific article is to analyze the
conflicts of competence generated in the applicability of the
indigenous jurisdiction versus the ordinary jurisdiction. For this
purpose, the methodology to be applied is the bibliographic-
documentary method of a scientific research with a qualitative
approach, based on the bibliographic analysis based on books,
pamphlets, articles and other documentary materials that allow
developing a deep research based on the collection of information,
which allows deepening in the subject matter addressed.
Materials and Methods
The research was based on a qualitative approach that aimed to
analyze conflicts of competence arising in the applicability of
indigenous jurisdiction vis-à-vis ordinary jurisdiction in Ecuador. The
bibliographic-documentary method was used, which involved the
collection and analysis of various sources of information, such as
books, pamphlets, articles and relevant documents.
First, a compilation of documentary sources related to the topic of
indigenous jurisdiction and its interaction with ordinary jurisdiction
in the Ecuadorian legal context was carried out. These sources
included current legislation, jurisprudence, academic documents and
other relevant materials.
Subsequently, a detailed analysis was made of the documentary
sources collected. Key information, relevant data and arguments
related to the conflicts of competence between the two jurisdictions
were identified.
The data collected were interpreted and synthesized to identify
patterns, trends and relevant perspectives in relation to the topic of
study. Based on this analysis and synthesis of data, the article was
prepared with the main objective of analyzing conflicts of jurisdiction
between indigenous jurisdiction and ordinary jurisdiction in Ecuador.
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Finally, the article was reviewed and validated by experts in the field
of indigenous law and jurisprudence to ensure the accuracy and
consistency of the information presented.
This methodology provided a solid basis for the analysis of conflicts of
jurisdiction between the two jurisdictions in the Ecuadorian context,
contributing to the understanding of this complex legal and social
dynamic.
Results
Jurisdiction in Ecuador is regulated by the Organic Code of the
Judicial Function (hereinafter COFJ), thus Article 150 prescribes that
it is "the public power to judge and enforce what is judged, a power
that corresponds to the judges established by the Constitution and the
laws, and which is exercised according to the rules of competence."
(Código Orgánico de la Función Judicial, 2015, art.150). In other
words, competence becomes a power conferred to judges to administer
justice in the Ecuadorian territory and resolve disputes that exist in the
social sphere, under the condition of following the rules of
competence.
Guillén, (1992), states that there are three elements that are part of
jurisdiction:
Form: Refers to the presence of the parties, Judge and the procedures
established in the Law.
Content: The existence of a conflict or difference of legal relevance that
must be resolved by the Judges by means of a decision (sentence) that
has the quality of res judicata.
Function: It is the task, the end: to ensure justice, social peace and
other legal values through the application of law.(p. 123).
Jurisdiction, being granted by the constitution and the law, enjoys
intrinsic characteristics that nurture it and give it a social and legal
value; for example: power, since not all persons enjoy this prerogative,
because a person with a broad background, knowledge, experience and
ethical and moral values is invested with legal authority, occupying a
hierarchical rank within the judicial function and the administration
of justice.
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The power that comes from jurisdiction depends on the importance
that is intended to be given to each particular case, which according to
White. O, (2008) "there are four factors, the decision, documentation,
coercion and enforcement" (p. 26): the first factor is the decision,
which obliges the judge to issue a ruling recognizing which of the
procedural parties is right or wrong and is assisted by law.
The second factor is the documentation, considered as those material
means that intend to inform the judge of proven facts, that is to say,
they are the evidence that each of the procedural parties provide to the
process and judicial procedure that intends to reach a procedural
truth. This type of document at present, in spite of coming from the
responsibility of the procedural party, that is to say at the request of
the party, either by request of the latter through the request for judicial
access, does not interfere in that the judge of his own motion can
arrange the practice or presentation of different types of documents
that allow him to have a more appropriate and real knowledge of the
facts that are being litigated.
The third factor alluded to is coercion, that is to say that through the
authority of the judge, he can enforce the rights of the persons, or seek
suitable ways to obtain or gather information, for example, the search
and seizure of evidence. And finally, the fourth factor is the execution,
since it is the power of the judge to enforce the resolution that the same
or another judge has made. That is to say, to execute the sentence.
Jurisdiction can also be observed from the point of view of the
function, since the person to whom a jurisdiction is granted fulfills a
specific position which is to administer justice by guaranteeing and
protecting the rights of all holders and in observance of previously
established legal provisions, it should be mentioned that this function
is solely and exclusively attributed to the judges of the judicial
function.
However, jurisdiction is not absolute because Article 153 of the COFJ
indicates the grounds on which jurisdiction may be suspended.
Therefore, these may be absolute or relative: the first occurs when
there is a conviction. The second occurs when an order is issued calling
for trial until his innocence is ratified, license granted and suspension
of the rights of political participation. Within the latter, it is
questionable whether it corresponds to a definitive suspension or a
relative one, that is to say, until when such suspension lasts, regardless
of the time for which it was granted.
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Related to this is the definitive loss of jurisdiction for the following
facts:
By death; 2. By resignation from office, as soon as it is accepted; 3. By
expiration of the time for which he/she was appointed; however, the
functions of the judge shall be extended until the day on which the
successor enters into the effective exercise of the office; 4. By
possession of another public office; and, 5. By removal or dismissal, as
soon as the corresponding resolution becomes final. (Código Orgánico
de la Función Judicial, 2014, Art.154).
Competence, on the other hand, comes from "competer", which means
to correspond, to be incumbent upon something, i.e. the extent to
which jurisdiction is distributed among the various judicial
authorities, or also the power of a public official to administer justice
in a particular case. It is said then that competence is the limit of
jurisdiction (Artavia and Picado, 2020, p. 1).
The Constitution of the Republic of Ecuador, by creating the judicial
function as the entity in charge of administering justice, makes the
competence exist and be accredited in a certain judicial process, the
same that can be granted by reason of the territory, degree, matter or
person, following the rules of competence determined by the different
legal bodies in the different areas of law, in consideration of the
particularities of the act, fact or omission that is intended to be brought
to judicial knowledge.
Compliance with jurisdiction is subject to constitutional control as it is
the legal aptitude that allows compliance with the right to effective
judicial protection, due process, defense and legal security prescribed
in Article 11, No. 9; Articles 75, 76 and 82 of the Constitution of the
Republic of Ecuador in accordance with the provisions of the COFJ.
In this way, competence is usually assigned to the judge so that based
on the investiture he/she has, he/she can establish a decision
according to the claims of the procedural parties, within this strictly
procedural context it can be verified that competence observes and
occurs under two optics, considering that:
The concept of competence is thus displaced by a phenomenon of
metonymy: that is to say, from a subjective measure of the powers of
the judicial body, it is understood, in practice, as an objective measure
of the matter on which the judicial body is called upon to rule, thus
understanding the competence of a judge as the set of causes on which
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he can exercise, according to the law, his fraction of jurisdiction
(Gabuardi. C, 2008, p. 89). (Gabuardi. 2008, p. 89).
In this sense, the competence lasts as long as the process persists, until
a resolution or sentence is reached. "The competence, to know a
process, involves jurisdiction, but whoever exercises the latter is not
qualified to know indistinctly all the processes" (Azula,2019, p. 133).
Jurisdiction has been confused with jurisdiction, but each of these
terms means and encompasses different contents, characteristics and
elements, although they are interrelated. Jurisdiction is understood as
an attribution that has been conferred to the authorities for the
knowledge of different acts or facts in order for them to enjoy legal
validity. While jurisdiction "can be conceived as the power of the
judicial authority" (Vásquez and Barrios, 2018, p. 5). From this
statement it is understood that for a judge to be competent to hear a
particular case, he or she must have jurisdiction, guaranteeing from
this section the validity of the proceedings.
Ordinary and special jurisdiction
Ordinary jurisdiction, being a type of conventional jurisdiction that
regulates the controversies or problems that occur in people's daily
lives, is usually a type of justice to which most Ecuadorians are
subjected, for this reason it has normative specifications for each
specific case, since it is based on principles and strong rules to regulate
social coexistence. (Fernández, 1999).
Therefore, the ordinary jurisdiction is established under law;
therefore, it has different normative bodies that help the solution of
conflicts within the competence and justice; that is, the power that the
competent authority has to judge or know all the causes or lawsuits
that are presented. The ordinary jurisdiction has had greater strength
for the administration of justice that has the judicial function, being a
type of justice where people are subjected to comply with the necessary
requirements to be sentenced.
The ordinary jurisdiction being the power granted to the judge to
administer justice allows the birth of two ways: legal - conventional
and agreement, i.e. are governed by procedural principles, for
example, there is no penalty if there is no law, which is an aspect that
reflects the principle of legality, for it in the ordinary justice by express
mandate of the law must follow a procedure according to the particular
case. The affected party begins by proposing his complaint, quellera or
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particular accusation before the competent judicial authority, who in
a legal term must qualify the complaint if it complies with each and
every one of the requirements, otherwise it will establish a new term
to complete it being susceptible to be qualified or filed in the event of
non-compliance with the request.
When there is a conflict of competence in the ordinary jurisdiction, it
is the provincial or national court that decides which judicial authority
is competent to hear and resolve a specific case. Being the scope of the
jurisdictional power that allows the competence to be fulfilled, because
it arises from the obligation of the judges to comply with the functions
that have been entrusted to them by the constitution and the law.
In the order of qualification of the complaint, the judge orders that the
defendant be summoned in order to assert his right to defense with the
answer to the complaint, and the opposing party is also summoned to
make a statement on the matter, then the judge sets a day, time and
date for the hearing, where he will hear the parties in accordance with
the structure of the hearing depending on the procedure that has been
selected. Based on all the proceedings, during this judicial proceeding
a sentence will be issued orally, notifying the parties in writing so that
they may file an appeal.
The special jurisdiction has been designed for the resolution of specific
and concrete conflicts. Within this type of jurisdiction is the special
indigenous jurisdiction which, in Ecuador, also seeks to access and
administer justice from the community, people or national, since they
have independence and autonomy that allows them to make
appropriate decisions to guarantee the rights of their indigenous
brothers. "For indigenous peoples it is no longer a matter of fighting
for the recognition of their cultural specificity, but of fully enjoying
their collective rights and exercising their jurisdictional competence"
(Zambrano, 2003, p. 19).
There is an idea of justice pursued by the indigenous jurisdiction,
namely:
1. The relationship between cosmovision and territory with forms of
social control and justice practices.
2. The acceptance of conflict as something natural and its interest in
preventing it and dealing with it preferably in an amicable manner,
instead of resorting to repressive and punitive measures.
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3. Unique conceptions of counseling, as a practice for healing and
redressing offenses.
4. Forgiveness as a prevention of revenge or violence, as a way of
transcending guilt and as a policy of friendship.
5. The strengthening of ethnic justice through a process that combines
the persistence of ancestral conceptions and the appropriation and
resignification of state legal norms.
6. Material compensation for the damage or offense caused as a means
of redistribution of goods and at the same time as strengthening or
reestablishing social alliances.(González, 2018, p.36)
In this way, the indigenous jurisdiction tries to solve the problems that
exist in their environment by applying their customs, traditions,
culture and ancestral knowledge that have been maintained since
previous years and that have reached a legal value at present, making
their identity remain.
The indigenous jurisdiction does not arise from the law, but from the
will of the indigenous communities, peoples or nationalities according
to their customs. It should be emphasized that each indigenous
community has its own procedure for the solution of internal conflicts,
there are those that do it in writing and others do not, the procedure
depends on each community.
A trial procedure is then established that is adopted by most of the
communities, and for others it serves as an inspiration or example so
that the indigenous jurisdiction can become effective.
This originates from the first step to be taken by those affected: to
inform the leaders of the council orally and clearly of everything that
has happened. Thus, the WILLACHINA is an act by which the offended
party formulates the petition for a solution to the Cabildo, a petition
that will later be the main topic of resolution in the assembly. The
victim or any person, orally, exposes the issue before the indigenous
authorities; The TAPUYKUNA, is for the investigation of the problem
with a variety of diligences such as the ocular inspection or verification
of the fact in order to establish the magnitude of the event; The
CHIMBAPURANA, for the clarification of the facts before the
assembly of the community. At this stage, those responsible for the
event are identified and a resolution is issued, which is recorded in the
minutes. The accused has the right to legitimate defense; The
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KILLPICHIRINA, is the stage where sanctions are imposed depending
on the seriousness of the facts, such as fines, the return of the stolen
objects plus compensation, the purification bath with cold water and
nettle, the whipping or lashes, and communal work; exceptionally the
expulsion from the community is applied based on the internal
regulations of the community. The execution of the sanction, called
PAKTACHINA, is where the penalty is executed by men and women of
good reputation and honesty, they are: parents, godparents,
grandparents and indigenous authorities, such as the president and
the board of the community, elected and recognized by the assembly
of the community. (Díaz, et, al., 2016. p.12)
The indigenous jurisdiction has some general characteristics among
which we can distinguish:
a) The authorities are specific to each community, people or
nationality.
b) It has its own special procedure.
c) Application of common law rules, based on the legal systems of each
people or community.
d) The sanction is of a social, curative nature and allows for the instant
reintegration and rehabilitation of the accused.
e) Participation and collective decision of the community to resolve the
conflict.
f) It is free of charge.
g) It is oral and in its own language.
h) The immediate restitution of communal or collective harmony and
peace (Tiban. L, 2023, p.5).
The indigenous jurisdiction differs from the ordinary jurisdiction
because at the moment of establishing sanctions or resolutions each
one of them imposes something different, for example, in the case of
animal theft, typified as abigeato in the Código Orgánico Integral Penal
(hereinafter COIP), the indigenous jurisdiction retains the suspect or
participant in said fact, whips him with nettles, beats him with toys or
straps, bathes him in ice water, and locks him in naked rooms until the
main authorities of the community can resolve what is going to be done
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with the member of the community that is going to be arrested, They
beat them with toys or leashes, bathe them in ice water, and lock them
in naked rooms until the main authorities of the community can decide
what to do with the member of the community that did not respect the
peaceful coexistence of all the inhabitants, since he caused an alarm
and the rest of the inhabitants maintain that the person in question
was the one who on previous occasions stole the animals.
To this end, the leaders hold a meeting among those involved, give way
to the word of the perpetrator or any of his relatives and likewise do
the same with respect to the victim, who offer ways of solution among
them is the fact of returning to each of the owners what was stolen in
a considerable time, establishing that while the obligation is not
fulfilled that person will remain under orders and control of the
indigenous justice system. The document they sign is simple, without
protocols or legal formalities.
Through this type of actions, the indigenous jurisdiction tries to set an
example to the rest of the people, making them think about this type
of conduct, which is reprehensible and deserves to be sanctioned.
Conflicts of competence
From indigenous jurisdiction to ordinary jurisdiction conflicts arise
that cannot be solved due to the lack of specifications on the scope of
indigenous jurisdiction, considering the reality in which they live and
the thinking of the authorities that is framed within the will of the
community, people or indigenous nationality, through customary law
that by its nature and the intrinsic value of the custom is usually not
written, but oral. In this way, legal pluralism leads to frequent
conflicts:
It manifests itself as a dispute over the legitimacy of the exercise of
justice in a given geopolitical space, where the indigenous jurisdiction
disputes with the ordinary jurisdiction over concrete cases, since the
peasant community intends to apply its norms and procedures, while
the ordinary justice system, as state legality, ignores the resolutions of
the indigenous justice system. A correlation of forces between
indigenous and ordinary jurisdiction is noticed; in that sense,
hierarchical equality, although recognized by the constitution, in
praxis, is not visible, because the subordination of the state legal model
is still in force within the communities that exercise their own
justice.(Luna, 2016,p. 254)
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Within this context, it is important to highlight that according to the
improvement of the Law, there are some legal minimums that the
indigenous jurisdiction must observe in order to respect the
application of Human Rights, among which the following can be
distinguished:
a) Right to Life: Life is an inviolable right of every human being.
Indigenous law does not recognize the death penalty, therefore,
the sanction cannot be death.
b) Right to due process: as in any process, the parties have the right
to defend themselves either personally or through third parties. In
addition, due process has to do with complying with all principles,
norms and rules with fairness and impartiality.
c) Right to freedom from torture, slavery and cruel treatment: this is
a right of all persons, therefore, laws prohibit this type of
treatment. In this sense, any sanction will be monitored to ensure
that it does not fall within this prohibition.
d) Right to freedom from physical and psychological aggression: this
right has been the most questioned by society and by human rights
defense institutions, because the facts have been analyzed outside
the context of the cultural and social cosmovision of the
communities of indigenous peoples (Tibán, 2023, p. 4).
Within the indigenous communities, peoples and nationalities,
ordinary justice is a culture alien to that which is applied within the
indigenous territories, because this type of justice is governed by
specific rules and procedures and technical terms of law that are
difficult to understand.
The conflict between indigenous and ordinary justice is part of the
legal pluralism prescribed by the Constitution of the Republic of
Ecuador, however, it has been more affected by the migration of
indigenous people to the big cities, which has involved them in another
social role and changed their life expectancy, including their customs
and traditions.
Thus, in the treatment of various cases of administration of justice, one
wants to overcome the other, since the Constitution in Article 171, inc.2
in its core part prescribes that: "The law will establish the mechanisms
of coordination and cooperation between the indigenous jurisdiction
and the ordinary jurisdiction" (Constitution of the Republic of
Ecuador, 2008, Art. 171, inc.2). (Constitution of the Republic of
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Ecuador, 2008, Art. 171, inc,2), actions and obligations that are not
always fulfilled, due to the fact that the current conflicts arise with
respect to protected legal assets and not to minor social behaviors that
deserve to be reprimanded with the sole application of indigenous
justice.
Conflicts between these two justice systems arise at the moment of
guaranteeing protected legal goods and rights legally established in the
national legal system, since there are occasions when the indigenous
justice system wants to solve serious problems by violating human
rights, one of them being the right to life. This is due to the fact that
they do not follow the due process that must be applied to both
ordinary and indigenous justice, since the fact of administering justice
does not only mean access to a sentence, but also in establishing
essential guarantees that must be given to the holder of the right, such
as: to protect, repair damages and obtain a fair decision by the
authorities applying the law.
In view of the above, it should be understood that the ordinary
jurisdiction has established clear rules for its application in the
national territory, while the indigenous jurisdiction still has a lot of
work to do on this issue, which is the responsibility of its main leaders
and authorities;
It is important to point out that, according to the preceding analysis,
there is no special law in force in Ecuador regarding indigenous
jurisdiction, 27 but rather a set of scattered provisions that serve to
guide the way in which probable conflicts between the decisions of
indigenous justice and human rights should be resolved. These are
provisions that tangentially refer to different aspects of the problem
without establishing a comprehensive solution at the legislative level,
which does not mean that the existence of such a law is the only way to
legally resolve the referred conflicts. (Yoel, et al., 2016, p. 18)
That is to say that the indigenous jurisdiction is not properly
structured to put limits to the actions that arise within the indigenous
communities, peoples and nationalities. Because so far there are "four
requirements to use it: that the person involved is indigenous, that the
act, fact or omission has been developed within a community,
indigenous people or nationality, that the persons involved agree to
submit to indigenous justice and that the problem to be solved is
within the competence of indigenous justice". (Días and Antúnez,
2016)
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In order to avoid conflicts of competence between the ordinary and
indigenous jurisdiction, an infra-constitutional regulation should be
created for the latter to regulate its actions, but above all, it should be
compatible with the rights to effective judicial protection, due process
and legal security as fundamental human rights, inherent to dignity,
which have been susceptible to violation or infringement due to the
lack of application of the regulations.
Development of indigenous jurisdiction in the constitutional
process
The Constitution of the Republic of Ecuador, due to the conception of
the State as intercultural and plurinational, allows the special
indigenous jurisdiction to take greater prominence due to its
recognition, not only based on social concurrence, but also on that
egalitarian, protective and guaranteeing scope that comes from the
current of neoconstitutionalism or modern constitutionalism. This
constitutional recognition prohibits;
The double judgment non bis in idem, recognized in Article 76,
numeral 7, literal i of the Constitution Reference that is also included
in Article 344 letter "c" of the Organic Code of the Judicial Function,
as well as in Article 4.9 of the Organic Integral Penal Code, which
expressly states the prohibition of double judgment in cases that have
been resolved by the indigenous jurisdiction. (Santa Cruz, 2020, p. 7).
Under this constitutional protection the indigenous jurisdiction makes
the indigenous communities, peoples and nationalities enjoy
autonomy, allowing them to know and judge internal acts or facts of
the indigenous communities in a definitive way, for this they will count
on the collaboration and cooperation of the ordinary jurisdiction,
which according to Llasag, (2007) "has the objective of not violating
the legislative and jurisdictional autonomy recognized in favor of the
indigenous collectives" (p. 210), allowing the institutionalization of the
indigenous jurisdiction that must be respected by any public judicial
authority or not, and without any type of actions that may put at risk
the validity of all the acts, sentences and judgments of the indigenous
communities, which must be respected by any public judicial authority
or not. 210), allowing the institutionalization of the indigenous
jurisdiction that must be respected by any public judicial or non-
judicial authority and without any type of actions that may jeopardize
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the validity of everything acted, sentenced or resolved through this
jurisdiction.
Customary procedures have at least eight characteristics: a)
Willachina. Formulation of the petition; b) Tapuykuna. Investigation
of the problem; c) Chimbapurana. Referred to as face-to-face
confrontation or interview; d) Killpichirina. Imposition of the
sanction; e) Allichina. Repentance of the aggressor; f) Kunana. Advice
to the aggressor; g) Paktachina. Execution of the sanction; and, h)
Chisqui Yahsca. Cleansing or purification of the aggressor (Poveda,
2007, p. 185).
This type of proceedings do not allow the interference of the ordinary
jurisdiction, however, this type of jurisdiction as an exceptional case
and exception provides order and constitutional control, forcing that
all decisions that have been ventilated under the indigenous justice
system are adequate and do not violate or infringe human rights.
The constituent implicitly recognized: a) that there is a legal procedure
different from that established in the ordinary justice system; b) that
such a norm obliges the indigenous authority to apply the procedure
in accordance with the customs or customary law of their people, and
c) recognizes the right of the accused to demand compliance with the
procedure they have been practicing ancestrally. (Colmenares, 2006,
p. 10).
However, this aspect has only been embodied in a body of law, because
the COFJ is often not observed. Therefore, the following must be taken
into account:
The Ecuadorian Constitution delegated to the legislature the creation
of a law on coordination and cooperation between indigenous and
ordinary jurisdictions, which, to this day, is a pending task of the
National Assembly, which has failed to move from debate to the
enactment of a law that adequately addresses this issue. (Santa Cruz,
2020, p.7).
Due to this legal vacuum, it has been the National Court of Justice or
the Constitutional Court of Ecuador, which have established triple
reiteration or binding sentences so that cases can be resolved when
there is a conflict of competences and on the actions of the indigenous
jurisdiction itself.
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It should be borne in mind that indigenous coexistence is based on the
following basic principles
in a worldview that recognizes and respects the relationship man-
nature and society for this reason, there is no such classification or
division by subject, thus, the competent authority, with the procedure
established within each community, has the power to resolve all types
of conflicts that occur within the indigenous society. (Paz. M, 2018, p.
10)
This happens because there are no provisions that help indigenous
customary law to oversee the strict compliance and enforcement of the
rights enshrined in the Constitution.
Analysis of case law
The following is an analysis of a ruling on a protective action filed
before the Constitutional Court of Ecuador to resolve the application
of indigenous justice in the La Chocha Community belonging to the
Panzaleo sector, Salcedo canton, Cotopaxi Province.
Table 1
Analysis of the judgment
Ruling: N o 113-14-SEP-CC- Case 0731-10-EP Constitutional Court of Ecuador
Related legislation: Constitution of the Republic of Ecuador. Organic Code of
the Judicial Function.
Articles cited in the judgment: The plaintiff considers that the
constitutional rights violated are Articles 10, 11 paragraphs 3, 4 and 5; 57
paragraphs 1, 9 and 10; 76 paragraph? literal i and 171 of the Constitution of the
Republic; Articles 343, 344 literal a, b, e, d and e; 345 and 346 of the Organic Code
of the Judicial Function, and the general provision of the reforms of March 201 O,
to the Code of Criminal Procedure.
Action / Infraction: Extraordinary protection action
Presented by: Victor Manuel Olivo Palio
Against: Indigenous justice decisions adopted on May 16 and 23, 201 O,
belonging to the Panzaleo people, of the Kichwa nationality, of the province of
Cotopaxi, in relation to the murder of Marco Antonio Olivo Palio.
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Source that generated the claim: The plaintiff states that according to the
minutes of the resolution made by the indigenous authorities of the Community
of La Cocha, on Sunday, May 9, 2010 at about 7:00 p.m., in the urban center of
the Zumbahua parish, of Kichwa-speaking indigenous population, Pujili canton,
province of Cotopaxi, the murder of his brother Marco Antonio Olivo Palio took
place.
Based on articles 171 of the Constitution of the Republic and 343 of the Organic
Code of the Judiciary, the indigenous authorities of the communities of La Cacha
and Guantopolo heard the case. On Sunday, May 23, 2010, they established the
guilt of the five indigenous youths of the Guantopolo community and imposed
sanctions in accordance with indigenous justice.
That this decision has generated diverse reactions in the media and in Ecuadorian
society, and the interference in indigenous justice by the State Attorney General,
who on May 19, 2010 attempted to arbitrarily enter the indigenous community of
La Cacha, in order to rescue one of the main people involved in the death of Mr.
Olivo.
The Minister of Government and Police has also tried to use public force to rescue
those involved and the Minister of Justice requested that legal actions be initiated
against the indigenous leaders, who were arrested on June 4, 2010 and
subsequently released by the Court of Justice of Latacunga at that time, due to the
"amparo de libertad" (protection of liberty) filed. He points out that in previous
cases the judges and prosecutors have acted within the framework of respect,
coordination, cooperation, and in compliance with constitutional and legal norms
have accepted the decisions of the indigenous jurisdiction. He cites in his lawsuit
Article 10, paragraph 2 of ILO Convention 169, referring to the application of the
sanctions of the indigenous cosmovision, the nettle, the cold water bath, whips,
etc., which represent the philosophy and cosmovision of indigenous justice, which
according to "the Constitutional Court of Colombia, do not constitute an attack on
fundamental human rights".
He states that the five responsible for the murder submitted themselves to the
indigenous justice system of their own free will and accepted that the indigenous
legal system be applied to them, and that they tried them under the ordinary
jurisdiction, for which they were prosecuted under the ordinary justice system,
which evidences "a process of double jeopardy". That as the brother of the
deceased, he voluntarily requested the intervention and action of the indigenous
authorities of La Cocha, together with that of the community of Guantopolo,
where the youths involved belong, which, in application of the provisions of
articles 171 of the Constitution of the Republic, 343 of the Organic Code of the
Judicial Function and 8, 9 and 10 of Convention 169 of the ILO, solved the case, a
resolution with which the relatives of the deceased agree.
Purpose of the sentence: To answer the following questions:
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l. Did the indigenous authorities adopt decisions under authorized competencies,
applying their own procedures, within the constitutional parameters and the
protection of human rights recognized by international conventions?
2. Did the institutions and authorities respect the indigenous community involved
in the trial process under review, especially the decisions of the indigenous justice
system?
Right violated: life
Analysis of the judge's motivation: The Constitutional Court of Ecuador
upholds three aspects of motivation:
1.- Regarding the competence of the indigenous justice system. - Therefore, based
on the specialized studies and an intercultural interpretation, this Court finds
that, in the specific case, the General Community Assembly is the competent
authority to hear and resolve cases of internal conflicts that affect the community
legal assets of the Kichwa Panzaleo peoples. This collective nature of the judging
entity in the indigenous justice process allows us to affirmatively answer who is
the authority that legitimately administers indigenous justice, but it also allows
us to carry out the constitutional control regarding the responsibility and
obligation of this authority to ensure that its actions are subject to its norms,
procedures and its own law, as well as to the Constitution and international
human rights conventions.
Regarding the protection of rights. - Without being able to speak of interference
or diminution of the right of jurisdictional autonomy of the indigenous
communities, peoples and nationalities, in the event that a crime against life
occurs within an indigenous community or territory, the State guarantees, as in
the rest of the national territory, that it will be judged and punished in accordance
with the laws of the Ordinary Criminal Law. In such a way, and by virtue of Article
66 numeral 1 of the Constitution of the Republic, the knowledge of all cases of
death will always correspond to the State, and consequently, it is incumbent upon
the ordinary criminal justice system to investigate and carry out the
corresponding investigations, either ex officio or at the request of a party, and to
judge and punish the punishable act in accordance with the Constitution, the
international instruments and the laws of the matter, taking care to apply the due,
timely and prior coordination mechanisms with the indigenous authorities
concerned in the respective case, in order to determine the person or persons
responsible for the life-threatening acts.
3.- Regarding journalistic performances. If society does not have complete,
contextualized, plural and verified information, it cannot know and understand
the specific reality and, on the contrary, it can be induced to misunderstanding
and discriminatory prejudice, so that in cases like this one, subject to a particular
constitutional protection, and given its special situation and socio-cultural
characteristics, it is essential that all information disseminated in the media, as
well as by public authorities, have the participation of experts and members of the
community, and that its dissemination be framed within the framework of the
interculturality that our Constitution mandates and recognizes.
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Legal Effects: Infringement of the right to the inalienability of the right to job
stability.
Source: No 113-14-SEP-CC- Case 0731-10-EP. Constitutional Court of
Ecuador
Prepared by: Jessica Supe
The Constitutional Court of Ecuador holds that indigenous justice
administers justice based on customary law and legal pluralism,
because it is based on the application of their traditions and the
maintenance of their cultural identity, stating that the acts to
reprimand the guilty such as lynching, nettling, and beatings do not
mean an attack on the rights of citizens, since they seek to cause shame
in the accused to amend his mistake, apologize and improve his life. In
these rituals the maximum authority of the community and the
relatives of the two parties involved in the conflict are forgiven and
advised so that this type of negative acts do not damage the collective
coexistence of the community, people or indigenous nationality.
In the words of Añazco Aguilar, Nadia Sofia del Cisne (2020):
Therefore, it is clear that the Constitutional Court, in several of its
rulings, has ruled on the application of indigenous justice, recognizing
in several of the judgments reviewed, as determined by the
Constitution, the procedures of indigenous communities, peoples and
nationalities based on their ancestral traditions. Although there are
problems due to language, different interpretations of concepts, scope
and limits of indigenous law, in several of the sentences analyzed it is
evident that the application of indigenous law, as stipulated in the
Constitution, has been guaranteed (p. 66).
The first question to be resolved by the Constitutional Court of Justice
on Did the indigenous authorities adopt decisions under authorized
competences applying their own procedures, within the constitutional
parameters and the protection of human rights recognized by
international conventions? It allowed to establish that the appropriate
authority to hear and resolve cases of indigenous justice is the General
Assembly of the Indigenous Community. In the present case, it was
this organization that learned about the murder of Mr. Marco Olivo
Palio and after 15 days of investigations and inquiries, it met to
determine the sanctions to which the five participants were exposed:
The compensation of five thousand dollars that are donated to the
UNOCIC organization to be invested in community works; the
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prohibition of the entry of groups of "gang members" to community
parties; the expulsion of the youth from the community for two years
with the obligation of the family members to rehabilitate them;
physical sanctions and the aggravated sanction to the material
perpetrator of the act. (No 113-14-SEP-CC- Caso 0731-10-EP.
Constitutional Court of Ecuador, 2014, p.20).
Under this consideration the Constitutional Court of Justice states
that, although it is true, the indigenous justice has an existence since
before Ecuador was formed as a republic, since, at that time the
recognition was endowed by the king in times of monarchism, which
with the passage of time was perfected indicating that the Constitution
of the Republic of Ecuador of 2008, by recognizing as a constitutional
state of rights and social justification, plurinational, intercultural and
unitary, mentions that these three aspects are interrelated, leads to the
sovereignty and democracy of the country, and in no way affect the
rights recognized in the constitution and international human rights
instruments.
Emphasizing that indigenous justice has its own essence, since it is
based on the application of ancestral knowledge and its own
disciplinary procedure. Therefore, it was competent to judge the
alleged case. It is important to recognize and value the diversity of
justice systems that exist in the world, and indigenous justice is a clear
example of this. Its uniqueness lies in its foundation in ancestral
knowledge and its own disciplinary procedure. By allowing indigenous
communities to apply their own forms of justice, respect for their
autonomy is promoted and their knowledge accumulated over
generations is recognized.
Regarding the sanction that was carried out through the application of
indigenous jurisdiction, it is important to emphasize two aspects on
which the court pronounced itself: the first corresponds to the fact that
the authorities of this jurisdiction did not present in writing the
resolution of the controversy that came to their knowledge, which is
not accepted, because part of the legal pluralism that is guaranteed in
a State of rights in the acceptance of the indigenous communities',
peoples' and nationals' own law, but not the State's interference as they
want to show; and the second aspect refers to the fact that was subject
to sanction, where the court alleges that there were no procedural
parties, and that the resolution taken, although it is true, was made by
the competent authorities of the indigenous jurisdiction, were only
considered on the basis of the harmonious relationship, peace and
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social coexistence among the members of the community, precisely
between the relatives of the victim and the aggressors, but it was not
directly about the murder, but rather, about the bad behavior of the
members of the community, in this sense, it cannot be evidenced any
type of integral reparation in favor of the relatives of the victim, on the
contrary, a compensation was fixed in favor of the indigenous
community.
To the second question, which deals with Did the institutions and
authorities respect the indigenous community involved in the trial
process under review, especially the decisions of the indigenous justice
system? The Constitutional Court of Ecuador, respecting the
institutionality of justice, holds that the right to life prescribed in
Article 66 of the Constitution of the Republic of Ecuador and Article 3
of the Universal Declaration of Human Rights is inviolable and that it
is the responsibility of the Ecuadorian State to guarantee this right and
to punish when it has been violated or infringed.
It should be emphasized that the indigenous justice system only acts
to regulate the behavior of the human being in the community, that is
to say, under its own customary law, an aspect that is evidenced by the
resolution issued by the Indigenous Community Assembly. Therefore,
the ordinary justice and the pre-procedural actions carried out by the
State Attorney General's Office is correct, since it complies with the
legal norms of the national legal system.
The double judgment in the present case does not exist, although it is
true that two types of jurisdiction were used, the ordinary and the
special in the indigenous sphere, this because the indigenous justice
system agreed on a compensation in favor of the community; and not
the victim's relatives, since the indigenous jurisdiction cannot resolve
matters that threaten protected legal assets, which in this case was life,
and therefore, it must be considered that it acted in observance of the
constitutional principles of great value, non bis in idem and iura novit
curia to provide the guarantee and protection of all national and
international rights to all those involved, without any of them being
left defenseless or being denied due process, which is the source of
both ordinary and indigenous jurisdiction.
The indigenous jurisdiction dates back to the history of man himself
on the face of the earth, since according to their beliefs, traditions and
cultures they forged their ancestral knowledge to direct the good living
within the community, people or indigenous nationality. Thus, their
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actions are focused on their own law and their jurisdiction must
respect, comply with and enforce the rights recognized in the
constitution and the law.
The indigenous jurisdiction is governed by customary law, however,
has certain limits of action that are aimed at strict respect for the rights
enshrined in the Constitution of the Republic of Ecuador and
international human rights instruments. In this way, the position it
pursues is similar to the ordinary jurisdiction, which cause the birth of
conflicts of competence, since, both jurisdictions having this
attribution conferred by the constitution and the law have the power
to decide on acts and facts that arise in their territories submitting
them to the decision of their own rule and form of conflict resolution,
according to the will of the plaintiff to be governed by a form of justice
either ordinary or indigenous.
The legal pluralism in Ecuador since the 2008 constitution is a new
paradigm that appears from the current of neoconstitutionalism, and
from the section of pluriculturalism and plurinationality making the
indigenous jurisdiction has the same powers as the ordinary
jurisdiction, with certain restrictions subject in the same rule, under
the only difference that the first is governed by customary law and the
second by common or conventional law.
Thus, the indigenous jurisdiction is competent to hear cases of
conflicts in the community, but it cannot establish any sanction when
there is a violation or violation against protected legal rights such as
life. This right, being a fundamental human right and inherent to the
dignity of the person, must be guaranteed by the State and in this
context the ordinary justice system must assume the pre-procedural
investigation to establish the responsibility of the persons involved in
the commission of the crime, reaching a sentence in accordance with
the law.
Therefore, to avoid conflicts of competence between ordinary and
indigenous jurisdiction, it is important that the authorities and leaders
of the communities respect and observe the cooperation and
collaboration that should prevail when there are solutions to problems
that tend to regulate the peaceful coexistence in society, thus nurturing
the use of the culture of peace under the strict observance of the
Sustainable Development Goals scheduled until the year 2030,
complying with Goal No. 16 which deals with peace, justice and strong
institutions, considering that its goals are as follows:
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16.1 Significantly reduce all forms of violence and the corresponding
mortality rates worldwide;
16.2 Put an end to abuse, exploitation, trafficking and all forms of
violence and torture against children;
16.3 Promote the rule of law at the national and international levels
and ensure equal access to justice for all;
16.4 By 2030, significantly reduce illicit financial and arms flows,
strengthen the recovery and return of stolen assets, and combat all
forms of organized crime;
16.5 Significantly reduce corruption and bribery in all its forms
16.6 To create effective and transparent accountable institutions at all
levels;
16.7 Ensure inclusive, participatory and representative decision-
making at all levels that is responsive to needs;
16.8 Broaden and strengthen the participation of developing countries
in global governance institutions;
16.9 By 2030, provide access to legal identity for all, including through
birth registration;
16.10 Guarantee public access to information and protect fundamental
freedoms, in accordance with national laws and international
agreements;
16.a Strengthen relevant national institutions, including through
international cooperation, to build capacity at all levels, particularly in
developing countries, to prevent violence and combat terrorism and
crime.
16.b Promote and enforce non-discriminatory laws and policies for
sustainable development (UN, 2023).
That is to say that, through this objective, the actions of the indigenous
jurisdictions are projected in the construction of a functional justice
system. This can be achieved with an unquestionable commitment
between these two jurisdictions and the creation of a specific law to
regulate this action.
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Conclusions
One way to solve the conflicts of competence between the ordinary and
indigenous jurisdictions would be for the National Assembly, within
the framework of its competences and attributions, to establish a law
that regulates the principle of cooperation and coordination between
these two jurisdictions, in order to guarantee, within legal pluralism,
the rights to due process and legal security, which are legally
recognized at the national and international level and must be
complied with in accordance with the law.
The ordinary jurisdiction has established clear rules for the application
of justice in the national territory, while the indigenous jurisdiction
still has a lot of work to do with respect to the competence it must
comply with, this being the responsibility of its main leaders and
authorities who, in order to apply their competence, must comply with
the limits and powers they have under their jurisdiction, without
falling into non-observance and violation of the rights of the people
that are guaranteed in the constitution.
The indigenous jurisdiction has a recognition that is presented by the
Andean and indigenous worldview, since it focuses on the explanation
of the material and spiritual reality that each people, community or
indigenous nationality has, for the application of this justice is strictly
based on beliefs and ancestral knowledge, the human being is part of
the community and that there is respect for the pacha mama or mother
nature. Thus, its recognition is established in the Constitution of the
Republic of Ecuador.
In the analyzed sentence it could be evidenced that the application of
the indigenous jurisdiction for the murder of Mr. Olivo was not enough
because the procedural parties were not given an adequate sanction,
from this point of view, it can be stated that in the matter of the
solution of the conflict it was based on the harmonic coexistence
within the community, However, it was not an attempt to establish a
sanction for the violent act that caused the death of the
aforementioned citizen, since there was no sentence to repair the
damages caused by this crime, for which reason, there is no
impediment for the ordinary jurisdiction to establish the criminal
liability for the five participants in the criminal act.
Within the Codification of the Law of Organization and Regime of
Communes, regulated in 2004, it is possible to identify that the
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indigenous authority is the one that has been nominated and
appointed by the indigenous people, community or nationality,
therefore, from this selection it becomes the official organ of the
community and becomes part of the cabildo, However, this
designation is not sufficient when there are no fully defined
parameters, guidelines and goals for the operation of the indigenous
jurisdiction, which generates conflicts of competence with the
ordinary jurisdiction.
This has been witnessed because in the course of time and the updates
of the changing society and the same globalized world, each day has
had to be coupled more to the demands, needs and interests of the
right holders, however, the recognition of legal pluralism in the
supreme norm has been a great advance to ensure the equality of all
Ecuadorians. However, this legislative fact has not helped to regulate
the norms of community or collective coexistence in accordance with
the needs and acceptance of indigenous peoples, communities and
nationalities, since they consider that the ordinary jurisdiction, proper
to them, is applied for internal conflicts and do not accept the
interference of any other aspect that is not of this nature.
At present, it is the members of the communities themselves who do
not feel comfortable with the provisions and judgments that are given
within the indigenous jurisdiction, so that some people say that by
submitting to the ordinary jurisdiction, all their rights are guaranteed,
respected and protected, although such cases occur more in family
matters such as alimony, this is due to the certainty and reliability that
have the ordinary justice, since, in case of non-compliance the
sanctions by this route are more severe and in one way or another force
them to be fulfilled.
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