The Multicultural Constitution
Daniel Bonilla
Chapter Two The National Constitutional Assembly, the 1991 Constitution and the Tension Between Cultural Unity and Cultural Difference
In the previous chapter, I analyzed Taylor, Kymlicka and Tully’s proposals to recognize and accommodate cultural diversity. I argued that their views present some theoretical instruments that are useful for understanding the origins and dynamics of the contemporary debate on how the state should recognize and accommodate cultural difference. Taylor’s genealogical analysis of the politics of recognition, Tully’s examination of the homogenizing character of the categories that define modern constitutionalism, and Kymlicka’s reflection on the connection between culture and freedom, for example, are tools that no doubt help us to comprehend the main components of the contemporary political debate about the relationship that the state should have with the cultural communities coexisting within its boundaries. Yet, in the previous chapter I claimed as well that the normative proposals offered by these three authors ultimately fail to recognize and accommodate cultural diversity and to move beyond conflicts among liberal communities. Taylor, Kymlicka and Tully’s political models, I argued, are trapped by their commitment to liberal values. The only cultural communities that these authors’ views can recognize and accommodate are those already committed to individual rights and democratic values. For these philosophers, illiberal cultures should be liberalized and hybrid communities should always give priority to the liberal elements of their traditions. For them, the only cultural differences that ought to be recognized are those remaining after all cultures have converted to the dominant political perspective of our time: liberalism. In this chapter, I will continue the analysis of the tension between cultural difference and cultural unity that cuts across the work of Taylor, Kymlicka and Tully. Yet, the precise object of study will vary. From political philosophy I will turn to constitutional law; more precisely, to the constitutional framework that governs intercultural relations in Colombia. I will examine the origin and content of the projects on multicultural issues presented during the Constitutional Assembly. From these projects emerged the tension between cultural diversity and cultural unity within the 1991 Constitution as well as the basic components that structure this conflict of values. In the first section of this chapter, I will present the political and social situation that motivated Colombians to convene a Constitutional Assembly to restructure the basic institutions of the country and the way this political and social situation influenced the Assembly’s debate about multicultural issues. The objective of this section is not to offer an in depth account of the origins of the Constitutional Assembly. Its aim is to present the political and social context in which the Assembly’s decisions about how to regulate intercultural relations were taken. In the second section of this chapter, I will examine the reform proposals presented by Francisco Rojas Birry, Lorenzo Muelas, and Alfonso Peña to the Constitutional Assembly. The reform projects of these three Indian representatives framed and guided the Assembly’s discussion about how to recognize and accommodate cultural difference. I will argue that the projects presented by these three delegates to the Constitutional Assembly pull in two opposite directions: equality and political unity, on the one hand, and difference and political autonomy, on the other. I will also argue that the projects presented by Rojas Birry, Muelas and Peña do not offer any coherent view of how to solve this conflict of values. These projects sometimes demand that political autonomy and difference be privileged over political unity and equality. Yet, at other times these projects adopt the opposite principle, demanding that the latter be prioritized over the former. The principles simply conflict. No compromise is offered; no allocation of jurisdictions for the priority of each principle is presented. Practice is as conflicted as philosophy. However, at the same time, practice makes important contributions to philosophy. On the one hand, the NCA’s proposals and discussions on multicultural issues emphasize that history should be taken into account in order to articulate plausible normative frameworks for managing intercultural relations. In particular, the NCA’s proposals and debates call attention to the legacy of injustices committed against cultural minorities; these injustices, the Colombian constitutional process clearly shows, should be addressed if minority groups are to be justly recognized and accommodated. On the other hand, the Colombian constitutional process makes explicit the precise theoretical characteristics and practical challenges generated by the two main components of the tension between liberalism and cultural diversity that cut across the proposals of philosophers like Kymlicka, Taylor, and Tully. First, it shows the basic structure of the tension between individual rights and cultural difference. Second, it evinces the basic configuration of the tension between political unity and cultural minorities’ self-government rights. These contributions open up paths that political philosophy should follow in order to answer adequately the theoretical and practical questions generated by cultural diversity. In the third and last section, I will present the values and ideals that compose the constitutional tension and will make explicit how the conflict between cultural diversity and cultural unity that cuts across the reform projects of Rojas Birry, Muelas, and Peña was reproduced in the 1991 Constitution. As I will ague in the next chapter, this same conflict has been perpetuated in the jurisprudence of the Colombian Constitutional Court.
The Origins of the National Constitutional Assembly
The creation of the Constitutional National Assembly (NCA) in 1990 was intended to confront a profound political crisis in Colombia. This crisis was caused primarily by the state’s failure to control the pervasive violence affecting the country. That failure, in turn, pointed to a need to transform a corrupt, centralized, exclusionary, and inefficient political system. There was a broad agreement among politicians, academics, activists and common citizens that a radical change in the institutional organization of the state, including the way in which power was distributed and exercised, was needed to respond to the widespread violence generated by drug lords, guerrilla groups, and paramilitary organizations.1 This radical institutional transformation, it was widely thought in the country, was needed to create an open, efficacious, and decentralized political system where the interests of all citizens would be represented.2 Violence has been part of Colombia’s political and social life for a good part of the twentieth century. Yet, during the 1980’s, the level of violence related to political competition and drug trafficking increased notably.3 Indeed, it started to threaten the most basic rights and freedoms of the majority of Colombians. During this period, the level of violence produced by drug cartels intensified dramatically.4 In part, this was a consequence of the Betancur (1982–1986) and Barco governments’ (1986–1990) legal and military actions against the drug lords. The drug cartels responded to these actions with the continuous assassinations of political and social
11 This wide agreement was condensed in the justifications that the Barco government gave to the failed 1988 Constitutional reform it presented to Congress, “The crisis of institutional legitimacy, the lack of civic participation and the system’s deficiencies have made the realization of dogmatic and structural changes of considerable magnitude inescapable.” Exposición de motivos del proyecto gubernamental de reforma constitucional [Justification of the Government’s Project of Constitutional Reform], in Virgilio Barco, Reforma Constitucional–Documentos 9 (Presidencia de la República 1988).
2 2 For the antecedents of the NCA see; John Dugas, El desarrollo de la Asamblea Nacional Constituyente [The Development of the National Constitutional Assembly], in La Constitución de 1991: ¿un pacto político viable? (John Dugas comp., Departamento de Ciencia Política, Universidad de los Andes 1993); John Dugas, La Constitución Política de 1991: ¿Un pacto político viable? [The Political Constitution of 1991: A Viable Political Pact?], in Id.; John Dugas, Rubén Sánchez & Elizabeth Úngar, La Asamblea Nacional Constituyente, expresión de una voluntad general [The National Constitutional Assembly, the Expression of the General Will], in Los Nuevos Retos Electorales-Colombia 1990: Antesala del Cambio (Rubén Sánchez David ed., Universidad de los Andes-CEREC 1991); Jaime Buenahora Febres-Cordero, El Proceso Constituyente: De la propuesta estudiantil a la quiebra del bipartidismo [The Constitution’s Creation Process: From the Students’ Proposal to the Breaking of Bipartidism] (Cámara de Representantes – Pontificia Universidad Javeriana, Programa de Estudios Politicos (1991); Luis Alberto Restrepo, Asamblea Nacional Constituyente en Colombia: ¿Concluirá por fin el Frente Nacional?[National Constitutional Assembly in Colombia: Will the National Front Finally be Over?], Análisis Político No. 12 (1991).
33 The number of murders grew from 36 for every 100.000 inhabitants in 1981 to 48 in 1985, to 58 in 1987, reaching 80 in 1990. See A. Montenegro & C.E. Posada, Criminalidad en Colombia [Criminality in Colombia], in Borradores Semanales de Economia 4 (Banco de la República 1994). The number of political assassinations, in particular, grew from 1,053 in the 1970's to 12,859 in the 1980's. See Colombia's Killer Networks: The Military-Paramilitary Partnership and the United States 25 (Human Rights Watch, Americas 1996) (last modified Oct. 12, 2004)
44 120 judges who were investigating drug-related cases, for example, were murdered in the late 80’s. See Buenahora Febres- Cordero, supra note 2, at 107. Bruce Bagley summarizes the situation in the following way:
In the halcyon days of the 1980s and early 1990s, the ruthless Medellin cartel had bribed, intimidated and murdered scores of Colombian government officials at all levels to protect its drug operations. After President Belisario Betancur (1982-86) began to extradite Colombian drug traffickers to the United States in the wake of the 1984 Medellin-ordered assassination of Attorney General Rodrigo Lara Bonilla, the Medellin capos launched a systematic narco-terrorist campaign against the Colombian state designed to force the government to halt further extradition…. In short, by the mid-1980s the Medellin Cartel had grown so rich and powerful that it was able to mount a direct threat to Colombian state security.
Bruce Bagley, Drug trafficking, Political Violence and U.S. Policy in Colombia in the 1990s, Unpublished Paper (February 7, 2001). A preliminary version of this paper can be found in: Colombia in Context. Drug Trafficking, Political Violence and U.S. Policy in Colombia in the 1990s. (last modified Oct. 12, 2004)
55 FARC (Revolutionary Armed Forces of Colombia) was founded in 1964. It has its roots in the Colombian Communist party and in radical liberalism. ELN (National Liberation Army) was also created in 1964 and has been strongly influenced by the Cuban Revolution and by the Liberation Theology. EPL (Popular Liberation Army) was formed in the mid 60’s as well. It emerged from the Soviet-Chinese split and was shaped by Maoism and its theory of prolonged popular war. M-19 (Nineteenth of April Movement) surged in the early 70’s as a reaction to the closed political system created by the Frente Nacional. See Catherine Le Grand, The Colombian Crisis in Historical Perspective, 28 Canadian Journal of Latin American and Caribbean Studies No. 55-56, at 165-209 (2003); Eduardo Pizarro, Revolutionary Guerrilla Groups in Colombia, Violence in Colombia: The Contemporary Crisis in Historical Perspective (Charles Bergquist, Ricardo Peñaranda & Gonzalo Sánchez eds., Wilmington: Scholarly Resources 1992).
66 Ana María Bejarano, El proceso de paz durante la administración Betancur (1982-1986). Resultados de un esfuerzo para ampliar el espacio de participación política en Colombia [The peace process during the Betancur administration (1982-1986). Results of an effort to widen the space of political participation in Colombia] (Universidad de los Andes 1987).
77 More than 2,000 people associated with the Unión Patriótica political party were murdered in the late 1980s and early 1990s. During 1988 alone, close to 200 leaders of the Patriotic Union were assassinated. See Le Grand, supra note 5.
88 Bagley says to this respect:
In the 1980s and early 1990s the huge profits earned by Colombia’s cartels from the illicit drug trade enabled them to organize and equip their own private armies (paramilitary groups) and to bribe and intimidate Colombian politicians and government officials at all levels. As a result, Colombia’s system of justice virtually collapsed in the late 1980s and early 1990s, key elements of the police and the military were routinely bought off, and an estimated 60 percent of the Colombian Congress received illicit campaign contributions to guarantee their cooperation on critical issues like extradition.
Bagley, supra note 4. As a consequence of criminal activity Colombia lost approximately 2.5% of its GDP between 1988 and 1990. In 1991 the country lost around 3% for the same reason. See Jesus Antonio Bejarano, Violence in Colombia, 1985 –1995, 1 Colombian Economic Journal No. 1 (2003). partisan violence by alternating power during four presidential terms (1948–1974).10 This agreement did stop the violence between liberals and conservatives that started in 1948 with the assassination of the liberal leader Jorge Eliécer Gaitán.11 Yet, it also excluded any other political force from participating in the democratic debate. Furthermore it transformed the liberal and conservative parties into bureaucratic institutions charged solely with the distribution of state power among their militant members. During and after the Frente Nacional, the liberal and political parties forgot their responsibilities as mediators between the community and the state. The ideological differences between these two parties almost disappeared. The fundamental preoccupation of their political leaders was to maintain themselves in power. Politics became a commercial transaction in which politicians used state resources to benefit the communities that voted for them. Conversely, communities voted only for politicians that promised to provide resources to satisfy some of the communities’ necessities. Other types of corruption e.g., fraudulent contracts and bribery, also became common practice and the judicial system very seldom punished those involved in these criminal acts.12 Ideological debates then disappeared from the political sphere and the state became a source of booty distributed among political leaders and those loyal to them. Apart from corruption, the centralized character of the Colombian political system was another important cause of its delegitimization. Extreme centralization was established in the 1886 Constitution. During the years before the Constitutional Assembly was convened, a great number of Colombians continuously expressed their opposition to a model that for a century had authorized bureaucrats in Bogotá to make every important political and economic decision affecting the lives of all citizens. There was a wide agreement among academics, politicians, activists and common citizens that more decision-making power should be given to provinces and municipalities so that local communities could decide for themselves what their basic needs were and the priority in which they should be satisfied. Decentralization would allow them to exercise a direct control over those holding power.
99 In 1988, 42% of Colombians believed that the quality of government institutions was bad. 40.9% believed the same about Congress and 52.7% about political parties. Ronald Archer, Party Strength and Weakness in Colombia’s Besieged Democracy, in Building Democratic Institutions: Party Systems in Latin America 164-169 (Scott Mainwaring & Timothy Scully eds., Stanford University Press 1995).
1010 Francisco Leal Buitrago, La Crisis Política en Colombia: Alternativas y Frustaciones [The Political Crisis in Colombia: Alternatives and Frustrations], in Estado y Política en Colombia (Siglo XXI Editores 1989). There is an alternative interpretation, defended by authors like Daniel Pecaut and Gary Hoskin that says that it was not the closed and exclusionary character of the Frente Nacional that caused the political crisis. These authors argue that the post Frente Nacional failed efforts to open the system were the real cause of the political crisis. See Daniel Pecaut, Crónica de dos décadas de política colombiana: 1968–1988 [Chronicle of Two Decades of Colombian Politics: 1968-1988] 14 (Siglo XXI Editores 1989); Gary Hoskin, Los Partidos Tradicionales: ¿Hasta dónde son Responsables de la Crisis Política? [The Traditional Parties: To What Extent are They Responsible of the Political Crisis?], in Al filo del caos: Crisis política en la Colombia de los años 80, at 160 (Tercer Mundo Editores, Instituto de Estudios Politicos y Relaciones Internacionales de la Universidad Nacional 1990).
1111 Violence between the liberal and conservative parties started years before the assassination of Jorge Eliécer Gaitán. However, it is widely agreed that the murder of this liberal party leader was the event that made partisan violence a national problem and that contributed to the increased intensity of the conflict/the intensity of the conflict increased. This period of Colombia’s history is called La Violencia.
1212 Research done by the SER Institute and the Socio–Legal Research Office of the Ministry of Justice indicates that from 1972 to 1988 the levels of impunity were between 87.5% and 95%. Cited in: Jaime Giraldo Angel, La Reforma Constitucional de la Justicia [The Constitutional Reform of Justice], in La Constitución de 1991: ¿un pacto político viable?, supra note 2. Since the end of the Frente Nacional, several attempts to solve the political crisis were proposed. However, all the political reform and peace plans presented between the López administration (1974–1978) and the Barco government (1986–1990) failed.13 The sense of disillusion generated by these failed attempts at reform and the sentiment that the crisis could be solved only through a radical transformation of the dominant political values and institutions was catalyzed in 1990 by a group of university students in Bogotá. The students’ proposal to convene a Constitutional Assembly to accomplish these reforms was supported by other civil society organizations and by the most important media outlets in the country.14 Yet, as more and more persons and organizations agreed with the idea, the government and the traditional political parties rapidly took over the student’s reform proposal and started to promote it among the population. During an unofficial vote organized by the students’ movement during the election of 1990 for Congress, Provincial Assemblies, Councils, and mayors, students gathered more that two million
1313 The Supreme Court declared president López’s constitutional reform, aimed to modify the justice system and the territorial regime, unconstitutional. The Supreme Court also struck down the legislative act proposed to Congress by president Turbay (1978–1982) that was designed to transform the legislative and the justice system. Turbay’s attempt to solve the “guerrilla problem” through military means was unsuccessful and further delegitimized the political system. The continuous violation of human rights by the armed forces and the police committed under the protective cover of the Security Bill (Estatuto de Seguridad) radically undermined the president’s plans. The Betancur administration’s (1982–1986) change of approach toward a negotiated solution of the political conflict did not work either. Unfortunately, the peace dialogues failed, the country ended bitterly divided between those supporting negotiations and those wanting a military solution, and the guerrilla groups went out of the process militarily strengthened. Yet, Betancur’s proposal to reform the political system had some success. Laws allowing the popular election of mayors (before the reform they were appointed by province governors who were chosen by the president) and mandating the political, fiscal, and administrative decentralization of the country were enacted. As a result of the delegitimization of peace negotiations, president Barco started his administration claiming that a combination of military actions and political and economic reforms would solve the political and public order crisis of the country. He conditioned the opening of a peace process on the demobilization of the guerrilla groups and strengthened the Rehabilitation National Plan created during the Betancur government to improve the economic and social situation of the poorest regions of the country that were controlled (or could be controlled) by guerrilla groups. Barco also proposed a political reform based on a government – opposition model aimed to break the equal distribution of power between the liberal and conservative parties that erased all their ideological distinctions during the Frente Nacional. After Álvaro Gómez (an important leader of the conservative party) was kidnapped by M-19, the government changed its approach, started a peace process with the guerrilla groups, and proposed a constitutional reform. Following a failed attempt to organize a plebiscite to change article 13 of the 1957 plebiscite (that indicated that any constitutional reform should be discussed and approved by Congress) the Barco administration reached an agreement with the conservative party to change the Constitution through an extraordinary process. This process involved the creation of a Commission of Institutional Readjustment that would be in charge of preparing the reform and a referendum where citizens would approve or reject this proposal. Yet, the State Council declared that this agreement (Acuerdo de la Casa de Nariño) was unconstitutional inasmuch as the political charter could only be changed by Congress as indicated by the 1957 plebiscite and article 218 of the Constitution. The Barco administration then presented a reform project before Congress but had to withdraw it when it was clear that a provision prohibiting the extradition of Colombians was going to be included in the proposal. This was unacceptable to the government given its commitment to the war on drugs and the troubles that that this decision would have caused to Colombia’s relationship with the United States. See Ana María Bejarano, Estrategias de paz y apertura democrática: un balance de las administraciones Betancur y Barco[Peace Strategies and democratic Openness: A Balance of the Betancur’s and Barco’s Administrations], in Al Filo del Caos: crisis política en la Colombia de los años 80, supra note 10; Ana María Bejarano, La paz en la administración Barco: de la rehabilitación social a la negociación política [Peace in the Barco Administration: From Social Rehabilitation to Political Negotiation], Análisis Político No. 9 (1990); Dugas, La Constitución Política de 1991: Un Pacto Político Viable? [The Political Constitution of 1991: A Viable Political Pact?], supra note 2.
1414 John Dugas, The Origin, Impact, and Demise of the 1989-1990 Colombian Student Movement: Insights from Social Movement Theory, 33 Journal of Latin American Studies No. 4 (2001). votes in favor of convoking a Constitutional Assembly. Two months later, parallel to the presidential election, an official vote asking the people if a Constitutional Assembly should be convened was organized by the government. More than 5 million persons voted in favor of the Assembly. Immediately afterward, César Gaviria, acting as the elected president, reached an agreement with the liberal party, the conservative party, and the –at that point demobilized– M- 19, under which all groups committed to an agenda defining the process through which the Assembly would be convened and the topics that could be discussed by its members. Based on this agreement, Gaviria, now in power, enacted Decree 1926 of the 24th of August of 1990 through which he convened the National Constitutional Assembly and defined its agenda. The same Supreme Court, that on several other occasions had declared unconstitutional the reforms presented by other administrations,15 issued an opinion stating that the decree was constitutional. However, it also declared that the limits imposed by the decree on the Assembly were not. The Assembly, the Court stated, was sovereign and should be the only one deciding what ought to be discussed and/or reformed. The delegates to the NCA were elected less than four months after Decree 1926 was enacted.16 The Liberal party obtained 25 seats, Alianza Democrática (the political movement organized by M-19 after its demobilization) gained 19, Movimiento de Salvación Nacional (a multiparty political movement led by conservative leader Alvaro Gomez) 11, and the Social Conservative party 5. 4 independent conservatives were elected, as well as 2 representatives of the leftist Unión Patriótica, 2 representatives of evangelical churches and 2 representatives of Indigenous groups’ organizations. After their demobilization, the Popular Liberation Army (EPL) sent two delegates to the Constitutional Assembly, the Revolutionary Workers Party (PRT) 1 and the Indigenous guerrilla group Quintín Lame 1.17 This election was surprising in several ways. It made explicit the relative weakness of the traditional parties, the strength of some new political movements, and the arrival of some minority religious and cultural groups to the political scene. Neither the liberal nor the conservative party got enough delegates to control the Assembly, the Movimiento de Salvación Nacional and the Alianza Democrática obtained an important number of votes, and members of evangelical churches and Indigenous groups were elected to participate in a political event of national significance for the first time in the history of Colombia. The participation of representatives of the EPL, PRT and Quintín Lame is also important to note. One of the main reasons that motivated these groups to leave the armed struggle was the possibility of being part of the NCA. They wanted to participate in the process of defining a new social contract for the country. At the time, it was widely accepted that the NCA was a space for national reconciliation; there, a new political covenant with strong, just, and efficient institutions representing all Colombians was going to be determined. As a result of the process that gave it birth, the NCA’s work focused on four areas: bringing an end to violence, strengthening democracy, widening the Bill of Rights, and redefining the basic structure of the state.18 Contributing to the achievement of peace was an aim to which the NCA
1515 See supra note 13.
1616 The elections to choose the delegates for the Constitutional Assembly were held on December 9th of 1990.
1717 The delegates representing the PRT and Quintín Lame did not have voting powers.
1818 John Dugas, La Constitución Política de 1991: Un Pacto Político Viable? [The Political Constitution of 1991: A Viable Political Pact?], supra note 2. was strongly committed. The work of the delegates in this area can be seen in the numerous speeches and documents defending the idea that a peace process was the only means to solve permanently the conflict with the guerrilla,19 in the three transitory provisions enacted to facilitate a future peace process,20 and in the two provisions that explicitly refer to peace in the political charter: article 22 stating that peace is a right and a duty and article 95 indicating that all persons and citizens have the duty to contribute to attaining and maintaining peace. Creating a more open democracy was another of the NCA’s fundamental objectives. The work done by the NCA in this area can be divided in three categories: principles that locate participatory democracy as a pillar of Colombia’s political system,21 mechanisms to allow the political participation of citizens,22 and mechanisms that empower persons to participate in the making of public and private economic, cultural and social decisions that can have an impact on their lives.23 To grant Colombians numerous rights to protect them from the undue intervention of the state and to guarantee the satisfaction of their basic needs and interests was another of the Assembly’s main concerns. The NCA, accordingly, conceded Colombians a wide range of civil
1919 See Gaceta Constitucional No. 57, at 13; No 75, at 12; No. 87, at 13; No 95, at 12, No. 117, at 4; No 129, at 18 – 19; No. 134, at 11.
2020 Transitory article 12 of the Const. Col. opened the possibility of creating special peace districts for the elections that were going to be held in October of 1991; transitory article 13 authorized the government during the three years following the enactment of the Constitution to create special regulations to facilitate the insertion of guerrilla groups into civil life after their demobilization; and transitory article 30 authorized the government to concede pardons and amnesty to members of the guerrilla groups that committed political crimes before the enactment of the Constitution.
2121 The Preamble and articles 1 and 2 of the Const. Col. constitute the core elements of the first category. The preamble and article 1 state that Colombia is a participatory democracy and article 2 indicates that facilitating the participation of citizens in “the economic, politic, administrative and cultural life of the nation” is one of the state’s fundamental aims. Article 3 of the Constitution is also an important element of this category. This article establishes that sovereignty is located in the people and not in the nation, as was established by the 1886 Constitution.
2222 The second category’s most important provisions are those establishing universal vote, plebiscite, referendum, popular consult, and the possibility that every citizen has to present bills to Congress. See Const. Col. arts. 40, 103, 104, 155, 170, 258. Other important provisions of this second category are articles 103 (establishing town meetings), 260 (establishing the popular election of province governors), 247 (establishing the possibility of popular election of judges of peace) and 259 (creating the possibility of revoking the mandate given to an elected official).
2323 The third and last category is composed by those articles of the Political Charter that give citizens the right to participate in the making of decisions related to health services and the environment that might have an impact on them. See Const. Col. arts. 49 num. 3 & 79. Also, by those provisions that give workers the right to participate in the administration of the companies they work for (art. 57), and consumers to have an input in the decisions that might affect them (art. 78). See as well article 68 num. 2 (granting the right of the academic community to be heard when a decision that might affect them is going to be taken), article 340 (stating the various economic, social, ecologic, cultural can communitarian groups must be part of the National Planning Council, and articles 39, 26 num. 2 & 52 num. 2 (indicating that the organization and functioning rules of unions, and professional and sport associations should be democratic). and political rights,24 some collective rights,25 a great number of economic, social and cultural rights,26 and a set of mechanisms for the protection of these three categories of entitlements.27 The last issue to which the Constitutional Assembly gave special attention was the redefinition of the basic structure of the state. Closing the gap between the government’s institutions and Colombia’s reality as well as banishing political corruption were fundamental ends for the NCA. Its delegates tried on the one hand, to create institutions that would be able to satisfy efficiently the needs and interests of Colombians living at the end of the 20th century. On the other hand, they tried to delineate the fundamental political institutions of the country in such a way as to shield them as much as possible from corruption. The most important examples of the changes aimed to modernize and moralize the state were related to diminishing the power of the presidency,28 strengthening and purging corruption from Congress,29 and making the judiciary more efficient.30 The NCA then was not the result of a political or military struggle with victors and vanquished. The Constitutional Assembly was not, like in Brazil after the dictatorship or in Nicaragua after the revolution, the space where the winners formalized their triumph by defining the basic political institutions of the state and the rules for the exercise of power.31 In Colombia, the NCA was the result of a democratic process, supported by the majority of the population, in which groups from very different sections of the political spectrum gathered to redefine the basic structure of the state.
2424 The right to life, freedoms of religion, conscience and expression as well as the prohibition of torture and forced disappearance are some of the most important examples of the civil and political rights granted to Colombians by the Constitutional Assembly. See articles 11 to 41 for the complete list of civil and political rights of Colombians.
2525 Consumer (Const. Col. art. 78) and ecological (Const. Col. art. 79) collective rights as well as the right to enjoy the public space (Const. Col. art. 82) are the most relevant third-generation rights enacted by the Assembly in 1991. Colombians’ third- generation rights are established in articles 78 to 82 of the Constitution.
2626 The right to health services (Const. Col. art. 49), housing (Const. Col. art. 51), education (Const. Col. art. 67) and culture (Const. Col. art. 70) are good examples of second-generation rights that the NCA conceded to all citizens in the country. Articles 42 to 77 contain all citizen’s social, economic, and cultural rights.
2727 Among the mechanisms for the protection of citizens’ rights, the tutela (Const. Col. art. 86) and the acciones populares (Const. Col. art. 88) may be the most important. The first mechanism was created to protect in an inexpensive, fast and efficient way the fundamental rights of Colombians (,) and the second, to defend collective rights and interests. See articles 83 to 94 of the Constitution for a complete list of the mechanisms created by the NCA for the protection of citizens’ rights.
2828 The NCA modified the strong presidentialism that characterized the 1886 Constitution by taking away some of the functions that the executive traditionally had in Colombia, by establishing clear rules for its political control, and by redefining the powers that the president had in case of war or internal public disorders. The following are the most important examples of this change in the state’s structure. Const. Col. arts. 260 (establishing the popular election of governors; before they were appointed by the president), 276 (establishing a new procedure for appointing the Attorney General)(,) 150 (stating that Organic and Statutory Laws can only be enacted by Congress and that Congress cannot delegate this power to the president), 212-5 (limiting the president’s extraordinary powers), and 197 (that prohibits presidential reelection).
2929 The NCA attempted to make Congress stronger and cleaner by giving it, for example, more tools to control the executive branch, e.g., censure motion, by creating a wide regime of inabilities and incompatibilities, and by introducing the possibility of citizens revoking the mandate given to their senators and house representatives.
3030 The most important changes introduced by the NCA in this area were the creation of the Office of the Attorney General, the Constitutional Court and the Supreme Council of the Judiciary. Another very important change made by the Assembly in this area was the introduction of the semi-accusatory system for conducting criminal trials. Delegate’s Projects on Cultural Diversity: Between Equality and Political Unity and Difference and Political Autonomy
The debates about cultural diversity issues that took place during the Constitutional Assembly were directly related to the four topics on which this institution focused its reform work. The proposals about cultural minorities’ matters presented and discussed during the NCA aimed to open Colombia’s democracy, widen the Bill of Rights, break the centralized way of making political decisions that characterized Colombia’s political system since 1886, and bring reconciliation to the country. More concretely, these proposals were aimed to recognize the multicultural character of the country and thus, to include cultural minorities in the polity. They were also meant to facilitate the ability of cultural communities to participate in the national political life, allow minorities to self-govern, and give them the legal instruments to protect and reproduce their cultural legacy. Additionally, they attempted to reconcile cultural minorities with the cultural majority. Centuries of political and social conflicts generated by the majority’s exploitation and discrimination against minority groups had created distance and distrust between the former and the latter. This distance and distrust were the main causes of the emergence of armed resistance groups like Quintín Lame. The discussion about how to recognize and accommodate cultural difference that took place during the Constitutional Assembly was structured around the projects presented by the delegates Francisco Rojas Birry, Lorenzo Muelas and Alfonso Peña.32 Rojas Birry, a member of the Embera community, was elected for the Organización Indígena de Colombia and was appointed the vice-president of the Second Commission of the NCA.33 This Commission was in charge of debating all matters related to regional and local autonomy and the territorial order of the state. Muelas, a member of the Guambiano Indigenous community, was elected for the Movimiento de Autoridades Indígenas de Colombia and appointed as vice-president of the Assembly’s First
3131 See Ana Maria Bejarano, Protracted Conflict, Multiple Protagonists and Staggered Negotiations: Colombia, 1982-2002, Canadian Journal of Latin American and Caribbean Studies, supra note 5; Luis Alberto Restrepo, Asamblea Nacional Constituyente en Colombia: ¿Concluirá por fin el Frente Nacional?[National Constitutional Assembly in Colombia: Will the National Front Finally be Over?], supra note 2.
3232 Several other delegates presented projects related to cultural diversity issues. While these were proposals that dealt only with one or two specific topics, the projects presented by Rojas Birry, Muelas and Peña were broad and dealt with all issues affecting the life of cultural minorities in Colombia. Besides, in the proposals prepared by Rojas Birry and Muelas as members of the Second and First Commissions, they summarize and comment on the articles proposed and ideas presented by their colleagues. Some of the most relevant proposals prepared by delegates other than Rojas Birry, Muelas and Peña are the following. Raimundo Emiliani Román, Artículo transitorio sobre control de densidad de población en el Archipiélago de San Andrés, Providencia, Santa Catalina, Cayos e Islotes [Transitory Article on the Control of the Population’s Density in the Islands of San Andrés, Providencia, Santa Catalina, Keys and Islets], Gaceta Constitucional No. 92, at 16; Jaime Fajardo Landaeta, Creación constitucional de la figura de los jueces de paz [Constitutional Creation of the Institution of Peace Judges], Gaceta Constitucional No. 66, at 14; Jaime Fajardo Landaeta, Creación de los jueces de paz y reconocimiento de las jurisdicciones étnicas [Creation of Peace Judges and Recognition of Ethnic Jurisdictions], Gaceta Constitucional No. 84, at 4- 5; Álvaro Gómez Hurtado, Elección popular de jueces municipales [Popular Election of Municipal Judges], Gaceta Constitucional No. 70, at 8; Guillermo Plazas Alcid, Nacionalidad de los pueblos indígenas que comparten territorios fronterizos [Nationality of the Indigenous Peoples that Share Frontier Territories], Gaceta Constitucional No. 102, at 3. Commission.34 This Commission was responsible for discussing rights, duties, democracy, and the Constitution’s basic principles, among other matters. Peña, a member of the demobilized Indian guerrilla group Quintín Lame, was a member of the Second Commission of the Assembly.35 The projects and speeches presented by Rojas Birry, Muelas and Peña have a common structure. These documents can be divided in two sections that pull towards opposite directions: equality and political unity, on the one hand, and difference and political autonomy, on the other. In the equality section of Rojas Birry’s, Muelas’, and Peña’s proposals they denounce the political, legal, social, and economic discrimination that cultural minorities have historically suffered in Colombia because their traditions are different from those of the majority and demand the realization of the Enlightenment’s principles of equality and freedom for all human beings. In this section of their proposals, then Indian delegates demand the recognition of cultural minorities’ members as equal partners in the construction of the political community. For the Indian delegates, the division between first-class and second-class citizens that characterized the Colombian political system must disappear. The equal dignity of all individuals should be recognized, all citizens should have the same basic rights and freedoms, and the state should treat all its citizens with equal consideration and respect. Cultural minorities’ members, Rojas Birry, Muelas and Peña argue, ought not to be considered a sub- species of the human genre that does not deserve the same civil and political entitlements that the rest of Colombians enjoy. Muelas summarizes these ideas when he says that,
3333 Francisco Rojas Birry presented three documents discussing multicultural issues to the Assembly. The first was the presentation that he gave to the floor of the Assembly where he offered an overview of his political opinions. The title of this first document is Exposición general del Constituyente Francisco Rojas Birry en la Plenaria de la Asamblea Nacional Constituyente del 20 de febrero de 1991[General Presentation of the Delegate Francisco Rojas Birry in the Floor of the National Constitutional Assembly on February the 20th, 1991], Gaceta Constitucional No. 18, at 6-8. The second was a proposal presented to the floor about the rights that should be granted to cultural minorities: Los derechos de los grupos étnicos [The Rights of Ethnic Groups], Gaceta Constitucional No. 67, at 14–21. The third document’s title was Circunscripción electoral especial para comunidades indígenas, negras y minorías políticas [Special Electoral District for Indian and Black Communities and Political Minorities] [hereinafter Special Electoral District], Gaceta Constitucional No. 29, at 2. In this document Birry proposed some provisional rules to guide the special electoral district for minorities.
3434 Lorenzo Muelas presented three documents to the NCA. The first document was Exposición General del Constituyente Lorenzo Muelas Hurtado en la plenaria de la Asamblea Nacional Constituyente del 19 de febrero de 1991 [General Presentation of the Delegate Lorenzo Muelas in the Floor of the National Constitutional Assembly of February 19th, 1991] [hereinafter General Exposition of the Delegate Lorenzo Muelas], Gaceta Constitucional No. 19, at 11–13. In this document he summarizes his views about the objectives that the Constitutional Assembly should pursue. In Proyecto de Acto Reformatorio de la Constitución Política de Colombia [Reform Proposal of the Political Constitution of Colombia] [hereinafter Reform Proposal], Gaceta Constitucional No. 24, at 11-16, he presents a series of articles that in his view should be part of the new Constitution. The third document is a proposal prepared with Orlando Fals Borda regarding the territorial order of the state and the rights of cultural minorities. The title of this proposal is Pueblos indígenas y grupos étnicos [Indigenous Peoples and Ethnic Groups], Gaceta Constitucional No. 40, at 2–8.
3535 Francisco Peña did not have the right to vote during the NCA. Nonetheless, he presented two documents to the Assembly. In the first document, he summed up his views about the changes that should be included in the new Political Chart. In the second document, he proposed a series of articles for the new Constitution. See Intervención del Constituyente Alfonso Peña Chepe, Representante del Movimiento Quintín Lame en la Sesión Plenaria de abril 9 de 1991 de la Asamblea Nacional Constituyente [Commentary of the Delegate Francisco Peña Chepe, Representative of the Quintín Lame Movement in the National Constitutional Assembly Plenary Session of April 9th, 1991], Gaceta Constitucional No. 61, p. 4; Proyecto de Reforma Constitucional [Constitutional Reform Proposal] [hereinafter Constitutional Reform Proposal], Gaceta Constitucional No. 60, at 7–20. [Indian delegates have] arrived to the Assembly representing Indigenous Peoples in the longest march that there is news about, in a 500 years march. Five centuries of struggles without rest aimed to assure the life and rights of our people. And two centuries of lost hopes in the justice, freedom and equality that were promised to the world in the Declaration of Men’s Rights.36
In this section of their reform projects, Rojas Birry, Peña and Muelas propose various solutions to the discrimination suffered by cultural minorities. Substantively, they propose the enactment of a wide range of first and second generation human rights to protect the equal dignity of all Colombians, to protect individuals from authorities’ power abuse and to give citizens the material conditions to live rich and productive (private and public) lives.37 Procedurally, they propose some measures to open Colombia’s democratic system (e.g., declaring that sovereignty is located in the people –not in the nation as in the 1886 Constitution- and granting autonomy to the various territorial entities in which the country is divided38). In contrast with this first section, the second section of the Indian delegates’ proposals emphasizes the elements that distinguish cultural minorities from the cultural majority and demands their recognition and accommodation. In this section, Rojas Birry, Muelas, and Peña denounce the discrimination that minority groups have suffered for the mere fact that they are culturally different, condemn government’s efforts to assimilate cultural minorities, and demand the recognition of the various cultural traditions that coexist in the country. In this part of their projects, Indian delegates make explicit that to be culturally different in Colombia has meant to be marginalized and exploited. They strongly criticize government’s policies aimed to convert cultural minorities’ members to Christianity and to make them Spanish speakers. They also state that the government’s tendency towards homogenization has been justified by the belief that the majority’s Western values are superior to minorities’ cultural traditions. They charge that the process of coercive assimilation has had law as its most important instrument. As Muelas says,
[The legal order that has ruled intercultural relations in Colombia] has justified 104 years of assimilationist policies based on the conviction of the Christian West’s supremacy and in the inevitable disappearing of the native peoples.”39 “[Indigenous people] suffer discrimination because they are different to the others, because we speak different, think different, feel different, act different. For this, we demand not only the recognition of ethnic, cultural, geographic psychological or customs diversity but also the recognition of something deeper: human difference in real, historical, linguistic and thought terms; diversity in the way the world is conceived40
3636 Muelas, General Presentation, supra note 34, at 11.
3737 See Peña, Constitutional Reform Proposal, supra note 35, at 7; Muelas, Reform Proposal, supra note 34, at 12.
3838 See Peña, Constitutional Reform Proposal, supra note 35, at 7.
3939 Fals Borda & Muelas, Indigenous Peoples and Ethnic Groups, supra note 34, at 3.
4040 Muelas, General Presentation, supra note 34 at 13. In this section of their projects, Rojas Birry, Muelas, and Peña also propose some instruments that in their view would allow the recognition and accommodation of cultural difference.41 They first suggest that the multicultural character of Colombia should be constitutionally recognized. The transformation of centuries of government violence against cultural minorities should start by acknowledging the obvious: Colombia is not a culturally homogenous country. Then, they recommend the recognition of self-government rights for cultural minorities. More specifically, they propose the recognition of the collective property of minority groups’ ancestral territories and the creation of an Indigenous jurisdiction. They would allow cultural minorities to rule their public and private life in accordance with their traditions, and authorize these communities to participate in the decision making process regarding any project related to the exploitation of natural resources in their territories. Finally, they recommend the creation of a special electoral district to allow minorities to participate in the national political life and to grant cultural minorities linguistic and educational rights so that they could protect and reproduce their cultural traditions.42 Rojas Birry, Muelas, and Peña make very clear that these proposals are not aimed to create independent states within Colombia or to generate internal political divisions. On the contrary, they recognize that cultural minorities are also part of the country and express their wish to contribute to the consolidation of national institutions and to maintain Colombia politically united. Yet, cultural minorities want to achieve these aims after redefining the relationship between the state and minority groups: the state should recognize the existence of cultural minorities and allow them to express their difference freely. In Muelas’ words,
…. regarding Indigenous Peoples –as well as the rest of Colombian ethnic groups– the recognition of their territories has not meant, and it does not mean, an attempt against national unity…but a wish and a struggle to obtain the redefinition of the relationship with the state in accordance to democracy and the new times ….43
4141 See Fals Borda & Muelas, Indigenous Peoples and Ethnic Groups, supra note 34, at 7–8; Muelas, Reform Proposal, supra note 34, at 11-13; Peña, Constitutional Reform Proposal, supra note 35, at 7–10; Rojas Birry, The Rights of Ethnic Groups, supra note 33, at 21. It is important to note that Peña does not discuss in detail the rights that should be granted to cultural minorities. He said that “[f]or the Constitutional reform we fully support the projects of ONIC, presented by Francisco Rojas Birry, and AICO, presented by Lorenzo Muelas, limiting ourselves to contribute with some additional points.” Peña, Constitutional Reform Proposal, supra note 35.
4242 It is important to note how Muelas’, Rojas Birry’s, and Peña’s proposals on these issues are similar to Kymlicka’s It is also important to note that the intercultural dialogues that took place during the NCA partially incarnate the type of dialogues that Tully propose as ideal multicultural conversations. On the one hand, the delegates recommend the recognition of group differentiated rights like the ones favored by Kymlicka in order to protect and promote cultural minorities’ traditions e.g., self- government and special representation rights. On the other hand, the dialogues that took place during the Constitutional Assembly were partly guided by values similar to the ones defended by Tully. Indian delegates were recognized as equals and all decisions, at least on multicultural matters, were taken with the consent of Muelas, Rojas Birry and Peña. However, it should be said that not all cultural minorities were represented during the NCA, e.g., palenqueros and raizales and that decisions in the NCA were taken by majority rule; therefore, cultural minorities’ perspectives could have been not taken into account by the NCA.
4343 Fals Borda & Muelas, Indigenous Peoples and Ethnic Groups, supra note 34, at 3. On the same page where Muelas offers these ideas he also says that “the fundamental purpose of the autonomy proposal is the justification of democracy …. that is, to get access to modern forms of national unity based in the exercise of democracy among different peoples.”44 For Rojas Birry, Muelas, and Peña their proposals to recognize and accommodate cultural difference are justified by corrective justice arguments, the wish to protect and reproduce minority groups’ cultural legacies, the aspiration to reconcile the various cultures that coexist in the country, and the positive symbolic effect that granting cultural rights would have for the way people understand the diversity that constitutes Colombia. Indian delegates argue that recognizing the multicultural character of the country and granting cultural minorities a series of rights are the only way to correct 500 years of physical and legal violence aimed to destroy minority groups. These changes in the legal order, Indian delegates believe, would be the only way to allow cultural minorities to live in accordance with their traditions and to start healing the wounds that have caused minority’s distrust of the government and skepticism about its policies. As Muelas puts it,
Why should Indian rights be included in the new Constitution? …. To allow Indian Peoples, once liberated from the moorings and oppression that tie us, to start again with determination the path of development that was truncated to us. To reconcile the diverse peoples and cultures of Colombia, after 500 years of confrontation, and to build the foundations of a future in solidarity and mutual collaboration….45 (bold in the original).
The fact that the most important legal document in the country recognizes the value of cultural difference, Rojas Birry, Muelas and Peña believe, will bit by bit affect positively the way members of the majority interpret Colombia’s multicultural character. As times passes and the political charter is interpreted by Courts and developed by Congress, the cultural majority will learn to value and respect minority groups. Members of the cultural majority will learn that part of what they are, how they understand themselves, has been determined by the interaction with other cultural communities that inhabit the country. For Rojas Birry, “….[c]onstitutional pedagogy, [understood] as pedagogy for peace and democracy, should teach that this is a diverse country, that ethnic groups with special rights –because their situation is special– live in it….”46 Unfortunately, the aims that the two sections in which the documents presented by Peña, Muelas, and Rojas Birry are divided sometimes cannot be simultaneously attained. The demands made by the principles of equality and difference at times contradict each other. While equality, as understood by liberal political theory, demands respecting the individual rights of minority group’s members, difference demands the recognition of the moral or political views of cultural minorities as a group. These views are, in many instances in Colombia, not liberal. If the former were privileged over the latter, equality would be respected and difference would not. However, if the contrary would occur, the principle of difference would be recognized and the principle of equality would be ignored.
4444 Id. at. 3.
4545 Muelas, Project of an Amendment Act, supra note 34, at 13 at 15.
4646 Rojas Birry, The Rights of Ethnic Groups, supra note 33, at 21. Just as contradictory are the demands made by the principle of political unity and the principle of political autonomy. Issues such as the exploitation of natural resources within cultural minority lands, the transit and settlement of members of the majority in minority groups’ territories, and the punishments imposed on law offenders can generate difficult conflicts between national institutions and cultural minorities’ authorities. The decisions of the national and minority groups’ authorities can collide and it is not clear whose decision should prevail. While the principle of political autonomy requires the decisions of minority groups’ authorities to be respected by national officials, the principle of political unity, as traditionally interpreted, requires that these decisions be subordinated to national authorities’. Unfortunately, Rojas Birry, Muelas and Peña do not offer any coherent view about how to resolve these tensions. Sometimes they clearly say that cultural difference and political autonomy should be privileged over equality and political unity, other times they say just the opposite. To justify the first alternative the three Indian delegates argue that the only way in which the multicultural character of the country can be adequately recognized and accommodated is by allowing each culture to live in accordance with their traditions. To oblige cultural minorities to rule their community life using the moral and political values of the majority would be to give continuity to government’s assimilationist policies and thus, to betray the Assembly’s aim of recognizing the cultural diversity that constitutes Colombia. Rojas Birry states in support of this view that,
[e]ach ethnic group has written over time the message of the life that deserves to be lived …. But [the right to live in accordance to this message] would be made void if the possibility of continued living as wanted does not exist, if life has to be lived in accordance to the demands of others that do not know the meaning of life such as it is lived by each ethnic group.47
Muelas concurs with the idea that minority groups’ moral and political ways should be privileged over the liberal traditions of the majority when he says that “[f]or the Greater Law we understand the body of rights that accompanies us inasmuch as members of the original communities and peoples of these American lands and that have primacy over all other constitutional rights….” 48 Rojas Birry, Muelas, and Peña justify the second view –that equality and political unity should be privileged over difference and political autonomy– by appealing to the principle of
4747 Id. at 18.
4848 Muelas, Project of an Amendment Act, supra note 34, at 14. He also says in this same page that if the Constitution wants to
…. guarantee the freedom of being and doing, i.e., the rights of each one, it has to take into account what we are and what we do; and not put us all in the same bag “granting us” identical rights, or imposing us similar obligations. Because the truth is that during the entire Republican period, the only thing that has been “democratically” offered to us is the right to be like others, like we do not want to be.
Id. equal dignity. From this point of view, supported by many other delegates,49 the basic characteristics that human beings supposedly have as the result of belonging to the same species should have priority over what differentiates them. Cultural differences, although important in some ways, should not obscure the fact that persons have a common moral nature: we are free and rational individuals. For Rojas Birry, Muelas and Peña no government authority could be legitimate if it does not recognize and respect individuals’ fundamental common dignity and the rights aimed to defend it. Peña synthesizes this view when he says that,
…. it should be explicitly stated that human rights, based in the idea of the intrinsic dignity of human persons, constitute authorities’ foundation…We appeal to a tradition of constitutionalism that articulated as a criterion of political power’s legitimacy the recognition and effective respect of human rights.50
The rights aimed to protect humans’ basic equality then, should limit cultural minorities’ political autonomy. Any decision taken by national authorities regarding human rights, Rojas Birry, Muelas and Peña state, should have priority over the decisions of minority groups’ authorities that contradict them. Even on issues that are not related to human rights, Indian delegates’ commitment to the principle of political unity seems to lead them in the same direction: The decisions of minority groups’ authorities should be subordinated to the decisions of national institutions. Minority cultures’ territories are second level entities that depend on money transfers from the national budget and minority groups’ authorities need to coordinate their activities with national officials. What the Indian delegates really propose is then,
[t]he permanence of the Unitarian State, but without it being centralist or federal. A State with regional autonomies, that reserves for itself the national functions that are proper to [its nature] and that collaborates with autonomous regions through the redistribution of the resources it owns in a way that guarantee the [latter’s] harmonic development…[The advantage of this] autonomy regime is that it allows to structure territories and ways of government that are in accordance with our particularities and diversity through agreements between our communities and State’s representatives.51
In sum, the proposals that defined the boundaries and guided the NCA’s discussion about the recognition and accommodation of cultural diversity pull in two opposite directions: cultural diversity and cultural unity. On the one hand, these proposals aim to include cultural minorities’
4949 The Enlightened ideals that human beings are equal and that all authorities should respect human rights was implicitly or explicitly in the reform projects presented by several delegates during the NCA. See Alberto Zalamea Costa, Preámbulo y principios, [Preamble and Principles], Gaceta Constitucional No. 62, at 2–6; Aida Abella, Raimundo Emiliani Román, Germán Toro, Diego Uribe Vargas & María Mercedes Carranza, Proyecto de Nueva Carta de Derechos, Deberes, Garantías y Libertades, [Project of a New Rights, Obligations, Guarantees and Freedoms Charter], Gaceta Constitucional No. 51, at 19– 24; Diego Uribe Vargas, Carta de Derechos, Deberes, Garantías y Libertades, [Rights, Obligations, Guarantees and Freedoms Charter], Gaceta Constitucional No. 82, at 10–16.
5050 Peña, Constitutional Reform, supra note 35, at 10. Muelas explicitly said in his Reform Project that the judicial powers of Indigenous groups should be limited by human rights. See Muelas, Reform Proposal, supra note 34, at 11. Strangely, he did not say explicitly that human rights should be the limit of minority groups’ political autonomy.
5151 Muelas, Reform Proposal, supra note 34, at 15. members in the polity after centuries of discrimination in which those belonging to minority groups were not allowed to participate in the political life of Colombia because they were considered culturally inferior. The objective of this section of the proposals is to make explicit that the principles of equality and freedom that were promised by the Enlightenment are also applicable to cultural minorities’ members. For the delegates, political and legal institutions should recognize that we are all free and rational persons. They should also recognize a series of individual rights to allow citizens to defend these common characteristics from the undue intervention of state or community. This section of the reform projects also makes explicit the minority groups’ commitment to the principle of political unity. Minority cultures do not want to become independent political entities. On the contrary, they recognize the authority of national institutions. What they want is to be able to participate equally in the construction of the Colombian state. On the other hand, these proposals aim to recognize and accommodate the characteristics that distinguish cultural minorities from the majority. The multicultural character of the country should be recognized and cultural minorities should be granted a series of rights to allow them to self-govern and to protect and promote their cultural traditions. The Constitution should correct the injustices committed against cultural minorities in the past, acknowledge minority groups’ legitimate wish to live in accordance to their traditions, serve as a pedagogic tool that teaches the majority to value and respect cultural minorities’ contributions to the construction of Colombia, and create the legal and political framework to allow the reconciliation of the diverse cultures that inhabit the country. Regretfully, the proposals presented to the NCA did not present a coherent view on how to solve the tension between cultural unity and cultural diversity. Sometimes, these proposals seem to demand that in case of conflict, cultural unity should prevail over cultural diversity. Yet, some other times they seem to demand the opposite view. It is important to note though, that in the delegates’ proposals the conflict between individual rights and cultural differences is never made explicit. In the projects presented by Rojas Birry, Peña and Muelas there is no discussion about the theoretical and/or practical problems that demanding both respect for cultural minorities’ traditions and the recognition of a wide range of liberal rights for all Colombians can generate. Nor there was any explicit discussion of these problems during the Assembly’s debates on multicultural issues. There is no available information that can give us a clear-cut explanation about why this happened. However, this situation might be explained by two different although complementary arguments. The first argument indicates that some of the Assembly’s delegates did not think that there was a conflict between cultural difference and liberal values in the proposals discussed. Probably, many of the NCA’s liberal and conservative delegates thought that there was no collision of principles since, from their point of view, it was clear that individual rights would always prevail over cultural minorities’ non-liberal values. The fact that articles 330 and 246 of the Constitution say that the exercise of Aboriginal groups’ self-government and judicial powers should never violate the political charter and the laws of the republic speaks in favor of this interpretation. For these liberal and conservative delegates, the Assembly should recognize cultural minorities some special rights to protect their traditions. However, these rights would be always subordinated to the liberal values that these delegates consider the heart of Colombia’s legal system. The second argument would claim that although some of the delegates recognized the tension between cultural unity and cultural diversity within the proposals presented and the debates held during the Assembly, they considered that possible solutions to this collision of values should be articulated by Congress and courts. The Assembly’s job, this group of delegates probably thought, was to create a general framework to regulate intercultural relations. The particular interpretation of this framework, and of the theoretical and practical problems that it might generate, was congresspersons’ and judges’ task. This interpretation assumes the uncontroversial claim that the Assembly’s delegates agreed with the widely accepted political and legal assumption that Constitutions should be as abstract and general as possible in order to be applicable in different times and circumstances. The way in which constitutional clauses should be interpreted to resolve particular conflicts or how they should be developed to regulate particular areas of life are decisions that ought to be taken by politicians and judges. The former represent the varying interests and values of the citizenry and the latter are closest to the particular characteristics of the conflicts that arise in society every day. Evidence that the majority of delegates held this view can be found in article’s 246 second phrase. This article’s section states that the coordination between the national and the Aboriginal groups’ jurisdictions should be articulated by Congress. However, the most serious theoretical and practical problem is not that the delegates’ proposals and debates on multicultural issues did not attempt to solve the tension between individual rights and cultural difference. The fundamental problem is that the conflict is not solvable in a way in which both values can be protected. Individual rights and cultural difference are incommensurable values. They cannot coexist within the same theoretical framework, with the same level of importance, without excluding each other. The principle of difference demands the recognition of all existing cultures –including those that are illiberal. Individual rights demand the recognition of liberal cultures only. For liberalism, no violation of individual rights because of cultural reasons can be accepted. For liberals and multiculturalists, though, this tension represents no big obstacle. Within the liberal framework the tension does not exist. Although for liberalism cultural difference is a cherished principle, it is clearly subordinated to individual rights. For multiculturalists the tension does not exist either. Liberalism is only one among the many moral and political perspectives that exist in our pluralist world. Consequently, liberal attempts to make their values prevail over the values of other cultural communities must not be accepted. For liberals and multiculturalists there is a clear hierarchy of values where individual rights triumph always over cultural difference or where cultural difference always triumph over individual rights. The works of Taylor, Kymlicka and Tully, as it was said in the first chapter, are clearly located within the liberal framework. In this, they are no different from the cultural unity sections of Rojas Birry’s, Muelas’, and Peña’s proposals. They are no different either in that they all have as their (theoretical or practical) problem the tension between cultural diversity and cultural unity. However, there is an important difference between them: Rojas Birry, Muelas and Peña sometimes argue in favor of giving prevalence to cultural difference over liberal values. While Taylor, Kymlicka and Tully claim that cultural difference should not be an excuse for the violation of individual rights, the Indian delegates to the NCA sometimes claim that individual rights can be subordinated to cultural minorities’ illiberal traditions. While Taylor, Kymlicka and Tully defend cultural communities because they want to protect the interests of individuals, Rojas Birry, Muelas and Peña sometimes argue in favor of defending cultural communities in spite of individuals. Rojas Birry’s, Muelas’ and Peña’s proposals also differ from Taylor’s, Kymlicka’s and Tully’s work in the importance that the former give to history. For the Indian delegates, the many injustices perpetrated against cultural minorities in the country should be taken into account when distributing state controlled scarce resources. Many of these injustices happened in the past and would be impossible to commit them again today, e.g., the implementation of policies aiming to convert aboriginal groups’ members to Catholicism and to make them Spanish speakers. However, the consequences that these injustices have generated are still determining important aspects of cultural minorities’ private and public life, e.g., the disappearance of religious traditions and the fact that in some communities the new generations do not speak the traditional language. These past injustices as well as the consequences they have generated, Indian delegates claim, demand redress; they justify granting cultural minorities certain resources that other groups or individuals in the country will not receive, for example, group differentiated rights and subsidies for financing special ethno-education programs. These resources, Rojas Birry, Muelas and Peña argue, would compensate past injustices and would give minority groups tools for neutralizing the present consequences of these wrongs. Kymlicka’s, Taylor’s and Tully’s normative models are not incompatible with this proposal. Yet, they do not say anything about the role history ought to play in determining the rules that should govern intercultural dialogues or the rules that should regulate intercultural relations. Multicultural theory generates normative frameworks that guide and transform constitutional practice. However, as this issue makes explicit, the relationship goes both ways. Constitutional practice also generates or develops conceptual tools that can and should enrich multicultural theory.
The Cultural Unity–Cultural Diversity Tension within the 1991 Constitution
The tension between cultural unity and cultural diversity that characterizes the proposals about how to recognize and accommodate cultural difference presented during the Constitutional Assembly was reproduced in the 1991 political charter. The internal tension between cultural unity and cultural diversity of the Constitution is composed of the same two analytically distinguishable but practically intertwined conflicts of values that can be found in the reform projects of the Assembly’s delegates. The tension between the constitutional recognition of the Indigenous groups’ diverse moral and political principles and the liberal Bill of Rights of the political charter comprises the first conflict. The former category is structured around the following constitutional principles: the definition of Colombia as a participative and pluralist state (art 1) and its recognition of the equality and dignity of all cultures (art. 70); the state’s recognition of the cultural and ethnic diversity of the country (art. 7); and its obligation to protect the cultural richness of Colombia (art. 8). The latter is constituted by Title I of Chapter II of the Constitution. In this section of the political charter, a wide number of individual rights are granted to all Colombians, e.g., freedom of conscience (art. 18), freedom of religion (art. 19) and freedom of expression (art. 20). The tension between the constitutional declaration that Colombia is a unitary state and the self-government and judicial powers granted to Aboriginal groups composes the second clash of political values. The former is recognized in Article 1 of the Constitution. This provision indicates that, “Colombia is a social state of law, organized as a unitary Republic .…” The latter are recognized by Article 246, which grants Aboriginal peoples the right to exercise jurisdictional powers within their territory, and Article 330 which acknowledges the Aboriginal groups’ right to govern themselves by their uses and costumes.52 These two conflicts of values clearly show that the political charter moves like a pendulum between the political values of cultural unity and cultural difference. The constitution recognizes the worth of the different moral and political traditions that guide the life of cultural minorities but at the same time it enacts a liberal Bill of Rights. Does this mean that individual rights and the conceptual framework in which they are situated are the least common denominator that all cultures of Colombia should respect? Does respect for cultural diversity mean only respect for the different interpretations of liberal principles that the diverse communities that inhabit Colombia might have? Is the Colombian state, then, obliged to transform cultural communities that do not recognize liberal values? Or does the recognition of the value of the diverse moral and political views of cultural minorities imply that the state should respect them even if their traditions collide with individual rights? Is there a correct middle point between these alternative extremes? The movement of the constitutional pendulum between cultural diversity and cultural unity can also be seen in the enactment of self-government rights and jurisdictional powers for Indigenous groups and the limits imposed upon them. These are the powers that, supposedly, will allow cultural minorities to rule themselves according to their traditions and therefore without the undue intervention of the cultural majority. The pendulum then, moves towards cultural diversity; but immediately after, in the same article where it grants the jurisdictional and self- government powers to Aboriginal communities, the charter states that the law and the constitution constitute the limit of these powers. Does this mean that Indigenous groups should recognize and respect the whole legal system of the majority when taking decisions on how to govern themselves? If that is the case, doesn’t this make void the minorities’ self-government and jurisdictional powers? Can this tension be interpreted in a way that the objective of allowing cultural minorities to protect and promote their traditions can be achieved? Finally, this pendular movement within the constitution can be seen in the declaration that Colombia is a unitary state and in the simultaneous recognition of self-government and jurisdictional powers to cultural minorities. Traditionally, unity of the state has meant in Colombia the amalgamation of all citizens around one, and only one, legal system and around one, and only one, homogeneous and centralized political structure. This concept of unity is clearly questioned by the recognition of the judicial traditions of Indigenous communities. It is questioned as well by the recognition that members of Aboriginal groups can autonomously determine the political, social and economic fate of their communities. Does this mean that the
52 52 The following rights, which develop or facilitate the self-government of cultural minorities, also compose this category: the declaration that Aboriginal territories are out of commerce (Const. Col. art. 63) and the recognition that Aboriginal lands have a “territorial entities” status as provinces or municipalities (Const. Col. arts. 287, 288, 289). This category is also constituted by the recognition of the collective property of Indian territories (Const. Col. art. 329) and by the declaration that the exploitation of natural resources within Indian land must be done without negatively affecting the social, economic and cultural integrity of the communities (Const. Col. art. 330). This category of rights includes as well the obligation of the state to promote the participation of Aboriginal communities in the decision making process concerning the exploitation of natural resources within their lands (Const. Col. art. 330, paragraph). Finally, this category includes the creation of a Senate’s special national electoral district for Indigenous people (Const. Col. art. 171), the Constitutional declaration that the law can create a House of Representative’s special electoral district for cultural minorities (Const. Col. art. 176), the right of communities with own linguistic traditions to a bilingual education (Const. Col. art. 10), the right to an education that respects and develops the cultural identity of cultural minorities (Const. Col. art. 68) and the recognition that the Indigenous groups’ languages are official within their territory (Const. Col. art. 10). constitution recognizes that there are several legal systems in Colombia? If that is the case, what should be the relation among them? Is it legitimate for the central and provincial governments to intervene in judicial and governmental actions of Aboriginal groups? If that is so, what are the criteria to determine when these interventions are legitimate? Can the central or the provincial governments intervene in areas that only affect the life of Indigenous communities? What happens if the decision of a legitimate cultural minority authority directly or indirectly affects the interests or rights of non-members of the community? The tension between cultural unity and cultural diversity within the constitution exemplifies the struggle among different views regarding the basic principles and institutions that should guide and structure the Colombian state. We want a country that grants political autonomy to its minorities but at the same time we want a country where citizens feel part of the same political project. We want a state that respects the legal systems of its minority cultures and at the same time we want to guarantee the state’s juridical unity. We want to recognize the different moral and political traditions of the cultures that inhabit Colombia and simultaneously we want to protect the equality and individual freedoms of all its citizens. The best interpretation of this conflict of ideals is expressed in the idea that we want a country united in its diversity. But what does this statement, widely repeated by academics, judges, politicians and the media since 1991, mean? What are the political and legal actions that we should take for this ideal to materialize? How can we plausibly accommodate these contradictory ideals?
Chapter Three The 1991 Constitution, the Constitutional Court and the Tension between Individual Rights and Radical Difference
In the previous chapter, I presented a brief historical analysis of the circumstances that motivated Colombians to convene the 1991 National Constitutional Assembly (NCA) and the way these circumstances determined the main aims of this Assembly. I also offered an analysis of the way these objectives were connected to the general goals pursued by the NCA when debating cultural minorities’ issues. I examined as well the proposals on how cultural minorities should be recognized and accommodated that were presented by the three representatives of Indian groups elected to the Assembly. Regarding these proposals, I argued that at their core there is an unresolved tension between cultural difference and political autonomy on the one hand, and cultural unity and political unity on the other. I also argued that this tension was reproduced in the final text of the Constitution in two analytically distinguishable but practically intertwined conflicts of values. The tension between individual rights and the recognition of cultural minorities’ moral and political traditions constitutes the first conflict of values. The tension between the principle of political unity and cultural minorities’ self-government rights structures the second conflict of constitutional values. In this chapter, I will analyze in detail the first conflict that constitutes the cultural unity– cultural difference tension within the 1991 Constitution. To accomplish this aim, I will first analyze in detail the juridical and political elements that compose the conflict between individual rights and cultural minorities’ illiberal moral and political traditions. Then, I will examine the Constitutional Court’s jurisprudence that has tried to solve it. Finally, I will offer some concluding remarks where I will make a balance of the arguments presented in the chapter.
The Values in Conflict
The first component of the cultural diversity–cultural unity tension of the 1991 political charter is constituted by the inclusion of both a liberal Bill of Rights and the recognition of minority groups’ moral and political uses and customs. The Bill of Rights is located in Title I of Chapter II of the political charter. In this section of the Constitution, a wide range of individual rights is granted to Colombians. Article 15, for example, grants citizens the right to privacy, article 16 the right to the free development of personality, article 17 freedom of conscience, article 19 freedom of religion, and article 20 freedom of expression. The Constitution also grants Colombians the right to due process (art. 29), to move freely around the country (art. 24), and to associate freely (art. 38). In tension with this set of classic liberal rights are the moral and political traditions of (some) cultural minorities. Cultural minorities’ illiberal traditions are recognized by article 1 of the Constitution, which defines Colombia as a participative and pluralist state, article 70, which recognizes the equality and dignity of all cultures, article 7 which asserts that the state recognizes the cultural and ethnic diversity of the country, and article 8, which indicates that the state has the obligation to protect the cultural richness of Colombia. The tension between the individual rights contained in the Bill of Rights and Aboriginal groups’ illiberal traditions can be clearly seen if we make explicit the moral and political assumptions on which the former and the latter are based.1 Individual rights imply a particular view of what a human being is and his or her relationship to state and community, which in many cases collide with minority groups’ world-views. Individual rights are grounded in the idea that all persons are free, rational and equal. Persons, liberalism believes, are equal in their capabilities for choosing and revising their life projects and for selecting and transforming their views about justice. The state and the community, liberal theorists argue, should not invade this private space in which life projects are realized. Liberals assume then that the individual has a potentially conflictive relationship with state and community. Those with public authority tend to abuse their power and invade the private spaces of individuals. Individual rights are the tools with which men and women protect themselves from the undue intervention of state and community. They redress the balance between citizens and authority, given the excessive power that these collective bodies tend to assume. Individual rights imply therefore the separation between the private and the public spheres. While the private is the area where individuals choose their life projects, the public is the area where the basic structure of the community is first discussed and designed. The former
11 See Rhoda Howard, Dignity, Community and Human Rights, in Human Rights in Cross–Cultural Perspective (Abdullahi An- Na’im ed. 1991); Rhoda Howard & Jack Donelly, Human Dignity, Human Rights and Political Regimes, 80 American Political Science Review No. 3 (1986); Charles Taylor, Sources of the Self: the Making of the Modern Identity (Harvard University Press 1989). For the Indigenous groups’ point of view on this matter, see Los pueblos indígenas de Colombia. Un reto hacia el nuevo milenio [Colombia’s Indigenous Peoples. A Challenge Towards the New Milenium] (Presidencia de la República & ONIC 1998); “Del olvido surgimos para traer nuevas esperanzas” –La Jurisdicción Especial Indígena- [“From Oblivion We Emerge to Bring New Hopes” –Indian Special Jurisdiction-] (CRIC, Ministerio de Justicia y del Derecho & Ministerio del Interior 1997).Charles Taylor, Multiculturalism: Examining the Politics of Recognition 31 (Princeton University Press 1994). is the space of morality, the latter, the space of justice. Individual rights guarantee all persons the equal opportunity to participate in the political sphere and shield the private sphere so that all human beings can decide, question, and transform their good life projects. Underlying individual rights there is a particular view about human dignity as well. Status or achievements are irrelevant categories for evaluating the fundamental moral worth of persons. Dignity is recognized in all members of the human species from birth to death. 2 This fundamental equality has consequences for the public orbit. Equal persons should be equal citizens. The state should treat all their citizens with equal consideration and respect. The state ought not to use its resources to protect or promote the moral views or interests of some of its associates over the others. All individuals should have the same opportunities to participate in the construction of the institutions and practices of the polity and should be equal before the law.3 Individual rights, hence, are in strong tension with status-based, non-egalitarian, and hierarchical societies.4 In these traditional communities, the individual is closely bound to the
22 Charles Taylor, Multiculturalism: Examining the Politics of Recognition 31 (Princeton University Press 1994).
33 This principle is central to multicultural reinterpretations of liberalism like Kymlicka’s. Kymlicka believes that, as it has been traditionally understood, the principle of state’s neutrality has been an instrument for the defense of the traditions of the majority. Since the state cannot avoid taking decisions about culture, historically, the principle of neutrality has been a cover for the use of state resources to protect the majority’s culture, and thus, for the violation of the principle of equality. If liberalism wants the principle of equal consideration and respect to be respected, it should grant differentiated rights to cultural minorities. These rights would allow minority groups to participate equally in the construction of the national public domain and allow them to build the private and public spheres of their communities without the undue intervention of the state or other cultural groups. See supra Will Kymlicka’s Multicultural Liberalism, Chapter One, Section 2, pp. 36-47.
44 The information for this analysis of Colombia’s Aboriginal groups’ moral, legal, and political traditions was found in: Roberto Pineda, Pueblos Indígenas de Colombia: Una Aproximación a su Historia, Economía y Sociedad [Indigenous Peoples of Colombia: An Approach to their History, Economy and Society] in Tierra Profanada. Grandes Proyectos en Territorios Indígenas de Colombia (Disloque Editores 1995); Alvaro Chaves, Jorge Morales, and Horacio Calle, Los Indios de Colombia [Indians of Colombia] (Editorial MAPFRE 1992); Raúl Arango & Enrique Sánchez, Los pueblos indígenas de Colombia 1997 : desarrollo y territorio [Indigenous Peoples of Colombia 1997: Development and Territory] (TM Editores ed., Departamento Nacional de Planeación & Unidad Administrativa Especial de Desarrollo Territorial 1998); Carlos César Perafán, Sistemas jurídicos paez, kogi, wayúu y tule [Paez’s, Kogi’s, Wayúu’s and Tule’s Legal Systems] (Instituto Colombiano de Cultura & Instituto Colombiano de Antropología 1995); Carlos César Perafán, Luis José Azcárate, Hildur Zea Sjoberg, Sistemas jurídicos tukano, chamí, guambiano y sikuani [tukano’s, chamí’s, guambiano’s and sikuani’s Legal Systems] (Instituto Colombiano de Antropología e Historia & Colciencias 2000); Gerardo Reichel-Dolmatoff, Contactos y cambios culturales en la Sierra Nevada de Santa Marta [Contacts and Cultural Changes in the Sierra Nevada of Santa Marta] (Antares 1953); Gerardo Reichel- Dolmatoff, Datos histórico-culturales sobre las tribus de la antigua Gobernación de Santa Marta [Historical and Cultural Data about the Tribes of the Ancient Province of Santa Marta] (Banco de la República 1951); Gerardo Reichel-Dolmatoff, Indians of Colombia: experience and cognition (Villegas Editores 1991); Gerardo Reichel-Dolmatoff, Ika, Sierra Nevada de Santa Marta, Colombia : notas etnográficas, 1946-1966 [Ikas, the Sierra Nevada of Santa Marta, Colombia: Ethnographic Notes, 1946-1966] (Centro Editorial de la Universidad Nacional de Colombia 1991); Manuela Fisher, La Persistencia de los Valores Religiosos Tradicionales entre los Kagaba de la Sierra Nevada de Santa Marta, Colombia [The Persistence of Traditional Religious Values among the Kagaba of the Sierra Nevada de Santa Marta, Colombia] in Las Religiones Amerindias 500 Años Después (Ediciones Abya –Yala 1989); Carlos Alberto Uribe, La Gran Sociedad Indígena de la Sierra Nevada de Santa Marta en los Contextos Nacional y Regional [The Great Indigenous Society of the Sierra Nevada de Santa Marta in the Nacional and Regional Contexts] in Encrucijadas de Colombia Amerindia (Instituto Colombiano de Antropología – Colcultura 1993); Silvia Botero, Indígenas de la Sierra Nevada de Santa Marta [Indians of the Sierra Nevada de Santa Marta] in Introducción a la Colombia Amerindia, (Instituto Colombiano de Antropología 1987); Alvaro Chaves and Lucia de Francisco Zea, Los Ijca [The Ijca], (Instituto Colombiano de Cultura 1977). Gustavo G. Politis, Nukak [Nukak] (Instituto Amazónico de Investigaciones Científicas SINCHI 1996); Jaime Caicedo Turriago, Los Nukak: Transformaciones Socioculturales y Articulación Étnica en una Situación Regional [The Nukak: Sociocultural Transformations and Ethnic Articulation in a Regional Setting] in community by a set of pre-determined obligations that define him or her. What individuals are and the worth they have as persons is determined by the status they occupy in society, by their societal achievements and/or by the fidelity with which they comply with the norms and customs of their community. Dignity therefore is public, collective and prescribed by social norms. Persons are not understood as self-critical individuals separable from their groups. Moreover, critical reflection about the meaning and consequences of the roles society confers on individuals is not necessarily welcomed. This type of conduct is viewed with suspicion as a potential source of disharmony and conflict within the group. Individuals of course are valued in these societies, but they are generally seen through their relation with the group. Persons understand themselves and others through the roles they occupy in the community. There is no radical differentiation between the subject and the group. There is no fundamental tension between them either. The collectivity is not seen as an entity with the tendency to abuse its power. The idea that persons should have rights and more precisely, rights to be protected from the community is not common in these societies. Furthermore, when in conflict, the interests of the collectivity should generally prevail over the interests of the individual. The well-being of the community is in numerous cases more important than the well-being of its members. In many of these communities, human beings are not considered equal. Hierarchies determined by criteria like age and gender determine the value of persons and the possibilities to participate in the polity. However, persons usually have a secure position in society and a strong system of reciprocal duties guarantees them the satisfaction of their basic needs. In these traditional communities the separation between the public and the private spheres is blurred. The good and the correct are not clearly differentiated (if at all). Sometimes authorities of the community distinguish between moral and legal standards, other times the difference between morality and law is not even recognized by them. Moreover, in some of these communities there is no difference between the violation of a moral or legal rule and the violation of a cosmological rule. The breach of the moral or legal order brings, as a necessary consequence, the breach of the order of the universe. All three orbits are strongly interconnected, as all organic and inorganic entities are. Human beings are just one more element of the universe. They are not the most important form of life, nor are they called upon to rule the others. The relationship between human beings and nature is not one of domination and exploitation. Men and women do not own nature. They can live from nature’s products but they cannot claim rights over it. The satisfaction of basic individual and collective needs, not accumulation of wealth, is the aim of these communities’ economic activities. The majority of these traditional societies have economies centered in agriculture of subsistence and some of them in gathering, hunting and fishing activities.
Encrucijadas de Colombia Amerindia, (Instituto Colombiano de Antropología – Colcultura 1993); Francois Correa, Makú [Makú] in Introducción a la Colombia Amerindia, (Instituto Colombiano de Antropología 1987); Irving Goldman, Los Cubeo. Indios del Noroeste del Amazonas [The Cubeo. Indians of the Northwest Amazon], (Instituto Indigenista Interamericano 1968); Sergio Iván Carmona, Los Embera, Gentes de Río, de Selva y de Montaña [The Embera, River, Jungle, and Mountain People] in Encrucijadas de Colombia Amerindia, (Instituto Colombiano de Antropología – Colcultura 1993); Otto Vergara, Guajiros [Guajiros] in Introducción a la Colombia Amerindia, (Instituto Colombiano de Antropología 1987); Carlos Alberto Uribe, Chimila [Chimila] in Introducción a la Colombia Amerindia, (Instituto Colombiano de Antropología 1987); Orlando Jaramillo, Barí [Barí] in Introducción a la Colombia Amerindia, (Instituto Colombiano de Antropología 1987); Gerardo Reichel- Dolmatoff, Desana texts and contexts (Föhrenau 1989). There is no common culture to all minority groups that live in Colombia. Their traditions and their grade of assimilation to the dominant culture vary notably. There is an enormous difference among, for example, the Kogui, the Guambiano and the Coyaima–Natagaima Aboriginal communities. While the first group still maintains an important part of their cultural traditions, the second group has incorporated a great number of the majority’s cultural traditions while at the same time maintaining some elements of its cultural legacy, and the third group cannot be distinguished from a group of peasants. However, it is arguable that the majority of Colombia’s minority cultures (but by no means all) share some of the basic characteristics that are here offered as common to traditional hierarchical societies. All of Colombia’s cultural minorities have incorporated (political, social, economic and religious) elements from the majority’s culture in a large or small grade. They are all cultural hybrids. Their cultures are complex structures where old and new traditions coexist in sometimes peaceful, sometimes problematic ways. The political institutions and religious beliefs of many of Colombia’s Aboriginal groups, for example, were first imposed by the cultural majority and then, through a slow historical process, accepted as their own by these cultural communities. The Cabildos, the political institution that governs a great number of Indian communities today, were created by the Spanish crown in the XVI century as a way to protect Aboriginal groups from the abuses committed against them by, among others, big land owners and mine proprietors. Similarly, the Catholic beliefs favored by many Aboriginal groups’ members today arrived in their communities through state sponsored missions that had as their main aim to save, forcefully if necessary, the souls of all Indians. My aim then, is not to claim that all cultural minorities in Colombia are traditional hierarchical societies or that they have the same cultural features but to establish that there are strong differences between the liberal framework that encompasses individual rights and the traditional and hybrid cultural minorities that live in Colombia. My aim is also to make explicit that these differences can cause (and have caused) serious legal and political tensions that can negatively affect the relationship between the cultural majority and cultural minorities in the country. The legal and political tensions that these differences have caused since the enactment of the 1991 Constitution have generated enormous challenges to Colombia’s central and provincial authorities. Unfortunately, these challenges have not been adequately confronted. The majority of Colombia’s authorities did not (and still do not) have the theoretical tools and resources to deal with these problems adequately. The Constitutional Court, however, has been the exception to this rule. On a number of occasions, the Court has made serious efforts to give appropriate solutions to the conflicts generated by these legal and political tensions. Mainly as a result of the Court’s jurisprudence, the concrete ways in which the tension between individual rights and cultural minorities’ illiberal traditions conflict in Colombia has started to be known and to be publicly discussed. The debate about this topic has focused on some Aboriginal groups’ efforts to protect their cultural traditions by radically limiting the individual rights of their members and/or the individual rights of the “white people” that live in their territories. Since the enactment of the 1991 Constitution, many Aboriginal groups have tried to recuperate their lost traditions and to protect those that they have not lost from the undue interference of the cultural majority. Indian groups like the Kogui, Arhuaco, Wiwa, Huitoto, Muinane, and U’wa, among others, have felt empowered by the political charter. They feel that they now have the legal and political tools to oppose the forces that want them to assimilate to the cultural majority. Since religion has been one of the most effective instruments through which the majority has tried to destroy the integrity of minorities’ cultures, it is not surprising that Aboriginal groups’ attempts to protect their traditions have focused on neutralizing the effects that Catholicism and Protestantism have had (and could have) in their communities. With this aim in mind, some Aboriginal communities like the Kogui, the Arhuaco and the Wiwa have expelled missionaries from their Resguardos, closed churches, prohibited the organization of any religious ritual different from those demanded by their traditional religions within their territories, and forbidden their members to become part of any “white” church.5 In as much as Aboriginal groups’ cultural reawakening will probably continue and these communities’ exchanges (social, political, religious and economic) with the cultural majority are inevitable, it is very probable that religion will continue to be central in the public debate about the constitutional tension between individual rights and cultural difference. A second topic related to this tension that has been discussed publicly (and will probably be discussed in the future) is related to the procedures through which some Aboriginal groups judge those members of their communities that are suspected of violating their “criminal” laws and the punishments that they have (or can) impose on those persons convicted.6 The majority of Indian groups’ practice of criminal procedures violates the right to due process as understood by the “white” culture, e.g., the “criminal laws” of the Embera-Chamí, Nukak Makú and Wayúu. The “legal” traditions of a great number of Aboriginal groups in Colombia do not include, for example, the right to have a lawyer, the right to participate in one’s own trial and/or a written code prescribing in precise terms the conduct for which a person could be judged and sentenced. Similarly, some of the punishments stipulated by Indian groups’ traditions violate what the cultural majority has traditionally understood as the rights to bodily integrity, the right not to receive cruel and degrading treatments, the principle stating that criminal responsibility is individual, and/or the prohibition of state confiscation of property. Aboriginal groups like the Paeces and the Guambiano, include among their punishments whippings, snare, and transferring to the community all properties owned by those found responsible for committing a crime. Similarly, some Indian groups allow imposing punishments not only on the person found guilty but also over her family, e.g., the Pijao. The way in which some Aboriginal groups’ traditions violate the right to life is a third issue that has been publicly discussed in the country. The customs of the U’wa, for example, identify twins with evil. To protect the community from this incarnation of radical malevolence, the U’wa traditionally abandon twins immediately after they are born. 7 Some of the traditions of the Nukak Makú violate the right to life as well. The Nukak Makú is a nomadic group that lives in the southeastern part of the country. They have had relatively little contact with the cultural majority. Since they have to move constantly in search of food, their customs prescribe that any seriously ill member of the community should be abandoned. The well being of the group should not be put at risk by the illness of one of its members. In the last 13 years, there has been
55 See, e.g., Case SU-510/98, Corte Constitucional, exp. No. T-141047, 18. 09. 1998; Case T-257/93, Corte Constitucional, exp. No. T-10.239, 30. 06. 1993. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System] (last modified Oct.11, 2004)
66 See, e.g., Cases T-349/96, Corte Constitucional, exp. No. T-83456, 08. 08. 1996; Case T-254/94, Corte Constitucional, exp. No. T-30116, 30. 05. 1994. Id.
77 See Case T-030/2000, Corte Constitucional, exp. No. T-244330, 25. 01. 2000. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System], supra note 5. only one case related to twins and the U’wa people and one case related to a child abandoned by the Nukak Makú. In the first case, the U’wa people finally decided to accept the twins within their community and in the case of the Nukak Makú the child was adopted by a “white” family. Given the exceptional character of these cases and the fact that they found a satisfactory resolution for the majority, they did not generate an intense or even (in the case of the Nukak Makú) a significant public debate in the country. However, since the right endangered by the traditions of these communities is so important for the cultural majority, if similar cases arise, it is probable that the level and intensity of the public debate would increase. There is a fourth issue that will probably generate some serious intercultural conflicts in the future but that, so far, has not been debated widely in Colombia: the tension between gender and equality. A great number of cultural minorities in the country structure their public life around patriarchal institutions. Women, in many of these communities, cannot be part of any political institution, e.g., the councils where political decisions are taken in the Kogui, the Arhuaco and the U’wa communities are formed by men only. Consequently, it is to be expected that feminist organizations of the majority, groups of women belonging to Aboriginal groups and/or the media, among others, will start questioning publicly the moral and political justifications of the gender biased traditions of cultural minorities. It is to be expected as well, that many of the conflicts generated by the enforcement of these traditions will arrive at the Constitutional Court.
The Constitutional Court and the Tension between Individual Rights and Cultural Diversity
The Constitutional Court is the Colombian institution that has tried to answer the questions generated by the tension between individual rights and cultural difference in the most thorough way. Its views have defined the framework within which the legislative and the executive powers as well as minority groups and common citizens of the majority culture have understood the problems generated by the coexistence of liberal and illiberal communities in the country and the measures that should be implemented to recognize and accommodate cultural difference. In the last 13 years, the Constitutional Court has decided 30 cases directly concerning cultural diversity issues. Eight dealt directly with the tension between individual rights and cultural difference. In these cases, while discussing the characteristics and limits of Aboriginal groups’ judicial powers, the Court has tried to find ways to accommodate individual rights with the illiberal or hybrid ways of life of minority groups. No consistent view has emerged. Instead, in these eight cases the Court offers three ways to balance the tension between individual rights and the illiberal or hybrid moral and political views of cultural minorities. The first view, which I will call Pure Liberalism, argues that individual rights and the liberal conceptual framework within which they are situated should be respected by all cultures that inhabit the country. Justice demands respect for individual rights and there can be no exception to this rule. The equal dignity of all human beings cannot be violated by giving priority to illiberal values. The only cultural differences that the Constitution recognizes and accommodates are therefore those produced by the various interpretations of the liberal canon or those that are compatible with the liberal regime of rights. Consequently, the state can legitimately invest its resources to transform any tradition outside the moral boundaries of liberalism. The Court’s second interpretation of the constitutional tension, which I will call Radical Interculturalism, moves in exactly the opposite direction, arguing that the political and legal autonomy of the national minorities8 should be maximized and restrictions on diversity minimized. The only limits to Aboriginal groups’ autonomy, the Court argues, should be those based on values supported by an intercultural agreement. For the Court these values are life (prohibition of the death penalty), bodily integrity (prohibition of torture) and freedom (prohibition of slavery). The Court adds to this list the principles of due process and nulla penna, nulla crimean sine legem because of explicit constitutional mandates. This reading of the political charter opens an interesting space for the accommodation of cultural difference. It recognizes the perspectival character of the moral and political values embraced by the majority and the need to accommodate minority cultures without requiring them to transform themselves into variations of the hegemonic culture. However, the judicial arguments used to justify this position are flawed. The Court does not convincingly justify the supposed intercultural character of the values mentioned and does not make a case for the idea that these are the only common values among the different cultures that inhabit the country. The third view offered by the Court, which I will call Cultural Liberalism, states, as the first perspective does, that individual rights should be privileged over non-liberal values. However, while the latter does not accept any exception to the rule that liberalism’s basic values should be acknowledged by all cultures, the former indicates that individual rights can be restricted if there is evidence that this is the only means available to avoid the disappearance of a (liberal or illiberal) culture.
Pure Liberalism: The Absolute Primacy of Individual Rights and Imperative Laws9
The first interpretation of the cultural unity–cultural diversity tension is stated in case T- 254/94 (El Tambo case).10 In this case an Indigenous group expelled one of its members from the community as punishment for committing several robberies in the lands of the Resguardo. The group also expelled his family and took away all his property. The accused argued that the decision of the community’s authorities was baseless. In his view, the group’s leaders did not investigate the case properly and justified their decision on circumstantial evidence. However, the accused told the leaders of the Indigenous group that he would leave Indian territory if the part of the collective land given to him by the community was reassigned to one of his sons. The community rejected this petition and confirmed its decision. The accused then asked the
88 National minorities are those communities that have a culture and language different from that of the majority, inhabit an ancestral territory, and are more or less institutionally complete. See supra Will Kymlicka’s Multicultural Liberalism, Chapter One, Section 2, pp. 36-47, for a longer discussion of this issue. In Colombia, Indigenous groups are the only cultural minorities that can be clearly included within this definition.
99 In the civil law tradition, imperative laws are those laws that citizens must comply with. Citizens cannot choose to obey them or not obey them. Criminal law is a good example of this type of laws. Imperative laws are in sharp contrast with facultative laws. Facultative laws are not mandatory. Citizens can choose to comply with their directives or not. Laws regulating marriage and wills are good examples of this type of laws.
1010 Case T-254/94, Corte Constitucional, supra note 6. This first perspective is reiterated and radicalized in the concurrent opinions of Embera-Chamí and the dissenting opinions of Arhuaco. See infra note 30, p. 122; note 36, p. 127; note 49, p. 134. Indigenous group’s leaders to pay him the value of the work he did for years in the lot he had in the Resguardo. Indian authorities rejected this petition as well. The Court’s opinion is structured around three legal problems: First, the constitutionality of the sanctions imposed upon the person convicted; second, the constitutionality of the sanctions imposed on the family of the offender; and third, the definition of the limits of the jurisdictional powers granted to the Indigenous groups by the Constitution. For the Court, one of the punishments imposed on the convicted man was unconstitutional and the other was constitutional. The Court justified both decisions with textual arguments. The Court said that taking all the property of the person convicted without paying any compensation is equivalent to confiscating it and that article 38 of the Constitution explicitly prohibits this sanction. The Court held that the expulsion of the individual from the community is constitutional in as much as the decision of the Aboriginal community cannot be considered as exiling him. Exile is a punishment forbidden by the Constitution in article 38 and it implies the expulsion of the individual from the country. The Court decided as well that the punishment imposed on the family of the offender was unconstitutional. It indicated that criminal responsibility is individual and thus cannot be extended to third parties. It also concluded that the punishment imposed on the accused and his family was disproportionate. The cultural and material consequences for the family of the defendant were extremely harsh, involving the complete change of cultural horizons, the loss of absolutely all property, and the economic means it had for its survival. Finally, the Court put forward the following rules to determine the limits of the jurisdictional powers of Aboriginal groups. The first rule states that the more conservative the community is in the maintenance of its uses and customs, the more autonomy it should have. For the Court, it is of great importance to distinguish between the communities that still maintain an important part of their ancestral traditions and the communities that have been notably or totally assimilated to the culture of the majority. While the former, the Court argues, have an “objective normative framework that guarantees the juridical security and social stability” 11 of their collectivities, the latter do not. Therefore, while traditional communities can be –in principle– ruled by their uses and customs, the laws of the majority should govern, partially or totally, the life of Indigenous groups that have been (at least partly) assimilated by the dominant culture. The laws of the majority, the Court claims, should fill all spaces left by the disappearance of Aboriginal groups’ traditions so that social instability and legal insecurity can be avoided. The second rule states that the core of constitutional, fundamental rights is the minimum standard to which all individuals and jurisdictions are held. In this respect the Court says that, “…it is not superfluous to underline that the axiological system contained in the Charter of rights and duties, particularly fundamental rights, constitute a material limit to the principle of cultural and ethnic diversity and the value codes of the different Indigenous communities that inhabit the national territory.”12 The universal character of fundamental rights, the Court argues, justifies this rule. Fundamental rights are not culturally relative. 13 For the Court, these rights should be
1111 Case T-254/94, Corte Constitucional, supra note 6.
1212 Id.
1313 Justice Hernández says in his concurrent opinion of case 349/96 that individual rights are “essential part of the idea of justice, [they are] prior to any norm or custom”. In this opinion, Justice Hernández specifically refers to the rights of the individual to participate in his or her trial and controvert evidence. See Case T-349/96, Corte Constitucional, supra note 6. applied in any state or community. They transcend political boundaries in as much as they are a component of the universal idea of justice. 14 The third rule states that all public order laws have priority over the uses and customs of Aboriginal communities if the constitutional value they protect is superior to that of cultural diversity. Congress, the Court argues, enacts public order laws to protect values that are considered by the polity of fundamental importance, e.g., national security and freedom of expression. Therefore, in principle, nobody should be exempted from complying with these laws. However, for the Court, cultural diversity is such an important value that only imperative laws that protect a higher normative principle should be privileged over it. It is important to note though, that the Court does not say which are these superior values and does not provide any criterion to identify them. The fourth and last rule indicates that Indian uses and customs should have prevalence over discretionary laws enacted by Congress, e.g., laws that regulate wills and contracts. Since all Colombians can choose to comply or not to comply with the contents of these laws, the Court does not see why Aboriginal groups’ self-government rights should be limited by them. On the contrary, the political autonomy granted to Indian groups by the Constitution, the Court argues, allows Aboriginal communities’ authorities to offer alternative normative standards to those presented in discretionary laws and to make these standards mandatory to the groups’ members. The Constitutional Court’s opinion in El Tambo then aims to defend two basic ideas: liberalism’s concept of the subject and a traditional view of political unity. The Court’s main objective is the protection of liberalism’s definition of the moral value of the subject: persons are free, rational, and equal individuals. That is why the Court states that individual rights, the instruments designed to protect human dignity from the undue intervention of state and community, should be respected by Indigenous’ authorities. That is why the Court also indicates that the punishments imposed upon the family of the person accused of robbery and the confiscation of his property were unconstitutional. For the Court, individual rights transcend any cultural value. They are universal and should be applied in all cultural contexts. From the Court’s perspective therefore, culture should be subordinated to individual rights. In El Tambo, the Court makes explicit that culture is an important constitutional value. This is true even of illiberal or hybrid communities. However, in this decision, the Court also makes clear that culture is not as important as the rights, which aim to protect essential moral features. The Court’s second objective is to present a conservative interpretation of the principle of political unity. For the Court, only a strongly hierarchical, centralized, and homogeneous legal and political order can guarantee the stability and union of the country. From the Court’s point of view, the fact that the Constitution locates Congress and the presidency at the top of
1414 For the Court, the numerous human rights treaties that exist today ratify the universality of individual rights:
The absolute validity of constitutional fundamental rights within Indian territories as a limit to the principle of ethnic and cultural diversity is accepted by international law. Particularly, [international law recognizes] everything related to human rights as the universal code of coexistence and dialogue among cultures and nations, prerequisite for peace, justice, freedom and prosperity for all peoples.
Case T-254/94, Corte Constitucional, supra note 6. To understand the Court’s argument it is important to take into account that article 93 of the Constitution indicates that all human rights treaties ratified by Congress “prevail in the internal order.” Article 93 also says that the rights and duties granted and imposed by the Constitution must be interpreted in the light of the human rights treaties ratified by Colombia. Colombia’s institutional structure is not gratuitous. Since the president and congresspersons are the only government officials elected by all citizens, they should define the framework within which all other state authorities can act. The coherence and systematic character of the legal and political order can be guaranteed only if the rest of the country’s institutions respect the limits imposed by nationally elected authorities. That is why the Court states in this decision that the political and legal autonomy of cultural minorities’ leaders is limited by imperative legal norms that can only be enacted by Congress or the presidency. If minority groups’ authorities (or any other provincial or municipal authority) contradict the decisions of these two institutions, the Court argues, citizens would not know what laws to obey and social chaos and legal insecurity would rapidly appear. The Court’s decision in El Tambo, therefore, favors without any nuance the cultural unity pole of the tension within the Constitution. Wrapped in rhetoric of respect for difference and of its wish to achieve unity within diversity, the Court radically restricts the self-government and jurisdictional powers of Aboriginal groups by imposing the central moral and political values of the dominant culture on Indian communities. Any judicial or governmental act of Indian authorities should respect, among others, the principle of individual responsibility for crimes and punishments, freedom of religion, freedom of conscience and due process. For the Court, individual rights are not Western rights; they are the rights that all human beings are entitled to. They are rights that should be applied in all societies. Without them, no community can achieve order and justice. The limits that the Court imposed over the self-government and judicial rights of Aboriginal groups do not end here though. The Court also stated that all public order laws that protect a value superior to cultural diversity restrict Aboriginal groups’ autonomy. This means that potentially all imperative laws should be acknowledged and respected by Indigenous groups’ authorities. Indigenous communities’ self-government rights are so limited by the Court’s decision in El Tambo that they become largely irrelevant. The only Aboriginal groups’ traditions that could be enforced are those compatible with the basic structure of the majority’s legal system and only within the interstices left by its components. Aboriginal groups are seen by the Court not as cultural communities but as one more political subdivision of Colombia’s state. Indian groups are no different from cities or provinces. As city Councils and provincial Assemblies, Aboriginal groups’ political institutions have only the power to develop the legal rules enacted by Congress. The opinion of the Court in El Tambo also privileges the cultural unity pole of the Constitution when it says that Indigenous communities’ autonomy is relative to the conservation of their traditions. This view implausibly limits Aboriginal groups’ self-government rights. For the Court, Indigenous groups that conserve their cultural “purity” should enjoy a wider autonomy. This criterion for determining the grade of political and legal autonomy of Aboriginal groups promotes the artificial freezing of Indian cultures. Cultural change is not an alternative if Aboriginal communities want to self-govern themselves. The Court’s view implies that for each group there is one and only one true tradition and that this tradition is prior to the creation of the central state. This perspective is based on erroneous factual assumptions, since Aboriginal groups’ cultures (as perhaps all other cultures) are hybrids created by fragments of different traditions. 15 The worldviews of Colombia’s Aboriginal communities have been constructed by
1515 Alvaro Chaves, Jorge Morales, and Horacio Calle, Los Indios de Colombia [Indians of Colombia] at 232 – 6 (Editorial MAPFRE 1992) and Roberto Pineda, Pueblos Indígenas de Colombia: Una Aproximación a su Historia, Economía y Sociedad [Indigenous Peoples of Colombia: An Approach to their History, Economy and Society] in Tierra Profanada. Grandes the amalgamation of pieces of the various cultures with which they have had contact. There is no Aboriginal community in the country that has not had continuous contact with the majority and/or with other cultural minorities. As a consequence of these regular cultural encounters there is no Indian group that has not assimilated at least some traditions of other cultural groups. A great number of Aboriginal communities, for example, have Catholic and Protestant members (e.g., the Guambiano, Paez, Arhuaco, U’wa and Muisca communities), celebrate Catholic special days (e.g., San Luis day is a very important community event for the Wiwa), are ruled by political institutions imposed on them by the Spanish crown (e.g., Cabildos that rule in the great majority of Resguardos) and/or their legal rules are enforced by persons representing institutions created by the Spanish crown or by the governments of the early days of the republic (e.g., the Alguaciles, Capitanes and Comisarios that enforce the laws of Koguis, Arhuacos, Achaguas, and Wiwas). As a consequence of these cultural exchanges, traditional and modern cultural standards and practices that are in constant conflict rule some Indigenous groups (e.g., the Paez, Guambiano, Arhuaco, Embera, and U’wa), some others cannot be distinguished from the majority cultures’ communities of peasants (e.g., the Muisca, Kancuamo and Coyaima–Natagaima) and a few of them organize their private and public life through customs that have not been notably changed for centuries (e.g., the Nukak Makú).16 Members of each Indian group see themselves as part of the same historical community – a belief that gives continuity and a sense of stability and permanence to the cultural community. However, Aboriginal groups’ cultures (as the traditions of all human groups) are continuously changing. Today, for example, some groups like the Kancuamo and the Dujo are trying to recuperate the uses and customs of their ancestors, some others like the Nukak Makú are increasing their exchanges with other minority cultures and/or the majority, and still more are trying to protect their customary ways of living by isolating themselves, e.g., the Kogui and Huitoto. Indigenous communities, the Constitution says, can rule themselves through their own uses and customs. Cultural “purity” then should not be the criterion through which the self- government rights of Aboriginal groups are interpreted. It should be a marginal fact if those ways of life are similar or different from the ones held by the cultural majority. The Constitution just says that the uses and customs applied within Indian territories should be Aboriginal groups’ uses and customs. The political charter does not say that the scope of traditional Aboriginal groups’ self government rights should be wider than that of culturally mixed Aboriginal groups. The texts of articles 246 and 330 make no reference to this issue and it would not be plausible to interpret them as including a “cultural purity” rule, since all Aboriginal groups in Colombia are culturally hybrid entities. It should not be forgotten either that the majority of these groups lost part or the totality of their culture not by a free decision of their members but by centuries of
Proyectos en Territorios Indígenas de Colombia (Disloque Editores 1995).
1616 See Manuela Fisher, La Persistencia de los Valores Religiosos Tradicionales entre los Kagaba de la Sierra Nevada de Santa Marta, Colombia, supra note 4, at 209-11; Gustavo G. Politis, Nukak supra note 4, at 357-69; Alvaro Chaves and Lucia de Francisco Zea, Los Ijca supra note 4 at, 141-6; Carlos Alberto Uribe, La Gran Sociedad Indígena de la Sierra Nevada de Santa Marta en los Contextos Nacional y Regional supra note 4 at 71-3; Silvia Botero, Indígenas de la Sierra Nevada de Santa Marta, supra note 4 at 48; Francois Correa, Makú, supra note 4, at 132-3; Jaime Caicedo Turriago, Los Nukak: Transformaciones Socioculturales y Articulación Étnica en una Situación Regional, supra note 4, at 154 - 7; Sergio Iván Carmona, Los Embera, Gentes de Río, de Selva y de Montaña, supra note 4, at 302-16; and Otto Vergara, Guajiros, supra note 4, at 36-7. political, legal and physical violence. Since the Conquest, the dominant culture has tried to exterminate Aboriginal groups’ cultures. The Constitutional Assembly of 1991 recognized this legacy of violence and tried to remedy it by granting Aboriginal groups the right to self- government. It recognized that Indigenous communities should autonomously decide what traditions they want to forget, recuperate, reproduce or assimilate.17 The “cultural purity” criterion established by the Court radically limits these Aboriginal groups’ rights. Besides encouraging the freezing of the communities that have not been assimilated by the dominant culture, the Court’s criterion also encourages groups that have integrated to the hegemonic culture to return to traditions long forgotten. If these Aboriginal groups want a greater degree of political and legal autonomy, they should recuperate their lost “pure” culture. In both cases (promoting change or permanence of traditions) the dominant culture, through the Constitutional Court, is interfering in a decision that should be autonomously taken by the Aboriginal groups. In sum, in this case the Court inclined the balance toward the cultural unity pole of the constitutional tension. Liberal values should be the lingua franca among cultures. If a culture does not speak this language, it will not be recognized and accommodated. The Constitution then only recognizes and accommodates cultures that although different in some aspects, share the basic liberal values. Non-liberal cultures should transform themselves. But the limits that the Court imposes on Aboriginal groups’ autonomy are even broader. The Court also affirmed that Indian authorities should respect all public order laws promoting values superior to cultural diversity. Indigenous communities then should acknowledge not only the center of the dominant culture’s legal, moral and political values but also its periphery. Two intertwined reasons explain the decision taken by the Court in El Tambo. First, the political commitments of Justice Cifuentes. El Tambo was unanimously decided by Justices Eduardo Cifuentes, Carlos Gaviria, and José Gregorio Hernández.18 The opinion of the Court was written by Justice Cifuentes. The opinions written by Cifuentes during the 9 years that he served in the Court show his allegiance to liberalism.19 For Cifuentes, liberalism’s concept of the person is at the base of the political charter. He has firmly asserted that the 1991 Constitution rests on the idea that human beings are free and rational individuals. He has also stated that individual rights are the most important instruments that the political charter has for the protection of persons. It is no surprise then, that in El Tambo, Cifuentes gave individual rights absolute priority over cultural difference. Second, El Tambo was the first case in which the Court confronted the constitutional tension between individual rights and cultural diversity. Justices Cifuentes, Gaviria, and Hernández did not have other theoretical tools for understanding and solving this conflict than those provided
1717 See supra Chapter Two, for a discussion of the ways in which this argument was presented during the Constitutional National Assembly by Delegates Rojas Birry, Muelas and Peña.
1818 Tutela cases, as a rule, are decided by panels of three Justices (each of the Court’s nine Justices is part of two different panels). The only exception to this rule is when there are discrepancies in the way different panels have solved analogous conflicts. In these situations, to unify the Court’s jurisprudence, the nine Justices decide the new case that should be solved by the tribunal. These opinions are called Unification Opinions (Sentencias de Unificación - SU).
1919 See, e.g., Corte Constitucional, Cases T-426/92, exp. No. T-824, 24. 06. 1992; T-533/92, exp. No. T-3038, 23. 09. 92; SU- 559/97, exp. No. T-115839 & T-116052, 06. 11. 1997; T-066/98, exp. No. T-145002, 05. 03. 1998; SU-642/98, exp. No. T- 164970, 05. 11. 1998. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System], supra note 5. by what Tully calls modern constitutionalism.20 Although the political charter changed the framework within intercultural relations should be managed in Colombia, this constitutional structure was interpreted using traditional understandings of key political and legal categories like sovereignty, rights, unity and diversity. Cultural diversity issues had not been discussed seriously and/or regularly in Colombia’s political domain, the number of legal and philosophical academic publications on multicultural issues was low and of variable quality, and the work produced in other countries on this matter was only known and discussed by a few academic experts. Since the Constitutional Assembly did not provide any guidance on how to resolve this constitutional tension, Justices Cifuentes, Gaviria, and Hernández probably believed (as many delegates probably did)21 that the only morally justified solution to this conflict was to subordinate cultural diversity to liberalism’s core values. However, El Tambo was the law of the land for a short period of time. The Constitutional Court changed its position with regard to the individual rights–cultural difference tension in Embera-Chamí in 1996, and then again in Arhuaco, two years later. While Embera–Chamí was also a Tutela case, Arhuaco was a Unification Opinion. While the former was decided by a panel different than the one that drafted El Tambo, the latter was decided by the Court’s nine justices in an attempt to unify the Court’s conflicting jurisprudence.
Radical Interculturalism: Protecting and Promoting Cultural Diversity
The second judicial interpretation of the diversity–unity tension was first expressed in case T- 349/9622 (Embera-Chamí Case). The constitutional doctrine of this case is confirmed in cases T- 496/96, C-139/96, T-523/97, and T-266/99.23 In all these cases, Radical Interculturalism is the perspective used by the Court to solve the tension between individual rights and cultural difference. The central argument of these opinions is that cultural diversity can be justly recognized and accommodated only if Aboriginal groups are granted the maximum autonomy possible to self-govern. The Court now recognizes that the only way to protect and promote cultural diversity is through the daily application of traditions and customs that express the different world views of Aboriginal groups. No intervention of the dominant cultures in Indigenous communities’ affairs is legitimate, says the Court, if it does not aim to protect a constitutional value superior to cultural diversity. These superior values, the Court argues, are those that are the product of a broad inter-cultural agreement, and not those merely supported by the dominant culture. To impose the liberal values of the majority on Indian communities, the Court claims, would violate Aboriginal groups’ self-government rights and the constitutional principle that recognizes the equal dignity of all cultures present in Colombia. The facts of Embera-Chamí can be synthesized as follows. Indian authorities captured one of the members of their group because he allegedly participated in the homicide of another member of the community. He escaped and surrendered to cultural majority judicial authorities, which
2020 See supra James Tully: Modern Constitutionalism in a Post-Colonial Age, Chapter one, Section 3, pp. 47-62.
2121 See supra Chapter 2, for an examination of the Constitutional National Assembly delegates’ thoughts on this issue.
2222 Case T-349/96, Corte Constitucional, supra note 6.
2323 Cases T-496/96, Corte Constitucional, exp. No. T-100537, 26. 09. 1996; C-139/96, Corte Constitucional, exp. No. D-1080, 09. 04. 1996; T-523/97, Corte Constitucional, exp. No. T-124907, 15. 10. 1997; T-266/99, Corte Constitucional, exp. No. T- 177.105, 27. 04. 1999. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System], supra note 5. started an investigation. This investigation ended when Indian authorities notified the “white” court that the Aboriginal community had judged the defendant in his absence, found him guilty of homicide and sentenced him to prison. Some time later, the community, in the absence of the defendant, decided to increase his punishment from eight to twenty years in prison. The community decided as well that the defendant had to carry out his punishment in a “white” jail given the gravity of the crime and the group’s lack of adequate prison facilities where the person condemned could be sent. In both proceedings the family of the murderer and the family of the person killed were present, as the traditions of the community prescribe. The Court’s opinion was structured around two legal problems. The first one was to define the limits of Aboriginal groups’ jurisdictional powers and the second one to determine if these boundaries were violated by the decisions of the Aboriginal authorities. The Court indicated that to answer these problems it first must determine the scope of the constitutional principle of the recognition and protection of cultural diversity. Because the objective of this principle is to allow minorities to defend their traditions from the undue intervention of the majority culture, the Court concluded it should be interpreted as mandating the maximization of minorities’ autonomy and, conversely, the minimization of the measures aimed to restrict it. In this respect the Court said:
Taking into account this definition [of ethnic community], the development of the cultural diversity principle in the constitutional norms cited, and considering that only with a high degree of autonomy cultural survival is possible, the maximization of Indigenous communities’ autonomy can be derived as a rule for the interpreter. Consequently, the rule mandating the minimization of restrictions to those indispensable for guarding interests of a higher hierarchy [can also be derived] (emphasis in the original).24
For the Court, this interpretation of the Constitution is the only one that will truly guarantee the cultural survival of minorities. Restrictions on Aboriginal group’s autonomy, the Court further said, are only legitimate when they comply with the following criteria. First, they are needed to protect a superior constitutional value (although the Court did not say which are those values or what are the criteria to determine them). Second, the restrictions chosen by authorities must be the alternative least troublesome of the autonomy of the communities. And third, the particular characteristics of minorities must be taken into account in determining which are the least disruptive measures available, i.e., the costs to the autonomy of a particular group must be defined not by applying general rules but by evaluating the specific characteristics of the community involved. Using the maximization of autonomy principle as its interpretative guide, the Court decided that the limits on the judicial powers of Aboriginal groups, when dealing with members of the same community, are the prohibition of actions that would violate “human’s most precious goods”: the death penalty, torture and slavery.25 For the Court, life, freedom, and bodily integrity are values around which there is a broad intercultural agreement. This agreement has been verified, the Court said, in the many international human rights treaties that recognize them as rights that cannot be derogated from even in situations of internal or external emergency. For the
2424 Case T-349/96, Corte Constitucional, supra note 6.
2525 Id Court, as for Tully, intercultural relations should be guided only by criteria voluntarily accepted by the parties involved.26 In the words of the Court,
The principle of maximization of autonomy acquires great relevance in this point inasmuch as these are purely internal relations, and because from its regulation depends in great part the survival of the cultural identity and cohesion of the group. The limits in which this internal control is exercised should then be the minimum acceptable, therefore, they can only be referred to what is truly intolerable because it attempts against men’s most precious goods. In the opinion of this panel, this nucleus of intangible rights includes only the right to life, the prohibition of slavery and the prohibition of torture. Two are the reasons that lead to this conclusion: first, the recognition that a truthfully intercultural consensus can only be proclaimed about these rights. Second, the verification that this group of rights is within the core of intangible rights recognized by all human rights treaties, rights that cannot be suspended even in armed conflict situations ….27
The Court also said that, because of explicit constitutional mandate, due process and the principle nulla penna, nulla crimean sine legem must be added to the limits of Aboriginal groups’ jurisdictional powers. These limits should be interpreted only as guaranteeing the foreseeable character of authorities’ actions. When applied, they should be interpreted in a cultural key, that is, they should take into account the particular characteristics of the different cultural minorities’ legal systems. In the words of the Court,
To this group of rights, however, and by explicit constitutional mandate, has to be added the right to a due process, and in criminal matters, the principle of nulla penna, nulla crimean sine legem. Article 246 says that the trial should be done in accordance to the “norms and procedures” of Indigenous communities; this presupposes the existence of [norms and procedures] before judging any conduct. But of course, the requirement in this case, cannot go beyond what is necessary for assuring the foreseeable character of the authorities’ conducts …. For determining the foreseeable character then, the specificity of each social and political community, as well as the characteristics of its legal system, should be examined. (Cites omitted)28
The Court decided, in regard to the second legal problem, that the limits of the Aboriginal groups’ jurisdictional powers were violated when the community imposed a punishment on the murderer that was not part of their legal traditions. The legal customs of the Aboriginal group stated that the punishment for murder could be either 3 years of prison in addition to the traditional penalty of stocks or sending the case to the hegemonic culture’s legal system. 29 The principle nulla penna, nulla crimean sine legem was then violated by the Indigenous group’s decision. The Court determined that the community’s authorities should be asked if they would want to judge the individual again and, if necessary, impose on him the punishments prescribed
2626 See supra James Tully: Modern Constitutionalism in a Post-Colonial Age, Chapter one, section 3, pp. 47-62.
2727 Case T-349/96, Corte Constitucional, supra note 6.
2828 Id. by their traditions or if they (would) want to send the case to the dominant culture’s legal system. The Court stated as well that the other limits to Aboriginal communities’ jurisdictional powers were not violated. This community does not include the death penalty in its legal system and the use of stocks as a traditional punishment cannot be considered torture. It is not a disproportionate and useless penalty and it does not cause serious mental or physical consequences. The due process of the defendant was not violated because the community held two trials to decide his case (although its legal system does not foresee a double instance) or because he was not present in any of these audiences (although his family was). The Court said that the second trial was held to solve mistakes made in the first one and that in this Aboriginal group, families traditionally represent their members in trials since the community believes that crimes affect not only victims but also their relatives. Criminal activities create disruptions and disharmony in the families of the victim and the aggressor and thus, both have to participate in the solution of the problem. If this does not happen, social harmony would not be achieved and future disruptions would probably occur (e.g., revenge towards the relatives of the aggressor).30 The interpretation of the Constitution that the Court offers in Embera–Chamí defends a view about the way in which intercultural relations should be managed that differs in important ways from the view that has been dominant among Western thinkers. The Court recognizes that liberal values (in this case individual rights) are not a common language, not the base language that all communities should talk in order to be recognized and accommodated. Liberal principles are just the values embraced by the dominant culture. In this way, the Court acknowledges the perspectival character of liberal values as well as the worth of Aboriginal groups’ cultures. The Court implicitly recognizes as well that culturally diverse communities should agree on the principles and rules that guide their common life. Any attempt of the dominant culture to impose its views on minorities would be an illegitimate act of cultural imperialism. The Court’s argumentation also differs from the dominant view among western thinkers when it points out that the maximization of Aboriginal group’s autonomy is necessary if cultural diversity is to be protected. Cultural survival is only possible if traditions become part of the way in which the ordinary and extraordinary affairs of the community are understood and conducted. It is only possible if minorities, in this case Aboriginal groups, can freely speak their language, solve their disputes, choose their authorities, distribute goods within the community and decide the degree and type of contact they want to have with the dominant culture. However, the Court does not defend an extreme relativist view. It recognizes that the autonomy of the Aboriginal communities can conflict with other constitutional values and that sometimes these other values should prevail. However, the Court argues, these higher values should be determined by applying the principles of consent and maximization of the autonomy previously presented and not by the imposition of standards considered superior by the hegemonic culture. The Court’s decision in this case offers an original, anti-imperialistic view of intercultural relations. Yet, there are some flaws in its justification. As evidence of the intercultural
2929 The Embera–Chamí people, as many other Aboriginal groups, usually send to the “white” justice system cases that they believe the communities’ authorities would not be able to manage appropriately. This generally occurs when the crime committed is notoriously grave, the defendant is dangerous, or the prison sentence that can be imposed is long and the community does not have adequate detention facilities to send the person condemned.
3030 Two Justices, Hernández and Herrera, wrote concurrent opinions. In these opinions they indicated that the right of defense is individual and cannot be replaced by the participation of the defendant’s family in the process. Herrera adds that the participation of the defendant in his or her trial is an “essential part of the idea of justice, it is prior to any norm or custom”. Case T-349/96, Corte Constitucional, supra note 6. agreement around the prohibition of the death penalty, torture and slavery, the Court cites several international human rights treaties.31 All the cited treaties indeed include these rights; they show that a great variety of countries around the world approve them. Yet, these treaties include many other rights that cannot be derogated from even in domestic or international emergency situations.32 Why should the Court choose only the three rights indicated from the treaties cited? If the treaties represent a wide intercultural agreement over certain values, the Court should conclude that rights included in all pacts cited should limit Aboriginal groups’ autonomy. Moreover, why are the treaties relevant evidence of the Aboriginal groups’ acceptance of certain values? Aboriginal groups did not have any role in the signing of the international treaties mentioned by the Court. If the argument is that the prohibition of the death penalty, slavery and torture are the only values upon which the Aboriginal groups and the dominant culture agree, then, the treaties are irrelevant. We are confronted by an empirical question and the Court does not justify its answer. The only reference to Indigenous groups’ legal and moral systems is found in a footnote where the Court appeals to the available anthropological literature. Citing only one book, the Court concludes that Aboriginal communities do not condone torture, the death penalty or slavery. That is most probably true, but it is also true that their legal and moral systems include many other values, which might overlap with the ones defended by the dominant culture. If that is the case, and intercultural agreement defines the values that can limit Aboriginal groups’ autonomy, there might be other rights that should be included in the list. Moreover, although empirically very improbable, it is theoretically possible that some Aboriginal communities accept torture, the death penalty or slavery. If so, should the Court reduce the list of values limiting Aboriginal communities’ autonomy? It is very probable though, that even if Aboriginal groups and the dominant culture agree on the moral relevance of these prohibitions, they will not agree on their meaning, e.g., is labor as a penalty, slavery? Are physical punishments like the snare, torture? If this is the case, would the criteria offered by the Court have any normative bite? The argumentation of the Court also fails when it is recognized that many states in the world still allow the death penalty as a punishment. Today 86 countries around the world have death penalty laws in their legal systems.33 Nations as different as the United States, China, Iran and Saudi Arabia vigorously apply these laws in their systems of criminal justice. If there are 189 states in the world,34 this means that almost half of them do not agree with the idea that the death
3131 The Court cites the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, the Convention against Torture and other Cruel, Inhumane or Degrading Treatments or Punishments and the Geneva Conventions.
3232 Article 15 of the European Convention on Human Rights, for example, includes also legality of crimes and punishments. Article 27 of the American Convention of Human Rights also prohibits the suspension of the following rights: juridical personality, conscience and religion, rights of the family, of the child, to a name, to nationality and to participate in government. Article 4 of ICCPR includes as well the prohibition on imprisonment on the ground of a person’s inability to fulfill a contractual obligation, the legality of crimes and punishments, and freedom of religion, conscience and thought.
3333 See Amnesty International. Working to Protect Human Rights Worldwide. The Death Penalty (last modified Oct. 17, 2004)
3434 This is the number of states recognized by the United Nations. See List of Member States (last modified Oct. 17, 2004)
3535 See Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978); John Rawls, Political Liberalism (Columbia University Press 1996).
3636 Justices Hernández and Herrera state in their concurrent opinions that they believe the right to judicial defense is a fundamental right. Case T-349/96, Corte Constitucional, supra note 6. See supra note 30. Second, the two years that passed between El Tambo and Embera-Chamí gave the Court the opportunity to see the conflict between individual rights and cultural difference in a new way and to reconsider its way of understanding and solving it. In 1994, El Tambo, opened the door to a rich and complicated debate that the Court had never faced before. El Tambo made explicit for the Constitutional Tribunal the theoretical and practical relevance of the conflict between individual rights and cultural difference and showed a particular way to solve it. However, after realizing the importance of cultural difference, the Court realized that in El Tambo, it closed almost all possibilities for this principle to survive and decided that to protect cultural diversity effectively its views had to move to the other extreme of the political spectrum. The Court decided that it needed to move from Pure Liberalism to Interculturalism if it wanted to protect cultural difference adequately.
Cultural Liberalism: The Survival of Cultural Minorities and Individual Rights
In case SU-510/98 (Arhuaco case)38, the Court defended for the first time Cultural Liberalism as the best theoretical perspective to solve the tension between individual rights and cultural difference. The constitutional doctrine of this case was subsequently confirmed in case T- 1022/01.39 In Arhuaco, Aboriginal authorities imposed restrictions on the religious freedom of some group members because they professed a creed different from the traditional form of belief. The authorities argued that this new religion (Pentecostalism) is incompatible with their traditions and endangers the survival of their culture. Pentecostalism advises its members not to accept the community’s religious and political authorities and to question some of the Aboriginal groups’ most central traditions (e.g., consuming coca leaf or worshipping nature). To neutralize the negative effects that the Pentecostal Church was having over their culture, the Aboriginal authorities closed the Pentecostal temple, prohibited the organization of collective religious ceremonies and banned the development of any evangelical activity. They also imprisoned and physically punished some of the members of the Pentecostal church, publicly discouraged other members of the community from joining it and expelled from their territory the “white” pastor who was the leader of the evangelical community. The members of the Christian church also claimed that the authorities of the Indigenous group gave preference to traditional members of the community when distributing collective goods.40
3737 The most important cases on multicultural matters issued by the Constitutional Court during this period were: T-428/92, Corte Constitucional, exp. No. T-859, 04. 06. 1992; T-567/92, Corte Constitucional, exp. No. T-3746, 23. 10. 1992; T-188/93, Corte Constitucional, exp. No. T-7281, 12. 05. 1993; T-257/93, Corte Constitucional, supra note 5; T-380/93, Corte Constitucional, exp. No. T-13636, 13. 09. 1993; T-405/93, Corte Constitucional, exp. No. T-12.559, 13. 09. 1993; C-058/94, Corte Constitucional, exp. No. D-369, 17. 02. 1994; T-305/94, Corte Constitucional, exp. No. T-32781, 05. 07. 1994; T-342/94, Corte Constitucional, exp. No. T-20973, 27. 07. 1994; C-104/95, Corte Constitucional, exp. No. L.A.T. 028, 15. 03. 1995. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System], supra note 5. None of these cases dealt with the constitutional tension between individual rights and cultural difference.
3838 Case SU-510/98, Corte Constitucional, supra note 5.
3939 Case T-1022/01, Corte Constitucional, exp. No. T-437064, 20. 09. 2001. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System], supra note 5. The Court’s opinion was structured around three legal problems. First, to decide if the Aboriginal authorities are authorized by the Constitution to limit the religious freedom of the members of their community in order to protect the integrity of the cultural traditions of the group. Second, if the answer to the first question is positive, to determine if the measures taken by the Aboriginal authorities to protect the integrity of their cultures are constitutional. Third, to decide whether the authorities of the Indigenous group can legitimately impede the access to Indian territory of non- traditional religious organizations with the aim of protecting the integrity of the traditional culture.41 The Court decided that the authorities of the Aboriginal group could legitimately limit the religious freedom of the members of the community in order to guarantee the survival of their traditional culture. For the Court,
…. it is not possible to believe that the authorities of the Ika community, whose externally perceptible identity is notoriously religious, .… should assume the role of passive subjects of religious freedom, and should in consequence guarantee the performance of evangelic practices within the territory under their jurisdiction .… The historic or philosophic ground of the concepts that are [fundamental for] the majority of [the Aboriginal community’s] members, constitutes an alternative explanation of the world and the meaning of human existence that accomplish the same aims that religions accomplish for other persons. The mandate that the traditional authorities have received, given the coincidence of the political and religious spheres [in their community], consists in organizing their coexistence in accordance with the commands of the collective creed. In this circumstances, it is not possible to give to organs that have not been secularized the function of protecting the concrete exercise of freedom of religion in a way that beliefs opposed to those conforming to the group identity can be advanced. The spiritual choice of every religious community in the global society is guaranteed .…With more reason [then, the choice] of Indigenous groups externally characterized by the preponderance of religion within it should be preserved …. The correct interpretation of the principle of cultural and ethnic protection of the Colombian cultural nation impedes assigning to the authorities of an Aboriginal group with strong religious beliefs the task to act as an organ that guarantees the open character towards religion of the respective community.42
For the Court, the self-government and jurisdictional powers that the Constitution granted Indigenous groups authorize them to guide their public and private lives through their ancestral uses and customs. In this case, the traditions and the cohesion of the Aboriginal community are strongly threatened by the views and actions of the Pentecostal church. The theocentric character of the Aboriginal community sharply conflicts with the dogmas of the evangelical group. When the members of the Pentecostal church are encouraged not to accept the traditional religious leaders of the community, they are also being encouraged not to accept their political
4040 Case SU-510/98, Corte Constitucional, supra note 5.
4141 Id.
4242 Id. authorities. When they are asked not to act in accordance with traditional ways, they are asked to question the rules that give order to the community and that keep it united. To oblige the Aboriginal group to accept the practice of Pentecostalism in its territory would be equivalent to obliging it to organize its political life through values different from those they have traditionally held. It would require its members to assist in the cultural destruction of the community. For the Court,
.… the presence in [the Ika] territory of individuals that, although belonging to their group, reject the fundamental characteristic of their cultural identity (the religious conception of the world) and refuse to be under the authority of the Mamos, is a danger and a threat for their survival as a community and to the balance and integrity of the whole universe. It should not be forgotten that for this culture, human actions have the potency of destroying the universal order if the individual [who violates the social rules] does not do the proper pagamentos and accepts his faults through confession with the Mamo. The Mamo is the only person that is able to indicate to him the adequate path for his actions. Consequently, it is not difficult to conclude that the conversion of an Ika to the evangelic doctrine does not mean a simple substitution of one belief for another, but a total change of existence. It implies the substitution of a way of thinking and acting for another one that is its contrary…. In this way, it can be said that when a member of the Ika renounces his religion, he renounces at the same time the existential order that gives him his cultural identity ….43
However, the Court clearly stated that Aboriginal authorities are authorized to restrict radically the individual rights of their communities’ members only when it can be proven that the traditional culture would disappear if restrictions over these rights are not implemented. This authorization, the Court declared, is just an exception to the general rule asserting that Indian authorities should respect the individual rights of all the members of their communities.44 Having solved the first legal problem of this case affirmatively, the Court went on to examine the constitutionality of the punishments imposed by the Arhuaco authorities upon the Christian members of their community. The Court decided this second legal problem by declaring that it is not legitimate for the Aboriginal authorities to punish some of the members of the community merely because they have abandoned the traditional vision of the world and have adopted a new one. For the Court, to believe in a world-view different from the traditional does not threaten the survival of the Arhuaco. Yet, the punishments imposed by the Aboriginal authorities on the heterodox members of their community do threaten the essential core of religious freedom. In this situation religious freedom, the Court argued, is equivalent to freedom of conscience, to the right to choose freely a religious creed. However, the Court also said that although the Aboriginal group cannot punish its members only because they believe in a god different from the traditional, it can punish the community members that violate traditional social rules as a consequence of their incompatibility with the evangelical dogmas that these persons profess. For the Court,
4343 Id.
4444 Id. [The principle of] cultural difference authorizes the existence of Indigenous communities structured around a single spiritual vision. However, respect of the dignity of the human person, makes incompatible an appeal to cultural difference for subjugating in a totalitarian way the consciences of the members [of a group]. Yet, the belief in the gospels can imply the violation of traditional norms inasmuch as they are incompatible with biblical commands. In this case, the authorities have the right to sanction the person that does not obey the same rules that the other members of the community should obey. The prohibition of harassing the believer for the mere fact of being a believer, does not imply that he is entitled to disobey the rules of the life in community that all should comply with ....45
The Court also concluded that there was no evidence that the sanctions imposed on the Christian members of the community, as some of them claimed, were cruel or degrading or that they received more drastic or different punishments than the ones received by other members of the community. For the Court, none of the penalties imposed violated the limits set by the Constitution to Aboriginal groups’ jurisdictional powers in Embera-Chamí. The punishments imposed by the Arhuaco authorities were part of the legal traditions of the Aboriginal group and did not violate the rights to life, freedom, or personal integrity. The tribunal decided as well that the restrictions over the evangelical activities of the Pentecostals and over the development of collective rites within Indian territory were legitimate. These measures are authorized by the right of the Indigenous group to preserve its religion and by the right of the community to decide the degree and type of contact that it wants to maintain with the “white” world. The Court argued that the territory of the community is strongly related to its traditional theocentric view of the world and thus, that it cannot be considered a public space where the strengths and weaknesses of the different religions of the world should be discussed. The arrival of new gods in the Aboriginal group’s land immediately profanes the sacred symbols of the traditional culture. For the Court,
The proselytizing character of other religions within Arhuaco territory, independently of whether it is done by members of the community or by third persons, belongs to a type of conducts that for going against the core of the community’s beliefs, can be the object of serious limitations by internal authorities. The Indigenous community, protected by the principle of cultural diversity, can autonomously control the grade of its opening to the external world. If tutela judges could –obviating the legitimate aspiration of defending one’s own cultural identity– guarantee to third parties the
4545 Id. The Court also said with regard to this issue:
Respect to the human person does not allow the Indigenous authorities to commit arbitrary acts or to appeal to degrading and inhumane procedures for controlling the community members that do not comply with traditional canons. If more than punishing the objective conduct that violates the uses and customs of the Aboriginal group –in a way that before the Aboriginal law all persons are equal– what [Indigenous] authorities aim is to sanction the non-believer for this mere fact –even if he obeys the existent rules– there is no doubt that we are before a manifestation of power that the Constitution rejects ….
Id. performance of proselytizing actions within Arhuaco territory, the most effective and fast way of putting an end to a millenary culture would have been accepted. On the other hand, given the constitutional recognition of cultural difference, the decision over the opportunity and extension of cultural contacts –which effects can have a notably impact in communities– is not left to chance or assigned to national state authorities. This is a decision that is part of the group of autonomous functions that the respective Indigenous people have. The severe restriction on the freedom of religion of the dissident member of the community –regarding the externalization of its own faith and its militant practice– is simply incidental to his belonging to a community that locates cohesion around the religious factor ….46
However, the Court stated that the native authorities could not restrict the members of the Pentecostal church to go outside the Resguardo to organize and/or participate in ceremonies related to their creed. From the Court’s perspective,
…. no Indigenous community is authorized to give its dissident members a treatment that violates human dignity. Therefore, the non-believer or the one who professes a religion different from the official, for this mere fact, cannot be sanctioned or harassed in any way. Given that as a function of the more or less flexibility…of the group…the collective exercise of the cult can be forbidden within [Indian] territory, it is considered definitely arbitrary to impede the person that professes a different religion to move to a different place with the aim to deepen her collective experience along with other members of the same creed ….47
Finally, the Court did not find that the Aboriginal group’s authorities’ preference for traditional members of the community when distributing communal goods was unconstitutional. The self-government right of the Indigenous group authorizes it to autonomously allocate the goods of the Resguardo. The members of the Pentecostal church give to its authorities 10% of their income as well as the first offspring of each of the animals they own and the first egg of all the birds they possess. The payment of these taxes keeps valuable resources out of the economic system of the Aboriginal community. There is no reason, then, the Court argues, for the authorities of the Indigenous group not to treat in a different way the individuals who leave within the community the goods produced by exploiting the collective property and land as opposed to those individuals who give them to a foreign religious authority.48 The Court answered the third legal problem of this case by saying that the expulsion of the “white” pastor of Indian territory was constitutional. The Resguardo is collective property that implies the same rights and duties that all property owners have. This entitlement, together with the self-government right, allows the Aboriginal authorities to decide who can and who cannot enter their territory depending on the degree of contact they want to have with the dominant culture. It is clear, the Court said, that the expulsion of the pastor implies the restriction of his
4646 Id.
4747 Id.
4848 Id. freedom of religion, but it also said that this is an unavoidable consequence of the right Indigenous groups have to determine the political and religious structure of their communities.49 The opinion of the majority in this case offers a different interpretation of the cultural unity– cultural diversity tension within the Constitution. The Court declared that, as a rule, all Aboriginal communities should respect individual rights. The Constitution protects the equality and dignity of all Colombian citizens and thus, limits the self-government and jurisdictional rights of Aboriginal communities. But the Court also said that this rule has an exception: even basic individual rights of members of Aboriginal communities can be radically restricted if there is enough evidence that without the implementation of these measures the cultural traditions of the community would disappear. The exception that the Court creates to the rule that Aboriginal groups should respect individual rights is important. It decided that the harm caused by the restriction on individual rights is less than the harm that would be caused by the disappearance of the Aboriginal group. But once again the Court does not explain why this is the case. The Justices just assert that the disintegration of an Aboriginal community is a tragedy and that it violates the principle of equality and dignity of all cultures. They do not say why this is a more damaging situation than the one caused by the violation of basic individual rights. However, with this decision, the Court recognized the importance that cultural belonging has for persons. It accepted that this is a value that should be part of the equation when deciding cases where cultural communities are involved in conflicts. The decision of the Court moves from a position where the cultural unity pole of the constitutional tension is favored to one where cultural difference is taken into account as it interprets various aspects of the self-government right of Aboriginal groups. This right is strengthened when the Court uphold the expulsion of the white pastor from Indian territory and the preference given to the traditional members of the community in the distribution of communal resources. With this ruling, the Court recognized the autonomy that Aboriginal groups have to administer their collective territory. It also recognized that Indigenous groups have the same rights over their land that any common citizen has over his or her private property.50 They are the only ones with the power to determine who can and cannot enter their territory, how the resources within it should be used and who should enjoy them. The decision of the Court confirmed as well that Indigenous communities are self-ruling entities that can
4949 Justices Vladimiro Naranjo, José Gregorio Hernández and Hernando Herrera wrote dissenting opinions in this case. In his opinion, Justice Naranjo indicated that the restrictions imposed over the religious freedom of the Pentecostal church members were unconstitutional. He supported this argument by appeal to the universal character of human rights. Justice Naranjo also said that inasmuch as all human rights are part of a human being’s essence, they should always have priority over any other right. Consequently, cultural diversity can never prevail over freedom of religion. Justice Hernández argued that the decision taken by the Court allowing the expulsion of the “white” pastor was wrong. He indicated that the decision violated the constitutional provisions guaranteeing religious freedom, the equality of all confessions, the free dissemination of all of creeds and prohibiting discrimination for religious reasons. He stated as well that the freedom of conscience of the members of the Aboriginal community has, as a precondition for its exercise, the existence of diverse options from which to choose. Hence, to protect the freedom of conscience of the Aboriginal group’s members the Court should also protect the right of the white members of the Pentecostal church to spread their religious views within Indian territory. Justice Herrera, in a very short and poorly argued opinion, reiterated that the constitutional articles protecting cultural diversity should not restrict freedom of religion. Id.
5050 The exception to this rule is the right to sell the land. Resguardos are inalienable territories. See Decree No. 2164, December 7th 1995. distribute the resources they own through the criteria they consider to be fair. They autonomously manage their economic life. The opinion of the Court strengthens the self-government rights of Aboriginal groups as well when it declares that the punishments imposed over some of the non-traditional members of the group were constitutional. The Court applies the same criteria offered in Embera-Chamí for determining the limits of Indigenous communities’ jurisdictional powers. Aboriginal authorities cannot impose the death penalty or slavery as penalties, violate the bodily integrity of individuals or incoherently apply the traditions of the community. However, the Court’s application of these standards contradicts the central argument used to justify the solutions to the other juridical problems in this case. This argument states that Aboriginal groups’ authorities, as a rule, should respect individual rights; it indicates that individual rights –the rights that all persons are entitled to inasmuch as they are part of the human race– limit Indian communities’ self-government powers. The Court is then adding a criterion to limit Aboriginal groups’ autonomy that in Embera-Chamí was explicitly rejected as representing the moral and political views of the dominant culture.
Concluding Remarks
In Arhuaco, the Court gets closer to the views defended by those authors, like Kymlicka, that reinterpret the liberal cannon to make it more sensitive to the demands of culture and community. Put in Kymlicka’s terms, what the Court does in Arhuaco can be explained in two steps. In the first step, the Court interprets the 1991 Constitution as including external protections but not internal restrictions.51 In the Court’s interpretation, the political charter grants minorities rights to protect themselves from the undue interference of the state and/or other cultural communities in their internal affairs. However, for the Court, the Constitution does not allow cultural minorities, as a general principle, to limit radically the individual rights of their members to protect the integrity of their cultural traditions. The second step is to create an exception to this rule. Cultural minorities are authorized by the Constitution to restrict the individual rights of their minorities if there is strong evidence that their traditional cultures will disappear if these measures are not taken. In this way, the Court passes from a Dworkinian- Rawlsian type of view in El Tambo, to a Tullyian kind of position in Embera-Chamí, to a Kymlickian sort of perspective in Arhuaco. In contrast to the puzzle of the Court’s decision in Embera-Chamí, the jurisprudential turn in Arhuaco can be easily explained. Arhuaco is an effort to find a middle ground between the extreme views offered in El Tambo and Embera-Chamí. In Arhuaco, the Court wanted to articulate a solution of the liberal values – cultural difference tension that avoided the political extremes where Pure Liberalism and Radical Interculturalism are located. As all Unification Opinion cases are, Arhuaco was decided by the Court’s nine Justices in an attempt to unify the conflicting jurisprudence generated by the Tutela panels that decided El Tambo and Embera- Chamí. Five Justices agreed with the opinion written by Justice Cifuentes. Justices Naranjo, Herrera and Hernández disagreed.
5151 For an explanation of both external protections and internal restrictions, see supra Will Kymlicka’s Multicultural Liberalism, Chapter One, Section 2, pp. 36-47. The jurisprudential changes of the Court are evidence of how difficult it is to understand and solve the conflict between liberal values and cultural difference. It is also evidence of the Court’s struggle to find a solution that would adequately balance the values in tension. It is interesting to note that four of the Court’s nine Justices participated in all the major steps of the tribunal’s long process of interpreting the tension between liberal values and cultural difference (El Tambo, Embera-Chamí and Arhuaco) and that none of them maintained a coherent position during the four years that it lasted. Justice Cifuentes wrote the opinions in El Tambo and Arhuaco; Justice Hernández was part of the minority in Arhuaco (offering the same type of arguments presented in El Tambo) as well as a member of the panels that unanimously decided El Tambo and Embera-Chamí; Justice Herrera agreed with the decision in Embera-Chamí and disagreed with the opinion of the majority in Arhuaco (presenting the same arguments offered in El Tambo); Justice Gaviria wrote the opinion for Embera-Chamí, was part of the panel that decided El Tambo, and voted with the majority in Arhuaco. In sum, during the 6 years that lasted this process, Justice Gaviria agreed with Pure Liberalism, Radical Interculturalism and Cultural Liberalism; Justice Cifuentes supported Pure Liberalism and Cultural Liberalism; Justices Herrera and Hernández defended Radical Interculturalism and Pure Liberalism. Pure Liberalism, Radical Interculturalism, and Cultural Liberalism make explicit the path followed by the Court in its struggle to find an appropriate solution of the tension between individual rights and cultural minorities’ illiberal or hybrid moral and political values. The Court passes from defending a radical liberal view in Tambo, to supporting a strong, although not absolute, cultural autonomy view in Embera–Chamí, to defending a culturally sensitive liberal position in Arhuaco. While the first two decisions mark two extreme solutions to the tension among constitutional principles, the last solution attempts to find a middle ground where the two values in conflict can be protected. While El Tambo gives priority to autonomy, Embera–Chamí gives priority to culture, and Arhuaco tries to protect both autonomy and culture. While El Tambo is located within the theoretical boundaries determined by the work of authors like Dworkin and Rawls, Embera-Chamí shares the same theoretical horizon with authors like Tully, and Arhuaco closely follows the line of argumentation defended by theoreticians like Kymlicka.
Chapter Four The Principle of Political Unity and Cultural Minorities’ Self-Government
In the last chapter, I analyzed the first component of the cultural unity–cultural diversity tension within the 1991 Constitution and the three interpretations offered by the Constitutional Court to solve it. I showed how two of these interpretations are unable to accommodate cultural diversity inasmuch as they give priority to liberal political values over the moral and political views of cultural minorities. I also showed that the third interpretation offered by the Court, although sensitive to cultural diversity, lacks a persuasive and coherent justification. In this fourth and last chapter, I will continue with the analysis of the constitutional tension between cultural unity and cultural diversity. More precisely, I will analyze the second component of this tension, i.e., the tension between the principle of political unity and the self-government rights that the Constitution granted to cultural minorities, and the solutions offered by the Constitutional Court to solve it. To accomplish this aim, I will first analyze the values that structure the second facet of the constitutional tension. Then, I will critically analyze the Constitutional Court’s jurisprudence on Aboriginal groups’ territorial autonomy. In these cases, the Court must balance the principle that Colombia is a unitary state against the self-government rights granted to cultural minorities. The analysis of the Court’s jurisprudence will be divided in three parts. First, I will examine case T-428/92 (Cristianía case)1, in which an Aboriginal groups’ political autonomy, although a fundamental dimension of the conflict, is ignored by the Court. Second, I will analyze case T- 405/93 (Military Base case)2 where Indigenous communities’ political autonomy is radically restricted and implausibly subordinated to other constitutional values. Third, I will analyze cases T-257/93 (Vaupés case)3, T-380/93 (Embera case)4, SU-039/97 (U’wa case)5, and T-652/98 (Urrá case)6, where Indigenous communities’ political autonomy are supported, although in some cases using paternalistic arguments.7 In the last section of this chapter, I will offer some concluding remarks that will assess the contributions and obstacles that the Court’s jurisprudence has created for the protection and strengthening of Aboriginal authorities’ self-government.
The Values in Conflict
The components of the second clash of political values that constitutes the cultural unity – cultural diversity conflict within the 1991 Constitution are, on the one hand, the principle of political unity, on the other, cultural minorities’ self-government rights. The principle of political unity is recognized by article 1 of the political charter that declares that, “Colombia is a social state of law, organized as a unitary Republic .…”. Cultural minorities’ self-government rights are recognized by article 330, which acknowledges the Aboriginal groups’ right to govern themselves by their uses and costumes and by article 246 which grants Aboriginal peoples the right to exercise jurisdictional powers within their territory. Cultural minorities’ self-government rights are also recognized by articles 287, 288, and 289 which state that Aboriginal lands have “territorial entities” status as provinces or municipalities, by the declaration that Indian territories
11 Case T-428/92, Corte Constitucional, exp. No. T-859, 24. 06. 1992. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System] (last modified Oct.11, 2004)
22 Case T-405/93, Corte Constitucional, exp. No. T-12559, 23. 09. 1993. Id.
33 Case T-257/93, Corte Constitucional, exp. No. T-10.239, 30. 06. 1993. Id.
44 Case T-380/93, Corte Constitucional, exp. No. T-13636, 14. 10. 1993. Id.
55 Case SU-039/97, Corte Constitucional, exp. No. T-84771, 03. 02. 1997. Id.
66 Case T-652/98, Corte Constitucional, exps. No. T-168.594 & T-182.245, 10. 11. 1998. Id.
77 Case T-188/93, the seventh case decided by the Court regarding Aboriginal groups’ territorial autonomy, will be briefly explored in a footnote. The only argument presented in this case that is relevant for the issues analyzed in this chapter is reiterated in case T-652/98 (Urrá case). This argument, the Court’s declaration that Aboriginal groups’ have a fundamental right to the state’s recognition of their ancestral lands as collective property, will be analyzed when Urrá is examined. See Case T-188/93, Corte Constitucional, exp. No. T-7281, 12. 05. 1993. Id. are collective property (art. 329), and by the obligation of the state to promote the participation of Aboriginal communities in the decision making process concerning the exploitation of natural resources within their lands (art. 330- paragraph).8 The principle of political unity has been traditionally interpreted as stating that in Colombia there is one and only one legal system and one and only one centralized and hierarchical political structure.9 Congress and the executive power are the only entities with the power to transform political decisions into law. All other government authorities have merely the power to develop the legal norms produced by these institutions. The Constitution, however, also grants Indian tribes the power to create law. Their legal decisions can collide with the legal rules created by Congress and the executive power. Their traditions might require doing things that are prohibited by the legal norms proclaimed by the central institutions. Implicit in this conflict of outcomes is a broader debate about the basic structure of the Colombian state. What should be the political and legal relationship between the center and the periphery? What political and legal powers should government authorities, at the national and the local level have? The Constitution clearly indicates that Colombia is a unitary state. Yet, it also grants Aboriginal groups’ self-government rights, indicates that Colombia is decentralized, and declares its territorial units autonomous (art. 1). Do these statements mean (as they traditionally have) that in Colombia the power to create law is concentrated in the central government and that Indian authorities are just administrative instruments in charge of developing, at the local level, what the center orders? Or should they be interpreted as indicating that Aboriginal authorities have the power to create law as long as it does not conflict with the Constitution and the legal norms created by the center? Or should these statements be understood as saying that Indian authorities have a general right to create law, even law that conflicts with laws and decrees created by national authorities?
The tension between the principle of political unity and cultural minorities’ self- government rights is concretized with special strength in the public debate about the content and limits of the territorial autonomy rights granted to Aboriginal groups by the Constitution. This discussion is particularly important since it evinces the intertwined character of political autonomy and territory. To exercise control over a territory is a necessary condition for self- government. All legal and political decisions made by any government authority would be void from a practical point of view if there were no land in which to enforce them. This is also an important issue because the 1991 Constitution gave broad territorial autonomy powers to
88 The Constitution also recognizes other rights that develop and facilitate cultural minorities’ self-government rights: Article 171 creates the senate’s special national electoral district for Indigenous peoples, article 176 declares that the law can create a House of Representative’s special electoral district for cultural minorities, article 10 states that communities with their own linguistic traditions have the right to a bilingual education, article 68 declares that cultural minorities have the right to an education that respects and develops their cultural identity, and article 10 recognizes that the Indigenous groups’ languages are official within their territory. For a thorough presentation of all the Constitutional articles related to the self-government rights of cultural minorities, see supra Chapter 2, note 52, p. 95.
99 Gustavo Penagos, La Descentralización en el Estado Unitario [Decentralization in the Unitarian State] (Ediciones Doctrina y Ley 1977); and Radday Rodero, Centralización Política y Descentralización Administrativa en la Constitución Política de 1991 [Political Centralization and Administrative Decentralization in the 1991 Political Constitution], Derecho Público No. 3 (1993). Aboriginal communities. Thus, the way these rights are interpreted by the central authorities will affect in a notable way the more narrow territorial autonomy rights granted by the juridical system to other cultural minorities, e.g., rural black communities of the Pacific coast.10 The public discussion about the content and limits of Aboriginal groups’ territorial autonomy has been particularly intense in the last 13 years. The Constitution gives Indian groups the right to determine the rules governing the use of their land, the exploitation of natural resources in their territories, and the transit and settlement of their Resguardos11 (articles 329 and 330). However, the political charter also includes some important principles and values that limit Aboriginal groups’ territorial autonomy. This right is constrained by the constitutional declaration that the subsoil and all non-renewable resources are owned by the state (art. 332), the constitutional recognition of freedom of movement (art. 24), and the constitutional principle stating that private property rights can be restricted when in conflict with the general interest of the polity (art. 58). The tension between Aboriginal groups’ territorial autonomy and the conflicting constitutional rights can only be understood if the objectives that each of these values pursues are made explicit. The principle of territorial autonomy authorizes Aboriginal groups to use their land and administer the natural resources in their territories in accordance with their traditions. This authorization allows Indian tribes to accomplish two important, interrelated ends. It allows Aboriginal groups to determine autonomously their necessities and the way they should be satisfied, and it allows the consolidation and reproduction of the groups’ way of life. Cultural traditions can survive only if they are regularly applied in the public realm and if they are used to educate new generations. When traditions are utilized to define the community’s public life by determining how to make use of and distribute their resources, its members learn or are reminded of their content and can perceive their worth and vitality. When the leaders of the community decide, for example, that its members can only catch a specific number of fish in a sacred lagoon during certain months of the year, they are not only applying the religious rules in which the community believe. They are also consolidating their authority and the legitimacy of the community’s religion. Adult members of the group will be reminded that the lagoon is sacred territory and children will be taught that this is the case. Adults and children will be reminded of, or educated about, the religious and political hierarchy of the group. The principle of territorial and political autonomy also authorizes Aboriginal groups to establish policies regarding settlement and transit of persons within their lands. This authorization pursues two fundamental aims: to allow Indigenous groups to control their relationship with other cultures and to protect and reproduce their ways of life. Indigenous groups are authorized to decide if they want to live culturally isolated or if they want to interact with other cultural communities. If they want to interact with other groups they are also authorized to determine the circumstances and pace at which these encounters should be maintained. Indigenous groups are then allowed to close their borders to non-Indians and are given the powers to control the cultural, political and economic consequences that the settlement and transit of non-Indians within Indigenous groups’ territory usually have.12 Aboriginal communities are authorized as well to apply their traditions for regulating the movement and
1010 See Law No. 70 of August 27, 1993, in D. O. No. 41.013, August 31 of 1993. See also supra Introduction, note 17, p. 7.
1111 Resguardo is a territory over which one or more Indigenous groups have collective property and where they can rule their private and public lives through their cultural traditions. See Decree No. 2164, December 7th 1995, art. 21. See also supra Introduction, note 15, p. 7. settlement of their own members within collective lands,13 and through this mechanism, to give shape to the community’s public and private life. In this way, community members are continuously taught or reminded of the norms that govern the group and the stability and reproduction of the traditional culture are made possible. The article of the Constitution that proclaims the state ownership of non-renewable resources, however, pursues two objectives that can be at odds with Aboriginal groups’ territorial autonomy: economic development and economic stability. The exploitation of non-renewable natural resources is fundamental for attaining these aims. Oil, coal, iron, among other natural resources, provide energy or raw materials needed to keep the economy moving, to fund its industrialization, and to generate much needed income to pay for government’s services and programs. Colombia, as many other third world countries, strongly depends on the exploitation of these resources for economic growth and government spending.14 Any advance in the satisfaction of the necessities and wishes of the population and the redistribution of wealth required for creating a just society depends on the industrialization and vitality of the economy. For these reasons, the Constitution established the state ownership of non-renewable resources. The government, for the benefit of all, should be able to determine the ways these resources ought to be exploited and used. 15 The problem is that many non-renewable resources’ reserves are located within Aboriginal groups’ territories and many of these communities do not want them to be exploited. A few Indigenous groups argue that the exploitation of the subsoil is forbidden by their traditions, e.g., The U’wa. They believe that any attempt to extract minerals from beneath the ground would enrage their gods, threaten the stability of the universe, and express disrespect for their cultures.16 Some other Indigenous communities, indeed the majority of them, claim that the exploitation of non-renewable resources within their lands would affect their ways of life negatively, e.g., the Embera. The arrival and transit of outsiders allowed by the construction of roads needed for the transportation of the minerals, the large amounts of money brought into their economic system by oil companies, and the destruction of hunting and fishing areas by mining activities, for example, would destabilize communities and endanger their cultural integrity. Freedom of movement also collides with Aboriginal groups’ territorial autonomy. Freedom of movement forbids unreasonable government restrictions on individuals’ right to
1212 Examples of these consequences are the following: distribution of available resources among a greater number of people, arrival of goods and knowledge that could change the way of life of the community, and the non-recognition of traditional authorities by persons that do not belong to the group.
1313 Aboriginal groups’ authorities can for example prohibit the transit of the members of the community over sacred lands and organize the settlement of new families in accordance with the economic system of the group. The principle stating the prevalence of the general interest over the interest of private individuals, obviously, is applicable in other non-economic contexts and thus, can be understood as having other objectives.
1414 Between 1996 and 2003, oil, coal, and iron constituted approximately 40% of Colombian exports. Exportar. Colombia. Exportaciones por sector económico [Exporting. Colombia. Exports by Economic Sector](last modified 27 Jan., 2005)
1515 The principle stating the prevalence of the general interest over the interest of private individuals, obviously, is applicable in other non-economic contexts and thus, can be understood as having other objectives.
1616 The U’wa people’s opposition to the exploitation of oil in their ancestral lands is justified along these lines. See below pp. 180-6. travel and settle in any region of the country they choose. In order to pursue their private and political projects, individuals should be free to move around the country and to settle in its various regions. Indigenous groups’ authorities, however, have the power to prohibit the transit or settlement of non-Indians in their territory. In fact, many Aboriginal communities consider the presence of non-Indians in their lands endangers the cultural integrity of their communities and threatens their political stability, e.g., the Kogui, Arhuaco, Huitoto, and Muinane Aboriginal groups. The cultural and political problems that non-Indigenous religious groups have generated in almost all Aboriginal communities, Indian authorities argue, are a good example of the situations that they want to avoid by closing their borders to non-members. With the acquiescence of the government, missionaries destroyed the links between many Aboriginal communities and their traditional religious beliefs. For many theocratic Aboriginal groups, this meant that their political leaders lost legitimacy and thus, the stability of their political system was put in question. 17 The principle stating that private property rights can be restricted when they clash with the general interest of the polity is in tension with Aboriginal communities’ territorial autonomy as well. The rationale behind this principle is that the property rights of some individuals should not be an obstacle to the realization of the polity’s interest. The general interest should prevail over the interest of a few. Aboriginal groups, however, own 24.5% of the land of the country18 and many Resguardos are located in economically strategic areas or in regions where the guerrilla groups and drug traffickers have a strong presence. The state then might need to limit Aboriginal groups’ property rights in order to protect the rights and freedoms of all individuals who inhabit Colombia and/or to promote the economic prosperity of the country. The political charter imposes on the government the obligation to guarantee the security of all individuals living in Colombia so that they can exercise their constitutional rights. Criminal activities, the fear that they cause among people and the social chaos that they create, can become serious obstacles to the implementation of citizens’ rights. The state might need to send police or armed forces to transit or settle in Indian lands in order to control the illegal activities happening within them. However, the continuous presence of law enforcement agencies or the army within Indian territories might have negative consequences for the communities. The arrival of a large number of soldiers, for example, might break the balance of the fragile environment in which many Indian communities live and on which they depend, and might generate new cultural dynamics that could negatively affect the cultural integrity of the group. Similarly, the Constitution obliges the government to do everything possible to achieve economic growth. Yet, the economic stability and development of the country depend on the construction of an infrastructure that allows the movement of persons and goods and provides energy and other basic services to industries and households. The country needs to construct
1717 See, e.g., Case SU-510/98, Corte Constitucional, exp. No. T-141047, 18. 09. 1998. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System] supra note 1. See also supra Cultural Liberalism: The Survival of Cultural Minorities and Individual Rights, Chapter 3, pp, 128-36.See, e.g., Case SU-510/98, Corte Constitucional, exp. No. T-141047, 18. 09. 1998. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System] supra note 1. See also supra Cultural Liberalism: The Survival of Cultural Minorities and Individual Rights, Chapter 3, pp, 128-36. Raúl Arango & Enrique Sánchez, Los Pueblos Indígenas de Colombia 199.
1818 Raúl Arango & Enrique Sánchez, Los Pueblos Indígenas de Colombia 1997 [Indigenous Peoples of Colombia 1997], at 223 (Tercer Mundo Editores & Departamento Nacional de Planeación 1999). roads, bridges, ports and airports that allow products to be moved rapidly and cheaply from where they are produced to where they will be consumed and that allow people to move rapidly to satisfy the demands of businesses and the job market. The country also needs to build dams and power plants to guarantee a regular supply of energy that allows businesses to function and to provide basic services to its citizens. The economic development and stability of the economy further depend on the exploitation of renewable natural resources. The nation needs to exploit rationally its woods, waters, flora and fauna in order to satisfy the food requirements of the population and to produce important goods like medicines and paper. Many Resguardos are rich in renewable natural resources and are located in strategic areas where the building of infrastructure works would contribute to the economic development of the nation. The use of the former and the construction of the latter would probably affect Indian groups’ cultures negatively. The building of big infrastructure works, for example, might require the Aboriginal groups to leave their ancestral lands and the intensive exploitation of forests would destroy the main source of food and shelter for many Indian communities. The tensions between these constitutional values generate many theoretical and practical questions, which can be divided in two groups. The first set of queries arises from the conflict between Aboriginal communities’ right to use autonomously their land and exploit their natural resources, on the one hand, and the central government’s ownership of non-renewable resources and the right to limit private property rights when necessary for the general interest, on the other. What should be done when an Aboriginal group disagrees with the government’s decision to exploit non-renewable natural resources within its territory? What should be done if the exploitation of natural resources owned by the state and necessary for the effective functioning of the national economy puts in peril the cultural integrity of an Indigenous community? What should be done when Indian land is necessary for constructing infrastructure that would benefit a large number of citizens? Can the government legitimately impose its view over Aboriginal groups and construct any project on Indian land, even if opposed by the communities? If that is the case, what does it mean that Indians are collective owners of Resguardos? What is the meaning of the government’s duty to favor the participation of Indigenous groups in the decision-making process regarding the exploitation of natural resources within their territories? What are the characteristics that this process of participation should have so that Indigenous groups’ views are truthfully taken into account? The second set of questions arises from the tension between Indigenous groups’ right to determine autonomously issues regarding transit and settlement of persons in their land and the rights and principles above cited. Can a non-Indian settle in an Aboriginal group’s territory without the authorization of the community’s leaders? Can non-Indians move through Indian territory without the approval of Indigenous communities? Are the representatives of the central government authorized to transit or settle in Indian land when necessary to comply with their constitutional or legal obligations? Does the central government have the right to overrule any decision made by Aboriginal groups’ authorities on these issues? If that is the case, in what sense are Indigenous communities territorially autonomous? In sum, underlying the tension between territorial autonomy and the unitary character of the Colombian state, the priority of the general interest over private property rights, freedom of movement and the state ownership of non-renewable resources there is a conflict of political and economic ideals. There is a conflict between different facets of the ideal country that Colombians would like to have. On the one hand, we value cultural diversity and are committed to the principle of self-determination. We want Aboriginal groups to be politically and territorially autonomous. We want Indigenous communities to have the tools for protecting and reproducing their culture and we want to remedy the many injustices that the state perpetrated against them in the past. On the other hand, we want our country to develop economically and are committed to the ideas of progress and distributive justice underlying this aspiration. We also want a united country with a stable democratic system where the voice of the majority is heard and where freedom of movement is protected. Taylor’s Substantive Liberalism, Kymlicka’s Multicultural Liberalism, and Tully’s Interculturalism do not say much about how to interpret these ideals or how to solve the conflicts that sometimes arise among them. The liberal core values to which they are committed do not demand a particular distribution of political and legal powers among the various jurisdictions in which a country is divided. Substantive Liberalism, Multicultural Liberalism and Interculturalism are compatible with various types of central or federal systems.19 However, two general normative criteria, applicable to these issues, can be derived from Taylor’s, Kymlicka’s and Tully’s proposals. First, the system chosen to distribute political and legal powers in a multicultural country should give cultural minorities enough freedom to be able to express, protect, and promote their cultural differences. The system that should be chosen or the interpretation of the existing system ought to take into account the particular necessities and aspirations of cultural minorities. It should take into account, for example, the different interests that national minorities and ethnic groups have.20 While the first group would need wide self- government rights in order to satisfy its aspirations, the second, would just need the legal tools to manifest its difference within the cultural majority. Consequently, a system that concentrates all political and legal powers in the center would not be able to satisfy their demands. It would destroy cultural diversity or prevent it from flourishing. Second, according to the claims of these three authors, no political system should grant its jurisdictions the power to create legal norms that violate fundamental individual rights. Neither the national government nor the states should be granted the power to violate liberalism’s fundamental values.
The Constitutional Court and the Tension between Political Unity and Cultural Minorities’ Political Autonomy
In the last thirteen years the Constitutional Court has been the public institution that has tried most actively to solve the theoretical and practical questions generated by the tension between the principle of political unity and cultural minorities’ self-government rights. The conceptual framework developed by the Court has determined the character of the public debate about the content and limits of cultural minorities’ political and legal autonomy. This basic conceptual structure has been laid out by the Constitutional Court in seven cases directly related to Aboriginal communities’ territorial autonomy. In these cases, the Court most clearly and sharply presents its interpretation about the second component of the cultural unity – cultural diversity tension within the Constitution. Unfortunately, the doctrine developed by the Court in these cases has been inconsistent, and in some cases, conceptually unsound. The Court’s
1919 See supra Chapter 1, p. 70.
2020 See supra Will Kymlicka’s Multicultural Liberalism, Chapter One, Section 2, pp. 36-47, for a discussion of the differences between national minorities and ethnic groups. opinions present views that are incoherent and unable to solve all dimensions of the conflicts underlying the cases. In some of these cases the Court has also been paternalistic. The Court sees Indigenous groups as passive subjects that should be protected by the government from the undue interference of external forces in their lands and not as agents with the right to autonomously govern their territories. The Court, in these cases, does not see a conflict between Aboriginal communities’ territorial and political autonomy and other constitutional values, but a tension between the state’s duty to protect cultural minorities and other constitutional principles the application of which might harm Indian groups. Yet, some of the Court’s opinions also present theoretical tools useful for understanding and strengthening the rights and responsibilities of Indian groups’ territorial self-determination. From a practical point of view, the Court’s opinions generally have had a positive effect for Indigenous communities’ territorial autonomy. Although sometimes for the wrong reasons, Aboriginal groups’ rights have usually been protected. The Court has confronted government and powerful private organizations when their actions have affected Aboriginal groups’ rights negatively and has ordered compensation for damages caused by their actions.
Blind Individualism: Ignoring Aboriginal Groups’ Territorial Autonomy
The first case regarding cultural minority rights ever decided by the Constitutional Court was Cristianía (T-428/92).21 The facts of this case are the following. The government’s expansion and pavement of a road within the lands of the Cristianía people (located in the province of Antioquia) caused, at least in part, the destruction of the economic infrastructure of the community. Landslides partially generated by the government’s works in the geologically unstable area where the Resguardo is located ruined the heart of the group’s productive system (sugar mill, stables, corrals and coffee bean processing area). The government did not do the study legally required to establish the possible environmental consequences that the expansion and pavement of the road would have in the region. Briefly after the action against the government was filed, the Court ordered the government to suspend all work on the road until the case was decided. The opinion of the Court was centered on the analysis of the tension between the interest that the province of Antioquia’s inhabitants had in the construction of the road, given the economic benefits that it would bring, and the interest of the Indigenous community in protecting its economic infrastructure and culture. The Court decided that the interest of the latter had priority over the interest of the former and instructed the government to maintain the suspension of the works until a study of the environmental consequences that might be generated by the road was completed. The Court also ordered the state to take all measures needed to prevent further damage and to pay for the damage already caused to the Indigenous community. The Court justified its decision with the following two arguments. First, it argued that the interests of the Aboriginal community and the non-Indian inhabitants of the region were collective in character. Thus, the Court added, the conflict to be decided was not between the general interest and the interest of private individuals but between two collective interests:
2121 Case T-428/92, Corte Constitucional, supra note 1 Id. Formally, this is a conflict between two collective interests, not a conflict between the general interest and a private interest .… From a substantive point of view this is a conflict between the interest of the inhabitants of the coffee growing region regarding the improvement of the area’s transportation infrastructure and the interest of the Indigenous community regarding its property rights over estate that is fundamental for its survival. 22
Second, the Court stated that the interest of the Indigenous group should be given priority because of its connection to the individual rights of the community’s members:
…. [I]t is obvious that from the point of view of the right in which each interest is based, the demands of the Indigenous community have more weight. While the interest of the Aboriginal group is based on the right to property, to work, and to maintain its ethnic and cultural integrity, the interest of the rest of the community is based on the right to finish a construction work conceived for the economic benefit of the region.23
The expansion of the road, the Court said, negatively affected the individual rights of the Aboriginal community’s members, and the continuation of the construction might affect them further. The Indians’ rights to life, 24 private property, work and the integrity of their culture were all threatened or violated by the destruction of the Aboriginal groups’ economic infrastructure. In contrast, the interest of the non-Indian inhabitants of the region was related just to the general economic benefits that the expansion and pavement of the road would bring to the area. The Court added that the government could never violate the individual rights of the citizens to satisfy the general interest of the population. “The norm that establishes the priority of the general interest [the Court said,] cannot be interpreted as justifying the violation of the fundamental rights of a few for the benefit of the interest of all.” 25 In Cristianía, the Court faced, for the first time since its creation, the difficulties of interpreting the tension between cultural diversity and cultural unity that exists within the Constitution.26 More specifically, the Court had to decide a case where Aboriginal groups’ territorial autonomy collided with the economic development of the country. The Court’s analysis focused solely on the tension between the individual rights of the Aboriginal group’s members and the interest that the non-Indian inhabitants of the region had in the improvement of the road. The Court’s decision in favor of the Indigenous community was structured exclusively around two arguments. The first argument was that the works on the road affected the rights to life, property and cultural integrity of the Aboriginal group’s members negatively. The second argument was that the general interest of the community could not be achieved at the expense of
2222 Id.
2323 Id.
2424 “…. [T]he loss of the estate where the community’s primary productive infrastructure was based, puts in peril the group’s precarious conditions of subsistence and thus, the integrity and life of its members.” Id.
2525 Id.
2626 The Constitution was enacted in July 1991 and the opinion of this case was issued in June 1992. violating individual rights. Individual rights, the Court argued, are the shield that in a liberal democracy protect all persons from the tyranny of the majority. The liberal argumentation of the Court, seen in an isolated way, is plausible. It sheds light over an important problem underlying the case and resolves it in a just manner. 27 Yet, the Court’s focus on the individual rights of the members of the Cristianía people obscured the fact that the government and the engineering company violated rights to which the community as a whole is entitled and that can only be exercised collectively. At the beginning of the opinion the Court argues that the legal problem of the case is structured by the conflict between two collective interests: the economic interests that the non-Indian inhabitants of the region had in the expansion of the road and the interest of the indigenous community “regarding its property rights over estate that is fundamental for its survival”. However, the Court very rapidly forgets the collective facet of the conflict and focuses on the individual rights of the aboriginal groups’ members in order to solve the case. The Court’s argumentation did not address the fact that the government and the engineering company violated the territorial autonomy of the Indigenous group. It said nothing about how their actions violated Aboriginal group’s right to determine the way its land should be used and the Indian community’s collective property rights over their territory. Land belonging to the Cristianía people was used in the expansion of the road without the Aboriginal groups’ consent. The group’s view on the consequences that the pavement and expansion of the road could bring to the community’s cultural integrity was not heard.28 It seems that if the work on the road had not destroyed the productive infrastructure of the community and individual rights of the community’s members had not been negatively affected as a consequence of this action, the Court would have condoned the state and company’s actions. There are two intertwined reasons that explain the Court’s decision in Cristianía. First, Cristianía was the Court’s first attempt to give meaning to the multicultural component of the 1991 Constitution. It was unanimously decided in 1992, only a few months after the Court was created, by a panel constituted by Justices Ciro Angarita, Eduardo Cifuentes, and José Gregorio Hernández. The three Justices did not have any precedent that could help them to interpret the facts and the legal problems of this case. Therefore, it was to be expected that they would use the traditional legal and political language to understand and solve this conflict. Moreover, it was to be expected that the Court would use individual rights, one of the most important categories of this traditional language, to interpret the case. When these legal and political categories are used, it is easy to lose the collective dimensions of the phenomenon examined. This is exactly what happened. The Court did not see that Aboriginal group’s territorial autonomy was violated by the government and road-construction company. The Court only saw
2727 The practical results of the Court’s first attempt to give content to the constitutional provisions regarding cultural minorities’ rights were positive. On the one hand, the Court decided to stop the expansion and pavement of a road that was going to bring significant economic benefits for an important region of the country, because of the negative consequences that these works had (and could have) for an Indigenous group. On the other hand, the Court’s opinion ordered the government and the company in charge of the construction works to compensate the Aboriginal group for the damages that were caused to its property. The Court then, in its first opinion on cultural diversity issues, inclined the balance in favor of cultural minorities and sent a strong message to the country: cultural minorities’ rights should be respected and those who violate these rights will be held accountable.
2828 It is one thing to have a narrow, dirt road crossing Indian territory and another to have a wide, paved road that will bring heavy traffic and numerous people to the area. If consulted, the Cristianía people might have agreed to the expansion and pavement of the road. However, the community might have disagreed, given the increased contact with the dominant culture that these construction works imply. that some of the individual rights of the Aboriginal group’s members were violated, e.g., the right to property and the right to life. Second, this was a tutela case, and thus, a case where fundamental rights are supposedly being (or threaten to be) violated. Article 86 of the Constitution indicates that the tutela action (that did not exist before 1991) can be used only to protect Colombians’ fundamental rights. In the 1991 political charter, not all fundamental rights are individual rights.29 There are a few social or collective entitlements that are also considered fundamental by the Constitution itself, e.g., children’s right to health (article 44) or by the Court’s jurisprudence, e.g., the right of indigenous communities, as collectivities, to survive. Yet, the majority of them are in fact individual rights. Thus, it was probable that the Court focused on the individual rights and not on the collective rights dimension of the case.
Militant Centralism: Rejecting Aboriginal Groups’ Territorial Autonomy
While Indigenous communities’ territorial rights were ignored but not undermined in Cristianía, in the Military Base case,30 Aboriginal groups’ territorial self-determination was radically and unjustly restricted. The facts of this case are the following. The national government constructed a military base in the territory of the Huitoto and Muinane Aboriginal communities. The base hosts a group of U.S. and Colombian soldiers in charge of managing a radar device for controlling drug-trafficking-related activities. The Indian groups claimed that the construction of the base was undertaken without prior consultation. The government, however, said it did inform the Huitoto and Muinane about the construction of the base and that some members of the community accepted work on the construction. The Indigenous groups also argued that the base was built on one of their sacred sites. Since these places purify the environment, Indian leaders added, the violation of the sacred site caused negative environmental changes that affected the health of the population that lives in the region. 31 The Huitoto and Muinane also claimed that the construction of the base in their territory caused damage to the Resguardo’s infrastructure and ecosystem. The military’s intense use of the Resguardo’s airport and the road that goes from this place to the town of Araracuara seriously damaged these transport facilities. The fact that a significant number of persons were
2929 For a thorough explanation of what is considered in Colombia a fundamental right, see Chinchilla Herrera, ¿Que son y cuales son los derechos fundamentales? [What are and which are the fundamental Rights?] (Temis 1999).
3030 Case T-405/93, Corte Constitucional, supra note 2
31 31 .… [W]ith the installation of the radar device, the community has suffered numerous injuries …. [I]t has not been able to develop its cosmogony given that the radar device is located in a sacred place …. [The negative consequences generated by the radar device] can be seen in the unbalance of the environment that creates the epidemics that the members of the community are suffering …. [F]or us, sacred sites purify the air ….
Id. (Comment of some of the Aboriginal groups’ leaders cited in the opinion of the Court) living in the base also created problems related to the disposal of waste and the management of natural resources like water and forests in the Resguardo. The Court’s opinion in Military Base focused on solving the tension between what it called “two general interests:” national security, i.e., the protection of the Colombian state from internal and external threats, and Indigenous communities’ cultural integrity. The Court decided that in this case national security should prevail over Indians’ rights. The Court justified its decision with the following arguments. First, Indigenous groups’ collective property over their lands is not an absolute right. Property rights can be restricted when public order issues are at stake. Second, the principle of national security prevails over the Indigenous community right to protect the integrity of its culture. The military station allows the control of drug-trafficking- related activities that affect all citizens, while the protection of the Huitoto and Muinane culture affects them only. For the Court,
Formally this is a conflict between two collective interests, not a conflict between a particular and a general interest. Both collective interests have differences regarding their grade of generality. The Aboriginal group’s interest is clearly limited in a spatial and temporal ambit; the Colombian state’s interest is related to the control of drug trafficking in the Amazon and low Caquetá region and the security of the Colombian population …. The latter is then, an interest that includes a greater number of persons, and it could be said that within this number of persons the Middle Amazon Indigenous community is included. 32
The Court also said that while the Aboriginal groups’ interest is based in the right to property and the protection of its cultural integrity, the interest of the state is based in its duty to protect the rights and freedoms of all Colombians:
While the interest [of the Indigenous communities] is based in the right to property and to maintain its cultural and ethnic integrity, the interest of the people of Colombia and in particular the interest of the state is based and supported by the government’s [duty to protect] national sovereignty, to control the public order and to guarantee the security of all the inhabitants of Colombia….33
Third, no fundamental rights were violated by the construction of the base, although it was built in Indian’s sacred territory. The Court explicitly said that “….given that [the radar device’s] strategic location is essential for activities of control, it cannot be thought that the radar device violates fundamental rights that should be protected through the tutela action, even though for the Indigenous community the place where it is located is sacred.” 34 Fourth, the government did discuss the project with Aboriginal communities; the fact that some of its members worked on the construction of the base proved that the community was not opposed to its building. The Court said that,
3232 Id.
3333 Id.
3434 Id. The installation of the radar device, as can be deduced from the reading of the case’s file, was accepted by the Aboriginal community before its actual installation, even though it was subsequently argued that the obligation to consult about this project that directly affected the Aboriginal community was not satisfied. Before the installation there were meetings with the Aboriginal community and Indians worked in the preparation of the area and in the installation of the radar device. Thus, it should be deduced that if the members of the Indigenous groups helped in the installation [of the radar device] they were not opposed to it. 35
Fifth, Colombia is a unitary republic. The creation of law is the exclusive power of Congress and the national government. The Indigenous groups are instruments that can only apply or develop Congress’ or the central government’s decisions. For the Court, Colombians
…. are governed, as it is affirmed by article 1 of the Constitution, by a state that is organized “as a unitary Republic, decentralized and with autonomy of its territorial entities.” This system of articulation of power in the territorial sphere implies that political decisions and law are the monopoly of the central State, of Congress -in the best of cases- or the government …. [.] [C]onsequently, any alternative source for the production of law is excluded and local instances appear only as neutral instruments of the central power.36
The Court, however, found that the activities of the soldiers that lived on the base did affect the environment and the infrastructure of the Resguardo negatively. As a result, the Court ordered the government to create an intercultural committee that would be in charge of preparing a plan for managing natural resources within Indian lands. The Court’s decision in this case is justified by three arguments: First, it held that the Huitoto and Muinane agreed to the construction of the base and therefore the communities’ property rights were not violated. The Court decided then that consent was the first criterion that should be applied to solve Military Base. From the Court’s point of view, the Huitoto and Muinane exercised the collective property right that they have over their Resguardo. For the Court, these Aboriginal communities voluntarily ceded to a third party (the Colombian state) the use of a portion of their land –as all property owners have the right to do. Yet, the Court did not present any convincing evidence to support this line of reasoning. The Court just said that the government organized some meetings where members of the Huitoto and Muinane communities participated and that some members of the community worked in the installation of the radar device. The Court did not say anything about who participated, what was specifically discussed, and what was the purpose of these meetings. Were these meetings organized to inform the communities about a project that was going to be done in their lands? Were they organized to ask for the communities’ permission to install the radar device? Were the communities’ authorities at the meetings? If that is the case, what did they say about the construction of the base in their territory? Did they oppose the project? If the communities agreed, why did they change their mind and sue the government?
3535 Id.
3636 Id. The only evidence available in the case shows that the government merely informed the Aboriginal groups that a radar device was going to be installed in their territory and that the Huitoto and Muinane disagreed with the whole project. In a memo cited by the Court, the Ministry of Defense said that the state informed Aboriginal groups about the construction of the military base and the benefits that this project would bring to the region. In this memo, the Ministry said that
The [radar device’s] installation and functioning operations were known by the Indigenous communities at the relevant time …. [.] [T]he benefits for the communities were also explained to them. We made them realize that the infrastructure and the improvements in the runway would be left to the community since the radar device is mobile and the military personnel would stay in the area only transitorily….37
The memo also said that, “[t]he national security and sovereignty have priority over the transitory hassles caused to the Indigenous groups.” 38 The director of a semi-public foundation that works in the Resguardo, also cited by the Court, said that among the negative effects generated by the radar device’s installation was the malaise generated between the Huitoto and Muinane because they were not consulted about the construction of the military base. He said that with the installation of the radar “…. the Indigenous groups have felt a presence that was not previously consulted with them in a place that they consider of great importance for their cultural traditions.” 39 In the suit filed against the government, the Aboriginal groups’ representatives specifically stated that the authorities of the community were not consulted about the installation of the radar device. The Court seems to assume that the fact that the Aboriginal groups living in the Monochoa Resguardo were informed about the construction of the base legitimated the government decision to move ahead with the project. This assumption is wrong. Aboriginal groups are collective owners of Resguardos; they have the same rights, with the exception of the right to sell the property, as any other landowner in the country. 40 Indigenous communities then, have the right to decide who can transit and settle in their territories. The Constitution does not allow the government to violate the property rights of citizens just because it previously informed the owners of the actions that were going to violate their rights. If the state thought that despite the Indigenous communities’ opposition to the base, it was fundamental for national security reasons to install the radar device in the Monochoa Resguardo it should have followed the legal procedures for expropriating the land necessary to accomplish that aim. The fact that some members of the community participated in the building of the base hardly shows that the community agreed to the construction of the military base. The authorities of the Monochoa Resguardo are the only ones entitled to make any decision related to the transit and/or settlement of non-Indians in their territory. The fact that a group of Huitoto and/or Muinane worked on the construction of the base at most shows that these persons agreed with
3737 Id.
3838 Id.
3939 Id. (Comment of the Corporación Araracuara’s director).
4040 The Court itself offered this argument in case T-257/93, Corte Constitucional, supra note 3. the arrival of the Colombian and U.S. military personnel at the Resguardo.41 There is no evidence that the individuals that worked on the building of the base were acting as representatives of the community. The Court’s argument would oblige us to accept that it would be legitimate for Brazil, for example, to construct a military base on the Colombian side of the border (on public lands) if a group of Colombians work on its building. For the Court, this would be evidence that the Colombian state and all its citizens agreed with the Brazilian government’s actions. The second argument that the Court used to justify its decision was that the general interest of the polity should always have priority over the interest of private individuals. The Court argued that while protecting the Indigenous groups’ legal interests would affect only them, protecting national security would affect all Colombians positively. Without a minimum level of stability and order, the Court added, the rights and freedoms of people (Indians and non-Indians) would be just empty concepts. If the state were not able to control the widespread violence and corruption that drug trafficking has generated in Colombia its citizens would not be able to exercise their rights and freedoms. Although Aboriginal groups’ rights to property and cultural integrity are important for the polity, in this case they should be notably restricted. There is no doubt that national security is an important political value and that the control of drug trafficking activities that the radar device allows contributes to its protection. Yet, it is not clear why this value needs to be protected through the encroachment of Aboriginal groups’ rights. There is no evidence in the case indicating that the military base had to be constructed in Indian lands. Could it have been constructed at another site? If to protect national security it was absolutely necessary to construct the base in the Huitoto and Muinane territory, why was it constructed precisely on an area considered sacred by these Aboriginal groups? There is no information available in the case that answers this last question, but it is highly unlikely that within the Resguardo there was no other piece of land that would have been appropriate. It might have been the case that the location of the base was chosen for logistical reasons, e.g., since the base is right next to the runway of the region’s airport this probably facilitates the arrival of supplies and the mobility of the military personnel. However, these logistical justifications can hardly be seen as reasons powerful enough to violate the sacred lands of the peoples that inhabit the Monochoa Resguardo. The third argument offered by the Court to justify its decision was that national security should be a priority over Aboriginal groups’ rights because the location of the base did not violate any of the Indian communities’ fundamental rights. The Court said that the location of the radar device “neither harms nor ignores the ethnic or cultural rights of the Aboriginal group, nor does it endanger the conditions that allow the group to exist, nor the integrity or the life of its members.”42 For the Court there is no evidence that the base affected negatively the rights of the Huitoto and Muinane. The Court’s argument is implausible. The fact that the military base is located in the Aboriginal groups’ sacred lands is in itself a violation of freedom of religion. The
4141 We can imagine other reasons that might have motivated some members of the Huitoto and Muinane communities to work in the construction of the base. They might have been non-traditional members of the community and might have thought that the arrival of the armed forces was going to help the community to move away from questionable customs. To help in the construction of the base was for these non-traditional members of the group to help their community to move in the right cultural direction. Another reason that might explain why a group of Huitoto and Muinane worked in the construction of the base is the bad economic situation that they were (and are) living; the money paid by the armed forces might have tempted some of them to work in the installation of the radar device.
4242 Case T-405/93, Corte Constitucional, supra note 2. Huitoto and Muinane’s right to practice their religious views was violated by the desecration of their lands. Practicing a creed involves defining what is sacred, what conduct is allowed toward the sacred, what consequences follow from the violation of these rules, and the actual practice of these rules by the faithful and their religious leaders. The location of the military base made the Huitoto and Muinane’s religious rules about the sacred inapplicable. These Aboriginal communities believe that nobody should live in sacred lands since they maintain the balance of the environment. They also believe that any violation of this rule would generate changes in the environment that would bring negative consequences for human beings. Consequently, the presence of military personnel in holy lands has meant for the Huitoto and Muinane the arrival of diseases in their territory and the impossibility of performing any personal or collective religious ceremony in these lands.43 The installation of the radar device in the Huitoto and Muinane’s holy lands also violates the constitutional principle that recognizes cultural diversity. This principle entails the recognition of cultural minorities’ ways of life. It implies then that cultural communities’ have the right to organize their public and private institutions through their traditions and that the state should respect the worldviews of the various communities that inhabit the country. The government’s violation of the Huitoto and Muinane’s freedom of religion is also a violation of their right to live in accordance with their traditions. When the state violated the Indian communities’ right to practice their creed, the state also violated their right to express their cultural difference. Religion is a fundamental element of these Aboriginal groups’ personal and collective identities. It is an essential component of their cosmogony.44 The last argument that the Court used to justify its decision is that Colombia is a unitary republic. For the Court, this means that the central state has a monopoly over the creation of law and that all other authorities in the country should only implement or develop the legal norms created by Congress and the president. In the Court’s interpretation of article 1 of the Constitution, Indigenous communities do not have the right autonomously to create and implement legal norms that reflect their cultural traditions. In this view, Indian authorities are mere instruments of the central government. Although they have certain freedoms on the margins, e.g., to decide fishing and hunting rules, their main task is to enforce at the local level what the national Congress and the president have already decided for the whole country. Beneath the Court’s interpretation of the Constitution there is the modern idea that stability and order cannot be achieved without the centralization and homogenization of law. From this perspective, there should be one and only one legal system to avoid the disintegration of the state. Various legal systems would mean the existence of various sources of power and the
4343 The Huitoto and Muinane’s religious beliefs might seem unattractive by many in the dominant culture. The connection between illnesses and sacred lands might look unreasonable to them. However, the reasonableness of persons’ religious beliefs should not be relevant for deciding if the state violated their religious freedom through a specific action. These Indigenous groups do not want to impose their religious views over all Colombians. They just want to be able to live in accordance to their religious traditions.
4444 The government would have never constructed a military base on lands sacred to the Catholic majority. The state would have never dared to install a radar device in, for example, a place where a historic church was once built or on a site where it is believed that the Virgin Mary appeared. On the one hand, the majority of government officials are Catholic and most probably they would not take the first step to desecrate the sacred symbols of their faith. On the other hand, even if the government would be willing to do it, the opposition of the Catholic majority of the country would have made it politically impossible. Yet, one cannot but wonder what would the Court have decided if this had happened. continuous possibility of struggles among them. This central structure would guarantee law’s coherence and rationality as well. Law should be created by the same entity (or group of entities) to minimize the risks of internal contradictions and voids. The centralization of law would also guarantee the general and abstract character of legal rules as well as their equal enforcement in all areas of the country. All persons would have the same rights and all laws would be in principle applicable in all of the state’s territory. The central powers would create laws and provincial and local authorities would contribute to their enforcement. The possibility of various legal systems coexisting within a country is thereby ruled out. Without centralization, there would be conflicts of competence, laws that favor individuals living in certain areas or belong to certain groups, and individuals would not know the rules that should guide their conducts. The Court trivializes cultural diversity with its interpretation of article 1 of the Constitution. For the Court, the constitutional recognition of the various cultural traditions that coexist in the country just means that the state recognizes all traditions that do not conflict with the dominant culture. Since the hegemonic cultural tradition controls Congress and the executive power –the institutions that hold the monopoly for the creation of law– cultural minorities are condemned to be eternal appendages of the majority. They would have no other mission but to implement what the majority decides. Aboriginal groups would be allowed to dress, dance and eat differently, for example, but they would not be able to apply any cultural tradition that conflicts with the values of the majority. In the Court’s interpretation of the Constitution, Indian lands are simply another territorial entity like provinces and municipalities. Aboriginal groups’ territories are just one more administrative division designed to facilitate the enforcement of the decisions taken by the central state. Indian lands and authorities are nothing but a marginal piece in a bureaucratic structure that is meant to communicate and apply in the periphery decisions made by the center. The political and territorial self-determination granted to Indian groups by the 1991 Constitution, however, was specifically designed to break this modern way of understanding law and to temper the power that the central state and the majority usually have in the life of minorities. These rights were granted to Indigenous communities so that they could protect and reproduce their cultures; so they could design private and public institutions in accordance with their traditions. The recognition of diverse legal systems by the charter is a necessary consequence of the constitutional recognition that Colombia is a multicultural country (art. 7), Aboriginal groups’ judicial powers (art. 246), and Indigenous communities’ political self- determination rights (art. 330). These constitutional provisions break the traditional monopoly over the creation of law that the central state had for centuries in Colombia. Aboriginal groups, the constitution states, have the power to create laws, to enforce them, and to choose political leaders in accordance with their traditions. Obviously, a system that coordinates the various legal systems should be developed. Legal pluralism is a source of innumerable problems and challenges. Jurisdictional limits should be determined, areas of competence should be defined, and minimum procedural standards, among many other things, should be decided. However, all these tasks should be done in a way that allows cultural diversity to flourish and not in a way that minimizes the possibility of the expression of differences. In sum, in Military Base, the Court radically and unjustly restricted Aboriginal groups’ territorial autonomy. Indian communities’ collective property rights were radically weakened and the Indigenous groups’ right to live in accordance with their traditions was drastically undermined. In the Court’s view, the constitution authorizes the government to use, transit across and settle in Indian territories just by informing Aboriginal communities that this would be the case. From the Court’s perspective, Aboriginal groups are just instruments that the central government has for the implementation and development of the laws created by Congress and the president. For the Court, the only space where Aboriginal groups can exercise their autonomy is within the gaps left by the legal grid created by the central state. They can develop this grid; they can even give it a local “flavor”. However, they cannot modify, contradict, or create an alternative to this system. The Court’s jurisprudential turn in Military Base can be explained by the following three reasons. First, the Court could not avoid addressing the challenge to the Huitoto and Muinane’s territorial autonomy rights. It was obvious that the construction of a military base in the lands of these Aboriginal communities was in tension with the collective property rights that they hold over the Monochoa Resguardo. It was also obvious that the construction of the base and the permanent presence of U.S. and Colombian military personnel (supposedly) without the Huitoto and Muinane’s permission violated their self-government rights. Second, the military base that was constructed in Indian territory was aimed to control drug trafficking related activities in the country. Drug trafficking in Colombia is a national security issue. It is also the main topic in the agenda of U.S. and Colombian relations. For the Court it would have been politically very challenging to solve this case in a different way. The Justices could have easily been accused by the Colombian and the U.S. governments, the media, and public opinion of obstructing the war on drugs and of harming Colombia’s relationship with the U.S. Third, the political commitments of Justice Herrera. Military Base was decided unanimously by Justices Herrera, Morón and Martínez. Justice Herrera, who wrote the opinion, was one of the most conservative Justices of the Court. During the 9 years that he served in the tribunal his commitment to conservative values like security, order, and legal and political centralization was made constantly explicit in his opinions.45
Radical Collective Autonomy: Between a Paternalistic and a Just Affirmation of Aboriginal Groups’ Territorial Autonomy
From 1993 to 1998 the Constitutional Court decided four cases in which Indigenous communities’ territorial autonomy was strengthened. In Vaupés, Embera, U’wa, and Urrá, the Court provided some useful tools for understanding the specific rights and responsibilities that Aboriginal groups’ territorial self-determination entails. However, the reasoning of the decisions was not always clear, coherent or conceptually sound. Particularly problematic were those arguments that offered a paternalistic defense of Aboriginal groups. In these arguments, the Court reproduced the mainstream’s view that Aboriginal groups are weak and passive entities that should be protected by the state from internal or external threats.
4545 See, e.g., Corte Constitucional, Case C-221/94, Dissenting Opinion, exp. No. D-429, 05. 05. 1994; Case T-569/94, exp. No. T-48.344, 07. 12. 1994; Case C-098/96, Dissenting Opinion, exp. No. D-911, 07. 03. 1996; , Case C-239/97, Dissenting Opinion, exp. No. D-1490, 20. 05. 1997; Case C-481/98, Dissenting Opinion, exp. No. D-1978, 09. 09. 1998. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System] supra note 1. The first case where the Constitutional Court explicitly affirmed Aboriginal groups’ territorial autonomy was Vaupés.46 In this case, Nuevas Tribus de Colombia –a U.S. Protestant group– requested the government to revalidate the permission it had been granted to use an airport located in the Resguardo of Vaupés. This religious group’s mission is the conversion of Aboriginal groups to Christianity and it had been working in the area where the airport is located for several years. The government agency that administers airports denied the permission because the Vaupés Resguardo’s authorities informed the agency that the Aboriginal communities they represent did not want Nuevas Tribus back in their territory. The religious group argued that the freedom of movement and the religious freedom of its members had been violated. The Court centered its analysis on the tension between freedom of movement and the collective property of Indian lands. It decided that the latter should prevail over the former. The Court argued that article 24 of the Constitution states that law can limit freedom of movement. It also argued that the American Convention of Human Rights and the International Covenant on Civil and Political Rights –to which Colombia is a party– assert that freedom of movement can be limited to protect the rights and freedoms of third parties. Finally, the Court stated that Indigenous communities have the same rights over their lands as any other proprietor and thus, that Indian groups have the right to limit the transit and settlement of persons within their territories.47 For the Constitutional Court,
…. the property rights that an Aboriginal community exercises over its Resguardo are rights ruled by article 58 of the Constitution. Thereby, property over a Resguardo is a right-duty in the following sense: a) For the owner –the Indigenous community– it is a subjective right that has the characteristics established by article 669 of the Civil Code …. [.] [This article] establishes [the following]: Property is a real right over a corporeal thing for its arbitrary enjoyment and disposal, if this is not against the law or the right of another person …. Particularly, the consent of the owner(s) is required for circulating in it [the property]. Property is also a duty because it has a social function. b) For third parties, it is a duty to respect someone else’s property …. and not to circulate in it without the consent of the owner. In this way, the Aeronáutica Civil’s decision of demanding the consent of the community …. for operating the Yutica-Yapima runway is justified in constitutional and legal provisions as well as in international treaties. (Bold in the original) 48
In this case, the Constitutional Court strongly affirmed Aboriginal groups’ territorial autonomy. The Court recognized the right that the Indian groups that live in the Resguardo of Vaupés had to deny the entrance of Nuevas Tribus de Colombia to their territory. The Court’s argumentation confirmed that Aboriginal groups’ own the Resguardos they inhabit (art. 329 of the Constitution), acknowledged that Resguardos are not a mere administrative divisions like provinces and municipalities, and made explicit the content of Indian groups’ property rights
4646 Case T-257/93, Corte Constitucional, supra note 3.
4747 The only exception to this rule is that article 329 of the constitution states that Resguardos are not commercially available. Indigenous groups are not allowed to sell their legally recognized collective lands.
4848 Case T-257/93, Corte Constitucional, supra note 3. over their lands. The Court declared that because Indigenous groups are collective owners of Resguardos, they have the right to determine who can settle and transit their territory. The Court also stated that the government and private individuals have no option but to comply with the decisions made by Indian communities’ authorities on these issues. The Court’s argumentation is very significant if placed in a historical context. Since a Spanish colony, the state has promoted the assimilation of Aboriginal groups through religion. The Catholic Church was the institution favored by the state to “civilize” Indigenous groups. 49 Yet, protestant organizations were also part of this process. During the XX century, various protestant denominations, e.g., Jehovah Witnesses and Seventh Day Adventists, performed evangelizing activities in Indian lands with the approval of the Colombian state.50 Aboriginal communities were obliged to accept the settlement or transit of missionaries in their territory and had nothing to say about the activities that these persons were carrying out in their lands. They had no other option but to accept what the central government had decided was beneficial for them. The Court’s decision made clear that those days ended with the 1991 Constitution. The Court loudly said to the government and the various churches interested in converting Indigenous groups to their creed that Indians are autonomous agents and thus, that they are the only ones who can decide if they want to assimilate to another culture. The Court’s declaration that the rights that Indigenous groups have as collective owners of their Resguardos are, with the exception of the right to sell, identical to the rights held by any other landowner of the country has an important strategic consequence. This statement allows the average citizen of the dominant culture to understand what is at stake in many of the conflicts in which Aboriginal lands are involved because it suggests an accessible way to identify with the Indian groups’ claims. Members of the dominant culture would be able to see that Indian groups’ defense of their lands is based on the same rights that any landowner claims over her land. Aboriginal groups and landowners in the dominant culture can then become implicit or explicit partners in the defense of Indian territories. It is in the interest of the dominant culture’s landowners to defend private property. They would not want to see their rights to control who can transit their properties limited. The Court’s exclusive focus on property rights for defending Indian groups’ territorial self-determination is, however, problematic. It obscures the fact that the collective property of Resguardos is not the only source of Aboriginal groups’ territorial autonomy. Aboriginal groups
4949 Law 89 of 1890 was the most important legal norm enacted in the recent history of Colombia on these matters. Law 89 gave the Catholic Church the mission of “civilizing” Aboriginal groups in the country. To “civilize” Indian communities meant that their members should convert to Christianity, learn Spanish, and participate in the dominant culture’s market economy. To achieve this aim, law 89 put the Catholic Church in charge of the education of all Aboriginal groups in Colombia. It also gave the Church judicial and political powers over Indian communities. Until 1996, when in Case C-139 the Constitutional Court declared partially unconstitutional law 89, this legal norm defined the basic contours of the relationship between the state and Aboriginal groups. Case T-380/93, Corte Constitucional, supra note 4. See Case C-139/96, Corte Constitucional, exp. No. D-1080, 09. 04. 1996. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System], supra note 1.
5050 See Christian Gros, Políticas de la etnicidad: identidad, estado y modernidad [Politics of Ethnicity: Identity, State and Modernity] 146-50 (Instituto Colombiano de Antropología e Historia 2000); David Stoll, Is Latin America Protestant? The Politics of Evangelical Growth (University of California Press 1990). The evangelizing work done by the Instituto Linguístico de Verano in Indian lands since 1962 was particularly effective. This U.S. protestant group, with the state’s approval, studied the languages of Indigenous communities all around the country in order to convert their members into Christianity. The staff of the Instituto Linguístico learned Indian groups’ languages to find ways of communicating Christian ideas in a way understandable to the Aboriginal communities. are territorially autonomous not only because they are proprietors but also because they are culturally different. The constitutional recognition of Aboriginal groups’ right to define the way their lands and resources should be used and administered (art. 330) is based on the constitutional recognition of cultural diversity (art. 7). The Constitutional Assembly granted Aboriginal groups’ territorial self-determination in order for them to be able to express, protect and reproduce their cultural ways. To recognize cultural difference commits the state not only to recognize in the abstract the diverse ways of life of the various communities that inhabit the country, but also to create the conditions in which these different ways of life can flourish.
The second case in which the Constitutional Court affirmed Aboriginal groups’ territorial autonomy was Embera (T-380/93).51 The facts of this case are the following. A contractor of a wood company exploited 3.400 hectares of forests within the territory of the Embera community over approximately three years. Some of the Embera’s leaders approved the exploitation of the communities’ woods by the timber company and received cash, a boat engine and a chainsaw as a compensation for their consent. However, the wood company did not get the government- issued license that it needed legally to exploit the natural resources in Indian lands, which are also a legally constituted forestal reserve. The contractor’s heavy exploitation of the Resguardo’s forests notably altered the ecosystem of the area, threatening the economic viability of the community. The group has a subsistence economic system based on the exploitation of the tropical forest that was endangered by the company’s destruction of nearly all the Resguardo’s forests. The state agency in charge of protecting the environment in this region of the country knew about the illegal use of the Embera’s natural resources but did nothing to stop it. After the exploitation of the Aboriginal group’s territory ended, this government agency ordered the wood company to repair the damage caused by their actions and to refrain from further exploitation of the natural resources in the region without obtaining the necessary licenses. The government agency also instructed the wood company to do a study of the environmental consequences that its actions had and would have in the region. Some members of the indigenous community The Court’s opinion was centered on the analysis of the tension between the cultural, social and economic risks involved in the exploitation of natural resources in Indian lands and the special protection that the government should give to Aboriginal communities.52 The Court decided that the state’s indifference towards the illegal exploitation of natural resources within Indian territory threatened the existence of the Embera community. Given the Embera’s total dependence on the tropical forest for their survival, its destruction meant that the community would probably disappear physically and culturally. The Court then ordered the government to implement all necessary programs to restore the natural resources destroyed by the illegal exploitation of the forests within the Embera Resguardo. The Court also instructed the state to
5151 Case T-380/93, Corte Constitucional, supra note 4..
52 52 This panel should decide two fundamental questions. First, how to resolve, in the light of the Constitution, the conflict between the exploitation of natural resources in Indian territory and the special protection that the state should give to ethnic communities so that they can maintain their cultural, social and economic identity ….
Id. pursue all legal actions against the wood company in order to oblige it to pay the Embera community compensation for all the damages caused by its actions. The Court justified its decision in the following way. First, it stated that the Aboriginal group’s collective property over their territories includes the ownership of all renewable natural resources within them. However, the Court also stated that Aboriginal groups should use their natural resources with responsibility, particularly in areas where Indian territories overlap with forestal reserves. Natural resources cannot be illegally or arbitrarily exploited; their use cannot negatively affect the environment or any other common good or political value. Accordingly, the Court declared that the approval given by some of the Embera’s leaders to the wood company actions was illegal:
The right to the collective ownership of renewable natural resources within [Indian] territories, does not give the representatives of Indigenous communities absolute power to decide what do with these resources. Indian authorities’ autonomy for administering their own affairs, especially regarding the use of natural resources (CP art. 330), should be exercised with responsibility (CP art. 95-1) The ultra vires doctrine could always be used against [Indian] authorities’ actions in which the natural riches of their territory have been used illegally or arbitrarily [;] [these actions] thereby should be divested of all legal validity. (Bold in original) 53
Second, the Court argued that Indigenous communities (not only their members) are subjects of rights. For the Court,
An Indigenous community is not anymore a mere factual and legal reality; it has become a “subject” of fundamental rights. In this case, the interests that should be constitutionally protected, and defended as fundamental rights, are not only the rights predicable of the members of the community but also the rights to which the community itself is entitled …. [.] [This is] precisely the presupposition [underlying] the explicit constitutional recognition of the “ethnic and cultural diversity of the Colombian nation” (CP arts. 1 and 7). The Charter’s protection of cultural diversity is derived from the acceptance of different ways of social life, to which the communities manifestations and continuous cultural reproduction are entitled as autonomous collective subjects and not as simple aggregations of their members .… 54
As subjects of rights, the Court also argued, Aboriginal groups have the right to live and not to be forcefully disappeared. The constitutional recognition of the country’s cultural diversity, the Court added, requires the protection of Aboriginal groups’ communal ways of life and not only the rights of the individual members of these communities. This duty implies the protection of the pre-conditions that allow the community to survive economically. In this case, the Court said, that means the protection of the forest that makes the subsistence economic system of the Embera viable:
5353 Id.
5454 Id. Among other fundamental rights, Indigenous communities are entitled to the fundamental right to subsist …. [.] [This right] is directly deduced from the right to life enacted in article 11 of the Constitution. Indigenous communities’ culture, indeed, corresponds to a way of life that is synthesized in a particular way of being and acting in the world …. that if cancelled or eliminated –and that can happen if its environment suffers a severe deterioration– can generate the communities’ destabilization and eventual extinction. The prohibition of every form of forced disappearance (CP art. 12) is also predicated from Indigenous communities, who have a fundamental right to their ethnic, cultural and social integrity. 55
The third and last argument presented by the Court to justify its decision was that the state has the obligation of protecting environmentally fragile areas like the forestal reserve where the Embera live. Embera is sustained by three pillars. First, it protects Aboriginal groups’ collective property rights. For the Court, collective property is no different from individual property. Collective owners have the rights to use the land, to transform it, and to receive the fruits that it produces (the classical rights given to all individual proprietors: usus, abusus, and fructus). They also have the right to decide who enters and transits their property. Second, as with other owners, Aboriginal groups have obligations with respect to their property. They can not use it in ways that affect negatively the rest of the community. The Court reminds Aboriginal groups that they cannot use their lands in ways that radically disturb the environment. This issue is particularly important given the fact that the Embera live in a natural park. Their collective lands are also a nationally protected region due to the richness of their ecosystems. Thus, the Embera are not the only ones who have interests in their lands: the cultural majority and other cultural minorities do as well. Third, the Court creates a new subject of rights: the Indian community. Its rights include the right to life and the right not to be forcefully disappeared. With this argumentative move, the Court connects the three fundamental issues of this case: property, the limits to its use, and the cultural survival of Aboriginal groups. Indian tribes cannot survive as culturally distinct communities if their collective property rights are not protected. However, the collective rights that they hold over their lands are not absolute. They have limits: they may not exploit their territories in a way that damages the environment.
5555 Id. The Court also said that,
The close relationship between a balanced ecosystem and the survival of Indigenous communities that inhabit rain forests, transforms environmental deterioration factors produced by deforestation, sedimentation and pollution …. into a potential peril against the life and the cultural, economic, and social integrity of minority groups …. State’s inaction, after serious damage to the environment of an ethnic group has been caused –given the biological interdependence of the ecosystem– can contribute passively to generating an ethnocide …. [.] [This ethnocide] would be the forced disappearance of an ethnic group …. by the destruction of its life environment and system of beliefs. From a constitutional perspective, the omission of the duty to restore natural resources by the states’ agencies in charge of monitoring and recuperating natural resources (CP art. 80) …. constitutes a direct threat against the Embera-Katío community’s fundamental rights to life and not to be forcefully disappeared. Id. The definition of what the legal problem is in a case determines which facts should be considered relevant and which are not, the way the relevant facts should be organized, the type of arguments that could be validly presented, and a limited range of possible decisions for the conflict. In this opinion, the Court’s definition of the legal question to be resolved is questionable. The conflict that the Court believed it should resolve established a paternalistic framework for the analysis of the conflict underlying the case. The Court argued that the problem presented was the tension between the state’s duty to protect Aboriginal communities and the risks that the exploitation of natural resources in Indian lands involves for the cultural, social and economic integrity of Indigenous groups. This way of defining the problem presents the Embera community as a passive agent to be protected from the actions of members or non-members of the group that might affect the community negatively. The Court’s approach to the case reproduces the traditional view that the hegemonic culture holds with respect to Indigenous groups. Indian communities are fragile entities, unable to protect themselves from internal or external threats. The state does have a duty to protect Indigenous groups. Article 7 of the Constitution declares that the state must protect the country’s ethnic and cultural diversity. Yet, the way in which the Court presents the problem shows the conflict only from the state’s point of view. It offers only the possibility of exploring the way in which the state protected or failed to protect an Aboriginal group. The Embera case is not only –and not principally– about how the state should protect a cultural minority from the actions of its authorities or the actions of members of the dominant culture. The case is about defining the meaning and limits of Indigenous groups’ territorial autonomy, determining the rights and responsibilities of non-Indians regarding the exploitation of renewable natural resources in Aboriginal communities’ lands, and sanctioning the persons or entities that violate Aboriginal groups’ rights. Fortunately, shortly after presenting the legal problem to be resolved, the Court took an unexplained conceptual turn, focusing on the limits of Aboriginal groups’ territorial autonomy. The Court’s fundamental analysis of this issue is plausible. Indigenous communities’ collective property over their lands is not an absolute right. Although Indians’ collective property of Resguardos implies the collective ownership of renewable natural resources within them, Aboriginal groups cannot exploit these resources with unconstrained freedom. They are limited by the legal regulations that protect the environment and define the rules for guaranteeing a sustainable development of the country. The message that the Court is sending to Indigenous groups’ authorities is important. Indian authorities have to exercise their power with responsibility. In environmental matters, Aboriginal communities’ authorities are limited not only by the interests of their own communities but also by the interests of non-Indians. The dominant culture has a legitimate interest in the protection of the environment, particularly in biologically rich and fragile areas like forestal reserves. The Court’s argument, however, has some problematic consequences when applied to Aboriginal groups whose Resguardos are also forestal reserves (or any other type of natural reserve). The overlapping of Indian lands with a natural reserve generates a serious conflict of jurisdictions. On the one hand, Indigenous communities are constitutionally empowered to define the use of their lands in accordance with their ways of life. On the other hand, Indian lands that overlap with nature reserves are governed by special environmental legislation that imposes severe limits for the exploitation of their natural resources. The Indians’ territorial self- determination then is notably limited by these environmental rules. The Court assumed that this theoretical conflict of jurisdictions would not generate practical negative consequences for Aboriginal groups or the environment. The Court argued that the Aboriginal communities’ traditional way of life does not present any risk for the stability of the nature reserve’s ecosystem. Quite the opposite. For the Court, the fact that the Indian groups are living in the reserve guarantees the protection of the environment. The majority of Indigenous groups, the Court also stated, has a subsistence economic system that does not use the environment excessively but rather guarantees its sustainable exploitation. The Court adequately describes the economic systems of many of the Aboriginal groups that inhabit Colombia. However, Indigenous communities might decide (forced by poverty or motivated by ambition, for example) to change their traditional productive systems. A hunter- gatherer group might want to grow crops or an agricultural community might decide to intensify its crop production or industrialize its economic system.56 However, if these changes were implemented, Aboriginal groups would probably violate the severe environmental laws governing natural reserves. The problem is not that Aboriginal groups have to exploit their natural resources responsibly. The problem is that the burden imposed on Indian communities is heavier than the burden imposed on any other individual or community in the country. The strict environmental laws ruling natural reserves may oblige Aboriginal cultures to freeze culturally.57 Either they maintain their subsistence economic systems or they face monetary or criminal sanctions due to the violation of environmental laws.58 What will happen if new generations of Indians want to transform their economic traditions? What if demographic changes within Aboriginal groups require changes in their production systems? If present generations are willing to comply with environmental rules (as a strategy for getting the state to recognize their lands, for example), aren’t they unjustly limiting the autonomy of future generations? Isn’t the Court contributing to this cultural freezing of Aboriginal groups when it states simply that Indian communities have to comply with all environmental laws, including those regulating natural reserves? Isn’t the Court contributing to the obfuscation of this problem when it declares that Aboriginal groups’ economic systems are (and will be) compatible with the environment? Once the Court ends its reflection about the limits to Indigenous groups’ territorial autonomy, it turns to the analysis of private individual’s responsibilities when exploiting renewable resources in Indian lands, the supervisory role that the state should have in these cases, and the connection that these two issues have with Indigenous groups’ survival. The arguments that the Court offers regarding these problems adequately define and help decide the
5656 The case of the Embera of the Alto Sinú can illustrate this argument. Due to the flooding of an important part of their ancestral lands for the construction of a dam, this Indian group had to change their productive system from one based on fishing and the rotation of crops to one based on sedentary agriculture. The problem was that the lands that remained after the flooding overlapped with a national park. In national parks there are very severe restrictions on agricultural activities. See infra, pp. 185-94.
5757 The level of pressure imposed on Aboriginal groups varies depending on how strict the environmental laws applicable to the specific type of natural reserve are (e.g., Flora Sanctuary, Fauna Sanctuary, National Parks or various types of Forestal Reserve). In some cases, National Parks for example, the applicable rules are very stringent; in other cases, Productive Forestal Areas for example, the governing rules are very flexible. See Arango & Sánchez, Los Pueblos Indígenas de Colombia 1997 [Indigenous Peoples of Colombia 1997], supra note 17, at 235; Reservas naturales del orden nacional [National Natural Reserves] (Raimundo Tamayo comp., Ministerio de Medio Ambiente), in Ecosistemas Forestales (last modified 18 Oct., 2004)
5858 See Criminal Code (Law No. 590 of July 24th, 2000, in D. O. No. 44.097, July 24th, 2000), Title XI, Only Chapter, About the crimes against natural resources ant the environment, arts. 328, 329, and 331). issue at stake. The Court considered that the wood company’s actions in Embera lands and the failure of the state to control them endangered the existence of the Embera community. The Court stated that since the survival of this Aboriginal group depends entirely on the rain forest, its destruction would certainly mean the disappearance of the Indigenous community. The Court’s reasoning makes explicit that the cultural and physical survival of Aboriginal groups is impossible without land. From a cultural point of view, they would not be able to put in practice many of their religious, social and political traditions. From a physical perspective, they would not be able to survive since their economic systems make them totally dependent on what their lands produce. Since Indian groups’ cultures and economy are so deeply intertwined with their territory, the destruction of the latter would mean the disappearance of the former. A “river people”, for example, would not be what it is culturally if the stream that is its life’s center is deviated for the construction of a dam or if it has to move from its ancestral lands because of the government’s forced relocation programs. Moreover, the health and life of its members would probably be harmed if this occurs. Their basic source of nourishment, fish, would disappear and the community would not have the know-how to put in practice an alternative economic activity that could produce another food source. The Court’s argumentation is valuable not only because it makes explicit the link between land and Aboriginal groups' cultural and physical survival. It is also valuable, because, in contrast with Cristianía, the Court examines the collective dimensions of the conflict. What is at stake is not only the rights to life and property of the Aboriginal groups' members but also the right of Indigenous communities, as collectivities, to survive as distinct cultures. The constitutional recognition of all ethnic and cultural groups that inhabit the country mean that neither the government nor private individuals can take any action that can have as a direct or indirect consequence the destruction of cultural minorities’ worldviews. Thus, any governmental program that can directly or indirectly force the assimilation or generate the destruction of these groups’ way of life would be unconstitutional. Private individuals are equally forbidden from putting into practice any action that can endanger Indians’ ways of life. The Court, however, went much further and stated that the Constitution, in articles 11 and 12, granted Aboriginal groups the rights to life and not to be forcefully disappeared. 59 This argument is implausible. It is not clear why the Court needs to create two new rights for defending Aboriginal groups’ right to live according to their traditions. As the Court itself stated in its opinion, the constitutional recognition of cultural diversity entails Aboriginal groups’ (and other cultural minorities) right to protect and reproduce their cultural traditions. There is no need to create two new rights recognizing interests that are already protected. More importantly, the Court does not explain how the Aboriginal groups’ collective rights to life and not to be forcefully disappeared derive from the individual rights to life and not to be forcefully disappeared.60 Articles 11 and 12 of the Constitution refer to human beings and not to groups. Article 11 states that “[t]he right to life is inviolable. There will be no death penalty.” Article 12 declares that “[n]obody will be subject of forced disappearance, torture or any cruel, inhumane or degrading treatment or punishment.” The language of these provisions, although abstract and general, refers to individuals only. Collective entities (like cultural communities)
5959 The Court does not address the relationship between these two rights and individual rights. What would happen for example if the individual rights of the members of an Aboriginal group’s internal minority are violated as a means to protect the “life” of the cultural community? For a discussion on this issue see supra Will Kymlicka’s Multicultural Liberalism, Chapter One, Section 2, pp. 36-47; Chapter 3. See also Case SU-510/98, Corte Constitucional, exp. No. T-141047, 18. 09. 1998. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System], supra note 1. cannot be put to death, tortured or cruelly or inhumanely treated or punished. Similarly, in the Constitutional Assembly Acts there is no reference to discussions that might suggest that these articles of the Constitution were intended to be applied to collectivities. On the contrary, all discussions about the right to life and the right not to be forcefully disappeared were held within the debates about individual rights.61 However weak or strong the arguments used by the Court to justify its decision might be, the decision in itself is notably positive for Aboriginal groups’ rights. The Court ordered the state to implement an environmental plan for the complete recovery of the ecosystem of the Embera territory. The Court also instructed the state to quantify the damages caused by the wood company in Embera lands and to sue the company so that it would compensate the Aboriginal group. With this decision, the Court is saying to the state and the dominant culture, as it did in Cristianía, that those who violate Indigenous groups’ territorial autonomy will be held accountable.
The third case in which the Court strengthened Aboriginal groups’ territorial autonomy was the U’wa case (SU-039/97).62 The facts of this case are the following. Occidental of Colombia, a multinational oil company, requested a license from the Department of Environmental Issues for carrying out seismic tests within the territory of the U’wa tribe. These tests were part of the process of exploration of oil-rich areas within U’wa land. Performing these tests required the construction of access trails, some excavation works, and the use of dynamite. In order to satisfy the constitutional and legal obligation to consult Aboriginal groups when the exploitation of natural resources within their territories is being planned, the government
6060 The Court does not seem to recognize the legal and philosophical problem into which it strayed by giving rights to groups. The Court says nothing about the long and difficult debate about whom can be subject of a right and more particularly if cultural communities can and/or should be holders of rights. Are human beings, individually considered, the only entities that can truly be subjects of rights? About this debate see for example Michael Hartney, Some Confusions Concerning Collective Rights, in The Rights of Minority Cultures (Will Kymlicka ed., Oxford University Press 1996); D.M. Johnston, Native Rights as Collective Rights: A Question of Self-Preservation 2 Canadian Journal of Law and Jurisprudence No. 1, at 19 (1989); M. McDonald, Should Communities Have Rights? Reflections on Liberal Individualism, 4 Canadian Journal of Law and Jurisprudence No. 2 (1991).Case SU-039/97, Corte Constitucional, supra note 5.
6161 See, e.g., Aída Abella E., María Mercedes Carranza, Raimundo Emiliani R., Germán Toro Zuluaga, Diego Uribe V., Informe-Ponencia. Proyecto de nueva carta de derechos, deberes, garantías y libertades [Report. Project for a New Rights’, Duties’, Guaranties’ and Liberties’ Charter], Gaceta Constitucional No. 51; Francisco Maturana, Proyecto Acto Reformatorio No. 5. Propuestas de reforma constitucional relacionadas con los derechos, garantías y deberes de los ciudadanos colombianos [Project of Reform Act No. 5. Proposals for Constitutional Reform Related to the Rights, Guaranties and Duties of Colombian Citizens], Gaceta Constitucional No. 6; José Matías Ortiz Sarmiento, Proyecto Acto Reformatorio No. 122. Sobre la Carta de derechos, estado de sitio y fuerza pública [Project of Reform Act No. 122. On the Rights’ Charter, State of Emergency, and Armed Forces], Gaceta Constitucional No. 29; Guillermo Perry, Horacio Serpa Uribe, Eduardo Verano, Proyecto Acto Reformatorio No. 84. Derechos, libertades y deberes [Project of Reform Act No. 84. Rights, Liberties and Duties], Gaceta Constitucional No. 24; Diego Uribe Vargas, Informe-Ponencia para primer debate en plenaria. Carta de derechos, deberes, garantías y libertades [Report. for First Debate on Floor. Charter of Rights, Duties, Guaranties and Liberties], Gaceta Constitucional No. 82; Alfredo Vásquez Carrizosa, Proyecto Acto Reformatorio No. 12. Reforma constitucional sobre los derechos,humanos [Project of Reform Act No. 12. Constitutional Reform on Human Rights], Gaceta Constitucional No. 10; Antonio Navarro Wolff y otros, Proyecto Acto Reformatorio No. 50. Derechos, garantías y deberes fundamentales, Título III [Project of Reform Act No. 50. Fundamental Rights, Guaranties and Duties, Title III], Gaceta Constitucional No. 22; Alberto Zalamea Costa, Proyecto Acto Reformatorio No. 34. Derechos y deberes humanos [Project of Reform Act No. 34. Human Rights and Duties], Gaceta Constitucional No. 21.
6262 Case SU-039/97, Corte Constitucional, supra note 5. organized a meeting where representatives of the company, the state, and the U’wa participated. In this meeting, the Aboriginal community expressed its opposition to the tests claiming that carrying them out would threaten its cultural integrity. It argued that all objects in the physical world were created and belong to their supreme god Sira. Natural resources, the Indian group added, cannot be owned by individuals and should be administered following Sira’s laws by the U’wa community. As a consequence of the Indian group’s opposition, the government and the oil company agreed with the community’s authorities to modify the way the seismic tests were to be performed. The parties agreed to the creation of an intercultural committee that would evaluate and transform the project using two criteria: the protection of the cultural integrity of the Aboriginal group and the technical and scientific requirements necessary for executing the tests appropriately. The parties also agreed that the Aboriginal group was to be shown the exact sites where the seismic tests were to be performed and that a meeting to discuss the conclusions reached by the intercultural committee would be organized. The government agency, however, granted Occidental the environmental license before the agreement was implemented. The Aboriginal community claimed that the license was illegally approved inasmuch as the government did not complete the process of consultation required by the Constitution when natural resources are to be exploited within Indian territory. The government argued that this obligation was fulfilled with the meeting coordinated by its representatives and in which all parties involved in the project participated. Occidental agreed with the government and added that 33 other meetings with representatives of U’wa, other Aboriginal tribes, and government agencies were organized to find the best way to balance the interests in play. Occidental also said that the fact that some members of the U’wa were part of the company’s staff performing the seismic tests showed that these works did not endanger the cultural integrity of the community. The Court’s opinion focused on the tension between the cultural, economic and social risks entailed in the exploitation of natural resources within Indian lands and the state’s obligation to protect the cultural integrity of cultural minorities.63 The Court stated that the meeting organized by the government could not be considered to satisfy the state’s duty to consult the U’wa about the plans to exploit natural resources in their territory. This meeting could be considered only the starting point of the process of consultation with the Indigenous community.64 Therefore, it ordered the state to take all the steps to complete this process. The Court justified its decision with the following arguments. First, it said that the U’wa community is a subject of rights, including the right to life. Second, the consultation process should be
63 63 The first [problem] is to determine how to resolve within the constitution the conflict generated by the exploitation of natural resources in Indian lands and the special protection that the state should give to Indigenous communities so that they can maintain their ethnic, cultural, social and economic integrity …. The exploitation of natural resources in Indian lands makes the harmonization of two colliding interests necessary: [On the one hand,] the necessity to plan the management and use of natural resources in Indian territories to guarantee their sustainable development, conservation, restoration, or substitution (CP art. 80) …. [On the other hand,] the necessity to guarantee the ethnic, cultural, social and economic protection of Indigenous communities …. that is, [to assure the protection] of the basic elements that give Indigenous communities cohesion as a social group ….
Id. considered a fundamental right because it is the tool through which Aboriginal groups can protect their cultures from the negative effects that the exploitation of natural resources within their territory usually have. “…. [P]articipation through the mechanism of the consultation, acquires the connotation of a fundamental right because it is a basic instrument for preserving the ethnic, social, economic, and cultural integrity of Indigenous communities and thus, for guaranteeing its subsistence as a social group.” 65 Third, because the consultation process is a form of democratic participation, it should be done in good faith and the parties should mutually respect each other. The Court also said that the process should provide Aboriginal groups with complete information about the project and its possible consequences. Indigenous groups should have the opportunity to evaluate freely the advantages and disadvantages of the project, express doubts and comments regarding the plan, and indicate views about its viability. When an agreement between the parties cannot be reached, the Court added, the decision taken by the government should not be arbitrary. The government’s decision should be objective, reasonable and proportionate to the state’s duty to protect cultural minorities. The state should take all measures for mitigating or repairing the negative consequences that its decision might have for the community.
When agreement or compromise cannot be reached, the authorities’ decision should not be arbitrary or authoritarian; consequently, the decision should be objective, reasonable and proportionate to the constitutional aim that demands from the state the protection of the Aboriginal group’s social, cultural, and economic identity. In any case, all mechanisms should be taken for mitigating, correcting, and neutralizing the effects that in detriment of the community or its members are generated or could be generated by the measures implemented by the authorities.66
In U’wa, the Court protects Aboriginal communities’ self-government rights through a combination of old and new arguments. The Court reiterates the declaration, originally presented in Embera, that Aboriginal communities are subjects of rights. Aboriginal groups have the right to life and not to be forcefully disappeared. These rights are endangered when the state assumes that the process of consultation ordered by the Constitution becomes a mere formality. To neutralize the government’s position towards the consultation process, the Court states that this procedure is a fundamental right. In this way, the Court creates a new fundamental right: a
6464 The Court also said that the 33 meetings organized by Occidental with the government and Indigenous groups could not be considered as part of the consultation process. The Constitution and the law clearly state that the consultation process should be coordinated and put into practice by the government. The Court explicitly said on this respect,
…. the numerous meetings that according to the representative of Occidental of Colombia Inc. have been held with various members of the U’wa community cannot be considered or understood as [satisfying] the consultation process required in these cases …. [.] [This process of consultation,] undoubtedly, is exclusive competence of the state’s authorities …. given the superior interests it involves ….
Id.
6565 Id. The Court restated the idea that Aboriginal communities have the right to life and once more it did not justify how the collective right to life of Indian groups is derived from the individual right to life guaranteed in article 11 of the Constitution.
6666 Id. right of higher constitutional importance that can be protected through the tutela action. The Court also states that the process of consultation should give Aboriginal groups complete, clear, and truthful information. For the Court then, these three arguments are all intertwined. Aboriginal communities’ right to life and not to be forcefully disappeared can be easily endangered by projects aimed to exploit non-renewable resources within their lands. To protect these rights, the Court argues, the consultation process is a fundamental tool. In order to be effective, this process cannot be an empty ritual. Rather, it is as a fundamental right aimed at giving Aboriginal communities all the information necessary to make adequate decisions. Nevertheless, the Court reiterated some of the arguments presented in Embera. Once more the Court indicated that the tension to be examined in the case is that between the state’s duty to protect Aboriginal groups’ cultural integrity and the harm that the exploitation of natural resources in Indian lands can cause to Indigenous communities’ cultural traditions. Yet again, the Court presented Indigenous communities as passive agents to be protected by the state. The Court’s definition of the problem in U’wa overemphasizes the role that the state played in the conflict at the base of the case and the role the state should play in its solution. It obscures the real tension of rights generating the conflict among the Indigenous group, the government and the oil company. U’wa is not about how the government should defend Aboriginal groups. It is about defining the state’s rights and obligations when exploring and exploiting non-renewable resources in Indian lands, on the one hand, and the extension and limits of Aboriginal groups’ territorial self-determination, on the other.67 The great contribution of the Court in U’wa is its declaration that consultation is a fundamental right and a process through which participatory democracy is put in practice. In this statement, the Court recognizes Indigenous communities’ right to participate in the making of decisions that would notably affect their public and private life. The Court’s characterization of consultation as a fundamental right is important for two reasons. First, the Court acknowledges the impact that the exploitation of natural resources in Indian lands can have for Aboriginal communities. Second, the declaration that consultation is a fundamental right allows Aboriginal groups to use the tutela when the state (and in some cases private individuals) violates or threatens to violate this right. This legal action has become the only expeditious way to protect the fundamental constitutional rights of Colombians. 68 U’wa is also a significant opinion not only because it clearly indicates that the process of consultation is not a formality but also because it provides a set of criteria to guarantee the purpose for which this process was created, i.e., Indian groups can control what happens in their territories. The Court stated that those interested in exploiting natural resources within Aboriginal communities’ territories should thoroughly inform Indian groups about the characteristics and possible consequences of the projects they intend to implement. Equally, Indian communities should have the opportunity to express their views about the projects and to propose alternatives to them. Finally, the Court indicated that all parties involved in the process should act in good faith.69
6767 The Court restated the idea that Aboriginal communities have the right to life and once more it did not justify how the collective right to life of Indian groups is derived from the individual right to life guaranteed in article 11 of the Constitution.
6868 See supra Chapter 2, note 27.
6969 The criteria offered by the Court were not its creation. These criteria were taken from International Labor Organization’s Covenant 169. This Covenant was made part of the Colombian legal system by law 21 of 1991. The issue becomes difficult, however, if Aboriginal groups disagree with the implementation of a mining or oil exploitation project. The Court said that in these cases the state could impose its view on Indigenous communities. Yet, the Court also indicated that the government’s decision about how to proceed in these situations should not be arbitrary but reasonable, objective, and should take into account the state’s duty to protect Aboriginal groups’ cultural identity. The Court also said that the government should minimize the negative consequences that the decision would generate for Indigenous groups and compensate the damages that the determination made might have for Aboriginal communities’ life. The problem with these criteria is that they give too much power to the government. The government can impose its views over Aboriginal groups in all cases. What would happen if there is evidence that the implementation of a particular mining project will radically harm an Aboriginal group’s culture even if executed in the less damaging way possible? How could this type of harm be compensated? It is true that the Constitution indicates that the state is the owner of all non-renewable resources in the country. It is also true that the Constitution only says that the government should favor the Aboriginal groups’ participation in the decision-making process related to any project aimed to the exploitation of natural resources in their territories. Yet, we should ask ourselves if we want the state to exploit its natural resources at all cost. The exploitation of non-renewable resources, no doubt, brings important economic benefits for the country. But, should the state attain economic stability and growth at the cost of causing irreparable harm to some of its citizens?
The fourth and last case in which the Constitutional Court strengthened Aboriginal groups’ territorial self-determination is the Urrá case (T-652/98).70 The facts of this case are the following. The national government declared the public interest character of an area necessary for the construction of the Urrá I dam. The construction of this dam required the modification of the course of a river that was essential for the Embera-Katío’s way of life as well as the flooding of an important part of the collective territories of this Aboriginal community. The collective territories of the Embera-Katío overlap with a national park. The government granted the environmental license to the company constructing the dam and authorized the start of the first part of the project (deviation of the river and excavation works) without having previously discussed the venture with the Aboriginal community. Consequently, the construction company – without even contacting the Indian group– executed the first part of the project. Yet, before the start of the second part of the venture (filling and getting the dam started) the company agreed with the Embera-Katío that they would prepare and execute an ethno-development plan. The aim of this plan was to study the consequences that the dam had had and would have for the Indigenous group and to propose solutions for the problems that it had generated or could generate. Two years later, the government, the community, and the company agreed that the latter would be responsible for funding and executing the commitments established in the already elaborated ethno-development plan. The parties also agreed that the company should improve and reform the programs aimed to solve the problems that the dam’s construction generated for the area’s ichthyologic resources (fundamental in the diet and culture of the Embera-Katío). The Indigenous community demanded that before the dam would be filled and put to work, the community should be compensated for the actions needed to protect the forests and waters of the
7070 Case T-652/98, Corte Constitucional, supra note 6. area. The Embera-Katío also said that they should be paid a percentage of the profits generated from the dam. The company agreed to pay some money for the former but denied any payment for the latter. The community also claimed that the company should not negotiate the buying of lands individually with families that live outside the Resguardo. The community said that the authorities of the Resguardos were the only ones who could legitimately negotiate with the company. Approximately a year after the agreement between the company, the government, and the community was subscribed, the company requested from the Ministry of Environmental Issues (which replaced the Agency of Environmental Protection) the environmental license necessary to start the second part of the project. The Ministry, arguing that the community was not properly consulted about the project, denied the license. The Embera-Katío have traditionally been a community in which the political power is segmented and diffused. The various communities that compose the two Resguardos, between which the ancestral land of this Indian group is divided, have their own forms of government. 71 However, to confront the challenges posed by the construction of Urrá, the community centralized its government and created a Supreme Council. Soon after the Council was formed, a power struggle between the various communities that compose the Embera-Katío exploded. Some of the communities of the group felt that they were not appropriately represented in the Supreme Council. These communities decided to create two other Councils to represent them before the company and the government. The company stopped all programs related to the ethno-development plan because of this power struggle. The corporation argued that it did not know who were the authoritative representatives of the community and thus, did not know who was the valid interlocutor with whom to discuss the implementation of the ethno-development plan’s programs. It also said that the conflict should be resolved and the legitimate representatives of the community determined in order for the company to continue with the programs. The Court established through a judicial inspection that the works done by the company affected the life of the area’s fishes negatively and that the programs to improve the reproduction and movement of the fishes in the region had stopped or did not work. Since fish are a fundamental element in the community’s diet and culture, their endangerment put in peril the physical life of the members of the community and the traditional way of life of the group. The Court also discovered that the municipal and provincial governments did not comply with their legal obligations during the process of negotiation and implementation of the agreements reached by the company, the Embera-Katío and the government itself. The municipal government stopped providing health and education services to the members of the group, did not answer various petitions presented by Indian authorities, and retained funds belonging to the community because of the power struggle among the various communities composing the Embera-Katío. For this last reason, the provincial government retained budgeted resources that were assigned to pay for the Indigenous group’s health services. The opinion of the Court was structured around six problems. The first problem was that although there was only one Indigenous group, the Embera-Katío, the government had created two Resguardos within its ancestral lands. At the base of the power struggle among the various communities that compose the Embera-Katío was the fact that the group was artificially divided
7171 The Institute for the Agrarian Reform divided the ancestral lands of this Indigenous group into two Resguardos based on purely procedural matters. The government agency did not take into account that the Aboriginal community believes that its traditional territory is an indivisible whole. Id. by the government’s decision to create two Resguardos. The Court thereby ordered the government to unify the lands belonging to the community stating that the government recognition of the collective property of Aboriginal groups’ ancestral lands is a fundamental right. Without this right, Aboriginal groups would not be able to survive. The Court indicated that in other cases it
.… has reiterated the fundamental character of ethnic groups’ collective property rights over their territories …. [.] [N]ot only because of what property over the lands they inhabit means for the survival of Indigenous and Raizales groups, but also because land is part of Aboriginal groups’ cosmogonies and the material substrate necessary for the development of their characteristic cultural forms.72
The second problem was that the government and the company did not discuss the construction of the project with the Embera-Katío as ordered by article 330 of the Constitution. The company argued that during the long process of planning and construction of the dam two different corporations owned the project. When the environmental license was requested and granted, the defendant corporation did not even exist. When it was created, its representatives believed in good faith that the previous company had consulted the Embera-Katío about the viability of the project. The government argued that when the environmental license was granted Congress had not developed article 330 of the Constitution (and thus, this article was not enforceable) and that the government’s unit for working on this issue had not been created. The Court dismissed both arguments and ordered the company to pay for the damages caused to the Indigenous community by the implementation of the first part of the project. Damages paid by the company should be enough to guarantee the physical survival of group’s members while they adapt to the cultural, economic and social changes generated by the construction of the dam. The Court asserted that if the company and the Embera-Katío did not reach an agreement on the amount of the damages, the Indigenous community should request a lower tribunal to determine the amount necessary to pay the Indigenous community a transportation and food subsidy for the next fifteen years. 73 The third problem is related to the fundamental right that all Indigenous groups have to be consulted about any plan to exploit natural resources in their territories and the development of the second part of the project (filling of the dam). The Court ordered the company and government to discuss with the Aboriginal community the way the second part of the project
7272 Case T-652/98, Corte Constitucional, supra note 6. In cases T-567/92 and T-188/93 the Court also acknowledged the importance that the state’s recognition of Aboriginal groups collective property over ancestral lands has for the physical and cultural survival of Indigenous communities. In these cases, the Court questioned as well the government’s indifference towards Indians’ petitions for the state’s legal recognition of their lands and for resolving conflicts related to them. In the first case, two Aboriginal communities requested the Agency for the Agrarian Reform to recognize the lands they inhabit as a Resguardo. The government agency did not answer the several requests that for more than 7 years the communities presented. In the second case, two Aboriginal groups shared, as collective owners, a piece of land. Political problems for the control of the Resguardo arose between the two groups and some members of one of the communities verbally and physically abused in several occasions some of the members of the other. The community victim of the attacks requested the Agency for the Agrarian Reform to study the possibility of dividing the land in two. The state agency did not answer the requests of the community. See Case T-567/92, Corte Constitucional, exp. No. T-3746, 23. 10. 1992; Case T-188/93, supra note 7.
7373 Once the company pays the amount determined by the tribunal, the Court added, a trust fund should be created for the administration of these resources. would affect the community. It also ordered the government and the company to discuss with the Embera-Katío the way the problems generated by this phase of the project might be neutralized, the way other problems might be prevented, and the way the company should compensate the Indigenous group for the negative consequences that the project will inevitably generate. 74 Fourth, the construction of the dam obliged the Embera-Katío to pass from a “subsistence economy with low environmental impact to an agrarian economy with less productivity and high environmental impact.”75 Due to the changes caused by the building of the dam, the Embera- Katío are no longer able to pursue their traditional economic practices: hunting, fishing, gathering, and rotation of crops. In order to survive, the Indigenous community would now be dedicated exclusively to the growing of crops to be sold in the dominant culture’s market. However, because the Indigenous community’s territory overlaps with a national park, it may not plant crops in the way required to survive in an agrarian market economy. The Court said that the protection of the natural reserve could not be done at the expense of the physical and cultural survival of the Indigenous community. Aboriginal groups, the Court said, have the right not to be forcefully disappeared. Yet, it also said that this right should be balanced with the state obligation to protect environmentally fragile areas (article 79 of the Constitution). The Court thereby, ordered the government to create, as ordered by Decree 622 of 199776, a special legal regime to balance economic survival of the community and the protection of the national park. The Court also ordered the company to determine, with the government and the community’s input, the amount it should pay to make the Embera-Katío’s transition to an agrarian market economy possible. The fifth problem is related to the recognition of the authoritative representation of the Embera-Katío. The Court declared that government and company violated the Aboriginal groups’ right to determine their political life autonomously when they did not recognize all the representatives appointed by the various communities that compose the Embera-Katío, and when they stopped programs in favor of the Embera-Katío because of the power struggle within the community.
[The] company and the authorities that have intervened in the various attempts to solve the Indigenous group’s internal conflict, have violated the Aboriginal community’s right to autonomously solve its issues[.] Imposing a specific form of political organization, assuming the right to perform electoral censuses, organizing elections, and choosing which of the Embera’s authorities should be registered and which should not, are not activities within the government or the company’s competence.77
7474 The Court stated that the company should pay attention to the serious damage that had been and will be caused by the dam to the aquatic life from which the Embera-Katío depend for their nutrition. The Court asserted as well that the company should pay special attention to the consequences that the flooding of the richest lands of the community would have for its capacity to grow crops. The Court also ordered the government to provide health services to the Embera-Katío to neutralize the problems that the community’s members are experiencing due to the environmental changes generated by the construction of the dam. Finally, the Court ordered the government to register the community in the Social Security system and to give its members the medicines prescribed by doctors for free. Case T-652/98, Corte Constitucional, supra note 6.
7575 Id.
7676 Decree 622, August 11th 1997. The government and the company, the Court added, must recognize the institutions and leaders that the Indigenous group wants them to recognize. They cannot put pressure on the Aboriginal community to solve its political struggles in certain ways or to transform their political structures. For the justices deciding this case,
…. neither the Constitutional Court panel, nor the Interior Ministry, the Government of the Province of Córdoba, the municipality of Tierra Alta’s Town Hall, the Multipurpose Company, the organizations that wrote amicus curiae briefs, nor any organization or person different from the Embera- Katío communities listed above can decide which are this Indian group’s authorities. The Town Hall and the Interior Ministry have been empowered by law only to register the decisions adopted by Indigenous communities and to certify what Indian groups want these entities’ archives to include. 78
The sixth and last problem is related to the Indigenous authorities’ claim that the company cannot negotiate directly with the families that belong to the group but live outside the Resguardo. The Court said that Indian authorities do not have any power over people that live outside Indian territory. Families that live outside the community’s collective property decided to break their links with the Embera-Katío traditions. Neither the government nor the Aboriginal community can force them to reconsider this decision. These persons are free to negotiate with the company about the selling of their lands.
To this respect, it should be said that the Territorial Council of the Iwadó Resguardo is an Embera authority with functions within the Resguardo, but without any authority outside it. The Embera that lived outside the Resguardo should be specially protected …. inasmuch as they belong to a minority group and preserve an important part of the traditions that characterize the Embera people; but neither this Court, nor the Council, nor any other authority can oblige them to return to the communal life in the Resguardo …. [.] [Nobody can] impede these persons either to sell what is theirs because the Territorial Council did not participate in the negotiation …. 79
Urrá is a complex, rich case where the Court presented some new arguments useful for the understanding and strengthening of Indian communities’ territorial autonomy and reiterated some others that accomplish these same aims. First, the Court held again that the process of consultation, which the government should implement when non-Indians intend to exploit natural resources in Aboriginal groups’ lands, is a fundamental right. As it did in U’wa, the Court made explicit the relationship between the consultation, participatory democracy, and the protection of Aboriginal groups’ cultural integrity. Second, the Court held in Urrá that Indigenous groups have a fundamental right to government recognition of their ancestral lands as collective property.80 This holding has great importance for Aboriginal groups. Historically, the state has ignored, delayed, or created
7777 Case T-652/98, Corte Constitucional, supra note 6.
7878 Id.
7979 Id. obstacles for satisfying Indian communities’ requests regarding the recognition of their ancestral lands as collective property.81 The state’s negligence has been very costly for Aboriginal groups. Non-Indians have occupied their ancestral lands, communities have disintegrated, and old traditions have been lost. As the Court said in Embera, Aboriginal groups’ cultures are intertwined with their ancestral territories. Their subsistence economic system depends on the particular characteristics of the lands they inhabit and their cultural traditions refer and/or are practiced in specific sites within their territories. Without their lands, Aboriginal groups have a very slim chance of surviving as distinct cultures. The Court’s declaration that Aboriginal groups’ have a fundamental right to the recognition of their ancestral territories as collective property is positive on two accounts. On the one hand, it tells the state that it should make every effort to protect this right. On the other hand, it allows Indigenous communities to use the tutela to protect this right. This legal action is the most efficient resource that citizens have for the protection of their fundamental rights: it is cheap, fast, and procedurally simple. Third, the Court solves the tension at the heart of this case between environmental laws protecting natural parks and Aboriginal groups’ self-determination rights in favor of the latter. Due to the flooding of an important part of their ancestral lands and the deviation of the river that was the center of their life, the Embera-Katío’s traditional economic system was not viable anymore. However, since their territory overlaps with a national park, alternative agricultural activities were radically restricted. If the Aboriginal group had complied with the environmental laws regulating national parks, the community would not have been economically viable. The Court’s decision to order the government not to enforce the Natural Resources Code but to put in practice Decree 622 of 199782 is of great importance. This decree, unapplied until Urrá, orders the creation of a special legal regime for natural parks that are inhabited by Aboriginal groups. This decision tells the government that environmental laws should not be enforced at the cost of destroying Aboriginal communities. This, no doubt, should be the leading criterion for guiding the government in the creation of a long-term solution of the tension between environmental law and Aboriginal groups’ rights. Without a legal regime on the subject this tension will not disappear. Fourth, the Court requires registration and certification of Indian authorities by the state. The Ministry of Interior is the entity in charge of registering and certifying the legitimate authorities of all Aboriginal communities in the country. This process of registration and certification has important consequences for Aboriginal groups’ political and territorial autonomy. Only registered authorities are recognized by the state. The actions of these “registered” authorities are the only ones considered legally binding within and outside Aboriginal communities. If the government decides not to recognize a particular Indian authority, the ability of the group to govern itself disappears. The leaders of the community, for example, would not be able to receive money from the national budget, won’t be able to discuss
8080 The Court first presented this argument in case T-188/93. See supra notes 7 & 71.
8181 In Cases T-188/93 and T-001/94, the Court makes explicit the negligence with which the state generally responds Aboriginal groups’ requests for the recognition of their ancestral lands as collective property. The facts of the first case are summarized in supra note 71. For the facts of the second case see Case T-001/94, Corte Constitucional, exp. No. T-21908, 13. 01. 1994. Corte Constitucional. Sistema de búsqueda [Constitutional Court. Search System], supra note 1.
8282 Supra note 75. any project with provinces’ governments, and their decisions would not be legally binding. If Aboriginal authorities were not properly recognized by the state then, they would not be valid interlocutors with the outside world and would not have any legal power internally. The Court’s decision that the only role that the state can play in this process is to register and certify the authorities chosen by Aboriginal groups is an important triumph for Indigenous groups’ self-determination. It ends the state practice of intervening in Indian communities’ internal affairs by deciding to register or not to register the political leaders chosen by the groups. Indian groups are now free to pick their leaders and solve their political disputes in whatever way they consider adequate. The government is only empowered to keep a file that systematizes and centralizes the political decisions made by Aboriginal communities. The declaration that Indian authorities do not have any power over members of the community living outside the borders of Resguardos is the fifth and last argument presented by the Court in Urrá that is significant for understanding Aboriginal groups’ territorial autonomy, particularly its limits. Members of Aboriginal groups should be able to leave and break the links with the communities to which they once belonged. Individuals should not be obliged to comply with traditions that they do not believe in or obey the decisions of authorities that they do not consider legitimate.83 The Court’s determination that the energy company must pay for the damages caused to the Embera-Katío by the construction of the dam is also noteworthy. As in Cristianía and Embera, the Court held responsible the corporations that violated Aboriginal groups’ right of self-determination. Yet, what is notable in Urrá is that the Court ordered the company to pay the costs of planning and implementing the measures needed to provide the present and future generations of Embera-Katío the conceptual and practical tools to survive in the new world in which they were compelled to live. Since the situation in which the community is now immersed is irreversible, the Court made sure that the Embera-Katío would have a chance to adapt to the new circumstances and at the same time to maintain its distinct culture. In sum, in Vaupés, Embera, U’wa, and Urrá, the Court made genuine efforts to consolidate Aboriginal groups’ territorial autonomy. First, it declared that Aboriginal groups have the right to survive as distinct cultures. The government and private individuals should abstain from any action that endangers the cultural integrity of Indian communities. Second, Indigenous communities have the fundamental rights to have their ancestral lands recognized as collective property by the state and to be consulted whenever there is a project to exploit natural resources in their territories. Third, Indian authorities have the right to decide who transits and settles in their lands. Concerning Indigenous communities’ political self-determination the Court also made a notable decision. Indian groups have the right to choose their authorities and solve their political disputes in accordance with their traditions. Just as significant, was the Court’s determination to hold accountable the violators of Aboriginal groups’ territorial autonomy. Equally important were the Court’s decisions that defined limits on Aboriginal groups’ right of self-determination. Indian authorities do not have any power over former members of the community that live outside Resguardos. Nor do they have authority to exploit their lands irresponsibly. They have an obligation to use their lands in ways that do not affect the environment negatively. In cases where there is a tension between environmental laws protecting natural reserves and Aboriginal groups’ self-determination, the Court determined that the state should create a special legal regime to balance the values at stake. Environmental law,
8383 See supra Chapter 2, for a longer discussion of this issue. the Court added, should not be enforced in ways that could endanger the survival of Aboriginal groups’ cultures.84 The turn made by the Court’s jurisprudence in these four cases can be explained by the following three interrelated reasons. First, the Court’s honest attempt to protect Aboriginal groups’ self-government rights. In Vaupés, Embera, U’wa, and Urrá it is easy to see that the Court takes Aboriginal communities’ rights seriously. For the Court, it is clear that Indian tribes cannot survive as distinct cultures if they do not have control over their territories. In these cases, we see the Court attacking on several fronts and creating various strategies in order to protect Indian cultures from disappearing e.g., creating new fundamental rights, strongly reprimanding the government for not complying with its constitutional duties, and creating clear limits to Aboriginal authorities’ powers. Second, the Court was able to protect Aboriginal communities’ self-government rights using a legal and political language that it knows well and that presents no theoretical or practical challenges: the language of property rights. The main argument that the Court uses in Vaupés, Embera, U’wa, and Urrá to protect Aboriginal rights to self-govern is that Indian communities are proprietors of their lands, and, that as such, they have the right to determine who can transit along and settle in them. As proprietors, Indian groups also have the right to determine how and when to exploit the resources within their territories. Therefore, what the Court does is not fundamentally different from the job that any judge would do to protect the rights of a Colombian land owner. Third, the Court could not avoid being influenced by the traditional paternalistic view that the Colombian state has held over Aboriginal groups. Indians are passive and weak agents that should be guarded by the government from the dangers of contemporary life.
Concluding Remarks
In Cristianía, Military Base, Vaupés, Embera, U’wa, and Urrá, the Court goes from Blind Individualism, to Militant Centralism, to Radical Collective Autonomy. If the turns and twists that the Court makes in these six cases are connected, the path that the tribunal created in the process of understanding and solving the tension between the principle of political unity and Aboriginal groups’ self government rights can be made explicit. The Court started this process in 1992 by defending Aboriginal interests through the defense of the individual rights of the members of the Cristianía people. The Aboriginal group’s collective self-government rights were never mentioned, although they were at the heart of the case’s legal problem. In Cristianía, the Court was blinded by its individualistic approach to the case. The emphasis that the Court put on the rights to property and life of the members of the Cristianía people, did not allow the Court to see the collective rights dimension of the conflict. The Court’s decision in Military Base was an advance and a regress for Aboriginal self-government rights. It was an advance
8484 Despite all their virtues, Vaupés, Embera, U’wa, and Urrá also had some weaknesses. In two of these opinions, the Court defined paternalistically the problems that were to be solved. Aboriginal groups were presented as passive subjects and the conflicts at stake were viewed only from the state’s point of view, more specifically, from the perspective of the government’s duty to protect Indigenous communities. The criteria provided by the Court to guarantee that the consultation would not become a mere formality were also implausible. These criteria, although appropriate to define how the process of consultation should be executed, put no limits on the state power to impose its view over Aboriginal groups when Indian authorities oppose to the exploitation of non-renewable resources in their lands. Finally, the Court did not justify how the Aboriginal groups’ right to life and not to be forcefully disappeared can be derived from the individual rights to life and not to be forcefully disappeared. because it acknowledged that Indians’ self-government rights were at issue. It was a regress because it ruled in favor of the principle of political unity over Aboriginal groups’ autonomy. The fact that the opinion of this case was written by Justice Herrera, a conservative Justice, and that the case was related to a national security issue, drug trafficking, determined the militant centralism of the Court’s verdict. The Court’s decisions in Vaupés, Embera, U’wa, and Urrá mark a fundamental advance for the protection of Aboriginal groups’ self-government rights. Although sometimes the Court’s lines of reasoning had a paternalistic tone, they gave priority to Indian groups’ political autonomy rights over the political unity principle. This development was possible, fundamentally, because the Court had at hand a well known legal and political category to interpret Aboriginal rights’ territorial autonomy: property. The opinions of Vaupés, Embera, U’wa, and Urrá were written by different Justices and the cases were decided by very different panels.85 However, in all of them, the main argument that justified the Court’s holdings included an appeal to property. For the Justices, the use of a category so rooted in our legal and political tradition made them feel that their interpretations were sound and that they would not be politically questioned by the government, Congress or public opinion. Military Base on the one hand, and Vaupés, Embera, U’wa, and Urrá, on the other, synthesize two very different solutions to the conflict between political unity and Aboriginal groups’ self-government rights at the core of the 1991 Constitution. While Military Base is identified with legal and political centralism, Vaupés, Embera, U’wa, and Urrá are identified with political autonomy. While the former is committed to a country in which all the fundamental legal and political decisions are made in the center, the latter are committed to giving Aboriginal groups enough space to allow them to regulate their private and public life through their uses and customs. In Military Base’s Militant Centralism there is a vertical conception of the distribution of political and legal power. The capacity to create law is concentrated in national legislative and administrative institutions. Provincial, local and special jurisdictions (like Aboriginal groups’) have just residual powers to create legal norms. At best, they can create juridical rules that adapt national legal norms to the particularities of their jurisdictions. Generally, it is understood that they are just in charge of enforcing the decisions made in the center. Militant Centralism is not a new conception of the state in Colombia. This has clear roots in the Spanish colony and in the strong influence that French public law has had in the country for more than a century. We can fully comprehend its continuing normative power (and weaknesses) if it is seen as a theoretical and practical weapon used by liberals in XVIII and XIX century France to fight the ancien régime. This was a powerful instrument to battle aristocratic privileges, the capriciousness of the king’s will, and the jurisdictional disorder inherited from feudal times. For the French, Spanish and Colombian legal and political traditions, centralism is associated with important values like equality, juridical security, government responsibility, and
8585 Vaupés, was unanimously decided by Justices Alejandro Martínez, Fabio Morón and Vladimiro Naranjo. Justice Martínez wrote the opinion of the Court. The opinion of Embera was written by Justice Cifuentes. The panel that decided the case was also formed by Justices Martínez Caballero, and Hernández. U’wa was decided by the Court’s nine Justices since it was a Unification Opinion case. Six Justices agreed with the opinion written by Justice Barrera. Justices Herrera, Naranjo, and Morón disagreed. The opinion of Urrá was written by Justice Gaviria. Justices Hernández and Betancur were also part of the panel that decided this case.Law 89 of 1889 gave Aboriginal communities a very limited political autonomy, e.g., to judge violation of moral rules by their members. However, all laws created by Congress and the executive power were applicable to Indian tribes. Moreover, this residual autonomy was thought to be a temporal entitlement while missions achieved their duty to transform all Aboriginal groups into Christian Spanish speakers. order. Centralization of the power to create law implies that the norms created at the national level will be equally applicable to all citizens. The legal rules enacted by Congress and the President have a general and abstract character that respects the equality of all citizens. No particular rules can be created; no special privileges or obligations for distinct groups of persons can be enacted. Similarly, centralism allows citizens to know easily and clearly what are their rights and obligations. In principle, all legal rules created by Congress and by the executive power will be applicable indefinitely to all citizens. There are no overlapping jurisdictions with a variety of (sometimes contradictory) legal rules determining citizens’ rights and burdens. Equally important for the French, Spanish, and Colombian legal and political traditions, is that centralism clearly specifies that only a few national institutions have the right to create law. This feature of a centralized political system allows an easy identification of state institutions’ obligations and responsibilities. If there is a failure in the system, e.g., corruption or negligence, it is easy to determine those responsible and to apply the measures needed to correct it. Finally, Militant Centralism determines a clear chain of command, guaranteeing order in the political system. Vaupés’, Embera’s, U’wa’s, and Urrá’s Radical Collective Autonomy, in contrast, is a new political and legal perspective in Colombia. Its origin does not go very far back in the history of the country. The earliest traces of Radical Collective Autonomy can be found in the wide political movement that, during the 1980’s, pushed for the decentralization of Colombia’s political system. The main result of this political perspective was the 1986 constitutional reform that allowed the popular election of mayors and governors (before they were all appointed by the president). Yet, it was only in the 1991 Constitutional National Assembly that the possibility of granting wide political autonomy rights to Aboriginal communities was discussed for the first time.86 In the 1991 Constitution, for the first time in the history of the country, its multicultural character was seen as something valuable, rather than as a historical burden to be destroyed.
8686 Law 89 of 1889 gave Aboriginal communities a very limited political autonomy, e.g., to judge violation of moral rules by their members. However, all laws created by Congress and the executive power were applicable to Indian tribes. Moreover, this residual autonomy was thought to be a temporal entitlement while missions achieved their duty to transform all Aboriginal groups into Christian Spanish speakers.