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In recent months, judicial independence has become a key topic in regional discussions. Following the elections of prosecutors, high courts, and judicial reforms in Mexico, concerns have been raised regarding the potential risks these processes may pose to this fundamental right and its protections.
Margaret Satterthwaite, the United Nations Special Rapporteur on the independence of judges and lawyers, emphasized the necessity to “reimagine access to justice and the rule of law” since her initial report. She highlighted the importance of incorporating the diverse perspectives of individuals from groups experiencing significant inequalities and systemic discrimination, particularly indigenous peoples.
This re-evaluation of justice requires examining judicial independence through the normative frameworks of Indigenous peoples. Satterthwaite argues that this perspective is best understood through Articles 4, 5, and 34 of the UN Declaration on the Rights of Indigenous Peoples. These articles affirm their rights to autonomy and self-governance in internal and local matters, as well as to maintain and strengthen their own political institutions and legal systems. The Declaration also recognizes their right to engage in decision-making processes that affect them, following their own procedures and maintaining their representative institutions. Additionally, it supports their right to utilize their own laws, traditions, and justice systems in adjudicating matters related to their lands, resources, and disputes.
The Rapporteur acknowledged the important contributions of indigenous justice mechanisms but noted that recognition of these systems is still limited. In light of this, she has issued a call for inputs for her forthcoming thematic report on indigenous justice, set to be presented to the General Assembly in 2025. While the suggested topics are not exhaustive, she encourages contributions to be framed from an intersectional, gender-sensitive, and decolonial perspective.
A key element related to the rapporteur’s mandate, noted in the published questionnaire, is the recognition, existence, and jurisprudence of indigenous justice mechanisms at the national level, along with the legal regulations governing their autonomy and implementation. Discussing the autonomy of indigenous justice involves framing a fundamental theme within the rapporteur’s mandate: how we should understand and shape the guarantees that uphold the principle of judicial independence within the institutional context of justice mechanisms and the normative systems of indigenous peoples and communities
To grasp the meaning of judicial independence in these contexts, it is essential to recognize that access to justice for indigenous peoples and communities has a dual dimension. This includes an external dimension, which pertains to the right to access ordinary state mechanisms for administering justice, and an internal dimension, which involves the recognition and application of their own justice systems.
The internal aspect can be described as “special jurisdiction,” which denotes the power of indigenous authorities to settle disputes within their communities following their own methods and traditions. It also encompasses the right of community members to be judged according to their cultural standards. As a result, this aspect appears as both a communal and an individual right.
It is crucial to recognize that indigenous normative systems do not emerge from a single procedure; rather, they are rooted in traditions and customary practices that may not be documented or codified in conventional legal forms. This means that a community’s legal concepts can differ significantly from traditional notions of state law, often being oral or distinct from those recognized within state jurisdictions.
This raises the question: To what extent are conventional guarantees of judicial independence applicable to indigenous legal systems? While there may not be a definitive answer, it is important to emphasize that not all aspects of state law will align with these systems, highlighting the need for a process of harmonization.
For instance, states frequently restrict the scope of indigenous jurisdiction to specific issues or behaviors. Generally, Latin American countries that recognize the autonomy of indigenous jurisdictions have mainly confined it to civil matters, permitting only a narrow range for these communities to handle cases. This arrangement positions indigenous jurisdiction as an exception to state justice, applicable only in matters that do not impact state interests or public order. Such extensive state intervention leads to the subordination of indigenous jurisdictions to state institutions, reinforcing a hierarchy in which state law takes precedence over indigenous law. This clearly reflects a form of colonialism and discrimination against indigenous justice systems.
Understanding the self-determination of indigenous peoples within the framework of current international standards suggests that true judicial independence for these communities enables them to decide which disputes to resolve, without the state having the ultimate authority to restrict their jurisdiction. This also entails that exercising their competence should respond to clear legal and socio-anthropological foundations without arbitrary divisions imposed by the state based on classical distinctions like criminal, civil, or administrative law.
On the other hand, judicial authorities must be empowered to resolve disputes without external influences that could jeopardize their impartiality. However, in some cases, the practice of customary law by indigenous authorities is criminalized. This situation underscores the fundamental conflict between criminalization and the independent administration of justice in these communities.
Additionally, it is important to consider what constitutes an independent judicial authority in indigenous communities and the conditions required for its existence. Traditionally, the separation of powers suggests a distinction between political and judicial authority; however, in many indigenous communities, political authorities also play a role in resolving conflicts. For example, in certain communities on Mexico’s Costa Chica, the General Assembly serves as the highest authority for matters related to community life. Considering these circumstances, it becomes clear that there is a need to harmonize or modulate the guarantees associated with judicial independence. This approach is essential for evaluating that independence through the lens of autonomy rights.
Another important point to consider is that indigenous justice models are not uniform. Each community operates differently, resulting in varied interpretations of the independence of those who resolve disputes. Therefore, rather than pursuing a universal model, we should concentrate on the essential minimums required to ensure the right to judicial independence from an intercultural perspective.
The points discussed above highlight the complexity of defining judicial independence from a perspective that diverges from prevailing legal traditions while emphasizing legal pluralism. Consequently, this exercise is invaluable for developing new and flexible standards that align with the realities of indigenous communities. We fully support the Special Rapporteur’s call for contributions to enhance her upcoming report. This process represents a significant opportunity to emphasize and strengthen the autonomy of indigenous justice systems.
Similarly, the call offers a chance to discuss issues such as the harmonization of state and indigenous laws and the necessity of implementing protocols to achieve this; the involvement of community members in choosing representatives for state tribunals that focus on harmonizing both legal systems; the contributions of indigenous lawyers; the equivalence between decisions reached by indigenous courts and those made by state courts; political influence on decision-making bodies within indigenous communities and its impact on judicial independence; public policies aimed at training in intercultural perspectives, among other topics.
We encourage everyone, especially those with experience in indigenous justice, to share their perspectives and participate in this important discussion. Contributions are vital for fostering a deeper and more inclusive analysis. By engaging actively, we can work towards a more fair and culturally informed comprehension of judicial independence.
Cover photo: AP Photo/Moises Castillo
