The Communal Jurisdiction of the First Nations Peoples of Peru

The First Nations Peoples (FNPP) or Indigenous Peoples (IIPP) of Peru, identified in the legislation as Peasant Communities (mostly located in the Andes) or Native Communities (located in the Amazon), historically have their own jurisdiction or capacity to resolve their conflicts. Since they are towns that precede the current republican state, their communal jurisdiction stands out over the jurisdiction of the state organs themselves.

Article 149 of the 1993 Political Constitution of Peru regulated this special jurisdiction of FNPP for the first time. The article was written in the following terms:

“Article 149. - The authorities of the Peasant and Native Communities, with the support of the Peasant Patrols, can exercise jurisdictional functions within their territorial scope in accordance with customary law, provided that they do not violate the fundamental rights of the person. The law establishes the forms of coordination of said special jurisdiction with the Justice of the Peace and with the other instances of the Judicial Power.”

In accordance with this constitutional norm, all the Peasant Communities and Native Communities, with the support of their respective Peasant Patrols (if they have them), have jurisdictional functions. This means that the authorities of these communities or FNPP have the capacity to resolve their conflicts in the same way as the Judges and Prosecutors or constitutional magistrates of the country. For this jurisdictional capacity or function to be applied, which we identify as communal, the regulation establishes certain conditions or limits:

1) The jurisdictional function of the FNPP is exercised within the territorial scope of each peasant or native community.

2) The jurisdictional function of the FNPP is based on the customary law of each community.

3) The jurisdictional function of the FNPP is exercised without violating the fundamental rights of the person in each community.

4) The jurisdictional function of the FNPO is applied in coordination with the Justices of the Peace (lawyers and non-lawyers) and with the other magistrates of the Judicial Power.

Each of these conditions or limits lends itself to further comment and analysis (see the author's previous articles and research, online). Just to show a brief approximation to its complexity, let's highlight some questions that replicate in each of these conditions or limits:

- What is the territorial scope of a Peasant or Native Community: the territory that they have delimited in the laws, or the one they occupy historically?

- What does customary law consist of: only traditional norms or does it also include assembly agreements and decisions of its authorities that produce permanently?

- What fundamental rights, which should not be violated, does the norm refer to: Western fundamental rights or fundamental rights that the communities themselves historically recognize?

- Does the jurisdictional coordination include the magistrates of the Public Ministry (prosecutors) and the Constitutional Court? Why does the jurisdiction of the FNPP not receive a budget similar to that of the Judicial Power?

As we can see, after these questions, the issue of the special jurisdiction of the FNOO or IIPP of Peru is not easy. The complexity arises from the contrast of meanings that we can give at least from two perspectives: the perspective of State Law and the perspective of the Law of the Communities themselves or FNPP.

From the perspective of State Law, the answers to the questions are assumed following a literal or restrictive interpretation of the constitutional norms and laws to the detriment of the Peasant and Native Communities. This means a preference for those rules that prioritize state jurisdiction which, in turn, respond to the model of republic that we have had in Peru since 1821 and whose origin is found in European Law. The state jurisdiction and its own bodies (judges, prosecutors and magistrates in general) study and apply this European or Western Law.

From the perspective of the Law of the Peasant and Native Communities themselves or FNPP, the questions and their answers are overwhelmed by a verifiable fact: they have a jurisdiction recognized by each one of their members since years prior to the Republic of Peru. But, also, because they live excluded or free from the functions of state authorities regarding basic services such as health, education, sanitation, technology, paid work, etc. The communal jurisdiction and its organs apply their own Law and Justice.

This comparison of the perspectives of the State and the Communities on the jurisdictional issue shows us not only two different rights, but two different legal cultures. That is, two ways of thinking, studying, applying, building and renewing law and justice.

Under this short presentation, the communal jurisdiction of the FNPP or IIPP and their respective legal culture exists in each Peasant Community and Native Community, with the support of the Peasant Patrols, in Peru. It is in force with its own Law and its own Justice, beyond the constitutional text, and is still presented as a challenge of integration of the State.