A/HRC/39/17/Add.3
resources. The administrative procedure involved is subject to various constraints and
depends on the goodwill of the municipality concerned. There are some positive examples,
such as the restoration by the municipality of Jalapa of the status of the indigenous
community of Santa María Xalapán or the registration of the communities of Concejo Maya
Mam de San Pablo in San Marcos.
75.
Other municipalities, such as Sayaxhé and Poptún in Petén, have refused to register
indigenous communities. The municipality of Camotán in Chiquimula denied the Ch’orti’
community of Morola the status of a collective subject of rights and banned it from
managing its communal lands and resources. The indigenous communities of the
municipality of Ixcán in Quiché were informed that, if they registered the community, they
would lose the financial benefits that they received from the municipal budget. A number of
indigenous communities went to court to establish their institutional status. The
Constitutional Court found for the communities in the case of the Kaqchikel of
Chuarrancho. There persists, however, a general resistance to the recognition of indigenous
authorities, even where there are court rulings in their favour.
76.
It is striking that there is scant representation of indigenous people in the country’s
political life. Out of a total of 158 members of the Congress, only 18 are Maya (including 2
women) and there are no Xinka or Garifuna representatives. There is greater representation
in the municipalities, especially in areas where there is a majority indigenous population,
but it is still limited, even if the Urban and Rural Development Councils are taken into
account. The indigenous presence in State institutions is also meagre, reflecting the high
levels of racism and discrimination that persist in Guatemalan society. Affirmative action is
required to make up for this inadequate political representation.
Indigenous jurisdiction
77.
One positive step forward is the recognition of the country’s legal pluralism in the
judgments of the Guatemalan high courts, which stress that international standards on this
issue form part of the constitutional corpus. However, the necessary measures for its
effective recognition or for its alignment with ordinary justice have not been adopted,
despite the support of the Public Prosecution Service and the Indigenous Peoples’
Secretariat of the judiciary for dialogue between the indigenous authorities and the staff of
the ordinary justice system.
78.
In 2016, as part of the national dialogue on constitutional reform of the justice
system, discussions were held on incorporating the recognition of indigenous justice into
the Constitution. Indigenous peoples and authorities actively participated in the discussion
of these fundamental reforms. In a debate in the Congress, the provision relating to the
indigenous justice system aroused strong opposition, not only from members of the
Congress but also from the private sector and public opinion, and gave rise to a campaign in
the press and social media that was deeply imbued with racial prejudice. In view of the
polarization and the deadlock in the Congress, the indigenous authorities announced that
they would withdraw the proposal on the issue so that the other constitutional reforms to
strengthen the institutions of the justice sector could move forward. The debate has,
however, not advanced since then.
79.
The indigenous authorities exercise their jurisdiction across large areas of the
country. Violent crime rates are the lowest in the areas in which indigenous justice applies,
such as San Marcos, Sololá, Totonicapán, Baja Verapaz and Quiché departments, where,
according to information received, there was not a single murder in a number of
municipalities in 2017. The full recognition of legal pluralism and indigenous jurisdiction,
and their alignment with the ordinary justice system, would not only lead to fuller
compliance with the country’s international commitments but would have a positive impact
on combating impunity and fostering good governance.
D.
Access to justice
80.
The Special Rapporteur noted encouraging progress in the justice sector as it affects
the indigenous peoples of Guatemala, including the commitment by the Public Prosecution
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