A Paradox of Chilean Democracy:
The Judicial Treatment of Mapuches
Periodico Azkintuwe - Wednesday 19 th April 2006
José Aylwin Gulumapu (transl. Holly Bembridge)
A group from the International Federation of Human Rights (FIDH) visited Chile recently, to present their third report in less than a decade to cover the rights of the Mapuche people. There was particular focus on the use of anti-terrorism laws in what has become known as 'the Mapuche conflict'.
The report, titled " The other Chilean transition: the judicial rights of the Mapuche and social protest in a democratic state " was presented by the Spanish magistrate Dr Luis Carlos Nieto (director of Judges for Democracy), and by esteemed indigenous rights specialist, Dr Luis Rodrigues-Piñero (Professor of Law at the University of Seville ). The report corroborates the international disquiet which prevails around the use of special anti-terrorist legislation against Mapuche activists. Worries about this issue have been expressed in the past by UN agencies such as the Special Social and Cultural Testimonial, and also by internationally prestigious NGOs like Human Rights Watch.
The FIDH report analyses underlying causes of the Mapuche land struggles, mentioning amongst other more historical factors, "structural weaknesses in the official policy of devolution of lands, and the advancing export economy of forestry, with enormous repercussions on the life of the Mapuche community." It sustains that the response of the Chilean State to these struggles "has up to now been primarily judicial persecution of violent forms of social protest with the intention of attending to the causes of this conflict."
The report also analyses the judicial processes by which nine Mapuches were sentenced under the Antiterrorism Law in 2003-2004, in the light of international standards of human rights which apply in Chile . It concludes that, for these people, the Chilean State violated guarantees of fair trial and due process, because the gravity of the acts of those condemned was not proportionate to the gravity of the criminal model of "terrorism" and to the penalties imposed in those cases.
According to the report, where the cases "involved property damage . and occasioned no risk of death or physical injury, the determination of these acts as "terrorist" has abused the principles of proportionalty, rationality and necessity which defines judicial law in a democracy, thus leading to violations of the right to due process and fair trial for the accused and condemned in these cases." It also maintains that the lack of any recognised constitution relating to indigenous peoples and their rights accounts for the fact that Chile still has a long way to go before indigenous people see the " New Way " proposed by Lagos ' government transformed into concrete reality.
It ends by affirming that "behind the 'end of transition' proclaimed at the heart of the constitutional reform of 2005, indigenous people continue to find themselves at the margins of this transition, unable to benefit from the enormous changes in Chilean society on an equal footing with the rest, and still suffering the consequences of the juridical, social and economic models inherited from the Dictatorship."
In its final section, the report offers a series of recommendations to the Chilean State . For instance, the full ratification of Convention 169 of the OIT, and the approval of constitutional reform which would establish the multi-ethnic character of the Chilean state, and which would recognize the pre-existence of indigenous peoples and - expressly - indigenous rights already established under international human rights law. In the same vein, it recommends creating an Ombudsman of indigenous rights, and implementation of policies which would return land and natural resources to the Mapuche, with the help of indigenous organizations.
Dealing with the judicial question, it recommends that the State look for legal formulas which will permit freedom and reparation for Mapuche people serving major prison terms for so-called terrorist offences. Likewise, the report recommends profound changes to anti-terrorist legislation "in such a way that only behaviour which clearly threatens the rule of constitutional democracy will be penalised."
The FIDH report has been published at a point when the courts of justice - for the second time in less than a year - have dismissed accusations made by government lawyers against Mapuches for participation in acts which could be dressed up as terrorism (the first occasion was in the winter of 2005, where the Oral court in Temuco threw out a case against eight Mapuches accused of belonging to an illegal terrorist organisation).
Furthermore, it has been made known that a group of Mapuches condemned under anti-terrorist legislation have been on prolonged hunger strike for almost a month, demanding release from prison and recognition of rights for their communities. This strategy may prove effective at a time when Michelle Bachelet's new government has promised to start talks with a view to forming - with the participation of indigenous people and organizations - a new policy for these peoples.
We hope that the recommendations made by the FIDH in this report will be taken into consideration by the new authorities, and that they will serve as a basis for abandoning the State's policy of judicial persecution, and substituting it with a policy with foundations in dialogue, which to resolve the structural causes behind the conflicts involving Mapuche people and communities in the last years