Introduction
The Zapatista rebellion opened the door for indigenous Mexicans to reach the national agenda, demanding the recognition of peoples and their collective fights, concretely expressing their self-determination through autonomy. This unleashed such a debate that since February, 1996 -- when the San Andrés Accords on Indigenous Rights and Culture were signed by the EZLN and the federal government -- at least eleven reform projects have been proposed to recognize these demands in the Federal Constitution.(2)
In spite of the diversity of proposals, the debate centers on the proposal from the [congressional] Commission' for Pacification and Concord (COCOPA) on the one hand, which the national indigenous movements has made its own, and the EZLN has accepted, and on the other hand, the President's initiative, sent to Congress on March 15. This violated what was agreed to in San Andrés, which was to send a proposal developed jointly with the insurgent army. This essay will discuss these proposals' scopes and their differences.
The COCOPA's Reform Proposal
By agreement of the parties, in November of 1996 the COCOPA presented a constitutional reform proposal, based on the San Andrés Accords.(3)
This proposal recognizes indigenous peoples as collective subjects with rights and their right to self-determination expressed in a regime of autonomy. It therefore recognizes a series of rights involving politics, economics, access to and administration of justice and the protection of indigenous migrants.
In terms of politics, it recognizes the right of peoples to elected authorities and forms of internal governance according to their own norms, guaranteeing the equal participation of women, as well as the right to strengthen their political participation in the different branches of the State, in accordance with their cultural specificities. This right will affect the levels and jurisdictions appropriate to the interested parties, and could include one or more indigenous peoples, depending on the specific conditions of each state.
Along the same lines, it recognizes communities as subjects of public rights [sujetos de derecho público] and they would, just as the municipalities with the indigenous population, have the power to freely associate with each other in order to coordinate their actions. It also establishes the commitment by the State authorities that deal with indigenous affairs to carry out a gradual and orderly transfer of economic resources to the communities and peoples, to be managed by themselves. The state legislatures would determine the responsibilities to be transferred. The proposal also establishes the right to remunicipalization, to reorient local governments to take into account the geographic and cultural locations of the pueblos themselves.
In terms of economics, the proposal recognizes indigenous peoples' rights to collective use of natural resources in their lands and territories, providing a constitutional guarantee to the equitable access and distribution of the nation's wealth.
The proposal also establishes new norms for both access to and the administration of justice. For the first time it recognizes the right of indigenous peoples to "apply their normative systems for the regulation and solution of conflicts within their communities, respecting individual guarantees, human fights and in particular, the dignity and integrity of women." Conflicts resolved in this way would only need recognition by the State's jurisdictional authorities to be considered cases closed. On the other hand, to ensure justice from governmental authorities, it establishes that "in all trials and proceedings that involve the indigenous, as individuals or collectively, their legal practices and cultural characteristics be taken into account, respecting the precepts of the Constitution," and incorporating the right of those involved to always have access to translators that understand their language and their culture.
In terms of culture, the proposal establishes the right of indigenous peoples to preserve and enrich their languages, knowledge and all the elements that make up their culture and identity. This includes recognition of the right to acquire, operate and manage their own communications media. In the field of education, the parties established the obligation of the federal, state and municipal authorities to consult the indigenous peoples involved to define and develop regionally-appropriate educational programs that would necessarily include indigenous cultures.
The San Andrés Accords also addresses the fights of indigenous migrants. Their inclusion refers to the State's obligation to promote specific programs for their protection, both within the national territory and abroad.
The Governmental Reform Initiative
The federal government rejected the COCOPA proposal from the beginning. Once it was made public that the EZLN had accepted it, the government asked for time to analyze it. By December 20 of 1996 the government presented what it called several objections, which in reality was a counter-proposal, and by the beginning of 1997 the EZLN considered it unacceptable.(4)
The political atmosphere grew tense and remained so all year, while the repression and harassment of indigenous peoples worsened, leading to the Acteal massacre in Chiapas. On February 2, 1998 the federal government "reduced" its observations but in effect maintained the same fundamental objections, Since the federal government did got gain sufficient consensus to move their proposal forward, on March 15, 1998 it presented a constitutional reform proposal to congress unilaterally. This backtracked from what was agreed to at San Andrés, contradicted the COCOPA proposal, interfered with the peace process and left the country on the edge of war.
The first discrepancy involves the subject that has the rights. Although the President's initiative accepts that "the Mexican nation has a multicultural composition, originally based on its indigenous peoples," this reference is immediately followed by the proposition that those who have the right to self-determination, expressed concretely through autonomy, are the indigenous communities?(5)
The effect is to recognize that indigenous peoples exist, but they do not have rights, because rights are granted only to the communities where they live.
Another discrepancy between the federal government's initiative and the COCOPA proposal and the San Andrés Accords involves indigenous peoples' rights to natural resources. The government not only denies this right, but does so with little legal skill. It proposes that the fraction V of Article 4 of the Constitution allow indigenous communities "in accordance with the forms and modalities of property outlined in Article 27 of this Constitution, collective access to use of natural resources, except those whose direct control belongs to the Nation." With this wording [referring to the Salinas era changes in Article 27, the agrarian provision - eds.], the government rejects the San Andrés Accord's principle that establishes indigenous peoples' collective rights to natural resource use in their lands and territories, a principle correctly reflected in the COCOPA proposal. Moreover, when the government proposes that this right would be exercised in accordance with the forms of property outlined in the Constitution, it attempts to guarantee a right already established, yet which also violates a principle that the government already accepted by signing Convention 169 of the ILO, above all because Federal Constitution makes treaties part of Mexican legislation.
The right to access to the communications media raises a similar issue, when the government proposes that the indigenous communities have the right to "acquire, operate and manage their own communications media, according to the terms established by [existing] law." This last phrase is unnecessary because it is well-known that the Constitution only establishes rights that are later operationalized by laws, though by referring here to the current laws the right becomes empty because the current law requires that all broadcasts be in Spanish. Any broadcast in other languages must be made first in Spanish, and then only followed by translation into indigenous languages, and then only with Ministry of the Interior authorization. The reform of the Constitution would avoid subjecting this issue to a secondary law.
In terms of education, the presidential initiative proposes that the Constitution say that "the Federal Executive, in consultation with the indigenous communities, will define and develop educational programs with regional content that will recognize the cultural legacy of the indigenous pueblos." Here the federal executive appropriates the exclusive right to define the general content of educational programs and only concedes to communities the right to be consulted about the incorporation of regional content, without guaranteeing its inclusion. Here the government takes several steps backwards compared to the reforms of the General Law of Education that were introduced when the current President was Minister of Education, as well as compared to the Convention 169 of the ILO.
In reference to indigenous peoples' access to the national wealth, the government's initiative proposes to add a paragraph to Article 26 of the Constitution, to affirm that "the corresponding legislation will establish the mechanisms in which the development plans and programs would take into account the needs and cultural characteristics of the indigenous pueblos and communities. It will also promote equality of opportunity so that indigenous peoples, based on their own efforts, would have equitable access to the distribution of the national wealth." This proposition does not mention any rights, but rather principles and does not specify how they might be applied. In the first place it relegates to secondary laws what should be a guarantee, and second, the eventual right which might be established would consist of taking the communities into account. It also suggests that it will promote equality of opportunities so that the indigenous people, all by themselves, would gain access to the nation's wealth, not as an integral part of the national State. Needless to say, as long as the current economic model remains unchanged, these statements will never be more than mere wishes, good for the government's image but not for resolving the indigenous peoples' problems.
From the Center to the Periphery
Shortly after the President presented his reform initiative to the Congress, it became clear that it lacked sufficient support to be approved. Once the government realized this, it changed tactics and sent "invitations" to the ministers of government in Mexico's states to introduce indigenous rights reforms in their state constitutions, along the lines of the president's initiative. They sought to disperse the indigenous movement and to establish the limits to any recognition of indigenous rights in local legislation, so that when the conditions shifted to permit a reopening of the discussion in Congress, it would be kept within the boundaries already drawn by the constitutions of the States. Following this approach, the states of Veracruz, Nayarit, Michoacán and Quintana Roo have reformed their constitutions, and indigenous rights laws have been changed or approved in Quintana Roo and Campeche, followed by similar processes in Veracruz, San Luis Potosí and Chihuahua. This legal fence is part of the government's war against indigenous peoples, to avoid recognizing their rights. Oaxaca is a different case; there the reforms crossed the line set by the federal government, though they still fell short of indigenous demands.
This panorama should not prevent Mexico's indigenous peoples, with the strong support of national and international civil society, from continuing to hold high the banner of hope of one day gaining access to a State that is democratic, plural and governed by the rule of law. This is clearly part of a long and difficult process, but the decision to win among indigenous pueblos is stronger than the obstacles.
Notes:
(2) These proposals have come from:
a) The National Indigenous Institute
b) The National Indigenous Assembly for Autonomy
c) One that is generally known as "San Andrés," which refers to the Chiapas municipality where the first accords between the Federal government and the EZLN were signed, without a clear definition of who wrote it.
d) One that the Ministry of the Interior "leaked" during the first meeting of the National Indigenous Congress in October, 1996.
e) A proposal of the National Indigenous Congress, commissioned during its first assembly and approved in the community of Milpa Alta in November, 1996. It was later set aside in order to support the COCOPA [congressional peace commission] proposal, as a goodwill gesture to support the Chiapas peace process.
f) The COCOPA proposal of November, 1996.
g) The Federal government's counterproposal to COCOPA's, after the EZLN had accepted it.
h) Another proposal appeared in the weekly journal Proceso (No. 1112), without author but attributed to the Ministry of the Interior.
i) The constitutional reform initiative about Indigenous Rights and Culture, presented to congress by the National Action Party [PAN] on March 15, 1998.
j) The constitutional reform initiative about Indigenous Rights and Culture, sent to congress by the President of the Republic, March 15, 1998.
k) The constitutional reform initiative about Indigenous Rights and Culture, presented to Congress by the Ecological Green Party of México, March 28, 1998.
(3) For a broader analysis of the COCOPA constitutional reform proposal, see Francisco López Bárcenas, "La Reforma Constitucional en Materia de Derechos Indigenas: Los Discursos y los Hechos," La Guillotina, No. 37, México, spring, 1997. See also Alegatos, No. 36, Departamento de Derecho de la Division de Ciencias Sociales y Humanidades de la Universidad Autónoma Metropolitana, Azcapotzalco, México, 1997
(4) EZLN: Documentos y Comunicados, Tomo 3 (Mexico City: Era, 1997, pp. 419-426
(5) "Iniciativa Presidencial Sobre Derechos y Culturas Indígenas," El Nacional, Suplemento Especial, March 16, 1998. All the references to this text come from this source
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