In the light of the Archbishop of Canterbury's remarks about the use of sharia law in the United kingdom it might be interesting to consider what happens in Guatemala, where they also have "complementary" legal systems: the state and the indigenous customary.

As I'm sure our UK readers will be aware there has been a great deal of controversy aroused by the Archbishop of Canterbury, Dr Rowan Williams', recent remarks about the role of sharia law in this country. Part of the trouble seems to be that the word "sharia" is the equivalent of the red-rag-to-the-bull to many people, conjuring up images of bloody medieval punishment being meted out on the streets of the United Kingdom. This just prevents us having a calmer and more considered debate about the role of what could be called "complementary" legal systems, and from recognising that we've already living in a country that has them whether some people like it or not.

I could not help but be reminded of the very similar controversy in many countries of the Americas about the use and status of "customary law". This is  the legal system which was in use by the indigenous peoples before it was forcibly superseded by external conquest. In countries with large indigenous populations its practice still continued and nowadays a struggle has been joined by indigenous law practitioners for it to be recognised on an equal status to the state legal system. In Bolivia, for instance, President Evo Morales pledged that he would reform the inefficient, corrupt and discriminatory legal system and would specifically promote the use of indigenous legal practices as part of his "decolonisation" programme. This has been controversial, attracting criticism of a return to outmoded and violent practices which a modern Bolivia should be turning away from. There was a really interesting BBC Radio 4 programme on this broadcast back in 2006 which can be found here.

In Guatemala the use of customary Mayan law has been preserved in many indigenous communities. This is based on principles of consensus, harmony and is restorative in nature. Its advocates point out that this system has many advantages for those using it: hearings are local, free to access, held without excessive delay and in a language that all the participants can confidently speak.  However, the existence of such a "parallel" system has aroused controversy, of the type that the indigenous are getting "special treatment" or that its use of physical punishment cannot be consistent with human rights. There are certainly some questions to be answered about the use of the Xik’ay’ or whip, a use shared with the Bolivian system, which would be considered a cruel and unusual punishment. Amilcar Pop, the president of the Mayan Lawyers Association,  has acknowledge this as an issue. Worse still, lynchings have often come to be seen as an aspect of the customary law system, which they are not, provoking the charge that its use would necessarily lead to an outburst of autochthonous brutality. This fails to ask or answer the twin questions of why it is that people have come to regard violence and not calling the police as the proper response to crime.

In the negotiations leading to the end of the civil war a coalition of indigenous organisations in the Co-ordination of organizations of the Mayan People of Guatemala (COPMAGUA) succeeded in getting indigenous rights onto the agenda, leading to the Accord on the Identity and Rights of Indigenous Peoples, signed in 1995. This included a proposal to recognise Mayan customary law. Those of us with long memories might remember back to the referendum of 1999 when a series of proposed amendments to the constitution, arising from the peace accords, were put to the vote. A vehement no campaign was initiated, claiming that should the changes arising from the indigenous accord be implemented than Guatemala would be balkanised, mob rule would run in the countryside and worst of all, Mayan rule would would mean the restoration of precolonial land title. The congress which had created and supposedly promoted the changes did little to counteract the campaign and in the end a low turn out of 18% rejected all the reforms. Despite this, in 2005, the Supreme Court ruled that a man who had been found guilty of robbery in a trial conducted using indigenous law could not then be tried again in the ordinary courts.

A long presentation on the practice of Mayan law can be found here. For those of us who are trying to navigate our way around the issues raised by the Archbishop, considering how other countries live with several legal systems or are evolving into a way of living with them, might be a useful way of informing our thinking.