Abstract

LOPEZ HIDALGO, SEBASTIÁN  and  TAPIA TAPIA, SILVANA. Legal Colonialities: The Constitutionalisation of Indigenous Justice and the Continuity of Hegemonic Judicial Discourse in Ecuador. Rev. Derecho Estado [online]. 2022, n.52, pp.299-331.  Epub Jan 25, 2023. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n52.10.

This paper examines a binding judgement on the enforceability of indigenous justice given in 2014 by the Constitutional Court of Ecuador. Although plurinationality, interculturality, and indigenous jurisdiction had been recognised in the Constitution of 2008, we show that the Court's decision did not convey an intercultural understanding of the plurinational state. Based on an examination of the parliamentary records of the Constituent Assembly of 2007-2008 and its working boards, we analysed the petitions of the indigenous movement and compared them with the 2014 reflecting an initial moment of apparent inclusion in the constituent moment that is later confirmed as exclusion through the practice of the Court. We argue that the indigenous aspiration to a plurinational state was not just a demand for inclusion, it constituted a counter-hegemonic call, which should have provided the foundations to integrate diverse representations of justice in judicial practice. However, the Court legitimised a monolithic image of justice, drawing from a Western epistemic tradition through a human rights discourse that rigidly confined the protection of the right to life to the boundaries of criminal law. The Constitutional Court thus reaffirmed the penal apparatus as the only legitimate mechanism to protect life, which in turn subordinates indigenous justice, severely narrowing its applicability. This case may warn of the perils of inferior recognition at other legally plural sites.

Keywords : Ecuador; constitutional justice; indigenous justice; human rights; Plurinational State.

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