San Sebastián Bachajón’s amparo referred to Supreme Court

The Third Collegiate Court in Tuxtla Gutiérrez refers San Sebastián Bachajón’s amparo (request for legal protection) concerning the dispossession of their territory to the Supreme Court

The following information concerns the legal information about the call for protection (amparo) of the comrades of San Sebastián Bachajón (judgement 274/2011) from the dispossession of their land made on February 2nd, 2011.

105_5826On September 29th 2014, the Third Collegial Court of Tuxtla Gutierrez unanimously revoked (in judgement 224/2014) the cancellation of judgement 274/2011 (a ruling passed down by the Seventh District Judge of Tuxtla Gutierrez, Chiapas), after a complaint lodged by the Sexta adherents of San Sebastián Bachajón. The court subsequently ordered that the case be sent to the Mexican Supreme Court, because of the relevance and transcendence of the issue in terms of the International Right of Indigenous Peoples.

The ruling of the Seventh District Judge, José del Carmen Constantino Avendaño, had been revoked because it had been considered to have interpreted the Law of Protection incorrectly with regards to ‘substituted representation’. In the case at hand, the ejidatario Mariano Moreno Guzmán – founder of San Sebastián Bachajón – was an appropriate substitute representative because his legal action sought to defend the collective rights of his fellow ejido members in the face of the Ejidal Commission’s complicity in the acts of dispossession initiated by both the government authorities of Chiapas and of Mexico. These acts had begun on February 2nd 2011, when a police operation (involving around 800 officers) took land (which remains under their control by force and without the consent of the General Assembly of Ejido Inhabitants) with the support of the Ejidal Commission – with the aim of facilitating privatisation of resources and the establishment of a tourism Megaproject.

The Collegial Court recognised the legitimate legal action of Mariano Moreno Guzmán, and thus referred the case to the Mexican Supreme Court – with the hope that it would resolve Moreno’s case once and for all. The following motives were given for this referral:

  • The current issue could be transcendent in importance because, if the actions of the responsible authorities were in fact illegal, the Court would have to proclaim that they had violated fundamental rights – in particular the rights of indigenous communities – and deprived people of their land. It would also have to recognise that these actions were committed under the guise of security and social harmony in the area – where a toll booth had been constructed, along with an emergency response centre of the institute of Civilian Protection of the State of Chiapas.
  • The constitutionality of the actions – justified by the authorisation of an ejidal nucleus – is questioned by the plaintiff, who points out that the authorities carried out the dispossession with the presence of elements of public security forces. Therefore, the Supreme Court would need to clarify up to what point indigenous communities are able to validate such an action.
  • 1798449_1499762030279142_4355541998080999676_nAllegations of violations of the human rights of indigenous peoples to the ownership and possession of their land have been made. The interpretation and application of the Mexican Constitution and numerous international agreements, which protect these rights, must therefore be analysed. Such rulings would also have an impact on similar cases in which, in the name of ensuring social harmony, fundamental and substantive rights of ejidal communities have been affected.
  • The issue of refusal of and lack of access to the justice system for indigenous communities is also relevant to this case, as is the upholding of their right to consultation – their right to give their free and informed consent before any legislative or administrative measure that may affect them is adopted. The case also concerns the right to cultural identity and the protection, use, possession, and enjoyment of their territories. These rights are protected by the Indigenous and Tribal Peoples Convention of the International Labour Organization (ILO-convention 169) and the UN’s Declaration on the Rights of Indigenous Peoples – which was incorporated in Mexico’s constitutional system in the reforms of June 10th 2011.
  • Finding a solution to the conflicts generated by depriving indigenous communities of their territorial rights is of international concern, as is the protection of their human rights in the face of harassment and intimidation by State authorities. However, the plaintiff argues that a dignified and preferential treatment of this issue has not been received from the responsible state and federal authorities.
  • It shouldn’t go unnoticed that, in recent years, numerous reforms have been made to the Mexican Constitution regarding indigenous rights (such as the Law for Dialogue, Reconciliation, and Dignified Peace in Chiapas), along with a series of peace agreements in the state. Nor should the fact that indigenous movements with a military character (such as the EZLN) have surfaced in Chiapas be ignored.
  • From the points mentioned above, the case at hand could ensure the creation of orienting criteria regarding the protection of indigenous rights and the effect this has on the implementation of government projects in indigenous areas. Without a doubt, the importance of this case rests in the analysis of the constitutionality of the actions denounced by the plaintiff – which allegedly violate the fundamental rights of ownership, possession, and enjoyment of the ejido lands that he represents.
  • All of the above merits the consideration of the Mexican Supreme Court, because this case represents both a legal question and a constitutional question (in whether or not state authorities can dispossess indigenous people of their territories under the guise of seeking social harmony in said territories).
  • It is necessary to analyse the responsibility of the State in violating human rights by not complying with the appropriate social, political, and economic measures required for the solution of social conflict – especially in the context of a public lack of security and conflicts between communities in indigenous areas.

The possible action of the Supreme Court regarding this case would allow for the development of the legal rulings that could benefit the indigenous communities of Mexico. We will keep you informed about the progress of this process.


Ricardo Lagunes

(52) 961 157 69 24
@defensalegalsur

October, 2014

http://kolectivozero.blogspot.co.uk/2014/10/tercer-tribunal-colegiado-en-tuxtla.html

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