AKATÚA: PLURALISM AND THE INDIGENOUS ISSUE IN THE CONSTITUTION OF PARAGUAY
Arnaldo Moraes Godoy
" When Paraguay goes free, when our America goes free, when the people speak and
give hands through the walls that now contain us, we are leaving then to Paraguay.
I want to see there where they suffered. The earth has scars that you dry up,
the wild lands conserve millions of soldiers ".
Pablo Neruda, To be Born I was Born, p. 147.
Akatúa is an adjective of the Guarani language that translation-equivalence dictionaries define as law. That law is not a monopoly of the State, however, given the obvious decline of juridical monism as part of the larger project of modernity's bourgeois-capitalism. Pluralist practices reveal the new focus of an informal juridical culture, creating new forms of legitimization, that the contemporary State feigns to tolerate. The present essay examines pluralism in Paraguay, where the majority of the population has an indigenous origin. In that country, the constitution intends to recognize pluralism, as a precondition for survival. The law, in other words, seems to legitimate the broader definition of akatúa.
The Latin-American historical experience in general, however, seems to demonstrate the zero value of such legitimization. Winners have always imposed (with violence) their normative system on the losers. This has been true since the days of Bartolomeu of Las Casas, patron of all Latin American libertarian causes, who was born in Seville, Spain, in 1474. After an early experience in the Dominican Republic at age twenty-eight, he returned to Europe and was ordained as a priest. In 1511 he went back to America. Three years later, while living in Cuba, he was galvanized into a life-long defense of the Indians, by the horrible, brutalizing conditions that they were forced to live under. He documented these in his General History of India (1527), traveled to Mexico (1531) and to Nicaragua (1534), was bishop in Chiapa, and continued his battle back in Spain, where he entered into debates about the existence of the Indian soul. In 1566 the tireless fighter died in Madrid.
Europeans of his day believed in the physical reality of Éden, which they centered in American topography. From their perspective, they tamed this paradise, through the creation of an Indian law, which offered a particular vehicle for European Law to encompass new geographical and human situations, with unequaled flexibility, extending to vast territories a juridical tradition rejuvenated for new solutions that circumstances demanded of it. Such a supreme organ made it possible for the king of Spain to exercise jurisdiction over Spanish America, with a competence to rule over mining, local and regional, both being marked by a strong canonical influence. Cabildos and encomiendas proliferated, as a template for protectionist legislation, implemented by the Church, a perfect legalism that promoted imperfect justice. It turned the Indians into slaves, under protective and conservative rules, that legitimated their submission, considering as it did the native people as fatally lacking any juridical capacity. Natives were seen as wild infidels.
To acquire any understanding of the Latin American situation today, one must look to the beginning of colonization, where Spanish America was constituted as a mere attaché of the kingdom, being governed by the same laws and authorities of the metropolis. But the breadth and depth of new problems demanded a larger political personality in the New World, which forced some independence for local government and legislation matters. In 1524, the Spaniards organized the Real and Supreme Council of India. In 1680, Carlos II’s Recompilation of Laws was implemented. It sought to reduce to a single juridical unit the diversity and the pluralism of the Indian common law, an empirical model that had been formatted over the years. Privileged juridical status was granted to the Indians, theoretically, for all privileges were gauged by incapacities and limitations. The Indigenous law was also a source of Indian law, although poor in content, which could only exist where it’s norms did not oppose Catholic religion, the dominant morals, or the laws of the kingdom, in which case, it was annulled it its totality. The Spanish did not care much for the heathen's family authority, for example. The hunger, the cross and the sword decimated the family as constituted in the poet Neruda’s image. For Neruda, freedom in America can only be the daughter of our facts and of our thoughts.
The consequence for the Indians was an early death on an individual basis, and a cultural death in general. It is calculated that in two and a half centuries of colonization the native population went from one million to eight thousand and two hundred, putting aside the Guaranis of the Jesuit Republic. A heroic vision of the conquest, a "histoire événementielle", was formatted as if Assuncion had roots in the durable fruit of certain men's decisions. The official historiography left out the concept of freedom. And freedom is not a juridical invention, nor a philosophical treasure, property loved by civilizations somehow worthier than others, because they know how to produce or to preserve it.
The presence of Guaranis in Rio Paraguai and in Chaco is said to go back to immemorial times. They witnessed the foundation of Assuncion, the presence of the Jesuits and their thirty missions. They were massacred by the Spaniards and by the Portuguese slavehunters; people such as Antônio Raposo Tavares, who is metamorphized by history into a fearless explorer, through the metaphor of the Bandeiras, who were credited with Brazilian territorial extension. In 1811, Paraguay was freed of Spain. Under the leadership of José Gaspar Francia, the country was reconstructed, despite implacable imperialistic opposition. Francia died in 1840 and was followed by Carlos Solano López, who developed the politics of autonomous industrialization, which was an irritant for British capitalism. English diplomacy manipulated its allies in South America, such as Brazil, Uruguay and Argentina, feeding the War of Paraguay, and the American genocide, which removed the life of two thirds of Paraguay’s population.
The Brazilian official historiography in the 70’s mourned the Brazilian heroes, volunteers of the homeland, idyllic characters within the reminiscences of the campaign of Paraguay. Julio José Chiavenatto, however, in a controversial work, denounced Brazilian cruelties, such as those of Conde D’Eu, the emperor's son-in-law: " But the great criminal of that war is Conde D’Eu, son-in-law of Pedro II, that replaced Duque de Caxias in command of the army starting from 1869. Conde D’Eu has a fantastic chronicle of crimes that he committed in that war (...). He closed up the old hospital of Peribebuy, with all the patients - mostly elderly and children -shut up inside. Then he ordered it set on fire. While the hospital burned, the Brazilian troops were ordered by that crazy blonde prince to use their bayonets to push back the patients that tried to escape the bonfire. One doesn't know, in American history at least, any war crime bigger than that. To set on fire a hospital and to kill the patients! To burn alive the elderly and children "
Little peace or politically stability followed for Paraguay thereafter. From 1932 to 1935 the Paraguayans faced Bolivia, in the War of Chaco. In 1936, radical officials launched a revolution, seasoned by agrarian reform and by that nationalization of the economy justified by Simon Bolivar, for whom "generous souls are always interested in the luck of a people that improves in recovering rights that the Creator and nature endowed ". The dictatorship of Stroessner (1954 to 1989) was toppled in turn when commandant Andrés Rodrígues seized power. Juan Carlos Wasmosy, from the red party, was elected in 1993, and soon faced the army commandant, Lino Oviedo, who attempted in his turn a coup d’etat. Oviedo was arrested, condemned by sentence of the Supreme Court, had this decision overturned by an extraordinary military tribunal and then was re-convicted by the Supreme Court which considered unconstitutional the ordinance that had cleared him.
The Guarani in Paraguay have lived under these eternal conflicts among the dominant elite of both Paraguay itself and of neighboring nations. The undeniable native presence is seen in language, habits and rules, spontaneously pressing the official normative model which is found in constitutional texts, and which has gradually had to notice this special cultural and sociological reality. The recognition of indigenous rights acknowledges a stubborn pluralism, as can be seen by examining two Paraguayan constitutions, the one of August of 1967 and the one of June of 1992.
The Paraguayan constitution of 1967 prescribed Spanish and Guarani as national languages, but guaranteed to Spanish the official use (article 5). The constitutional text of 1992 enlarged the acceptance of the native languages, proclaiming Paraguay a pluricultural and bilingual country. Spanish and Guarani are official languages (article 140); however, article 18 of the current constitution of Paraguay determines that in case of doubtful interpretation, it is preferable to rely on Spanish. The indigenous languages, as well as the ones of other minorities, is said to form part of the cultural patrimony of the nation, and thus Paraguay waives with tolerance at pluralism. This is certainly contrary to Brazil, that reserves only to Portuguese the quality of official language (article 13 of the Constitution of the Republic) although, as one might realize, Brazil does not have too many existing natives.
The Paraguayan Constitution of 1967 reserved for Catholicism the position of official religion, without damage to that religious freedom that the normative text tried to guarantee (article 6) and at the same time restrict by reference to good habits and public order (article 70). The Paraguayan constitution of 1992 subtracted this status from Catholicism (article 24). It is prescribed that the relationship between the State with the Catholic Church is based on independence, cooperation and autonomy. It must be stressed, however, that any reference to autochthonous religious practices would be a waste of time, since the presence of the Jesuits had long accomplished the ideological task of imposing Roman Catholic beliefs and effecting cultural assimilation.
The Paraguayan Constitution of 1967 conceived agrarian reform as one of the fundamental factors for obtaining stability and a sound economy, defining progress as the incorporation of rural populations in a wider economical and social development of the nation (article 128). The Constitution of 1992 enlarges that perspective excessively, prescribing that " the indigenous people are entitled to community property of land, in extension and enough quality for the conservation and development in peculiar ways of life. The State will provide them gratuitously of lands, that will not be susceptible for warranty of contractual obligations, for lease, besides the tributary immunity‘. (article 64).
The Paraguayan Constitution of 1967 didn't determine a normative space for indigenous issues. The Constitution of 1992 has chapter V for this matter, which recognizes the existence of indigenous peoples, defined as groups of cultures previous to the formation and constitution of the Paraguayan state (article 62). It is accepted that (and here the law of indigenous people is guaranteed to preserve and to develop) ethnic identity is linked to a respective habitat (article 62). Rights to the free expression of political, social, cultural and religious values are granted, besides voluntary subjection to native rules, as long as they do not challenge fundamental rights established in the Constitution (article 62). Jurisdictional conflicts will take into account the indigenous common law (article 62). Rights to participate in the economic, social, political and cultural life of the country are guaranteed to indigenous peoples, in consonance with their common law, the constitution and the laws of the State (article 65). Global transformations have tended to grant full and immediate effectiveness to norms of human rights, tendency that raises airier exegesis of Paraguayan texts now under comment. The State will recognize cultural peculiarities of indigenous people, especially in what it links with formal education. There will be defense against population decrease, depreciation of the habitat, environmental contamination, economical exploration and cultural alienation (article 66). The natives are immune to civil or military services, instituted in law (article 67).
The Paraguayan constitutional tendency announces to the world a change of paradigm, one that reinvents a more benevolent relationship, in agreement with Leonardo Boff’s warning, that inspires larger collaboration among several peoples, cultures and religions, all indispensable conditions for the accomplishment of the human project, one open for the future and for the infinite. The integration of Mercosur, under the stigma of human rights and plurality, doesn't go any further without respect and reverence for the “Indian of the black hair which falls on her shoulders”, whose sweetness of the glance shares the akatúa kingdom, the empire of law and the respect for a lost dignity.
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