Translation: The Judge
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Juez Zapeta: 5, 6, 7, 8…
Daniel Alarcón: What you’re hearing in the background is a young woman getting 15 lashes. She apparently stole her neighbor’s computer. For that, she receives a punishment called xic’a’y. It is part of the indigenous Maya system of justice that has been practiced in Guatemala for centuries.
Juez Zapeta: 15, 16, 17, 18…
Daniel Alarcón: The man you hear counting is Juan Zapeta and he is a Maya judge. He is the highest authority in Quiché, one of the departments where xic’a’y is still enforced. It may seem like a violent means of punishment, but for an indigenous community that has suffered decades of injustice and genocide, maybe it is the closest thing to a justice that isn’t just real, but also their own.
But here’s the problem. Well, one of the problems: How can two justice systems coexist in just one country? On one side, in indigenous communities, we have community authorities like Juan Zapeta. And at the same time, we have the official system: Police officers, judges, attorneys, etc. like in any other country.
And well, sometimes they complement each other. And other times… Well, let Quiché chief of police, Sergio Morales, explain it, when we asked him about Zapeta, the Maya judge:
Sergio Morales: There have cases where, the truth is, this gentleman delivers justice when he should have left it to the police.
Daniel Alarcón: Welcome to Radio Ambulante, I’m Daniel Alarcón. Journalist Melissa Silva Franco went to Quiché to see how these two systems live alongside one another.
Women: Let’s go right now! Not that, no.
Melissa Silva: It’s Sunday and it’s one in the afternoon. We are on Juan Zapeta’s front patio. He is the only man in a group of about 100 women. They are all complaining that they have been swindled by the same person. The instinct of many of them is to take justice into their own hands, which is to say, lynch the accused. Few people in this region trust the governmental judicial system.
Juan Zapeta: That is our job and we’re grateful to those who respect what we decide.
Melissa: Zapeta is a small man. He’s about a meter and a half [~five feet]. His feet are always covered in dried mud and dirt. Every day he puts on a white shirt to go to work. He’s also always wearing a rimmed hat and carries a wooden cane; those are two symbols that are very important to the Maya. They show that Juan Zapeta is the highest authority.
In the end, the Maya judge decides:
Zapeta: We are going to detain her, we’re going to it. That is in the law. We are going to tie her up, like you say. We are going to do it.
Melissa: They go to the house of the accused to look for her. The women get in three 4×4 trucks. Juan Zapeta is driving one of them, and I get in the back seat with 5 other women. On the way, the judge takes the opportunity to explain to me why people prefer the indigenous system.
Zapeta: As you can see now, the women say that we are going to see the woman and we’re going. So, that’s what people like. In the other system, if we told the district attorney we were going to go see her now, that wouldn’t happen, you know?
Melissa: No filing a complaint, no long investigation, no need for an arrest warrant signed by a judge… In this system, everything moves much faster.
About 15 minutes later we arrive at the house of the accused.
Woman: Oh shit…she left! She left!
Zapeta: It looks like the woman isn’t here.
Melissa: The accused took all of her things with her and no one knows where she went. So the judge gives his sentence: she will not be allowed to return to Quiché. Which is to say, he exiled her. It’s no light punishment, if you really think about it. And the women who had been swindled don’t protest too much. Juan Zapeta gets the last word and they know it.
Juan Zapeta receives on average 20 calls a day to resolve situations like this one. These calls come from people of his same ethnicity who live all over Quinché. It is the fourth most populous region of Guatemala, will nearly a million residents. Here, 9 out of every 10 people is indigenous.
And in Quiché -like in the other 8 departments in Guatemala where the population is majority indigenous- the citizens vote every four years for an official mayor. And well, there is also an indigenous mayor and that person is elected every three years. Zapeta has been reelected three times already. But the people who nominate him are indigenous authorities, the elders and mediators of each community. As mayor, he gives talks at schools about Maya culture, and resolves conflicts among families. But his primary duty is to serve as a judge.
This kind of justice, of course, isn’t new. On the contrary, in Guatemala the new system is the one the Spaniards brought. Juan Zapeta represents something ancestral that has been modifying itself since colonial period up to the republic.
Zapeta explains to me that he resolves everything from the smallest crimes…
Zapeta: To killings, homicides, rapes, drugs and all that, which we’ve resolved, but among the most common is delinquency.
Melissa: In other words, assaults and robberies. Crimes that happen everywhere. But the way they are judged is clearly different. The trials have to be held publicly and the affected community must always participate. For example, if a thief steals a hen, the owner of the hen and all of the other neighbors go to the trial. Because in one way or another, they are also affected by the robbery.
Doña María Lucas: (Introduces herself in the Quiché language)
Doña María Lucas: (Introduces herself in the Quiché language)
Melissa: When the victims or the accused are women, Zapeta sometimes receives help from the vice-mayor, doña Maria Lucas, who, incidentally, is also his sister-in-law.
But neither of them charges for this service — they live off of donations from the community. When Zapeta isn’t working as a judge, he tends to his garden. In the morning, Doña María sells ice-cream from an ice-cream cart. And in the afternoon, she puts her cart away and takes out the agenda with all her cases as the judge’s assistant.
María: Maya justice because…
Melissa: Doña María isn’t fluent in Spanish, so the judge translates what she says for me.
Zapeta: Eh, for me, Maya justice is the correction we give to people so that they don’t do the same things they did again, and so that they repent for what they’ve done.
Melissa: Do you like your job?
María: Well, the truth is I do because I also…
Zapeta: She, well, what we find is that the punishments that are administered in the Maya justice system aren’t the same as in the other system, you see? Because, in that system there’s jail and what she has seen is that generally that doesn’t restore people. On the other hand, in our case, we have seen that people are restored.
Melissa: They are restored, in other words, they change. But it’s not just that they don’t do it again. Zapeta says that Maya justice is also focused on prevention.
Zapeta: The prevention of misconduct, of crimes, or conflicts and that occurs through pixab.
Melissa: Pixab. Which in Spanish means “a series of recommendations or norms” regarding people, the community and its resources. Things like not contaminating the river, not chopping down a tree without permission, not stealing, etc. And if an adult doesn’t comply with the norms and is reported by someone, the judge is the one who decides the punishment. It can range from a fine or community service to, well, the maximum penalty: the xik’a’y, in other words, the lashes.
The lashes are only applied to the back, with tree branches. But of course, not just from any tree, but the same kind of tree that they have been using for more than 500 years: the quince tree. It’s used because it smells good, and it really does have a nice smell. Unlike the criminal…
Zapeta: Who stinks, whose life is poor, so that it has a fragrance. And we look for branches that are straight so that the person and their life can be set straight again, and so they don’t keep twisting.
Melissa: It can be between 5 and 40 lashes. But Zapeta has never gone as far as sentencing someone to 40 lashes because he believes it’s enough to kill someone. The most common is between 9 and 20.
Giving the lashes is the family’s job. Usually the parents.
Zapeta: And if not, if they don’t, let’s say, have it in them, or they don’t have the moral authority to do it, then it falls on us.
Melissa: And the punishment works more or less like this: the guilty party is tied up by their hands and feet. They are made to go through town on their knees. They are taken through the market and through the main road. Their relatives go with them and Zapeta always leads the group. When they make it to the town square, they go up on a platform and…
In my six days with Juan Zapeta, I never the lashings, no. But on Youtube you can find several videos of these trials.
Generosa Uriza: But it leaves them purple, purple! It’s a shame to see them, how they cry and scream.
Melissa: This is Generoza Uriza. She sells tortillas in the square. She told me that she has seen at least 60 trials held by Zapeta.
Generosa: The relatives cry. They bring them here walking and there are others who they bring on their knees, their knees, their knees, in their knees they bring them, their knees. Until they come here to the park and then they hit them. And everyone comes to watch because it serves as an example so that everyone realizes that they shouldn’t do that, they say.
Melissa: Even though I didn’t see it, I spoke with many people who told me the same thing. They talked about the violence of the xic’a’y, about how brutal it is. But what surprised me is what Zapeta said.
Zapeta: I can’t explain it but, but it hurts you, it makes you sad. It’s a mixed feeling because when someone, let’s say, you catch someone in a real crime, you feel angry at that person who committed the crime… But when they’re on their knees about to get, let’s say, their punishment, you forget everything; the sadness comes, the pain, the shame, it feels so awful. But it’s something that has been validated. It must be done.
Melissa: It must be done, the judge says. And to understand why, well let’s talk about the context of Guatemala for a moment. We are talking about a country that suffered a civil war that lasted 36 years. A war that cost more than 200,000 lives. The majority of which were indigenous. There was torture, horrible massacres and, according to the official report by the Historical Clarification Commission, more than 4,000 women were raped during the conflict. It’s a terrible figure, but the indigenous community and many activists say that in reality there were many more.
The Maya justice system exists in the context of an almost total lack of justice for these crimes. Which is not to say that it is a response to the war, or something invented later. We’ve already said that it’s been around for more than 500 years. But the importance of their own justice system, belonging to a community that has suffered so much… Well that’s understandable.
And well, Quiché, the department where Zapeta works, was one of the zones that was most affected by the war. After 14 years of negotiations, the guerrilla and military forces signed a peace agreement in 1996.
Since then there have been agreements, two referendums and a lot of controversy. But today, this is the situation: according to the constitution, the only entity responsible for administering justice is the State. Which means that, despite the respect and authority he may have within his community, Juan Zapeta is legally in a grey area.
And not just him, obviously. The whole Maya justice system is. But for many indigenous people, the constitution is less important than tradition.
So, that legal ambiguity is also ambiguity in practice. For example: In Quiché when a person is detained they can be judged by either of these two systems. But it is the victim and the community who decides before they bring their complaint to the judge.
Zapeta tries the accused whether or not they are an indigenous person whenever the crime is committed on indigenous land.
But there are some exceptions: for instance, in the Maya system there is no incarceration or death penalty, so if the victim wants either of those options, they can go to the official system. Or if the case calls for greater scientific rigor –DNA testing, for example– the Maya judge will defer his authority and pass the case along to the official justice system.
But the opposite can happen as well. Due to lack of funding and personnel, the official system also makes exceptions and leaves the indigenous justice system in charge.
And well, there is also one relevant detail: there are 350 municipalities in which there is no state presence. None. So in these areas, of course, only the indigenous system operates.
But well, that doesn’t mean that there always is coordination.
The central police station is three blocks away from the square where Zapeta holds his trials. And for some people there Zapeta is a, let’s say, complicated figure. This is the Quiché chief of police, Sergio Morales.
Sergio Morales: There have cases where, the truth is, this gentleman delivers justice when he should have left it to the police or specifically to state agents.
Melissa: According to Morales, Zapeta violates many rights in the process…
Morales: Because they enter people’s homes without permission, without authorization, without a court order and they take people away. In other words, that is where their purpose stops making sense a little bit. Eh, I don’t think he has really helped. I don’t think so, because to me he is a bad leader, he doesn’t contribute in the slightest, considering to what he could do.
Melissa: Morales says he’s worked with other indigenous leaders that have been more cooperative with the police. In fact, Morales has a clear vision of what Zapeta’s role should be, and it isn’t exactly the role of judge.
Morales: Let’s say he works on his side and we work on ours. We’ve always had meetings with him where I’ve always told him we need to be united. I tell him, “Don Juan, you need us and we need you.”
Melissa: Morales thinks that Zapeta should act as a spiritual leader. He should only talk to people, act as a mediator, and explain to them the role of the police.
He also emphasized that there were no lynchings in his department in the previous year. In other parts of Guatemala, when official justice isn’t active, lynchings are common. For Morales, the fact that there haven’t been lynchings in his department is a success on the part of the state justice system alone. Not a joint effort with the Maya justice system.
For his part, Zapeta says that he wants to collaborate with the police but he sees the relationship differently.
Zapeta: The state justice system wants to make us invisible, it doesn’t recognize us, it doesn’t respect us.
Melissa: He said that when he and Doña María administer a punishment, sometimes the police interfere. And he doesn’t like it at all.
Zapeta: Because what we want here is to practice judicial plurality in Guatemala, in other words we want our system to be worth as much as the other system; we want to be worth as much as a judge is.
Melissa: And maybe someday in Guatemala both systems will be recognized as legal. But for now, one of the most controversial issues is the xik’a’y.
Morales: The constitution mandates that we guarantee the physical integrity of all people.
Melissa: This is Morales again. So, if Zapeta is giving lashes to someone who’s been judged by Maya law, what do the police do?
Morales: If they’re hitting someone, then there’s already been an assault, so we sometimes we chose to do nothing, but I told them: “If you are going to hit people, I will not be involved. I don’t condone that. You know that as a policeman I don’t condone that kind of situation.”
Melissa: Which means, legally speaking, once he implements that punishment, Juan Zapeta becomes a criminal. But the police have never detained Zapeta for administering xik’a’y. But that doesn’t keep complaints from being filed against him.
On a visit to the Palace of Justice, I learned that Juan Zapeta is the man with the largest court record in Quiché. More than 40 open trials. In general, the people who file complaints against him are people who have been declared guilty in the Maya system who are not happy with their penalties. So they go to the official system for help.
And here is an important detail: although Zapeta applies Maya justice to indigenous people as well as non-indigenous people, the majority of these complaints come from indigenous people –his own people.
Zapeta: I don’t know if behind them there is, let’s say, some kind of dark motive. There are people who are trying to hurt our own system. And some indigenous brothers and sisters join them.
Melissa: And what they reject, specifically is the xik’a’y.
But the accusation that follows Zapeta the most, and the one he gets the most criticism for, has nothing to do with his role as a Maya judge. In 2012 he was accused of raping a 6 year old girl. No one was willing to comment on this case, but the district attorney’s office confirmed that it has been closed due to lack of evidence. You can still see graffiti in the center of the city that reads: “Juan Zapeta rapist”
Zapeta: Really, Melissa, it hurts in my soul, it hurts in my soul because there have been scathing accusations. Now things have calmed down, but before people accused and accused and accused; and I showed up and everything disappeared because they proved that, well, I am innocent of what they’re accusing me of.
Melissa: What the complaints against Zapeta do show is that there are people in the community who do not agree with certain aspects of Maya justice.
And it seems to be a generational issue. The young people I spoke to had no doubts about rejecting xik’a’y; while many in the older generation are still in favor of it.
For the past year, an indigenous group has been asking for a new referendum concerning xik’a’y. They still don’t know if it will be held.
But Zapeta has other things to worry about, maybe even more serious concerns. Since he started his term, he has received more than 100 death threats. In fact, Zapeta told me that two hooded motorcyclists threw a large rock at the window of his car while he was driving. It broke through, but fortunately it didn’t harm him.
According to Zapeta the threats come from people that he has accused of crimes.
Maybe that’s why Zapeta -like doña María- tells me that he feels tired. He’s already 60 years old and the job is exhausting.
Zapeta: Sometimes we don’t sleep, sometimes we don’t eat.
Melissa: I can attest to that. They call him all the time. The days we spent together, the phone didn’t stop ringing. He tells me that sometimes he has a meal ready and he’s just about to sit down to eat… and they call.
Zapeta: “Hey” I say to my wife, “hold onto my food, I’ll be right back”. “Eat already, man!” — “No, I have to go.”
Melissa: And he goes. Because it’s his responsibility.
But that leaves me with some questions. Who will replace him? And will the next Maya judge have the same vision as Zapeta? Will they keep administering the xik’a’y if the young people seem to reject it?
In Quiché there are 20 mediators who can replace him. But for now, there are no candidates.
Daniel Alarcón: In June of this year the Guatemalan government announced that it will reform the constitution. Among the topics to address: the relationship between Maya and official justice.
Melissa Silva Franco is a journalist and documentarian based out of Spain. Thanks to Pedro Ixchiu for his help fact-checking this story and thanks to Oswaldo Hernández as well.
This story was edited by, Martina Castro, Camila Segura, Silvia Viñas and by me. The sound design is by Martina.
The rest of our team includes Luis Trelles and Barbara Sawhill. Carolina Guerrero is our executive director.
Radio Ambulante tells the stories of Latin American — they’re all available at radioambulante.org. I’m Daniel Alarcón, thanks for listening.
Translated by Patrick Moseley