La declinación de competencia : un camino para la coordinación entre la justicia indígena y la justicia ordinaria

The book "Declination of Jurisdiction: A Path to Coordination between Indigenous Justice and Ordinary Justice" is aimed at strengthening the process of intercultural dialogue within the judicial system. It considers that the constant struggle of the Indigenous movement for the creation of a new state has led to the incorporation of collective rights into the constitutional and legal reforms of American states. Following the 2008 Constitution, the Ecuadorian state ceased to be a pluri-cultural, multi-ethnic state and became an intercultural and plurinational state.

With the establishment of this new intercultural and plurinational state, legal reforms were introduced to reflect this character. One significant topic included in the innovation of the Organic Code of Judicial Function is the Declination of Jurisdiction, defined as a procedural system for cooperation and coordination between ordinary justice and Indigenous justice, a right exercised by the authorities of Indigenous communities, peoples, and nationalities. This mechanism is activated through a summary procedure, requiring the sworn declaration of the Indigenous authority for the petition to be accepted.

It is important to clarify that the summary procedure for the Declination of Jurisdiction is not the same as that established in COGEP (the General Organic Code of Processes). It is an exceptional and exclusive process for Indigenous authorities, not for the defendant (COFJ 2009, art. 345). The law clearly establishes that judges who become aware of a case under Indigenous jurisdiction must decline their jurisdiction.

The main difference between the summary procedure in COGEP and that of the Declination of Jurisdiction lies in the simplicity of the former, which is conducted in a single hearing in two phases: the first for preliminary issues, setting the points for debate, and reconciliation; and the second for evidence and closing arguments. In contrast, in the Declination of Jurisdiction process, the Indigenous authority must, through a sworn statement, demonstrate their status as an Indigenous justice authority and their competence to judge and sanction the offender within the community. Additionally, within a three-day period, they must prove the relevance of transferring jurisdiction from ordinary justice to Indigenous justice.

The Constitutional Court has developed jurisprudence regarding this right. In Judgment 134-EP/20 dated July 20, 2020, the court established that, upon receiving a request for Declination of Jurisdiction, the judge or tribunal must verify the existence of an Indigenous justice process and, if found to be true, cannot refuse to grant the request. This jurisprudence removes the discretionary power of the judge and fully enforces the constitutional recognition of Indigenous jurisdiction. Furthermore, the ruling emphasizes that no ordinary judge can review cases under Indigenous justice. Should there be dissatisfaction with a final decision of Indigenous justice, the appropriate route for disputing that decision is through the extraordinary protection action.

Under this logic, it is crucial to approach a genuine process of coordination and cooperation between Indigenous and ordinary justice. This understanding builds an intercultural justice system that strengthens the intercultural and plurinational state. The analysis in this work begins with a monist and pluralist approach to law, highlighting two philosophical perspectives: the theory of legal monism developed by Hans Kelsen, which argues that "other national laws [besides state law] and international law should not be considered valid sets of norms but mere facts devoid of legal significance" (Kelsen, 1960, p. 207). In contrast, Boaventura de Sousa argues that "legal pluralism is a theory based on the idea that two legal orders can coexist within a given space and time, opposing the monopoly of state-produced legal norms" (De Sousa, 2011).

The pluralist theory maintains that the state is not the only source of legal norms; social groups distinct from the state also have the legitimacy to create them, provided they establish their objectives, define mechanisms to achieve those objectives, and assign specific roles to individuals within the group, ensuring that all contribute through established means to the collective goal (Bobbio, 2005, pp. 10-13).

The second part of the book addresses the principles of equality and non-discrimination, distinguishing between formal equality, material equality, and non-discrimination. This analysis is based on constitutional precedents set by the Constitutional Court and the Inter-American Court of Human Rights (IACHR).

The third part examines the jurisdiction and authority of Indigenous leaders to resolve conflicts within their territorial scope. It distinguishes between ordinary and Indigenous jurisdiction, recognizing that Indigenous customs and traditions serve as the foundation of Indigenous law, granting these authorities the power to adjudicate internal conflicts.

The fourth part explains the summary procedure in detail, focusing on three steps that must be followed for the ordinary judge to verify and grant the Declination of Jurisdiction. This section emphasizes the need for cooperation between strong (state) law and weak (Indigenous) law, allowing the complexity of the former to be simplified by the latter for more efficient resolution of long-pending cases.

In conclusion, the book argues that while the Organic Code of Judicial Function provides for the Declination of Jurisdiction, this right has been underutilized due to the lack of commitment from ordinary justice operators to recognize the legal and constitutional value of Indigenous justice decisions.