Customary Law of Indigenous Peoples in National Legislation

Abstract

The lack of clarity to apply the customary law of indigenous peoples causes inconveniences. Positive legislation protects the right of native peoples to apply their own cultural solutions to problems raised among members of their communities. However, this fact represents an inconvenience for justice operators when granting a procedural exit or an alternative measure in criminal proceedings. In this context, situations such as: the native indigenous peoples of Paraguay, the constitutional recognition of customary law, the most relevant legal rights for the different communities, the alternative measures and the sanctions contemplated in the customary law according to each ethnic group are addressed. or linguistic family as well as the customary norms that violate the principles and guarantees established in the National Constitution, the human rights internationally recognized by the country and against Convention 169 of the International Labor Organization, hereinafter ILO. Also, it is analyzed if the application of the positive law implies the cultural alienation of the natives, the institutional advance of the Public Ministry in the matter of application of the Customary Law. This approach is due to the fact that justice operators frequently encounter the difficulty of establishing in which cases the application of customary law corresponds and in which the positive law in force can be applied, and what procedural solution could be given according to the legislation. valid.