Tuesday, January 22, 2013

About the PERMANENT STATE OF EMERGENCY in the Mapuche communities in Chile

Source: http://cidsur.cl/2012/12/del-estado-de-excepcion-permanente-en-las-comunidades-mapuche/
Posted on December 28, 2012 by CidSur

During the last few weeks there has re-emerged in the Chilean media, the political and social problems between the Chilean state and the Mapuche people, where concepts such as terrorism, crime, international support and even the specific request to decree the state of siege are those that predominate (for decades now) in the statements of businessmen, landowners and the government representatives of the day.

Certainly, the manner in which the State addresses this issue, essentially complex, has been nothing more than discriminatory policies of reaction, either by invoking emergency laws to suppress and militarize communities or by creating narrow spaces of dialog confined to marginal issues, political and territorial irrelevant and reproducers of state welfarism, such as the creation of an Indigenous Development Area in the town of Ercilla[1]. Who can question that this area of development was created specifically in response to the demands raised by the communities that have historically claimed their political and territorial rights in the Province of Malleco?

In fact, the recent raids and arrests of Mapuche leaders are due precisely to this policy of reaction, in order to demonstrate results to the public. For them there is nothing simpler than the imprisonment of those community members recognized for their leadership within their respective communities and who have had to suffer long periods of imprisonment for their recognized militancy for the Mapuche land claims.

The attribution of criminal responsibility to the Mapuche people in general and its leaders in particular, of any fire in the provinces of Arauco, Cautín or Malleco even before the completion of the first steps of the investigation, obeys to a discriminatory policy that allows to distract attention from the historic demands of the communities for the return of their territorial spaces.

Then, the invocation of the law N º 18.314 on terrorist behavior only when the accused belongs to Mapuche corroborates this discriminatory policy of reaction. A paradigmatic case is the introduction by the government of Chile of a complaint for violation of the anti-terrorism law for the fire in the city of Carahue dated January 5, 2012, which killed seven forest brigade members. After a long investigation, only one person has been convicted, who was fined for violation of the Forest Act, having produced coal in the area without appropriate protective measures. Of course it was not a Mapuche, otherwise the result would be different. 

In this way the arbitrary invocation of a special law such as the anti-terrorism law allows the undermining of the Mapuche claims, accepted as valid by the vast majority of the Mapuche population. Thus, the terrorist can not be included in the democratic debate precisely because it undermines the foundations of this system which is respect for human rights. They are marginalized. Their claims delegitimized. Thus, the Constitution recognizes in its Article 9 and sanctions, in Article 17, with the loss of citizenship to those convicted of crimes which the law defines as terrorists.  

However, not only the conviction under this exceptional law causes the delegitimization of the counterparty. This also may be indicated when Law No. 18,314 on terrorist behavior is invoked by the prosecution or by the Government of Chile, even though the courts then reject that classification. 

It is noteworthy that the only branch of government legally competent to qualify a fact is the Judicial Power, who noted on 3 occasions during the years 2011 and 2012, that actions carried out in both the Eighth and Ninth Region not constitute terrorist offenses. In fact, both the Oral Criminal Court of Cañete in the Arauco Province by a judgment dated March 22, 2011 in cause No. 35-2010 RIT, the Oral Criminal Court of Temuco in the Province of Cautín by a judgment dated October 8, 2011 in cause No. 158-2011 RIT and the Oral Criminal Court of Angol in Malleco Province by a judgment dated August 29, 2012 in cause No. 58-2012 RIT have dismissed the terrorist rating for a series of crimes framed within the Mapuche social protest.

However, this law does not prevent that all investigations are undertaken under this Act, or that both the Public Prosecutor and the Government of Chile invoke it again and again, all of which results in all measures of investigation carried out by the police to be framed within the Terrorism Act, which not only causes a detriment to the procedural safeguards of the accused, but also allows to treat them as such in the media, at least until the final judgment determines otherwise thing, which certainly is never communicated with the same strength with which they are charged.  

To this we must add that during this year the Hon. Court of Appeals of Temuco by judgments dated November 21, 2011, July 5, 2012, September 3, 2012 and December 7, 2012 has ordered the Chilean police that its procedures must be conducted in strict compliance with constitutional and legal regulations in force, taking special consideration regarding minors. Notwithstanding the foregoing, the police violence has not been corrected which has become evident with a new appeal for protection received by the Hon. Court of Appeals in a ruling dated December 21, 2012 in Case No. 838-2012 pointing to the effect that: "The rigor deployed by the police to confront a group of people, who must ensure in its actions to not cause greater harm than necessary to give due effect to the duty to control groups of people, exceeded the acceptable framework with which it affected the rights and guarantees of the protected ... ". (Emphasis added).

In this way, looking at the actions of the State of Chile through the Attorney General, the police and the government itself, it is safe to assure that in the areas inhabited by the Mapuche people the reality of their leaders and their communities is that they live in a permanent State of Emergency that is not far away from a state of siege or internal war legally declared, just as congressmen and businessmen in the area have requested.  

[1] Section 26 of the Indigenous Peoples Act states that: "The Ministry of Planning and Cooperation, at the proposal of the Corporation may establish indigenous development areas wich will be areas where territorial bodies of state administration focus their action for the benefit of the harmonious development of indigenous people and their communities. "

By Centro de Investigación y Defensa Sur.


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