The formalization of new regional indigenous governmental structures in the zones influenced by the Zapatista Army of National Liberation (EZLN) is not only a revitalization of the zapatista political process, but a significant step in constituting new forms of indigenous government and strengthening their process of autonomy.

At this moment, there is controversy as to whether the five Good Government Councils (JBG in Spanish) are legal or not, whether they constitute a fourth level of government, or whether the prevailing legal precedence– national or international – can protect them. These matters are all important to consider from the point of view of the state and federal governments. In my judgement this point of view lacks real relevance to those who decided to construct the JBGs; those who consider that the failure to implement the San Andrés Accords made this measure necessary. As the zapatistas themselves have noted, this is an act of rebellion; they have no intention of justifying the existence of the JBGs to a constitution that does not recognize them.

The structure of the JBGs responds to the need to organize the public policies of the zapatista governments in their territory on one hand, and, on the other, to deal with the sometimes-chaotic support they receive from a multitude of NGOs. These Councils are meant to be a bridge between the local political structure and the external entities with which these municipalities maintain important relationships. In response to frequent accusations made by other indigenous groups about the authoritarianism and intolerance of the zapatista structure, the JBGs will also regulate the acts of the Autonomous Municipal Councils. Under the JBGs, municipal councils are strengthened by a regional policy and, at the same time are required to function publicly in accord with the moral principles that under-gird them. This is especially important for the JBGs now; their plans and their structure bring them face to face with the principles that under-gird the national legal system.

Under the political constitution of the JBGs, the zapatistas are trying to demonstrate that the first step in the process of the legal recognition of the indigenous legal system is not only intended to give constitutional and legal backing for what already exists in tradition and custom, but to create a context in which new institutions and political systems can develop. Although these institutions and systems can firmly base themselves in ancient principles and cultural concepts, they have to be new and creative in order to function in the dynamics and circumstances of the contemporary context.

At the same time, this process of creating new forms of indigenous government contradicts the bureaucratic and accepted idea that political institutions can exist if, and only if, they exist in accord with a formal legal process of creation based on laws generated from within the existing legal system. As we can see, if the legal system does not have the capacity to create the institutions that society demands at a specific moment, that same society can construct new political structures which will create a possible confrontation with the existing order. Depending on the strengths of both the State and the social movement, the latter may or may not press for formal legal recognition. In other words, the political struggle of the indigenous people cannot be limited to just their legal rights, but must include the creation of political institutions that allow them a good life, according to their culture and the realities of today’s world.

The fact that national law does not support the JBGs raises a series of questions and corresponding risks. I would like to reflect here on two of these: 1) the right these new political structures (i.e., new in their formation although based on a process from a previous constitution) have to govern non-zapatistas that live in their areas; and 2) the legal security that the non-zapatistas can have under such governments. Can the JBGs require obedience from someone that does not recognize their rule?

In some sectors it is common to suppose that to raise these questions is to play into the hands of the State, the PRI, caciques, finqueros, the federal army, imperialism, i.e., anyone opposed to the insurgent concept of “bad government”. Nevertheless, those who have a broader view know that to respond to these questions, and other dilemmas of the self-determination process, is a way of strengthening, not weakening them. As practically everyone knows, the Tzotzil, Tzeltal, Cho’ol and Tojolobal indigenous groups as well as poor campesinos and others equally marginalized that are not related to the zapatista movement live within the territories under the influence of the rebels. Although in many cases these non-zapatistas are connected to outside interests and questionable local interests, this does not mean that these connections are inherently alien, venial or perverse. This is reality, recognized by everyone, as shown in a speech by Commandante David during the act of formalizing the JBGs, when he described the non-zapatista indigenous people as “brothers of race, color and history”.

Although at times it seems difficult to accept, zapatista regions, just like almost all indigenous regions in the country not only represent national heterogeneity, but also are themselves heterogeneous. In other words, in the territories that the Autonomous Councils and the JBGs govern, just as in almost all indigenous regions, there is a plurality of identities, cultures, politics, and religions resulting in conflicts and internal differences. In many cases this diversity is coherent and consistent with values and cultural identity of those groups that fight for recognition of internal differences.

Thus, we are can propose two questions: 1) If it does not come from the law or our supposed democracy where do the JBGs get their legitimacy to govern their territories? 2) How can the Autonomous Councils (municipal level) and the JBGs (regional level) aspire to govern the non-zapatistas that live within their territories?

Because these questions are relevant not only to the autonomous Chiapaneco municipalities and regions, but to all indigenous regions that would follow this road, I am going to propose some typical sources of legitimacy for indigenous authority located in different parts of the country.

The first source is representation, that is the legitimacy that representative authorities derive through election by assemblies of citizens, or by those persons recognized, by common agreement, as having the power to name representatives.

Another source is tradition or custom, i.e., when the process of naming leaders responds to a form that has existed in the community for generations. This may or may not be democratic and representative. There are communities where election falls to members of certain families or lineages; communities in which the leader names his successor, with or without the approval of an assembly; communities which directly elect those who take on specific responsibilities; and communities where the tradition is that a small group, for reasons of ancestry, status, leadership, etc., exercise political power. Even when these oligarchies can take on these governmental functions in a wise and responsible manner and carry them out in conjunction with the national political system; they tend to become corrupt indigenous caciques. This does not mean that all non-democratic traditional governments are inherently bad. They can be viable if, as the JBGs have done, indigenous people develop controls based on local mores so that the non-elected leaders carry out community programs to improve life. A non-democratic indigenous government, although just and legitimate, will always have a strike against it. It will always have to prove that it can articulate, by word and deed, the progressive ideals of the contemporary indigenous movement.

A third source of legitimate indigenous authority is the honor and prestige recognized in the person who holds an important position. Often these originate from the services the person has given the community; the money that they contribute for fiestas and rituals; and today, also from political or academic honors from outside the community, including military or political leadership in some cases. Normally, this recognition is endorsed by an assembly, some council, and/or by an appropriate ritual.

In the opinion of the majority of contemporary political analysts, unless leaders come to power via democratic procedures, discomfort and distrust result. Those of us who put our faith in intercultural law and politics believe that any of the forms described will be legitimate if they demonstrate that they are morally based in a specific cultural context, have wide acceptance, have the ability to bring order to the society and lead it in ways that conform to its concept of a good life. Thus, in my judgement, the legitimacy of the zapatista JBGs, as of all indigenous authorities in the country, existent or that could exist, can come from any of these sources of power if it fulfills those prerequisites that would make it viable and legitimate. In addition, if the JBGs become recognized by the national legal system, it will be a plus that should not be looked down on. This would be a plus that provides opportunities not only for the indigenous institutions, but for the entire national legal system, as well as for all those that live within it. Such recognition would enable us to co-exist in a better society, more orderly, more just, and of course, more appropriate to our diverse cultural situation and history of political and economic inequality. In addition, this recognition would provide the possibility of adjusting the political structures of our country in response to a changing world – which reflects the serious crisis in the political parties and the current model of our nation state.

Because all of this, I believe it important to insist that the legalization of indigenous rights by our national judicial system in today’s political context is desirable, though not an indispensable prerequisite to the development of new local or regional institutions. We should be able to expect the state to revise its legal structures to include the recognition of these new local political institutions in the foreseeable future. Otherwise indigenous regions will remain separated from the rest of the country. Establishing political entities before they are legally recognized is the means, not the end.

We can say that if the JBGs and the Autonomous Municipal Councils are not recognized by the State, they will be very vulnerable unless there is wide consensus and acceptance by those whom they govern.  We can suppose that among the EZLN support base this has been achieved, but how can one achieve this acceptance by non-zapatistas, who in many cases intend to continue as citizens of the state and do not accept the legitimacy of these new autonomous structures?

This is not an insignificant question. The response of the JBGs and Autonomous Municipal Councils to the non-zapatistas will determine what type of autonomy is being consolidated in Chiapas and whether this model can replicated by indigenous movements in the rest of the country.

The JBGs and the Autonomous Councils can make one of three responses to these people. The first is to convince non-zapatistas to accept the rule of the JBGs, rejecting any state institution that seeks to exercise parallel jurisdiction, that is, to legitimize themselves with the non-zapatistas as a government that provides services and attends to their concerns. This would be the most favorable and desirable scenario, but the most difficult in light of experiences in Oventic. A very high standard of impartiality and tolerance were established here when confronted with conflicts with non-zapatistas. The difficulty arises because non-zapatistas enjoy governmental support that the zapatistas have chosen not to accept; this legitimizes intervention by the state government. On the other hand, it will be difficult for non-zapatistas to accept the legitimacy of the municipal and regional autonomous governments when they do like them and they are not advantageous, leaving them the option to turn to those entities whose resources and legitimacy come from state. In any case the process of legitimization of autonomous governments is not an easy road.

The second option of the JBGs in regard to the non-zapatista population would be to govern them whether they recognize the legitimacy of the JBGs or not. This is the reality in any country, no matter our preferences or the government’s legitimacy. We are all governed by outside institutions and rules that we are obliged to follow because they are supposedly based on moral principles that justify themselves without regard for citizens’ desires. Citizens’ only prerogative is the opportunity to participate in the re-election of those who personify the institution at any given time. This would be the argument used by the zapatistas to govern the non-zapatistas no matter what they would want; clearly treating them justly under rules similar to those that exist for the whole population, just as Comandante David (member of the CCRI of the EZLN) stated. Nevertheless, given the possibility that the non-zapatistas do not meet voting criterion to participate in the election of the JBGs, questioning this system is important. In this scenario, the risks of disagreement concerning the legitimacy of the state are significant. In this scenario, the EZLN as the armed expression of the movement would demand that the governed respect the new institutions and, in the long run, accept the authority of the JBGs. In this case, there is a weak government that is likely to increase the disagreements, and be confronted by powerful interests and, in the final analysis allow little in the way of viability for Zapatismo.

The third option is not to govern the non-zapatistas; that is, create a governmental system whose jurisdiction would not be over a geographical area, but over persons. In this scenario, the JBGs would govern only those in their area who subscribe to zapatista principles and support their structures. This would result in less compromise for the new authorities. Nevertheless, it would imply a lessening of the indigenous demands for recognition of their cultural norms in their territories, implying they were only for certain people. On the other hand, the implications of concurrent political policies on community life would make it difficult to govern. It means adherence to different rules and institutions according to the group to which one belongs, as is the situation now in these areas. In addition this would give rise to a proliferation of “autonomous governments” in the same region, protecting their own interests: paramilitary groups, narco-traffickers, churches, businesses, etc.

As we can see, each of these options represents advantages, justifications – and serious risks. It will be the ability and political astuteness of the local actors that will determine the course to follow. So, if the JBGs are dealing fairly with all of their constituents, the regional authority of these new structures is already functioning. It would be desirable that all those “who are not in agreement with or don’t understand” the just cause of the zapatistas (speech of Comandante David at the inauguration of the ‘Caracoles’, September 9, 2003), not only come to respect this new governmental structure, but participate in it and accept it as a way to better their lives and respond to a state that has not been able to justify itself in these territories. Nevertheless, the challenge that this internal heterogeneity represents to the JBGs is one they must resolve. It seems to me that this sort of complexity means that successful governance over a diverse territory requires the same sort of diversity.  Perhaps the next step in the process of autonomy is defining the political participation of those “others”, keeping their separate identity in the emerging regional political structures.

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