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Ecuador’s Constitution recognizes the indigenous peoples’ collective right to use and apply their own legal systems in cases of internal disputes. The Constitution, however, sets as a limit the respect of human rights. This Article examines one particular human right: the right to remain silent. After describing the findings of three separate field research trips to Ecuador, this Article concludes that indigenous legal systems (ILS) seem not to provide such a right to the offender. The absence of this right could be explained by three reasons. First, ILS do not use lawyers as intermediaries between the adjudicators and the offender. Second, ILS usually do not resort to technical evidence or expert witnesses, speech being the main tool for proving or disproving the allegations. Third, ILS usually seek restoration and rehabilitation rather than retribution. To achieve these goals, it is believed that offenders should confess their wrongs and ask for forgiveness. In Western countries, the right to silence is based on a particular conception of individual–state relations that is not necessarily present in the indigenous world.
Furthermore, the right to silence is counterintuitive and difficult to reconcile with lay morality. Parents, teachers, or employers would not accept silence if they had well-grounded suspicions that their children, students, or employees made a mistake. Western societies created this right only for the sake of the accused in criminal proceedings, following a logic that deems false positives (the wrongful conviction of the innocent) much costlier than false negatives (the wrongful acquittal of a criminal). ILS seem to follow a different logic, similar to the one used in the West in civil cases (where silence is not permitted). ILS make no distinction between criminal and civil law; nor do they use imprisonment as punishment. Silence in these types of settings is not as necessary as in those where the accused is threatened with jail time. This Article suggests that the focus should not be on whether the offender was requested to speak, but rather on the tactics employed to obtain a statement. I will show that certain tactics may be regarded as persuasion, while others could safely be classified as ill treatment.
