15764: Nadal: RE: 15632:Proofs: Elected Dictator Jean Bertrand Aristide goes to jail. Part 3. (fwd)

[Bob Corbett <corbetre@webster.edu>]

From: Olivier Nadal <o_nadal@bellsouth.net>


Elected  haitian dictator Jean Bertrand Aristide goes to jail for crimes of
High Treason (Violations of the 1987 Haitian Constitution), violations of
human rights, corruption, and drug trafficking.

Part 3

 I -  INTRODUCTION
The events that occurred in Haiti September 29th and 30th, 1991 and forced
President Aristide to leave the country were a coup performed by the haitian
Army and recalled the democratic institutions of the country in order to
heap up the empty institutional space created by the events, with respect
due to the Constitution and democratic principles. The National Assembly
used its share of national sovereignty to apply the provisions of the
Constitution as stipulated by public law. The aim of this document is to
explain how we got to this exceptional situation , less than one year after
Father Jean Bertrand Aristide was elected at the presidency of Haiti.


II -  THE JURIDICAL GROUNDWORK FOUNDATION OF HAITIAN POLITICAL REGIME
The 1987 Constitution that was massively voted by  haitians on March
29th,1987, like all previous haitian Constitutions setting the rules for
public powers. The only difference with the others is that this one was
ratified in a atmosphere of euphoria and regain of freedom after 29 years of
Duvalier's dictatorship. Elaborated in a particular context of
post-duvalierism , this Constitution could not have been conceived in any
other way than antiduvalierist and liberal. It was then quite normal that
the Constituents expressed through the 298 provisions of the Constitution
the fundamental revendications of the people ; particularly those concerning
the control of the Excecutive by the Parliament ; decentralization, social
justice, independence of judiciary institutions and the Army from political
influence. Nevertheless,  all Constituents and jurists agreed to the fact
that the Constitution is as indivisible whole whose application rules
leaders as well as followers in their relationship and deeds.


III -  FATHER ARISTIDE ' S OATH
On February 7th, 1991, Father Jean Bertrand Aristide takes oath on the
Constitution for a five years term as President of Haiti. He swears before
GOD and the Nation " to faithfully respect the Constitution and make others
respect it, as well as the laws of the Republic" (Provision 135-1 of the
Haitian Constitution).

Provision 136 of Haitian Constitution proclaims : " The President of the
Republic, Head of State is responsible for the respect and application of
the Constitution and the stability of the Institutions ".


IV- ARBITRARY DECISIONS OF ARISTIDE 'S REGIME

1.- Dismissal of five Generals and one Colonel in active service.

- Provision 143 of 1987 Constitution proclaims : " The President of Haiti is
the nominal Chief of the Armed Forces but he   never gives direct orders to
the members of this army ".

- Provision 264-1 proclaims : " The Armed Forces are effectively commanded
by a General Officer who has the title of " Supreme Chief of the Armed
Forces of Haiti ".

- According to provision 267-3 : " The military career is a profession. It
works according to hierarchy. The conditions of admission , promotion,
ranking, dismissal, retirement are ruled by the Armed Forces Laws ".

Provision 267-3, second paragraph is written as follows :
" The military cannot be dismissed , unattached or retired before time
without his agreement ". In case the agreement is not granted, the party can
appeal on the competent court.

On February 7th ,1991, in his investiture speech, President Jean Bertrand
Aristide publicly asked Lieutenant General Herard Abraham , the Supreme
Chief of the Army to dismiss five generals and one colonel who were in
active service. He also asked him to have a new staff at the headquarter. He
specified the positions and rank for the nominees.

Attending people were petrified but applauded the political trick made up to
push aside from the military institution high rank officers who were too
close to the prior transitional regime, according to the President.
Nevertheless , as far as law and legality are concerned , it was a flagrant
violation of the 1987  Constitution according to provisions 143-1, 267-2,
267-3. It was also a violation of the Haitian Armed Forces regulations.

2.- Departure ban against the ex-Chief of State Mrs. Ertha Pascal Trouillot
and against all the officers in active service.

On February 8th ,1991, a letter from representative of the Judiciary
Commission to the President's Secretariat. Mrs. Monique Brisson, is
published. In this letter to High Commissioner she asked to put a ban
departure for 162 haitian citizens in which they were forbidden to leave the
country. Among those people were the former head of State Mrs. Ertha
Trouillot , the Ministers of her Government , her personals advisers and
several directors general of public institutions.

Even if the action is good in itself, it remains questionable not only
because of its content but also because of the illegality on the procedure
that followed. Such a law could not be enacted by anyone else but the
Government  Commissioner upon request of an investigation or the excecution
of a Court decision . The Judiciary  commission to the President's
Secretariat which is a private and ad hoc institution , whose existence is
not foreseen by the Constitution had therefore no qualification to ask the
Public prosecutor to act like he did in this case.

Besides, on those lists also appeared the names of Mrs. Trouillot's private
advisors, Director General of Ministries and civil servants who were not
responsible of public funds.

Despite several protests from the concerned parties , the press and other
persons, the illegal measure were maintained. In August 1991, approximately
200 small employees and officials from the National Insurance Office (ONA),
were dismissed and told that they could not leave the country.

In the meantime, at the beginning of April, the former head of the Nation ,
Mrs. Ertha Trouillot , spent one night at the National Penitenciary of
Port-au-Prince and was realeased the next day thanks to pressure exerted
from foreign diplomats. She was placed under house arrest and could finally
leave the country at the beginning of June.

Concerning a head of State, the Constitution says that legal action cannot
be taken by any other institution than the Supreme Court of Justice
(provision 186-a of the enforce Constitution of 1987).

Concerning civil servants, the Superior Accounting Court is the only
Institution allowed by the Constitution  and by the law to state over
ordinary administrative matters (Article 200 and 223 of the haitian
Constitution of 1987 ; Law of November 4th, 1983).

In addition , according to article 24 of the Constitution , section B,
individual freedom is guaranteed and protected by the State.

According to provision 27 :
" Any violation of individual freedom is considered as being an arbitrary
action".

According to provision 45 :
Penalty can be given solely by the law or applied only in circumstances
defined by the law. (ad dendum " Le Matin" April 10th,1991.


To be continued...