21220: Anonymous: Understanding the Haitian Constitution (fwd)

[Bob Corbett <corbetre@webster.edu>]

Could you please post the following message anonymously?  Thanks!

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We welcome comments on the following work in progress, a memo on provisions
of the Haitian Constitution relevant to current events.  Thank you.

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The Haitian Constitution: Key Provisions Governing the Political Transition

INTRODUCTION

    In this time of crisis and political transition, understanding the
provisions and principles set out in the Constitution of the Republic of
Haiti is essential. Transitional Haitian officials and state officials in
the Caribbean, the Western Hemisphere, and the international community as a
whole must strive to uphold the rule of law in their responses to the
crisis.  Although public emergencies put significant pressure on legal
regimes, the Constitution was written to safeguard basic rights, the
separation and decentralization of government powers, and the rule of law in
Haiti in times of crisis.  Indeed, the Constitution was written to prevent
the concentration of power that characterized the era of dictatorship under
the Duvaliers, and to ensure that human rights are protected at all times.
The need for derogations from Constitutional provisions‹or for actions to be
taken in the absence of clear rules governing extraordinary situations not
contemplated by the Constitution‹must be judged in light of the legal
structure set out in the Constitution as well as the human rights norms
guiding such derogations.

HUMAN RIGHTS

Human rights are fundamental rights in Haiti.

    The Constitution explicitly states that its provisions conform to the
Universal Declaration of Human Rights.[i]  This overarching affirmation is
an interpretive guide for each provision of the Constitution.  Specific
provisions protect individual liberty including the freedoms of expression,
conscience, assembly and association, and the freedom of the press.[ii]

The Haitian Constitution guarantees the full spectrum of due process rights.

    The Constitution of Haiti protects all persons in Haiti against
arbitrary detention, arrest, and prosecution, requiring written warrants
(except in the case of apprehension ³in the act² by police) and the
allegation of the commission of a legally recognized criminal act.[iii]  In
the event of arrest, the Constitution protects the right to a fair hearing
and outlaws unnecessary force and restraint as well as the use of
psychological or physical pressure, especially in interrogation.[iv]
Haiti¹s Constitution specifies the right to be informed of the right to
counsel in the event of arrest[v] and the right to counsel or a chosen
witness during interrogation.[vi]  Civil and criminal liability attaches to
state and nonstate actors who violate these rights.[vii]

The Constitution includes social and economic rights guarantees.

    The Constitution explicitly requires the State to guarantee fundamental
rights including economic, social, and cultural rights, such as decent
housing, education, food and social security.[viii]

SEPARATION OF POWERS

    The President and Prime Minister provide checks and balances on each
other through joint responsibility for some Executive functions under the
Haitian Constitution.  Certain powers, however, are split between them; the
President is exclusively, for instance, the Head of State and responsible
for diplomatic functions. Most importantly, the legislature enjoys supremacy
in Haiti and can never be dissolved or adjourned.[ix]  Its approval is
required for most Executive acts.

1. The President

The President is the Head of State and Chief Diplomat.

    Under the Constitution, the President holds the powers of the Head of
State and Chief Diplomat.[x]  The President is the official charged with
sending, receiving, and withdrawing diplomats, as well as conducting
relations with inter-governmental organizations.  He declares war,
negotiates and signs treaties, appoints ambassadors and consul generals with
National Assembly approval.[xi]

The President is the head, though not the Commander, of the Armed Forces.

    The President appoints the Commander-in-chief of the armed forces, the
Commander-in-chief of the police, ambassadors and consul generals, with
National Assembly approval.[xii]  The President is the nominal head of the
Armed Forces.[xiii]  His national security role is not shared with the Prime
Minister.

The President appoints the directors general of the civil service and
delegates of the regional departments.

    Many regional and national government offices in Haiti are currently
vacant.  Some offices are under the Executive Branch and filled by
appointment, not election.  Under Article 142, the President is the sole
Executive officer who appoints directors general and departmental delegates
and vice delegates.  These delegates represent the Executive Branch and
exercise no police functions.[xiv]

2. The Prime Minister

The Prime Minister chooses the Cabinet of Ministers, subject to Presidential
approval.

    The Prime Minister is the head of the Government, which conducts the
policy of the Nation.[xv]  As such he can issue rules and regulations but
cannot suspend or interpret laws, nor refrain from enforcing them.[xvi]  His
choice of the Cabinet of Ministers is subject to the President¹s
approval.[xvii]

ELECTIONS

The Constitution requires that elections be held within three months of ³any
sudden vacancy² in the President¹s office.

    Under Article 149, the President of the Supreme Court of the Republic
fills a vacancy in the President¹s office.  At least 45 and no more than 90
days after the vacancy occurs, the election of a new President shall be
held.  Since Chief Justice Boniface Alexandre was sworn in as the
transitional President on February 29, 2004, Article 149 of the Constitution
would require that elections be held by June 1.

Dual Haitian and foreign nationality is not permitted.

    Only Haitian citizens may vote, and only Haitian citizens may occupy
elected offices.[xviii]  Dual Haitian and foreign nationality is not
permitted.[xix]  For elections to proceed Constitutionally, it must be
certified that candidates for office in the next Haitian elections are
Haitian citizens and do not retain foreign passports.  In addition,
candidates running for the offices of the President, Prime Minister, and
legislators of both houses must never have renounced their Haitian
nationality.[xx]

STATUS OF THE ARMED FORCES

The Armed Forces are separate from the police, and no provision of the
Constitution outlaws their dissolution.

    The Armed Forces can assist the police at the Executive¹s request,
assist in the event of a natural disaster, and may be assigned to
development work.[xxi]  The Constitution specifies that the Armed Forces are
apolitical and must observe strict political neutrality; though their
members can vote,[xxii] they cannot serve in a Government post until they
have been inactive for one year.[xxiii]  The Armed Forces must be separate
from the police.[xxiv]  No provision of the Constitution outlaws disbanding
the Armed Forces. Given the contrast with the rule with respect to the
legislature, which the Constitution clearly specifies cannot be
dissolved,[xxv] a strong inference can be made that the dissolution of the
Armed Forces is not unconstitutional.

Very few Haitians who are not in the police force may legally possess
firearms today. And no armed corps other than the Armed Forces and the
Police can legally exist in Haiti.

    While Haitian citizens have the right to ³armed self-defense,² only
³express well-founded authorization from the Chief of Police² can confer the
right to bear arms.[xxvi]  Statutory law makes it illegal to buy or sell
guns in Haiti and controls the licensing of guns, which was outlawed during
Aristide¹s presidency.  No armed corps other than the Armed Forces and the
Police can legally exist in Haiti.[xxvii]  Currently, however, 8 or 9
self-identified armed groups have assumed control of various regions of the
country.

ENDNOTES

[i]  Preamble
[ii]  Articles 28, 30, and 31
[iii]  Article 24
[iv] Articles 25 and 26
[v]  Article 24-3
[vi]  Article 25-1
[vii]  Article 27
[viii]  Preamble and Articles 19, 22, 23, 32, and 35
[ix]  Article 111-8
[x]  Articles 133(a) and 139-1
[xi]  Articles 139, 140, and 141
[xii]  Article 141
[xiii]  Article 143
[xiv]  Articles 85 and 86
[xv]  Article 156
[xvi]  Article 159
[xvii]  Article 158
[xviii]  Articles 17, 65(a), 70(a), 79(a), 135(a), 157(1), and 200-5(a)
[xix]  Article 15
[xx]  Articles 91(1), 96(1), 135(a), and 157(1)
[xxi]  Article 266
[xxii]  Article 265
[xxiii]  Article 267
[xxiv]  Article 263
[xxv]  Article 111-8
[xxvi]  Article 268-1
[xxvii]  Article 263-1

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