23466: Marina: Refreshing Corbett list members' memory (fwd)

[Bob Corbett <corbetre@webster.edu>]

From: Marina <marinawus@yahoo.com>

Corbett List Members:

On February 25, 2004, Pierre Jean posted a good
article on Aristide and the 1987 Constitution on this
list. I do not believe that some of the people who
started posting numerous news articles to this list
are familiar with some of the violations of the
Constitution by the Aristide Government and I believe
that we should refresh their memory today.

[The context of this post was an exchange the Pierre
Jean was having with Kim Yves.]

#######################################################
3. Now let's talk about Aristide and the Constitution
of 1987. Since you bring it up, I will assume that you
are intimately familiar with that Constitution.

ATTRIBUTIONS OF THE PRESIDENT

"Article 136.- The President of the Republic, who is
the Head of State, shall see to the respect for and
enforcement of the Constitution and the stability of
the institutions. He shall ensure the regular
operations of the public authorities and the
continuity of the State.."

By not adhering to the terms of the various OAS
agreements that held him responsible to achieve
certian objectives (resolution of the 2000 election
problems, disarming of pro-Lavalas gangs, independence
of the judiciary, depoliticization of the PNH, arrests
of the December 17, 2001 violence suspects), Mr
Aristide is responsible for the worsening of the
political crisis. In fact the same OAS that he is
turning to for help did say that he was responsible
for the non-creation of the Electoral Committee that
was required for elections to be held. We have seen
what a fiasco that CEP issue has been. And now we have
arrived at a point where the mandate of the Lower
House, of the ASECS and CASECS, and of 2/3 of the
Senate has lapsed. La faute à qui? Seems to me that
this is a flagrant violation of Article 136 by
Aristide.

"Article 147.- He may grant amnesty only for political
matters as stipulated by law."

President Aristide trampled this article of the
Constitution by granting amnesty to SUSPECTS accused
of petty crimes. While it is a noble gesture (after
all, they were mostly destitute prisoners whose crimes
paled in comparison to those of the chimeres),
President Aristide has no power whatsoever to grant
that type of amnesty. He can only do in the case of
political prisoners and only according to the law. So
he violated Article 147 of the constitution.

"Article 279.- Thirty (30) days after his election,
the President of the Republic must deposit with the
Clerk of the Court of First Instance of his domicile a
notarized inventory of all his movable and immovable
goods, and he shall do the same at the end of his
term."

This is where it really gets better. To the best of my
knowledge, Aristide has NEVER declared the notarized
inventory of his assets as is MANDATED by Article 279.
The Constitution is extremely explicit on this matter.
This declaration must be made within 30 days after the
beginning and the end of his mandate. It was not done
by March 7, 1990, it did not occur by March 7, 1996,
no declaration by March 7, 2001. He CLEARLY violated
Article 279. (By the way, Preval is guilty also.)

SEPARATION OF POWERS

Article 59.- Citizens delegate the exercise of
national sovereignty to three (3) branches of
government:
1. The Legislative Branch;
2. The Executive Branch;
3. The Judicial Branch.

The principle of separation of the Three (3) branches
is embodied in the Constitution.

Article 60.- Each branch is independent of the other
two (2) in the powers it exercises separately.

Article 60-1.- None of them may, for any reason,
delegate their powers in all or in part, nor go beyond
the bounds set for them by the Constitution and by
law.

President Aristide stepped outside of his
constitutional attributions and ignored the separation
of powers that is enshrined in the Constitution of
1987. In 1995, he legislated by decree on the
following: agrarian reform, early retirement of civil
servants, organization of the judiciary, etc. These
were atributions of Parliament, not of the Executive.
These decrees are UNCONSTITUTIONAL.

Mr. Aristide simply ignored the Constitution and all
but destroyed the independence of the Judiciary with
the August 22, 1995 DECREE (a decree no less!) on the
organization of the Judiciary branch, to wit: The
"Commissaire du Gouvernment" appointed by the
Executive oversees the judges in courts, The Minister
of Justice determines the judges' vacations, approves
the Internal Code of Conduct of Courts and receives
the Minutes of the Meetings of Judges. Judges are
named by president Aristide according to party
loyalty. Judges' careers are determined by the
Minister of Justice. Finally, the Budget of the
Judiciary is determined by the Executive branch
without consulting the Judiciary.

How can we possibly talk about the independence of the
Judiciary?

ON THE INDEPENDENCE OF THE JUDICIARY

Article 177.- Judges of the Supreme Court, the Courts
of Appeal and the Courts of First Instance are
appointed for life. They may be removed from office
only because of a legally determined abuse of
authority or be suspended following and indictment
leveled against them. They may not be reassigned,
without their consent, even in the case of a
promotion. Their service may be terminated during
their term of office only in the event of a duly
determined permanent physical or mental incapacity.

During the Aristide presidency, Article 177 of the
Constitution has taken a serious beating. We will
focus on just two examples. In 2003, Judge Agnant,
from the "tribunal correctionnel de Port-au-Prince"
and who had just been elected president of the
National Association of judges, is suspended without
cause and assigned to house arrest without ANY
indictment of any type. At the end of 2004, four
judges from the Cap-Haitien Court of First Instance
are fired before the expiration of their mandate for
being too "independent."

HUMAN RIGHTS

Article 19 .- The State has the absolute obligation to
guarantee the right to life, health, and respect of
the human person for all citizens without distinction,
in conformity with the Universal Declaration of the
Rights of Man.

Need I delve into the numerous violations of this
article by the Aristide government? Let me just state
a couple:

- the policy of zero tolerance which led to
extra-judicial killings of presumed criminals by the
illegal Brigades Spéciales and the BRi unit of the PNH

- Domi Nan Bwa, Bale Wouze, Armée Cannibale, need I
say more?

But the United Nations and Human Rights organizations
have documented these violations well enough that
there is no need for me to go further.

INDIVIDUAL LIBERTY

Article 25.- Any unnecessary force or restraint in the
apprehension of a person or in keeping him under
arrest, or any psychological pressure or physical
brutality, especially during interrogation, is
forbidden.

The tortures inflicted upon suspects and prisoners in
the many police stations, the most notorious being the
Delmas 33 police station (aka the new Fort Dimanche)
are also well documented. To be fed alive to dogs as
happened to a teenager in 2003 there is probably the
lowest point of these human rights violations.

Article 26.- No one may be kept under arrest more than
forty-eight (48) hours unless he has appeared before a
judge asked to rule on the legality of the arrest and
the judge has confirmed the arrest by a well-founded
decision;

The statistics from APENA itself show that at least
80% of suspects are held beyond the 48 hours inscribed
in the Constitution. Enough said on that point. The
Constitution is violated on a daily basis when it
comes to Article 26.

Article 31.- Freedom of unarmed assembly and
association for political, economic, social, cultural
or any other peaceful purposes is guaranteed.

During the second weeek of February, heavily armed
police officers from the CIMO unit break into the
Board Meeting of FOKAL, an NGO funded by the Soros
Foundation and headed by Ms. Michelle Pierre Louis.
The Board members are then harassed by Commissioner
Jackson Bernard and his men for quite some time even
though they have no warrant and no suspicion that any
illegal act has occurred. This is but one example.

Trade unionists are arrested on three occasions in
2004 alone during their regular meetings. Some of them
still have not been released.

Article 41.- No person of Haitian nationality may be
deported or forced to leave the national territory for
any reason. No one may be deprived for political
reasons of his legal capacity and his nationality.

Daly Valet, Michelle Montas, Claudy Gassant,
Jean-Robert Faveur ... and the list goes on.

POLICE FORCE

Article 263. - The "Public Forces "la Force Publique)
are composed of two (2) distinct bodies:
a. The Armed Forces of Haiti, and
b. The Police Forces.

Article 263-1 No other armed corps may exist in the
national territory.

It is clear that the existence of organized armed
gangs supporting the Lavalas movement is a clear
violation of Article 263. What is even more
aggravating for Lavalas is that its well-armed militia
was set up through the Ministry of Interior with
Jocelerme Privert and Bell Angelot as the architects
of that unconstitutional militia. Macoutes, anyone?

Also, and unfortunately for Lavalas and for the
country, Aristide never managed to officially ban the
Army in a constitutional fashion,. Therefoire the
suspension of benefits and pension payments to
eligible army pensioneers was illegal.

CULT OF PERSONNALITY

Article 7.- The cult of the personality is
categorically forbidden. Effigies and names of living
personages may not appear on the currency, stamps,
seals, public buildings, streets or works of art.

The many billboards with giant pictures of Aristide
(across from Teleco building at Pont-Morin, for
example) or the billboards comparing Aristide to
Toussaint Louverture are clearly unconstitutional. The
same can be true of the innumerable odes to Aristide
that are shown continuously on Tele Nationale.

HAITIAN NATIONALITY

Article 12-2.- Haitians by naturalization shall be
allowed to exercise the right to vote but they must
wait five(5) years after the date of their
naturalization to be eligible to hold public posts
other than those reserved by the Constitution and by
law for native-born Haitians.

Therefore the nomination of Lilas Desquiron to the
post of Minister of Culture was UNCONSTITUTIONAL. She
was named the same month that she became a Haitian
citizen, after renouncing her Belgian citizenship.

My contention is that, at minimum, Aristide and his
government have violated at least 14 articles of the
Constitution, sometimes in an egregious and willful
manner.

So I will disagree with Mr. Ives and argue that the
violations of the Constitution by a government that
swore to uphold it are grave enough that they merit as
much consideration as the formation of a
"macouto-bourgeois" opposition which has not been able
to overthrow Lavalas despite its many efforts.

The rebel movement and its shadowy funding/support
must be seen separately from the other opposition,
unlike what many people would have us believe.

One last question for Mr. Ives and the PPN:

How do you propose to awaken the revolutionary spirit
of the oppressed Haitian masses?





_______________________________
Do you Yahoo!?
Declare Yourself - Register online to vote today!
http://vote.yahoo.com