24705: Senou (reply) te: 24699: JJeanPierre re: 24687: kathleen re: 24677: Senou: Election in 2005 and Articles 13]

[sak-pase@bimini.ws]

Senou <senou@yahoo.com>

ARTICLE 149: 
Should the Office of the President of the Republic
become vacant for any reason … The election of a new
President for a new five (5) year term shall be held
at least forty-five (45) and no more than ninety (90)
days after the vacancy occurs, pursuant to the
Constitution and the Electoral Law.

(With article 149, we can say that Haiti has a de
facto government; there is no reason whatsoever not to
organize election within the 90 days). The fact that
the country does not have a constitutional government
shall not equate that anyone who committed illegal
actions cannot be arrested. Mr. Neptune was the prime
Minister of Haiti when that massacre took place; he
was not the justice minister.  
According ARTICLE 24-3(e): Responsibility for an
offense is personal, and no one may be arrested in the
place of another. 
The justice minister was the first person who was
supposed to be arrested. Upon trial he shall answer
under oath about the person who gave him the order; if
he claims that he executed the order of the prime
minister then an arrest warrant shall be obtained to
secure his arrest. However, the justice minister
cannot claim of receiving any order from the deposed
president since constitutionally he is not the head of
the government. 

It is unfortunate that we departed from the original
questions, which were articles 13 and 15 of the
constitution. I cannot comment on the citizenship
status of the former Prime Minister. However,
according ARTICLE 157: 
To be appointed Prime Minister, a person must:

1) Be a native-born Haitian, and never have renounced
Haitian nationality; 

The citizenship of any official shall not be a mystery
to anyone and also we shall know the total asset of
any elected official and any member of the government.


Now the burning question: the legality of the arrest
of Mr. Neptune: was it Legal or Illegal

Again, according ARTICLE 24-3 (d) Except where the
perpetrator of a crime is caught in the act, no arrest
by warrant and no search may take place between six
(6) p.m. and six (6) a.m.  
and also according 
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.

If the current Justice Minister Mr. Gousse did not
meet that deadline, the gentleman shall be released
and articles 27 and 27.1 shall be enforced. The
current Justice Minister would be liable to a civil
lawsuit. 

Folks, in life one need to be objective and when you
are in charge to enforce the law, you need to do the
right thing. According Article 26 many people were
supposed to be released and it is a violation of the
law to keep them in jail without seeing a judge for
more than 48 hrs. Also, if the jails are overcrowded,
it is recommended to release the non-violent
offenders. Keeping them in jail in a non-human
condition is a crime. 

I include below some relevant articles …
------------
ARTICLE 27: 
Any violation of the provisions on individual liberty
are arbitrary acts. Injured parties may, without prior
authorization, appeal to the competent courts, to
bring suit against the authors and perpetrators of
these arbitrary acts, regardless of their rank or the
body to which they belong.

ARTICLE 27-1: 
Government officials and employees are directly liable
under civil and administrative criminal law for acts
carried out in violation of rights. In such cases,
civil liability extends to the State as well.

------------
ARTICLE 149: 
Should the Office of the President of the Republic
become vacant for any reason, the President of the
Supreme Court of the Republic, or in his absence, the
Vice President of that Court, or in his absence, the
judge with the highest seniority and so on by order of
seniority, shall be invested temporarily with the
duties of the President of the Republic by the
National Assembly duly convened by the Prime Minister.
The election of a new President for a new five (5)
year term shall be held at least forty-five (45) and
no more than ninety (90) days after the vacancy
occurs, pursuant to the Constitution and the Electoral
Law.
http://www.haiti.org/official_documents/87constitution/doc_constitution_en_title5ch3.htm
--------------
ARTICLE 24-1: 
No one may be prosecuted, arrested or detained except
in the cases determined by law and in the manner it
prescribes.

ARTICLE 24-2: 
Except where the perpetrator of a crime is caught in
the act, no one may be arrested or detained other than
by written order of a legally competent official.

ARTICLE 24-3: 
For such an order to be carried out, the following
requirements must be met: 

a) It must formally state the reason in Creole and in
French for the arrest or detention and the provision
of the law that provides for punishment of the act
charged. 

b) Legal notice must be given and a copy of the order
must be left with the accused at the time of its
execution; 

c) The accused must be notified of his right to be
assisted by counsel at all phases of the investigation
of the case up to the final judgment; 

d) Except where the perpetrator of a crime is caught
in the act, no arrest by warrant and no search may
take place between six (6) p.m. and six (6) a.m. 

e) Responsibility for an offense is personal, and no
one may be arrested in the place of another.

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.

ARTICLE 25-1: 
No one may be interrogated without his attorney or a
witness of his choice being present.

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.

ARTICLE 26-1: 
In the case of a petty violation, the accused shall be
referred to a justice of the peace, who shall then
hand down a final decision.

In the case of more serious offenses or crimes, an
appeal may be filed, without prior permission, simply
by addressing a petition to the presiding judge of the
competent civil court, who, on the basis of the oral
statement of the prosecutor, shall rule on the
legality of the arrest and detention, in a special
session of the court, without postponement or rotation
of judges, all other cases being suspended.

ARTICLE 26-2: 
If the arrest is judged to be illegal, the judge shall
order the immediate release of the arrested person and
that order shall be enforceable immediately,
regardless of any appeal to a higher court or the
supreme court for an order forbidding enforcement of
the judgment.

ARTICLE 27: 
Any violation of the provisions on individual liberty
are arbitrary acts. Injured parties may, without prior
authorization, appeal to the competent courts, to
bring suit against the authors and perpetrators of
these arbitrary acts, regardless of their rank or the
body to which they belong.

ARTICLE 27-1: 
Government officials and employees are directly liable
under civil and administrative criminal law for acts
carried out in violation of rights. In such cases,
civil liability extends to the State as well.
---
ARTICLE 157: 
To be appointed Prime Minister, a person must:

1) Be a native-born Haitian, and never have renounced
Haitian nationality;

2) Have attained thirty (30) years of age; 

3) Enjoy civil and political rights and never have
been sentenced to death, personal restraint or penal
servitude or the loss of civil rights;

4) Own real property in Haïti and practice a
profession there;

5) Have resided in the country for five (5)
consecutive years;

6) Have been relieved of his responsibilities if he
has been handling public funds.