25009: Mason (article): Concannon: In Principle - In Practice

[Bob Corbett <corbetre@webster.edu>]

>From  Marilyn Mason (_MariLinc@aol.com_ (mailto:MariLinc@aol.com) )

By Brian Concannon Jr.
t r u t h o u t |  Perspective
http://www.truthout.org/docs_2005/050405O.shtml

Wednesday 04 May  2005

When Haitians say "an prensip" (in principle) to explain  how something
should work, "an pratik," how it works in actual practice, is  rarely far
behind.
An prensip, the bus leaves in ten minutes, an pratik the  driver will wait for
the seats to completely fill up, squeeze several more  people in, then pop the
hood or go looking for  gas.

Haiti's  current Minister of Justice, Bernard Gousse, contrasted the
principle and  practice of justice in a June 2002 paper titled "Judicial
Independence
in  Haiti" that he  wrote for IFES, an American non-profit that runs  U.S.
government-funded projects in  Haiti:

Quote:
The  Haitian Constitution ... contains the democratic principles of
separation of  power and the rule of law for all Haitian people - including
the
principle of  judicial independence. However ... the Haitian justice system in
practice has  never followed either the letter or spirit of the Constitution
[and]
... has  almost always been effectively subject to the administrative,
budgetary and  personal whims of an overly-dominant executive.


The paper was written  almost eight years into  Haiti's  longest-ever stint
of democracy. Mr. Gousse was a law school dean and consultant  for IFES's
judicial independence program. Professor Gousse was critical of the  elected
governments' pratik, but noted that:

Quote:
Despite the  circumstances and the unfavorable environment, some judges
throughout the  judicial hierarchy should be commended for showing a great
degree
of courage and  independence.


One of the judges who had shown both courage and  independence was Jean-Sénat
Fleury, who had worked his way up through the  judicial hierarchy from rural
justice of the peace to become  Haiti's most  respected Juge d'Instruction or
investigating magistrate. He distinguished  himself with impartial
investigations of the country's most complicated and  controversial cases.
When he felt
he was being pressured to act contrary to the  law, he would wag his finger,
shake his head, and say "No way. I'm a judge, I  don't do politics."

Not long before Professor Gousse published his IFES  paper, Judge Fleury was
caught in the crossfire of prensip and pratik when he  searched the house of a
suspected drug dealer who was also a client of the then  Minister of Justice.
The search was legal but the Minister was angry, so the  Judge was accused of
stealing from the house and suspended, illegally. A few  months later - too
slowly, but surely - the democratic system corrected itself:  the Minister was
gone and Judge Fleury was back on the bench.

Last  November, Judge Fleury was handed another controversial case, that of
Rev.  Gérard Jean-Juste, a Catholic Priest and political dissident. By that
time the  government chosen by  Haiti's voters  had been replaced by one
chosen
by the  U.S. government  and Haitian elites. Mr. Gousse was Minister of
Justice, and the architect of a  campaign of repression against supporters of
the
ousted Lavalas party. Hundreds,  if not thousands, of pro-democracy activists
had
been killed. The Catholic  Church's Justice and Peace Commission estimated
that over 700 political  prisoners joined Fr. Jean-Juste in Minister Gousse's
jails. The Minister, his  prosecutor, and the Prime Minister insisted in press
conferences that the priest  was linked to terrorist attacks and murder. But
when the case reached Judge  Fleury's courtroom, no one could produce a single
witness, document or other  evidence linking Fr. Jean-Juste to illegal
activity. So Judge Fleury threw the  case out.

Just before Christmas, another judge, Brédy Fabien, released  several
high-profile dissidents when the government could produce no evidence  against
them
after 10 months of illegal detention. Minister Gousse quickly  demonstrated
how
much justice was "subject to the administrative, budgetary and  personal
whims of an overly-dominant executive" by instructing the chief judge  to
immediately take all of Fleury and Fabien's cases away from them. This was a
clear
violation of the prensip of judicial independence, enshrined in  Haiti's
Constitution and described in Mr. Gousse's IFES paper. Judge Fleury once
again
showed courage and independence: he chose to resign rather than do the
Minister's
politics.

In 2002, Professor Gousse noted  that:

Quote:
The subordination of the judiciary is further  demonstrated by the lack of
enforcement of judicial decisions, which require the  Government Commissioner
to
submit an order of execution for approval by the  executive.


Minister Gousse has demonstrated that subordination by  blocking the
enforcement of judicial decisions liberating political prisoners.  Two of the
political prisoners ordered free by Judge Fabien at Christmas, Harold  Sévère
and
Anthony Nazaire, are still in prison under an illegal order from the
Minister,
even though Gousse's own prosecutor approved the release. Gousse even
transferred one dissident, Jacques Mathelier, to a prison four hours away
from  the
jurisdiction of a judge who appeared ready to free him in July (Mathelier
remains in prison).

Throwing your political opponents into a Haitian  prison does not just shut
them up, it can kill them as well. In January, the  U.S. 3rd Circuit  Court of
Appeals found "no doubt" that Haitian prison conditions "are indeed  miserable
and inhuman." Tuberculosis and other disease is epidemic, healthcare  and
food are in short supply. Some cells are so crowded that prisoners must take
turns to sleep on the concrete floor. The misery is intentional: last
November,
the official running the UN Development Program's work in  Haiti's prisons
quit because the Haitian government refused to accept international help to
improve conditions. The killing can be intentional too: on December 1, as
Colin
Powell was visiting  Haiti's  National  Palace, police responded to a
non-lethal prison protest with sustained automatic weapons fire into the
cells.  The
government admits to ten prisoners killed, but independent human rights
groups and journalists report many times that number.

The struggle  between pratik and prensip is not confined to  Haiti.
America's  government has its own principles about judicial independence and
respecting  democracy. IFES commits itself in its mission statement
to "government by
the  people and for the people," an prensip. But according to a January report
by the  Center for the Study of Human Rights at the University of Miami Law
School, an  pratik, IFES used millions of  U.S. taxpayer  dollars to undermine
the government elected by  Haiti's people.  The report, based on interviews
with IFES employees and research on the IFES  website, documented a vast
network
of groups that IFES created and funded to  oppose Haiti's  Constitutional
government, including student groups, business groups, media  organizations,
human
rights committees and bar associations. Some of these  groups engaged in
violent, illegal protests. IFES employees were even required  to attend
anti-government protests and submit reports. Many officials of  Haiti's
illegal  interim
government, including Minister Gousse and Prime Minister Gérard  Latortue,
worked for this program, effectively obtaining their jobs by throwing  out
their
elected predecessors. IFES employees conceded that Gousse himself even
coordinated with the rebels who launched an armed insurrection in February
2004.

In February 2005, members of the U.S. House of Representatives  invited the
author of the University  of Miami report and IFES to a  hearing, where some
members expressed outrage at IFES's undermining of Haitian  democracy. IFES,
which advocates the prensip of transparency in government,  responded by
cleaning
up its website. The Haiti Program description no longer  even mentions IFES's
creation of the network that was so proudly displayed in  January. Nor does
it link to Professor Gousse's analysis of attacks on judicial  independence,
which now looks more like his Ministry's strategy plan than a  critique.

For 200 years, American policy makers have been throwing up  their hands and
calling  Haiti a basket  case, doomed to failure despite our best efforts to
save it. But for 200 years  we have been installing, supporting and protecting
leaders like Minister Gousse,  no matter what they did to the Haitian people,
as long as they also did our  bidding. When  Haiti's leaders  resist our
dictates, as the Lavalas government did, we replace them with someone  more
compliant. Haitians will never enjoy the stability and prosperity that
Americans
take for granted until we abandon this tradition, and allow  Haiti's leaders
to
actually represent their citizens. Until, in other words, our pratik in  Haiti
matches  our democratic prensip.


Brian Concannon Jr. directs the Institute for  Justice & Democracy in Haiti
(IJDH). Both the University of Miami Law School  report and "Judicial
Independence in  Haiti" can be  found on the IJDH's website.


*****************

Marilyn  Mason
The Creole Clearinghouse (TCC)
P.O. Box 181015
Boston, MA  02118
Tel.: 617-247-8885
Email: _MariLinc@aol.com_ (mailto:MariLinc@aol.com)


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