25114: Boswell" (replyP Fwd: Re: 25103: JRAuguste: (Question): re 25022 and 24981 Neptune in jail (fwd)

[Bob Corbett <corbetre@webster.edu>]

From:  Richard A. Boswell<boswellr@pacbell.net>

While it may be true that the "beyond a reasonable doubt" standard
which we use in the U.S. is not necessarily followed in civil law
countries, it does not necessarily follow that the burden is on the
person arrested to show innocence beyond a reasonable doubt.  My
understanding is that in this case, the focus has been on the specific
requirement in the Haitian Constitution that the accused be presented
before a judge within 48 hours and that an arrest pursuant to a warrant
standing alone cannot justify continued detention.  Moreover, Haitian
law provides for something more like the U.S. provision for bail
pending charges.

For those who argue that Neptune's continued detention is acceptable
under Haitian law, I still have not heard an explanation for why he has
not been brought before a judge after nearly year since his original
arrest.  This is truly a power man, if while under arrest he is able to
prevent his captors from moving him and presenting him before a
competent judge.

Languishing in jail for long periods has been an endemic problem in
Haiti and a number of other countries.  Indeed these long-term
detentions (as well as the conditions in the Haitian jails) were
something about which human rights activist criticized the previous
government.  One should not justify the continued detention in the
Neptune case based on the fact that it happened while he was PM.  If
one wishes that Haiti be governed by law, then the laws must be
respected.   What that is, is an argument for a political and not legal
justification for his continued detention.

In the end, there is no legal argument for his continued detention.
The civil law systems of the world (including Haiti) do not countenance
arbitrary detention these conditions occur when there is no law --
which is what is going on in Haiti.  I suspect (and I have no basis for
knowing this) but it does not look like the  "interim government" is
really in control of things.



Richard A. Boswell
Professor of Law
Univ. of Calif., Hastings
200 McAllister St.
San Francisco, CA  94102

voice: 415 565-4633
fax: 415 565-4865
boswellr@pacbell.net or boswellr@uchastings.edu