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OEA/Ser.L/V/II.74
REPORT
ON THE SITUATION OF HUMAN RIGHTS
... continued
36.
In addition, the Constitution empowered the President to dissolve the
Legislative chamber in cases of "serious conflict between the Legislative
Power and the Government".17
The decree dissolving the Legislature shall, at the same time, provide
for the holding of new elections. During
the absence of a Legislature, resulting from the decree of dissolution, the
President was empowered to provide for the needs of the public services.
37.
Adoption of the 1983 Constitution resulted in the dissolution of the
Legislature18 and paved
the way for elections of handpicked candidates on February 12, 1984.
Similarly the June 6, 1985 amendments to the 1983 Constitution, were to
dissolve the then existing legislature in 1986 to pave the way for a new
Legislature to be put in place as a result of the elections scheduled for 1987.19
Periodic removal of legislators, despite their ostensible six-year
terms, was yet an additional means by which the Duvaliers assured their
unchecked control over the Haitian State.
38.
During the nine months of the year when the Legislature was not in
session, the President was granted "full powers" (Pleins Pouvoirs)
under Article 216 of the 1983 Constitution which enabled the President to govern
by decree for a period of eight months, during which time, as the IACHR stated
in its Annual Report (1981-1982), "the people are deprived of
constitutional guarantees and the most elemental human rights".
Article 216 provided:
The Chief of the Executive branch, the Chief of State, during the
interval between legislative sessions, is vested with full powers to make
decrees having the force of law in order to ensure the safety and integrity of
the national territory and the sovereignty of the State, the consolidation of
order and peace, the maintenance of the economic and financial stability of the
nation, the increase in the well-being of the rural and urban populations and
the defense of the general interests of the Republic.
39.
Previously, this power had been conferred on the President by Legislative
Decree passed at the end of each annual legislative session.
These decrees effectively suspended the individual rights granted in
Article 17, 18, 20, 21, 31, 48, 11, 122(2)
and 125(2) of the 1964 Constitution (as amended in 1971).
In effect, as noted by the Commission in its Annual Report (1983-1984),
by promulgating Article 216 in the 1983 Constitution, Haiti institutionalized a
"virtual state of emergency in which citizens have no other guarantees than
those which the Executive grants them". The
Judicial Branch
40.
The judicial power was exercised by a high court called the Cour de
Cassation, the Court of Appeal, lower courts (Tribunaux de première
instance) and justice of the peace courts (Tribunaux de Paix).20
The Constitution, in Article 147, et seq., contemplated the
creation of a High Court of Justice for treason, which was in fact the
Legislature, sitting as the National Assembly, acting as a High Court of
Justice, empowered to impeach the President for treason or any crime committed
in the discharge of his functions.
41.
Theoretically, the President could not direct the decisions of the
courts, but his influence was very great since he personally appointed the
presidents, vice presidents and judges of all the courts in the country.21
In fact, however, the Judicial branch was not independent of the
Executive branch, since Article 136 of the 1983 Constitution named the President
"guarantor of the independence of the judicial power".
42.
The judges of the Cour de Cassation
and the Courts of Appeal were appointed for a term of ten years, and
those of the civil courts, for seven years.22
The term of office began when the judge took his oath and, once
appointed, he was not subject to removal by the Executive branch for any cause
whatsoever.23
43.
Pursuant to Article 133 of the 1983 (amended) Constitution special courts
could be created by law to deal with specific questions.
A presidential decree dated November 22, 1984 created a section of the
Civil Court at Port-au-Prince to be known as the "Court of State
Security" (Tribunal de Sûreté de l'Etat) with jurisdiction over
the entire national territory. It
was to have "competence over all crimes and offenses against the internal
and external security of the State and over violations which by circumstances of
purpose or of motives are considered of a political nature".
The broadly defined jurisdiction of this tribunal, however, was rarely
invoked. c.
Rights and Guarantees under the Duvalier
Constitution (1983)
44.
On the surface, the Haitian Constitution appeared to establish a
democratic republic with the necessary checks and balances provided by a
separation of governmental powers to prevent abuse of power.
Upon closer examination, however, the Constitution set up a highly
personalized, authoritarian system with absolute powers vested in the Chief
Executive.
45.
The 1983 Constitution, as amended, consisted of a preamble and fourteen
titles containing 225 articles and was approved by the Legislature in less than
eight hours. Twenty-nine of these
articles were amended by Haiti's unicameral Legislature, by unanimous vote on
June 6, 1985, as recommended by President Jean-Claude Duvalier.
46.
Of the fourteen titles of the Constitution, Title II deals with
individual rights and is termed "The Rights and Duties of Haitians and
Aliens". The 1983 Haitian
Constitution declared all Haitians to be equal before the law24
but certain advantages were conferred on Haitiens d'origine.
A Haitian "of origin" was defined as a person born of at
least one Haitian parent; born in Haiti or abroad, or a person born of foreign
parents, in Haiti, provided that the person was of the black race.25
One had to be a Haitian of origin, to be President or deputy in the
Legislative Chamber. The Prime
Minister need not be a Haitian of origin. Ministers
must, however, be Haitian citizens, although not all were.26
47.
The Constitution set forth civil and political rights,27 individual
rights and guarantees,26 and
duties of citizens.28 Individual
liberties were guaranteed and no one could be pursued, arrested or detained
except in cases expressly set forth by law.
No one could be arrested or detained except pursuant to a written warrant
issued by a competent official.29
No one could be kept under arrest for more than forty-eight hours unless
he had been brought before a judge who was called to rule upon the legality
thereof, and the judge had confirmed the arrest by a decision setting forth the
reasons.30
48.
The Constitution of 1964 (as amended in 1971) prohibited torture or other
ill treatment of the detainee,31 but
no such comparable provision was included in the 1983 Constitution.
49.
House searches and seizures of papers were prohibited except by virtue of
law and in accordance with legally prescribed procedures.32
The law could not be applied retroactively except in criminal
matters and then only to benefit the accused.33
No penalty could be established, except by law, or imposed except in the
cases provided for by law (nulla poena sine lege).34
No one could be obliged, in criminal matters, to testify against
himself.
50.
The right to own property was guaranteed, but expropriation for a public
or social purpose could be effected. Compensation
was recognized by the State for cases of expropriation for public utility and
regulated by law.35
51.
The right to work and the right of the worker to a just wage, job
training, health protection, social security and the welfare of his family were
guaranteed insofar as the country's economic situation allowed.
All workers had the right to protect their interests through trade union
activities, and to engage in collective bargaining.36
52.
The death penalty could not be imposed for any political offense except
for the crime of treason, which was defined as taking up arms against the
Republic of Haiti, joining avowed enemies of Haiti or giving them aid and
comfort.37
53.
Everyone was guaranteed the right to express his opinion on any matter
and by any means. He expression of
thought, whatever form it took, was not subjected to prior censorship except in
the case of a declared war. Abuses
of the right of freedom of speech were to be defined and punished by law.38
However, a jury was to be used in criminal trials and for political
offenses committed through the press or by some other means.39
54.
Freedom of religion and belief was guaranteed.
The right to profess one's religion or belief was established subject to
the provision that the exercise did not disturb public order.40
55.
The right to peaceful assembly was guaranteed without prior
authorization, in conformity with the law governing the exercise of this right.41
56.
Haitians were guaranteed the right to associate and to form political
parties, unions and cooperatives. This
right was not to be subject to any preventive measure.
No one could be compelled to join an association or a political party.
The law regulated the conditions for the functioning of these groups and
was to promote their formation.
57.
Correspondence was inviolable; however, private letters and documents
could be intercepted by the authorities for the sole purpose of gathering
evidence to be used in court and pursuant to a judicial order.42 d.
Mechanisms established to protect individual
rights under the Duvalier State
58.
The 1983 (amended) Constitution provided that the law could not add to
nor derogate from the Constitution: the
letter of the Constitution would always prevail.43
59.
The President, before taking office, took an oath to "observe and
enforce the Constitution, and to respect and ensure that the rights of the
Haitian people are respected".44
(This provision was somewhat anachronistic since the President-for-Life
did not "take office".) The
President was responsible for the enforcement of the Constitution, but he could
never suspend or interpret it, nor fail to enforce it.45
60.
The Court of Cassation was empowered to rule on the constitutionality of
the laws when litigation was referred to it, and such cases which sought
judicial review of the constitutionality of laws, were not to be subject to any
requirement of deposit, penalty or fee.46
In cases involving political offenses, or the press, the court session
was to be public.47 e.
Restrictions placed on the enjoyment of human
rights
by government practice under the Duvalier regime
61.
The vast majority of the individual rights guaranteed by the Duvalier
Constitutions were not respected in practice.
62.
Government forces, in particular, the Volunteers for National Security
(the VSN, more commonly known as the Tonton Macoutes), were routinely
identified as the persons responsible for the harassment, persecution,
kidnapping (since these "arrests" were conducted without the benefit
of judicial warrant), torture and killing of a large class of
individuals--aspiring political leaders, journalists, labor organizers, youth
organizers, lawyers and human rights activists--who attempted to exercise their
human rights. Harassment and
extortion practices by the VSN, especially in the rural areas, was a pervasive
and continuous interference with the exercise of human rights.
63.
The Duvalier administration appeared to have introduced certain
predictable cycles in its manner of governing.
At the beginning of the cycle the Government promised a
"liberalization or democratization" of the regime, permitting the
functioning of political parties, the holding of elections, an amnesty for
political offenders and greater freedom of the press.48
When the exercise of such rights began to gain momentum and governmental
policies and conditions were placed under scrutiny and criticized, major
crackdowns involving seeping arrests, torture and killing began to occur.
The individuals arrested would be either expelled from the country or
subject to long term illegal and often brutal detention, with torture used to
extract "confessions". The
climate of terror resulting from such a crackdown brought about the abrupt end
of the "liberalization or democratization" period until the next cycle
was initiated.49
f.
The Departure of Duvalier and the Transition to
the National Governing Council (CNG)
64.
These predictable cycles came to an abrupt end of February 7, 1986, when
Jean-Claude Duvalier fled Haitian in the middle of the night on a United States
Air Force plane which had been placed at his disposal.
The Haitian people, who on February 7, 1986, were celebrating their
"liberation" or Second Independence Day, did not scrutinize too
closely the 6-man civilian-military junta that was installed to replace Duvalier.
Jean-Claude Duvalier had left behind a videocassette tape which was
played on television, following his departure, stating that he had personally
chosen his successors. Lt. Gen.
Henri Namphy, however, head of the 6-man National Governing Council (CNG), in
his first speech to the Haitian people on February 7, 1986, announced that he
had "seized the reins of power".50
Both versions appear incredible because the composition of the CNG
included an important leader of the opposition to Duvalier, the head of the
Haitian League for Human Rights, Mr. Gérard Gourgue, who would not have been
selected to form part of a new government by either Jean-Claude Duvalier or Lt.
Gen. Namphy unless other influences played a role.
Consequently, one can only speculate as to why the forces which installed
the CNG in power on February 7, 1986 did not place Mr. Gourgue at the head of
this new government to demonstrate the importance of civilian control over the
military in this transition process.
65.
The CNG took power on February 7 1986 and on February 10, 1986, installed
its Cabinet. On February 26, 1986,
it presented a list of its achievements after 18 days in power.
This list sought to portray the CNG as a provisional government which
would vindicate the demands of the Haitian people and work to install democracy
in Haiti. The CNG stated that in a
period of 18 days it had:
1.
Freed all political prisoners;
2.
Re-established absolute freedom of the press;
3.
Dissolved and disarmed the VSN;
4.
Set aside the Constitution of 1983 (as amended);
5.
Dissolved the Legislature; 6.
Seized and nationalized the goods, furnishings and real estate of
the ex-President Jean-Claude Duvalier; 7.
Re-established the blue and red Haitian flag.
(Under the Duvaliers the Haitian flag had been changed
to red and black).51
66.
In fact it did do most of the things that it claimed to have done, with
the exception of disarming the Macoutes.
67.
On February 25, 1986, Lt. Gen. Namphy set forth the outlines of the CNG's
political program. He announced
that a consultative body would be formed, which would elect, by secret ballot
the members of a constituent assembly to draft a new Constitution.
The CNG would govern by decree and would issue decrees regarding the
press, and the organization of political parties.
The new Constitution would set forth provisions regarding elections.
68.
The Consultative Council, however, did not elect the members of the
Constituent Assembly. Elections for
41 of the 61 seats on the Constitutional Assembly were held throughout Haiti on
October 19, 1986. The CNG
designated the other 20 members directly. The
Ministry of Information informed the public that 9.2% of the Haitian electorate
participated in the October elections, whereas other sources reported a voter
turnout of between 1% and 5%.
69.
As mentioned in the Commission's 1986-1987 Annual Report the Constituent
Assembly had "originally been viewed with skepticism but as it demonstrated
its seriousness and responsiveness to its mandate, it won popular support".
Consequently, on March 29, 1987, the Haitian Constitution was submitted
to a referendum, and 45.4% of the 2.8 million eligible Haitian voters cast their
votes in favor of the new Constitution. The
high voter turnout dramatically surpassed the 10% participation predicted. C.
THE HAITIAN CONSTITUTION OF 1987
70.
The agenda for a new Haiti is set forth in the legal blueprint known as
the Constitution of 1987. According
to Le Moniteur, the official government newspaper, 1,271,334 votes were
cast on March 29, 1987 which represented 45.4% of the 2.8 million eligible
voters. Of these, 1,268,980 voted
in favor of the Constitution, a 99.8% approval rate.
The Constitution attracted such a significant response from the
population because it embodied a repudiation of the Duvaliers and the
twenty-nine years of dictatorship. a.
Disqualification of Duvalierists for
Public Office
71.
It appears that the new Constitution's most popular provision is Article
291 which concerns the disqualification of Duvalierists for public office for a
period of ten years. This provision
sought to define a clear line of demarcation between the Duvalierist past and
the desired non-Duvalierist present. Article
291 states:
For ten (10) years following publication of this Constitution, and
without prejudice to any criminal action or civil suit for damages, none of the
following may be candidates for any public office: a)
Any person well known for having been by his excess zeal one of the
architects of the dictatorship and of its maintenance during the last
twenty-nine years;
b)
Any accountant of public funds during the years of the dictatorship
concerning whom there is presumptive evidence of unjustified gain; c)
Any person denounced by public outcry for having inflicted torture on
political prisoners in connection with arrests and investigations or for having
committed political assassinations. b.
The Provisional Electoral Council (CEP)
72.
A second unusual characteristic of the 1987 Constitution is Article 289
which provides for the establishment of a Provisional Electoral Council.
This Provisional Electoral Council became virtually a parallel government
to the CNG insofar as it was given control over the electoral process, a
function previously within the self-proclaimed mandate of the CNG.
73.
Article 289 provides that the CEP be comprised of members representing
different social sectors, of which the CNG represents only one of nine parts:
Awaiting the establishment of the Permanent Electoral Council provided
for in this Constitution, the National Council of Government shall set up a
Provisional Electoral Council of nine (9) members, charged with drawing up and
enforcing the Electoral Law to govern the next elections, who shall be
designated as follows:
1) One
by the Executive Branch, who is not an official;
2) One
by the Episcopal Conference;
3) One
by the Advisory Council;
4) One
by the Supreme Court; 5)
One by agencies defending human rights, who may not be a
candidate in the elections;
6) One
by the Council of the University;
7) One
by the Protestant religions;
8) One
by the National Council of Cooperatives
74.
In addition, the Constitution, in Article 292, empowers the CEP with
determining which candidates are Duvalierists and, as such, are to be
disqualified as candidates for public office. c.
The Power of the Executive under the 1987 Constitution
75.
Under the Duvalier regimes, the Executive, transformed into
President-for-Life, had been all-powerful.
Consequently, the drafters of the 1987 Constitution sought to prevent
such a recurrent abuse of power and vested the powers of the Executive in the
President of the Republic, who is the Head of State and the Government, which is
headed by a Prime Minister.52
76.
The President, under the 1987 Constitution, is to be elected by direct,
universal suffrage by an absolute majority of votes.
If that majority is not obtained, a runoff is to be held between the two
leading contenders.53
77.
The presidential term is for a period of five years and this term is to
begin and end on February 7 following the date of the elections.54
Presidential elections are to be held on the last Sunday of
November in the fifth year of the President's term.55
An individual may serve no more than two terms and the terms may not be
consecutive.56 The
CNG scheduled elections for November 29, 1987, however, these elections were
cancelled.
78.
The duties of the Haitian President include the selection of the Primer
Minister from among the members of the majority party in Parliament.57
The President's choice must be ratified y the Parliament.
The President is empowered to declare war,58 and with the
consent of the Senate, he appoints the Commander-in-Chief of the Armed Forces.59
The President is the nominal head of the Armed Fores.60
If the office of the presidency becomes vacant the President of the
Supreme Court is invested by the National Assembly, convened by the Prime
Minister.61
79.
Pursuant to Article 135 of the Constitution, to be elected President of
Haiti, a candidate must: a)
Be a Haitian by origin and never have renounced Haitian nationality; b)
Have attained thirty-five (35) years of age by election day; c)
Enjoy civil and political rights and never have been sentenced to
punishment involving death, personal restraint or penal servitude or the loss of
civil rights for a crime of ordinary law; d)
Be the owner in Haiti of at least one real property and have his habitual
residence in the country; e)
Have resided in the country for five (5) consecutive years before the
date of the elections; f)
Have been relieved of any liability (avoir reçu décharge) if he
has been handling public funds. 80.
The Prime Minister is the head of Government and conducts the policy of
the nation.62 To
be appointed Prime Minister, a candidate must:
1) Be
a Haitian by origin 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
punishment involving death, personal restraint or penal servitude or the loss of
civil rights; 4)
Own real property in Haiti and practice a profession there; 5)
Have resided in the country for five (5) consecutive years; 6)
Have been relieved of any liability (avoir reçu décharge) if he
has been handling public funds. 81.
The Prime Minister chooses the members of the Cabinet with the approval
of the President, and a vote of confidence of both Houses of Parliament.63
In concert with the President, the Prime Minister is responsible for
national defense,64 and enforcement of the laws.65 82. In summary, whereas the Duvalier constitutions institutionalized hereditary rule, the 1987 Constitution attempts to diminish the power of the Executive by creating the positions of President and Prime Minister, prevents consecutive re-election and institutionalizes a democratic form of government by providing for an effective separation of powers. continued...
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17.
See Chapter II on Political Rights, infra. 18.
Articles 117 and 79 of the 1983 amended Constitution. 19.
Article 222 of the 1983 Constitution. 20.
Article 222 of the 1983 amended constitution. 21.
Article 133 of the 1983 amended Constitution. 22.
Article 114 of the 1983 amended Constitution. 23.
Article 134 of the 1983 amended Constitution. 24.
Article 135 of the 1983 amended Constitution.
In fact, however, judges have been removed at the President's whim. 25.
Article 22 of the 1983 amended Constitution.
Non-discrimination is guaranteed as regards social class, color, race,
sex, religion or political opinion (Article 48). 26.
This provision is perhaps a historical remnant of the earlier
constitution provision by which Haiti granted immediate nationality to any
African or Indian who came to reside in Haiti.
Haiti, in 1804, following a fierce 12-year war which had originated as a
slave revolt, was the second nation to proclaim its independence in the
Americas. For that reason it
offered freedom to any Black o Indian who chose to flee to Haiti.
(See Haitian Constitution of 1816 (Article 44)). 27.
Frantz Merceron, for example, is a French, not Haitian, citizen. 28.
Articles 20 and 21 of the 1983 amended constitution. 29.
Articles 22-51 of the 1983 amended Constitution. 30.
Articles 52-57 of the 1983 amended Constitution.
Voting is considered not only a right, but a duty under the Haitian
Constitution (See, Article 53). 31.
Article 24 of the 1983 amended constitution. 32.
Article 25 of the 1983 amended Constitution. 33.
Article 17 of the 1964 amended Constitution provided in relevant part:
"Any unnecessary force or restraint in the apprehension of a person
or in keeping him under arrest, any moral pressure or physical brutality is
forbidden. All violations (…)
shall be considered arbitrary acts against which the injured parties may,
without prior authorization, appeal against which the injured parties may,
without prior authorization, appeal to the competent courts, prosecuting either
the authors or the perpetrators, regardless of their rank or the body to which
they belong." 34.
Article 27 of the 1983 amended Constitution. 35.
Article 29 of the 1983 amended Constitution. 36.
Article 30 of the 1983 amended Constitution. 37.
Articles 32 and 35 of the 1983 amended Constitution. 38.
Articles 37 and 38 of the 1983 amended constitution. 39.
Article 39 of the 1983 amended Constitution.
The guarantee "Even for political purposes" was deleted from
the 1987 Constitution. 40.
Article 40 of the 1983 amended Constitution. 41.
Article 50 of the 1983 amended constitution. 42.
Article 41 of the 1983 amended constitution. 43.
Article 42 of the 1983 amended constitution included the right to
assembly privately without prior authorization.
This article violates Article 4.4 of the American Convention on Human
Rights. (See, Chapter on the Right
to Life, below). 44.
Article 45 of the 1983 amended Constitution.
In the 1964 amended Constitution there were no limitations, all
correspondence was declared inviolable. 45.
Article 51 of the 1983 amended Constitution. 46.
Article 104 of the 1983 amended Constitution. 47.
Article 111 of the 1983 amended Constitution. 48.
Article 139 of the 1983 amended Constitution. 49.
Article 141 of the 1983 amended Constitution. 50.
Compare government declarations to this effect made in 1978 and again in
1985. 51.
Compare the crackdowns of November 1980 and November 1985. 52.
Le Nouvelliste, February 7, 1986. 53.
Le Nouvelliste, February 26-27, 1986. 54.
Article 133 of the 1987 Constitution. 55.
Article 134 of the 1987 Constitution. 56.
Article 134-1 of the 1987 Constitution. 57.
Article 134-2 of the 1987 Constitution. 58.
Article 134-3 of the 1987 Constitution. 59.
Article 137 of the 1987 Constitution. 60.
Article 140 of the 1987 Constitution. 61.
Article 141 of the 1987 Constitution. 62.
Article 143 of the 1987 Constitution. 63.
Article 149 of the 1987 Constitution. 64.
Articles 155 and 156 of the 1987 Constitution. 65.
Article 158 of the 1987 Constitution. |