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OEA/Ser.L/V/II.74
REPORT
ON THE SITUATION OF HUMAN RIGHTS
... continued D.
THE POLITICAL ORGANIZATION OF THE STATE UNDER
THE 1987 CONSTITUTION 83.
The 1987 Constitution declared Haiti to be "an indivisible,
sovereign, independent, cooperatist, free, democratic and social republic.66
This provision adds the notion of "cooperatist" to the
formulation of the 1983 (amended) Constitution.
As in the earlier Constitution, the structure of the political
organization is that of the traditional democratic state.
Articles 58, 59 and 60 provide that sovereignty is vested in all citizens
and that all citizens delegate the exercise of that sovereignty to the three
branches of government: the
executive, legislative and judicial. Each
branch is independent of the other two, and none may go beyond the bounds set
for them by the Constitution and by the law. The
Executive Branch
84.
The 1987 Constitution (like the 1985 amendments to the 1983
Constitution), provides that the executive power is to be exercised by the
President of the Republic and by the Government.
85.
Under the Duvalier Constitution, the President named the Prime Minister,
but Jean-Claude Duvalier, as President, was also the Head of the Government.
The Prime Minister was a figure without power.
Under the 1987 Constitution the Prime Minister, not the President, is
mandated by the Constitution to conduct the policy of the nation.67
86.
Cabinet members, pursuant to the 1987 Constitution, are chosen by the
Prime Minister with the approval of the President.68
During the two-year period of the interim military government the CNG
shuffled the cabinet four times.
87.
Checks are placed on the abuse of power by the Executive branch by the
High Court of Justice, which has the authority to try the following persons,
including the President and the Prime Minister, for certain offenses.69 a)
The President of the Republic for the crime of high treason or any other
crime or offense committed in the discharge of his duties; b)
The Prime Minister, the Ministers and the Secretaries of State for crimes
of high treason and embezzlement or abuse of power or any other crimes or
offenses committed in the discharge of their duties; c)
Members of the Permanent Electoral Council and the Superior Court of
Auditors and the Court of Administrative Disputes for serious offenses committed
in the discharge of their duties; d)
Supreme Court justices and officers of the Public Prosecutor's Office
before the Court of Cassation; e)
The Protector of Citizens (Protecteur du citoyen).
88.
In Addition, a Conciliation was established under the 1987 Constitution
which is to settle disputes between the Executive Branch and the Legislative and
the two Houses of Legislature.70
The precise functions of this Commission were to be regulated by the law.71 The
Legislative Branch
89.
The Duvalier Constitution provided for a unicameral legislature which was
dominated and manipulated by the Executive.
The 1987 Constitution provided for a bicameral legislature comprising a
House of Deputies and a Senate.72
90.
Pursuant to the 1987 Constitution to be elected a member of the House of
Deputies,73 a person
must: 1)
Be a Haitian by origin and have never renounced his nationality; 2)
Have attained twenty-five (25) 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 for any crime
of ordinary law; 4)
Have resided at least two (2) consecutive years prior to the date of the
elections in the electoral district he is to represent; 5)
Own at least one real property in the district and practice a profession
or trade; 6)
Have been relieved, if need be, of any liability (avoir reçu décharge)
as a manager of public funds. A
deputy is elected for a 4-year term and may be reelected.
91.
Pursuant to the 1987 Constitution, to be elected a member of the Senate74
a person must:
1) Be
a Haitian by origin and never have renounced his 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 for a crime of
ordinary law; 4)
Have resided in the Department he will represent, at least four (4)
consecutive years prior to the date of the elections; 5)
Own at least one (1) real property in the Department and practice a
profession or trade there; 6)
Have been relieved, if need be, of any liability (avoir reçu décharge)
as a manager of public funds. 92.
A senator is elected for a 6-year term and may be reelected.
In addition, pursuant to Article 291 of the 1987 Constitution, the most
important prerequisite is that a candidate for the Senate or House of Deputies
not has had ties to the Duvalier regimes, as such ties would disqualify him for
public office.
93.
The 1987 Constitution provides that the House of Deputies and the Senate,
meeting together, comprise the National Assembly.
The legislative session commences with the meeting of the National
Assembly. The first legislative
session of the House of Deputies runs from the second Monday of January to the
second Monday of May and the second session runs from the second Monday of June
to the second Monday of September.75
The Senate is permanently in session.76
In no case may the House of Deputies or the Senate be dissolved or
adjourned.77 Pursuant to
the Duvalierist Constitution the President was constitutionally empowered to
dissolve the legislature in cases of conflict between the Executive and the
Legislative branches. The 1987
Constitution provides for a Conciliation Commission to settle disputes between
these two branches of Government.
94.
The functions of the Legislature reflect those of the previous
Constitution as regards the power to make laws.78
As in the previous Constitution laws can be initiated by either House of
the legislature or by the Executive.79
Similarly, additional powers are granted to the Legislature when it
meets as a National Assembly, such as to receive the constitutional oath of the
President, to ratify the decision to declare war, to approve or reject treaties
and to amend the Constitution.80
95.
Meetings of the National Assembly are public unless a minimum of five
members request that they be held in closed session.81
Members of the Legislature are inviolable (immune from lawsuits)
from the date on which they take their oath of office until the expiration of
their mandate.82
96.
As a result of the elections of January 17, 1988, according to
ex-President-for-Life Jean Claude Duvalier, 60% of the persons elected to serve
in the Haitian legislature during the Manigat government were Duvalierists.83
In the opinion of many Haitians with whom the Commission spoke
during its August 1988 visit, the January 1988 elections were unconstitutional,
in light of the fact the Article 291 bars Duvalierists from standing for public
office for a period of ten years. The
Judicial Branch
97.
The Judicial power under the 1987 Constitution is vested in the high
court known as the Court de Cassation,
the Courts of Appeal, Courts of First Instance, Justice of the Peace
Courts and Special Courts.84 In
addition, as mentioned above, the Constitution contemplates a High Court of
Justice, which is the Senate sitting as a tribunal to consider political cases
such as the impeachment of the President for treason.
98.
Judges of the Cour de Cassation and the Courts of Appeal are
appointed for a term of ten years. Judges
of the Courts of First Instance are appointed for seven-year terms.85
Judges of the Cour de Cassation are appointed by the
President, from a list of at least three per seat, submitted by the Senate.86
The judges of the Cour de Cassation, the Courts of Appeal
and the Courts of First Instance may not be removed from office.87
99.
As regards political offenses, the Constitution does provide for the
creation of special courts, the jurisdiction of which, however, must be
determined by law.88 The
Court of State Security (Tribunal de Sûreté de l'Etat), created by the
Duvalier regime, has been abolished.89
The Constitution further provides that sentences may not be delivered in
closed sessions in cases involving political offenses or the press.90 a.
Rights and Guarantees under the 1987 Constitution
100.
The 1987 Constitution consists of a Preamble and fifteen titles
containing 298 articles. Of the
fifteen titles of the Constitution, Title III deals with individual rights and
is entitled "Basic Rights and Duties of the Citizen" and Title IV
deals with "Aliens".
101.
The 1987 Constitution declares all Haitians to be equal before the law91
but as in the Duvalier constitutions, certain benefits are
conferred on Haitians d'origine. A
Haitian "of origin" is defined as a person born of at least one
Haitian parent, who (i.e., the parent) was born Haitian, and who never renounced
Haitian nationality. The racial
provision in the Duvalier constitutions, granting a black person, born in Haiti,
but of foreign parents, Haitien d'origine status, has not been
incorporated into de 1987 Constitution.
102.
Pursuant to the 1987 Constitution, the President, the Prime minister, the
Deputies and the Senators must all be Haitians "of origin".
103.
The 1987 Constitution provides that any Haitian who has adopted a foreign
nationality during the twenty-nine years of the Duvalier regime, may recuperate
her or his nationality, if, within two years of the publication of the
Constitution, s/he makes a declaration to the Minister of Justice, for that
purpose.92 This
provision however, does not appear to entitle the individual making this
declaration to the recovery of his Haitien d'origine status.
104.
The 1987 Constitution sets forth the basic rights of citizens as well as
their duties.
105.
The age of majority is defined as 18 years93
at which the exercise of political and civil rights commences.94
The death penalty is abolished for all crimes.95
106.
Individual liberty is guaranteed and no one may be prosecuted, arrested
or detained unless pursuant to law.96
No one may be detained without a warrant unless caught in the act of
committing a crime,97 and
no arrest warrant may be carried out between 6 p.m. and 6 a.m.98
No one may be kept under arrest for more than 48 hours unless he
has been brought before a judge who has been called to rule upon the legality
thereof, and the judge has confirmed the arrest by a well-founded decision.99
Torture, or any form of coercion is prohibited by the 1987 Constitution100
and the detainee may only be
interrogated in the presence of his attorney or a witness of choice.101
107.
Violators of the constitutional provisions on individual liberty are
subject to law suits and the government officials responsible for such acts are
directly liable under civil and administrative criminal laws.102
108.
Freedom of expression is guaranteed and all offenses involving the press
and abuses of the right of expression come under the criminal code.102
109.
Freedom of association as well as the freedom not to join an association
are guaranteed. In addition, the
police must be informed, in advance, of public assemblies or demonstrations.104
110.
The right to education is guaranteed and primary school is compulsory
[under penalties to be prescribed by law.105
In a nation with, at least, a 70% rate of illiteracy, one can only
surmise what sort of penalties will be imposed.
Higher education, i.e. post-primary school, is "open to all",
it is not compulsory.106 It
is not specified in the Constitution whether primary school is considered to
comprise six or twelve years.
111.
The right to work is guaranteed. The
State guarantees workers equal working conditions, regardless of sex, and
workers are entitled to a fair wage, to rest, to a paid annual vacation and to
an annual bonus.107 The
right to strike is recognized and may be limited by law.108
112.
Private property is recognized and protected.
Although nationalization and confiscation are prohibited, land reform is
contemplated as an exception to this blanket prohibition.109
The landowner is also constitutionally obliged to protect the land
against erosion, and failure to do so would make him subject to criminal
penalties.110 The
process of erosion of the Haitian arable lands has systematically destroyed the
country's agricultural capacity and this constitutional provision attempts to
deal with this deteriorating problem.
113.
Personal security is constitutionally guaranteed and no Haitian may be
deported or expelled "for any reason".
In addition, no one may be deprived of his legal capacity or his
nationality for political reasons.111
Unlike the Duvalier era, Haitians no longer require a visa to leave or
return to haiti.112 No
search and seizure may be conducted except pursuant to law113
and correspondence and other forms of communication are inviolable.
Communication may only be limited pursuant to judicial order.114
114.
Persons in detention are to be held separately from persons serving
sentence115 and prisons must be run "in accordance with
standards reflecting respect for human dignity according to the law on the
subject".116
115.
In addition, in recognition of the fact that both Creole and French are
the official languages of Haiti,117 all laws, decrees, treaties,
etc., except "information concerning national security" must be
published by the State in both languages.118
b.
Mechanisms established to protect individual rights under the 1987
Constitution
116.
Approximately one million Haitians fled from Haiti during the Duvalier
regimes.119 Many
fled involuntarily to escape political repression whereas others fled
voluntarily to seek a better life elsewhere.
The 1987 Constitution takes into consideration the situation of these
voluntary and involuntary expatriates in its various articles.
117.
The Constitution provides that any Haitian who was the victim of the
confiscation of his property during the Duvalier period may "recover his
property before a court of competent jurisdiction.120
In addition, death sentences, detention, imprisonment or the loss of
civil rights during this period "shall constitute no impediment to the
exercise of civil and political rights."121
118.
In addition, all laws and decrees "arbitrarily limiting the basic
rights and liberties of citizens," are repealed,122 in
particular:
a) The
decree law of September 5, 11935 on superstitious beliefs; b)
The law of August 2, 1977 establishing the Court of State Security (Tribunal
de la Sûreté de l'Etat); c)
The law of July 28, 1975 placing the lands of the Artibonite Valley in a
special status; and d)
The law of April 29, 1969 condemning all imported doctrines. 119.
Further, all international treaties, once ratified, become part of the
legislation of Haiti and abrogate any laws in conflict with them.123
This provision is extremely important for the purposes of this
Report, in light of the fact that Haiti has ratified the American Convention on
Human Rights, and pursuant to this Constitutional provision, the Convention is
incorporated into Haiti's domestic legislation. 120.
The 1987 Constitution creates the position of Ombudsman, or the
"Office of Citizen Protection," which is established to protect all
individuals against any form of abuse by the Government.124
The office is to be directed by a person chosen by consensus among
the President, the President of the Senate and the President of the House of
Deputies, for a seven year term.125
His intervention, on behalf of any complainant (it need not be a
citizen of Haiti) is without charge.126 121.
Other constitutional provisions designed to protect individual rights
include the limitations and safeguards imposed on the Government as regards the
declaration of a state of siege, and the separation of the Army and the Police. 122.
A state of siege may only be declared in the event of civil war or
foreign invasion.127 Consequently,
it may not be declared to silence dissent or in the case of riots or
demonstrations. The declaration of
the state of siege must be made by an act of the President, countersigned by the
Prime Minister, and "by all of the Ministers", and contain an
immediate convocation of the National Assembly to decide on the measure.128
The state of siege is lifted if it is not renewed every fifteen
days by a vote of the National Assembly, 129
and the National Assembly,129 and the
National Assembly is required to remain in session for the entire duration of
the state of siege.130 123.
As regards the Armed Forces and the Police, the Constitution does not
contemplate any other armed corps. N
fact, it explicitly states that "No other armed corps may exist in the
national territory,"131 which refers to the dissolution of the
notorious Volunteers of national Security (Volontaires de Securité Nationale)
popularly known as the "Tontons Macoutes". 124.
The duties of the Armed Forces are to defend the State from external
aggression, but they may b called upon to assist in disaster relief, in
development work, or, "Upon the well founded request of the Executive, they
may lend assistance to the police when the latter are unable to handle a
situation".132 125.
Military service is compulsory for all Haitians who have attained the age
of eighteen.133 Haitians
have the right to bear arms for use in self-defense, but only following
expressed authorization from the Chief of Police,134 and possession
of a firearm must be reported to the police.135 126.
The Police Force operates under the Ministry of Justice136 and
it is established "to investigate violations, offenses and crimes
committed, in order to discover and arrest the perpetrators of the".137 127.
In addition, the 1987 Constitution establishes that members of the Armed
forces and the Police are subject to "civil and penal liability in the
manner and under the conditions stipulated by the Constitution and by law".138 E.
HAITI'S INTERNATIONAL OBLIGATIONS IN THE FIELD
OF HUMAN RIGHTS 128.
Haiti is a member of the United Nations and the Organization of American
States, the Charters of which set forth respect for human rights. 129.
On September 27, 1977, Haiti deposited its instrument of accession to the
American Convention on Human Rights (Pact of San Jose).
The American Convention entered into force on July 18, 1978, and as a
result Haiti is legally obligated to observe the rights and freedoms set forth
in that Convention, and to guarantee to all persons within its jurisdiction the
free and full exercise of their rights, without discrimination for reasons of
race, color, sex, language, religion, political or other opinion, national
origin or social position, economic situation, birth or any other social
condition. 130.
Article 276-2 of the 1987 Haitian Constitution (supra) provides
that ratified treaties become part of the domestic legislation of Haiti.
Lt. Gen. Namphy in his first speech upon assuming power stated that all
international treaties, agreements and accords would continue to be respected. 131.
The American Convention on Human Rights (1969) is the only general human
rights instrument to which Haiti is a party.140
Haiti is a party, however, to the following issue-specific international
human rights instruments concerning the prevention of discrimination:
the International Convention on the Elimination of All Forms of Racial
Discrimination (1965), the International Convention on the Suppression and
Punishment of the Crime of Apartheid (1978), the ILO Convention (No. 100)
concerning Equal Remuneration for Men and Women Workers for Work of Equal Value
(1951), and the ILO Convention (No. 111) concerning Discrimination in Respect of
Employment and Occupation (1958). 132.
Haiti is also a party to specific human rights conventions which concern
the following issues: the
Convention on the Prevention and Punishment of the Crime of Genocide (1948), the
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery (1956), the Convention for the
Suppression of Traffic in Persons and of the Exploitation of the Prostitution of
others (1949), the ILO Convention (No. 29) concerning Forced Labor (1930), the
ILO Convention (No. 105) concerning the Abolition of Forced Labor (1957), the
OAS Convention on Asylum (1928), the OAS Convention on Political Asylum (1933),
the OAS Convention on Diplomatic Asylum (1945) and the OAS Convention on
Territorial Asylum (1954). 133.
Haiti is a party to specific human rights instruments which relate to the
protection of particular groups: ILO
Convention (No. 87) concerning Freedom of Association and Protection of the
Right to Organize (1948), ILO Convention (No. 98) concerning the Application of
the Principles of the Right to Organize and Bargain Collectively (1949), the UN
Convention on the Political Rights of Women (1952), the Inter-American
Convention on the Granting of Political Rights to Women (1948) and the four
Geneva Conventions (1949, 1950). During
the two-year transition period of the CNG, headed by Lt. Gen. Namphy, the most
significant step towards democracy was taken on March 29, 1987, as the Haitian
people expressed their sovereign will and overwhelmingly approved the 1987
Constitution. This expression of
the national sovereignty is the standard against which any Haitian government's
legitimacy will have to be measured. A
military coup d'etat and the summary deportation of the head of state
cannot be legitimized by the destruction of the nation's fundamental charter or
by unsupportable claims, made under the threat of the use of force, that one is
acting in the name of democracy and human rights. It
should be noted that the 1987 Constitution deprived the military of control over
elections and subordinated the military to civilian rule, as is the case in all
democratic constitutions in the world. Logically,
a military government undermines the institutionalization of a democratic state,
and having deported the President, suppressed the legislature and abrogated the
Constitution, it can only claim to be acting in the name of
"democracy", in an Orwellian reversal of meaning, where words signify
the opposite of their accepted connotations. The information set forth in this chapter leads to the inescapable conclusion that a system of representative democracy must be established in Haiti and the rule of law must be restored for fundamental human rights to be guaranteed.
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66.
Article 159-1 of the 1987 Constitution. 67.
Article 159 of the 1987 Constitution. 68.
Article 1 of the 1987 Constitution. 69.
Article 156 of the 1987 Constitution. 70.
Article 158 of the 1987 Constitution. 71.
Article 186 of the 1987 Constitution. 72.
Article 206 of the 1987 Constitution. 73.
Article 206-1 of the 1987 Constitution. 74.
Article 88 of the 1987 Constitution. 75.
Article 91 of the 1983 Constitution. 76.
Article 96 of the 1983 Constitution. 77.
Article 92-2 of the 1987 Constitution. 78.
Article 95-1 of the 1987 Constitution. 79.
Article 11-8 of the 1987 Constitution. 80.
Article 11 of the 1987 Constitution. 81.
Article 111-1 of the 1987 Constitution. 82.
Article 98-3 of the 1987 Constitution. 83.
Article 100 of the 1987 Constitution. 84.
Article 114 of the 1987 Constitution. 85.
Baby Doc "Je Paye Pour Papa Doc" in Paris Match 12 February
1988. An interview with Jean-Claude
Duvalier in France. 86.
Article 173 of the 1987 Constitution. 87.
Article 174 of the 1987 Constitution. 88.
Article 175 of the 1987 Constitution. 89.
Article 177 of the 1987 Constitution. 90.
Article 173 of the 1987 Constitution. 91.
Article 173 of the 1987 Constitution. 92.
Article 180-1 of the 1987 Constitution. 93.
Articles 18 of the 1987 Constitution. 94.
Article 286 of the 1987 Constitution. 95.
Article 16-2 of the 1987 Constitution. 96.
Article 17 of the 1987 Constitution. 97.
Article 20 of the 1987 Constitution. 98.
Article 24-1 of the 1987 Constitution. 99.
Article 24-2 of the 1987 Constitution. 100.
Article 24-3(d) of the 1987 Constitution. 101.
Article 26 of the 1987 Constitution. 102.
Article 25 of the 1987 Constitution. 103.
Article 25-1 of the 1987 Constitution. 104.
Article 270 and 27-1 of the 1987 Constitution. 105.
Articles 28-3 of the 1987 Constitution. 106.
Article 31-2 of the 1987 Constitution. 107.
Article 32-3 of the 1987 Constitution. 108.
Article 32-6 of the 1987 Constitution. 109.
Article 35-1 of the 1987 Constitution. 110.
Article 35-5 of the 1987 Constitution. 111.
Article 36-2 of the 1987 Constitution. 112.
Article 36-4 of the 1987 Constitution. 113.
Article 41 of the 1987 Constitution.
Aliens, however, may be deported. (Art.
56). 114.
Article 41-1 of the 1987 Constitution. 115.
Article 43 of the 1987 Constitution. 116.
Article 49 of the 1987 Constitution. 117.
Article 44 of the 1987 Constitution. 118.
Article 44-1 of the 1987 Constitution. 119.
Article 5 of the 1987 Constitution. 120.
Article 40 of the 1987 Constitution. 121.
"The Spirit of the Haitian Constitution of 1987".
Gerard Romulus (Member of the Haitian Constitutional Assembly). 122.
Article 293-1 of the 1987 Constitution. 123.
Article 294 of the 1987 Constitution. 124.
Article 297 of the 1987 Constitution. 125.
Article 276-2 of the 1987 Constitution. 126.
Article 207 of the 1987 Constitution. 127.
Article 207-1 of the 1987 Constitution. 128.
Article 207-2 of the 1987 Constitution. 129.
Article 278 of the 1987 Constitution. 130.
Article 178-1 of the 1987 Constitution. 131.
Article 278-3 of the 1987 Constitution. 132.
Article 278-4 of the 1987 Constitution. 133.
Article 263-1 of the 1987 Constitution. 134.
Article 266 of the 1987 Constitution. 135.
Article 268 of the 1987 Constitution.
On its face, this provision applies to both sexes. 136.
Article 268-1 of the 1987 Constitution. 137.
Article 268-2 of the 1987 Constitution. 138.
Article 269 of the 1987 Constitution. 139.
Article 273 of the 1987 Constitution. 140.
Article 274 of the 1987 Constitution. 141.
See, note 138 (supra). 142.
Consequently, the American Convention on Human Rights continues to have
the force of law in Haiti's domestic legislation.
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