CHAPTER II: THE POLITICAL AND LEGAL FRAMEWORK IN HAITI
A. The 1987 Constitution
48. The Constitution adopted in 1987 reflects the Haitian people's outright rejection of the 29 years of Duvalier family dictatorship./
49. The most popular provision of the 1987 Constitution was Article 291, which bars supporters of the previous dictatorship regime from holding any public office for a 10-year period. This measure was designed to make a clear break with the Duvalier past and move on to a Duvalier-free future.
50. Another important feature of the 1987 Constitution was Article 289, which establishes a Provisional Electoral Council (CEP). This Council practically became a parallel power to the National Government Council (CNG) since it was assigned control of the elections, one of the duties the CNG had previously assigned itself.
51. The 1987 Constitution declares that Haiti is "an indivisible, sovereign, independent, cooperative, free, democratic and social republic."/ The condition of "cooperative" was added to the wording of the 1983 Constitution (as amended). As provided for in the 1983 Constitution, the political structure is that of a traditional democracy. Articles 58, 59 and 60 stipulate that sovereignty is vested in all citizens, who delegate the exercise of such sovereignty to the three branches of government: legislative, executive and judiciary. Each branch of government is independent of the other two and none may go beyond the boundaries set for them by the Constitution and by law.
i) The Executive Branch
52. According to the Constitution, the President must be elected by direct universal suffrage with an absolute majority of votes. If an absolute majority is not obtained in the first round of elections, a runoff election must be held between the two main contenders./
53. The term of office of the president must begin on the February 7 following election day and end on February 7 five years later./ Presidential elections must be held on the last Sunday in November during the fifth year of the president's term of office./ The same individual may not serve more than two terms of office and such terms may not be consecutive./
54. Among the duties of the President is the designation of the Prime Minister from among the members of the majority party of the Parliament, which must ratify the President's choice./ The President has the power to declare war,/ and, with the approval of the Senate, to appoint the commander-in-chief of the armed forces./ The President is also the nominal head of the armed forces./ Should the position of the President become vacant, the resident of the Supreme Court assumes the duties of the President and is sworn in by the National Assembly, duly convened by the Prime Minister./
55. According to Article 135 of the Constitution, to be elected President of Haiti, a candidate must:
a) Be a native Haitian and never have renounced Haitian nationality.
b) Have attained 35 years of age by election day.
c) 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.
d) Be the owner in Haiti of at least one piece of real property and have his or her primary residence in the country.
e) Have resided in the country for five consecutive years prior to the date of the elections.
f) Have been relieved of his or her responsibilities if he or she has been handling public funds.
56. The Prime Minister is the head of the government and conducts the policy of the nation./ The conditions to be met in to be designated Prime Minister are similar to those pertaining to the President, except that, with respect to age, a candaidate must have attained 30 years of age, and must have resided in the country for five consecutive years before elections.
57. The Prime Minister selects the members of his or her cabinet with the approval of the President and a vote of confidence from the Parliament./ In concert with the President, the Prime Minister is responsible for national defense/ and law enforcement./
58. In short, the 1987 Constitution reduces the power of the executive branch by establishing the duties of the President and the Prime Minister, bans consecutive reelection and institutes a democratic form of government effectively separating powers.
59. It provides that the executive power is exercised by the President and the government. Thus, according to the Constitution, the President appoints the Prime Minister, and it is the latter, not the President, who has the authority to conduct national policy./ Cabinet members are selected by the Prime Minister with the approval of the President./
60. The Constitution provides that the High Court of Justice may indict the President and the Prime Minister for certain offenses such as high treason or other crimes committed in the discharge of their duties./
61. Furthermore, the Constitution calls for establishment of a Conciliation Committee to settle disputes between the executive and the legislative branches of government or between the two houses of Parliament./ Operation of the Conciliation Committee is to be determined by law./
ii) The Legislative Branch
62. The 1987 Constitution provides for a two-house parliamentary system consisting of the Chamber of Deputies and the Senate./ The conditions set forth by the Constitution for election to a four-year term as deputy with limitations on re-election are similar to those established for candidates for President and Prime Minister, except that the minimum age is 25, and the residency requirement is two consecutive years prior to election day in the electoral ward the candidate seeks to represent.
63. The conditions for election for senator/ are similar to those for deputy, except for the minimum age, which is 30, and the residency requirement, which is four consecutive years prior to election day in the electoral ward the candidate seeks to represent.
64. Senators are elected for a six-year term and may be re-elected. In addition, according to Article 291, the most important prerequisite for a candidate for deputy or senator is that he or she not have had any ties to the dictatorship regimes, since that would mean automatic disqualification from any public office.
65. The Constitution provides that joint meetings of the Chamber of Deputies and the Senate constitute the National Assembly. The Senate is permanently in session./ In no case may either house be dissolved or adjourned./ In the event of disagreement between the Legislative and the Executive branches, the 1987 Constitution provides for a Conciliation Committee to which such disputes are to be referred for resolution.
66. The 1987 Constitution sets out the duties of the legislative branch with regard to its power to enact laws. Both houses, as well as the executive, may submit bills./ Similarly, additional powers are granted to Parliament in its capacity as the National Assembly, such as swearing in the President, ratifying a declaration of war, approving or rejecting treaties and amending the Constitution./
67. Meetings of the National Assembly are public, unless at least five members request a closed session./ Members of the legislature have immunity from the day they are sworn in until their term of office expires./
iii) The judiciary branch
68. According to the 1987 Constitution, judiciary power is vested in the Supreme Court, the Court of Appeals, County Courts, Courts of Peace and Special Courts./ The Constitution also provides that the Senate may act as High Court of Justice to hear political cases, such as the public trial of a president for treason.
69. Supreme Court justices and Court of Appeals judges are appointed by the president for a 10-year term of office/ from a list of at least three candidates for each court seat submitted by the Senate./ County Court judges are appointed for a seven-year term. Supreme Court justices, and Court of Appeals and County Court judges may not be removed from office./
70. For political crimes, the Constitution establishes special courts, the jurisdiction of which is to be determined by law./ It also provides that sentences may not be delivered in closed session in the case of political offenses or offenses involving the media./
B. Rights and guarantees established by the Constitution
71. The Constitution consists of a preamble, fifteen titles and 298 articles. Of the fifteen titles, Title III, entitled "Basic Rights and Duties of Citizens", concerns individual rights, and Title IV concerns aliens.
72. The Constitution declares that all Haitians are equal before the law,/ but confers certain advantages on native Haitians, such as allowing only native Haitians to be candidates for such offices as President of the country, Prime Minister or Member of Parliament. The provisions of previous constitutions whereby any individual born in Haiti, even of foreign parents, was granted the status of native Haitian, were not included in the 1987 Constitution.
73. The Constitution establishes both the basic rights and the duties of Haitian citizens. The age of majority is 18 years,/ at which age, all political and civil rights may be exercised./ Capital punishment is abolished in all cases./
74. Individual liberty is guaranteed, and persons may only be prosecuted, arrested or detained according to law./ No one may be detained without an arrest warrant, unless the perpetrator is caught in the act,/ and arrest warrants may not be served between 6:00 p.m. and 6:00 a.m./ No one may be detained for more than 48 hours unless he or she has appeared before a judge who has been asked to rule on the legality of the arrest and the judge has confirmed the arrest by a well-founded ruling./ Torture and any form of coercion are prohibited/ and the detainee may only be interrogated in the presence of his or her attorney or a witness of his or her choice./
75. Anyone violating the constitutional guarantees of individual liberty is subject to legal proceedings, and government employees are liable under civil and administrative criminal law for acts committed in violation of such rights./
76. Freedom of expression is guaranteed by the Constitution and all offenses involving the media and abuses of the right of expression come under the code of criminal law./
77. Freedom of assembly and association are also guaranteed, but the police must be notified in advance of any meetings or demonstrations./
78. The right to education is guaranteed and primary school is mandatory "under penalties to be prescribed by law."/ Secondary education is "open to all" but is not compulsory./
79. Freedom to work is guaranteed. The state guarantees equal working conditions to all workers regardless of their sex, and the right to fair wages, to rest, to a paid annual vacation and to a bonus./ The right to strike is recognized, but may be limited by law./
80. Private property is recognized and protected. Although nationalization and confiscation are prohibited, an exception is made for land reform./ Landowners in rural areas are obligated under the Constitution to protect their property against erosion, subject to the penalty prescribed by law for failure to fulfill this obligation./ The purpose of this provision is to address the problem of erosion of arable land, which has devastated Haiti's farming capacity.
81. Personal safety is guaranteed by the Constitution, and no Haitian may be deported or expelled "for any reason." Furthermore, no one may be deprived of his or her legal capacity or nationality for political reasons./ No Haitian needs a visa to leave or enter the country./ No house search or seizure of papers may take place except under the terms of the law./ Mail and other forms of communication are inviolable, and may only be limited by judicial ruling./
82. Persons detained temporarily awaiting trial must be held separately from those who are serving sentence/ and prisons must be operated "in accordance with standards reflecting respect for human dignity according to applicable legislation."/
83. Recognizing that both Creole and French are the official languages of Haiti,/ all laws, orders, decrees, international agreements, etc. must be published in both languages, except for "information concerning national security."/
C. Means to ensure protection of individual rights
84. The Constitution establishes the position of Protector of Citizens in order to protect all individuals against any type of abuse committed by the government./ The position is to be held for a seven-_ear term by a person elected by consensus by the President of the country, the President of the Senate and the President of the Chamber of Deputies./ The Protector of Citizens intervenes free of charge on behalf of any complainant, who does not need to be a Haitian citizen./
85. Other provisions of the Constitution designed to protect individual rights include the limitations and safeguards imposed on the government with respect to declaration of a state of siege and separation of the army and the police.
86. A state of siege may only be declared in the event of civil war or foreign invasion./ Accordingly, it cannot be declared to silence dissension, demonstrations or other disturbances. A state of siege must be declared by the President, with the approval of the Prime Minister and the entire Cabinet, and must include an immediate convening of the National Assembly to rule on the measure./ The state of siege is lifted if it is not renewed every two weeks by a vote of the National Assembly,/ which must remain in session for the entire duration of the state of siege./
87. The Constitution provides that no other armed corps besides the army and the police may exist in the country. In fact, it specifically stipulates: "No other armed corps may exist in the national territory,"/ a reference to dissolution of the notorious National Security Volunteers, popularly known as the "Tontons-Macoutes."
88. The duties of the Armed Forces consist of defending the state against any foreign aggression, although they may also be called upon to provide assistance in the case of natural disasters or for development work and "at the well-founded request of the executive, they may lend assistance to the police when the latter are unable to handle a situation."/
89. Military service is compulsory for all Haitian citizens who have attained eighteen years of age./ Haitians have the right to bear arms for use in self-defense, but only with express authorization from the Chief of Police,/ and the possession of firearms must be reported to the police./
90. The Constitution stipulates that the police operates under the authority of the Ministry of Justice/ and that its purpose is to "investigate violations, offenses and crimes committed, in order to identify and arrest the perpetrators."/
91. The Constitution also establishes that the members of the Armed Forces and the police are subject to "civil and penal liability according to the terms set forth in the Constitution and applicable legislation."/
D. Haiti's international obligations with respect to human rights
92. Haiti is a member of the Organization of American States and of the United Nations, the respective Charters of which establish respect for human rights.
93. On September 27, 1977, Haiti deposited its instrument of accession to the American Convention on Human Rights signed at San José. The American Convention entered into force on July 18, 1978, and Haiti is accordingly legally bound to respect the rights and freedoms established in the Convention and to guarantee for all persons under its jurisdiction, the full and free exercise of their rights, regardless of their race, color, gender, language, creed, political or other opinion, ethnic origin, social standing, financial situation, birth or any other social condition.
94. Article 276-2 of the Haitian Constitution stipulates that once treaties are ratified by Haiti they become part of the legislation of the country./ This provision is extremely important since the effect of it is that the American Convention on Human Rights is part of Haitian law, Haiti having ratified the Convention.
95. The American Convention is the only general instrument on human rights to which Haiti is a party. Haiti is, however, party to the following human rights instruments on prevention of discrimination: the International Convention on the Elimination of All Forms of Racial Discrimination (1965); the International Convention on the Elimination and Punishment of the Crime of Apartheid (1978); The ILO Convention concerning Remuneration for Men and Women Workers for Work of Equal Value (No. 100) (1951); and the ILO Convention concerning Discrimination in respect of Employment and Occupation (No. 111) (1958).
96. Haiti is likewise party to human rights conventions relating to the following: 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 the Traffic in and of the Exploitation of the Prostitution of Others (1949); the ILO Convention concerning the abolition of Forced labour (No. 29) (1930); the ILO Convention on the Abolition of Hard Labor (No. 105) (1957); the OAS Convention on Asylum (1928); the OAS Convention on Political Asylum (1933); the OAS Convention on Diplomatic Asylum (1954); and the OAS Convention on Territorial Asylum (1954).
97. Haiti is party to human rights instruments on the protection of particular groups such as: the ILO Convention concerning Freedom of Association and Protection of the Right to Organize (No. 87) (1948); the ILO Convention on the Application of the Principles of the Right to Organization and Collective Bargaining (No. 98) (1949); the United Nations Convention on the Political Rights of Women (1952); and Inter-American Convention on the Granting of Political Rights to Women (1948); and the four Geneva Conventions (1949, 1950).