CHAPTER I

LEGAL FRAMEWORK

A.       Haiti’s international obligations in the field of human rights

          1.          Haiti has assumed certain international obligations in the field of human rights. It has signed the United Nations Charter and the Charter of the OAS, and has approved the Universal Declaration of Human Rights. Haiti is also a member of the ILO, UNESCO and other international organizations.

          2.          On February 27, 1977, Haiti deposited its instrument of accession to the American Convention on Human Rights (Pact of San José). The Convention entered into force on July 18, 1978. As a result, Haiti is legally obliged to observe the rights and freedoms upheld in the Convention, and to guarantee all persons under its jurisdiction free and full exercise of their rights, without discrimination for reasons of race, color, sex, language, religion, political or other opinions, national origin or social position, economic situation, birth, or any other social condition (Article 1, paragraph 2).

          Article 2 of the Convention obliges the States Parties to adopt such domestic laws as may be necessary to make these rights and freedoms effective. The State Secretary for the Departments of the Interior and National Defense referred to this issue in his note of August 25, 1978:

         As of now, this legislation (i.e. decrees conferring full powers on the Head of State) will henceforth be adapted to the Charter on human rights, which has had the force of law in the country since it was ratified.1

          3.          Haiti has also ratified international instruments regarding the protection of specific rights, such as the Convention for the prevention and repression of genocide, and the ILO Convention (Nº 29) on Forced Labor.2 Haiti has denounced the inter-American conventions on the right of asylum,3 by issuing four decrees dated July 27, 1967. These decrees were later annulled and replaced by four other decrees dated January 28, 1973, “in order to re-establish in conformity with prescribed procedures, the rights and obligations of the Republic of Haiti as a party” to each of these conventions on asylum.

B.       The 1964 Constitution and the reforms of 1971

          1.          The present Constitution in force in Haiti was promulgated in 1964.4 The Constitution was amended on January 14, 1971, by a number of reforms dealing with the form of election of the President for Life and the minimum age requirements for public office.5 According to the government, the Constitution was “repromulgated” in its entirety by the National Assembly at that time.

          The text of the Constitution adopted in 1971 consists of 201 articles divided into 15 chapters. For the purposes of the present report, the most important provisions are those defining the rights and guarantees of the inhabitants of the Republic (Title I), those determining the organization of government (Title IV), and those regulating the state of siege and amendments to the Constitution (Titles XIII and XIV).

          2.          The following individual rights and guarantees are upheld in the 1971 Constitution: the right to personal freedom (Article 17), and to personal security (Article 17, paragraph 8), the right to be judged by one’s peers (Article 18), the right to property (Article 22), freedom of expression (Article 26), freedom of religion (Article 27), freedom of assembly (Article 31), and the right of association (Article 32). It also establishes the conditions for lawful arrests, detentions and proceedings (Article 17); illegal search and seizure (Article 19), and of illegal sentencing (nullum crimen nulla poena sine lege) (Article 21). All cases of detention must be brought before a judge within forty-eight hours to determine the legality of the measure (Article 17). The death penalty is forbidden in political cases, except in the case of treason (Article 25). It should be pointed out that the anti-communist law of April 28, 1967 prescribed the death penalty for the mere expression of ideas that are judged to be communist (See Chapter IV).

          The Constitution also establishes the principles of the supremacy of the Constitution (Article 38), the principle of the non-retroactivity of legislation (the most benignant penal laws) (Article 20), inviolability of the mails (Article 54) and the principle of equality before the law (Article 16), a principle that is limited in the case of aliens (Title II, Chapter III).

          As will be seen below, the rights, guarantees and principles mentioned above are subject in many cases to certain duties and to limitations set forth in the regulations.

          3.          The 1971 Constitution organizes the government into three branches: The executive, the legislative and the judiciary (Article 47). The three branches of government are independent of each other and may not delegate their powers nor exceed their mandates (Article 48).

          Legislative authority is exercised by a single chamber called the legislative Chamber (Article 49). In certain cases, notably for purposes of revising the Constitution or when it serves as the Supreme Court of Justice, the Chamber takes the name of the National Assembly (Articles 55 and 56). The Chamber normally sits for only three months of the year, but the session may be prolonged (Article 61). Laws are passed by the Chamber and promulgated by the Executive, which has the right of veto. Nonetheless, it is not an absolute veto power since it can be over-ridden by a two-thirds vote of the members of the Chamber (Articles 68 and 79). The Constitution is precise and detailed in spelling out the inviolability of the members of the Legislature (Articles 70, 71 and 72).

          Executive authority is conferred upon a citizen titled President of the Republic (Article 90). The minimum age at which one can become president was 40 under the 1964 Constitution and has been reduced to 18 by the 1971 amendment (Article 91). Article 87 of the 1957 Constitution, which limited the President’s term of office to six years, was deleted from the 1964 and 1971 texts. Dr. François Duvalier was designated President-for-Life (Article 99), with the authority to appoint his successor (Article 100), who also has a mandate for life (Article 104).

          The Executive Branch has very considerable powers. The President is responsible for the overall administration of the country, for the appointment and dismissal of Cabinet members and public servants, for promulgating the laws, for adopting regulations for the conduct of foreign affairs, and for commanding the Armed Forces, the Police and the National Security Volunteers (Articles 93 and 187). Nonetheless, the President may not grant amnesties except for political matters, and in accordance with the law (Article 93, last paragraph), and in general, has only those powers granted him under the Constitution and the laws (Article 95).

          Judicial power is exercised by the Supreme Court (Cour de cassation), the Court of Appeal and the lower courts. Judges are appointed by the President for six years; they may not be removed from their positions during their term, except for “special laws setting forth the reasons for which they are removed from that post” (Article 111). Employees of the Public Prosecutor’s Office and justices of the peace may be appointed and dismissed by the President without restriction.

          The Supreme Court (Cour de Cassation) has the power of judicial review by which it can declare laws unconstitutional in all cases brought before it. It also acts as an appeals court for all military court decisions (Articles 121 and 120). As a general rule, the courts may not enforce governmental administrative orders or decrees unless they are in conformity with the law (Article 125). Except for certain limitations all hearings must be public, however, cases involving political or press offences are prohibited from being heard in private (Article 122).

          4.          The 1964 and 1971 Constitutions are flexible. The Legislature may rule on the need for total or partial amendment, without the need for special majorities. It may continue to sit under the name of National Assembly, decree such amendments as it deems useful (Article 198, official text: Article 199, text of the version of the National Press of Haiti).

C.          Emergency Legislation

1.       State of Siege

          On May 2, 1958, the Haitian Legislature proclaimed the state of siege.6 This law also authorized the Executive to determine what portion of the territory was placed under a stage of siege, and suspended certain individual guarantees defined in the Constitution then in force.

          On the same date, an Executive Order extended the state of siege to the entire national territory.7 Shortly afterwards, the Legislature adopted a decree suspending other guarantees and conferring full powers on the President for a six-month period “to take all measures he considers necessary for the internal and external security of the state, and to safeguard the interests of the nation, by means of Decrees having the force of law.”8 In its observations, the Government makes known that due to the repromulgation of its Constitution in 1971, the existence of the state of siege ceased at that time.

          Article 195 of the 1964 Constitution stipulated as follows:

         No place and no part of the territory may be declared to be in a state of siege except in cases of a civil disorder or an imminent invasion by foreign forces.

         An act issued by the President of the Republic declaring a state of siege must be signed by all the State Secretaries and shall provide for the immediate convocation of the Legislature to rule on the appropriateness of the measure.

         The Legislature shall decree, with the Executive Branch, which of the constitutional guarantees may be suspended in the parts of the territory placed under a state of siege.

         The impact of the state of siege on the country shall be governed by a special law.

The 1971 Constitution has an identical text (Article 197, official edition; Article 198, edition of the National Press of Haiti).9

2.       Full powers and suspension of constitutional guarantees

          Both during the presidency of François Duvalier and under the present government, the Legislature at the end of its annual sessions has been in the habit of passing a number of decrees conferring full powers on the Chief Executive during the legislative recesses, and suspending the most important constitutional guarantees for the same period of time. Generally speaking, these recesses last from August until April of the following year, during which time the Haitian people are deprived of the constitutional protection of their most fundamental human rights.

          Each year from 1964 to 1970, under the regime of the 1964 Constitution, the Legislature suspended the guarantees upheld in twenty-four (later twenty-three) articles of the Constitution.10 From 1971 to the present, it has been much more difficult to determine which guarantees have been affected by the decrees in question. By way of example, the Legislative Decree of August 25, 197711 provides as follows:

         Article 1. The Guarantees set forth in Articles 17, 18, 19, 20, 25, 31, 34, 48, 70, 71, 72, 93 (last paragraph), 95, 112, 113, 122 (second paragraph), 150, 151, 155, 193 and 198 of the Constitution are hereby suspended.

         Article 2. Full powers are hereby given to the Chief Executive to enable him, until the second Monday in April 1978, to take all measures he may deem necessary to safeguard the territorial integrity of the nation and the sovereignty of the State, to consolidate peace and order, to maintain national political, economic and financial stability, to expand the well-being of the rural and urban population and to defend the general interest of the Republic, by means of decrees having the force of law.

          From 1964-1971, during which time the Constitution was in force, the most important individual guarantees were suspended each year for long periods of time, as a matter of routine. The result was that without these guarantees, there was insufficient protection for the rights consecrated in the American Declaration of the Rights and Duties of Man. Government spokesmen have insisted that the annual decrees of full powers and suspension of guarantees are vital if government programs are to be carried out, and that the practice must therefore be continued in the future. The Government has nonetheless stated that in the future these decrees must abide by the standards of the American Convention on Human Rights.12

          It should be noted that the February 1979 legislative elections were held during a period of full powers (pleins pouvoirs), during which the constitutional protection of the fundamental rights was suspended.  

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