The following is how our blog addressed the constitutional crisis on June 5, 2011, which resurfaces this week. Had President Martelly taken the appropriate measures back then, this crisis would be nothing, but history today.
An article published by radiokiskeya.com on June 1st 2011 quoted President Martelly as saying that he would "reinstate the fundamental charter of 1987. Mr. Martelly made this statement in the context of what seems like a forgery whereas the text signed and published by Haiti's former President, Mr. Rene Preval, looks different from the one voted on by the legislature. With this happening, there are at least 3 speculations as to whom tampered with Haiti's constitutional amendments. One of the speculations contends that some members of the legislative body falsified the amended text before sending it to President Preval to be signed. Another speculation is that President Preval himself perpetrated the fraud. The third speculation points to some error at The Moniteur, Haiti's official gazette in which all the country's official documents are published.
A few questions have been raised relative to this situation. First question: Did President Martelly sworn in under the original 1987 constitution or the amended one signed and published in The Moniteur by President Preval? Second question: should President Martelly adjust the amended text as publicly voted by the legislative body and republish it in The Moniteur? Third question: is president Martelly mandated by the constitution to republish such amendments and apply them as the current President?
ANSWER # 1: In stating that he would "reinstate the fundamental charter of 1987", Mr. Martelly acknowledges having sworning in under the erroneous version of the constitution published by former President Rene Preval. This supposes that President Martelly took power under a constitution that was not legally bound. Hence, if the 1987 constitution is reinstated in its original version, President Martelly may have to sworn in a second time.
ANSWER # 2: Given Haiti's recent past, it is not given to President Matelly or any other President for that matter the right to unilaterally overrule either version of the constitution. Accepting something of this nature from any President would take us back 50 years in the wrong direction when Francois Duvalier decided to amend the constitution and proclaim himself President for life. In the case of a situation such like this one, the constitution empowers the Commission of Conciliation to decide, not the President. Therefore, in order to find a resolution to this apparent imbroglio, President Martelly needs to convoke the Commission of Conciliation in accordance with article 206 of either version of the constitution. Article 206 stipulates the following: "the Commission of Conciliation convenes when there is dispute between the executive branch and the legislative branch or the two branches of Parliament". There is clearly dispute between the legislative and the executive to the extent that the amendments ratified by the Parliament were not those published by then President Preval, which has caused President Martelly to repeal it. According to article 206 of the constitution, the Commission of Conciliation is composed as follows:
a) the President of Haiti Supreme Court as President of the Commission;
b) the President of the Senate as Vice-President;
c) the President of Congress as Member;
d) the President of the Permanent Electoral Council as Member;
e) the Vice-President of the Permanent Electoral Council as Member;
f) two ministers designated by the President of the Republic as Members.
Some may argue that the Commission of Conciliation cannot be constituted because the country does not currently have a Permanent Electoral Council and the current government has already resigned through the resignation of Prime Minister Max Bellerive who served under President Preval. However, this argument does not stand. First, the Provisional Electoral Council, which has been in force since 1987 and organizing all elections since then, can substitute for the Permanent Electoral Council. Second, whether it is true that the current government has resigned, it still holds some legitimacy from the constitution's point of view for the sake of the state continuity. Another argument might be that Mr. Gaillot Dorsainville, the current President of the Provisional Electoral Council, has fled the country and it would be impossible to replace him on the Commission of Conciliation. Instead of fleeing the country, what if he were indefinitely incapacitated due to illness? He would obviously be replaced on the Provisional Electoral Council. May he then be replaced immediately to facilitate the formation of the Commission of Conciliation.
ANSWER # 3: Under the Haitian constitution, proposed amendments are voted on during the last session of Parliament and ratified or rejected by the new Parliament. The constitution is clear as to which President benefits from the amendments. The President under the leadership of whom the amendments are introduced cannot apply them. Likewise, the President who publishes such amendments cannot apply them either. This was put in place in the constitution to safeguard against any dictatorial tendency of a President or a government. Therefore, unless he recourses to the Commission of Conciliation's arbitration, President Martelly is not mandated to republish the amendments in question. Doing so without the blessing of the Commission of Conciliation would be a flagrant violation of the Haitian constitution.
It is one thing to love a President, but letting him do away with the constitution as he sees fit is something the Haitian people should not put up with if they want to deter dictatorship forever.
Reginald Villier
June 5, 2011
http://www.haitisuntimes.com/
An article published by radiokiskeya.com on June 1st 2011 quoted President Martelly as saying that he would "reinstate the fundamental charter of 1987. Mr. Martelly made this statement in the context of what seems like a forgery whereas the text signed and published by Haiti's former President, Mr. Rene Preval, looks different from the one voted on by the legislature. With this happening, there are at least 3 speculations as to whom tampered with Haiti's constitutional amendments. One of the speculations contends that some members of the legislative body falsified the amended text before sending it to President Preval to be signed. Another speculation is that President Preval himself perpetrated the fraud. The third speculation points to some error at The Moniteur, Haiti's official gazette in which all the country's official documents are published.
A few questions have been raised relative to this situation. First question: Did President Martelly sworn in under the original 1987 constitution or the amended one signed and published in The Moniteur by President Preval? Second question: should President Martelly adjust the amended text as publicly voted by the legislative body and republish it in The Moniteur? Third question: is president Martelly mandated by the constitution to republish such amendments and apply them as the current President?
ANSWER # 1: In stating that he would "reinstate the fundamental charter of 1987", Mr. Martelly acknowledges having sworning in under the erroneous version of the constitution published by former President Rene Preval. This supposes that President Martelly took power under a constitution that was not legally bound. Hence, if the 1987 constitution is reinstated in its original version, President Martelly may have to sworn in a second time.
ANSWER # 2: Given Haiti's recent past, it is not given to President Matelly or any other President for that matter the right to unilaterally overrule either version of the constitution. Accepting something of this nature from any President would take us back 50 years in the wrong direction when Francois Duvalier decided to amend the constitution and proclaim himself President for life. In the case of a situation such like this one, the constitution empowers the Commission of Conciliation to decide, not the President. Therefore, in order to find a resolution to this apparent imbroglio, President Martelly needs to convoke the Commission of Conciliation in accordance with article 206 of either version of the constitution. Article 206 stipulates the following: "the Commission of Conciliation convenes when there is dispute between the executive branch and the legislative branch or the two branches of Parliament". There is clearly dispute between the legislative and the executive to the extent that the amendments ratified by the Parliament were not those published by then President Preval, which has caused President Martelly to repeal it. According to article 206 of the constitution, the Commission of Conciliation is composed as follows:
a) the President of Haiti Supreme Court as President of the Commission;
b) the President of the Senate as Vice-President;
c) the President of Congress as Member;
d) the President of the Permanent Electoral Council as Member;
e) the Vice-President of the Permanent Electoral Council as Member;
f) two ministers designated by the President of the Republic as Members.
Some may argue that the Commission of Conciliation cannot be constituted because the country does not currently have a Permanent Electoral Council and the current government has already resigned through the resignation of Prime Minister Max Bellerive who served under President Preval. However, this argument does not stand. First, the Provisional Electoral Council, which has been in force since 1987 and organizing all elections since then, can substitute for the Permanent Electoral Council. Second, whether it is true that the current government has resigned, it still holds some legitimacy from the constitution's point of view for the sake of the state continuity. Another argument might be that Mr. Gaillot Dorsainville, the current President of the Provisional Electoral Council, has fled the country and it would be impossible to replace him on the Commission of Conciliation. Instead of fleeing the country, what if he were indefinitely incapacitated due to illness? He would obviously be replaced on the Provisional Electoral Council. May he then be replaced immediately to facilitate the formation of the Commission of Conciliation.
ANSWER # 3: Under the Haitian constitution, proposed amendments are voted on during the last session of Parliament and ratified or rejected by the new Parliament. The constitution is clear as to which President benefits from the amendments. The President under the leadership of whom the amendments are introduced cannot apply them. Likewise, the President who publishes such amendments cannot apply them either. This was put in place in the constitution to safeguard against any dictatorial tendency of a President or a government. Therefore, unless he recourses to the Commission of Conciliation's arbitration, President Martelly is not mandated to republish the amendments in question. Doing so without the blessing of the Commission of Conciliation would be a flagrant violation of the Haitian constitution.
It is one thing to love a President, but letting him do away with the constitution as he sees fit is something the Haitian people should not put up with if they want to deter dictatorship forever.
Reginald Villier
June 5, 2011
http://www.haitisuntimes.com/
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