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By Jean-Michel Voltaire, Esq |
March 10, 2007: "Some men look at constitutions with sanctimonious reverence, and deem them like the arc [sic] of the covenant, too sacred to be touched. They ascribe to the men of the preceding age wisdom more than human, and suppose what they did to be beyond amendment . . . . I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting
their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors . . . ." Those words of wisdom are of Thomas Jefferson, and those words are important to the current debate on the 1987 Haitian Constitution.
In the debate, there are three categories of individuals: (1) those who view the Constitution as too sacred to be updated regardless of its ill effects, (2) those who favor amendment, and (3) those that are for a revision. The first group is wrong, because a constitution is not a holy document, but a legal and political one that should reflect the values, traditions, and aspirations of the people. It is purely a human construction originating in the desire for self-preservation, and the people can determine whether or not it is outdated. If it is, the people can change it. In other words, unlike the Holy Scriptures that are the words of God and therefore are unalterable, there is no law that cannot be revoked, changed, or revised by the people if the people are going to be governed by it.
With regards to the second group, they argue that the Constitution should be amended through the existing amendment process. As a student of jurisprudence, I understand the importance of following procedures, but, unfortunately, the Constitution makes it almost impossible to be amended. It is the most difficult to amend of any existing constitution in the world.
Articles 282-284 set forth the amendment process. For example, Article 282-1 requires that any proposed amendment be approved by 2/3 of each house at the last regular session of the legislative period. Then at the first session of the next legislative period, the houses must sit in National Assembly (2/3 of members of each house must be present) and vote on the amendment. If 2/3 of members voted in favor of the amendment, the amendment would pass. See Art. 284-1. The amendment, however, would not be effective until after the next president is elected, and the president under which the amendment was passed "cannot benefit from any advantages deriving therefrom." Art. 284-2.
The above described amendment process would take at least eight (8) years to complete if there were no delay. Under certain circumstances, however, it might even take longer. For example, the current Parliament cannot propose an amendment earlier than 2010, which constitutes the last legislative session. If two-third voted in favor of the proposed amendment in 2010, the following legislature could consider the amendment only during the first session, which would be 2011. If for any reason (for example, lack of
corum), the National Assembly could meet in 2011 to consider the amendment, the amendment would be dead. The whole amendment process must start all over again, because the Constitution specifically states that the National Assembly must meet at the first session (not the second, third, or fourth session). See Art. 283. Furthermore, adding insult to injury, the Constitution prohibits popular referendum. Thus, the country would be unable to respond to various crises of human affairs if constitutional reform were necessary to address those crises.
Consequently, as much as I would like the amendment process to be strictly followed, but, because the Constitution is almost impossible to amend, I would propose the current Government seek a political consensus to "revise" the document to reflect the democratic ideals of our republic. First, the government should create a Constitutional Commission consists of members of the Government, Parliament, Civil Society (including the Haitian Bar Association and members the Haitian Diaspora), and representatives from the ten most popular political parties as determined by the last presidential elections. Second, the Commission would review the Constitution and propose a constitutional revision. Third, this proposed constitutional revision would be submitted to the Parliament, and two-third of votes is required for passage. Fourth, the People would ratify the constitutional revision through a Referendum. A
favorable popular vote on the revised constitution would be effective immediately, and that document would constitute the new social contract that the whole people have agreed to live by.
A constitution is a social contract by which the whole people covenants with each other to (1) establish a system of government, (2) prescribe the limit of the sovereign power and the manner of exercising that power, and (3) guarantee the fundamental rights of the people. The people are free and equal, and their society should be a reflection of their progress, based on common interests. The people can revised what they originally created. Thus, any constitutional reform through the criteria set forth above would be legitimate, because the source of all legitimacy is in the people at large as opposed to the monarch or the aristocrats or any other segment. It
would represent the will of the people, and only they or their duly elected representatives can establish law.
When the Constitution was ratified on March 29, 1987 through a Referendum, it was one year after the fall of the brutal and dictatorial Duvalier regime, a period marked by heated passions, emotions, and mob violence. Several articles were included for improper reasons. For example, Article 291 was added to exclude a category of Haitians from participating in the political process for ten years. This Article served as the impetus for the favorable vote on the Constitution. This spirit of exclusion and division, however, was extended even further, through Article 15, which prohibited dual nationality. In effect, all Haitians who fled their country either for political or economic reasons and who have acquired a foreign passport to enable their family to join them were barred from participating in Haiti's
political process. Those Haitians cannot vote, run for office, or serve in high level positions within the government. The rights of those Haitians to invest in their country were even curtailed, because they cannot own more than one piece of real estate in one department.
Despite the exclusionary provisions of the Constitution, the Haitian Diaspora remains active and engaged in the affairs of the country. For example, the Haitian Diaspora is the engine of the country's economy through its $1.65 billion dollars a year in remittances, more than twice the foreign aids that the country receives. In the past years, the Haitian Diaspora counted for 95% of Haiti's tourists. The Diaspora also establishes hundred of regional organizations within their host countries to build schools, medical clinics, and housings in different regions of Haiti. Furthermore, the Haitians in Miami have even created their own "Little Haiti" to maintain their culture and traditions. In solidarity with the mainland Haitians, the Diaspora has routinely taken the streets protesting the mistreatment of Haitian refugees or the misguided policies of foreign governments towards Haiti. Without questions, the Haitian Diaspora's love and patriotism for its country are unquestioned, and they should be included in the political process.
Haiti is not the only country in the past decades to confront the issue of dual nationality. Since the fall of the Soviet Union, many countries have recognized their Diaspora economic and human capacity, and revised their laws to allow dual nationality to attract more direct investments from their expatriates. For those countries, recognizing the rights of their expatriates is a moral issue; a matter of justice as well as economic. As of 2007, more than ninety (90) countries provide for dual nationality; those countries include most of
Europe, Latin America, Canada, Mexico, and the Caribbean. There is no evidence of adverse effects on national cohesion or security. On the contrary, those countries have prospered economically and have fostered stronger and better relationship with their Diaspora.
Haiti should not be the exception and should welcome its Diaspora within its family. Haiti is a special and unique country in the history of humanity, a country that opened History's eyes to the evil of slavery and taught the world the enduring lesson of freedom. Our forefathers did not fight for their freedom alone; they fought for the freedom and the soul of humanity. They died for the freedom of their children and grandchildren, and created a new nation, with the motto of "L'Union Fait la Force," conceived in liberty and national unity, a nation that served as the symbol of freedom to million of people around the world.
Two hundred (200) years after independence, however, Haiti has not lived up to its creed. The motto of "L'Union Fait La Force" is no longer a cherished ideal. Division and exclusion have become the norms, which have brought Haiti to its knees, causing a majority of Haiti's children to be living at the edge of human existence, in deep poverty, illiteracy, unemployment, and insecurity that have shattered the hopes and aspirations of several generations. According to World Bank's recent report, eighty-three (83%) of Haiti's professionals are living outside of the country. One must ask how such a country deprived of its best children can be prosperous. So, it is time to stop the politic of division, to look beyond self-interests, to be more enlightened and more progressive and inclusive both in our actions and attitudes.
Furthermore, there are other structural, but fundamental changes that should be considered in the constitutional reform. The Constitution provides that the president of the cour de cassation would assume power in case of a presidential vacancy. That needs to be changed. The Prime Minister should be the one to take over if the president is either incapacitated or absent to ensure the continuity of government. The Prime Minister, as the head of government, is better suited to lead than an obscure judge at the cour de cassation who may have no experience in government.
The revised constitution must strengthen the separation of powers. In 1999, President Preval dissolved Parliament with no political consequences. In 2005, de facto Prime Minister Latortue fired five cour de cassation judges for political reasons. Those actions were dictatorial and illegal. The new constitution must clarify that under no circumstance can the executive unilaterally dismiss cour de cassation judges or dissolve Parliament, and it would be an impeachable offense to do so or attempt to do so. The constitution must also include the process for impeaching the president for high crimes.
Moreover, we need a stronger judiciary, and one that is independent. Currently, the judiciary is partially under the jurisdiction of the Minister of Justice. For example, one of the cour de cassation judges told me recently that he needed to obtain the approval of the Minister of Justice in order to take a two-week vacation. This is absurd.
Of course, those factors I have outlined above are not the exclusive flaws with the current constitution. But, I welcome an intelligent debate on this important issue.