The Constitutional Framework
Haitian heads of state have often drafted and abolished the nation's constitutions at will, treating the documents as their own personal charters. However, when the 1987 Constitution replaced the Duvalierist 1983 constitution, the popular referendum that ratified the Constitution was free and fair; it demonstrated widespread support for the new document. Nevertheless, the interim governments have not taken the provisions of the Constitution seriously. Through a simple presidential decree, Namphy suspended the document in 1988, and Avril only partially reinstated it in 1989.
The 1987 Constitution is a modern, progressive, democratic document. It guarantees a series of basic rights to the citizenry. It declares the intent to establish democracy in Haiti, and it includes ideological pluralism, electoral competition, and the separation of powers. Several provisions seek to reshape the system and the political tradition bequeathed to the nation by the Duvaliers. In particular, the Constitution reduces the president's constitutional powers, decentralizes governmental authority, and establishes elected councils for local government. Police and army functions are disaggregated. The Constitution also establishes an independent judiciary and subordinates military personnel to civilian courts in all cases that involve civilians. Under the Constitution, individuals are barred from public office for ten years if they have served as "architects" of the Duvalierist dictatorship, enriched themselves from public funds, inflicted torture on political prisoners, or committed political assassinations. The Constitution abolishes the death penalty and focuses on the protection of civil rights through detailed restrictions on the arrest and the detainment of citizens. It calls for the establishment of a career civil service based on merit and for job security, and it recognizes both Creole and French as official languages.
The Constitution establishes three major branches of government--legislative, executive, and judicial--and notes that these branches are essential to a civil state and that they must be independent of each other. Legislative powers are vested in two chambers, the House of Deputies and the Senate. Deputies and senators are elected by direct suffrage. Deputies represent municipalities (or communes), and senators represent geographic departments.
In the executive branch, the president of the republic serves as head of state. A prime minister, chosen by the president from the majority party in the legislature, heads the government. Other components of the executive branch include cabinet ministers and secretaries of state.
The judiciary consists of the Court of Cassation (supreme court), courts of appeal, and other smaller courts. The president appoints judges on the basis of lists submitted by various elected bodies, including the Senate and departmental and municipal assemblies.
The Constitution also provides for several special institutions and autonomous governmental offices that include the CEP, the Superior Court of Auditors and Administrative Disputes, the Conciliation Commission (a body responsible for settling disputes between executive and legislative branches and between the two houses of the legislature), the Office of Citizen Protection (an ombudsman organization established to protect citizens against abuse by the government), the State University of Haiti, the Haitian Academy (responsible for standardizing the Creole language), and the National Institute of Agrarian Reform.
The Constitution contains a number of provisions intended to guide the country during transitions between elected governments. These provisions include the creation of an electoral council with sufficient autonomy to hold local and national elections, free of outside interference. The Constitution calls for the replacement of the provisional council by a permanent electoral council following a transition to civilian government.
When General Avril reinstated the Constitution in March 1989, he created an electoral council according to the constitutional formula, but he also temporarily suspended thirty-eight articles. Under the partially restored Constitution, the president of the military government could exercise power until a presidential election was organized. Legislative powers were similarly suspended pending elections. The suspended constitutional elements included Article 42-1, Article 42-2, and Article 42-3, which require the trial of military personnel in civilian courts for charges of high treason or of conflicts and abuses involving civilians. Other suspended articles refer to the constitutional separation of powers among the executive, the legislative, and the judicial branches of government and the military. These suspensions immunized military personnel against legal charges stemming from the constitutional protection of citizen rights. They also allowed the military to carry out activities that the Constitution reserved for the executive or the legislative branches.
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