doc. 9 rev. 1
September 1988
Original: English



  ... continued





83.          The 1987 Constitution declared Haiti to be "an indivisible, sovereign, independent, cooperatist, free, democratic and social republic.66   This provision adds the notion of "cooperatist" to the formulation of the 1983 (amended) Constitution.  As in the earlier Constitution, the structure of the political organization is that of the traditional democratic state.  Articles 58, 59 and 60 provide that sovereignty is vested in all citizens and that all citizens delegate the exercise of that sovereignty to the three branches of government:  the executive, legislative and judicial.  Each branch is independent of the other two, and none may go beyond the bounds set for them by the Constitution and by the law. 


The Executive Branch



          84.          The 1987 Constitution (like the 1985 amendments to the 1983 Constitution), provides that the executive power is to be exercised by the President of the Republic and by the Government.


          85.          Under the Duvalier Constitution, the President named the Prime Minister, but Jean-Claude Duvalier, as President, was also the Head of the Government.  The Prime Minister was a figure without power.  Under the 1987 Constitution the Prime Minister, not the President, is mandated by the Constitution to conduct the policy of the nation.67


                86.          Cabinet members, pursuant to the 1987 Constitution, are chosen by the Prime Minister with the approval of the President.68   During the two-year period of the interim military government the CNG shuffled the cabinet four times.


          87.          Checks are placed on the abuse of power by the Executive branch by the High Court of Justice, which has the authority to try the following persons, including the President and the Prime Minister, for certain offenses.69


a)      The President of the Republic for the crime of high treason or any other crime or offense committed in the discharge of his duties;


b)      The Prime Minister, the Ministers and the Secretaries of State for crimes of high treason and embezzlement or abuse of power or any other crimes or offenses committed in the discharge of their duties;


c)       Members of the Permanent Electoral Council and the Superior Court of Auditors and the Court of Administrative Disputes for serious offenses committed in the discharge of their duties;


d)       Supreme Court justices and officers of the Public Prosecutor's Office before the Court of Cassation;


e) The Protector of Citizens (Protecteur du citoyen).  


          88.          In Addition, a Conciliation was established under the 1987 Constitution which is to settle disputes between the Executive Branch and the Legislative and the two Houses of Legislature.70   The precise functions of this Commission were to be regulated by the law.71 


The Legislative Branch


          89.          The Duvalier Constitution provided for a unicameral legislature which was dominated and manipulated by the Executive.  The 1987 Constitution provided for a bicameral legislature comprising a House of Deputies and a Senate.72



          90.          Pursuant to the 1987 Constitution to be elected a member of the House of Deputies,73  a person must:


1)       Be a Haitian by origin and have never renounced his nationality;


2)       Have attained twenty-five (25) years of age;


3)       Enjoy civil and political rights and never have been sentenced to death, personal restraint or penal servitude or the loss of civil rights for any crime of ordinary law;


4)       Have resided at least two (2) consecutive years prior to the date of the elections in the electoral district he is to represent;


5)       Own at least one real property in the district and practice a profession or trade;


6)       Have been relieved, if need be, of any liability (avoir reçu décharge) as a manager of public funds.


A deputy is elected for a 4-year term and may be reelected.


          91.          Pursuant to the 1987 Constitution, to be elected a member of the Senate74  a person must:


          1)      Be a Haitian by origin and never have renounced his nationality;

          2)      Have attained thirty (30) years of age;

3)       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;

4)       Have resided in the Department he will represent, at least four (4) consecutive years prior to the date of the elections;

5)       Own at least one (1) real property in the Department and practice a profession or trade there;


6)       Have been relieved, if need be, of any liability (avoir reçu décharge) as a manager of public funds.



92.          A senator is elected for a 6-year term and may be reelected.  In addition, pursuant to Article 291 of the 1987 Constitution, the most important prerequisite is that a candidate for the Senate or House of Deputies not has had ties to the Duvalier regimes, as such ties would disqualify him for public office.


          93.          The 1987 Constitution provides that the House of Deputies and the Senate, meeting together, comprise the National Assembly.  The legislative session commences with the meeting of the National Assembly.  The first legislative session of the House of Deputies runs from the second Monday of January to the second Monday of May and the second session runs from the second Monday of June to the second Monday of September.75   The Senate is permanently in session.76   In no case may the House of Deputies or the Senate be dissolved or adjourned.77  Pursuant to the Duvalierist Constitution the President was constitutionally empowered to dissolve the legislature in cases of conflict between the Executive and the Legislative branches.  The 1987 Constitution provides for a Conciliation Commission to settle disputes between these two branches of Government.


          94.          The functions of the Legislature reflect those of the previous Constitution as regards the power to make laws.78   As in the previous Constitution laws can be initiated by either House of the legislature or by the Executive.79   Similarly, additional powers are granted to the Legislature when it meets as a National Assembly, such as to receive the constitutional oath of the President, to ratify the decision to declare war, to approve or reject treaties and to amend the Constitution.80


          95.          Meetings of the National Assembly are public unless a minimum of five members request that they be held in closed session.81   Members of the Legislature are inviolable (immune from lawsuits) from the date on which they take their oath of office until the expiration of their mandate.82


          96.          As a result of the elections of January 17, 1988, according to ex-President-for-Life Jean Claude Duvalier, 60% of the persons elected to serve in the Haitian legislature during the Manigat government were Duvalierists.83   In the opinion of many Haitians with whom the Commission spoke during its August 1988 visit, the January 1988 elections were unconstitutional, in light of the fact the Article 291 bars Duvalierists from standing for public office for a period of ten years. 


The Judicial Branch


          97.          The Judicial power under the 1987 Constitution is vested in the high court known as the Court de Cassation, the Courts of Appeal, Courts of First Instance, Justice of the Peace Courts and Special Courts.84   In addition, as mentioned above, the Constitution contemplates a High Court of Justice, which is the Senate sitting as a tribunal to consider political cases such as the impeachment of the President for treason.


          98.          Judges of the Cour de Cassation and the Courts of Appeal are appointed for a term of ten years.  Judges of the Courts of First Instance are appointed for seven-year terms.85   Judges of the Cour de Cassation are appointed by the President, from a list of at least three per seat, submitted by the Senate.86   The judges of the Cour de Cassation, the Courts of Appeal and the Courts of First Instance may not be removed from office.87


          99.          As regards political offenses, the Constitution does provide for the creation of special courts, the jurisdiction of which, however, must be determined by law.88   The Court of State Security (Tribunal de Sûreté de l'Etat), created by the Duvalier regime, has been abolished.89   The Constitution further provides that sentences may not be delivered in closed sessions in cases involving political offenses or the press.90 


a.       Rights and Guarantees under the 1987 Constitution


          100.          The 1987 Constitution consists of a Preamble and fifteen titles containing 298 articles.  Of the fifteen titles of the Constitution, Title III deals with individual rights and is entitled "Basic Rights and Duties of the Citizen" and Title IV deals with "Aliens".


          101.          The 1987 Constitution declares all Haitians to be equal before the law91  but as in the Duvalier constitutions, certain benefits are conferred on Haitians d'origine.  A Haitian "of origin" is defined as a person born of at least one Haitian parent, who (i.e., the parent) was born Haitian, and who never renounced Haitian nationality.  The racial provision in the Duvalier constitutions, granting a black person, born in Haiti, but of foreign parents, Haitien d'origine status, has not been incorporated into de 1987 Constitution.


          102.          Pursuant to the 1987 Constitution, the President, the Prime minister, the Deputies and the Senators must all be Haitians "of origin".


          103.          The 1987 Constitution provides that any Haitian who has adopted a foreign nationality during the twenty-nine years of the Duvalier regime, may recuperate her or his nationality, if, within two years of the publication of the Constitution, s/he makes a declaration to the Minister of Justice, for that purpose.92   This provision however, does not appear to entitle the individual making this declaration to the recovery of his Haitien d'origine status.


          104.          The 1987 Constitution sets forth the basic rights of citizens as well as their duties.


          105.          The age of majority is defined as 18 years93  at which the exercise of political and civil rights commences.94   The death penalty is abolished for all crimes.95


                106.          Individual liberty is guaranteed and no one may be prosecuted, arrested or detained unless pursuant to law.96   No one may be detained without a warrant unless caught in the act of committing a crime,97   and no arrest warrant may be carried out between 6 p.m. and 6 a.m.98   No one may be kept under arrest for more than 48 hours unless he has been brought before a judge who has been called to rule upon the legality thereof, and the judge has confirmed the arrest by a well-founded decision.99    Torture, or any form of coercion is prohibited by the 1987 Constitution100  and the detainee may only be interrogated in the presence of his attorney or a witness of choice.101  


          107.          Violators of the constitutional provisions on individual liberty are subject to law suits and the government officials responsible for such acts are directly liable under civil and administrative criminal laws.102


          108.          Freedom of expression is guaranteed and all offenses involving the press and abuses of the right of expression come under the criminal code.102


             109.          Freedom of association as well as the freedom not to join an association are guaranteed.  In addition, the police must be informed, in advance, of public assemblies or demonstrations.104


          110.          The right to education is guaranteed and primary school is compulsory [under penalties to be prescribed by law.105   In a nation with, at least, a 70% rate of illiteracy, one can only surmise what sort of penalties will be imposed.  Higher education, i.e. post-primary school, is "open to all", it is not compulsory.106   It is not specified in the Constitution whether primary school is considered to comprise six or twelve years.


          111.          The right to work is guaranteed.  The State guarantees workers equal working conditions, regardless of sex, and workers are entitled to a fair wage, to rest, to a paid annual vacation and to an annual bonus.107   The right to strike is recognized and may be limited by law.108


          112.          Private property is recognized and protected.  Although nationalization and confiscation are prohibited, land reform is contemplated as an exception to this blanket prohibition.109   The landowner is also constitutionally obliged to protect the land against erosion, and failure to do so would make him subject to criminal penalties.110   The process of erosion of the Haitian arable lands has systematically destroyed the country's agricultural capacity and this constitutional provision attempts to deal with this deteriorating problem.


          113.          Personal security is constitutionally guaranteed and no Haitian may be deported or expelled "for any reason".  In addition, no one may be deprived of his legal capacity or his nationality for political reasons.111   Unlike the Duvalier era, Haitians no longer require a visa to leave or return to haiti.112   No search and seizure may be conducted except pursuant to law113  and correspondence and other forms of communication are inviolable.  Communication may only be limited pursuant to judicial order.114


                114.          Persons in detention are to be held separately from persons serving sentence115 and prisons must be run "in accordance with standards reflecting respect for human dignity according to the law on the subject".116


          115.          In addition, in recognition of the fact that both Creole and French are the official languages of Haiti,117 all laws, decrees, treaties, etc., except "information concerning national security" must be published by the State in both languages.118 


b.          Mechanisms established to protect individual rights under the 1987 Constitution


          116.          Approximately one million Haitians fled from Haiti during the Duvalier regimes.119   Many fled involuntarily to escape political repression whereas others fled voluntarily to seek a better life elsewhere.  The 1987 Constitution takes into consideration the situation of these voluntary and involuntary expatriates in its various articles.


          117.          The Constitution provides that any Haitian who was the victim of the confiscation of his property during the Duvalier period may "recover his property before a court of competent jurisdiction.120    In addition, death sentences, detention, imprisonment or the loss of civil rights during this period "shall constitute no impediment to the exercise of civil and political rights."121


                118.          In addition, all laws and decrees "arbitrarily limiting the basic rights and liberties of citizens," are repealed,122 in particular:



          a)     The decree law of September 5, 11935 on superstitious beliefs;


b)      The law of August 2, 1977 establishing the Court of State Security (Tribunal de la Sûreté de l'Etat);


c)      The law of July 28, 1975 placing the lands of the Artibonite Valley in a special status; and


d)      The law of April 29, 1969 condemning all imported doctrines.


119.          Further, all international treaties, once ratified, become part of the legislation of Haiti and abrogate any laws in conflict with them.123   This provision is extremely important for the purposes of this Report, in light of the fact that Haiti has ratified the American Convention on Human Rights, and pursuant to this Constitutional provision, the Convention is incorporated into Haiti's domestic legislation.


120.          The 1987 Constitution creates the position of Ombudsman, or the "Office of Citizen Protection," which is established to protect all individuals against any form of abuse by the Government.124   The office is to be directed by a person chosen by consensus among the President, the President of the Senate and the President of the House of Deputies, for a seven year term.125   His intervention, on behalf of any complainant (it need not be a citizen of Haiti) is without charge.126


121.          Other constitutional provisions designed to protect individual rights include the limitations and safeguards imposed on the Government as regards the declaration of a state of siege, and the separation of the Army and the Police.


122.          A state of siege may only be declared in the event of civil war or foreign invasion.127    Consequently, it may not be declared to silence dissent or in the case of riots or demonstrations.  The declaration of the state of siege must be made by an act of the President, countersigned by the Prime Minister, and "by all of the Ministers", and contain an immediate convocation of the National Assembly to decide on the measure.128   The state of siege is lifted if it is not renewed every fifteen days by a vote of the National Assembly, 129  and the National Assembly,129 and the National Assembly is required to remain in session for the entire duration of the state of siege.130


123.          As regards the Armed Forces and the Police, the Constitution does not contemplate any other armed corps.  N fact, it explicitly states that "No other armed corps may exist in the national territory,"131 which refers to the dissolution of the notorious Volunteers of national Security (Volontaires de Securité Nationale) popularly known as the "Tontons Macoutes".


124.          The duties of the Armed Forces are to defend the State from external aggression, but they may b called upon to assist in disaster relief, in development work, or, "Upon the well founded request of the Executive, they may lend assistance to the police when the latter are unable to handle a situation".132


125.          Military service is compulsory for all Haitians who have attained the age of eighteen.133   Haitians have the right to bear arms for use in self-defense, but only following expressed authorization from the Chief of Police,134 and possession of a firearm must be reported to the police.135


126.          The Police Force operates under the Ministry of Justice136 and it is established "to investigate violations, offenses and crimes committed, in order to discover and arrest the perpetrators of the".137


127.          In addition, the 1987 Constitution establishes that members of the Armed forces and the Police are subject to "civil and penal liability in the manner and under the conditions stipulated by the Constitution and by law".138






128.          Haiti is a member of the United Nations and the Organization of American States, the Charters of which set forth respect for human rights.


129.          On September 27, 1977, Haiti deposited its instrument of accession to the American Convention on Human Rights (Pact of San Jose).  The American Convention entered into force on July 18, 1978, and as a result Haiti is legally obligated to observe the rights and freedoms set forth in that Convention, and to guarantee to all persons within its jurisdiction the free and full exercise of their rights, without discrimination for reasons of race, color, sex, language, religion, political or other opinion, national origin or social position, economic situation, birth or any other social condition.


130.          Article 276-2 of the 1987 Haitian Constitution (supra) provides that ratified treaties become part of the domestic legislation of Haiti.  Lt. Gen. Namphy in his first speech upon assuming power stated that all international treaties, agreements and accords would continue to be respected.


131.          The American Convention on Human Rights (1969) is the only general human rights instrument to which Haiti is a party.140   Haiti is a party, however, to the following issue-specific international human rights instruments concerning the prevention of discrimination:  the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the International Convention on the Suppression and Punishment of the Crime of Apartheid (1978), the ILO Convention (No. 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (1951), and the ILO Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation (1958).


132.          Haiti is also a party to specific human rights conventions which concern the following issues:  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 Traffic in Persons and of the Exploitation of the Prostitution of others (1949), the ILO Convention (No. 29) concerning Forced Labor (1930), the ILO Convention (No. 105) concerning the Abolition of Forced Labor (1957), the OAS Convention on Asylum (1928), the OAS Convention on Political Asylum (1933), the OAS Convention on Diplomatic Asylum (1945) and the OAS Convention on Territorial Asylum (1954).


133.          Haiti is a party to specific human rights instruments which relate to the protection of particular groups:  ILO Convention (No. 87) concerning Freedom of Association and Protection of the Right to Organize (1948), ILO Convention (No. 98) concerning the Application of the Principles of the Right to Organize and Bargain Collectively (1949), the UN Convention on the Political Rights of Women (1952), the Inter-American Convention on the Granting of Political Rights to Women (1948) and the four Geneva Conventions (1949, 1950).





During the two-year transition period of the CNG, headed by Lt. Gen. Namphy, the most significant step towards democracy was taken on March 29, 1987, as the Haitian people expressed their sovereign will and overwhelmingly approved the 1987 Constitution.  This expression of the national sovereignty is the standard against which any Haitian government's legitimacy will have to be measured.  A military coup d'etat and the summary deportation of the head of state cannot be legitimized by the destruction of the nation's fundamental charter or by unsupportable claims, made under the threat of the use of force, that one is acting in the name of democracy and human rights.


It should be noted that the 1987 Constitution deprived the military of control over elections and subordinated the military to civilian rule, as is the case in all democratic constitutions in the world.  Logically, a military government undermines the institutionalization of a democratic state, and having deported the President, suppressed the legislature and abrogated the Constitution, it can only claim to be acting in the name of "democracy", in an Orwellian reversal of meaning, where words signify the opposite of their accepted connotations.


The information set forth in this chapter leads to the inescapable conclusion that a system of representative democracy must be established in Haiti and the rule of law must be restored for fundamental human rights to be guaranteed.


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66.          Article 159-1 of the 1987 Constitution.

67.          Article 159 of the 1987 Constitution.

68.          Article 1 of the 1987 Constitution.

69.          Article 156 of the 1987 Constitution.

70.          Article 158 of the 1987 Constitution.

71.          Article 186 of the 1987 Constitution.

72.          Article 206 of the 1987 Constitution.

73.          Article 206-1 of the 1987 Constitution.

74.          Article 88 of the 1987 Constitution.

75.          Article 91 of the 1983 Constitution.

76.          Article 96 of the 1983 Constitution.

77.          Article 92-2 of the 1987 Constitution.

78.          Article 95-1 of the 1987 Constitution.

79.          Article 11-8 of the 1987 Constitution.

80.          Article 11 of the 1987 Constitution.

81.          Article 111-1 of the 1987 Constitution.

82.          Article 98-3 of the 1987 Constitution.

83.          Article 100 of the 1987 Constitution.

84.          Article 114 of the 1987 Constitution.

85.          Baby Doc "Je Paye Pour Papa Doc" in Paris Match 12 February 1988.  An interview with Jean-Claude Duvalier in France.

86.          Article 173 of the 1987 Constitution.

87.          Article 174 of the 1987 Constitution.

88.          Article 175 of the 1987 Constitution.

89.          Article 177 of the 1987 Constitution.

90.          Article 173 of the 1987 Constitution.

91.          Article 173 of the 1987 Constitution.

92.          Article 180-1 of the 1987 Constitution.

93.          Articles 18 of the 1987 Constitution.

94.          Article 286 of the 1987 Constitution.

95.          Article 16-2 of the 1987 Constitution.

96.          Article 17 of the 1987 Constitution.

97.          Article 20 of the 1987 Constitution.

98.          Article 24-1 of the 1987 Constitution.

99.          Article 24-2 of the 1987 Constitution.

100.          Article 24-3(d) of the 1987 Constitution.

101.          Article 26 of the 1987 Constitution.

102.          Article 25 of the 1987 Constitution.

103.          Article 25-1 of the 1987 Constitution.

104.          Article 270 and 27-1 of the 1987 Constitution.

105.          Articles 28-3 of the 1987 Constitution.

106.          Article 31-2 of the 1987 Constitution.

107.          Article 32-3 of the 1987 Constitution.

108.          Article 32-6 of the 1987 Constitution.

109.          Article 35-1 of the 1987 Constitution.

110.          Article 35-5 of the 1987 Constitution.

111.          Article 36-2 of the 1987 Constitution.

112.          Article 36-4 of the 1987 Constitution.

113.          Article 41 of the 1987 Constitution.  Aliens, however, may be deported.  (Art. 56).

114.          Article 41-1 of the 1987 Constitution.

115.          Article 43 of the 1987 Constitution.

116.          Article 49 of the 1987 Constitution.

117.          Article 44 of the 1987 Constitution.

118.          Article 44-1 of the 1987 Constitution.

119.          Article 5 of the 1987 Constitution.

120.          Article 40 of the 1987 Constitution.

121.          "The Spirit of the Haitian Constitution of 1987".  Gerard Romulus (Member of the Haitian Constitutional Assembly).

122.          Article 293-1 of the 1987 Constitution.

123.          Article 294 of the 1987 Constitution.

124.          Article 297 of the 1987 Constitution.

125.          Article 276-2 of the 1987 Constitution.

126.          Article 207 of the 1987 Constitution.

127.          Article 207-1 of the 1987 Constitution.

128.          Article 207-2 of the 1987 Constitution.

129.          Article 278 of the 1987 Constitution.

130.          Article 178-1 of the 1987 Constitution.

131.          Article 278-3 of the 1987 Constitution.

132.          Article 278-4 of the 1987 Constitution.

133.          Article 263-1 of the 1987 Constitution.

134.          Article 266 of the 1987 Constitution.

135.          Article 268 of the 1987 Constitution.  On its face, this provision applies to both sexes.

136.          Article 268-1 of the 1987 Constitution.

137.          Article 268-2 of the 1987 Constitution.

138.          Article 269 of the 1987 Constitution.

139.          Article 273 of the 1987 Constitution.

140.          Article 274 of the 1987 Constitution.

141.          See, note 138 (supra).

142.          Consequently, the American Convention on Human Rights continues to have the force of law in Haiti's domestic legislation.