The writer and philosopher George Santayana
wisely said that “,History shows that those who do not learn history are doomed to repeat it.” This aphorism could not be
truer than the way in which Haitian society and more specifically the way in
which its intellectual class operates.
This week, the Haitian
Congress to Fortify Haiti, a respected organization in Evanston, Illinois, and
the Members of the Committee of Collaborators published an open letter
to affirm their support for the Moise constitution. The Committee of
Collaborators include: Attorney Marie
Lynn Toussaint, Alix Claude, Aline Lauture, Lionel Jean-Baptiste,
Frantz Bourget, Jean Junior Morisset, Albert Decady, Esq. Joseph Champagne, Esq.
The group calls itself the
Committee of Collaborators. A lapsus
linguae that could not be more fitting for the incoherent seven-page tchaka that
followed. The most striking observation is that
a number of the members in the Committee of Collaborators are lawyers including
my good friend, Judge Lionel.
After a strident five-page defense for defacto President Moise to stay in office, the committee members opened the second part of their argument with the following statement:
The Committee asserts that “only amendments are prohibited” by Article 284.3 of the constitution. If the constitution prohibits amendments by referendum, then one would logically conclude that it doesn't allow a president to create a new one out of whole cloth. If this logic had prevailed then the debate would have ended there. However, the committee seems to be making a narrower argument, which is that the president can operate outside of the constitutional limits. But there is a problem with this narrow argument as well because it leads to the conclusion that the constitution is suspended. If it is suspended then the president has no legitimacy to the presidency.
The Committee's letter suggests that the defacto president can maintain his legitimacy based on the constitution and at the same time he can disregard/suspend the constitution to hold a referendum. They
want the rule of law and its opposite. In other words, the subordination of the law to the king-president.
The historical records
As I read the rest of the document, it became clear that the committee members were totally detached from Haiti’s current reality but also its historical context. Here are the historical facts.
In 1961, President Francois Duvalier was reelected through a fraudulent election in which voters were asked whether he “should remain in office for a further six years.” President Duvalier received 1,320,748 votes – or 100% of the votes.
In 1964, President Duvalier held a constitutional
referendum alongside general elections. The new constitution made Duvalier president
for life, with absolute power and the right to name his successor.
In 1971, three months before Francois
Duvalier died, he had the powerless National Assembly change the constitution
to reduce the required age for the office of president from 40 to 20 years. At the same time, it was reported that the Ministry of the
Interior declared by decree that Jean-Claude Duvalier to be 21 although he was
not even 19 years old. A few weeks after
changing the required age, another constitutional referendum was held in which
residents were asked to confirm their consent to the succession from Francois
to Jean Claude Duvalier. It was reported
that 2,391,916 citizens voted yes and none voted no. Another 100% of the votes.
In 1985, President Jean
Claude Duvalier’s regime held a new referendum in which the new constitutional amendments would restore
multi-party politics. However, there was one
catch, it was on the condition that all parties swore allegiance to President
Jean Claude Duvalier, reconfirm his presidency for life, and allow him to
single-handedly appoint the Prime Minister and his successor. The changes were
approved by 99.98% of voters.
In 1986, after a 30 year-long struggle the
Haitian people overthrew Jean-Claude Duvalier’s despotic regime, which was
quickly replaced by a provisional military government – the National Governing Council
(C.N.G.). In essence, Duvalierism in military
uniform. The people’s resistance
continued and as a result the CNG put in place the Constituent Assembly, which
was charged with the task of drafting a new Constitution. The Assembly consisted of 61 members. Elections were held for for 41 of the 61
Seats on the Assembly while the remaining 20 members were appointed by the
C.N.G.
The Constituent Assembly worked methodically
on an article-by-article basis which were presented to the population. As the articles were approved, they were
published on a daily basis in the press. The “public was invited to debate the articles
and to submit suggestions to the Constituent Assembly."
Historical records from that period showed that while
the “61-member Constituent Assembly originally had been viewed with skepticism
but as it demonstrated its seriousness and responsiveness to its mandate, it
won popular support.”
Contemporary debate
Against all common-sense, the
Committee's argument
is that we need to support the illegitimate Moise regime shredding of the constitution
to gain more rights for Haitians abroad. Instead of working in solidarity with the people, the committee is willing to disregard the broad agreement
within Haitian civil society, which despite the risks of getting abducted or killed
for their position have stood firm against this coup. I am proud to stand with this long list of patriots that includes Haiti’s
most respected constitutional law scholars (from the political right and left), human
rights organizations, the protestant and catholic churches, the Vvdouizans, the universities, all major unions (from
teachers to transportation), the Haitian Bar
Federation, broad swath of civil society groups and even, dare I say it, even PHTK – the president’s
own political party.
Let us be clear. The current debate is the rule of law, which needs to be reinforced. In a constitutional system, the president’s
legitimacy rests on the constituent institutions and the bedrock of the constitution
and the law. When the law is unclear or there are disagreements
about its meaning, the court is the last resort. Defacto President Moise has claimed a lack of
clarity in the law to stay in office
another year despite the Superior Council of the Judicial Power (CSPJ) resolution refuting that claim. The court stated
in its resolution that the “statute enacted in Art 134.2 of the
Constitution of March 29, 1987, amended on May 9, 2011, does not suffer from
any ambiguity relating to the meaning attributed by the legislator. It is a
general principle of law that "interpretation ceases when a text is
clear."
The court added further
that “President Jovenel Moise has already appropriated the spirit and the
letter of Art 134.2 by applying, during the year 2020, to Deputies and Senators
respectively Arts 92.1 and 95 of the same treatment of the expiry of the terms
of office of said elected representatives and declares, therefore, that
“Where the law does not distinguish, there is no need to distinguish”
As Article 7 of the Universal Declaration of Human Rights (UDHR)
states: "All are equal before the law…” In other what is good for the goose is good
for the gander.
More fundamentally this
President has claimed that his legitimacy is grounded in the constitution. Therefore, it is worth noting for the committee members that “before taking
office, the President of the Republic shall take the following oath before the
National Assembly: “I swear before God and the Nation faithfully to observe and
enforce the Constitution and the laws of the Republic..." (**Haitian
Constitution Article 135).
Furthermore, the “President
of the Republic, who is the Head of State, shall see to the respect for and
enforcement of the Constitution and the stability of the institutions” (Article 136).
Indeed, the “President of the republic shall have no powers other
than those accorded to him by the Constitution” (Article 150).
Given the
above, the president has no special power whether or not there is a parliament
and more importantly there is a clear prohibition to use “General
elections to amend the Constitution by referendum are strictly forbidden
(Article 284-3), which the committee seems to acknowledge but disregard.
In sum, President
Moise's disregard for the constitution to impose his own dictatorial regime is
nothing less than a “crime of high treason” which is explained as “ any
violation of the Constitution by those responsible for enforcing it” (Article
21).
Moreover, President Moise has shown not only his incapacity to govern but also his intent on restoring the glory days of the Duvalier era. This has been demonstrated time and time again through his systematic dismantling of Haiti’s republican institutions – including the legislative and judicial branches. On this point, even the Committee of Collaborators found it necessary to admit as much but despite their harrowing assessment, they concluded that defacto President Moise was the right leader to unilaterally write a new constitution.
The Committee of Collaborators advanced the cynical argument that “the opportunity to amend the Constitution is extremely rare.” Again, there seems to have been a total absence of introspection. Indeed, amending a constitution is rare and it is so for extremely good reasons -- a basic principle one would expect the lawyers on this committee to know. For example, despite the flaws in the U.S. constitution, we would never even think of haphazardly engaging in an amendment process and even less in a complete rewrite of our foundational document. The U.S. amendment threshold of needing three-fourth of the states to ratify it is particularly hard and it is so because the stakes are high.
Another example that is closer to us is the constitutional reform process under way in Chile. The reform process was
initiated only after 78% of Chileans voted "yes" to approve it. Additionally, the Chileans created a 155-member constitutional convention
to write the new constitution.
As noted above in the historical section, Haiti also
used a constitutional convention that 61 members who worked on the 1987 constitution – a fact the committee seems to have forgotten. One
can understand the omission because the committee surely understood that President
Moise's selection of five friends to draft a tailor-made constitution to protect
him and his cronies would simply not stand the test of logic, and certainly not the law. Surely, the committee could not openly argue
for the reinstatement of the Duvalier regime with an all-powerful president-king who is
beyond the reach of the law.
The diaspora is being led by the nose
While it is generally not worth
debating an illegal act, I believe it is important to tackle the core rationale advanced by the Committee of Collaborators for supporting the referendum. They claim that Haitians who have double
nationality will now be able to participate in Haiti’s elections and therefore
have a say, or as my friend Lionel likes to say, the diaspora will be fully
integrated in Haitian life. For some obvious and practical reasons, I believe that the concept of full integration is materially impossible but that is for another debate at another time.
So, what does the new Jovenel constitution say on the issue of nationality? Let’s do a side-by-side comparison.
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Article 11 – 1987 |
Article 11 – proposed version |
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Possède la Nationalité Haïtienne d’origine, tout individu né d’un père haïtien ou d’une mère haïtienne qui eux-mêmes sont nés Haïtiens et n’avaient jamais renoncé à leur nationalité au moment de la naissance.
|
|
*A literal translation: Any individual with Haitian ancestry may assert their rights to Haitian nationality, under the conditions provided by law. In other words, it is not guaranteed!
Said plainly, the rights afforded
in the 2011 amendments would be replaced by rights that one “may assert” but that are not
guaranteed.
Additionally, far too many in the diaspora do not know that the 2011 amendments removed all limitations on dual nationalities and even multiple nationalities. The following articles were amended out of the 1987 constitution:
In other words the argument
that this constitution will provide new rights for Haitians abroad to vote is
false – that right already exists. What does not exist and still will not exist
in the proposed Moise’s constitution is the “how.”
As the German philosopher
Friedrich Wilhelm Nietzsche said: the devil
is in the details. Since 2011, if the
subsequent administrations had the political will, they could have put in place
the systems to allow Haitians who live abroad to vote through the consulates and
embassies. I witness this exercise in NYC where I live whenever there are
elections in the Dominican Republic. The
Dominicans in my neighborhood have sites in the local schools where they are
able to vote. The conclusion is simple: Presidents
Martelly, Privert and Moise simply did not want to do it.
With a well-oiled and
well-financed propaganda machine, defacto President Moise has engaged in a
process that is dangerous for our democracy because it aims to reinstate the
Duvalier regime. It is more deceitful
and disingenuous. The regime has no support at home so it is insideouly and with the help of collaborators, trying to convince the diaspora that it will have more righs under this so-called reform. This puts Haitians abroad in opposition with Haitians in Haiti. They have been successful at advancing another deceptive argument which is that defacto President Moise
failures is the result of blockages by the opposition.
The fact
is that President Moise had an overwhelming majority in both chambers and the opposition
could not and did not block any of his legislations. As was
published in a "Le Nouvelliste" article, the president’s party and its allies
accounted for ninety (90) deputies out of one hundred and nineteen (119)
and twenty-five (25) senators out of thirty
(30). At the start of
his administration, the president had to negotiate with his own party and
allies but in the end was able to have Prime Minister Jack Guy Lafontant,
ratified with an overwhelming majority.
Similarly, he negotiated
with his own party and allies to remove Prime Minister Jean Henry Ceant.
Unfortunately for the Committee history is writing in ink.
As Haitian-Americans but more
importantly as lawyers and officers of the court, the members of the committee know and follow United States laws. They obey these laws despite the ethical constraints. None
of them would ever argue that we should amend the U.S. constitution because of
the legislative branch’s control over the executive, or because of the
constraints resulting from one party’s control of congress. They would surely agree that the notion that a president can unilaterally rewrite our constitution is an unserious and not worth debating.
Sadly, in their zealous
defense for the Moise constitution is a justification for the unjustifiable
– a soft coup by equating the post-dictatorial context of 1986 with our current
time. The committee wants to compare a process in which
2/3 of the Constituent Assembly members were elected with defacto President Moise’s
selection of the “Independent Advisory Committee” members. A committee that has five people. Yes, count it, five people which includes: a retired soldier,
two sociologists and two jurists, to work in complete opacity to do the president's bidding
for a tailor-made constitution. All five were
selected by President Moise without the participation of civil society.
Through their defense of President Moise, the committee members have shown their willingness to trade the
rights for which Haitians fought so long and hard to get. They want to grant defacto President
Moise absolute powers that harken back to the Duvalier days. All this in the hope that the diaspora can reintegrate
Haitian society, which essentially translates into their ability to hold high office in Haiti.
We know the result will be a
strong-man who is protected by the constitution. He will also have the
ability to launch new referendums as was the case during the dictatorships
of Borno, Vincent and Duvaliers –1964 referendums to confirm President Francois
Duvalier for life, 1971 referendums for the succession of François to
Jean-Claude Duvalier, and the 1985 referendums to confirm President Jean-Claude
Duvalier for life.
As I have written before, as
of 7 February, 2021 Haiti has unambiguously left the democratic system of
governance – no parliament, no supreme court, and a defacto president who
controls all levers of power. We have quietly entered into a soft
dictatorship.
Dura
lex, sed lex: "The law [is]
harsh, but [it is] the law." It follows from the principle of the rule
of law that even draconian
laws must be followed and enforced; if one disagrees with the result, one must
seek to change the law.
I know a few of the members in the Committee of Collaborators and call some of them my friends. But on this, I say shame on their blind support for the coup in progress and their willingness trade the rights of the Haitian people. Shame on them for their willingness to give a president, but even worst, this defacto president carte blanche to
kill Haiti's embryonic democracy.
My friends in this
Committee have co-signed an open letter of support that will enable the defacto President to consolidate his constitutional coup
into law, and in the end, that will be their legacy. I can only remind them that the diaspora's rights to vote is not worth plunging the country back into a dictatorship that feeds off corruption and impunity. Because in the end, what good will it do for Haitians in the diaspora to win the right to vote from abroad and lose democracy in Haiti?
Click here to view the Haitian Congress Open Letter to President Moise
For another
perspective, click on this video from Ayibopost: Poukisa Jovenel Moise vle chanje konstitisyon an, epi fè
eleksyon?
