Sunday, June 17, 2012

Mario Joseph and Brian Concannon Explain why Martelly's Proposed Constitutional Amendments are Illegal

Interview by Kim Ives and Roger Leduc (Haiti Liberte)

Haitian President Joseph Michel Martelly recently announced his
intention to publish amendments to Haiti’s 1987 Constitution during
the month of June. Once published in the government’s official journal
Le Moniteur, laws are supposed to go into effect. But according to
Haiti’s existing 1987 Constitution, amendments made during one
administration are not supposed to take effect until the following
administration.



Martelly’s plan to publish the amendments, which were partially and
faultily drafted under Haiti’s last president, Rene Preval
(2006-2011), has provoked a storm of protest among constitutional
scholars, lawyers, politicians, and activists who charge that it would
be patently illegal.

But the U.S. and its allies continue to push Martelly to publish the
amendments despite widespread and vehement objections.

On June 7, Kim Ives and Roger Leduc interviewed Mario Joseph, the lead
lawyer of the Office of International Lawyers (BAI) based in
Port-au-Prince, and lawyer Brian Concannon of the Boston-based
Institute for Justice and Democracy in Haiti (IJDH) on the radio
program “Haiti: The Struggle Continues,” broadcast every Thursday from
9 to 10 p.m. on the Pacifica Network’s WBAI-FM in New York (streamed
live and archived on www.wbai.org). What follows is an edited version
of that interview. Mario Joseph’s responses in Kreyòl have been
translated into English.

KIM IVES: Brian, can you briefly explain what are the key amendments
to the Constitution that have been drafted, and what has gone wrong
with their publication?

BRIAN CONCANNON: One overarching theme which is often lost in this
discussion is the whole idea of why you have a constitution.
Constitutions are by design hard to amend because they are supposed to
set down your bedrock principles that can’t be changed quickly or
easily. Constitutions are hard to change, in Haiti you have to do it
with a two-thirds vote, and, in almost all constitutions, you need to
do it through some specialized procedure. The basic problem here is
that the recent amendments to Haitian Constitution’s ignored these
procedures.

The way you’re supposed to do it is this. An outgoing legislature in
its last session votes a law, and then the next legislature votes on
the same law, up or down, just after an election, after the people
have had an opportunity to have some say. The people get their input
by having the elections.

What happened was this: in October 2009, the outgoing legislature
voted a law, and then in 2011, a new legislature changed it, making a
very different law. The hard part is that nobody really knows what
that law is. The legislature claims that it has one version; former
President Preval claims that he has another version. There’s lots of
problems with both versions, and nobody really knows what’s in both.

A lot of people like some of the proposed changes, like those which
allow double nationality and set a goal of 30% participation of women
in government. But some of the changes might affect the fundamental
democratic structure of the country. For example, the new law allows
the president to name local officials instead of having them be
elected; it changes the terms of senators and deputies in important
ways. Such fundamental should not be made in the haphazard way they’ve
been done.

KI: Can you tell us a little more about the proposed changes?

BC: In addition to the proposal to allow direct presidential
appointment of mayors, there’s a proposal to revamp the way the
electoral council is formed. Presently, in a system that has never
been implemented, it is supposed to be done through a very
decentralized system using the communal assemblies or ASECs. That is
being replaced by a system where the Haitian people have much less
direct political participation.

ROGER LEDUC: The imperial powers overseeing Haiti – the U.S., France,
and Canada – have been insisting that Martelly publish the amendments.
Why? What is their interest in seeing the amendments published and
becoming official?

BC: What they will say is that they think it will make the government
more efficient. I think the real reason is that, first, they don’t
like the ASEC system because it allows too much power to the people,
and it’s very hard to influence. Secondly, they want to have something
that they can claim is a success under the Martelly administration.
This is, of course, a paradox because, on the one hand, they claim to
be fighting corruption in Haiti but to allow these amendments go
through would be corruption of the worst kind, and corruption that
would be enshrined in Haiti’s Constitution. So we see a double
standard. On the one hand, the international community talks a good
game against corruption but then they push for a corrupt, technically
illegal, patently unconstitutional change to happen, affecting Haiti
in a fundamental way.

RL: There are questions as to whether President Martelly and the new
Prime Minister Laurent Lamothe illegally hold or have held foreign
citizenship. Meanwhile, Martelly has carried out a number of illegal
acts since coming to power, but none of this seems to trouble the
powers which are just pushing their neo-liberal program for Haiti, the
so-called reconstruction. Maybe they feel with Martelly they have
enough power to establish the Permanent Electoral Council they want.

BC: I think this goes back to the Kreyòl saying: “Konstitisyon se
papye, bayonet se fe,” Constitutions are paper, bayonets are steel.
Once again we’re seeing proof of that. Any constitutional scholar or
lawyer looking at this matter in a disinterested way can see that
Martelly’s publishing these amendments would be outrageous. When the
so-called international community and the Martelly administration talk
with a perfectly straight face about publishing the amendments, it
just shows their contempt for the rule of law in Haiti. I have not
heard anybody even try to explain that this conforms to the
constitutional process. When you ask those in favor of publication,
they just say “We need these amendments.” I’m not Haitian so I won’t
take a position on whether the amendments are needed, but I do take a
position that it should be done legally.

KI: Mario Joseph, if President Martelly wanted to proceed legally in
making changes to the Constitution how should he proceed?

MARIO JOSEPH: The Constitution establishes the procedure for making
amendments. Since the beginning of the amendment process, on the radio
and television, I have explained this procedure to the Haitian people.
How can it be done? Well, it’s clear that Mr. Martelly cannot change
the procedure and just publish amendments.

Now we have the 49th Legislature, which can draft some amendments, and
then when Martelly’s term ends in 2016, the next legislature can vote
to finalize the changes they made. Usually these changes would be made
at the end of the president’s term. But in any case, a president who
publishes amendments cannot use them, cannot take advantage of them
and put them into effect. So I think what Martelly is threatening to
do is very grave.

The rich and powerful in Haiti have never respected the 1987
Constitution. They do not want to apply it because it offers openings
like decentralization. The changes that President Preval tried to make
were botched, and now President Martelly has no right constitutionally
to try to publish those changes.

The 1987 Constitution has never been applied. Now the big shots are
saying they want to establish a Permanent Electoral Council but they
are not following the procedure set down in the Constitution. The 1987
Constitution gives a big role to the people in making that Permanent
Electoral Council through their territorial collectives, their ASECs.
But the big shots don’t want the people to participate at this
fundamental level in making the nation’s political decisions. That’s
why Martelly, along with the international community, are rushing to
publish these amendments, even though they know the legal procedure is
not being followed.

It should be added that we are militarily occupied, and under an
occupation, just like the U.S. occupation of 1915-1934, they can do
whatever they want, the Constitution be damned. But they should be
respecting the law.

RL: Mario, at least 10 legal scholars, headed by Gerard Gourgue, have
said these amendments should not be published. A number of these
scholars are very reactionary and are not opponents of the occupation.
So why are people like Gerard Gourgue and Georges Michel, who have
rather anti-democratic credentials, opposing the publication of these
amendments?

MJ: There are a number of patent problems with the amendments, which
were drawn up behind closed doors by President Preval and a small
group of politicians connected with his party, Inite. It is a real
imbroglio. For example, they only amended the French version of the
law, they did not update and put into agreement the Kreyòl version.
This would create two sets of law and create total confusion, and they
know it. So I think there are a lot of elementary legal reasons which
oblige them to oppose the amendments’ publication, just as we oppose
it, even though we are coming from different political positions.

It is very clear to anybody who can read black on white that there is
no legal way Martelly can publish these amendments. The amendment
process was mishandled. Anybody who respects themselves – whether
they’re from the right or the left – cannot agree to the publication
of these amendments in Haiti now.

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