Haiti’s Judicial and Executive Branches are both getting what they deserve this holiday season- each other. After 22 months of close collaboration to trample Haiti’s Constitution and democracy, they have now turned their destructive energies on each other. The Cour de Cassation (Supreme Court) outraged Interim Prime Minister Gerard Latortue on December 8 by decreeing that Dumarsais Simeus was wrongfully disqualified from the upcoming Presidential elections. Latortue retaliated the next day by firing five of the Cour’s justices, replacing them with henchmen. The judiciary went on strike, which has shut down the justice system for four weeks.
It is a measure of how far Haiti has strayed from constitutional rule since the February 2004 coup d’etat that both sides in this dispute are wrong. The Cour de Cassation wrongly reinstated Simeus’ illegal candidacy not once, but twice. Simeus cannot be President because the Constitution requires Presidential candidates to have lived in the country for the last five years, and to have never taken foreign citizenship. Mr. Simeus readily concedes in media interviews that he resides in Southlake Texas and has obtained U.S. citizenship. The Cour de Cassation could not go so far as to ignore the Constitution’s plain prohibitions, but it came close. Instead of saying that the citizenship and residency bars do not apply, the Justices ruled that they had no evidence of Simeus’ U.S. residency and citizenship- unlike the dozens of journalists who have asked him.
Prime Minister Latortue’s objection to the Cour’s decision is right, but he is the wrong man to make it. The same residency requirement applies to Presidents and Prime Ministers alike, and Mr. Latortue lived in Boca Raton Florida for years before being illegally installed as Prime Minister by the U.S. and Haitian elites in March 2004. The Constitution requires an interim government to hold elections within 90 days from taking office, but Latortue will have 700 days in office, at the very least.
Latortue’s response to the Cour’s decision is equally wrong. As in the U.S., justices in Haiti can only be removed through specific procedures, for duly established wrongdoing or permanent physical or mental incapacity. Latortue did not even give lip service to any of these procedures, he just fired the justices. Later his aides claimed that the justices were old and needed to be retired, but the Constitution does not recognize that claim.
The justice system’s expressed outrage at the executive branch’s interference was justified in principle, but disingenuous coming from a judiciary that had loyally backed Mr. Latortue’s attacks on the rule of law for almost two years. The courts have routinely freed convicted mass murderers who support the government, while holding government critics indefinitely on absolutely no evidence.
Fr. Gerard Jean-Juste, for example, was arrested without a warrant in October, 2004. When the government could produce no evidence against him, a courageous judge, Judge Fleury, ordered him released. The Minister of Justice then forced Judge Fleury off the bench, with the support of the Trial Court’s Chief Judge, and without complaint from the Cour de Cassation’s judges, or even ANAMAH, the Haitian judges’ association.
Judge Fleury was replaced by another judge, Judge Peres, who was head of ANAMAH, and active in the anti-Lavalas opposition before the coup. Fr. Jean-Juste was re-arrested in July, again without a warrant. The case was given to Judge Peres, who has obediently held Fr. Gerry in prison for five months now despite a complete lack of evidence. This "pre-trial" detention may be a death sentence- Fr. Jean-Juste has just been diagnosed with leukemia. The kind of leukemia he likely has can be treated, but not in Haiti’s prisons.
Amnesty International, the UN Human Rights Commission, 45 members of the U.S. Congress and human rights groups all over the world have criticized the injustice of Fr. Jean-Juste’s persecution. Not one member of the Haitian judiciary has spoken against it, at least in public.
The Cour de Cassation itself led the charge in dismantling the Raboteau massacre case, the centerpiece of the fight to establish the rule of law under Haiti’s elected governments. The case had been heralded as a landmark in the fight against impunity by the UN and human rights groups when the trial concluded in November 2000. Those convicted appealed at the time, which they had the right to do, but the Cour refused to rule on the case, which it had no right to do. The massacre victims smelled a rat as 2001 turned to 2002 and 2003, without any action- they feared that the court was dragging its feet, keeping the case technically open until it could be reversed by a government sympathetic to the convicts.
The foot-dragging was amply rewarded in March 2004, when Chief Justice Boniface Alexandre was named Interim President (although Prime Minister Latortue has all the power). The rat was pulled from the Justices’ robes last summer, when they threw out the Raboteau trial on the grounds that the case was inappropriately sent to a jury. This decision was unjustified and outrageous- the justices themselves had approved sending the case to the jury in 1999, and the defendants never even objected. But no one in the judiciary complained.
There is no satisfaction in seeing Haiti’s two remaining branches of government getting what they deserve, because the real burden of this dispute falls, as always on the poor. The judges and ministers may be truly outraged, but they are not spending their lives Haiti’s prisons, under conditions that a U.S. court has likened to a slave ship. Almost everyone in jail in Haiti is poor- in a justice system where money talks, the well-off quickly walk. Ninety-five percent of them have never been convicted of a crime. Their hopes for justice were always slim, but with the courts shut down for four weeks, their hopes are now none.
All of this bodes poorly as elections in Haiti- currently scheduled for January 8, but certain to be postponed for the fifth time- approach. The electoral law gives the Cour de Cassation the last word on most electoral disputes. The electoral preparations by the unconstitutional Provisional Electoral Council have so far been consistently mismanaged and biased in favor of Mr. Latortue’s allies, so the actual voting will undoubtedly generate disputes. The disputes will go to a Court which had lost most of its credibility even before it became stacked with Latortue’s henchmen. In its current state, the Cour will have neither the ability nor willingness to curb the Interim Government’s most blatant electoral abuses. That, in the end, may be the whole point.
Brian Concannon Jr., Esq. directs the Institute for Justice and Democracy in Haiti, www.ijdh.org, and is a former OAS Elections Observer and UN Human Rights Observer in Haiti.