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Judicial Reform in Haiti
Contents
NOTE: In March 1995, the National Coalition for Haitian
Rights published No Greater Priority: Judicial Reform in Haiti.
The pamphlet provided the reader with a quick synopsis of conditions in
which the Haitian judicial system had evolved, together with several
short-term and medium-term recommendations for reform to the government
of Haiti and the international community. To access the French language
version of this pamphlet, please select this link: La
réforme judiciaire en Haïti.
The analysis remains valid today. We are making it available
to you and to others. Please feel free to distribute. We welcome your
comments and suggestions.
The question now is whether the new legal
culture
will be accepted by ordinary South Africans.
Instead of seeing the law as the state's weapon of oppression,
will they respect it as an independent force
that can sometimes indeed be a shield against the state?
Anthony Lewis,
Revolution by Law, The New York Times, Jan. 13, 1995
Anthony Lewis wrote with reference to South Africa,
but his words resonate in Haiti today. Among Haiti's many priorities,
reforming the justice system is near the top of most people's lists.
Judicial reform, creating a new police force, revamping Haiti's
horrendous prison system, and investigating past human rights violations
are essential in this delicate transitional period from dictatorship to
democracy. Without fundamentally changing how justice is administered,
human rights guarantees will be fragile and the rule of law a
pipe-dream.
Haiti's justice system does not function. Moreover,
powerful members of Haitian society, the military and certain wealthy
industrialists and landowners in particular, have long prevented it from
functioning. The law has indeed been used as a weapon to oppress and
terrify.
Haitian justice lacks everything: resources, competent
personnel, independence, stature and trust. Court facilities are a
disgrace, courthouses often indistinguishable from small shops or
run-down residences in Haitian cities and towns. Judges and prosecutors,
ill-trained and often chosen because of their connections or willingness
to comply with their benefactors' demands, dispense justice to the
highest bidder or to the most powerful.
The OAS/UN International Civilian Mission to Haiti did
a nation-wide study of the justice system in late 1993 after the Mission
was evacuated to the Dominican Republic.[See Analysis of the Haitian
Justice System with Recommendations to Improve the Administration of
Justice in Haiti, Working Group on the Haitian Justice System of the
OAS/UN International Civilian Mission to Haiti (MICIVIH), March 17,
1994.] Among its human rights monitors were lawyers who observed trials,
pre-trial hearings and police work. The observers presented information
and concerns to judges and prosecutors on specific human rights
violations, including evidence indicating participation by the military
in human rights abuses and inhumane prison conditions. Observers
inquired about developments in criminal investigations in cases brought
to the judiciary's attention by the Mission. Based on this experience,
the Mission's human rights monitors identified problems that plague the
administration of justice throughout Haiti. Among the most serious are:
- The armed forces, including the army, police, rural
section chiefs, attachés and members of the armed paramilitary
group Front pour l'avancement et le progrès haïtien (FRAPH)
threatened, beat and sometimes killed judges, prosecutors and
lawyers. The most egregious example was the execution in broad
daylight of Justice Minister Guy Malary on October 14, 1993.
Port-au-Prince Chief Prosecutor Laraque Exantus, who was named to
the prosecutor's office by Minister Malary, was abducted from his
home in early February 1994 and has never been seen again. Exantus
was responsible for several sensitive criminal investigations,
including the Malary killing. Wealthy, absentee landowners hire
soldiers or local enforcers to intimidate judges and lawyers
representing peasants involved in land disputes. Judges and
prosecutors admit that they are too afraid to issue an arrest
warrant or investigate cases involving the military, para-military
groups or certain civilian supporters of the military.
- Corruption and extortion thrive at every level of
the justice system. Salaries are low and venality is high. People
pay the police to arrest a rival; prosecutors and judges demand
payment before opening an investigation or issuing an order. Section
chiefs arbitrarily impose taxes that are not found in any law and
then threaten those who refuse to pay with prison or a beating.
Jailers demand payment before a family is allowed to bring food to a
detainee and also extort money from desperate prisoners to avoid
beatings or even worse treatment. Sometimes families are able to buy
a relative's release from prison.
- Most judges and prosecutors are poorly trained and
lack motivation. Many judges, especially the lowest-level juges
de paix, have never been to law school, have received no
specialized training to be judges and show little interest in
receiving such training. In 1990, the UN Special Rapporteur on
Haiti, himself an eminent French jurist, once offered to look into
training possibilities in Europe for Haitian judges, the then-head
of the Haitian Supreme Court responded that it was not necessary
since Haitian judges already knew all they needed to fulfill their
duties.
- Courts lack even rudimentary materials necessary to
function. Most have no electricity or phones. Copy machines, let
alone computers or faxes, are unheard of. Most judges and
prosecutors do not even own the texts essential to their work: the
Civil Code, the Code of Criminal Procedure and the Penal Code.
Record-keeping is in complete disarray with barely legible orders
and decisions, some dating more than 10 years ago, tacked to walls
and doors.
- Most Haitians view lawyers, judges -- virtually
anyone connected with the justice system -- with well-deserved scorn
and contempt. People will avoid contact with the system unless it is
the last resort. It is expensive, corrupt and largely mysterious
since all the laws and most of the proceedings are conducted in
French, a language most Haitians can barely understand and only a
wealthy elite can speak or read. Haitians try to resolve disputes on
their own, sometimes in inventive and acceptable ways appropriate to
a country with deep poverty and high illiteracy; sometimes in
deplorable ways best described as vigilante justice.
- The most powerful sectors of Haitian society -- the
wealthiest families, government officials, and most of all the
entire military apparatus -- have enjoyed virtual impunity. Soldiers
have never been prosecuted in civilian courts for abuses committed
against civilians despite the constitutional requirement that these
cases be heard in civil courts. This impunity fuels the cycle of
violence and the population's cynicism about justice in Haiti.
- Haiti lacks a professional police force. Until very
recently, the police were members of the armed forces who received
no police training. Members were rotated in and out of the police
and army; in some cases an officer literally had two uniforms
hanging in a closet and would pick out the appropriate one -- police
blue or military khaki -- depending on the month or the assignment.
Haiti's police did not walk the beat, investigate crimes, or do
other normal policing functions. Rather, they beat people, rode in
trucks with high caliber weapons, and shot first and asked questions
later, and then only to interrogate the poor person who fell into
their hands about his or her presumed political opinions or
activities. The police were for hire not only to the rich, but would
arrest someone on a mere complaint based on flimsy evidence provided
by a jealous neighbor, jilted lover, or ambitious farmer who wanted
more water from the irrigation canal or a piece of particularly
fertile land. Law enforcement is intensely political and personal,
not neutral and objective.
- Although Haitian law creates elaborate procedures
governing arrests, detention, and prison inspections and monitoring,
all these procedures and protections are systematically breached.
Most arrests are accomplished without benefit of a warrant. The
person arrested often has no idea why she has been detained. The
family often does not know where the person is or whether they have
even been detained or simply abducted. In reality, there is no
difference between a warrantless arrest and an abduction. Without a
paper trail, the person slips into the black hole of Haitian
detention centers, both official and unofficial. These centers
uniformly fail to keep registers as they are required to do under
both Haitian and international law. Unofficial detention centers, of
course, are illegal. So access to family, lawyers, medical care, in
short, the outside world, is impossible. It is precisely during
these extensive periods of incommunicado detention that the detainee
is most at risk of being tortured or beaten or killed.
- Conditions in Haitian prisons and detention centers
are inhumane and cruel. Most often decrepit remnants of garrisons
built by the U.S. occupying forces 70 years ago, with some even
dating from the French colonial era in the 18th century, these
prisons lack all basic services: electricity, potable water,
toilets, medical supplies. Even in a country as desperate as Haiti
where most of the population does not have access to such
facilities, the prisons are materially worse. Detainees are kept in
close, overcrowded quarters, and prisoners are forced to sleep on
the floor. Women prisoners are not segregated from male prisoners.
Sexual abuse is common; tuberculosis, HIV and other viral diseases
are easily transmitted. Children are kept with adults. Haitian law
requires a separate facility for youthful offenders, but this
requirement, as with many issues relating to rights, exists purely
on paper. A Haitian proverb summarizes well the attitude toward the
legal system: Law is Paper, Bayonets are steel. [For an extensive
analysis of the Haitian justice system, which identified many of the
same problems highlighted by the OAS/UN's Justice System Working
Group, see Paper Laws, Steel Bayonets: The Breakdown of the
Justice System in Haiti (Lawyers Committee for Human Rights)
(1990).]
Despite these overwhelming problems and deadly risks
involved in trying to enforce the law, some courageous judges,
prosecutors and defense lawyers have tried to do their jobs. They, and
all Haitians, deserve an independent and fair justice system that will
guarantee rights and punish those who commit abuses. In this period of
transition from a military dictatorship to a democracy, reforms to the
Haitian justice system are urgently required. To show that the
government intends a definitive break from the past where arbitrary rule
by the strongest prevailed, President Aristide's government, and
principally the Minister of Justice, should implement the following
reforms:
Immediate Action
- Assess the competence and independence of all
currently serving prosecutors (the commissaires du gouvernement)
and replace those deemed unfit to serve or those named by the
illegal coup governments with new, recent graduates of Haiti's law
schools. These new prosecutors should undergo an intensive training
session on the rudiments of criminal investigation and procedure,
preferably taught by experienced Haitian lawyers and prosecutors
brought from France (especially the Créole-speaking French
Caribbean islands of Martinique and Guadeloupe) or other Civil Law,
Napoleonic Code countries. International human rights law should be
a central component of this training. Specialized expertise
available through the UN Office on Crime Prevention and Criminal
Justice (Vienna) should also be sought.
- All judges, new and old, should receive expedited
training, again preferably from senior Haitian judges with
substantial participation from French judges, again from the French
Caribbean to the greatest extent possible. Training should focus
initially on the justices of the peace who have by far the most
frequent contact with the Haitian population and who are the least
trained and most ill-equipped for their work and then extend to
investigating judges and senior trial and appellate court judges.
International human rights law should be a central component of this
training.
- Salaries should be raised for all judicial
officials to a level commensurate with their education and
experience.
- The government should seek assistance and advice
from the UN Development Program (UNDP), U.S. A.I.D. and other
bilateral donors, to reinforce the Justice Ministry. Programs should
include training personnel in the Justice Ministry on management,
administration, and document preservation and retrieval.
- International donors should provide equipment (or
funds for same) necessary to run a court system properly, for
example, to facilitate distributing copies of the basic legal codes
to all judges and prosecutors: copy machines, case management
training and equipment, vehicles, fax machines and computers. Funds
to pay salaries on an emergency basis to prosecutors, judges and
Justice Ministry officials should be allocated so that the system
can actually function and Haitians can see that the government is
committed to reforming and reinforcing justice.
- Prison personnel -- guards, administrators, and
inspectors -- should be hired and receive intensive training on
proper prison administration. The Justice Ministry should name a
Director-General of Prisons to manage and oversee the transformation
of Haiti's penal system. All unofficial detention centers must be
closed. A census of all prisons must be completed and registries
established showing who is in prison, why, date of entry and current
judicial status. All children in Haitian prisons should be
immediately released and appropriate shelter found for them. The
International Committee of the Red Cross, the UN Crime Branch and
others with relevant expertise should be sought to train prison
personnel, help establish monitoring mechanisms and provide
essential services: drinking water, latrines, food and medicine.
- The government, in choosing who will enter the new
police academy, should place the burden of proof on those applicants
who served in the army or police to show that they did not order,
commit, tolerate or cover up human rights violations. Otherwise, all
currently serving members of the Forces Armées d'Haïti (FADH),
should be presumed to be unfit and ineligible for any law
enforcement position. FADH members may overcome this presumption by
presenting evidence from people in the area where they served or
from government officials showing that they carried out their duties
in a professional and nonviolent way.
- The government should launch a public education
campaign on human rights and justice that would inform people about
the steps undertaken to reform and revitalize justice in Haiti. All
media should be used, especially the radio. The UN Human Rights
Center (Geneva) should be ready to offer its expertise in human
rights education.
Medium-term Action
- The Commission to Reform the Legal Code should
begin work as soon as possible to revise and modernize Haitian legal
texts. This Commission should consult with Haitian jurists, legal
scholars and practitioners from France and other Civil Law countries
to insure that Haitian law incorporates all necessary provisions to
guarantee human rights. In particular, the Criminal Procedure Code
should be revised to clarify responsibility for criminal
investigations and to establish time limits to complete reports and
penalties for failing to meet these obligations.
- All laws should be translated into Créole and
court proceeding should be conducted in Créole if any of the
parties request.
- The government should establish a national system
of legal aid to represent defendants in cases involving serious
felonies for free. This system could also provide for paralegals and
law students to represent people for less serious offenses before
the justice of the peace, the initial trial court which treats the
large majority of cases.
- Codes of professional conduct governing lawyers,
judges and prosecutors should be drafted and adopted; disciplinary
procedures, with full due process guarantees, should be established
to determine if someone has violated the code of conduct and
appropriate sanctions imposed.
- Law schools need an injection of substantial
resources. Classrooms are in a deplorable state and there is no law
library. Professors must receive a decent salary. Uniform standards
for graduation and admission to practice need to be established and
enforced.
- A Judicial Academy must be established to provide
initial training for new judges and ongoing professional training
for serving judges.
- The government must create new judgeships,
especially at the justice of the peace level. Port-au-Prince has
only four justice of the peace courts for a population of at least 1
million; other jurisdictions suffer proportionately similar
shortages.
- The Ministry of Justice must create a Juvenile
Court to hear matters involving children. Homes for juvenile
offenders, with counseling, rehabilitation, training and education
programs, should be established.
- The government should encourage the creation of
different alternative dispute resolution mechanisms that avoid the
expense and delay of formal litigation. Arbitration, mediation and
counseling services could resolve a huge number of disputes and be
more appropriate in an impoverished country where most people cannot
afford a lawyer.
Conclusion
The intervention by the U.S.-led multinational armed
forces under U.N. Security Council Resolution 940 (July 31, 1994) has
broken the back of the military's dominance of law enforcement and the
administration of justice. The opportunity to effect sweeping changes to
a decrepit and despised judicial system has never been greater or more
necessary. While the reforms described above are necessary to erect the
rule of law in Haiti, they are not sufficient. Haitians must permanently
eradicate military interference in the courts, the police and the
prisons. Implementing these reforms will both make it much less likely
that the military or any sector will ever have such power again and help
Haitians succeed in their struggle to create the rule of law.
Acknowledgment
This report was written by William G. O'Neill, a
consultant to the National Coalition for Haitian Rights. It is based on
his own research and that of a Working Group on the Haitian Justice
System established by the Organization of American States/United Nations
International Civilian Mission (MICIVIH). Before joining the MICIVIH,
Mr. O'Neill was deputy director of the Lawyers Committee for Human
Rights. He is the author and co-author of several reports on human
rights, including Paper Laws, Steel Bayonets (1990) which
examined at length the administration of justice in Haiti.
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