Saturday January 18, 2020 ((rezonodwes.com)) – When the legislative elections were held in 2015, a group of ten (10) senators were elected. Thus, article 95 of the current Constitution refers to the electoral law (article 94-2 of the Constitution) to determine the duration of the mandate of the senators.
However, the drafters of the said Constitution unfortunately created confusion over the notion of renewal of the Senate by a third every two years. If the executive power considers that the term of office of senators begins to run from the official date of renewal, the “SAGES” claim that the date of their swearing in constitutes the date of departure from their term of office. [Inprincipleifwetookintoaccountthethesisofthecomplainantsenatorsthelegalandconstitutionaldurationoftheirmandatewouldeffectivelyendin2022sincetheyweresworninin2016HoweverthePresidentoftheRepublicreliedonanotherconstitutionalprovision(art95-3)toconcludeattheexpirationoftheirmandateThisishowtheHeadofStateshortenedhissleepthenightofJanuary12to132020todeclareatthefirsthourofJanuary13midnightandtwominutestohavenotedthelapseoftheHaitianParliamentmoreattheendofthemandateofthe20senatorsAndearlyinthemorningofJanuary14the10senatorsweredeniedaccesstotheSenatebythenationalpolice
Although this decision changes the legal position of senators, the Head of State seemed to be inspired by a tweet by the author who predicted the closure of the route of an administrative trial through the sole inexistence of 'a presidential decree to this effect. Faced with this situation, the senators have multiplied judicial and administrative actions, in the sense that they summon the President of the Republic before the criminal court for bribery offenses and abuse of office and they also appeal to the Electoral Council provisional (CEP) for violation of the electoral decree with regard to article 197 of said decree. Is the multiplication of these actions likely to restore these senators in their rights? Without carrying out his analysis on the constitutional and legal duration of the mandate of the senators of the Republic, the author is satisfied to lean, through the actions initiated by the senators, on the survival of the immunity from jurisdiction in favor of the Head of State (I) before demonstrating the possibility offered to senators to have their rights restored (II).
I- Survival of immunity from jurisdiction
Indeed, Senator Jean Renel SENATUS evoked the declaration which one of the advisers of the President of the Republic would have made on the waves of the Caribbean radio on a possible agreement between the Head of State and senators of the Republic. To paraphrase the first senator from the West, Mr. Jude Charles FAUSTIN, adviser to the President of the Republic, reportedly said that the extension of the senators' mandate in 2018 was correlated with financial and other administrative advantages. The first senator took this information for real, in the sense that he believes that the January 13 tweet from the President of the Republic is only an illustration of the remarks made by his political adviser. In fact, the 2016 legislator, through the law of January 27, 2016, dematerialized the proof of the offense.
With the appearance of this law, simple information is likely to be the subject of a legal challenge as soon as it is put on a material support (CD or USB key). This Haitian legislative inspiration is undoubtedly borrowed from French jurisprudence (C.cass. Française, January 8, 1979). It should be clarified that the author's thinking does not relate to the effectiveness of the commission of offenses by the Head of State. What matters for the latter is to analyze the admission of the dematerialization of the offense in the criminal trial. As a reminder, the commission of any offense is subject to the combination of three elements: legal, material and intentional. In the absence of one of the elements, the offense cannot be characterized. In this case, the Head of State is accused of having committed the offenses of bribery based on bribery and abuse of office. On the basis of the law of May 9, 2014 relating to corruption, on the initiative of three (3) senators, the head of state is summoned before the criminal court to answer for these criminal acts. To do this, it is the responsibility of the initiators of this legal process to provide written evidence or a telephone conversation recorded on a physical medium. Otherwise, it seems impossible to justify the materiality of these offenses. In addition, it is stated in article 186 of the Constitution in force that the President of the Republic, the Prime Minister and the ministers are only subject to justice before the High Court of Justice. Although article 4 of the law of May 9, 2014 bypasses presidential immunity, in any event it is not allowed to question the immunity from jurisdiction enjoyed by the President of the Republic, the Prime minister and ministers in a criminal trial for offenses committed in the exercise of their functions. To this end, an administrative investigation under the leadership of the Unit for the Fight against Corruption (ULCC) is still possible, but the judicial process would run up against the principle of the hierarchy of standards by analyzing the assessment of the law. of May 9, 2014 to the Constitution. Therefore, in the event that proof of the materiality of these offenses is provided by the senators, all offenses committed by the President of the Republic would fall under the jurisdiction of the High Court of Justice with regard to article 186 of the Constitution . This solution also applies to ministers and the Prime Minister for all criminal offenses committed in the exercise of their functions.
II- The potential survival of the senators' mandate
Indeed, among the rights protected by the Declaration of Human Rights, political rights (art. 23 of the American Convention of November 22, 1969 rights) include the American Convention on Human Rights. In principle, political rights attach to the right to vote and to be elected (art. 23.1, al.b of the Convention). So, any elective mandate includes by extension the right of the elected representative. As a result, any decision by the executive to change the legal position of an elected official is administrative. It is in this context that the author evoked the potential opening of the administrative appeal to senators in the event that the Head of State would issue an order to affirm the lapse of Parliament or its dysfunction. . Thus, the sole publication of a possible decree in the newspaper Le Moniteur would be enough to offer these senators the possibility of going to administrative justice (Superior Administrative Court and Administrative Litigation) to enforce their mandate by asserting the constitutional prerogative . On the other hand, the observation of the lapse made by President MOÏSE through a tweet cannot be analyzed as an administrative act. The lack of administrative character of the behavior of the Head of State deprives senators to assert the duration of their mandate before administrative justice. However, the refusal of access to the Senate under the orders of the National Police by a report of a justice of the peace could establish an implicit administrative act. Also, the suspension of checks by the Treasury for the benefit of senators could be considered as an implicit administrative act.
Furthermore, it is important to remember that the public treasury came from the government and the National Police is under the hierarchical power of the Prime Minister in matters of security measures. So, it is obvious that any suspension of senators' checks and any security measures fall directly within the field of responsibility of the Prime Minister as head of government and exclude the personal and direct responsibility of the President of the Republic. If the inspiration of the master's coup master closes the administrative appeal to senators internally, the elected plaintiffs could raise the question of the illegality of the Provisional Electoral Council (CEP) because it was instituted by a political consensus to organize the 2016 presidential election, and that his mandate expires at the end of this election. So, the de facto character of the CEP would put senators in difficulty in asserting their political rights. The inability of senators to enforce their political rights in domestic law due to the illegality and illegitimacy of the CEP and the impossibility of referral to the Court of Auditors could serve as a legal basis for referral to the Inter-American Court of Human Rights through the filter of the Inter-American Commission on Human Rights, in accordance with articles 28.8 of the regulations of the Inter-American Commission on Human Rights and 46.b of the Convention . This means that it is fundamental for these senators to demonstrate the seriousness of the refusal of access to the senate, and that the elected complainants are unable to assert their political rights before an internal court.
Due to the irreparable nature of the damage suffered by the senators who were victims, the Court could justify a REQUEST FOR PROVISIONAL MEASURES (art. 25.6 (b) of the Commission regulations and art. 63 of the Convention) , specifying the reasons why they would not be able to assert their political rights before national courts. With this possible action before the American regional jurisdiction, Haitian law could take a considerable new development.
Me. Guerby BLAISE
Lawyer and Teacher-researcher
in Criminal Law and Criminal Procedure
Paris Nanterre Doctoral School
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