Montesquieu stated in his book De l'esprit des lois that “it is an eternal experience that every man with power is made to abuse it: he goes until he finds limits (… ). So that we can not abuse power, it is necessary that, by the arrangement of things, the power stops the power.
Sunday, September 15, 2019 ((rezonodwes.com)) – After a succession of centuries, the legislator of 2014 walked in the wake of the famous thinker of modern and liberal society. The legislator of 2013, meanwhile, tries to curb the circulation of dirty money on the territory of the Republic.
In this case, after having passed the examination of the Chamber of Deputies with flying colors, the appointed Prime Minister, Fritz William Michel was to present the statement of his general policy in the Senate of the Republic on September 11, 2019. The meeting was postponed because of the turmoil caused by the intrusion of individuals into the Senate premises. The protest of the intruders was in line with Senator Sorel JACINTHE's statement that he refused the offer of the Senate Speaker, Mr. Carl Murat CANTAVE, in exchange for his silence during the meeting.
Mr. JACINTHE went on to state that “Mr. Fritz William MICHEL has distributed one hundred thousand (100,000.00) US dollars to five senators at a meeting with Senator Wilfrid GÉLIN, one of the beneficiaries in addition to Kedlair AUGUSTIN, Jaques Sauveur JEAN, Wilot JOSEPH and Dieudonne Luma ÉTIENNE. Unhappy, Mr. CANTAVE denied on September 12, 2019 on the airwaves FM radio the accusation of Mr. JACINTHE, while acknowledging having imposed on the President of the Republic Mrs. Anani JEAN-FRANÇOIS, as her predecessor / his predecessor (Canada) , as Minister of Health. On September 13, 2019, Mr. AUGUSTIN acknowledged the holding of this meeting on Radio Vision 2000 but denied the existence of this distribution of money by Mr. MICHEL.
On the other hand, he asserted that, under his senatorial mandate, any ratification of the Prime Minister is still dependent on the distribution of money in exchanges of parliamentary votes. On 14 September 2019, Senator Yuri LATORTUE told Signal FM that a company, of which Mr MICHEL is a leader, has sold goats to the State of Haiti at the time when the latter would be the chief of staff of the Minister of Economy and Finance.
If the words of Senators JACINTHE, AUGUSTIN
and CANTAVE characterize acts of corruption, it appears that the Constitution
In some ways, Haitian institutes impunity for
Parliamentarians. However, it seems important to question the supervision
impunity (I) and to determine
whether these actions would have an impact on the ratification of the
the general policy of Mr. Michel as Haitian Prime Minister (II).
I- The Legitimacy of the Repression of Corruption and
To tell the truth, unlike the procedure before a
exceptional jurisdiction, the Constitution establishes a procedure derogating from
Parliamentarians. This procedural derogation enshrines immunity, which
does not spare parliamentarians during their mandate to be the object of the action
repressive (A) in the same way as a
former civil servant (B) promoted to prime minister.
A- The Relativity of Parliamentary Immunity
It is indisputable that parliamentarians enjoy
absolute immunity in the exercise of its power of control,
in that they have freedom of choice of their votes and opinions
(Article 114.1 Const.). This political freedom has recently been exercised
during the censorship vote of former Prime Minister CEANT on 18 March 2019 by
the Chamber of Deputies. Subject to administrative appeal against the
censorship in itself, there was no possibility for Mr. CEANT of
to prosecute the deputies criminally. It would not be excessive to extend
this immunity to a senior officer of Parliament, such as the secretary
General of the Senate.
On the other hand, the reading of Article 114 of the
Constitution tempers parliamentary immunity. Indeed, this article proclaims
the inviolability of parliamentarians within the limits of the provisions of Article
115. This limitation in Article 114 entails the relative character of
parliamentary immunity since the constituents use in Article 114 the
word “subject to”. In addition, the relative nature of immunity
also explained by the fact that it is not forbidden to exercise
public action against parliamentarians, let alone condemn them
criminally. In fact, the combined reading of Articles 114.2 and 115 of the
Constitution in force confines the limit of the repressive action to the
constraint, which can be analyzed as arrest or custody, or even a warrant
stop or bring. If the judicial interdiction is in the exercise of the constraint towards the parliamentarians,
it does not extend to criminal prosecution (setting the action in motion
public opinion) or the condemnation of
So, if it turns out that the words of Senators AUGUSTIN,
CANTAVE and JACINTHE are held to be true, the Commissioner of the Government of
Port-au-Prince can rely on the law of May 9, 2014 to put the action
public in motion against the
Parliament in its entirety. An act at once daring and courage !.
B- The extension of the penal repression to the Prime Minister
Even if the law of May 9, 2014 was poorly conceived in
instituting a repression for autonomous offenses, there is no
unless the ambition of the legislator is to curb the interference of policies in the management of
any activity relating to public service. As rightly pointed out
lawyer-confrere, it might be difficult to establish the offense of
overcharging due to lack of regulation of product prices
on the market. With dexterity, the confrere Vladimir GASSANT evoked the only
particularism of the price of petroleum products, which can serve as a reference
the basis of extra-billing. His reasoning can be
questionable but it is legitimate.
Indeed, if we paraphrase the law of 2014, it is
prohibited to any official or any person in authority
public to enjoy any benefits whatsoever either directly or
indirectly in the context of public procurement, on pain of
fall under the anger of the offense of illegal taking of interests. That said,
the meeting of the two cumulative criteria is required for the offense of unlawful
be constituted: it is one of the qualities enumerated in the article
4 of the law and to be responsible for the company receiving the offer.
In other words, it is sufficient to prove the articulation between a quality listed in
Article 4 of the Law with regard to the person prosecuted with the status of
responsible for the latter within the recipient company without having
need to establish fraudulent intent, that is, without the need to
prove that the person prosecuted would have made a profit.
In this case, if Mr. MICHEL is really responsible for the company that sells goats to the Haitian State while he was at the same time chief of staff to the Minister of the Economy and Finance, the action repressive action may be brought against him on the basis of the offense of illegal taking of interest since the sales were concluded from 9 May 2014. Moreover, no one is unaware that any Parliament is characterized by the political war between the minority and the majority. As a result, any action that is likely to weaken the power of one is part of the political strategies of the other. Then, the remarks made by Senator JACINTHE can not be held peremptorily for the Christian Gospel. Nor is it the statements of Senators AUGUSTIN and JOSEPH that can serve as a legal basis for the criminal conviction of the entire Parliament for corruption.
However, following the public clamor, it would be incompressible that no preliminary inquiry is opened to shed light on these scandalous facts. In the absence of a public action on the public prosecutor's initiative, any individual or association may lodge an inquiry with the public prosecutor's office for the purpose of initiating a preliminary inquiry to put the public action in motion against the whole of Parliament. Another bold and courageous act. Because the spatial context in which evolves the government commissioner can not be ignored as a block to the exercise of his quality of first protector of the public order.
On the other hand, it is not certain that this legitimate excuse can be extended to the prosecution of the Senate Speaker, who clearly admitted to having twice imposed two ministers on the President of the Republic. It is questionable whether leaving this criminal behavior, even this confession, under the reign of impunity could not be equated with contempt for the legacy of Montesquieu in his book entitled Of the Spirit of Laws ] within the limits of the interference of policies in the management of the city.
II- The limitation to the right of citizens and Parliament
in the exercise of repressive action
The dual attribution of Parliament consists in
translation of the general expression in the form of law-making and
also a true adviser for the executive in his mission of controlling
government actions. It's not because Parliament is invested
authority to exercise his eyes, which he is authorized to do so
interfere in the judicial process (A). This judicial barrier hurts
also the freedom of the individual in the exercise of repressive action (B).
A- The Constitutional Limit of Parliament
There is no doubt that Parliament is one of the powers
constitutive elements of the State (Article 59 of the Constitution). Nevertheless,
constituents have borrowed Montesquieu's thought on the separation of
powers to establish the independence of each power, that is to say the
Judicial, Executive and Legislative (Article 60 of the Constitution). he
from these articles that each power exercises its prerogatives in the
sphere of its competence. Thus, Article 60.1 proclaims the prohibition
inter-interference or interdependence of powers.
In this case, the Chairman of the Anti-Corruption Commission
seized the Speaker of the Senate for the purpose of authorizing him to open an inquiry into
the presumption of money distribution by the Prime Minister
appointed to these five (5) senators in exchange for their votes. What would be the
judicial significance of the findings of this investigation?
It is important to recall that the power to control the
Parliament is still exercised through parliamentary committees. This
Exercise has essentially a symbolic and advisory scope for the Executive in
the implementation of its governance. A political scope is essentially
Attached to the exercise of parliamentary control power,
in that it allows Parliament to censor a government or
On the other hand, only the power of censorship is conferred on him and he can not in any case decide on the rational functioning of the judiciary. If he wants to question the government's penal policy, Parliament can only punish the Minister of Justice. Of course, this censorship is an incentive for a good organization of criminal policy. The second incentive aspect of challenging the government's criminal policy is to guide the state's criminal policy through the drafting of laws.
Then, in the event that the Senate commission's investigation revealed the bribes of the Prime Minister appointed to senators, his conclusions would have no effect on the judicial process. In other words, even if the findings of this commission's investigation reveal corrupt acts against the indexed, the Senate will not be able to seize the judicial authority to trigger public action. On the other hand, it is not forbidden for the commission to be able to seize the judicial authority in the context of a denunciation, whose assessment of the declination of public action belongs exclusively to the government commissioner (Article 13 CIC).
This reminder was made in an article relating to the famous Petrocaribe case. It is laudable that the Senate exercised its power of review in an investigation into the squandering of Petrocaribe funds. However, it is regrettable that the report of the Superior Court of Accounts and Administrative Disputes was submitted through the Senate and through the Prime Minister at the time.
Such an approach contravenes the principle of separation of powers; the transmission of the report to the Government Commissioner should have been done by the Court of Auditors. And why? The reason is simple, the conclusions of the report can obviously serve as information to the judicial authority but they are not opposable to the parts, that is to say they can not be evoked nor in the order of the judge d instruction or in the judgment to come under pain of nullity for lack of legality; unless the investigating judge would be intelligent enough to formally request this report from the Court of Auditors. The reiteration of the same procedural error must be avoided by the Senate in the case of Mr. MICHEL concerning the presumption of sales of goats and distribution of money to senators and deputies. A caution procedure, which is not exempted citizens and civil society.
B- The legal limit of the civil society and the citizens
IT is true that the triggering of the public action is shared between the way of the public action, c on the initiative of the prosecutor's office, and the way of the civil action through the constitution of civil party of the victim. However, it is incomprehensible to consider that the government commissioner is obliged to put public action in motion following a civil suit complaint. To think this reasoning is to completely disregard the fact that contemporary Haitian law does not establish the legality of prosecution as Anglo-Saxon law, but on the contrary the opportunity for prosecution (Article 13 CIC).
Indeed, the principle of the desirability of prosecution is justified by the combination of Articles 13 and 48 of the Code of Criminal Procedure. With regard to article 48 of the CIC, the legislator specifies that the commissioner of the government “ takes the indictment which it will judge suitable” after being seized of the communicated of the judge instructor. Then, it is obvious that the expression “ will be appropriate” is assimilated to the opportunity open to the prosecution to give an indictment to inform or not inform. To think otherwise on the pretext that the criminal law is strictly interpreted and that Haitian law does not recognize the refusal to inform would unfortunately fall into the clumsy and word-for-word reading of section 48 of the CIC.
Even a layperson should have recognized the freedom the legislator has given to the commissioner with regard to the assessment of the triggering of public action. In addition to the expedient aspect of criminal prosecution, the civil party application requires another essential criterion without which the action should be declared inadmissible. Indeed, under Article 50 of the Code of Criminal Procedure, the civil party application is open only to persons who are victims of direct and personal harm to an offense. Without having this quality, a person who wishes to incite the exercise of the public action, it is necessary to test the objectivity and the good faith of the floor through the denunciation.
In this case, as in the case of Petrocaribe, the very
competent Maître André MICHEL announced the seizin of the cabinet of instruction by
a complaint with constitution of civil suit against the Premier
appointed minister and senators for acts of corruption, of which potentially
unlawful taking of interest in the so-called Goats case.
If the legality of Mr. MICHEL's approach can not be disputed, his complaint may be procedurally flawed. Because the scope of the 2014 law makes the state the only direct and personal victim of corruption. As a result, only the General Directorate of Taxes (DGI) has the capacity to act as a civil party to trigger public action in the area of corruption. Although the transition of the report to the government commissioner was unconstitutional, this consideration was understood by the Prime Minister CEANT in the Petrocaribe case, in that the public prosecutor's office was formally informed of a civil party complaint on 3 February 2019 of the DGI.
In light of this reasoning, any judicial action pending against the appointed Prime Minister would have a considerable impact on the ratification of the statement of his general policy even though his presumption of announcement can not be neglected. It would be a political battle where no one would have won in advance.
Then, any complaint with civil party
from a citizen or civil society, besides the DGI, would open
the door to the floor to swing comfortably in his armchair
opportunity for prosecution.
Therefore, the law siren of May 9, 2014 would cease
travel around the Parliament and the Haitian Primary Door.
Done at Paris, this 15th day of September, 2019
Me. Guerby BLAISE
Lawyer and Professor-Researcher in Law
Criminal and Penal Procedure
University Paris Nanterre and UEH
E-mail: email@example.com / firstname.lastname@example.org