The legality or not of President Martelly’s proposed constitutional changes

Interview with lawyers Mario Joseph and Brian Concannon: How President Martelly’s proposed constitutional changes are illegal

Interview by Kim Ives and Roger Leduc, published in Haiti Liberte, June 14, 2012

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, René Préval (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 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, 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 Haitian Constitution’s drafters made amendments a fairly easy procedure.

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 – which comes in with the next president – 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 Préval claims that he has another version. There are 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 ways that might suggest the changes 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, bayonèt se fè,” 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 Préval 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 Gérard 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 Gérard 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 Préval 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.