Order in the court: judicial stability and democratic success in Haiti.

Author:Scott, Ben J.
 
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ABSTRACT

Haiti faces many challenges in its attempt to build a stable, liberal democracy. Haitians have endured a legacy of chaotic and heavy-handed rule in recent decades, and the success of democracy in Haiti is both hoped for and doubted by Haitians and the international community. One reason for the doubts has been the failure of the Haitian government successfully to implement free and fair elections. Citizens and candidates are often hesitant even to participate in elections. Though both were tragic, neither the failed legislative and presidential elections of 2000, nor the subsequent coup d'etat in 2004 that resulted in the ouster of President Jean Bertrand-Aristide were particularly unique in Haiti's history. In order for Haiti to implement elections in a manner that creates legitimate leaders and an engaged electorate, the rule of law and the order of the Haitian Constitution must be enforced.

This Note argues that while far from perfect, the Haitian judiciary has the potential to play the most vital role in the institutional stabilization and democratization of Haiti. As judges are not subject to election, Haiti's judicial system stands at an arm's length from the government's suspicious electoral practices. The judiciary has already achieved a relatively impressive level of competence as demonstrated in the Raboteau trail of 2000, and it is the most promising of Haiti's governmental institutions to foster the rule of law and electoral stability. Haiti is in a truly desperate condition and requires steps toward authentic democratization to put its government and its people on the road to success. Judicial implementation and enforcement of a potent and reasonable body of electoral and constitutional law is a good first step, and the Haitian judicial system may be able to lead the way to electoral success in Haiti.

TABLE OF CONTENTS I. INTRODUCTION II. THE PROBLEM: HAITI'S DESPERATE CONDITION CREATES INFERTILE GROUND FOR TRUE AND LASTING DEMOCRACY A. A Brief Account of Recent History B. Haiti's Desperate Condition C. The Absence of the Rule of Law III. THE GOAL: A STABLE DEMOCRACY IV. WHERE TO START: LEGITIMATE, FREE, AND FAIR ELECTIONS A. Elections Are the First and Most Essential Step toward Haiti's Democratization B. Recent Electoral Failure C. Important and Unfinished Business V. HAITI'S MOST PROMISING TOOL: THE JUSTICE SYSTEM AND ITS ROLE IN CREATING AND ENSURING PROPER ELECTIONS WITHIN HAITI'S CONSTITUTIONAL FRAMEWORK A. How the Haitian Justice System Can Serve as a Cornerstone for Electoral Stability 1. Encouraging Participation 2. Deterring Corruption 3. Creating Public Confidence 4. Fostering Democratic Liberties B. The Raboteau Trial: Proof of Judicial Competence? C. The Recent Judicial Rebuilding Lessons in Kosovo and East Timor D. The Role of the International Community E. A Note of Caution VI. CONCLUSION "For at the real heart of the battle for equality is a deep-seated belief in the democratic process. Equality depends, not on the force of arms or tear gas, but depends upon the force of moral right--not on recourse to violence, but on respect for law and order."

U. S. President Lyndon B. Johnson, 1965. (1)

  1. INTRODUCTION

    Both the democratization of Haiti and, more specifically, the enforcement of the existing Haitian Constitution are critical goals for the country's future and the fate of the larger region. Haiti faces a startling set of obstacles between its present condition and the stable democracy envisioned in 1987 when the Haitian Constitution was composed. While it is hard for a struggling country to set priorities following a coup d'etat, Haiti, with the help of the international community, must do so with an emphasis on priorities conducive to long-term progress. The most basic step in achieving real democracy is the existence of truly free and fair elections over time. This is especially true in Haiti where the specter of failed elections is recent and vivid. While progress on other issues such as health care, education, environmental rejuvenation, and crime prevention must not be tossed aside, electoral reform must be an essential priority for building Haitian democracy.

    Support from the international community is essential to build a democratic and independent Haiti. Help must be given in a manner that fosters Haiti's eventual independence instead of assuring perpetual dependence. Haiti's executive and legislative offices are shrouded in a cloud of illegitimacy because of the questionable elections and appointments that have filled those offices or even left them vacant. The international community has been very critical of Haiti's electoral processes, and Haitians are generally so incensed and suspicious that opposing parties refuse to participate in elections, and citizens are wary to vote. Such suspicion of the voting process encourages dissatisfied Haitians to turn to violence rather than the ballot box in pursuit of change.

    Though it is far from perfect, Haiti's most competent and legitimate governmental institution is the judicial branch. By empowering the courts and aiding their growth in both influence and expertise, the body of Haitian constitutional and electoral law can mature. Haiti's successful democratization will not be easy, and there are disagreements concerning the best way to achieve it, but in order to create a democracy, the government must be legitimately elected by the country's people. Paradoxically, the unelected, undemocratic judiciary is in the best position to begin charting Haiti's path toward electoral stability and, in turn, democratic legitimacy.

  2. THE PROBLEM: HAITI'S DESPERATE CONDITION CREATES INFERTILE GROUND FOR TRUE AND LASTING DEMOCRACY

    A. A Brief Account of Recent History

    In 1804, in winning its freedom from French rule, Haiti became the world's first black republic. (2) Despite the fact that it has existed for two centuries, the recent history of the island country demonstrates anything but consistency and stability. In 1957, Francois Duvalier won Haiti's presidential election and began to take unfortunate steps to solidify, centralize, and concentrate his power, morphing his elected presidency into a military dictatorship buttressed by the support of a privileged elite, (3) After Francois's death in 1971, his son, Jean-Claude "Baby Doc" Duvalier took over his father's position as well as his manner of rule, and Haiti's humanitarian and economic problems worsened. (4) Baby Doc was ousted by a military coup in 1986, but little changed afterward; it was just "Duvalierism without Duvalier." (5)

    The late 1980s saw the rise of grassroots movements seeking democracy. Though many powerful segments of Haitian society opposed it, a 1990 presidential election was held peacefully. Jean-Bertrand Aristide, a Catholic Priest who had been a voice of the democratic movement, won the election with sixty-seven percent of the vote. (6) This election was promising given Haiti's tumultuous and divided history. (7) One scholar has posited that in Haiti's 200-year existence, the people have only twice been "of one mind" about anything: the first time was in winning independence at the beginning of the nineteenth century, the second time was this election of Aristide. (8)

    Once he took office, many accused Aristide of conducting his presidency more like a dictator than a democratic leader as he allowed Haiti's rural areas to rule themselves (or be ruled by local strong-arms), did not trouble with having parliament confirm his military appointments, and availed himself of a foreign-trained personal security service. (9) On September 30, 1991, Aristide fell victim to a military coup, was deposed, and left the country (he first went to Venezuela and then to the United States), and a new military regime took power (10) Though the Haitian people had managed to make a successful call for presidential elections, Haiti's weak political system, due to generations of inexperience and instability, was unable to support and sustain the democratic revolution, and the military government held power for three years. (11)

    In September 1994, the U.N. Security Council approved a military operation led by the United States to force the military government out and restore Aristide to power, but after a last-minute negotiating success by Jimmy Carter, the military leaders permitted the peaceful reinstatement of the democratic regime. (12) On October 15, 1994, Aristide returned to power, becoming the only democratically elected president to replace the very military regime that overthrew him. (13)

    Because the Haitian Constitution forbids two consecutive presidential terms, (14) Aristide gave way to a hand-picked candidate from his Lavalas Party, Rene Preval, who won the presidential election in 1995. (15) While in office, Preval dismissed legislators without providing for new elections, and when elections were finally held in May of 2000, accusations of corruption, intimidation, and violence destroyed their legitimacy and incited passionate, long-lasting protest, (16) Similarly, in the presidential election held in November of 2000, in which Aristide was elected to his second term, the U.S. State Department estimated that less than ten percent of the eligible electorate participated and that there were a wide variety of other irregularities. (17) Aristide took office for his second term in February 2001, but because the legislative elections in May 2000 and the presidential election in November 2000 were widely perceived as illegitimate, the entire government's legitimacy and stability came further into question both domestically and internationally. (18)

    Despite the calls for remedial action, the election results were never addressed by Aristide though he often claimed an intention to do so, and the parliament limped through a term of criticism until most of the legislative terms expired in January 2004. (19) After January 2004, anti-Aristide protests continued to...

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