Institute for Justice and Democracy in Haiti

Summary of a paper by Haitian Jurist Bernard H. Gousse

Summary of a paper by Haitian Jurist Bernard H. Gousse
June 2002

In his paper, L’Indépendance Judiciaire en Haïti, respected Haitian jurist Bernard H. Gousse notes that civilizations will be judged by the quality of their justice. By aptly depicting the institutional, personal, administrative and budgetary shortcomings of the Haitian judiciary, he appeals to Haiti’s citizens to build national coalitions to demand and monitor judicial reforms. <back>

The State of Judicial Independence

The Haitian Constitution, originally passed in the early 19th Century, was considered one of the most progressive in the democratic world. Then and today, the Haitian people have been very proud of the document and the vision it enshrines. It contains the democratic principles of separation of power and the rule of law for all Haitian people-including the principle of judicial independence. However, since the constitution was originally passed, the Haitian justice system in practice has never followed either the letter or spirit of the Constitution and has never lived up to international legal or political obligations. Rather, the justice system has almost always been effectively subject to the administrative, budgetary and personal whims of an overly dominant executive. The consequences of this dependence are felt throughout Haitian society. The lack of judicial independence and the inconsistent application of the rule of law discourage those who seek investment security, contractual enforcement, property protection and fundamental human rights. Despite the circumstances and the unfavorable environment, some judges throughout the judicial hierarchy should be commended for showing a great degree of courage and independence. <back>

The Multiple Aspects of Dependency

The executive decrees that effectively give the Ministry of Justice administrative and budgetary control over the judiciary clearly disregard Haitian and international law. These unconstitutional decrees and the controlling not-so-invisible hand of the Minister of Justice, particularly regarding the organization of the judiciary and the judicial nomination process, make a mockery of the Haitian Constitution and the rule of law.

Contrary to the Constitution, executive decrees subordinate the judicial nomination process to national and local political leaders. In practice, even the legal requirements of these unconstitutional decrees are not respected, since most judges are appointed exclusively by the executive through opaque procedures and enjoy no security of tenure. Moreover, the judicial budget is directly administered by the Ministry of Justice, and resources are very scarce. Working conditions and judicial salaries are inadequate, increasing the lack of respect for the judiciary. The subordination of the judiciary is further demonstrated by the lack of enforcement of judicial decisions, which require the Government Commissioner to submit an order of execution for approval by the executive. <back>

Path to Independence

Judicial independence is not solely a concern of the government. A national coalition of judicial professionals and human rights and civil society organizations must create a demand for judicial reform. Legal and administrative measures must be passed and enforced to create a judiciary that is a real branch of government, insulating the judicial career from the whims of the executive, establishing administrative and budgetary autonomy, strengthening judicial councils, and creating a substantive curriculum for the judicial academy and judicial code of ethics. <back>

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