Researching Haitian Law

 

By Marisol Florén-Romero

 

Marisol Florén-Romero is the International Reference Librarian at Florida International University (FIU), College of Law Library.

 

Published May/June 2008
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Table of Contents

 

General Information

                  Historical Background

                  Structure of the Government

The Legal System

                  Judicial Organization

                  Primary Sources

                                    The Constitution

                                    Codification

                                    Law Reporters

                                    Court Reporters

Sources of Legal Research

                  Background Information

                  Development of the Legal System

                  Laws and Compilation of Laws

                  Constitutional Law

                  Human Rights

                  Labor Law

                  Criminal Law

                  Business and Banking Law

                  Real Property and Cultural Property Law

                  Electoral Law

                  Natural Resources and Agriculture Law

                  Intellectual Property Law

                  Family Law

                  Maritime Law

                  Telecommunication Law

                  Tax Law

Treaties and International Agreements

                  Bilateral Treaties with the Dominican Republic

Legal Periodicals

News

Legal Education

The Profession

Legal Sites

Bibliography

 

 

General Information

Historical Background

Haiti is located on the western side of the island of Hispaniola, in the Caribbean Sea. With an area of 27,750 square kilometers and an estimated population of 8.5 million, Haiti has a high population density. More than half of its people live in rural areas.  The country has an average life expectancy of 60 years, high rates of infant and maternal mortality, and a GNP per capita of USD 480. Haiti is classed among the least developed countries in the world.[1]

 

Christopher Columbus discovered Hispaniola on December 5, 1492. He established the first Spanish settlement in the Western Hemisphere, Fort Nativity, on December 25, 1492. During the sixteenth and seventeenth centuries French buccaneers used Turtle Island, off the northern coast of Hispaniola, as the base for their commercial activities in the Caribbean, invading and eventually occupying an extensive territory on the northwest side of the island. In 1697, by the Treaty of Ryswick, Spain recognized the right of the French to the western portion of the island and Hispaniola was divided into two. The French territory, with its capital at Cap-Français (now Cap-Haïtien), was named Saint-Domingue and became a prosperous economic colony engaged in exporting sugar, coffee, cotton, indigo and cocoa.[2] The prosperity and productivity of that colony was supported by a population of 25,000 free people of color (affranchis) and more than 700,000 African slaves.[3] In 1791, the non-white population of Haiti, led by Toussaint L’Ouverture and later by Jean-Jacques Dessalines, rebelled against the French, ending slavery and leading to independence on January 1, 1804. The newly independent country took the name Haiti, the aboriginal name of Hispaniola.

 

Haiti underwent many insurrections during the nineteenth century and the first half of the twentieth century.  Struggles among the different classes to gain power, and neglected economic and social advancements, prompted a 1915 military occupation by the United States that lasted until 1934. During the second half of the twentieth century the Duvalier family ruled the country. François Duvalier (Papa Doc) was in power from 1957 till his death in 1971. His son, Jean-Claude (Baby Doc), succeeded him, but Jean-Claude was driven from the country in 1986, bringing to an end thirty years of personalist dictatorship.

 

Democracy was restored in March 1987 with the ratification of a new Constitution that provided for an elected bicameral Parliament (Assemblée nationale); an elected President and Prime Minister, as head of State and head of Government respectively; and a Supreme Court appointed by the President with parliamentary consent.[4]

 

The signing of the 1987 Constitution did not guarantee the end of political chaos, social unrest, violations of human rights, and economic instability. For the past decade, Haiti has seen a significant involvement of the international community in trying to promote good government, ensure political and social stability, and assist with sustainable disarmament, demobilization, and reintegration programs. On July 3, 1993, Jean-Bertrand Aristide and Raoul Cédras signed the Governor’s Island Agreement, sponsored by the United Nations (UN) and the Organization of American States (OAS), providing for a transition from a military to a civilian government, with the return of Aristide as President of the Republic.[5] This agreement was followed by several Resolutions of the United Nations General Assembly authorizing the deployment of successive international missions: UN Mission in Haiti (UNMIH), September 1993 to June 1996; UN Support Mission in Haiti (UNSMIH) June 1996 to July 1997; UN Transition Mission in Haiti (UNTMIH), August to November 1997; and UN Civilian Police Mission in Haiti (MIPONUH), December 1997 to March 2000. On February 29, 2004, the United Nations Security Council adopted Resolution 1529 (2004)[6] authorizing the deployment of the Multinational Interim Force (MIF). On April 30, 2004, the UN Security Council adopted Resolution 1542 (2004)[7] creating the United Nations Stability Mission in Haiti (MINUSTAH)[8].

 

Structure of the Government

The Haitian government is divided into three branches: executive, legislative, and judicial.

 

The legislative branch, or Parliament, consists of a Senate (30 seats) and a Chamber of Deputies (99 seats). Senators and Deputies are elected by direct vote for six- and four- year terms respectively, and they can be re-elected indefinitely.  Parliament enacts laws on all matters of general interest.[9] Bills and other legislative acts enter into force with their publications in the official gazette, Le Moniteur.[10] Bills are numbered and printed in the Bulletin des Lois et Actes de la République d’Haïti.[11]

 

Executive power is vested in the President of the Republic, who is the head of State, and the Prime Minister, who is the head of the Government.[12] The President is elected to a five-year term and cannot be re-elected to a consecutive term.[13] He promulgates the laws, signs all international treaties and agreements, and submits them for ratification to Parliament. The President presides over the Council of Ministers (Conseil des ministres), and enacts Presidential Decrees (Arrêtés).

 

The President selects the Prime Minister from among the members of the majority party in Parliament. With the approval of the President, the Prime Minister chooses the members of the Council of Ministers, subject to parliamentary assent. The Prime Minister is responsible for law enforcement, and has the authority to issue rules and regulations.[14]

 

Judicial power is vested in the Supreme Court (Cour de Cassation), the Courts of Appeal, Courts of First Instance, Justice of the Peace Courts, and special courts. Their operation, organization, and jurisdiction are established by statute.[15]

 

The justices of the Supreme Court and the Courts of Appeal are appointed for ten years. Judges of the Courts of First Instance are appointed for seven years.[16] The Supreme Court’s justices are appointed by the President from a list of three candidates for each court seat submitted by the Senate. Sitting judges of the aforementioned three courts can be removed only under exceptional circumstances, thus safeguarding the judiciary’s independence from political interference.[17]

 

The Legal System

Judicial Organization

Haiti adopted the French civil law system, including the French judicial structure and codification system: Civil Code, Criminal Code, Commercial Code, Code of Civil Procedure, and Code of Criminal Procedure. All Codes were enacted between 1825 and 1835, and with minor changes they resembled their French antecedents. The Labor Code (1961) and Rural Code (1962) were enacted during the government of Francois Duvalier. Statutes are the main source of law, and French doctrine and jurisprudence are the basis for the interpretation of the law.[18]

 

Haïti’s judicature comprises four tiers. The Supreme Court is the highest court of the nation and provides a last recourse in matters decided at the appellate level. The Supreme Court also functions as Superior Magistrate Council, and as Constitutional Court ruling on the constitutionality of a law.[19]

 

At the second tier are the Courts of Appeal. There are five regional appellate courts, located at Port-au-Prince, Cap-Haitien, Gonaïves, Les Cayes, and Hinche. A judge president and two other judges sit in each court.

 

At the third tier are the Courts of First Instance. These are courts of original jurisdiction in civil, commercial, or criminal matters, with a single judge presiding. A Public Prosecutor’s Office is designated for each Court of First Instance. Also at the third tier are examining magistrates, responsible for conducting criminal investigations, issuing formal charges and sending a case to the Criminal Court, to the Division of Minor Offenses, or to the Civil Court - or for issuing a non-suit. The decisions of the Courts of First Instance may be appealed to the Courts of Appeal and to the Supreme Court.

 

Justices of the peace are at the fourth tier, forming the base of the judicial structure. These puisne judicial officers have jurisdiction over small claims in civil, commercial, and criminal matters.

 

In addition to the ordinary courts there are four special courts: the Labor Courts; the Juvenile Court; the Land Court, dealing with registration of property rights in the Artibonite Valley; and the High Court of Accounts, which hears appeals and claims for damages by individuals against the State. This court also has an administrative function auditing the accounts of the State. The decisions of the Labor Courts and the Land Court are only appealable to the Supreme Court.[20]

 

Haiti accepts compulsory jurisdiction of the International Court of Justice (ICJ) on questions of international law, and of the Caribbean Court of Justice (CCJ) for the settlement of trade disputes within CARICOM.[21]

 

Primary Sources

The Constitution

The Constitution of March 29, 1987 is currently in force. This new Constitution defines the government of Haiti as a cooperativist, free, democratic social republic with a dual executive (President and Prime Minister) and a bicameral legislature. It recognizes Créole as an official language along with French[22], prohibits the cult of personality, stresses the protection of fundamental rights, and provides for the decentralization of the government by entrusting administrative and financial autonomy to the départements and communes. The Constitution also creates an Electoral Council, responsible for the organization elections.

Codification

Law Reporters

 

·       Bulletin des Lois et Actes de la République d’Haïti. Année 1832–,  Port-au-Prince, Imprimerie du Gouvernement, [1832] –

Court Reporters

 

·       Bulletin des Arrêts du Tribunal de Cassation Rendus en Toutes Matières: Affaires Civiles, Criminelles et Urgentes. No. 1–, (1856?)– . Port-au-Prince, Imprimerie de l’Etat, 1856(?)– 

 

Sources of Legal Research

Background Information

The following sources provide background information on the country. They describe the major historical events; the social and economic conditions of the country; and structure of government. They also include an analysis of the legal system, reports on the situation of human rights, or on national security issues; and contact information for doing business in Haiti.

 

 

Development of the Legal System

For an historical view of the development of the legal system in Haiti, the work of Chantal Hudicourt Ewald continues to be the most comprehensive source. To understand the court system and administration of justice in Haiti today I would recommend reviewing the reports of the different international organizations addressing human rights issues or involved in judicial reforms in Haiti; a description of some of these sources follow.

 

 

See also

 

 

Laws and Compilation of Laws

In addition to the official sources listed above, Thomas Reynolds and Arturo A. Flores’ Foreign Law Guide Database, the Law Library of Congress Global Legal Information Network (GLIN) and E. P. & E.Trouillot’s Code de Lois Usuelles, are the most comprehensive sources for researching Haitian law.

 

 

Constitutional Law

The text of the constitution in force in Haiti, in French, Creole or English, can be found in several sources, among which are:

 

 

Human Rights

·       IACHR, Special Reports: Haiti: Failed Justice or the Rule of Law? Challenges ahead for Haiti and the International Community, 26 October 2005 OEA/Ser/L/V/II.123, doc.6 rev 1.

 

Additional information on human rights in Haiti can be found by searching the following web sites:

 

 

Labor Law

 

Criminal Law

 

Business Law and Banking Law

For business law and doing in business in Haiti see the following sources:

 

 

Real Property and Cultural Property Law

 

Electoral Law

 

Natural Resources and Agriculture Law

 

Intellectual Property Law

For intellectual property, patents and trademark laws see the following sites to identify relevant intellectual property laws in force:

 

 

Family Law

 

Maritime Law

 

Telecommunication Law

The National Telecommunication Counsel (CONATEL) is the official institution regulating telecommunications in Haiti. On the website of CONATEL, under Legislation are the following telecommunication laws:

 

 

Tax Law

 

See also

 

 

Treaties and International Agreements

Haiti signed and ratified on July 2, 2002 the Treaty of Chaguaramas, which allowed for the establishment of CARICOM, the Caribbean Community and Single Market Economy (CSME). Haiti is also a signatory, since December 15, 1989, to the ACP/EC Convention, better known as the Lomé Convention. For other treaties and international agreements signed by Haiti see:

 

 

Bilateral Treaties with the Dominican Republic

For bilateral treaties with the Dominican Republic, a recommended resource is the Treaties database of the Ministry of Foreign Relations of the Dominican Republic (SEREX).

 

 

Legal Periodicals

 

News

 

Legal Education

The Faculté de Droit et des Sciences Économiques (FDSE) of the State University of Haiti (Université d’Etat d’ Haïti), located in Port-au-Prince, is the oldest law school in Haiti. It started in 1860 as the School of Law of Port-au-Prince, and changed in the late 1940’s to the School of Law and Economics.

 

Under the State University system there are eight universities in the country, in different Departments, each one with a law school. These are: 1) Faculté de droit du Cap (département du Nord); 2) Faculté de droit des Cayes (département du Sud) ; 3) École de droit de Port de paix (département du Nord'Ouest) ; 4) École de droit de Fort liberté (département du Nord'Est) ; 5) École de droit des Gonaïves (département de l'Artibonite) ; 6) École de droit de St Marc (bas Artibonite) ; 7) Ecole de droit de Jacmel (département du Sud'Est) ; and 8) École de droit de Jérémie (département de la Grand'Anse).

 

A second university with a law school is the Université Quisqueya, Faculté des Sciences Juridiques et Politiques (FSJP). This is a private university located in Port-au-Prince and publishes the legal journal Revue Juridique de L’Université de Quisqueya.

 

Legal education in Haiti is a four year program leading to a bachelor’s degree in law (Licencie en Droit).

 

The Profession

The Bar (Le Barreau) is the professional association that rules the practice of law in Haiti, and it is regulated by the Decree of March 29, 1979. The practice of law is strictly reserved to Haitian citizens without distinction of sex. Lawyers must accredit a Bachelor’s degree in Law from the State University of Haiti or an equivalent title from a national or foreign university plus two years of practice obtaining a certificate of professional aptitude from The Bar.[24]

 

Legal Sites

Listed below are the most relevant websites providing access to the legal literature of Haiti and information significant to Haitian legal research.

 

 

Bibliography

The following is a selection of articles and treatises central to researching Haitian law:

 

 



[1] See UNICEF, The State of the World’s Children 2008, (2007), statistical tables 113, 115, 135, 139, available at http://www.unicef.org/sowc08/report/report.php.

[2] Robert Debs Heinl & Nancy Gordon Heinl, Written in Blood: The Story of the Haitian People, 1492-1995 (University Press of America 2005) at 29.

[3] Id. at 29.

[4] Douglass Clouatre, Haiti, in Legal Systems of the World, 647 – 652 (Herbert M. Kritzer, ed., ABC-CLIO 2002). See also, Gerald Perry, Haiti, in International Encyclopedia of Comparative Law, National Reports H4 (J.C.B. Mohr 1978).

[5] See David Malone, Decision-Making in the UN Security Council: The Case of Haiti, 1990-1997, (Clarendon Press, 1998).

[6] UN Security Council Resolution 1529 (2004), UN Doc. S/RES/1529 (2004) (29 February 2004), available at http://daccessdds.un.org/doc/UNDOC/GEN/N04/254/10/PDF/N0425410.pdf?OpenElement

[7] UN Security Council Resolution 1542 (2004), UN Doc. S/RES/1542 (2002) (30 April 2004), available at http://ods-dds-ny.un.org/doc/UNDOC/GEN/N04/332/98/PDF/N0433298.pdf?OpenElement

[8] IACHR. Haiti: Failed Justice or the Rule of Law? Challenges Ahead for Haiti and the International Community, OEA/Ser/L/V/II.123 doc.6 rev 1 (26 October, 2005), at 8-9, available at http://www.cidh.org/countryrep/HAITI%20ENGLISH7X10%20FINAL.pdf

[9] Haitian Const, Art. 111.

[10]  Id. Art. 125.

[11]  Id. Art. 125-1.

[12]  Id. Art. 133

[13]  Id. Art. 134-1.

[14]  Id. Art. 159

[15]  Id. Art. 173. See also Decree of August 22, 1995, Relative to Judicial Organization (Décret Relatif á la Organisation Judiciaire), available at http://www.crijhaiti.com/fr/?page=decret_du_22_aout_95

[16] Haitian Const. Art. 174.

[17]  Id. Art. 177.

[18] Thomas Reynolds & Arturo Flores, Haiti, in Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, 3 (Fred B. Rothman, 1997) updated 8/2003. See also, Gerald Perry, Haiti in International Encyclopedia of Comparative Law, National Reports, v. 1 at H4.; see also, Jean Marie Mondésir, Le Droit Haïtien at http://www.chez.com/juristehaitien/; see also Jean Marie Mondésir, La Codification en Haïti at  http://membres.lycos.fr/civiliste/

[19] Haitian Const. Art. 183. See also La Cour de Cassation d’ Haïti, (Composition, Attributions, Procedures, Effects of its Decisions, and Rules of the Court), available at http://www.accpuf.org/index.php?option=com_content&task=view&id=128&Itemid=185 

[20] IACHR, supra note 8, at 30-31.

[21] Agreement Establishing the Caribbean Court of Justice available at http://www.caricom.org/jsp/secretariat/legal_instruments/agreement_ccj.pdf; see also Legal System of the Republic of Haiti available at www.oas.org/juridico/mla/en/hti/en_hti-int-des-sys.doc. For further discussion of the jurisdiction of the Caribbean Court of Justice and Haiti see, Duke E. Pollard,  The Caribbean Court of Justice: Closing the Circle of Independence (2004).

[22] Haitian Const. Art. 5.

[23] Le Code Civil Haïtien, http://www.chez.com/juristehaitien/pages_textes/droit_haitien/p_code_civil.htm this article on the Civil Code of Haiti provides excerpts of those articles relative to change of name, marriage, divorce and property.

[24] Art. 5 Decree of March 29, 1979 regulating the law profession. See also, Jean Marie Mondésir, La Profession d’Avocat en Haïti, available at http://membres.lycos.fr/civiliste/ (Ordre des Avocats).

[25] See WPF Reports 10, 11, and 32 focuses on the 1995 post-peace reconstruction in Haiti: Jennifer L. McCoy Haiti: Prospects for Political and Economic Reconstruction  (WPF Report No. 10, 1995); and Robert I. Rotberg, Haiti's Turmoil: Politics and Policy under Aristide and Clinton (WPF Report No.32,  2003).