Following many criticisms and heated debates, Le Nouvelliste publishes below the defense produced by the former members of the Presidential Commission for the reform of justice. They are the authors of the new Penal Code. Masters Jean Joseph Exumé, Sibylle Théard Mevs, René Magloire, Jean Vandal, Williams Allonce, Florence Mathieu and Edwin Coq provide details on the context which gave birth to the code and on the text itself. This piece does not put an end to the exchanges but sheds a new light on them like any lawyer.
Following the various positions taken both in the press and on social networks, by the publication of the Penal Code, the members of the former commission for the reform of justice consider it appropriate to provide some elements of response likely to shed light. on the copious document which seems to escape the comprehension of certain social sectors concerned, in spite of their expertise in the methods and the techniques of interpretation of the criminal and civil laws. This approach aimed solely at advancing the debate, excludes any form of controversy and reflects the quest for truth on the precise points of the critics. After a brief reminder of the circumstances of the drafting of the legal text, the main criticisms leveled against the new Penal Code will be examined.
Reminder of the circumstances of the drafting of the Penal Code
Two entities responsible for reforming criminal justice, one set up under the chairmanship of former President René Préval, called the Magloire Working Group, the other, created by decree of President Martelly, the Presidential Commission on Criminal Reform , merged and pooled their respective work. A new entity, born from this merger, was created: the Joint Technical Committee (CTC), responsible for drawing up the preliminary drafts of the new penal code and the new code of penal procedure. It is an exemplary experience of pooling, without a priori, various Haitian skills in the service of the Republic.
The Joint Technical Committee, in a work published under the title "Penal reform, and the subtitle Philosophy, Methodology, Formal sources" highlighted the guiding principles and the methodology adopted to prepare the two preliminary drafts of Penal Codes and Criminal Procedure, submitted to President Martelly in March and October 2015 respectively, despite multiple internal sources of resistance. This clarification, which is both philosophical and methodological, is followed by all the international conventions ratified by Haiti. In accordance with the provisions of the Constitution, the provisions contained therein become national legislation upon ratification.
An inventory was made of all the texts with criminal provisions with a view to their integration, with modifications if necessary, into the new Criminal Code. Throughout the development of the Code, the Committee examined all the documentation on Haitian mores, the influence of religions, including voodoo on Haitian mentality and social practices, social abuses which criminal law cannot to be tractor, the creative forces of our criminal law incompatible with the constant concern for impunity since national independence. In addition to this, the reflection of the Joint Technical Committee focused on the inexistence of a Haitian doctrine in the field of law in general, therefore of criminal law and at the same time on the considerable influence of French doctrine on the practice of law. in Haiti,
The penal reform primarily concerns the values shared by the whole of society and which, for this, must be protected. These values must be ethically assessed. The sanction for their non-observance is likely to infringe individual freedoms. The main function of criminal law is to protect the collective interest against individual abuses and attacks on the integrity of the social body. Also, the Joint Technical Committee, in support of the Ministry of Justice and Public Security, animated restitution workshops of the two preliminary drafts in the capitals of the five Courts of Appeal of the Republic: Cap-Haitien, Gonaïves, Hinche, Les Cayes, Port-au-Prince. These workshops brought together representatives of the judiciary, those of the National Police, civil society organizations and religious organizations. All the interventions of the participants were gathered faithfully in a report sent to the different groups for any useful corrections. Beyond the judicial world and "informed" civil society, the general public also had the opportunity to contribute to the preparation of preliminary drafts by sending their observations to the Commission through an e-mail address created at this effect.
Members of the Commission have always responded to invitations to participate in workshops, interviews, make presentations, provide explanations, respond to questions and concerns individual, personal, corporate or organized groups interested in penal reform.
This eminently participatory and inclusive approach enabled the Commission to collect the suggestions / observations of the participants in the various workshops, on various themes, particularly in areas such as zombification, voluntary termination of pregnancy, rape, sexual harassment, discrimination, the scale of penalties, the criminal liability of legal persons, crimes and offenses against persons and property, environmental offenses, etc.
The Technical Committee then proceeded to rewrite the drafts in the light of the suggestions / observations, insofar as they were technically admissible. Finally, the two finalized drafts were submitted again in 2016 to the Executive, thus putting an end to the mission assigned to the Presidential Commission. One year later, in April 2017, the Minister of Justice, Me. Heidi Fortuné, officially tabled the two draft Code in Parliament.
The Senate set up a Penal Code Review Commission, and launched new consultations across the country and in some African countries. Unfortunately, the Senate Commission was unable to submit the results to the Senate for sanction. As for the Justice and Public Security Commission of the Chamber of Deputies, a report was reportedly prepared but had not been submitted to the Assembly before the end of the 50th legislature. On June 24, 2020, the Executive made the decision to publish the Penal Code by decree.
Following this publication, several voices were raised to say that the Penal Code is a Code of forfeiture, a liberal Code that goes against morality and is against the current of Haitian traditions and mores. On July 1, 2020, the Episcopal Conference of Haiti, in a press note broadcast on the airwaves of several stations in the Capital and in provincial towns proclaimed that in this Penal Code, "provisions of certain articles affecting the very essence of our humanity, our culture, our faith and our society should not be promulgated without prior consultation with those for whom they were developed, because it involves the difficult and complex questions of human life: of sexual majority , incest, sexual orientation, sex change etc ... ”For their part, Protestant federations follow suit and point the finger at articles 209, 248, 264, 278, 277, 278, 298, 305, 362, 383, 384 which would contain legal authorizations on homosexuality, marriage between people of the same sex, bestiality, incest, amnesty. Political parties, former parliamentarians and figures from civil society have mixed their voices in the concert of critics, ignoring or forgetting Haiti's international obligations arising from the ratification of certain conventions.
The members of the former presidential commission for the reform of justice here wish to recall that their work was not guided by pecuniary or political considerations. They worked methodically and in the most complete independence, with the sole concern of making their contribution to the establishment of an authentic penal reform, essential to the establishment of a rule of law, respectful of freedoms. individual, but where the excesses and new offenses that plague the societies of the modern world are repressed with all the necessary rigor. As such, we must not lose sight of the fact that criminal matters being of strict interpretation, it was essential to introduce new offenses if we wanted to sanction them.
The philosophy underlying penal reform is above all humanist. It is inspired by the new dynamics of human rights and adapts to the social, cultural and economic realities of our country, while being careful not to consecrate the constantly denounced cultural ambivalence and cultural practices linked to voodoo religions and whose modes of evidence must be able to be assessed according to objective criteria.
Without obviously neglecting the protection of republican institutions and public peace, the reform project of the Penal Code and the Criminal Instruction Code has as its primary purpose the defense of the human person, in particular of vulnerable categories and tends to ensure their full development. by protecting her against all attacks, whether they target her life, her body, her freedoms, her safety, her dignity, her property, her environment or even the survival of the human species.
Essential clarifications on the disputed points
The former members of the Presidential Commission insist on informing that they do not intend to enter into any controversy with anyone. Admittedly, the analysis reveals that many criticisms of certain articles of the Code are unfounded.
The old Commission would have much preferred to debate on a strictly technical level. It is indeed a work of science. Sound critics must make the sacrifice of reading the new Penal Code while silencing their emotions and their intimate dreams of a society in total degeneration like the one they see building and consolidating itself day by day, under the pretext of respecting " the very essence of our humanity, our culture, our faith and our society ”.
If only this update offers everyone the opportunity to re-establish the truth about the many misinterpretations conveyed in the press and on social networks! Our society, our culture, our aspirations would benefit enormously from it. The point will be made on the main criticisms, sexual orientation, the illegal termination of pregnancy, sexual majority, incest, bestiality, amnesty.
The question of sexual orientation
Several articles of the Code use the term “sexual orientation”. For this reason alone, criticism is coming from all sides. For those who hold this point of view, “sexual orientation” means debauchery, homosexuality, libertinism, etc. ”. The term sexual orientation is found in articles 248, 265, 273, 275,277, 278, 362. The first 6 articles are placed in the second title on attacks on the human person (intentional attacks on life: murder, assassination) attacks the physical or psychological integrity of the person (torture, acts of barbarism).
These articles, far from constituting an authorization of homosexuality, rather provide for a worsening of the sanction when the offense is committed against a whole category of persons covered by these provisions. Indeed, article 248 in the second title dealing with attacks on the human person only provided for a stronger sentence, life imprisonment in the case of a murder; “(1) on a minor aged fifteen years or less; 2 ° on an ascendant or on the adoptive father or mother 3 ° on a person whose particular vulnerability, due to his age, to an illness, to an infirmity, to a physical or mental deficiency or to a state of pregnancy, is apparent or known of its author; 4 ° on a magistrate, a juror, a lawyer, a public or ministerial officer, a police officer, an official of the national police, customs, prison administration or any other person holding public authority, a firefighter, when the status of the victim is apparent or known to the perpetrator; 5 ° on the spouse, the partner, the concubine, the ascendants and the descendants in direct line of the persons mentioned in the preceding paragraph or on any other person usually living at their domicile, by reason of the functions performed by these persons; 6 ° on any person entrusted with a public service mission, on a health professional in the exercise of his functions, when the status of the victim is apparent or known to the perpetrator; 7 ° on a witness, a victim or a civil party, either to prevent him from denouncing the facts, filing a complaint or taking legal action, either because of his denunciation, his complaint or his testimony; 8 ° because of the victim's membership or non-membership, true or supposed, of a specific ethnicity, nation, race, religion, or because of his or her political convictions; 9 ° because of the victim's sexual orientation; (10) by several persons acting in an organized band; 11º by stoning or flaming necklace. "
It follows from such a statement that the term sexual orientation of the victim in article 248 is only one of the aggravating circumstances justifying a more severe sentence against the perpetrator of a serious offense committed against a person ( murder, torture, act of barbarism…) It cannot be interpreted as recognition of homosexuality by the Penal Code.
Under the same conditions as those provided for in Article 248, Articles 265 et seq. Using the term sexual orientation in Chapter II dealing with attacks on the physical or mental integrity of the person provide for an aggravating circumstance. The Code also deals in Chapter V with discrimination (articles 362 and following). Article 362 stipulates that "constitutes discrimination any distinction made between natural persons on the grounds of their origin, their sex, their marital status, their physical appearance, their surname, their state of health, their disability, their genetic characteristics, their morals, their sexual orientation, their age, their political opinions, their trade union activities, their membership or their non-membership, real or supposed,
It is fundamental to understand that non-discrimination on the grounds of sexual orientation is in accordance with the doctrine and jurisprudence of the inter-American and UN human rights systems, to which we have adhered by ratifying the American Convention and the International Covenant on Human Rights. civilians and politicians. It is not possible to ignore them. When we speak of sexual orientation, by detaching it from the general context of the causes of non-discrimination, we are at odds with the advances and dynamics of the promotion and defense of human rights which have become a universal rule. The drafters of the new Penal Code could not, for their part, forget our membership of these systems which are an integral part of our legislation in accordance with article 276 of our Constitution. Can Haiti afford the luxury of backsliding from the global trend? The observation is that nowhere does the Penal Code deal with issues of homosexuality, marriage for all, transsexuality or other such issues. In any case, such questions do not fall within the scope of the Criminal Code, which is essentially devoted to identifying offenses and punishing them.
Illegal termination of pregnancy
In a press release issued by several political parties, it is written “that abortion legislation for example, a polarized subject of a national debate in order to take the pulse of society. To decide on it without at least worrying about a minimum consensus, amounts to contempt, and yet this is what the President did in article 238. (rather 328) ”
The provisions of the Penal Code on this issue were drawn up after numerous consultations with magistrates, lawyers in the country, women's sectors and members of civil society in general. It was necessary to consult several reports of the feminist commissions that worked on this question, to also look at what is happening in many countries of Latin and Central America, Europe and Africa.
Considering the renditions of civil society and other organized groups, the Commission understood that it was impossible to obtain unanimity on this thorny question of society. Two currents prevailed, one which was absolutely against the voluntary termination of pregnancy, most often for reasons of Christian faith or morals, and the other which even advocated the total freedom of women to use their bodies as she hears it. Recall that the Penal Code of 1835 in its article 262 considered abortion in all cases as a crime punishable by imprisonment. This same penalty was foreseen against the woman who will have procured the abortion for herself. And even the doctors, surgeons and other health officials who indicated or administered means to have an abortion were punished with forced labor in time. The 2020 Code, in its article 328, only adopted a partial decriminalization of the voluntary termination of pregnancy. This article states the following:
"The termination of pregnancy performed without the free and informed consent of the pregnant woman, or beyond the period of twelve (12) weeks, or in disregard of the requirements of medical science is punishable by imprisonment of five (5) years to seven (7) and a fine of 50,000 gourdes to 100,000 gourdes "
Anyone who, outside the requirements of medical science, by food, drink, medication or other, has caused the abortion of a pregnant woman without her consent, is liable to the same penalties.
The penalty is the same if the abortion is provoked by physical violence.
Doctors, surgeons, other health officers and pharmacists who have indicated or administered these means, will be condemned to the same penalty if the abortion has followed.
There is no offense when the pregnancy is the result of rape or incest or when the physical or mental health of the woman is in danger. "
It will be understood that the question of the termination of pregnancy is not only linked to religious conceptions, morals or traditions. It has become a public health problem with us, as in most countries. Who could claim to ignore the number of clandestine abortions that take place every day in Haiti with extremely damaging consequences for girls and women, especially in underprivileged areas? The State, guardian of public order, must take all measures to protect this category of people by partially decriminalizing abortion while supervising it as did the Penal Code of 2020.
Sexual majority
Whatever the detractors of the new Penal Code may say, this text, published in the Official Journal "the Monitor", does not include any provision dealing with sexual majority. In many countries, this concept in itself is a myth because it actually refers to the sanction of an adult who has relations with a minor, it being understood that the age of the latter plays a decisive role in the responsibility of the adult in question.
Critics therefore wrongly accuse the new Penal Code of having lowered the age of sexual majority to fifteen (15) years with the unacknowledged goal of "encouraging the embezzlement of minors, decriminalizing pedophilia and 'authorize the prostitution of minors'. Article 384 to which they refer states the following:
"The act of soliciting, accepting or obtaining, in exchange for remuneration or a promise of remuneration, for relations of a sexual nature from a minor who engages in prostitution, including occasionally, is punishable by imprisonment of two to three years and a fine of 50,000 gourdes to 100,000 gourdes.
The same penalties apply to soliciting, accepting or obtaining, in exchange for remuneration or a promise of remuneration, relations of a sexual nature from a person who even occasionally engages in prostitution , when this person presents a particular vulnerability, apparent or known to the perpetrator, due to an illness, an infirmity, a physical or mental deficiency or a state of pregnancy ”.
Can it be clearer that this article punishes soliciting relations of a sexual nature from a minor even when engaged in prostitution, including occasional prostitution, or from a person presenting a particular vulnerability. This cannot reasonably be interpreted as a desire expressed in the Penal Code to encourage minors to engage in prostitution. Is this really a legal debate? If so, it is important to read the entire text which includes, in Chapter VII dealing with attacks on minors and the family ”many provisions protecting this vulnerable category.
These articles clearly show that, contrary to the opinion of its detractors, the Penal Code has made the effort to integrate a whole series of protective provisions for minors, scattered until then in various legislative texts. This is why certain practices are punished: recourse to prostitution of minors or particularly vulnerable persons (Articles 384, 385, 386), child pornography (Articles 387, 388, 389, 390, 391, 392), 'exploitation of begging (Articles 393, 394, 395), working conditions and accommodation contrary to the dignity of the person (Articles 396, 397,398, 399, 400). Whenever reference is made to a minor aged 15 years or less, it is in the context of an aggravation of the sentence when the offense is committed against him.
Article 278 (amended by the Decree of 6 July 2005 art. 1) "Anyone who has committed a crime of rape, or is guilty of any other sexual assault, consumed or attempted with violence, threats, surprise or psychological pressure against the person of the 'one or the other sex, will be punished with ten years of forced labor. "
Article 279 (amended by the Decree of July 6, 2005 art. 3)
“If the crime was committed on the person of a child below the age of fifteen, the guilty person will be punished with fifteen years of forced labor. "
In criminal matters, everything being of strict law, the analogy is not allowed. If it is not prescribed that the sexual majority is fixed at 15 years, this majority does not exist. The non-existent sexual majority could not be lowered.
Incest
The judiciary was surprised to hear on the air that the Penal Code decriminalized incest for cousins, cousins, uncles, aunts, nephews and nieces, "which frees up acts hitherto deemed reprehensible by the society as a whole ”. And yet, in the new Penal Code, the one we know, the decriminalization of incest has never been addressed. Incest, in Haitian law, has never been penalized.
Violation of the incest prohibition entails purely civil penalties. Article 149 of the Civil Code stipulates that "in a direct line, marriage is prohibited between all ascendants and descendants, legitimate or natural, and allies in the same line". Article 150, modified by the Law of December 16, 1929, prescribes that “in collateral line, marriage is absolutely prohibited between legitimate or natural brother and sister; marriage is also prohibited between brother-in-law and sister-in-law, uncle and niece, aunt and nephew.
But these prohibitions could also be lifted for exceptional reasons, by the President of Haiti ”, by virtue of the modification made to this article by the Law of September 24, 1864 which also specifies in a third paragraph:
“However, the dispensation relating to marriage between the sister-in-law and the brother-in-law can only be granted when the union has been dissolved by the death of one of the spouses”.
We must rather consider the introduction of incest as an offense punishable by the Penal Code, as a step forward.
Zoophilia
Former members of the Presidential Commission on Penal Reform have taken note of the criticisms formulated by various sectors, particularly religious ones, that the Penal Code has not sanctioned sexual relations between humans and animals. Investigations carried out by the Commission have revealed that such practices are surrounded by the strictest confidentiality. The authors of these critiques should read without emotion or prejudice, the statement of article 301 which states that "forcing a person to commit a sexual act with an animal is punishable by imprisonment for five years (5) to ten years and a fine of 50,000 gourdes to 100,000 gourdes ”. Does this statement lead to the conclusion that sexual relations between a human being and an animal are permitted? Criminal law does not allow conclusions by analogy or by deduction. Would we want an animal to suddenly become a subject of law?
On the other hand, what is legitimate to sanction is the fact of forcing a person to commit a sexual act with an animal. And this is what the Penal Code has done in article 301. A closer and more complete reading of the Penal Code would have made it possible to note that articles 1018, 1019 and 1020 of the Decree do deal with involuntary attacks on life or to the integrity of an animal, mistreatment of an animal, intentional attacks on the life of an animal. The question of “sexual” relations with an animal is only addressed in the context of article 301. Extrapolations are not permitted in criminal law.
And speaking of Haitian manners and customs, it will be easy to note that these punitive provisions do not concern cockfighting, not prohibited by the new criminal law!
Amnesty
The main criticism against the provisions of the Penal Code is based on the presumption that, on the basis of Articles 221 to 225, people accused of financial crimes could potentially benefit from the amnesty and that these provisions would be unconstitutional for failing to say that it can only be granted in political matters. As for the presidential pardon, there would be a novelty in the Penal Code, tending to allow a pardoned person to become President of the Republic or to occupy other elective or political functions.
This is a misinterpretation of the amnesty and pardon provisions. In reality, the new Penal Code reproduces almost word for word the provisions then in force on amnesty and presidential pardon, which can be found in the law of September 26, 1860, amended by the law of July 26, 1906 and that of October 7, 1994 (see table above). Having said that, is this really a legal debate?
**COMPARATIVE TABLE**
New Penal Code Vs Law of September 26, 1860, amended by the Laws of July 26, 1906 and October 7, 1994 (in force)
A.- Amnistie
Article 221 of the Decree states:
“The right of amnesty attributed to the Head of State can only be exercised in cases of attack on the fundamental interests of the Nation, the State and public peace. It does not apply in cases of genocide, crimes against humanity or war crimes.
Amnesty can be pronounced either before or after prosecution and even after default convictions.
In article 3 of the law of September 26, 1860, modified by that of July 26, 1906 and that of October 7, 1994, it is provided that:
"The right of amnesty granted by the Constitution to the Head of State is only exercised in political matters, that is to say in all cases of crimes and offenses tending to disturb the State and of crimes and accessory offenses as defined by the Penal Code
Amnesty can be pronounced either before or after prosecution and even after convictions in absentia ”
Article 222 of the Decree
The amnesty removes the sentences handed down. It entails, without being able to give rise to restitution, the remission of all sentences. It restores the perpetrator or accomplice of the offense to the conditional benefit that may have been awarded to him in a previous conviction.
The amnesty puts an end to all prosecutions against persons charged, accused or accused, and even persons convicted by default, except the rights of third parties to whom no prejudice has been brought and which can only be discussed before the Court of First Instance. .
Article 223 of the Decree
Amnesty for the principal act erases criminality from all related offenses.
It benefits accomplices as well as perpetrators of amnestied acts and nullifies all pecuniary sentences obtained by the public party.
It protects from the penalty of recidivism those who have taken to the facts for which the amnesty has been pronounced. It takes rehabilitation of these people.
Article 224. Amnesty does not prejudice third parties.
Articles 6 and 7 of the law of 26 -09-60
Article 6.- The amnesty puts an end to all prosecutions against the accused, the accused, the accused and even the condemned in absentia, except the due respect for the rights of third parties to whom no prejudice is brought and who can only be discussed in civil courts.
Article 7.- The amnesty of the principal fact destroys at the same time the criminality of all the accessory offenses. It benefits accomplices as well as perpetrators of amnestied acts and nullifies all pecuniary sentences obtained by the public party.
It protects from the penalty of recidivism the individuals who would have taken part in the acts for which the amnesty will have been pronounced and will exempt them from the rehabilitation which it represents and of which it takes the place.
B.- Presidential pardon
Article 216 of the Decree
Grace only dispenses with carrying out the penalty.
It brings the convicted person back to his civil and political rights by immediately ending any sentence whatsoever, or all proceedings already started by the Public Prosecutor's Office in execution of the sentence pronounced.
Article 217
A pardoned person cannot demand reimbursement of what he has paid, of damages paid or of building costs received by third parties.
Article 218
The pardon does not preclude the right of the victim to obtain compensation for the damage caused by the offense, the civil interests of third parties or the rights acquired by them.
Article 4 of the law of September 26, 1860
The pardon makes the condemned return to his civil and political rights, by immediately putting an end to the sentence whatever it is, or all proceedings already started by the Public Ministry in execution of the pronounced sentence.
But it in no way prejudices the civil interests of third parties and the rights acquired by them.
The pardoned may not demand the reimbursement of what he has paid nor any refund of costs, paid damages or building costs received by third parties.
As one can well understand, the new formulation of article 221 in no way grants the possibility to a Head of State of amnesty a squanderer of public funds. The right of amnesty is exercised only in cases of attack on the fundamental interests of the nation. It does not apply in cases of genocide, crimes against humanity or war crimes.
Those who claim that the term fundamental interests is somewhat vague and could hide other motivations have an obligation to refer to Article 608 of the Code which clearly defines the fundamental interests of the nation.
Article 608: "The fundamental interests of the nation are understood within the meaning of this title, its independence, the integrity of its territory, its security, the republican form of its institutions, the means of its defense and its diplomacy, the safeguard of its population in Haiti and abroad, the balance of its natural environment and its environment and the essential elements of its scientific and economic potential and its cultural heritage ”.
We rely on their taste for reason for a healthy understanding of these legal provisions which have only repeated the legislation in force on amnesty. Regarding the presidential pardon, contrary to what is said, there is nothing new. The pardon makes the condemned return to his civil and political rights as the law of September 26, 1860 had already provided for. Because if the Penal Code enacts the rules concerning amnesty and presidential pardon, it is the Code of Criminal Procedure which establishes the conditions and modalities according to which the Head of State grants amnesty and pardon.
In conclusion, the former members of the Presidential Commission reiterate that they do not intend to engage in controversy. They appreciate the interest shown in the new Penal Code. No human work being perfect, they would like to express the wish that a high-level scientific debate be organized on this new Penal Code.
Social remodeling is a collective work of governments, civil society organizations, social and religious educators. So all together for the reform of the Penal Code towards a more just society!
Port-au-Prince on July 19, 2020
Former members of the Presidential Commission for Justice Reform
Jean Joseph EXUME………………………………………………….……
Sibylle THEARD MEVS……………………………………………..……
René MAGLOIRE …………………………………………………………
Jean VANDAL……………………………………………………………..
Williams ALLONCE……………………………………………………….
Florence MATHIEU ……………………………. …………………………
Edwin COQ……………………………………..…………………………