The Chargé in Haiti (Gross) to the Secretary of State
[Received 1:10 p.m.]
68. Department’s 41, July 9, 3 p.m. President Borno was visibly disturbed. He replied essentially as follows:
“This defeats our purpose and leaves us practically impotent to reform the judiciary. If the Department of State wants a reform of the magistrature it must leave in my hands more leeway in the whole question of the courts. I still feel that some one in Washington studied and approved our court problem with General Russell. These objections give me the impression that Washington does not understand our problem here, does not realize the difference in manner of thought nor the folly of thinking that our people (undisciplined in the habits of a good and [impartial?] judiciary, of constitutional interpretation by the courts, of a free press which does not encourage the overstepping of decency) can be governed by such liberal and democratic methods as can England and America whose people have the habit of good living.”
However, after a frank and [full?] discussion the President consented to accede to nearly all of the Department’s objections. He added that he could not understand the reasons for these objections.
In view of the approaching visit of President Vasquez7 and the adjournment of Council of State I request that the Department telegraph instead of writing its views mentioned in the last paragraph of its 41, July 9, 3 p.m.
The President consents to drop amendment 5 but remarked that legislation becomes hollow if the courts can, as they sometimes do, negate legislative measures at will and out of political spleen. Former Haitian Constitutions made the legislature sole interpreter of the constitutionality of laws and this is apparently still the system in France whose jurisprudence is essentially that of Haiti.
President Borno consents to drop amendment 6 but repeats objections reported in my 65, July 8, noon. May I ask what is the Department’s [Page 58]reaction to the 7-year term without reelection suggested by the President as alternative?
The President finally acceded to the Department’s other objections except two and he asks that the Department reconsider its objections to the suppression of articles 95 and 99. Regarding article 95, one of the chief objections to the judicial reform was to take the Court of First Instance out of the Constitution and provide for it or for some other lower court by enactment of law. I believe committee of American Senate in 1920 recommended abolition of Court of First Instance.8
Argument in favor of suppressing article 99 the same as mentioned above for amendment 5.
The President appeared to favor the addition to amendment 8 of a reassuring paragraph something like the following:
After a judge’s entry upon his second 5-year term he can, if his record shows noteworthy fidelity to duty and loyalty to the spirit of justice, be appointed for life. Should he previously be retired for health or other reason he shall receive the Government pension of his grade for the remainder of his life. Upon his retirement his place may be filled in the manner and for the reasons above stated provided that the number of judges shall never exceed that provided by law.
As reported in my telegram No. 59, June 29, 8 a.m.,9 the Council of State has proposed amendments to articles 36 and 42. President Borno has accepted and included them in his approved draft. What are the Department’s views regarding them? Number 36 appears harmless and 42 covers much of the ground of amendment 5 and of article 99.