838.00/2352: Telegram

The Secretary of State to the Chargé in Haiti (Gross)

46. Your 68, June 12, 11 a.m. Department’s objections to certain of the proposed constitutional amendments are briefly as follows:

  • Amendment 5. It is felt that this concentrates too much power in the legislative branch, and would give just ground for criticism. It would enable the Legislature by law to deprive natives and aliens alike of rights guaranteed by the Constitution, without a remedy of any kind. The Department’s attention has been called to a case in which an American citizen was deprived by an act of the Legislature of the constitutional right to hold land. Moreover, adoption of the proposed Amendment would leave no check upon the Legislature, since its acts would not be reviewable. Without the power to interpret laws, the Courts could not apply them unless they were so clear as to need no interpretation. Legislatures, as a rule, do not have the faculty of framing their laws in such language as would render interpretation unnecessary. Furthermore, it is necessary in many instances for executive officials to interpret the law. Consequently, to place such authority solely in the Legislature would render the executive and judicial branches, to a certain degree, impotent. While the Department thoroughly appreciates the difficulties which may have been caused to the Haitian Government and treaty officials by arbitrary action of the courts it does not believe that the proper remedy lies in taking away the power to interpret legislation from the courts and putting that same power in the hands of the legislative body. If a law is declared unconstitutional by the courts the power to enact a new law or alter the old law so that it will conform to the Constitution still rests with the legislative body. If the courts arbitrarily use their power to hamper the Government the proper remedy would be an improvement of the judicial personnel through careful exercise of the powers granted to the Executive by the eighth proposed amendment.
  • Amendment 6. Department believes that the best interests of Haiti require that one man shall not remain in the Presidency more than 8 years consecutively. If the proposed amendment should be passed it is presumed that President Borno might, by being reelected, remain in office for 14 consecutive years. The Department has the highest respect for President Borno and appreciates thoroughly the efforts he has made and is making to improve the condition of Haiti and the Haitian people as well as his very helpful attitude toward the Haitian treaty officials and his evident desire to advance and facilitate their work. The Department feels, however, that it would not be for the best interests of Haiti, nor would it be statesmanlike, to allow considerations of temporary expediency dictated by the great personal qualifications [Page 60]of President Borno to overrule what it feels will be for the best interests of Haiti in the long run and feels sure that President Borno himself will agree that such a fundamental principle should not be sacrificed for personal considerations. Should President Borno feel that there should be one term of 6 years for President without immediate reelection, the Department would have no objection to such an amendment, it being understood, of course, that President Borno himself would not be eligible at the next election.
  • Amendment 9. Department considers it preferable that the date for the convocation of the primary assemblies shall be fixed by the constitution and shall not be subject to arbitrary postponement by the legislative body.

  • Article 95. Department is willing to reconsider its suppression of Article 95 and desires detailed report from you as to the end which is sought to accomplish and the actual changes which would be brought about in judicial procedure.
  • Article 99. Since the Department cannot approve of the enactment of amendment number 5 for the reasons above stated it is considered essential that Article 99 be retained in the Constitution.

The Department believes that the benefits which it is hoped will result from the enactment of proposed amendment number 8 would be lost if provisions were made for the appointment of judges for life after an initial term of 5 years. This would simply result in putting judges on their good behavior for a trial period after which the situation would be the same as under the present Constitution.

Your telegram 59, June 29, 8 a.m.10

Department offers no objection to the change of the term of a senator from 6 years to 4 years but sees no particular advantage in this alteration.

Your telegram above referred to states that “The National Assembly shall interpret the Constitution.” Department cannot approve of any provision enabling the National Assembly to interpret the Constitution to the exclusion of this function by the Court of Cassation.

Your despatch 963, June 30,11 says that this proposed amendment will empower “the National Assembly to amend the constitution”. The Department is strongly convinced that any amendments to the Constitution should be submitted to the people. The Department understood that General Russell had discussed this with President Borno and that President Borno agreed that it would be unwise to have the Constitution amended by the National Assembly without submitting the amendments to the people. The proposed amendments [Page 61]as forwarded with your despatch 101811a provide that “these amendments shall be submitted for proper ratification at the next biennial reunion of the primary assembly”. The Department approves of this method of amending the Constitution.

Kellogg
  1. Not printed.
  2. Ante, p. 54.
  3. See the High Commissioner’s despatch No. 1018, June 1, p. 48.