Could emergency regulations deal with the nationality issue?

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Could emergency regulations deal with the nationality issue?

Post by admin » Thu Oct 27, 2005 10:34 am

[quote]the fact is that any governmental agency (departmental or else) has the right to pass emergency laws.[/quote]
Hyppolite, you said "the fact is...", but what I want to know is: Is what you propose A FACT IN HAITI? Is it part of Haiti's national or political traditions? What are the precedents for Emergency Laws passed in Haiti? And in the case under review, who in Haiti could pass Emergency Laws authorizing Dumarsais Siméus to run?

Those are not intended as points of contention. They are questions that naturally arise from what you have written. If it is a fact, that means that it can be checked. It must have some precedents, etc.

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Post by admin » Thu Oct 27, 2005 7:53 pm

[quote]The fact of the matter is, that State Institutions and Agencies, Parliament, and all effective governmental organs can pass emergency laws, so long as they adhere to the rigid procedures that are involved. I am sure of that. Usually, these are called regulations when passed at the departmental or agency level of government. But in effect it is the very same thing because they have the force of law. If you disobey them, you get penalized the exact same way in accordance with what had been previewed in those regulations. [/quote]
Hyppolite, there is a reason they call them "regulations" and not "emergency laws". In fact, there are "regulations" and "emergency regulations". Regulations are for mundane administrative matters. Emergency regulations are for situations that clearly reflect and require urgency, as in national disasters or in response to grave threats to the public. Those regulations have th
e force of law, precisely because they already operate within the spirit or intent of the Law, though they may require some accelerated or unconventional mechanisms. Government agencies must obey the law, they cannot improvise outside of the prescriptions of the law, through "emergency laws". But there can be decrees, emergency orders, special regulations etc, which all must be issued in accordance to the Law of the land.

Michel Nau_

Post by Michel Nau_ » Fri Oct 28, 2005 9:52 pm

Hyppolite wrote:
[quote]The fact is that any governmental agency (departmental or else) has the right to pass emergency laws. [/quote]Yes I agree with you!! Center for Disease Control CDC could pass Emergency Laws if there is a deadly disease or an epidemic break through that could spread rapidly through a large number of the population and killing thousand of people per hour. Ebola, bird flu, cow disease, pork fever whatever! you name it!
Count me in!!I would be the first to comply with emergency laws by any government body if it's to save lifes..

But passing Emergency Laws authorizing Dumarsais Siméus to run?
What the hell is that or Who the hell is he??
The Messiah!! A gold mine!! Superman!!

Hyppolite, just analyze those 2 words:

Emergency! Pou mwen vle di rapid, rapid, mache prese, san pedi tan.

Laws! Pou mwen vle di fo
k tout moun a la rond bade obeyi san plinyen.

Hyppolite, si bagay la telman grav e ke w mande pou leta pase emergency laws rapid rapid mache prese brid sou kou, sele chwal sou do pep la, otorize Mr. Simeus pou li partisipe nan kous presidensiyel la, kidonk nou pa bezen fe kous la anko, w met tou mete mesiye a chita sou chez boure a e w tou fini ak sa.

Your intent is premeditated my friend! And if so, you are as bad as he is. By asking for emergency laws you are trying to bypass the laws of the people just to accommodate one individual.

In Haitian's politics, there shouldn't be no favoritism, he should jump hoops just like everybody else.

We shouldn't take anything at face value. An bon kreol Nou pa achete figi moun, ni chat nan djakout!

Who told you that he would be successful in Haitian politics?

Michel

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Post by Hyppolite » Wed Nov 02, 2005 12:49 pm

Sorry it took so long to reply. I am swamped with work and also, I wanted to think things through thoroughly regarding the Simeus candidacy.

Guy has a very good and precise argument on this issue. I am convinced in my guts as well as in the facts, that the Simeus candidacy as in regards to Haiti's law and the constitution, is plain wrong. I do not see how else one can regard it. Should he become president under the present circumstances, Haiti would once more go through waves of uncertainty and drama. Of course, the poorest once more would suffer from that crisis, as usual.

This is classic Haitian politik gwo ponyèt. It's wrong. I hope his attempt at becoming president is a failure. I hope and pray that the Haitian people woiuld not make that mistake to vote him into office. This would trigger a very, very serious constitutional crisis that would deepen further the interminable crises of our homeland
. This is plainly sad, what's going on in Haiti. Very sad.

T-dodo

Post by T-dodo » Wed Nov 02, 2005 2:21 pm

[quote]Guy, the fact is that any governmental agency (departmental or else) has the right to pass emergency laws. For isntance, competent cadre of the Ministry of the Interior, or the Minsitry of Health may go through such recourse. It is routinely done for instance in the United States. The most important thing is, that the agency that passes those laws is the proper agency.[/quote]

This is news to me! Guy, like you, I am puzzled by this statement. If it is true, it goes against the principle of separation of powers in the U.S. Constitution. And, again, if the agencies have laws-enacting powers, you would have to have another article in the constitution to resolve conflicts between laws passing by them and that of Congress, which I am not aware either. I am aware of such things for conflict between States and federal laws passed by Congress.

Guy, again like you, I am aware of agencies, acting bas
ed on powers provided to them by congress, who pass regulations which have same strength as laws passed by Congress. In those laws, Congress mandate the agencies to issue regulations enforce those laws. For instance, in the banking industry, it is routine for Congress to pass a law and asking the agencing to enact regulations to enforce them. Those regulations are strictly followed by bankers, as they are subject to severe penalties, including imprisonment or assets forfeiture, if they don't follow them.

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Post by Hyppolite » Wed Nov 02, 2005 2:28 pm

Florestal,

Rushing here but this is done regularly. Here's how it goes:

1. Law is proposed;

2. A cadre of competent lawyers in the Attorney General's Office for the particular State (or some other specific agency with qualified lawyers) review the proposed law or regulation;

3. Such law is checked against federal regulations in terms of standard (i.e. higher standard or irrelevant in terms of effect on the constitution);

4. After all that's done, then the law or regulation goes from the drafting stage to the proposed stage. After usually debate with concerned citizens or interest groups, the law is either passed, or amended, or rejected, or simply ignored depending on different things.

Emergency, Laws also go through the same constitutional review process. If they don't meet a certain standard, then they're rejected.

That's in the US. Don't know about other countries. Ask some other Diaspo
, in Windows (on Haiti) who are used to that in the country where they reside.

T-dodo

Post by T-dodo » Wed Nov 02, 2005 9:50 pm

[quote]In other words, this higher authority, be it the Constitution, the provincial legislature or other, adopts a general "legislation" which allows the lower instance to adopt the "law" in the manner indicated by Hyppolite. [/quote]

Serge,

There is a huge difference between a law and a regulation. A regulation takes its powers from the law. Since Hyppolite was talking about emergency laws, I took him literally by his words. I don't know how things are done in Haiti. By the way, when one of you finds out, please let me know. But, based on my observations and readings since I have been living in the US I venture talking about a subject that is not my field of expertise. So, I am talking based on a very limited knowledge. Be it as it may, Hyppolite has specifically referred here to the process of laws in the US in his previous statement and his last post.

Referring to emergency laws, he must h
ave been talking about statutes. As non-statutory laws, common law, are usually enacted by judicial rulings not by agencies and are formalized through the doctrine of stare decisis (let the decision stand). While the law enacting process outlined above by Hyppolite may be true in some cases, he failed to indicate who has the powers to do so. For, the authority of agencies, like that of most of the executive branch for that matter, is to enforce laws, not enacting them. The process outlined above reflects mostly that followed by agencies to apply a law voted by Congress or a state legislature.

[quote]Emergency, Laws also go through the same constitutional review process. If they don't meet a certain standard, then they're rejected.

That's in the US. Don't know about other countries. Ask some other Diaspo , in Windows (on Haiti) who are used to that in the country where they reside. [/quote]

Now, when Hyppolite was sugg
esting to the Simeus camp to use emergency laws, it seems to me he was referring to Haiti, not the USA. While I don't know squat about the process of lawmaking in Haiti, other than Duvalier passing a decree, after invoking some fake constitutional due process, I can't argue with him as to the feasibility of his suggestion in Haiti. But to use the American model for it misrepresents how laws are enacted in the USA. If a legal scholar can enlighten me on that issue, I will be glad to learn it.

Here is how Metzger, Mallor, Barnes, Bowers and Phillips of Indiana University describe the process in the Eight Edition of their 1500 page book:"Business Law and The Regulatory Environment, Concepts and Cases" on page 8 published by Irwin:

"Administrative agencies can make law because of a delegation (or handing over) of power from the legislature. Agencies normally are created by a statute that specifies the area in which the agency can make law and the scope of its power in each area. Oft
en, this statutory grant of power is worded so broadly that the legislature has, in effect, merely pointed to a problem and given the agency wide-ranging powers to deal with it. For this reason, and because legislative supervision of agencies is sometimes perfunctory, agencies are often relatively immune from popular control.

The two kinds of law made by administrative agencies are administrative regulations (or administrative rules) and agency decisions. Like statutes, administrative regulations are stated in a precise form in one authoritative source. However, administrative regulations differ from statutes because the body enacting them is an agency, not the legislature. In addition, some agencies have an internal court structure that enables them to hear cases arising under the statutes and regulations they enforce. The resulting agency decisions are another kind of law. As noted, in the next chapter, agency decisions may be appealed to reg
ular state or federal courts. Practically speaking, however, the agency's decision is final...."

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Post by admin » Wed Nov 02, 2005 11:24 pm

Jean-Marie, you're not a lawyer but you could play one on TV.

Thanks for the reference [Metzger, Mallor, Barnes, Bowers and Phillips:"Business Law and The Regulatory Environment, Concepts and Cases"]. It was highly relevant to our discussion and brings much needed precision in the matter at hand, which is how administrative regulations (or special laws) are enacted in the States. Of course, there is a similar process in Haiti where an executive agency may be given broad powers to formulate exactly the mission the Legislative has entrusted it to carry out.

In the context of our discussion, a great example comes to mind: the CEP itself. Whether temporary or permanent (another discusion we may have is whether the CEP should ever become a permanent institution as opposed to its recurring provisional status), that institution was supposed to be a very strong one, which could indeed pretty much define the Rules of the Game for the
conduct of the elections. Instead, Haiti being Haiti (that is a place where up is down and down is up), the CEP ended up being a weak institution, easily manipulated by external influences to which it should have been immune. The Lavalas governments certainly contributed to that unhealthy state of affairs by not allowing the CEP any real measure of independence. They missed the opportunity of legating to the country a strong and durable institution, which would have the authority necessary to conduct its business efficiently. We all know that Jean-Bertrand Aristide did not believe much in institutions other than his own authority. Now, Latortue is making the same mistake by creating still another commission, with the charge of verifying all candidates' nationalities. If up were up and down were down, the CEP should be able to handle the nationality matter, under its own authority. Like I said, in Haiti it's hard to know which way is up.

But to go back to the fine points of Law we have raised, w
hen agencies draft regulations, they have to be enacted within the Law and not outside the Law. Of course, different people may have different readings of what is constitutionally permissible or not. That is why in those cases, where one may have profound differences with the agency in question over its interpretation of the powers ascribed to it by the Legislature, one still has the option of taking the matter to Court. [Remember, for instance, that the U.S. elections in 2000 had to be finally decided in the U.S. Supreme Court, which AS ALWAYS has the last word on any interpretation of the Law, and can only be reversed by itself or by an admendment to the Constitution (which is a most difficult process in the United States]. When the Supreme Court has ruled, even Presidents are forced to comply [or resign on occasion -- case in point: The People vs. Richard Nixon] . In Haiti, by contrast, when the Supreme Court rules (badly), a carnival atmosphere ensues and a Prime Minister simply creates a new Commissio
n that supposedly will make rulings "that cannot be appealed to the Supreme Court". Which shows again that in Haiti, it's hard to know which way is up.

That is why the notion of "emergency laws" to deal with fundamental constitutional questions is so dangerous. In Haiti, the executive branch (starting with the President and the Prime Minister, down to the lowest administrative agency) so regularly exceeds or abuse its powers, you have my guarantee that everyone and their mother-in-law would be passing some laws to deal with their personal "emergencies" [DOWN IS UP]. At the same time, executive agencies of the first order, which have broad powers to enact special laws (like the CEP with regard to electoral laws), cannot do so because of internal incompetence and external politicking .

Anyway, I think that one can learn a lot from this discussion. In fact, if the Simeus candidacy has any lasting merits, it is that many Haitians can now tell you accurately what various articles
(13, 15, 135, 187, etc) of the 1987 Constitution say. Jwèt nan jwèt, yo kab fini pa kwè nan Konstitisyon an tout bon vre!

Once again, thanks Jean-Marie for the authoritative and clear reference.

T-dodo

Post by T-dodo » Thu Nov 03, 2005 10:12 am

[quote]In the context of our discussion, a great example comes to mind: the CEP itself. Whether temporary or permanent (another discusion we may have is whether the CEP should ever become a permanent institution as opposed to its recurring provisional status), that institution was supposed to be a very strong one, which could indeed pretty much define the Rules of the Game for the conduct of the elections. Instead, Haiti being Haiti (that is a place where up is down and down is up), the CEP ended up being a weak institution, easily manipulated by external influences to which it should have been immune. The Lavalas governments certainly contributed to that unhealthy state of affairs by not allowing the CEP any real measure of independence. They missed the opportunity of legating to the country a strong and durable institution, which would have the authority necessary to conduct its business efficiently.[/quote]

n
For institutions to last, its principals must be first, CONSISTENT in their actions and decisions, and, second, PRINCIPLED about them. Those two requirements are sorely lacking in Haitian politics. They may be a litmut test in judging our politicians and presidential candidates. Although, they would need more than that to be up to task with the huge challenge of steering this country towards the right direction.

T-dodo

Post by T-dodo » Thu Nov 03, 2005 12:35 pm

[quote]By the same token, for institutions to be "CONSISTENT in their actions and decisions, and, second, PRINCIPLED about them", the rules by which they are to be created must firmly grounded in the law and the Constitution. In other words, it is a whole package, because satisfaction of one condition does not necessarily guarantee the success application of the other.[/quote]

Serge,

Your point is well taken, and you are absolutely right. I, myself, conceded that my position towards the Simeus candidacy and my inconsistency in supporting it, in violation of the current moribund and politically motivated articles of the constitution, was inconsistent with my position on the sanctity of a constitution, in general. Unfortunately, no Haitian constitution to my knowledge has reached the level yet of an institution or the pillar of political life and order in Haiti, because of the lack of foresigh
t and political character of their framers. The current one, with the inclusion of the articles 16, 135 and others, made it join the long list of previous constitutions which lived a short life and did not provide the political stability so long sought by the country and its citizens.

Under the current circumstances, which we debated ad nauseum in the past, I beleive it would serve the constitution better in the long run that it experiences "major surgery" now for its long term future. That major surgery includes ignoring its current articles 16, 135 and others. I may be wrong in beleiving this, but I am hopeful it is not the case. The reason is that most of us beleive that the greatest value of a constitution resides in applying and respecting its articles in a constantly streak. Perhaps that streak can start before or after the Simeus isuue. But the reality is that streak has been broken so many times in the past that you can start it before or after the Simeus affair because of the potential positi
ve Simeus may bring to the constitution, if he does. I would not have recommended something like that for the US constitution, for example, it would have broken the streak of respect that it has enjoyed for such a long time, so far. That is not the case with the Haitian one. For, without a streak of respect, a constitution has no practical value as we are experiencing now in Haiti.

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