Papers relating to the foreign relations of the United States, 1931, Volume II
838.51/2362
The Minister in Haiti (Munro) to the Secretary of State
[Received November 24.]
Sir: With reference to my telegram No. 131 of November 7, 12 M, I have the honor to transmit herewith copies of notes exchanged on November 7th. with the Haitian Minister for Foreign Affairs regarding certain provisions of the budgetary laws enacted by the Haitian Congress for the fiscal year 1931–32.
. . . . . . . . . . . . . .
The final outcome appears to be entirely satisfactory from the practical point of view. The budget has been balanced at the amount desired by the Financial Adviser and the Treaty Services have obtained appropriations sufficiently large to permit them to function efficiently. The objectionable provisions in the budgetary laws have been set aside or so interpreted as to safe-guard the authority of the Financial Adviser. Finally, we appear to have established for the time being at least the principle that the Haitian Government cannot enact budgetary legislation diminishing the authority of the Financial Adviser or containing other provisions to which he cannot give his accord. It is especially gratifying that the settlement appears to have brought about a distinct improvement in our general relations with [Page 539] the Haitian Government which are on the whole more cordial now than at any time since the inauguration of the new administration here.
Respectfully yours,
The American Minister (Munro) to the Haitian Minister for Foreign Affairs (Léger)
Excellency: With reference to the numerous conferences which we have held with regard to the provisions of the budgetary laws for the fiscal year 1931–32, I have the honor to place before Your Excellency herewith a summary of the objections which this Legation has felt compelled to set forth with regard to these laws in the hope that a satisfactory solution of the questions may now be reached.
1. It is observed that the preambles of the law of Ways and Means and the law of Finance as promulgated by the executive power in the Moniteur of September 17th. contain in each case the following language:66
“Considering the situation arising from the forced extension of the convention by the so-called Additional Act, which convention expired on May 3rd, 1926; a situation which the legislature has demanded that the government bring to an end as soon as possible by immediately undertaking negotiations with the American Government;
Considering that while awaiting the result of these negotiations, the public services should function by virtue of the law of finance and the budget, effected in consideration of this situation and freed of all the illegitimate budgets of which they have formerly been the object;”
Although the Government of the United States has given concrete evidence of its willingness to alter certain features of the regime established by previous agreements between the two Governments under the provisions of the Treaty of September 16, 1915, it regards the Treaty itself as remaining in full force and effect. The Financial Adviser, nominated by the President of the United States under the provisions of the Treaty, could not therefore give his accord to the law of Ways and Means and the law of Expenditures as promulgated, if this statement in the preamble is to be regarded as constituting an expression of the views of the Haitian Government regarding the validity of the Treaty or as having any effect on the manner in which the provisions of the budgetary laws are to be executed. I have been instructed, therefore, to state that any accord which may [Page 540] be given to these laws cannot imply the acceptance by the Government of the United States of the views expressed in the preambles or any recognition that the question of the validity of the Treaty is open to discussion.
I am instructed further to request from Your Excellency an expression of the views of the Haitian Government as to the effect of these statements in the preambles with reference to questions arising between the two Governments under the provisions of the Treaty and with reference to questions arising in the execution of the budgetary laws.
2. Article 3 of the law of Ways and Means places the estimated receipts for the fiscal year 1931–32 at 32,796,770 Gourdes; and Article 1 of the law of Expenditures authorizes expenditures for the fiscal year of 32,743,043.42 Gourdes. It is understood, however, as the result of our conversations that the budget for the fiscal year 1931–32 will be balanced at 32,000,000 Gourdes, and no objection will be made to a budget based on this amount provided that the details thereof can be worked out by the Minister of Finance with the Financial Adviser in accordance with the general principles upon which we have already informally agreed.
3. My Government considers that Article 10 of the law of Ways and Means cannot be made effective because it purports to modify charges at the Customs Houses without a previous agreement with the President of the United States as required by Article 9 of the Treaty.
4. In the case of other provisions of the law of Ways and Means and of the law of Expenditures to which objections were made by the Acting Financial Adviser in a letter sent to the Minister of Finance under date of September 14, 1931, my understanding of the result of our conversation is as follows:
- A.
- It is understood that all moneys of the Haitian Treasury shall continue as heretofore to be deposited to the account of the General Receiver and that references in the financial laws to deposits to the account of the State refer to deposits made to the account of the General Receiver.
- B.
- Regulations and instructions governing revolving funds and reimbursable credits will be issued with the prior accord of the Financial Adviser.
- C.
- It is understood that Articles 9 and 12 of the law of Ways and Means make no change in the present status with regard to criminal or civil responsibility of the Financial Adviser-General Receiver and his aids and employees.
- D.
- I understand that Article 7 of the law of Ways and Means will not be interpreted in such a way as to alter the present practice and procedure regarding correction of errors and regarding reports to the Minister of Finance.
- E.
- Whereas the Financial Adviser-General Receiver has agreed to pay the Bank’s commission from the 5% and 15% funds if and to [Page 541] such extent as it is possible to do so, the Haitian Government on its part agrees that any portion of the commission which cannot be paid by reason of the insufficiency of these funds will be met by means of an extraordinary credit, to be issued promptly after September 30, 1932.
- F.
- Although Article 7 of the law of Expenditures for the fiscal year 1930–31 has been omitted from the present law, it is nevertheless understood that the operating funds of the Financial Adviser-General Receiver will continue to be 5% of the customs receipts as provided by the Treaty and 15% of the internal revenue receipts as provided by law.
- G.
- In view of the obligation of the Financial Adviser under Article 2 of the Treaty to devise an adequate system of public accounting, it is the view of my Government that changes in the existing accounting system should not be made except after consultation and agreement with the Financial Adviser. Article 8 to 11 and 23 to 34 of the law of Expenditures apparently seek to bring about changes in the accounting system and contain impracticable and in some instances self-contradictory provisions which if put into effect would make the maintenance of an adequate accounting system very difficult. I understand, however, that we are in accord upon the desirability of leaving this matter to be discussed in the first instance between the Financial Adviser and the Minister of Finance, with a view to any changes or interpretations of a practical nature.
- H.
- The Haitian Government will instruct its officials to advise the General Receiver of changes in salaries, pensions, subventions, and rentals, within two days after such changes shall have taken place in order to avoid improper payments.
- I.
- With reference to paragraph 12 of Article 16 of the law of Expenditures, it is understood that the General Receiver will continue to make payments to members of religious organizations in accordance with their internal regulations.
- J.
- The provisions of Article 19 of the law of Expenditures do not affect the right and duty of the Financial Adviser to make expenditures required by the provisions of the Treaty.
- K.
- It is understood that arrangements will be made which will enable such Government Services as may find it advisable to authorize purchasing agents to act for them abroad.
- L.
- It is understood that extraordinary credits will not be issued without the prior accord of the Financial Adviser.
Accept [etc.]
The Haitian Minister for Foreign Affairs (Léger) to the American Minister (Munro)
Mr. Minister: I have the honor in the name of the Government of the Republic to acknowledge receipt of your Excellency’s letter of November 7, 1931, in which you indicated the Preambles and certain dispositions of the law of Ways and Means and the law of Finance for [Page 542] the budgetary year 1931–1932, which appear to the Legation of the United States to be inconsistent with the provisions of the treaty of 1915, the liquidation of which was so happily begun with the accord of last August 5.67
Without prejudice to the conversations now in progress, and after consultation with the Council of Secretaries of State, I shall reply to your communication for greater clearness in the order of the questions presented.
1. Preambles of the laws:
These preambles, as I have explained to your Excellency, are amendments resulting from the exercise of parliamentary initiative and seem to constitute the logical sequence of the attitude adopted by the Chambers concerning the non-validity of the “Additional Act” proroguing the treaty of September 16, 1915 for a new period of ten years.
In law, the act of promulgation by the Executive is only an attestation to the body politic that a given law has been voted by the legislative body and that it has executory force. Judicially, it does not imply a conformity of the views of the Executive with those of the legislature, because the right to initiate laws belongs equally to this latter power, (Constitution, Article 55); because the legislature has the right to amend projects of law initiated by the Executive, (Constitution, Article 61); and finally, because even in cases where the President of the Republic might consider it wise to request a new consideration of the law, he would be obliged to promulgate the law in the event of the rejection of his objections, (Constitution, Article 62).
Furthermore, the preambles of a law, like the grounds of a judicial decision, do not determine anything. Only the provisions of a law are of obligatory force.
The Government of the Republic has, moreover, defined its policy before the Chambers. It proposes to maintain its complete liberty of action, by virtue of the principle of separation of powers, in order to pursue with the Chancery of the United States of America the present amicable and cordial conversations envisaging the early liquidation of the treaty of 1915.
We willingly admit that the Government of Washington, as you yourself state in your letter, has already furnished a “concrete proof of its willingness to modify the regime established by the treaty” and that it has promised by the Accord of last August 5 to continue the study of the other problems arising from the said instrument. You are aware, Mr. Minister, that a few days after the signing of the Accord my department instructed the Haitian Minister at Washington to inform the Secretary of State of the satisfaction of the Government [Page 543] and people of Haiti, and to request him to communicate to President Hoover the expression of our gratitude for the change of policy which had been inaugurated in Haiti.68
Because of the excellent relations which exist between us, I communicated to you on the 21 of October promptly upon your return from leave, the project for the establishment of a Fiscal Agency and the abolition of the organization of the Financial Adviser-General Receiver of Customs.
2. Law of Ways and Means:
Article 3. The Government, after studying closely the estimated receipts of the fiscal year 1931–32 had resolved several months ago to restrict itself to a budget of about Gdes. 32,000,000, the reserves to be drawn on if necessary to permit us to reach this figure, and our reductions in the budget to make up the difference between this figure and the amount fixed by the Chambers plus the additional amount requested by the Garde for the maintenance of public security, in order to provide for the balancing of the budget on the basis of a percentage reduction applicable to all public services, in accordance with the formula agreed upon at our conference of October 28.
3. The text of Article 10 does in fact appear not to be in conformity with Article 127 of the Constitution or with the order of relative superiority established thereby.
4. (A) Articles 6 and 11, which provide for the deposit of certain revenues in the National Bank of the Republic of Haiti for the account of the State, in consideration of the Washington transaction of 1916, and the accord relative to the Internal Revenue Service, does not modify the present status quo, pending the conclusion of the conversations which we have begun.
(B) The Regulations concerning the use of revolving funds and reimbursable credits will be issued after communication to the Financial Adviser for his accord and recommendation.
(C) Article 9 does not refer in any way to collectors of customs, etc.
Article 12 embodies a principle contained in the legislation of the entire world, namely: That neglect of duty and negligence give rise to pecuniary responsibility. The Government, according to the text, is the sole judge of negligence and it concedes voluntarily that the Receiver General and the Director General of Contributions will not be liable to any chargé of negligence if they report to the Secretary of State for Finance any cases of non-collection of which they have knowledge. The decision to undertake proceedings will be made [Page 544] after amicable examination by the Secretary of State for Finance of the reasons for non-collection; and by the Council of Secretaries of State, if the case involves the general policy of the Government. The Receiver General and the Director General of Contributions will incur no responsibility for failure on the part of the State to bring suit or for delay therein, if they shall have reported the case of non-collection to the Secretary of State for Finance.
(D) Article 7, in its present form, does not change in any way the practice and procedure concerning the correction of errors and the reports to be addressed to the Secretary of State for Finance.
(E) Because of the restrictions effected by means of reductions in salaries in the offices of the Receiver General of Customs and the Director General of Contributions, and the possible reduction in receipts, if there should be any demonstrated difficulty in paying commissions to the National Bank of the Republic of Haiti at the end of the present fiscal year out of the 5% and 15% funds, the Government will consider an extraordinary credit to meet the situation and remedy the omission in the present law of the former provision which protected the Receiver General in this connection.
(F) The observation is correct and the functioning of the offices of the Financial Adviser-General Receiver and the Director General of Contributions already provided for by the treaty under liquidation, the accords, and the law, is to continue as in the past within the maximum limits respectively of 5% and 15%.
(G) Articles 8–11, and 29–34. The provisions enacted may offer some inconvenience but do not really affect any treaty right. Nevertheless, the observations made will be examined later by the Secretary of State for Finance and the Financial Adviser with the object of effecting any changes or interpretations of a practical order.
(H) Although the change effected in the previous text of the old law by Article 15 could legally give rise to the inconveniences indicated, actually, it establishes a maximum delay which the administrative services are not obliged to exhaust, and I do not see any objection to the Receiver General making a request, which will be granted, by the intermediary of the Ministry for Finance, that all changes be brought to his notice within two days.
(I) Article 16, paragraph 12. The observation is correct, but the text, in spite of its general terms, does not prevent the executive from issuing an order of payment in favor of the superior of the order who, in conformity with its regulations is the representative of its members. The Government, in fact, has already recognized in the Convention with the Papacy of June 17, 1862,69 that the members of religious [Page 545] orders requested by the Republic of Haiti would come “In accordance with the conditions established by their orders”.
(J) Article 19. It is not necessary that the law of expenditures specify all the international obligations of the Republic of Haiti; it is sufficient that the budget be in conformity with these obligations.
(K) Article 20, second line. It can easily be arranged that credits shall be opened by the banks established in Haiti with the object of avoiding the alleged disadvantages.
(L) This point is already regulated in the accord of August 5, 1931. Please accept [etc.]
- In the original the following two paragraphs are in French; the translation here given is supplied from telegram No. 104, September 8, 11 a.m., from the Chargé in Haiti.↩
- Ante, p. 505.↩
- See note of August 10, 1931, from the Haitian Minister, p. 508.↩
- See Hannibal Price, Dictionnaire de Legislation Administrative Haitienne, p. 445, par. V.↩