Perspective | Haiti's Crisis: A Political Problem with No Judicial Solution

While appointing a Supreme Court justice as Provisional President might seem like a straightforward solution to Haiti’s complex issues, it is a deeply flawed approach that violates the integrity of the Constitution and risks dragging the court into a political crisis it cannot solve

Haiti is in the throes of a deepening political crisis as suffocating gang violence in the capital has plunged the nation into turmoil.

In response to this chaos, some are suggesting a seemingly familiar solution: appointing a Supreme Court justice as president and reverting to the pre-2011, unamended 1987 Constitution.

Although historical precedents like Chief Justice Ertha Pascal-Trouillot in 1990 and Chief Justice Boniface Alexandre in 2004 may appear to support this proposal, the present circumstances are markedly different. This approach is not only impractical but also stands in direct contradiction to the very legal framework its proponents wish to enforce. Their arguments lack coherence, ignoring the established succession protocols laid out in both the original and the amended 1987 Constitution.

This approach is not only impractical but also stands in direct contradiction to the very legal framework its proponents wish to enforce.

Haiti’s path forward lies in a political solution rooted in a comprehensive political agreement, not through unconstitutional shortcuts that risk further destabilizing the already fragile nation.

What is the Law of the Land?

The 1987 Constitution underwent a legal amendment in May 2011.

As mandated, the Constitution’s amendment process started in 2009 under a National Assembly and an administration – President Préval – and was completed in 2011 by another Assembly and administration – President Martelly. The amended 1987 Constitution was published in “Le Moniteur,” Haiti’s official paper, and became the supreme law of the land.

The amended constitution faced two main controversies after its publication.

The first was a claim that the text itself contained errors. The second was that it wasn’t published in Kreyòl. While the concern over the Kreyòl version is important, the claim that the contents were inaccurate would have taken precedence over the translation issue.

Regardless, the appropriate avenue to address these concerns would have been in the courts. However, Haiti’s Supreme Court was favorable to the publication of the amended Constitution. Additionally, the National Assembly, which is the body that voted on the text, confirmed its authenticity.

Indeed, President Martelly published the 2011 amended Constitution with the “agreement of the legislative and judicial powers.”

Regardless, the appropriate avenue to address these concerns would have been in the courts.

While some of the antagonists may still want to debate the initial controversies, the fact is that the court, legislature, and executive branches’ decisions in 2011 settled the matter.

The amended constitution outlines the process of presidential succession in case of a vacancy in Article 149. The proponents of a Supreme Court justice assuming the role of Provisional President under the “unamended” version of the 1987 Constitution face three hurdles.

First, the amended constitution remains the supreme law of the land. It was ratified following proper legal procedures and authenticated by the National Assembly.

Indeed, it was published in “Le Moniteur” with the “agreement of the legislative and judicial powers.” Those who contested the publication never asked the court to reconsider or rule on the matter. As such, the validity of the 1987 amended Constitution of 2011 stands legally unchallenged.

The amended constitution remains the supreme law of the land. It was ratified following proper legal procedures and authenticated by the National Assembly.

Second, the 11 justices currently serving on the Supreme Court were appointed under the 1987 amended Constitution of 2011. This document, which they have sworn to uphold, outlines governance and judicial review processes.

If the court were to ignore these stipulations and its oath, then it would undermine its legitimacy. Moreover, their previous judicial decisions would be in question. How can a member of the court accept to step in as Provisional President under the old Constitution when they are using the amended version for their rulings?

Proponents of appointing a Supreme Court justice as Provisional President claim that they want to follow the law. Yet, they seek to breach Article 149 of the 1987 Constitution (unamended), which explicitly assigns the role of interim leader to the Presiding Justice, a position currently held by a justice who was appointed by Prime Minister Henry.

Instead, they propose appointing the longest-serving justice, who was nominated by the late President Moise.

Article 149 states that « Should the office of the President of the Republic become vacant for any reason, the President of the Supreme Court of the Republic, or in his absence, the Vice President of that Court, or in his absence, the Justice with the highest seniority and so on by order of seniority, shall be invested temporarily with the duties of the President of the Republic by the National Assembly duly convened by the Prime Minister.”

The 11 justices currently serving on the Supreme Court were appointed under the 1987 amended Constitution of 2011. This document, which they have sworn to uphold, outlines governance and judicial review processes.

The proponents confront an even more insurmountable barrier. As noted above, Article 149 further stipulates that any justice assuming presidential duties must be sworn in by the National Assembly, which is presently inoperative.

Since 2020, Haiti’s parliament has been nonfunctional due to the failure to hold elections. The lower house has been dissolved, and the upper house was reduced from 30 to 10 members. As of January 10, 2023, the terms of the remaining senators expired, leaving the country with no elected members of either chamber of its Parliament. Consequently, there is no National Assembly available to ratify any justice’s appointment to the presidency.

Ultimately, neither the original nor the amended Constitution provides a legal framework for a Justice of Haiti’s Supreme Court to become Provisional President.

The Only Viable Solution is a Political Consensus

Haiti’s multifaceted crisis, rooted in deep political instability and governance failures, cannot be resolved through judicial means. Instead, the situation calls for a comprehensive political agreement among all parties involved. This consensus is crucial for steering the nation through its current crises toward a sustainable future.

Haiti’s path forward lies in a political solution rooted in a comprehensive political agreement, not through unconstitutional shortcuts that risk further destabilizing the already fragile nation.

While appointing a Supreme Court justice as Provisional President might seem like a straightforward solution to Haiti’s complex issues, it is a deeply flawed approach that violates the integrity of the Constitution and risks dragging the court into a political crisis it cannot solve. The real and only solution lies in political dialogue and consensus, not in judicial overreach that would further deepen and extend the crisis.

By Johnny Celestin

Edited cover image by AyiboPost featuring de facto Prime Minister Ariel Henry and magistrate Jean Joseph Lebrun during the nomination ceremony of the latter as the new de facto president of the Court of Cassation on November 22, 2022.

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