Although appointing a Court of Cassation judge as interim president may seem like a simple solution to Haiti’s complex problems, it is a deeply flawed approach that violates the integrity of the Constitution and risks drag the Court into a political crisis it cannot resolve
Haiti is in the grip of a deepening political crisis, as stifling gang violence in the capital has plunged the country into turmoil.
In response to this chaos, some are suggesting a seemingly familiar solution: appoint a judge from the Court of Cassation as president and return to the unamended 1987 Constitution from before 2011.
Although historical precedents such as that of Chief Justice Ertha Pascal-Trouillot in 1990 and the Chief Justice Boniface Alexandre in 2004 may appear to support this proposition, current circumstances are markedly different.
This approach is not only impractical, but it is also in direct contradiction to the very legal framework its proponents wish to uphold.
Their arguments lack coherence, ignoring established succession protocols set out in both the original Constitution and the amended 1987 Constitution.
This approach is not only impractical, but it is also in direct contradiction to the very legal framework its proponents wish to uphold.
The path forward for Haiti lies in a political solution anchored in a comprehensive political agreement, not in unconstitutional shortcuts that risk further destabilizing this already fragile nation.
What is the law of the country?
The 1987 Constitution was the subject of a legal amendment in May 2011.
As expected, the process of amending the Constitution began 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 Constitution of 1987 was published in “Le Moniteur,” the official newspaper of Haiti, and became the supreme law of the country.
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The amended constitution faced two main controversies after its publication.
The first was the claim that the text itself contained errors. The second was that it was not published in Creole.
Although the concern about the Creole version is significant, the claim that the content was inaccurate would have taken precedence over the issue of translation.
In any event, the appropriate route to address these concerns would have been to go to court.
However, the Court of Cassation was favorable to the publication of the amended Constitution.
In addition, the National Assembly, which is the body that voted on the text, confirmed its authenticity.
Indeed, President Martelly published the amended Constitution of 2011 with the “agreement of the legislative and judicial powers.»
In any event, the appropriate route to address these concerns would have been to go to court.
While some of the opponents may still wish to debate the original controversies, the fact remains that court, legislative and executive decisions in 2011 have settled the issue.
The amended constitution outlines the presidential succession process in the event of a vacancy in Article 149.
Supporters of a Court of Cassation judge who would assume the role of provisional president under the “unamended” version of the 1987 constitution face three obstacles.
First, the amended constitution remains the supreme law of the land. It was ratified according to the appropriate 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 challenged the publication never asked the court to reconsider or rule on the issue. As such, the validity of the Constitution amended from 1987 to 2011 is not legally contested.
The amended constitution remains the supreme law of the land. It was ratified according to the appropriate legal procedures and authenticated by the National Assembly.
Second, the 11 judges currently serving at the Court of Cassation were appointed under the amended 1987 Constitution in 2011. This document, which they have sworn to respect, specifies the processes of governance and judicial review.
If the court were to ignore these stipulations and its oath, it would undermine its legitimacy.
Additionally, their previous judicial decisions would be called into question. How can a member of the Court agree to intervene as provisional president under the old Constitution when he uses the amended version for his decisions?
Supporters of appointing a Supreme Court justice as interim president say they want to follow the law.
Yet they seek to violate article 149 of the 1987 Constitution (unamended), which explicitly assigns the role of interim leader to the presiding judge, a position currently occupied by a judge appointed by Prime Minister Henry.
Instead, they propose appointing the most senior judge, appointed by the late President Moise.
Article 149 provides that “If the position of President of the Republic becomes vacant for any reason whatsoever, the President of the Supreme Court of the Republic, or in his absence, the Vice-President of this Court, or in his absence, the Judge with the most seniority and so on in order of seniority, are temporarily invested with the functions of President of the Republic by the National Assembly duly convened by the Prime Minister.
The 11 judges currently serving at the Court of Cassation were appointed under the Constitution amended from 1987 in 2011. This document, which they have sworn to respect, specifies the processes of governance and judicial control.
The supporters face an even more insurmountable obstacle. As noted above, Article 149 further stipulates that any judge assuming presidential functions must be “invested” by the currently inoperative National Assembly.
Since 2020, lThe Haitian Parliament no longer functions due to the failure of the elections.
The lower house was dissolved and the upper house was reduced from 30 to 10 members.
From January 10, 2023, the terms of the remaining senators have expiredleaving the country without elected members in any of the houses of its Parliament.
Therefore, there is no National Assembly available to ratify the appointment of a judge to the presidency.
Ultimately, neither the original nor the amended Constitution provides a legal framework for a judge of the Court of Cassation to become provisional president.
The only viable solution is political consensus
Haiti’s multifaceted crisis, rooted in deep political instability and governance failures, cannot be resolved through judicial means.
Rather, the situation calls for a comprehensive political agreement between all parties concerned.
This consensus is crucial to guiding the nation through current crises toward a sustainable future.
The path forward for Haiti lies in a political solution anchored in a comprehensive political agreement, not in unconstitutional shortcuts that risk further destabilizing this already fragile nation.
Although appointing a Court of Cassation judge as interim president may seem like a simple solution to Haiti’s complex problems, it is a deeply flawed approach that violates the integrity of the Constitution and risks drag the Court into a political crisis that it cannot resolve. The true and only solution lies in political dialogue and consensus, and not in judicial excess which would further aggravate and prolong the crisis.
Par Johnny Celestin
French translation by Sarah Jean.
Cover image published by AyiboPost highlighting de facto Prime Minister Ariel Henry and magistrate Jean Joseph Lebrun during the latter’s appointment ceremony as new de facto president of the Court of Cassation, November 22, 2022.
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