The constitution question By Ilio Durandis CJ Contributor

How should Haiti proceed as the mandate of the current president comes to term on Feb. 7th and with no president-elect to assume power? Is the answer in the Haitian constitution, political consensus, through the people’s representatives in parliament, the international community intrusion, or a magical mixture of them all?

Over the last few weeks, as Haiti entangles itself in a deep political and constitutional crisis, many groups have come out their shell to propose their solutions to the current crisis.

Thus far, behind closed doors, the prevailing tendency is a negotiated political accord between the current president, members of parliament, a faction of the political opposition and the assistance of the international community mainly by the intermediary of the Organization of American States (OAS).

This process has explicitly bypassed the Haitian legal system or in that case the Cour de Cassation, Haiti’s Supreme Court, which could have helped the politicians and lawmakers make sense of the constitutional provisions regarding the upcoming presidential vacancy and set a legal precedence for future generation. Thus, the stakeholders run the risk of whatever compromised they derive to not be accepted or gained the legitimacy of the Haitian people, which is ultimately sovereign and supreme.

As of Feb. 7th, 2016, Haiti might find itself in a very delicate and unstable situation.
The justices of the Cour de Cassation, if accepted to hear the case, would have to give a legal and constitutional meaning to article 149, as it pertained to the upcoming presidential vacancy. Whatever the outcome the justices render would serve as a great precedence for similar crisis in the future.

In scholarly circle, this would make for an interesting debate. Is there a role for the Haiti court system to play in helping choose or select the next leader or is this something that should be left to the legislative branch and the political actors to decide?

Legitimacy in a democracy is of utmost importance, but some might argue that legality is as important, if not more important to create a stable democracy.

Legitimacy seeks to answer a fundamental question of governance, why should the government be obeyed?4 A political philosopher like Locke might argue that consent is necessary for legitimacy, which in its absence, there is no moral compulsion for citizens to obey.5

Where the court might give legal authority to a transition government, the legitimacy of such government must come from the people or their representatives in parliament.

As stated earlier, in a democracy, the people are the constituent, and therefore all the power from the constitution must derive from the constituent.

The Haitian people, if we are to believe that they are sovereign, must always be consulted, when important matter of state affairs is concerned. Whether or not, Haiti is about to face another transitional government, the voice of the Haitian people must not be silenced or ignored.

If the Haitian court system is not called upon to help get the country out of this constitutional quagmire, at the very least, the Haitian parliament must step up and assume its full authority in the sense of its duties as maker of the laws.

Then and only then would the court have to be involved in deciding whether or not any new law coming from parliament is constitutional.

It is understood that this process would be very time consuming, which obviously is not something Haiti has right now, but establishing the proper democratic norms are not something that should be taking lightly or ignored just for the sake of finding perilous consensus that can only lead the nation into further instability.

As of Feb. 7th, if current Haitian authorities are not able to come up with a solution that is both legal and legitimate, it might be time for the constituent to convene and restart this democratic exercise from scratch.

In the works of David Amiriles, Legality and Leitimacy, he presented the argument between the foundational principles of political and legal authority as it pertains to classical political philosophy. This seminal work even went further into presenting the case of Latin America as it relates to popular legitimacy and modernity.

Amiriles shared the case of Colombia in 1991, where the Colombians established a National Assembly, which had members from all walk of society who were popularly elected. However, the Colombian re-foundation project wanted more; they wanted a new constitution to achieve popular sovereignty over legal sovereignty.6

Today, Haiti needs its own re-foundation project.  After 30 years of gambling with democracy and a constitution that could barely be implemented, Haiti is at a crossroad, where it needs to decide if it wants to be a sovereign state or  to be a loosely protectorate of the international community.

Haitians, if we are to move from the labyrinth of mediocre politics, one that finds its strength in the decision or interference of international powers, ought to seriously believe that democracy is rooted in the respect of the law.

We can’t continue to demote the very institutions, whose roles are to safeguard our democracy, sovereignty and above all the unity of the people and the state.

The time is up to bring Haiti to political modernity and create a state based on popular sovereignty and not on foreign dependency.

The current crisis is an opportunity to allow the Haitian democratic institutions to decide the fate of the nation.


1-Kalyvas, A 2005 Popular Sovereignty, Democracy, and the Constituent Power

2- Duverger, M 1948 “Légitimité des gouvernements de fait,” Revue du Droit Publique.

3-Vacance Presidentielle au Liban: Les précédents

4-Habermas, J 2001 “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?,”Political Theory 29, no. 6.

5-Simmons A J 1979 Moral Principles and Political Obligations. Princeton University Press, Princeton, NJ

6- Amariles, D 2008 Legality and Legitimacy: The Political Philosophy of Popular Sovereignty in the New Latin American Constitutions.
6- Amariles, D 2008 Legality and Legitimacy: The Political Philosophy of Popular Sovereignty in the New Latin American Constitutions.

Ilio Durandis, a Caribbean Journal contributor, studied political science at the University of Massachusetts-Lowell. He holds a masters in molecular biology. He currently serves as the Vice-Dean for the Medical Biology and Director of the Mckenna Biosciences programs at Universite Notre Dame Haiti- UDERS Hinche.