The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over the past four years, the phrase constitutional crisis was routinely overused. The situation in Haiti, however, is a true constitutional crisis. At present, two people are claiming to be the Prime Minister. And the governing law of Haiti does not provide a clear way to resolve this dispute.
The New York Times sketches this intractable situation.
As a threshold matter, it isn't even clear which law applies. There are two constitutions that provide different paths to replace the President. According to the 1987 Constitution, "if the presidency is vacant for any reason, the country's most senior judge should step in." However, "the head of the nation's highest court died of Covid-19 in June." It isn't clear if the senior associate judge could step into the seat of the presiding judge. In 2012, the Constitution was amended. Under this new document, the President would be "replaced by a council of ministers, under the guidance of the prime minister." But that provision does not apply "if the president was in the fourth year of office." And the assassinated President was in his fourth year of office. If the president was in his fourth year, then "Parliament would vote for a provisional president." But there is no functional parliament! "The lower house is entirely vacant — their terms expired last year — leaving [former President] Mr. Moise to govern by decree for about a year."
Under Haitian law, the president appoints the prime minister, and he must be approved by the parliament. Now, two people are claiming to be the prime minister. Two days before the President was assassinated, he appointed a new prime minister. But he was never confirmed by the parliament. There is another person, who claims to be the "interim" prime minister who is exercising power. (It isn't clear what gave him the authority to claim that title.) And the interim prime minister has placed the country under martial law.
Currently, the United States has chosen to recognize the interim prime minister as the leader of the government. That fact may be the clearest resolution of who will maintain control.
As best as I can tell, all of the law has run out.
Need I remind everyone that under a prominent theory of the Constitution, our presidential succession act is unconstitutional. Both the Secretary of State and the Speaker could lay claim to the Presidency. This theory threatens to throw the republic into chaos. And it is wrong.