THE DRAFT OF THE DRAFT OF THE NEW CONSTITUTION IS LACKING CREDIBILITY, UNDENIABLY ILLEGITIMATE, BUT NOT ENTIRELY INCONSISTENT

The ongoing debates surrounding the publication of the draft new constitution confirm the concerns I had already expressed about the capacity of the Working Group on the Constitution (GTC) and the national conference steering committee to offer the nation a work that is at once legitimate, credible, and technically sound. Right from the outset, I must emphasize that the steering committee has completely distanced itself from the GTC's conception of constitutional reform and its recommendations on the matter. Contrary to the revision approach advocated by the said working group, the steering committee opts for the elaboration of a new constitution. By this act, the national conference steering committee corrects the blunders and errors of judgment of the working group on the constitution which, strangely, invoked erroneous legal arguments to justify the competence of current authorities to revise or amend the constitution in force outside of the procedural formalities provided for in the matter. It is recalled that, in its argumentation developed in its work report, the GTC had pitifully confused the notions of “constitutional revision” and “new constitution.” My initial reservations about this draft constitution concern its preamble. Indeed, this is not a mere collection of ideas, formulas, and symbols, transferable from one constitution to another. It is that part of a constitutional charter that expresses the state of mind of the population, the motivations of the constituent power, and especially the sociopolitical context in which it originated. In general, it sets out the historical and emotional aspirations or sensitivities of a people. In this sense, it holds exclusive importance. That being said, the ongoing constitutional reform is not a project of simple revision, but one of a new constitution. As such, it must, from its preamble, express a certain break between the old order that the population contests and the new order to which it aspires. Unfortunately, the authors of the draft new constitution merely transpose the content of the preamble of the amended 1987 constitution into the draft new constitution, with slight modifications, relating, in particular, to the promotion of the struggle for youth integration. This omission implies that there is no new situation, no significant event, no decisive reason that would justify the interim authorities' approach to provide the country with a new charter and to believe that it would indeed be a constitution heralding a new beginning, as affirmed by the members of the national conference steering committee and as its provisions should attest. This irregularity risks further eroding the credibility and legitimacy of the aforementioned draft law, whose preparatory work carried out by the GTC was undeniably a total fiasco. This legal drafting strategy is not a technical requirement, much less the fulfillment of a simple procedural formality. It is also a political and psychological requirement, stemming from the political stakes inherent in any such initiative. It aims to reassure the population, to arouse its interest, and to create in it a certain predisposition to favorably welcome the proposals formulated in the provisions of the draft constitution. Finally, it aims to set the framework for constitutional debate, to arouse citizens' curiosity, and to elicit their adherence, both to the debate phase and to its approval by referendum. It is evident that there is a great difference between the context of the elaboration of the 1987 constitution and that of the draft new constitution. Unfortunately, this dissociation is not clearly expressed in its preamble. From a strategic and legal drafting perspective, the latter does not recount the historical and political reasons that allow future generations to appreciate the necessity and opportunity of providing the country with a new constitution. Nor does it allow for an appreciation of the coherence and relevance of the various articles inserted in the provisions of the said draft in relation to its philosophy, objectives, and ultimate purpose. The shortcomings noted in the draft new constitution are not only technical and legal drafting in nature. They are also cultural, political, and strategic. One notes a lack of rigor in the use of concepts, in the numbering and distribution of articles, and a certain imprudence in the distribution of powers among the different branches of government and the various republican institutions of the State. The drafters of the draft new constitution have, admittedly, made a commendable effort to correct certain technical shortcomings contained in some articles of the amended 1987 constitution, but some gross errors have gone unnoticed and are unconsciously reproduced in the draft new constitution. Furthermore, an analysis of the provisions of the draft new constitution reveals that its drafters propose to the Haitian people a return to strong presidentialism as an alternative to the non-rationalized parliamentarism instituted by the constitution in force and to the chronic political instability that has affected the country's development and democratic transition since its adoption. As was the case for the executive power following the departure of the Duvalier dictatorship, the legislative power is completely toothless in this political regime. This new regime makes the President of the Republic simultaneously the head of state, government (with the power to appoint and dismiss ministers), diplomacy, the armed forces, and the police, to name just these prerogatives. The Constitutional Council is called upon to rule as a last resort on electoral disputes, but the judicial power, which is called upon to play an important role in promoting the rule of law, does not present sufficient guarantees of independence. This draft constitution displays the steering committee's aspirations to facilitate the implementation of governmental action, to strengthen local authorities, to make decentralization more effective and efficient, and to make the State less budget-consuming, more efficient, and more development-oriented. These are precisely the reasons that should have been technically found in the preamble. To compensate for the imbalance that exists in the relations between public powers, the drafters of the draft new constitution strengthen local authorities. Henceforth, these enjoy administrative and financial autonomy. They are strengthened by a new authority called governor. This one does not, strictly speaking, replace the departmental delegate, a political figure who represents the central power at the local level and who often has more power and financial means than the members of local authorities. While trying to limit the weight of politics in the country's governance, this draft law grants the State and local authorities greater autonomy and more responsibilities in administrative management and the country's development. This, in my opinion, has always been the credo of those who oppose the pernicious and compromising tendency to reduce the country to the republic of Port-au-Prince. Furthermore, certain special questions relating to nationality, law enforcement (the army and the police), the fight against corruption, and the mechanism for the formation of the judiciary and independent institutions are addressed with much lightness in the draft new constitution. The conception and structuring of the related articles, in terms of numbering, legal drafting, and literary style, can lead to confusion and diverse interpretations. Indeed, the drafters of the draft new constitution have not resolved the coordination problem observed among the different institutions involved in the fight against corruption and the control of the management of public accountants and authorizing officers. Despite the fact that this issue constitutes one of the greatest concerns of the Haitian people currently, it does not occupy a significant place in this draft new constitution. No emphasis is placed on the fight against corruption either in the preamble or in the provisions of the said draft. They merely grant constitutional status to the Anti-Corruption Unit (ULCC). With a puppet parliamentary control and without real consequence on the relations of the legislative power with the executive power and on the administrative and financial management of local authorities, the President of the Republic and his government have a free hand to use public treasury funds as they see fit. This risks leading to harmful consequences for the fight against corruption and may, in the future, constitute a source of instability for the country. Knowing that the executive power already enjoyed a certain real omnipotence compared to the theoretical omnipotence of parliament and given the presidentialist tradition that has marked the entire political history of this country, there are sufficient reasons to fear that the revolutionary character of the draft constitution could lead to the restoration of dictatorship or the perpetuation of political instability in the country. This total absence of balance between the powers of the State and the preponderance of the President of the Republic in all major decisions engaging the nation can provoke forms of resistance detrimental not only to the institutional stability of the State but also to the country's progress and the entire democratic process. Obsessed with combating the blackmail and irrationalities of the legislative power, the draft new constitution risks transferring the dictatorship from parliament to the national palace. It is, unfortunately, with this same state of mind, this same democratic immaturity, that the constituent assembly of '87 approached the question of the political governance of the State following the departure of Jean Claude Duvalier. Decidedly, by too often wanting to exclude technicians who master constitutional law from reflections on the Haitian constitutional problem and by too often wanting to seek easy solutions, one constantly risks gravitating around democracy without ever truly accessing it. “Under the same circumstances, the same causes produce the same effects.” However, my intellectual integrity and my desire to see Haiti emerge from this painful impasse compel me to courageously acknowledge that this draft constitution is not as execrable as it is claimed to be. It presents some positive points. One notes a certain willingness on the part of the steering committee to present a clearer, more precise, more concise, and simpler text. One also notes a certain willingness on its part to eliminate the political blackmail that polluted the relations between the executive and legislative powers, to regulate the functioning of political parties, and to structure the opposition. Under normal circumstances, the weaknesses of the draft new constitution, however well-founded they may be, should not call it into question in its entirety. No human work is perfect. After all, it is a draft, a preliminary blueprint for a societal project that is precisely meant to be criticized, debated, and improved. The fundamental problem is that this exercise will be carried out not only based on the technical consistency of the draft but also, and above all, based on the stakes of power struggles. My numerous warnings and proposals have not been taken into account by political decision-makers. The worsening security climate in the country, the current political context, the legitimacy deficit of the interim authorities, the irregularities observed in the methodology adopted by the working group on the constitution and by the national conference steering committee, and especially the failure to establish a constituent assembly to lead the preparatory work for the new constitution, are all external factors that certainly contribute to undermining the credibility and legitimacy of this draft new constitution. May 23, 2025 Me Kedlaire Augustin
Former President of the Constitutional Reform of the Senate of the Republic*