Constitutional issues

The Venice Commission notes that the 1987 Constitution contains provisions which may lead – and have indeed led - to the paralysis of the state institutions. As was explained to the Commission, elections should be organised every 18 months. If, on account of some dysfunction, elections cannot be held for more than four years, a vicious circle is triggered which spirals down to crisis and paralysis: with no functioning PEC, and no permanent electoral law, further elections cannot be organised; without elections, Parliament ceases to exist, the President cannot be elected, and the PEC cannot be formed. There is no provision in the Constitution allowing for continuation of the institutions pending new elections in case of delays or dysfunctions. As a consequence, once this spiral has been triggered and the mandate of the state institutions has expired, there cannot be any constitutional solution to the crisis; only an extraconstitutional solution may be envisaged. Under conditions of emergency, when it is impossible to comply with the Constitution, it is well-established that resort to the de facto doctrine and the principle of state necessity may be appropriate in exceptional circumstances, in order to preserve society and to protect the principle of the rule of law.2 Haiti has reached this stage.