A critique of the ruling of the Dominican Republic Constitutional Court

By Miguel Ceara-Hatton

Miguel Ceara-Hatton is a professor and researcher in economics from the Dominican Republic. Author of numerous books and articles on Dominican and Caribbean economies, he is former President of the Association of Caribbean Economists and former Director in the Secretariat of the Association of Caribbean States. He was also director of the National Human Development Report with the UNDP.

20130930diasporaEditor’s Note: Tomorrow there will be a meeting of the Caricom Bureau, called by Trinidad and Tobago Prime Minister and current Caricom Chair, Kamla Persad-Bissessar to discuss Caricom’s response to the controversial September 23 ruling of the Constitutional Tribunal of the Dominican Republic. The ruling threatens to strip citizenship status from hundreds of thousands of predominantly Dominicans of Haitian descent. For readers to understand some of the stakes of this ruling, in this week’s column a Dominican economist reflects on the injustice of the Tribunal judgment. This essay was carried on 1804caribvoices.org on October 4, 2013.

I am not a lawyer, but I believe that I have common sense. Ever since the Dominican Constitution of 1929 it has been reiterated that all persons born in this country are Dominican citizens. Article 11 of the 2002 Constitution defines Dominicans as ”All persons born in the territory of the Republic, with the exception of the legitimate children of foreigners residing in the country for diplomatic representation or those who are in transit.” (My emphasis). As can be seen, the article does not exclude “children of illegals” from the definition of Dominicans. The only restriction placed is on the children of diplomats and of persons who are in transit.

 What is the meaning of ‘in transit’?

The Regulations of 1939 defined Transit or Passers-by as persons spending up to 10 days.

Migration Regulation No.279, dated May 12, 1939 defines it thus:

SECTION V. – PASSERS-BY:

(Amended by the Decree No. 4197 of 24/02/47, Official Gazette No. 6593)

a) Foreigners seeking to enter the Republic for the primary purpose of continuing across the country to a foreign destination will be granted privileges of passersby. These privileges will be granted even if the alien is inadmissible as an immigrant, if his entry does not constitute a breach of health and public order. The alien shall be required to declare their destination, the means that they have chosen for transport and the date and place of departure from the Republic. A period of 10 days will be considered ordinarily enough to go through the Republic. (Emphasis added).

b) An alien admitted for the purpose of continuing across the country, will be granted a Landing Permit, valid for 10 days . Fees will not be charged for this Permit. The Permit shall be retained by the person to whom it was issued, during the entire duration of their transit through the Republic and returned to the Immigration Inspector at the time of departure.

Article 18 of the 2010 Constitution under Leonel Fernández (President of the Dominican Republic between 1996-2000 and 2004-2012) defines citizenship in this way:

“Article 18. – Nationality. Dominicans are:

1)   The sons and daughters of a Dominican mother or father;

2)   Those who enjoy Dominican nationality before the entry into force of this Constitution;

3)   Persons born in national territory, with the exception of children of members of foreign diplomatic and consular missions or foreigners who are in transit or reside illegally in Dominican territory. All foreigners, defined as such by Dominican laws, are considered to be persons in transit.”

Hence it was not until the 2010 Constitution that being a child of parents “in transit or residing illegally” was established as a restriction on Dominican citizenship. But the 2010 Constitution also establishes clearly that all persons who enjoy citizenship at the time that the Constitution enters into force, are in fact citizens.

I have three observations:

The language based on the rights approach does not use the word “illegal” immigrants or residents but rather “irregular”, since immigration is not a crime.

According to the Constitution, this Article can only be applied from 2010 onwards. Although I do not agree with this law, it must be complied with.

Can this Article 18 apply retroactively? The answer is No.

The Constitution of 2010 of Leonel Fernández says in Article 110:

“Article 110. – Non-retroactivity of the law. The law only applies from now onwards. It does not have a retroactive effect, except when it is favorable to those who are subject to judgments or are serving a sentence. In no case may the government or the law affect or alter the legal certainty derived from situations established under previous legislation.”

That is, these laws are not retroactive and all persons who were born in this country of parents who were for more than 10 days in this territory were Dominicans, even more so if they were here for three generations. It is an abusive and arbitrary action to strip nationality from three generations of Dominicans, by applying the law retroactively to 1929 as established by the Constitutional Court ruling. The consequence is to place in limbo thousands of people who will not able to cash a check, attend school, work, or do anything. It is civil death and, since it applies to thousands of people, it is a civil genocide.

Does it create a regime of apartheid or racial segregation as was the case in South Africa and Namibia?

Yes, because the same Judgment states:

“i) To carry out a thorough audit of the books of Civil Registry that record births of the Dominican Republic from the twenty-first (21) of June nineteen twenty-nine (1929) to date, within one year […] to identify and integrate into a documentary and/or digital list all foreigners registered in the books – records of births of the Civil Registry of the Dominican Republic;”

“(ii) Include in a second list the foreigners who are irregularly registered due to the lack of the qualifications required by the Constitution of the Republic for the attribution of Dominican nationality by jus soli, which will be referred to as the List of Foreigners Irregularly Registered in the Civil Registry of the Dominican Republic.”

“(iii) Create special annual registry books of births of foreigners since June 21, 1929 … and then, transfer administratively the births listed in the List of Foreigners Irregularly Registered in the Civil Registry of the Dominican Republic to the new books – records of births of foreigners, according to the year that corresponds to each of them.”

“(iv) Notify all births transferred in accordance with the preceding paragraph to the Ministry of Foreign Affairs, so that it, in turn, will make the relevant notifications, so much to those concerned with these births, as to the consulates and/or embassies or diplomatic missions, as appropriate, for the pertinent legal purposes. ”

This means two things:

1) To apply to three generations of Dominicans, a law that denationalizes them and that makes them liable to deportation to countries with which they have no roots or connections.

2) These Dominicans will be made into second class citizens in their own country, creating a system of social and racial segregation, because they are identified by their race. Recall that in the first circular of the Central Electoral Board they were identified as “HH” (hijos de haitianos) children of Haitians.

Finally, is this the method employed by the government to “end poverty”? This group in the population consists of those of Haitian origin and is the poorest (there is enough empirical evidence of this). Hence the poverty rate will fall by means of denationalizing the poor!

The only reason for this ruling, which is clearly illegal because it violates the Constitution of 2010 by applying it retroactively, is the racism and xenophobia of a group of Dominicans who want to see the conclusion of the shameful project that Rafael Trujillo began in 1937 (when under his rule tens of thousands of women and men were massacred on the Haitian-Dominican border for simply being or suspected of being Haitian). At that time it was physical death; today it is civil death. Worse still, that the promoters of this infamy are those who today call themselves disciples of Juan Bosch. What a shame!

 



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