Constitutional Stability Through Citizenship in the Dominican Republic

—Jillian Blake, University of Michigan

In a 2010 article, Daniel Lansberg-Rodriguez describes “Wiki-constitutionalism”—a phenomenon common to Latin American legal systems in which national constitutions are “changed with great frequency and unusual ease.”[1] The Dominican Republic’s system is a stark example of Wiki-constitutionalism; the country has had more than 30 constitutions since achieving independence in 1844.[2] The most recent Dominican constitutional changes in 2010 included a ban on abortion,[3] a prohibition on same-sex marriage,[4] and a change in nationality law that stripped hundreds of thousands (primarily of Haitian origin) of their Dominican citizenship.[5]

This post, which is adapted from a larger paper, describes the new nationality article (Article 18) of the 2010 Dominican Constitution and the subsequent 2013 Dominican Constitutional Court decision upholding and expanding it. Article 18 violates previously established Dominican constitutional principles, and inter-American and international law. The unstable nature of the Dominican constitutional system facilitated an extreme retrogression of immigrant and minority rights with the new nationality article.[6] These rights must be restored not only to make the current constitution compliant with inter-American and international law, but also to help bring long-term constitutional stability to the Dominican Republic.

The Right to Nationality under Dominican Constitutional Law

Article 8 of the 1929 Dominican Constitution established automatic jus soli citizenship (citizenship based on birth territory) for all children born on Dominican soil.[7] There were only minor exceptions to this main principle—the children of foreign diplomats and of persons in transit through the country could be excluded from receiving automatic jus soli citizenship.[8] While the Dominican Republic made many constitutional changes from 1929 to 2010, the standard of jus soli citizenship remained constant. The 1966 Constitution, which was a significant constitution because it was established after the country’s civil war, included the same text as Article 8 (of the 1929 Constitution) however as Article 11.[9]  The same provision on jus soli nationality was also Article 11 in the 1994 and 2002 Dominican constitutions.[10]

However, because of the widespread racial discrimination against persons of Haitian origin in the Dominican Republic, many people were denied birth certificates or not entered in the civil registry for many generations.[11]

Taking Away Jus Soli Citizenship in National and Constitutional Law     

While Dominican constitutions upheld the right of jus soli citizenship, a 2004 national immigration law, General Migration Law No. 285-04, began to dismantle that right. The law revoked automatic jus soli by declaring that non-residents would be considered “in transit” for determining the right to citizenship of their children.[12] Beyond this national law, a 2007 administrative order forbid issuing birth certificate to children of suspected foreign nationals.[13] At the time, these laws were clearly at odds with the long-established Dominican constitutional principles and Article 11 of the 2002 Constitution. These laws were targeted the children of undocumented immigrants who are predominantly black and of Haitian origin.

Constitutional changes incorporated this revocation of jus soli citizenship in 2010. Article 18 of the 2010 Constitution was similar to the Article 8 and Article 11 provisions of previous constitutions, however, it added the children of “those residing illegally in Dominican territory” to the list of those excluded from jus soli citizenship.[14] It also added that all persons are considered in transit if they are defined as such under Dominican law. This provision referred to changing definitions of “in transit” in national law to include a wide range of non-residents. The provision gave Dominican legislators an open-ended pass to constantly redefine citizenship instead of establishing a stable constitutional principle.

Dominican Constitutional Court Decision 2013

In 2013, a challenge to Article 18 came to the Constitutional Court from a woman, Juliana Deguis Pierre, who was registered as Dominican at birth, but had her documents confiscated by Dominican authorities because her name sounded Haitian. The Court found that she was never Dominican and because her parents did not have legal residency in the Dominican Republic when she was born.[15] The Court further found that each state has the right to determine its nationality policies under international law[16] and ordered the civil registry to make an audit of its record going back to 1929 to identify persons irregularly entered as citizens.[17]

Illegality under Inter-American and International Law

Article 18 of the Dominican Constitution and the 2013 Constitutional Court decision violate international and inter-American law. First, the practice of denying jus soli citizenship violates customary international law in the Americas. Of the 30 countries in the world that grant automatic jus soli citizenship, all 30 are located in the Americas. The practice is deliberate because of the region’s history as a destination for immigrants and legacy of slavery, establishing the existence of a regional legal custom.

Furthermore, Article 18 and the Court decision violate many international treaties and agreements including the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration on Human Rights (UDHR), and the International Convention on the Elimination of All Forms of Racism (The Race Convention).[18] These agreements prohibit racial discrimination in general and the Race Convention establishes that the right to nationality must be free from racial discrimination. In 2005, the Inter-American Court of Human Rights also found in the landmark case of Yean and Bosico v. Dominican Republic that the Dominican Republic had violated the right to nationality and other human rights by denying birth certificates to people born in its territory.[19]

In May of this year, Dominican President Danilo Medina signed a new nationality law that would mitigate some of the harmful affects of the Constitutional Court decision. The law restored the citizenship of those entered in the civil registry from 1929 to 2007 and allowed others to register with the government as foreigners and apply for citizenship in the future.[20] While this new law was a positive development, it is expected to impact only a small percentage of those stripped of their citizenship by Article 18 and the Constitutional Court decision.[21] This is because for generations many persons of Haitian decent were denied birth certificates and/or not entered in the civil registry.

Restoring Constitutional Stability Through Citizenship

Constitutional instability in the Dominican Republic has affected more than just the right to citizenship. Still, the right to citizenship is one of the most important because it affects one’s ability to enjoy all other rights. While the principle of automatic jus soli citizenship was upheld for more than 90 years in Dominican constitutional law, that right is now in constant flux. Article 18 of the 2010 Dominican Constitution established a restrictive nationality regime, which was upheld and then expanded by the Constitutional Court. A 2014 national law restored some citizenship rights for persons born in the Dominican Republic, but did not return to the legal standard established in Dominican constitutions before 2010.

A clear constitutional principle must be established to ensure the basic rights of the population and bring certainty to the Dominican legal system. The restoration of automatic jus soli citizenship is necessary to bring long-term constitutional stability to the Dominican Republic.

Suggested Citation: Jillian Blake, Constitutional Stability Through Citizenship in the Dominican Republic, Int’l J. Const. L. Blog, Sept. 5, 2014, available at: http://www.iconnectblog.com/2014/09/constitutional-stability-through-citizenship-in-the-dominican-republic

[1] Daniel Lansberg-Rodriguez, Wiki-Constitutionalism, New Republic, May 25, 2010, http://www.newrepublic.com/article/politics/75150/wiki-constitutionalism. The term “Wiki-Constitutionalism” is a reference to wiki, a web application that allows content to be modified frequently through open-source collaboration. An example of well-known wiki is the online encyclopedia Wikipedia. However, Lansberg-Rodriquez only makes an analogy between this constitutional process and wiki in terms of ease and frequency of changes, not in terms of open-source collaboration. See id.

[2] Changing constitutions: All shall have rights, The Economist, Mar. 15, 2014, http://www.economist.com/news/leaders/21599002-latin-americas-politicians-fiddle-far-too-much-their-constitutions-all-shall-have-rights.

[3] Constitución Política de la República Dominicana, art. 37, available at http://www.unhcr.org/refworld/docid/4b614feb2.html [hereinafter “2010 Dominican Constitution”]; See Mia So, Resolving Conflict of Constitution: Inside the Dominican Republic’s Constitutional Ban on Abortion, 86 Indiana L.J. 713 (2011).

[4] 2010 Dominican Constitution, supra note 3,at art. 55.

[5] Id. at art. 18.

[6] See Freedom in the World 2013: Dominican Republic, Freedom House, http://www.freedomhouse.org/report/freedom-world/2013/dominican-republic-0#.U_j1GVEmzww.

[7] Constitución Política de la República Dominicana June 20, 1929, art. 8, available at http://www.consultapopular.gov.do/documentos/revision.1929.06.20.pdf.

[8] Id.

[9] Constitución Política de la República Dominicana Nov. 29, 1966.

[10] Constitución Política de la República Dominicana Aug. 14, 1994, art. 11; Constitución Política de la República Dominicana July 25, 2002, art. 11.

[11] Report on the Situation of Human Rights in the Dominican Republic, Inter-Am. Comm’n H.R., OEA/Ser.L/V/II.104, Doc. 49 rev. 1, ¶¶ 352, 356-59 (Oct. 7, 1999); Human Rights Watch, “Illegal People”: Haitians and Dominico-Haitians in the Dominican Republic (2002), available at http://www.hrw.org/reports/2002/domrep/domrep0402.pdf.

[12] Ley General de Migración, No. 285-04, arts. 36, 152, available at http://www.mip.gob.do/Portals/0/docs/Marco_Legal_Transparencia/2013Actualizacion/Ley%20No.285-04%20Migración.pdf.

[13] Stateless in the Dominican Republic, The Record at Fordham Law (Mar. 31, 2013), http:// flsrecord.com/stateless-in-the-dominican-republic/.

[14]2010 Dominican Constitution, supra note 3, at art. 18.

[15] Tribunal Constitucional [Constitutional Court] Sept. 23, 2013, Sentencia TC/0168/13 (Dom. Rep.) 64 [hereinafter “2013 Dominican Court Decision”], available at http://tribunalconstitucional.gob.do/sites/ default/files/documentos/Sentencia%20TC%200168-13%20-%20C.pdf.

[16] Id. at 71-74.

[17] Id. at 99-100.

[18] International Covenant on Civil and Political Rights, Dec. 19, 1966, S. Treaty Doc. No. 95-2, 999 U.N.T.S. 171; Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc A/RES/217(III), at 71 (Dec. 10, 1948); InternationalConventionontheEliminationofAllFormsofRacialDiscrimination,G.A.Res.2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14), U.N. Doc. A/6014, 660 U.N.T.S. 195 (Dec. 21, 1965) [hereinafter “Race Convention”].

[19]  Race Convention, supra note 17, at art.5(iii).

[20] See generally Ley No. 169-14, Consultoria Jurídica del Poder Ejectivo, , http://www. consultoria.gob.do/spaw2/uploads/files/Ley No. 169-14.pdf (last visited June 25, 2014).

[21]Ezequiel Abiu Lopez & Danica Coto, New Dominican Law Aids Some ‘Stateless’ Migrants, Associated Press, (May 22, 2014), http://bigstory.ap.org/article/new-dominican-law-aids-some-stateless-migrants.