Legal Analysis of TC 168/13 by Dominican Constitutional Expert Nassef Perdomo
Originally published in Gaceta Judicial no. 323, October 2013
Reprinted with authorization
* Consulte aquí la versión en español
Background
The ruling TC/0168/13 issued on 23 September 2013 by the Constitutional Court ordered the Central Electoral Board to put in motion the denationalization of an unknown number of Dominican citizens, which may well be tens of thousands. It is the result of an appeal filed by Juliana Deguis against a prior decision that denied her the right to have the Central Electoral Board (JCE) issue her birth certificate.
Juliana Deguis is a Dominican of Haitian descent born in Yamasá in 1984. Since 2008 she has been trying to obtain a copy of her birth certificate which would allow her to declare their children. The JCE has refused to issue her birth certificate, arguing that her parents were undocumented immigrants and that, therefore, she does not have a right to Dominican nationality.
This was done despite the fact that the Constitution in force at the time of her birth was that of 1966. This Constitution established the right to citizenship for those born on Dominican territory (ius soli). The only exceptions were the children of diplomats and foreigners in transit. Obviously, this does not include the children of undocumented foreigners.
According to the regulations of the Migration Law of 1939, transit was a temporary stay of ten days, after which this condition disappeared. This was the legal regime of transit until August 2004 when the new Immigration Law was enacted. Article 36.10 of this law attempted to redefine the concept of transit, incorporating the condition of nonresident foreigner:
“Nonresidents are not considered in transit for the purposes of applying Article 11 of the Constitution of the Republic”.
This is the first time, at least since 1939, that a legal rule establishes such a comparison in the Dominican Republic.
Just over a year after the enactment of this law, the Inter-American Court of Human Rights ruled in the case of Yean and Bosico v Dominican Republic. The Inter-American Court established that transit can not be indefinite.
This decision was considered binding, as it is part of the constitutional block. This was recognized by the Supreme Court in its Resolution 1920-2003, which states in its preamble:
“Given that the Dominican Republic, has a constitutional system composed of provisions of equal hierarchy arising from two fundamental normative sources: a) a national one, formed by the Constitution and local constitutional jurisprudence both dictated by diffuse control as well concentrated control or direct actions[1], and b) international, composed of international covenants and conventions, consultative opinions and decisions of the Inter-American Court of Human Rights; normative sources that together, according to the best doctrine, make up what has been called the constitutional block, to which the formal and material validity of all laws is subject “(emphasis added).
Unfortunately, the Supreme Court ignored its own decisions about the constitutional block, in order to ignore the Yean and Bosico decision in ruling, as it did in December 2005 declaring that Article 36.10 of the Migration Law is constitutional. It is important to note the date, since it is the first court decision with the erga omnes (universal) effect that recognizes as valid the comparison between “transit” and residing illegally in Dominican territory.
In this context, the Central Electoral Board (JCE) has started a process of denationalization of Dominican citizens. It has done so through the instruments Circular 17 and Resolution 12-2007. Through these documents it ordered state officials with the civil registry not to issue birth certificates considered suspect, without the prior intervention of a court ruling declaring them null. It thus destroyed the presumption of legality that these records enjoy under Article 45 of the Civil Code and Article 31 of Law 659 on Civil Acts. Thus, the JCE imposed administratively what can only be ordered by a court. This led to the suspension of the ability of thousands of Dominicans to carry out transactions and acts that are normal parts of everyday life in society.
Serious errors in the judgment of the Constitutional Court
It is in these circumstances that the Constitutional Court issued the ruling known to all. A decision that, as we will outline below, seriously violates important pillars of the rule of law in Dominican Republic.
- The constitutional interpretation
One of the signs that alerts the reader to the fact that the statement is inconsistent with the Constitution is that the majority opinion does not mention at any point Article 74 of the Constitution. Surprisingly, there was no room in those hundred pages to refer to the constitutional provision establishing clear mandates of how the Constitution should be interpreted.
For everyone who knows the content of that article the reason is obvious: the arguments presented in the ruling are inconsistent with the mandate of Article 74. Among other things, this points any would-be interpreter of the Constitution to the following: a) the covenants and international human rights treaties have constitutional status [1] , and b) establishes that the interpretation and application of laws regarding fundamental rights and their guarantees should always done in the most favorable way to the person [2] .
The latter is called the principle of favorability, also established in Article 7.5 of the Organic Law of the Constitutional Court and Constitutional Procedures (LOTCPC).
Any study of the ruling, even if superficial, would lead to the conclusion that the Court only considered the case against the appellant. It was not a dialectical exercise, but the justification for a decision that is incompatible with the constitutional standards on interpretation.
While ignoring this constitutional mandate, the Court took a criterion of interpretation that is inconsistent with Article 74 of the Constitution. I am referring to the margin of discretion which the European Court of Human Rights (ECHR) has awarded to states under its jurisdiction. That margin is not as wide as the court intended. Just see what it said in its decision Anchugov ECHR and Gladkov v. Russia [3] in July of this year and Hirst v. UK [4], from October 2005. In both cases, the ECHR held that the discretion cannot be used to denaturalize fundamental rights, nor to deny them where they are due.
In other words, not only that the Constitutional Court ignored the constitutional criteria of interpretation, but those criteria it sought to justify its position were not properly applied.
- The constitutional block
Another failure incurred by the Tribunal is to ignore the constitutional block. This not only holds in Articles 3 and 10 of the previous Constitution, and Resolution 1920-2003. The combined reading of Articles 26 and 74.3 Constitution leaves no doubt of the importance of the Dominican legal system of international treaties and decisions of regional courts created by them.
Despite this, the Court decided to ignore in an unlawful and unjustified fashion the ruling Yean and Bosico v. Dominican Republic. The Court recognizes that the decision exists and that its own ruling is inconsistent with it. It also knows that under Article 74.3 of the Constitution and Article 7.5 of the LOTCPC it is obligated to implement it. But none of that mattered. The Court makes clear that it did not apply the ruling because it does not like it. Where then the constitutional status of international treaties is? Where is the constitutional block? Where are Article 2 of the LOTCPC and its mandate to “ensure the supremacy and defense of constitutional rules and principles and international law in force in the Republic, their uniform interpretation and application, as well as the rights and freedoms enshrined in the constitution or in applicable international instruments on human rights “?
The ruling does not provide the answer. This is doubly troubling given that just three months and three weeks prior to the ruling, the Court had recognized the binding nature of the decisions of the Inter-American Court [5]. The constitutional law obliges all, including the Court. It cannot take and leave as it wants, nor ignore the pro person principle through which it is obliged to interpret and apply the Constitution.
- Denaturalization of the concepts of nationality
Building on the serious errors of interpretation already mentioned, and in disregard of the Constitution and Article 74 of the constitution and the constitutional block, the Constitutional Court distorts the concepts of “nationality” and transit.
In the case of nationality, the Court commits an important error: it draws upon cases that precede the entry into force of the American Convention on Human Rights and the Convention on the Reduction of Statelessness. That is, the courts issued the decisions that the Court used to support its reasoning could not possibly have applied the principles of international law that the Dominican State must abide by today.
What is worse, when it does draw on opinions or decisions made after the effective date of the ACHR, it confuses nationality with naturalization. The case Castillo Petruzzi and others v. Peru, used as an argumentative striker by the Court, says in paragraph 99 that:
“The acquisition of this link (the nationality NPC) by a foreigner, means that it satisfies the condition that the State has established to ensure that the applicant is effectively connected with the system of values and interests of the society to which he seeks to belong; the aforementioned assumes that the conditions and procedures for the acquisition [are] predominantly domestic law “ [6] .
It is obvious to any reader that the Inter-American Court did not refer to nationality acquired at birth, but the fact that a foreigner who already has another wants to voluntarily acquire a second nationality. It’s the difference between nationality and naturalization, a crucial difference that the Court chose to ignore.
But what is worse, the Court itself recognizes that Castillo Petruzzi and others v. Peru has its foundation in Advisory Opinion OC-4/84. In this document, the IACHR states that States do have limits in creating rules that define nationality:
“(N) otwithstanding traditional acceptance of the conferral and regulation of nationality as matters for each State, the development accomplished in this area demonstrates that international law imposes certain limits on the discretion of States and in its current state, in the regulation of nationality are applicable not only the competency of the States but also the requirements of the comprehensive protection of human rights ” [7] (emphasis added).
There is no explanation for why the Court would neglect to highlight something so significant.
Similarly, the Court attempts to justify its decision by seeking to explain that “foreigner in transit” is not the same as “foreign transient”. The argument of the Court seeks to make a distinction where there is in fact no difference. Even a cursory consultation of the dictionary of the Royal Spanish Academy demonstrates that the Court’s intention is useless. In addition, the aforementioned Yean and Bosico ruling established:
The Court notes that, to consider a person as a transient or in transit, regardless of the classification used, the State must respect a reasonable time limit, and be consistent with the fact that an alien who develops ties in a State cannot be equated with a transient or a person in transit [8] .
This obstacle could be overcome only by unconstitutional disregard of Article 74 of the Constitution and the constitutional block.
- Retroactivity and due process
Another consequence of the judgment is that it applies its criteria retroactively, despite the prohibition in Article 110 of the Constitution and 9 of the ACHR. The defense of this has been based primarily in that it voids acts that are based on an illegality and that, therefore, and because no one can take advantage of their bad faith, the effects are retroactive to the moment the “fraud” was committed.
However, this argument has insurmountable obstacles. The first is what creates the bond of nationality is the birth. And being born cannot be an illegal or fraudulent act. It is absurd and unacceptable to claim that a newborn may have committed a crime just by being born without a choice of who, or where, or when.
Nationality is a personal relationship between the individual and the state, this is not disputed by anyone. Then it is impossible to say that the acquisition of citizenship via jus soli is the result of fraud.
What the Court does is take the criteria specified in the 2010 Constitution and apply them from 1929 to the present. It is a clear case of retroactive application of a relatively new criterion. Recall that, as stated above, it was not until December 2005 that the first judicial decision with erga omnes effect (i.e., affecting everyone) equated undocumented status with being in transit, was issued. It is useless to appeal to the judgments of the Supreme Court on the tangential issue of judicatum solvi bonds[2], since those decisions were on appeal and were not binding erga omnes (towards everyone).
In the present case such retroactive application is even less acceptable as Article 18.2 of the Constitution establishes that “those exercising citizenship before the entry into force of this Constitution” are Dominicans. Circumventing this mandate by the retroactive application until 1929 a fairly novel criterion should be considered a fraud on the Constitution.
This being the case, how is it possible that the Constitutional Court put in the mouths of those drafting the 1929 Constitution what was not written in it until 2010? How can one say that an interpretation based on a ruling from 2005 was effective on June 22, 1929? If that is not retroactive application of a legal criterion, nothing is.
It is also unconstitutional, in its violation of the right to due process, the Court’s order to the JCE to transfer tens of thousands of Dominicans -who were not involved in the case upon which the sentence is based- to the registrar books reserved for foreigners. To this obvious violation of the right to defense we must add the fact that the Court has ordered measures that contravene the presumption of legality of acts of civil status, under the aforementioned Article 45 of the Civil Code and Article 31 of Law 659 about Civil Registrar Acts.
- Application of the Haitian Constitution
It does not require much space to refute the argument that the children of Haitians are always Haitians because merely recalling the universal principle of the territorial application of the law should lead us to discount it. Precisely because Dominican Republic is a sovereign state, it is astonishing that [the ruling] intends to favor the application of a foreign Constitution. That line of thinking has been banned since February 27, 1844.
Conclusions
For these reasons, and many more that can not be included for reasons of space, necessarily leads to the conclusion that the decision TC/0168/13 the Constitutional Court failed in its role as guardian of fundamental rights. Their decisions do serious damage to the foundations of the social and democratic state bound by the rule of law inaugurated in January 2010.
Would that our Constitutional Court reconsider these positions before the effects of the decision expand throughout the Dominican legal system.
[1] Article 74.3 Constitution.
[2] Article 74.4 Constitution
[3] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122260
[4] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-70442
[5] TC/0084/13 Judgment of 4 June 2013, p. 11.
[6] Castillo Petruzzi et al. Peru, Series. C, No. 52, 1999.
[7] Advisory Opinion on Proposed Amendments to the Constitution of Costa Rica, OC-4/84, Ser A, No. 4, paragraph 32.
[8] Yean and Bosico v. Dominican Republic, Series C, no. 130, 2005. Paragraph 157.
[1] In the Dominican Constitutional system there are two ways to implement judicial review. The first one is a capacity by all judges to refrain from applying in a case before them any law or rule they deem unconstitutional. The second one, called concentrated control and which is described in article 184 of the Constitution, is the power of the Constitutional Tribunal to strike down with general effects any law or rule it finds unconstitutional.
[2] These bonds were required as a prerequisite when a nonresident foreigner decides to sue someone in Civil Court.
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