Dominican Republic “Rage Quits” on Human Rights
By Julia Harrington Reddy
“Rage quit” is internet slang used, according to KnowYourMeme.com, “to describe the act of suddenly quitting a game or chatroom after either an argument, extreme frustration, or loss of the game.”
Ten-year-olds sometimes do that. But so, it turns, out, do senior judges in the Dominican Republic. Earlier this month, 10 (out of 13) justices of the Dominican Constitutional Tribunal decided to “rage quit” from the Inter-American Court of Human Rights, declaring that the rules of the regional human rights system just aren’t fair. How did these eminent jurists get themselves into this undignified position?
Quick history: In October, 2005 the Inter-American Court ordered the Dominican Republic to recognize the citizenship of two girls born in the country. The decision wasn’t surprising, given that the Dominican constitution clearly stated that everyone born in the country was a citizen—a principle called jus soli, almost universal in the Americas.
The Inter-American Court didn’t think it was relevant that the fathers of the girls were Haitian, since the girls were born in the DR. In a country with jus soli, that’s the end of the story. The Court went a bit further and said that the constitution’s provisions on citizenship should be respected generally, not just for the two girls who brought the case. Not revolutionary, given that the Court was simply reiterating what the Dominican constitution said.
The only peculiarity of this case, really, was that it was before the Inter-American Court at all, which it wouldn’t have been if the Dominican courts themselves had paid attention to what the Dominican constitution said.
However, the Dominican courts appeared to have a special blind spot when it came to applying the constitution to people who were…not Haitian, because constitutionally they weren’t … let’s say, Haitian-ish. As in, there was something a bit Haitian about them, such as their skin-tone, their ancestry, or their name.
In general, judges aren’t supposed to consider these factors when deciding questions of law. That’s exactly the point of international courts: sometimes national courts aren’t quite independent or clear-headed, due to political pressure, or national or personal prejudices.
The Dominican Republic signed up to the Inter-American Court in 1999. But then, after the critical Inter-American Court’s 2005 decision, a few people filed a case challenging its jurisdiction to decide human rights cases against the DR. No one paid much attention, and that case sat around undecided for nine years.
In 2012 a new Dominican Constitutional Tribunal was inaugurated, and one of its first acts was to change the rules of the game—by taking another look at the citizenship provisions of the Dominican constitution. Last year, the Tribunal made clear (if you could call it clear) that the Dominican Constitution didn’t mean what it said, or what the Inter-American Court said that it said.
Consequently, an awful lot of Dominicans born in the country since 1929 (and their children, and grandchildren, and great-grandchildren) were—oops!—not Dominicans after all, because actually they all fit into an obscure exception for Haitian-ish people.
Well, at this point quite a lot of people started paying attention, because citizenship is rather essential to modern life, and it’s a bit jolting to discover that one’s citizenship isn’t what you thought it was, and that furthermore you may have no citizenship at all, anywhere (being first, second or third generation ‘ish’ doesn’t cut much ice in the old country).
President Danilo Medina was certainly disconcerted by the whole thing (not particularly wishing to be in the company of Burma and Zimbabwe, the other countries on the hook for mass denationalization at the moment) and passed a law in May that was supposed to make things right.
Then things start really heating up. On October 24, it emerged that the Inter-American Court had decided another case against the DR. This case was about mass expulsions of “Haitians”, which, as it happened, included quite a few Dominicans who were Haitian-ish.
In its ruling, the Inter-American Court—rather unbecomingly for a court—revealed some annoyance that its 2005 decision on respect for jus soli had been roundly ignored by the DR. It went on to clarify that the Constitutional Tribunal’s 2013 decision putting Haitian-ish people into a constitutional exception, and even President Medina’s attempted fix of May, were incompatible with the American Convention on Human Rights. The Convention contains a number of generally accepted rights, like non-discrimination and the right to citizenship and legal identity, that were specifically accepted by the DR, when it ratified the Convention (no exceptions for Haitian-ish people).
Now the decibel level starts to get uncivilized. On November 4—that’s two weeks after the Inter-American Court’s latest decision—the DR Constitutional Tribunal discovered, and decided, the long-pending and previously unimportant 2005 case challenging the jurisdiction of the Inter-American Court, and found that it was highly meritorious after all.
In fact, it turns out (rather like all the Dominicans who aren’t Dominican) that the DR had never been properly signed up to the Inter-American Court—even when a Dominican judge was sitting on it and the government was sending teams of lawyers to make arguments. In the face of another Court decision that wasn’t what they wanted to hear, the Tribunal justices just put their fingers in their ears and shouted louder, to the effect that they aren’t going to play that game again, ever.
The Constitutional Tribunal’s latest isn’t just about denying Haitian-ish people Dominican citizenship, although by giving the government grounds to ignore the Court’s decisions, it was designed to accomplish that. No, this is a classic throw-out-the-baby-with-the-bathwater scenario, the baby being the rule of law in the DR, thereby wrecking the DR’s reputation as a country with rationally functioning courts. By trying to stay out of Burma and Zimbabwe’s company and provide a legal fig leaf for denationalizations, the DR has joined up with Venezuela and Trinidad, the only two countries to sign up to the Court’s jurisdiction and then try to weasel out of it.
If the DR is lucky, international observers, investors, and tourists will realize that the Dominican courts aren’t completely farcical and in fact only selectively ignore legal principles, with respect to issues that touch on Haitian-ish people. Unfortunately, the Constitutional Tribunal neglected to state this point clearly in its judgment.
Until November 2021, Julia Harrington Reddy headed the Open Society Justice Initiative’s work on equality and inclusion.