Don’t Be Fooled by the Dominican Republic’s Judicial Laundering of Racism

There is absolutely nothing newsworthy about the Dominican Republic hosting the 10th Ibero-American Conference on Constitutional Justice, which opens on Thursday. 

Except the context. 

The Dominican Republic is the country where, less than six months ago, the Constitutional Tribunal ruled that the country’s previous constitution didn’t mean what it said, or what people thought it said. 

Apparently, the constitution never meant what it said, about people who were born in the country being citizens. It was all a mistake, going back to 1929. 

As a result of this clarification, a few hundred thousand Dominicans would become stateless. They are virtually of all Haitian descent, and that’s apparently what a civilized country sacrifices for respecting the "rule of law". 

No matter that Article 110 of the current constitution of the Dominican Republic, on which the ruling was based, says that laws shall not be applied retroactively. 

No matter that Article 74 of the constitution says that where there’s a contradiction between what a national court says and what an international court says, the ruling that’s most protective of individual rights should take precedence, and that the Inter-American Court of Human Rights addressed the problem of discrimination in access to citizenship in the Dominican Republic, finding in favor of the plaintiffs, in 2005. 

No matter that the Inter-American Convention guarantees the right to nationality, and the UN Convention on the Rights of the Child says that children born on the territory of a state, who would otherwise be stateless, should get the nationality of the state where they’re born. 

The Constitutional Tribunal resolutely closed its eyes to all this last September, and perhaps that’s not surprising; racism can be a powerful motivation, all the more powerful if it is never acknowledged. The perverse compulsion to use constitutional interpretation to ethnically cleanse the body politic simply overwhelmed petty considerations like respect for what the constitution actually says.   

The Dominican government itself was initially shocked and expressed concern. After a few days it reconsidered, and began to parrot its loyalty to the rule of law. Rule of law, we now understand, is something purely procedural. So long as it’s decided by the constitutional tribunal, it must be right, no matter what rights and principles are trampled along the way, and other institutions of the state have to fall in line.    

Now the government promises it is going to mitigate the effects of the ruling by ‘regularizing’ those who have just been denationalized. Its draft legislation was to be released last week but was suddenly delayed. The justification for this legislation, in any event, is not that the Constitutional Tribunal’s judgment was legally problematic. No, it’s out of humanitarian concern for affected individuals.  

However much the government may voice its earnest concern for those rendered stateless, it constantly reaffirms the principle of its respect for the ruling. Respect for court rulings, no matter what their merits, appears to be the litmus test of a democratic government. Whatever the effects on the population, whatever legal principles or state obligations have been ignored,  a judgment once issued cannot be questioned. Why, that’s the very essence of the rule of law. 

Only courts, perhaps only the highest court of the land, can perform this magic trick: launder racism through the constitutional process and it vanishes, leaving only pure respect for the rule of law.

The Dominican Republic’s Caribbean neighbors are having none of it. The Caribbean Community (CARICOM), the organization of Caribbean governments, called the ruling “abhorrent and discriminatory”, creating a “grave humanitarian crisis” and suspended Santo Domingo’s application for membership. The Inter-American Commission on Human Rights and the UN High Commissioner for Refugees condemned the ruling. The US Department of State’s recent human rights report devotes a lengthy section to the problem of discriminatory denial of citizenship and resulting statelessness in the Dominican Republic.

Yet, strangely and disturbingly, at least two judges from Spain’s constitutional court are attending the constitutional justice conference this week in the Dominican Republic: Pedro González-Trevijano and Francisco Pérez de los Cobos. So is Marisol Torres Peñathe, chief justice of Chile, along with other Latin American judges.   

Have they been fooled by the judicial laundering trick?  Do they themselves believe that indifference to legal principles, resulting in rank injustice, is perfectly consonant with the rule of law when perpetrated by the highest courts?  Or are they simply unaware of the threat to the respectability of judicial profession that’s been created by their hosts? 

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