By Ediberto Roman Law Prof. Friends here, please do not merely like the attached memorandum, I need you to either email me or comment here with your name, title, and address. Read the text below, but ultimately trust me, I am correct on these arguments, and the cause is more than just. I need several dozen more signatures for the petition that will be an addendum to this document to have an impact: Memorandum of Law in Support of Petition Before the Inter-American Commission on Human Rights Submitted for the Petitioners by: Ediberto Roman Professor of Law & Director of Citizenship & Immigration Initiatives Florida International University Gédéon JEAN, Attorney Specialist in international law of human rights Executive Director of the Center for analysis and research in human rights (CARDH) 53, Christophe Ave. (Port-au-Prince, Haïti) I. The Recent Dominican Republic Consitutional Court Decision Denaturalizing its Citizens of Haitian Descent is not only a Sanctionable Human Rights Violation; it is Inconsistent with the Constitution of the Dominican Republic. The September 23, 2013, decision of Dominican Republic’s Constitutional Court (hereinafter, “the Constitutional Court”), effectively the highest court in the land, denaturalized, or stripped the citizenship of hundreds of thousands of its residents in violation of the country’s own constitution. The Constitutional Court decision upheld the countrys 2010 xenophobic political effort by virtue of the 2010 constitutional amendment process to end a classic form of achieving citizenship in the Dominican Republic—Jus Solis citizenship— also known as birthright citizenship or citizenship by land. As the honorable commissioners may recall, in Yean and Bosico v. Dominican Republic, the Inter-American Court on Human Rights in 2005 found that the Dominican Republic acted wrongfully when it denied the birth certificates of two girls born in the Dominican Republic of Haitian decent. In response, the Dominican Republic’s government initiated a process to do away with nearly a century of Dominican Constitutional interpretation, amending its constitution to do away with Jus Solis citizenship. The recent decision of the Constitutional Court which upheld this 2010 constitutional amendment could easily be viewed as unwise from the perspective of western democratic traditions of courts protecting minority rights, but more importantly, by retroactively applying its holding to 1929, the Constitutional Court was not even consistent with the very constitution it was interpreting. Specifically, while some might argue that the Constitutional Court had the power to approve of the 2010 constitutional amendment that ended birthright citizenship going forward from 2010, the decision shockingly retroactively stripped the citizenship of all birthright citizens born during the period around 1929 until the present. This effort by the Constitutional Court of retroactively applying a 2010 constitutional amendment back to 1929 is wholly unprecedented as well as without legal support, and is inconsistent with the very language of both the 2010 Dominican Constitution amendments as well as with the 1929 Dominican Constitution, which is the other relevant document in this case. The 11-2 decision of the Constitutional Court, dated September 23, found that the provision on citizenship in the 1929 Dominican constitution, which recognizes as a citizen anyone born in the country, should not apply to the children of parents who were not “legal residents” at the time of their birth, on the basis that their parents were “in transit”. The basic problem with this conclusion is that the 1929 Constitution recognizes that those born in the Dominican Republic were citizens. The decision finding that those born of Haitian for the next eighty plus years (from 1929-2010) were in a permanent “in transit” status is illogical, and defies basic rules statutory interpretation, namely that a statute should be interpreted to avoid an absurd result. In other words, the legislature in question did not intend an absurd or manifestly unjust result. Sadly, the interpretation of the Constitutional Court defies the most logical and basic interpretation of the very constitution being interpreted. Moreover, the Constitutional Court’s interpretation undermines long held Dominican constitutional understandings of the value of the classic means of attaining citizenship: Jus Solis and Jus Sanguinis, which were specifically recognized in the 1929 Dominican Constitution. Prior to 2010, there were no sustained legal efforts to read into the constitution this so-called permanent “in transit” status. Indeed, all relevant Dominican Constitutions recognized the classic and basic forms of obtaining citizenship—(1) Jus Solis, birthright citizenship—being born in the Dominican Republic, (2) Jus Sanguinis citizenship--by being born of Dominican parents. This recognition of the means to obtain citizenship was found in the 1929 version of the controlling law, Article 8 of the 1929 Dominican Constitution. Indeed, the first of two Constitutional amendments in 1929 specifically provide that Dominican nationality, and therefore citizenship, derives by: Art. 8.— Son dominicanos: 1.— Las personas que al presente gozaren de esta calidad en virtud de Constituciones y leyes anteriores. 2.— Las personas nacidas en el territorio de la República, o en el extranjero, de padres dominicanos. 3.— Las nacidas en la República de extranjeros nacidos en la República. Accordingly, the provisions of this first amendment of the 1929 Constitution specifically recognize both Jus Solis, citizenship by land, i.e., by being born in the Dominican Republic, and Jus Sanguinis, citizenship by blood, i.e., being born of parents that are Dominican. Later in 1929, the Dominican Constitution, and Article 8 in particular, was amended. However, what is important to note is that the substance of the means to obtain citizenship did not change. The amendment reads in pertinent part: Art. 8. Son dominicanos: 1. Las personas que al presente gozaren de esta calidad en virtud de Constituciones y leyes anteriores. 2. Todas las personas que nacieren en el territorio de la República, con excepción de los hijos legítimos de los extranjeros residentes en la República en representación diplomática o que estén de tránsito en ella. 3. Las personas nacidas en el extranjero de padres dominicanos siempre que, de acuerdo con las leyes del país de su nacimiento, no hubieren adquirido una nacionalidad extraña, o que, en caso de haberla adquirido, manifestaren al llegar a la mayor edad, por acto ante un oficial público remitido al Poder Ejecutivo, su propósito de tener la nacionalidad dominicana. Despite the more extensive language of the second of the two amendments of the 1929 Constitution, the language above unequivocally recognizes both Jus Solis as well as Jus Sanguinis citizenship. The only logical substantive amendment relevant here was that under the second of the two 1929 amendments, the Dominican Constitution recognized Jus Solis citizenship, but made an exception for offspring of diplomats, and those that happen to be traveling in the country at the time the child was born. Thus, it is peculiar, absurd, and frankly a bit shocking that a body of seasoned jurists would find that hundreds of thousands of people were in a permanently “traveling” state for over eighty years. The September 2013, Constitutional Court decision, in unprecedented fashion, simply removed one form of obtaining citizenship retroactively without regard to what the relevant Constitution—the 1929 Constitution--specifically allowed. In other words, the only reasonable reading of the relevant language is that everyone born in the Dominican Republic under the 1929 Constitution had their citizenship under both forms of citizenship—by virtue of both jus solis and jus sanguinis, i.e., by land and by blood. Thus, even those first offspring of undocumented Haitian parents during the 1929 period, still obtained citizenship by virtue of being born in the Dominican Republic. And all the subsequent Dominicans of Haitian descent had their citizenship based on both means--they were born in the Dominican Republic —jus solis, by being born in the Dominican Republic, and they also were citizens by blood—jus sanguinis—because their parents were Dominican citizens by virtue of all being born in the Dominican Republic, which, again, the 1929 Constitution specifically allowed both means as a means to obtain citizenship. The solution proposed by the Constitutional Court is in all likelihood not only unwise and without Dominican constitutional support, but is also unworkable since many sons and daughters of both impoverished Dominican citizen parents, and impoverished so-called “irregular foreigners,” to use the 2010 amendment’s language, are not registered by their parents when they are born. This reality in turn makes it incredibly difficult for any Dominican official at some undetermined point in the future to determine if a child in the Dominican was born in the Dominican Republic, in Haiti, of Dominican parents of Haitian descent, of one parent of Haitian descent, of parents of Dominican citizenship of non-Haitian descent, or of parents whose background is not entirely certain. Such inevitabilities will likely cause a seemingly “no-way-out dilemma” that would complicate the determination of which nationality the child is entitled to, regardless of whether the Constitutional Court’s interpretation is or is not adopted. The Constitutional Court’s decision is particularly unworkable because under the decision, a child is not Dominican even if he or she were born in the Dominican Republic of family that had been born in the Dominican Republic for generations. Under the Constitutional Court’s interpretation, a child would be Dominican only if he or she was born in the country of so-called Dominican citizens, and could prove that fact despite the difficulties of doing so, as mentioned above. Yet under this set of realities, there is simply no easy way to determine the nationality of thousands of children, who were in fact born in the Dominican Republic of parents that are Dominican citizens under pertinent Dominican constitutional provisions, but had never had their place of birth documented. Yet another related problem arises if one parent is Dominican under the tortured logic of the Constitutional Court’s decision, and the other parent is not despite being born in the Dominican, having generations of family members born in the Dominican, and knowing no other country other than the Dominican Republic. Therefore, the honorable commissioners should recognize that Dominicans of Haitian descent in all likelihood married and had families with other Dominicans, some of which were, and some that were not, of Haitian descent, further complicating the arguments of the proponents of the Constitutional Court’s decision, and strengthening both the argument and logical basis of petitioner’s position. Given the challenges associated with documenting a child’s place of birth as well as location of that birth, the Constitutional Court’s decision merely provides ample opportunities for errors and abuse. While defenders of the Constitutional Court decision may argue that the 2010 Constitution did away with jus solis citizenship, they fail to recognize that under governing constitutional standards all those born when the 1929 Constitution governed, roughly from 1929-2010, obtained their citizenship from both being born in the Dominican Republic as well as by virtue of being born of those that are Dominican citizens--note, a logical reading of the 1929 Constitution leaves but one conclusion: all those born in the Dominican Republic obtained citizenship by jus solis citizenship-citizenship by land (being born in the Dominican Republic which article 8 above specifically recognized as a basis for citizenship). Thus, at best, in terms of their unwise thinking, the 2010 Constitution can only reasonably mean to remove jus solis citizenship for those born after 2010 (and when one considers how unlikely and unworkable it will be to prove one is solely of Haitian decent given the nearly a century that has passed since the 1929 Constitution, the anti-citizenship argument and the Dominican Republic solution is even more unworkable and indefensible). Thus, there is simply no basis in the constitutional texts for anyone born during the relevant period on, around, or after the 1929 Constitution to have lost their citizenship by virtue of the passage of the 2010 Constitution. II. The Constitutional Court’s decision is Inconsistent with the Very 2010 Constitutional Amendments it was interpreting According to the recent Constitutional Court decision, “illegal residents are not to be considered Dominicans if they were born after the Constitution of June of 1929.” The problem with this interpretation is that the constitutional text of 1929 does not include language that excludes illegal residents. It was not until 2010 when, after a constitutional reform effort in the country, the Dominican Constitution included a second exception: offspring of those who reside illegally in the country. For the reasons stated in Section I. above, those individuals would have obtained their citizenship under the 1929 Constitution, which specifically allowed for citizenship by land, by being born in the Dominican Republic and all offspring of those individuals would have obtained citizenship by both means as stated above. And what is likely the death blow to the anti-citizenship advocates, the 2010 Constitution itself specifically recognizes that anyone who has acquired the right to citizenship under previous constitutions has the right to citizenship, even under the current reformed article (see article 18 of the most recent Constitution). Accordingly, by the very language of the 1929 Constitution, the Dominican Republic specifically and unequivocally allowed for citizenship for those born in the Dominican Republic. The 2010 Constitution, by incorporation, specifically recognizes the citizenship of those born in the Dominican Republic from roughly 1929 until 2010. Therefore, under the very language of the 2010 Constitution, there is simply no basis whatsoever to have the Constitutional Court opinion retroactively strip citizenship dating back to 1929. As with most countries in the world, the Dominican Republic has long recognized the value of citizenship—also known as the rights to have rights. This recognition is replete in Dominican history. For instance, Bernardo Vega, one of the most praised and objective historians of Dominican Republic, and an open critic of the Constitutional Court ruling, recently wrote an article called “Mis traidores favoritos” (or “My Favorite Traitors”). In this article he explains why some of the most important political figures of Dominican history would have disagreed with the ruling. The last 3 paragraphs include quotes by Presidents Balaguer, Bosch and Fernández (that covers all three main political parties in the country), and specifically recognizes the folly of the current pollitical and juridical climate seen in the Dominican since 2010: “Otros de mis favoritos son los que Trujillo hizo que el Congreso los declarara traidores en 1933 y 1937: Federico Velásquez, Ángel Morales, Manuel Alexis Liz, Juan Isidro Jiménez Grullón, Buenaventura Sánchez, Luis F. Mejía y el doctor Ramón de Lara, entre otros. Los de 1937 fueron traidores por haberse atrevido a criticar desde el exilio la matanza de entre 4,000 y 6,000 haitianos a finales de ese año. Invito a los portavoces de ese falso nacionalismo a declarar traidor al que justamente hace 30 años osó sugerir lo siguiente: “Sería posible el establecimiento entre Haití y Santo Domingo de una Constitución paralela que garantice la existencia en toda la isla de un régimen democrático fundamentalmente idéntico para los dos países. Bajo una carta orgánica refrendada por los dos pueblos y similar en sus líneas esenciales, Haití y Santo Domingo podrían ayudarse mutuamente… Bajo esa Constitución podría reconocerse inclusive, con determinadas restricciones, la doble ciudadanía a los naturales de ambos países”. Ese candidato a la hoguera inquisicional lo es Joaquín Balaguer (“La isla al revés”, página 220). Igual suerte podría sufrir el desvergonzado que en carta pública dijo: “Cómo es posible amar al propio pueblo y despreciar al ajeno, cómo es posible querer a los hijos de uno al tiempo que odia a los hijos del vecino así, sólo porque son hijos de otro. Creo que ustedes no han meditado sobre el derecho de un ser humano, sea haitiano o chino, a vivir con aquel mínimo de bienestar indispensable para que la vida no sea una carga insoportable, que ustedes consideran a los haitianos punto menos que animales”. Ese candidato al fuego divino lo es Juan Bosch (“La Opinión”, 16 de agosto, 1943). Podríamos también sugerir a un tercer candidato, el que se atrevió a decir hace apenas un mes en New York: “Lo que puede verse en la reciente decisión de la Suprema Corte del Tribunal Constitucional es si tiene efecto retroactivo o solamente rige para el futuro. Pero si se interpreta simple y llanamente de regir para el futuro, no hay discusión, porque es una expresión de la soberanía del Estado dominicano de determinar quiénes son nacionales dominicanos. Si tiene efecto retroactivo, entonces implicaría un problema de determinar el estatus legal de quienes han vivido en el país, que han tenido la impresión de ser dominicanos, en algún momento tuvieron hasta la documentación dominicana, y ya eso engendra otro tipo de problema”. Se trata de Leonel Fernández (“El Caribe”, 2 de octubre, 2013).” As the above eloquent quote amply demonstrates, the efforts to demonize and scapegoat the poor and largely unrepresented victims of the Constitutional Court decision would have been in all likelihood condemned by those among the greatest leaders in Dominican history. As this article also highlights, the efforts taken since 2010 by the Dominican government are unwise and reflective of rank discrimination and hate, leading to unworkable, unwise, and likely tragic results. III. The Constitutional Court’s Defies the Decision Made by the Inter-American Court on Human Rights Interpreting the Very Same Constitutional Language and Arguments In addition to providing a tortured reading of its own governing documents—the 1929 Dominican Constitution--the Constitutional Court decision directly contravenes a 2005 judgment of the Inter-American Court of Human Rights. In re Yean and Bosico v. Dominican Republic, the Dominican Republic unsuccessfully made the same arguments before the Inter-American Court that the Constitutional Court here found persuasive—arguing that the petitioners were in a permanent “in transit status” because their ancestors were undocumented migrants. This argument was expressly rejected by the Inter-American Court, which ruled that the migratory status of the parents can never constitute justification for the deprivation of nationality and that children cannot inherit the migratory status of their parents. The court observed that “to consider that a person is in transit, irrespective of the classification used, the state must respect a reasonable temporal limit and understand that a foreigner who develops connections in a State cannot be equated to a person in transit.” Despite this clear and unequivocal language, of the 2005 opinion, the Constitutional Court here simply disregarded it. The sound and well-reasoned dissenting opinions in the Constitutional Court decision reference the very lack of logic addressed above, Judge Yeane Isabel Bonilla observed: to consider as ‘in transit’ individuals who resided in the Dominican Republic for years is an erroneous interpretation of the constitution: “As a consequence of this restrictive interpretation and its retroactive application, this ruling declares the plaintiff as a foreigner in the country where she was born. [A]nd its failure to recognize her right to reside in her country of origin, which is where she has created social and cultural links, constitutes on itself a penalty she is forced to pay due to her parents’ migratory status.” Likewise, Judge Katia Jiménez argued that the decision leaves the plaintiff and the thousands of other people affected this ruling, in a state of judicial insecurity and, most importantly, stateless. Moreover, the dissenting judges considered the Constitutional Court’s decision a flagrant violation of the jurisprudence of the Inter-American Court of Human Rights, and one that directly harmed human dignity. The Constitutional Court, in direct contravention to the exact issue the Inter-American Court had ruled upon, not only conflates the concept of in transit with that of immigrant status, but also inexplicably orders the application of such a requirement to be applied retroactively for over 80 years. Such rank disrespect of the Inter-American Court on Human Rights should never be sanctioned. IV. The Constitutional Court Should Not Follow the Most Inhumane Examples in World History by Engaging in Mass Denaturalization, Which May Very Well Invite Further Human Rights Violations World history, especially the histories of Western societies, have recognized that citizenship is central to democratic order and the preservation of liberty and freedom--essentially among the most important of all human rights. Without it, democracy means nothing. Indeed, only world history’s most oppressive regimes, which have also then committed horrific atrocities, engaged in wholesale efforts to strip large portions of its citizenry of their citizenship. These actions were all-too-often followed by further atrocities. While the petitioners pray that the legally baseless decision of the recent Consitutional Court will not lead to atrocities approaching among the worst in world history, their decision certainly facilitates future human rights violations against its citizens of Haitian descent. Perhaps the most obvious as well as the most horrific example of similar mass denaturalization occurred during the Third Reich’s attacks against German Jews during the pre-WWII era. In fact, there were over 400 decrees and regulations that restricted the public and private lives of Jewish citizens after the Nazi leaders assumed power in 1933. These efforts eventually led to The Law on the Revocation of Naturalizations and the Deprivation of the German Citizenship (July 14, 1933), which deprived individual persons of their German citizenship. Their names were listed in the Reich Law Gazette (Reichsgesetzblatt) and with the publication of the particular Reichsgesetzblatt they lost their German citizenship. Citizens by naturalization and birth were subject to the law. Interestingly, the Constitutional Court’s ruling orders a highly disturbing procedure for its implementation that would constitute a breach of international prohibitions against racial and ethnic discrimination, which as described above, were undertaken by the Third Reich. The Constituional Court here has asked for the executive branch of the Dominican government to create a list, which within one year of the decision, of all those that should have their citizenship stripped. It proposes the identification and listing of all citizens of ‘foreign origin’ from the Dominican Civil Registry, and the creation of a second list for those who under the new criteria given by the Court, are to be considered to have been mistakenly registered as Dominicans. The names of people listed in this new regime will then be administratively transferred to foreigners’ books and notified to the foreign ministry so that the ministry informs the affected individuals and the supposed correspondent embassy. Not unlike the procedures evidently proposed by the Constitutional Court, the Nuremberg Laws (1935) was bigotted and racist legislation that established concrete segregation. The Reich Citizenship Law declared people as not of German blood Staatsangehorige (state subjects) and “Aryans” as Reichsburger (citizens of the Reich). This is the law that stripped the Jewish race of German citizenship. The effect was to return Jews to the position they had in 19th-century Germany, prior to their emancipation in the 20th century. The difference was that the 19th-century Jews could evade restrictions by converting, but this was no longer a possibility in Nazi Germany. The Eleventh Decree to the Law on the Citizenship of the Reich (November 25, 1941) stipulated that Jews living outside Germany could not be German citizens. This mainly affected Jews who had left Germany in the years before or shortly after the beginning of the Second World War. While petitioners here would expect worldwide as well as international intervention in the event of anything similar to the Third Reich’s effort during the era of the Second World War, the Constitutional Court’s decision certainly sanctions not only mass denaturalization, but also likely legitimizes future human rights abuses. The procedures ordered in the Constitutional Court’s ruling regrettably resembles more the atrocious acts of the Third Reich than they do the Dominican Republic’s history of following well-established human rights principles, particularly the universal anti-discrimination norm. All of these abuses can obviously be thwarted by this honorable body dedicated to preserving human rights, including specifically denatualization efforts. Another, similar, yet ignoble example of mass denaturalization recently occurred in the context of the Rohingya in Burma. This ethnic minority was not considered citizens under the 1982 Citizenship Act, despite being born in that country. The 1982 Act lists ethnic groups recognized as citizens but excludes this group. Some Rohingya have been in Myanmar for centuries while others arrived in recent decades; regardless of how long they have been in country, Burmese authorities consider them undocumented immigrants and do not recognize them as citizens or as a protected ethnic group. As a result, Rohingya are de jure stateless, according to the 1982 Burmese Citizenship law, and are viewed as a source of instability in the country. Recently, Burmese President Thein Sein shocked human rights groups by saying Rohingyas should be placed in UN-sponsored refugee camps, while at the same time offering to resettle Rohingyas in any other country willing to accept them: Burma will take responsibility for its ethnic nationalities but it is not at all possible to recognize the illegal border-crossing Rohingyas who are not an ethnic [group] in Burma”. While the petitioners here pray that further human rights abuses in the Dominican Republic do not result from the unwise, unworkable, illegal, and unfounded Constitutional Court opinion, we do caution that if this opinion is not condemned by international bodies, the Constitutional Court’s opinion leaves legal sanction for future human rights abuses that have already been witnessed in the Dominican Republic after the decision. Just to name a few, these abuses include the November 27, 2013 murder of four individuals of Haitian descent who were killed in an alleged vigilante effort. Another example is of a man of Haitian descent being lynched for allegedly committing a robbery. In this last matter, the man was lynched and left tied to a tree for all to witness—certainly an act of endorsed violence. It is for the foregoing reasons, the Petitioners herein pray the Inter American Commission on Human Rights finds Dominican Republic through its Constitutional Court has violated the human rights of the Dominicans of Haitian Descent by making them stateless through its recent opinion concerning the removal of jus solis citizenship. We Further pray that the commission refer this case to the Inter-American Court on Human Rights for appropriate deliberation and eventual sanctions.
Posted on: Sun, 26 Jan 2014 15:34:09 +0000
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