Dominican Republic’s Constitutional Change Of Citizenship
It’s hard to imagine that something as integral to our identity as our nationality could be taken from us at the stroke of a legislator’s pen or the bang of a judge’s gavel. Yet history is littered with examples. Russian exiles under the Soviet laws of the 1920s, Jews under the Reich citizenship laws enacted by Nazi Germany in the 1930-40s, Kurds in Syria under the “Arabisation” policy of the 1960s, Rohingya in Myanmar after the passing of ethnicity-based citizenship law in the 1980s, and the list continues. Today, there are an estimated 15 million stateless people in the world – individuals and communities who are not recognized as citizens by any country.
The Dominican Republic’s laws of citizenship bared resemblance to numerous nations of the Western world. This implies that; if you are born on native soil, you are a citizen. In 2013, however, the nation amended its Constitution to change that rule of law. Going ahead, only children whose parents were citizens would automatically receive citizenship. That was not necessarily a disaster in and of itself: many countries worldwide follow a similar rule. Subsequently, came a court order that rolled out the constitutional change damaging.
By a vote of 11 in favor, with 2 justices dissenting, on September 23 2013, the Dominican Republic’s Constitutional Court delivered judgment TC/0168/13 in which it decided the appeal filed by Mrs. Juliana Deguis Pierre seeking review of the July 10, 2012 judgment, No. 473/2012, delivered by the Civil, Commercial and Labour Chamber of the Court of First Instance of the Monte Plata Judicial District. The case concerned Mrs Juliana Deguis Pierre, the daughter of Haitian farmworkers born on April 1, 1984, in Yamasá, Monte Plata, Dominican Republic. Her father registered her birth with the Yamasá Registry Office in 1984, which issued her Dominican birth certificate. According to the data shown in the record of Mrs. Deguis’ birth, her father and mother had documents identifying them as workers of Haitian nationality. When the authorities refused to issue her documents, Juliana Deguis filed a petition against the Central Electoral Board seeking constitutional relief. Her petition was filed with the Civil and Commercial Chamber of the Court of First Instance of the Monte Plata Judicial District, and it alleged that her human rights were being violated. She petitioned the court to order that her birth certificate be returned and her identity card issued. In a July 10, 2012 ruling, the court denied the petition seeking constitutional relief on the grounds that Juliana Deguis had been unable to prove her allegations since she had not introduced her original birth certificate; the court ignored the fact that the original birth certificate had been retained by the State itself at its own Documentation Center when she went there to apply for her identity and voter registration card. Mrs. Deguis then filed a petition for review of the decision on her petition for constitutional relief. The case finally made its way to the Constitutional Court. When it took up Mrs. Deguis Pierre’s case, the Constitutional Court maintained that the Dominican Republic has the authority to determine who its citizens are under domestic and international law. Elaborating, it wrote that Dominican nationality is acquired: a) through consanguinity or jus sanguinis; b) through place of birth or jus soli, and c) through naturalization. One of the exceptions to the generic rule for applying jus soli is the category of foreigners in transit.
There on, The declaration by the Constitutional court of the Dominican Republic’s stripped an expected 210,000 individuals, around 2 percent of the country’s populace, of their citizenship. The nation’s constitutional court employed a retroactive reinterpretation of the law to strip a large number of Haitian descent of Dominican citizenship. In this regard, the Constitutional Court concluded that “these persons may not claim that their children born in the country are entitled to Dominican nationality, as it is legally indefensible to assert that a de facto illegal situation creates rights.” Following this line of reasoning, the Court pointed out that foreign nationals who do not have authorisation to reside in the country must be classified as foreign nationals in transit. It further maintained that under Dominican case law “foreigners in transit” are those who do not have a legal residency permit. It ruled that while anyone born in the Dominican Republic between 1929 and 2010 was entitled to citizenship, those born to parents who were in the country as undocumented migrants were not.
Beforehand, all children conceived in the Dominican Republic, aside from those viewed as in travel, for example, the offspring of foreign ambassadors, were allowed citizenship. This included a huge number of children born to migrants. The Constitutional Court used the arguments it made in judgment TC/0168/13 in 16 subsequent judgments. In all these cases, the petitioners, Dominicans of Haitian descent, were claiming that their rights to nationality, identity, and juridical personality had been violated.
The Constitutional Court followed its own case law on the grounds that the legal arguments “must remain the same, not just in this case but in all cases in which the Central Electoral Board is being asked to issue birth, marriage, or death certificates or an identity document. In those 16 cases, justices Isabel Bonilla Hernández and Katia Miguelina Jiménez Martínez have repeated and even elaborated upon their dissenting votes. In short, the criterion established in judgment 168/13, as well as the measures adopted to implement that judgment, come to constitute a crucial stage in this type of historical revisionism promoted by the Dominican authorities, aimed at consolidating an interpretation that establishes that persons born in the Dominican Republic of Haitian parents with an irregular migratory status do not have the right to Dominican nationality.
Following a worldwide objection, the legislature of the Dominican Republic passed new enactment enabling individuals with birth certificates to apply to recapture their citizenship. For a considerable length of time, government experts have deliberately denied birth certificates to individuals of Haitian descent, regardless of whether they could demonstrate their local birth.
Subsequently, even Haitian-Dominicans whose families had been in the nation for a long time may need birth authentications. The Haitian-Dominicans can only register as ‘foreigners’. It allows them to stay and pursue citizenship, but in the meantime, it leaves them officially stateless, which would classify them as refugees in terms of international relations. It is important to note that; citizenship is the foundation of all legal and political rights, which means that, refugees are often left with no legal access to work, education, basic services, or even minimal legal protections. And the few registration centres have been overwhelmed, forcing applicants to stand in days-long lines to submit their paperwork, constraining candidates to remain in days-long queues to present their printed material. Long-standing stigma and discrimination against this population had devolved into their complete exclusion from the political community. It has been described as a “civil genocide.”
A significant number of the “foreign” individuals have arranged in the avenues at nearby government workplaces, urgently looking for the essential paperwork to remain, if not as citizens, then as ‘refugees’. Many have refused to register because doing so would require them to accept immigrant status rather than the citizenship that was their birth right. According to Dominican law, those people have just become illegal aliens in the country that’s been their home all their lives.
Ankit Malhotra is reading Law at Jindal Global University and has a Bachelor of Arts Degree in International Affairs. He is also the President and co-founder of the Jindal Society of International Law.