By D. Alissa Trotz
Alissa Trotz is Editor of the In the Diaspora Column
According to a daily roundup of news from the Dominican Republic, on November 4th, in a 59-page ruling (Judgment 256-14), the Constitutional Court “annulled the country’s participation in the Inter-American Court of Human Rights (IACtHR)…this means that none of the cases ruled upon by the IACtHR are [sic] valid for application in the Dominican Republic. The Constitutional Court ruling established that the Dominican Congress never validated the membership in the Inter-American Human Rights Court and thus declared null and void the jurisdiction of the IACtHR over the Dominican Republic.”
This shocking decision came on the heels of a recent ruling by the IACtHR that the human rights of Dominicans of Haitian descent are being violated. As the Washington-based Robert F. Kennedy Center for Justice and Human Rights notes, “This latest judgment was issued in the context of an ongoing international outcry over last year’s Constitutional Court judgment (TC-168-13), which discriminatorily stripped hundreds of thousands of Dominicans of Haitian descent of their nationality, rendering them stateless. Earlier this year the Dominican government passed a Naturalization Law (169-14), which was billed as a solution to the massive humanitarian crises created by ruling 168-13. However, the law actually further entrenched the discriminatory ruling for the majority of affected individuals – forcing hundreds of thousands of Dominican citizens to self-report as foreigners or face forcible expulsions. The most recent Constitutional Court judgment (TC-256-14) was published less than two weeks after the IACtHR ruled in the case of Expelled Dominican and Haitian Persons vs. the Dominican Republic that both judgment 168-13 and certain provisions of law 169-14 violate the government’s binding obligations under the American Convention on Human Rights, including the right to nationality and the right to identity.”
According to Miguel Ceara-Hatton, professor and researcher in economics from the Dominican Republic, the “presumption of legality” is the argument now being used by the Constitutional Court Judgment 256-14 to decouple the State from the IACtHR. It is a move similar to the infamous and deeply racist judgment 168-13 of September 2013 which denationalizes Dominicans of Haitian origin (those born in the country as far back as 1929), and which noted that several thousand citizens had a “presumption of being Dominican” (apparently a phrase used by former DR President Leonel Fernández) as a result of a systematic error made for 81 years by the State.
According to Arturo Victoriano, Dominican lawyer and acting Director of Caribbean Studies at the University of Toronto, this recent Constitutional Tribunal ruling dates back to 2005, when in response to vociferous complaints from prominent members of the right following an Inter-American Court ruling on the discriminatory treatment of people of Haitian descent (Yean and Bosico vs. the Dominican Republic), they invoked the unconstitutionality of the instrument by which then President Leonel Fernández accepted the jurisdiction of the Inter American Court in the DR. The case languished in court for nine years and has now finally been ruled upon – significantly just weeks after the Inter American Court ruling which the Dominican government allegedly dismissed as biased and unacceptable. It is to be noted that Fernández was architect of the 2010 Constitution that created the Constitutional Tribunal, which some have suggested is largely controlled by the political rightwing.
As Ceara-Hatton and Victoriano wonder, how many more “presumptions of legality” with retroactive implications will be ‘discovered’ by the Constitutional Court? Will the Dominican Congress ratify the instruments of acceptance of the Inter American Court, or will it withdraw from the Convention on Human Rights, taking it out not only from the court, but also the Inter American Commission on Human Rights which paid a country visit to the Dominican Republic last December? This is complicated even further by the fact that the American Convention on Human Rights is integrated in Article 74.3 of the 2010 Dominican Constitution. Reports thus far are that the Dominican Government is digging its heels firmly in, and has said that it will abide by this last Constitutional Tribunal sentence.
Ceara-Hatton, who argues that “the origin of this whole mess was the retroactive denationalization of thousands of Dominicans of Haitian descent and the pretense that the children are responsible for the illegality of the parents, while the problem of illegal immigration remains unsolved,” warns of five consequences of withdrawal:
“First, Dominicans will be unprotected in cases of violation of human rights, especially in a scenario where the authority is more likely to violate these (extrajudicial executions, a lack of independence and impartiality of the High Courts, etc); second, the loss of international credibility for breach of commitments when they are adverse to the interests of certain [powerful] groups in the Dominican Republic; third, the country’s image is affected when the Inter-American Court says the state violates human rights. Seventy percent of Dominican tourism comes from countries very sensitive to the issue of human rights (USA, Canada, Germany, France, England, Sweden, etc.); fourth, trade and political relations with Europe through the trade agreement and the Cotonou Agreement (this immediately affects banana exports) will be affected; fifth, trade and political relations with the US, a country with a large lobby sensitive to issues of discrimination and violation of human rights, may be affected.”
Unfortunately, it is not entirely clear what kind of support those opposed to the ruling might expect from these Western countries. After all, there was a studied silence on ruling 168-13 (Spain actually supported it). In Canada organizations like No-One is Illegal have pointed to increasingly draconian immigration laws under the Progressive Conservative government, while it is not clear what pressure the Black and Hispanic Caucuses and other organizations might bring to bear on the US government, especially after the recent midterm election results.
Back to the region, what will be CARICOM’s response? After the Constitutional Tribunal handed down its ruling in September 2013, it took close to a month for the regional integration body to issue a lukewarm and weak statement, simply calling on “the Dominican Republic to adopt measures to protect the human rights and interests of those made vulnerable by [the] ruling and its grievous effects.” Prime Minister Ralph Gonsalves of St. Vincent and the Grenadines was the only sitting political leader in the entire Caribbean to openly criticise the ruling (a similar response was also forthcoming from former Jamaican Prime Minister PJ Patterson), writing two letters to President Danilo Medina, and indicating that he would press for a review of the DR’s relationship to both CARICOM and CARIFORUM.
CARICOM would eventually find a common voice condemning the ruling, and deferring consideration of the DR’s application for membership in CARICOM, after its Bureau meeting in Trinidad and Tobago in November 2013.
It seems that we need to remind CARICOM of what it said back in November, when it called “on the Dominican Republic to ensure the immediate protection of those persons negatively affected by the ruling and to adhere to its international human rights obligations under the Inter American Court of Human Rights, the Convention on the Rights of the Child and the American Convention on Human Rights, among others.” The press release also committed PM Kamla Persad Bissessar, then CARICOM Chair, to address the issue with “several bodies of which we are members such as the Association of Caribbean States (ACS), the Community of Latin American and Caribbean States (CELAC)” and to “maintain our interest and active participation at the Organisation of American States (OAS).”
In July of this year, the annual Heads of Government Conference declared that “it would not be business as usual in the Community’s relationship with the Dominican Republic and that they would maintain their pressure in all fora on the continuing challenges to the human rights of the Dominicans of Haitian descent, including obtaining an advisory opinion of the Inter-American Court of Human Rights.” This has been the only news since the November 2013 meeting and it is not at all clear what kind of pressure has been brought to bear anywhere, not even with Prime Minister Gonsalves (without whom the strongly worded statement may not have been possible) assuming the Chair for the first months of 2014.
In the face of this news from the DR, where is CARICOM’s voice? If silence is one issue, inconsistency is also another worrying development, something that journalist Rickey Singh drew the public’s attention to when he reported that in September a senior Antiguan Minister went on an official trip to the Dominican Republic to discuss a number of issues that apparently included the country’s desire to forge deeper relations with CARICOM! These bilateral talks fly completely and rudely in the face of a supposedly committed regional position. More sobering still is the fact of ongoing xenophobia and discrimination faced by Haitians right across the CARICOM, such as in The Bahamas where the Miami Herald reported last week that new policies to stem illegal immigration to the island are resulting in the detention of children (of predominantly Haitian parents), including those born in the country. According to one observer, nationalist arguments against Haitians and Dominican-Haitians in the DR are defending the Constitutional Tribunal decision as a “defense of sovereignty,” and are pointing to The Bahamas in support of their position, and to statements like the one reportedly made by The Bahamas Foreign Minister Fred Mitchell, that “those people who have been born here will get a particular residence permit which will allow them to work and live here until such time as their status pursuant to any application under the terms of the constitution is decided.”
Activists in human rights and other organizations in the Dominican Republic are planning a press conference this Tuesday, to criticize the recent ruling and to underline its wider implications for all of Dominican society, and have called for Caribbean people to challenge this latest threat to “democracy and the exercise of human rights in the country.” One of the ways we can do this is to continue to put pressure on CARICOM to demonstrate that it meant what it said when it committed to action in November in the name of the people of this region. It bears remembering that the integration movement’s shift in position would not have happened without the combined work of activists and others inside and outside of the Caribbean.
In addition to some excellent investigative journalism in Trinidad and Tobago on the situation facing Dominicans of Haitian descent, this included petitions circulated by the Jouvay Ayiti Collective in Trinidad and Tobago and another that was initiated by Danuta Radzik and Andaiye in Guyana, circulated with the support of young people in Guyana and Grenada and handed over to CARICOM just days before the Bureau meeting, which received a deputation from civil society that included the late Norman Girvan, Mike James, Asha Kambon and Sunity Maharaj. We need a similar groundswell of support now, one that calls CARICOM to action, and that crucially also names and challenges the hypocrisy and double standards of member states on the question of our Haitian sisters and brothers.
