During the Permanent OAS Council hearing on Constitutional Court judgment 168-13 held in Washington yesterday, Tuesday 29 October, the Dominican Republic asked the member nations to be part of the solution to the plight of hundreds of thousands of people who do not have legal documentation in the Dominican Republic, and not part of the problem. Most are impoverished Haitians who cross the border in search of work but have migrated without any legal documentation and have been living in legal limbo causing major social and security problems in the Dominican Republic.
Speaking for the Dominican government at the event, Presidential legal advisor Cesar Pina Toribio said: “The Dominican Republic government has decided to make this ruling the perfect opportunity to act decisively and swiftly on a matter that has been postponed for years. We have the firm conviction that in this context we can end years of lack of definition and irregularities that have led to unfair situations and unacceptable arbitrary actions.”
“We call on the countries of the Inter-American System to accompany us in this effort that we wish will be a definite, coherent and humanitarian answer that brings certainty and confidence to all the men and women, boys and girls who live in our country,” he said.
Pina Toribio and Central Electoral Board (JCE) president Roberto Rosario stated that the Medina government representatives spoke at the event to clarify the ruling and urged the diplomats to read the ruling to fully understand its wide-reaching scope that is in line with concern of the Dominican judiciary for human rights.
Caricom nations at the meeting called for the Dominican Republic to respect human rights. The session concluded with the announcement that the Dominican government would receive members of the Inter-American Commission on Human Rights, an OAS body, which would visit to learn more about how the ruling is being applied.
The Constitutional Court ruling confirmed that there is no automatic birthright for people born in the Dominican Republic. However, at the same time it provides a fast-tracked path to residency and citizenship for people with long-term residence in the country, even for those who are proven to have committed immigration fraud.
The Dominican Republic has been under international pressure to grant Dominican nationality to everyone born in the country. The government position is that the ‘jus solis’ principle, or birthright, has been rejected in all Dominican Constitutions dating back to the early 20th century and confirmed again in the more recent 2010 Constitution, and thus rejects claims of retroactivity in the ruling.
Referring to those who say the court had acted retroactively, Pina stressed: “It is important to remind you that the Dominican Constitution from the start of the 20th century has established that Dominican nationality is acquired, among other ways, by being born in the Dominican Republic, with the exception of children born to diplomats or people in transit,” he said. He said this definition was maintained in the constitutions of 1966, 2002 and 2010.
Furthermore, he stated that in 2005, the Supreme Court of Justice ruled that if people who are legally in transit are excluded from automatically obtaining Dominican nationality, the children of people who cannot justify their legal presence in the country could not benefit from this right. At the time the Supreme Court ruled that Haitians whose parents entered the country illegally retain the citizenship of the country from which they come from, disputing claims that these people would be stateless.
Pina Toribio said that the ruling does not affect all children of foreign immigrants born in the country. He added that if a child had at least one parent who was a legal resident, s/he would continue to be Dominican. “The number of people affected, therefore, is only a fraction of the alarmist estimates,” he said. From 2008-2013, the JCE submitted 16,945 birth certifications for further inspection and evaluation. Of these, only 1,088 (6%) were provisionally suspended for duplication, forgery or other inconsistencies. He said that this was part of a general purge of the civil registry, and that from 2007-2013 the JCE cancelled 42,015 of which only 410 (1%) were for false nationality claims.
Speaking at the hearing, JCE president Roberto Rosario stated that the OAS objective should not be to impose a model on the Dominican Republic, but to guarantee that human rights are respected. He warned the OAS to be “very careful when treading on thin ice and acting on behalf of special interest groups or a given state”.
Rosario urged representatives of the Caribbean states to read the judgment. He made the point that the OAS secretary was speaking after only having read a summary of the judgment. He said he would not answer to the accusatory statements made by Caribbean nations because they revealed that they had not read the judgment and thus were speaking from a lack of knowledge.
Caricom has championed the cause of its member government of Haiti that has protested that its nationals do not receive Dominican citizenship with a birth claim. Foreign Minister of Haiti, Pierre-Richard Casimir, has been lobbying Caricom governments for their support against the judgment. During the session, the representative of Trinidad & Tobago warned the Dominican Republic that it was an aspiring member of Caricom, and Haiti was already a full member.
Speaking for the Dominican government, the head of the civil registry, Roberto Rosario referred to the case of a Dominican Florida Marlins ballplayer whose legal residency documentation was annulled by the United States after it was established that he had presented fraudulent documentation. He also mentioned the well-documented case of a Haitian who posed as a Dominican during a recent Inter-American Court of Human Rights hearing. Rosario said the individual had voted irregularly in all national elections since 1996.
He said that over 60% of Haitians who enter the Dominican Republic do so without any legal document whatsoever.
He emphasized there has been a misunderstanding of the scope of the ruling. He described the recent case of a 37-year old woman who was born to Haitian parents and admitted to obtaining her documentation fraudulently but took advantage of the new program to regularize her status. “And we gave her documents and [said] ‘you have strong family ties here, you have been here for 20 years, we are going to help you to regularize your situation so you legally have access to this ruling'”, said Rosario, outlining the humanitarian scope of the judgment.
Pina Toribio stated that the ruling orders the JCE in a period of 12 to 24 months to audit the civil registry from 1929 to 2007 to prepare a list of all foreigners who are registered, the list of all those who it has been determined were registered irregularly, and a list of all births reported to foreigners in the country.
The OAS secretary said: “We are on the path but must resolve the problem. It will not be resolved by a resolution. It is a problem that needs to be settled with everyone’s goodwill. So far the problem needs to be resolved in agreement with the Dominican state because there is no other way to settle this issue.”
The speaker for Haiti made the point that while Dominicans speak of the 22 years of Haitian occupation, from the Haitian perspective, it was 22 years of the “unification” of the island. At the conclusion of the meeting, the permanent representative of Haiti, Duly Brutus stated that: “We would like to remind all that government of Haiti and people of Haiti wish to continue a friendly relationship with the Dominican Republic. We wish to reiterate our request that a delegation should be sent to investigate the situation of Haitians who have been victims of the decision of the Constitutional Court”.
At the closing of the session Ambassador Brutus of Haiti complained that “the judgment is not 50, but 150 pages long!”
www.scribd.com/doc/180066387/Intervencion-de-Cesar-Pina-Toribio-ante-la-OEA