Legal expert Luis Manuel Vilchez Bournigal analyzes the constitutional principle of “favorability” now that many are invoking it in their demands for Dominican citizenship for undocumented individuals in the DR.
The discussions have followed the emission of Constitutional Court Ruling 168-13 that ordered the implementation of the Foreigner Legalization Plan for documenting people living in the Dominican Republic. The plan gives undocumented individuals 18 months to regularize their legal status as residents or nationals or face deportation.
Vilchez says that the favorability clause in the Constitution 2010, Art 74-4 states: “Public authorities shall interpret and apply the rules on fundamental rights and their guarantees, in the manner most favorable to the rights holder, and in case of conflict regarding fundamental rights, will seek to reconcile the assets and interests protected by this Constitution.”
Vilchez writes that critics of the ruling are not considering that for a person to benefit from the favorability principle, first that person had to have had the right that the person aspires to and seeks to be favored with the favorable interpretation.
Vilchez says then it is absurd that a person who has not legally obtained this right can uphold the principle of favorability. He believes that the Constitutional Court judges were correct in their definition that children of foreigners who had entered Dominican territory irregularly or illegally do not automatically qualify for Dominican citizenship. He says that to benefit from this right to Dominican nationality, they would have to have entered abiding with the Constitutional and the immigration laws of that time.
The rule “Nemo plus juris ad alium transferre potest quam ipse habet” or the Latin phrase, ‘no one can transfer a greater right than he himself has’ applies here. He commented that if you are not an owner of something, you cannot pass on this right, because “an illegality cannot create a right.”
He opposed the proposal of a general amnesty law on the grounds that this would violate Art. 4 of the Constitution that calls for separation of branches of state or Art. 18 of the Constitution that establishes who are Dominican nationals and even Ruling 168-13 of the Constitutional Court. He said that any law that Congress may pass that does not comply with the ruling would be in violation of the Constitution.
In his opinion, that proposal would be like putting a straightjacket on the Constitutional Court, which would be intromission of the legislative branch in the judicial branch with one branch trying to annul the decision of another.
Vilchez comments: “The opponents of the ruling of the Constitutional Court want to pretend that it is not a humanitarian decision, when what is sought with the Foreigner Legalization Plan is to regulate a situation of foreigners who have always been in a situation of illegality in the country. What is inhumane is to place obstacles to these persons being regularized.
In his opinion, the solutions need to comply with the Constitution and the Constitutional Court decision.
www.diariolibre.com/opinion/2014/01/25/i453571_dilogo-con-hait-principio-constitucional-favorabilidad.html
www.listindiario.com.do/puntos-de-vista/2013/11/2/298073/print
www.ifrc.org/docs/idrl/751ES.pdf
The author can be reached at luism.vilchez@gmail.com