FROM OUR FOREIGN CORRESPONDENTS

The Dominican Republic has a “strong president” type of democracy. In general, the Dominican legislature has often been ineffectual, and the Dominican judiciary has been weak. Although the Constitution grants substantial powers to the legislature and sets up a judicial system, Article 55 permits the president to rule by decree if necessary. It is not questioned that a “law” supersedes a “decree,” and a later law derogates a prior law, but the issue of who decides the validity of either has until recently been murky.

The Dominican Supreme Court held years ago that it did have the power to adjudicate whether a “law” was unconstitutional, but this was not expressly provided in the Constitution until 1994, when an amendment (Article 67, Section 1) was approved specifically detailing the power of the Supreme Court to review legislation. In the opinion of constitutional scholars, this power includes decrees and governmental decisions.

This amendment coincided with a general reform of the judicial system, including the appointment of new Supreme Court justices, the Court’s greater powers to control lower courts, and a general upgrading of judges’ legal qualifications. This reform was motivated in part by the theretofore generally-recognized incompetence and corruption in the court system as a whole.

In a case which will become both the Marbury v. Madison and the Bush v. Gore of Dominican jurisprudence, the Supreme Court held in December 2001 that a “special law” enacted by the Congress violated the Constitution. That case is the subject of this column.

Background

In 1994, the Dominican presidential election was widely regarded as having been won by fraud. Then-President Joaquín Balaguer was running for a third consecutive four-year term (he had been president for twelve years in the prior decades, and was known for his strong hand). His opponent was a popular and populist black leader - a hero to the under-classes - who admitted to Haitian parentage. Voting watch groups universally condemned the Balaguer victory as rigged. To avoid a national and international scandal, a deal was struck to amend the Constitution by (1) prohibiting consecutive presidential terms, (3) shortening the Balaguer administration to two years (to end in 1996 instead of 1998), and (2) separating Congressional and municipal elections from presidential ones by holding by-year elections.

This meant that every two years, the parties would go head-to-head, either for president or for control of Congress and the cities. In 1996, the Dominican Liberation Party won the presidency, and in 1998 the Dominican Revolutionary Party (DRP) captured overwhelming majorities in the legislative and municipal elections. Following up on that victory, the same party (DRP) won the presidency in 2000 and now controls both the executive and legislative branches.

The legislature saw its chance to retain that control beyond 2002, when they were up for elections again. Since their president could not stay beyond 2004, they also thought it time to rescind the “one-term president” rule.

Attempted Amendment to the Constitution

The Dominican Constitution provides for amendments through the calling by the legislature for a National Assembly. The call is made by a “special law,” as the Constitution puts it, which cannot be vetoed by the president. The National Assembly then meets and can pass amendments by a two-thirds vote of those present. The call of the National Assembly can provide for members other than Congressmen, but in the usual case, the same members of the Congress which issued the call are the only voters at the National Assembly. Since the DRP had overwhelming control of the Senate, and working control of the House of Deputies, there was clear evidence for believing that the congressmen would amend the Constitution to extend their terms from 2002 to 2004, and also repeal the prohibition on their own DRP president from running again.

The DRP president publicly opposed such moves, claiming he was not going to run in 2004 even if given the chance, and submitted the issue to the Supreme Court for decision.

Constitutional Issue

Since the Constitution provides that the call for a National Assembly is made by a “special law” not subject to presidential participation, the issue was whether this also exempted it from judicial review. This “special law” was challenged on the grounds that its passage violated another provision of the Constitution: unless Congress declares a bill to be “urgent,” all legislation must be approved by two votes, separated by one day. It was said that this hiatus of a day would give time for further reflection on the matter. The “special law” was enacted by the Senate by votes taken on consecutive days.

Decision of the Supreme Court

On January 3, 2002, the Court handled down its opinion. It first addressed the issue of its own power to decide the constitutionality of the “special law.” It held that both by its inherent powers as guardian of the Constitution and by the 1994 Constitutional amendment, that it did have jurisdiction in this case. It then went on to hold that any act of the legislature (including a “special law” to call a National Assembly) must meet all provisions of the Constitution in order to be valid, including the procedural requirement of a day’s delay between votes. The fact that the special law was not subject to veto by the executive branch did not exempt it from judicial review to determine if the constitutionally-imposed requirements for passage were complied with. Measured by this rule, the “special law” was unconstitutional and the call for a National Assembly void.

The Court’s decision avoided a serious political assault on Dominican democracy, while at the same time providing a face-saving solution for the current president. It also established precedent for future decisions by the tribunal, for even the thorniest of issues, and clearly advanced the concept of due process. A contrary decision would have plunged the country into political chaos, and would have undermined the nascent recognition of the need for constitutional checks-and-balances.

The full opinion can be found at online.

March 4, 2002

Jerry B. Grubaugh is a partner in the Oficina Marranzini law firm in Santo Domingo, Dominican Republic. He is a summa cum laude graduate of Ohio State University, where he was Phi Beta Kappa, and the Harvard Law School.

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What are your views on the issues raised by this JURIST column?

• Tuesday March 25, 2003 at 9:10 pm
  If an american youth, age 17 attends school in the Dominican Republic and he wants to leave at age 18 can he leave if his parents want him to stay at the school, apparently DR age of majority is 21?
  
  Ms. Camp
  court appointed GAL
  CO/USA

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