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2.14.2010

A New Constitution in the Dominican Republic



The process of constitutional change in the Dominican Republic, which I mentioned in a previous post, has successfully come to an end. On January 26th, after a long, thorough, and civil process (characteristics that have been conspicuously absent in the region’s recent wave of “constitutional revolutions” in Venezuela, Bolivia, Ecuador) a new constitution was promulgated in the Dominican Republic. Well, the Dominicans call it new but it really was a huge amendment process carried through in all its steps precisely as the Constitution of 1966 prescribes. Our colleagues Elkins, Ginsburg, and Melton (2009, 55) distinguish a constitutional amendment from a replacement if the actors claim to follow the amending procedures of the existing constitution. The weird thing in the Dominican Republic is that the actors call it a new constitution although they followed to the letter the amending requirements of the previous constitution. This is, thus, a tricky and fun case to measure constitutional endurance.

The reforms were proposed by current president, Leonel Fernández, whose party has 68%of the seats in the Senate and 54% of the seats in the Chamber of Deputies, a cozy majority to pass laws but not constitutional amendments which had to be negotiated with other political forces. The reforms obtained the support of the second biggest party in the final vote, the Reformist Christian Party (PRC). According to some observers, the price for the consent of the PRC may be the inclusion of the most polemic change in the constitution: the protection of life since the moment of conception.

Regarding the judiciary, the reforms created a Constitutional Tribunal and strengthened the instruments for constitutional review. One innovation in the judicial system is the creation of a judicial council plus a so-called council of magistrates. The first is composed by members of all levels of the judiciary and has with vast powers to nominate and oversee the performance of lower court judges. The second is composed by members of the executive, legislative, and judicial branches and will designate judges for the Supreme Court and Constitutional Tribunal.

Some other interesting features of the new Dominican constitution are the inclusion of instruments of direct democracy, referendum and plebiscite, as well as a requirement of an approbatory referendum for future constitutional amendments that change fundamental rights. Regarding the torny issue of presidential reelection, Art. 124 states that "the president will be elected for a four year term and can not be elected for the following constitutional period". Whether Leonel Fernández will step down in 2012 or will argue that he can run for his first term under the new constitution is to be seen.

JRF



3 comments:

  1. "The weird thing in the Dominican Republic is that the actors call it a new constitution although they followed to the letter the amending requirements of the previous constitution."

    I think it is fairly usual for people to speak this way when a whole new document is adopted or big changes are made. For example I gather that the current Japanese Constitution of 1947 was adopted using the amendment procedures of the old imperial constitution. Nobody says that Japan is still using its 1890 constitution.

    For the purpose of assessing constitutional endurance I think it makes sense to make a firm distinction between an 'amendment' and a 'new' constitution. But as used in ordinary speech these concepts are more ambiguous.

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  2. Thanks for the comment. I totally agree. In many occasions, however, as Elkins, Ginsburg, and Melton nicely show (2009), it is not straightfoward to make a firm distinction between an amendment and a new constitution. In the case of the Dominican Republic, a "legalist" classification rule (i.e. did the changes were carried out following the procedures established in the current constitution?) would result considering the recent changes as amendments to the Constitution of 1966, despite the fact that the government has published the Constitution of 2010. But that classification rule may run into trouble in some cases, e.g. if following the amending procedures some articles that are considered essential for a constitution are changed (like the democratic, republican, or federal characteristics of a given country).

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