Can "Regularizing" Status Of Haitian-Descendants, Offer Effective Relief From DR's Discriminatory Law?
President Danilo Medina -- felt the global heat
The immigration reform law that offers Dominicans born to parents of illegal status a path to residency is the first measure taken by the government to address international conflicts it came across after enacting a highly controversial law that mainly affected citizens of Haitian descent.
The Dominican Republic has been under the international eye in the last few months for issuing Resolution TC 168/13, which revoked the citizenship of anyone born after 1929 who does not have at least one Dominican parent.
President Danilo Medina drafted the Plan Nacional de Regularización de Extangeros en Situación Migratoria Irregular, or National Plan of Regularization of Foreigners in Irregular Migratory Situation (PNRESMI), two years ago in collaboration with other members of the government.
PNRESMI offers those born in Dominican territory to parents of illegal status two methods for becoming legal residents. The first is naturalization for those who are illegal, and the second is a special measure for the children of illegal-status parents, explained Gustavo Ramirez Meran, head of the Department of Relations with Haiti in Dominican Republic.
The special measure requires people born from June 16, 1929, to April 18,2007, to register as a Dominican-born son or daughter of a foreigner. This allows for people both registered an unregistered in the civil registry to receive legal residency status.
The Committee of Solidarity with Denationalized Persons, headed by Juan Bolivar Diaz and embodied by more than 500 Dominican professionals, called the law more realistic and viable, and a great improvement from the previous two versions that were proposed. The Committee says the law also offers fundamental measures to initiate a more effective solution to the disproportionate Haitian migration to the Dominican Republic.
A Question of Sovereignty: Members of the Tribunal Constitucional, or the Supreme Court, as well as other commentaries in Dominican society point to sovereignty as their defense for the sentencia TC 168-13. In his Community of Latin American and Caribbean States (CELAC) speech in Cuba this past January, President Danilo Medina insisted Dominican Republic hadn’t revoked anyone’s citizenship or nationality, because the country couldn't take something a person never had.
He explained that citizenship was obtained through mechanisms laid out in the constitution since the beginning of time, and that this was not to be confused with "retroactivity" because the mandate dates to 2010. What the sentencia did was regulate the legal status of people living with an irregular migratory status.
Julia Harrington Reddy, a nationality expert with the Open Society Foundations broke down exactly how the Dominican Supreme Court disregarded international law when deciding on the sentencia -- the court did in fact create stateless people.
One question that many people have is: how can the sentencia of the Tribunal Constitucional violate human rights when it’s a decision from the highest court in the land? It needs to be made clear that human rights and the rule of law has a substantive and a procedural aspect, Reddy explained at a recent New York press conference.
The fact that a rule comes from the highest court doesn’t mean that it respects human rights, and this is illustrated by a similar ruling in the U.S., Dred Scott (the 1857 landmark decision by the U.S. Supreme Court in which the Court held that African Americans, whether slave or free, could not be American citizens and therefore had no standing to sue in federal court; Dred Scott had sued for his freedom from enslavement) which took a civil war and a constitutional amendment to remediate. “It’s very sad to see a rule-of-law respecting country like DR with a judgment like this,” Reddy said.
The substantive area of international law that the sentencia does not comply with is first, the universal principle of non-discrimination, which exists in virtually every human rights treaty, many of which have been signed by Dominican Republic, Reddy, explained. A law or judgment doesn’t need to name who it is discriminating against for it to be considered discriminatory, which is another defense used by those in favor of the sentencia, who say it affects as many Chinese as it does Haitians. All the law needs is to have a disparate impact on a large group of the same people to be discriminatory.
Another principle of international law the sentencia violates is the prohibition of creation of statelessness. While President Medina claimed that “these people are living in a judicial limbo, and don’t have a definite status in the Dominican Republic,” members of both the Committee of Solidarity with Denationalized Persons, and Reconoci.do assert that this law is mostly affecting people who had their legal status, by birth, taken away from them. Since the ability to create stateless people isn’t defensible, the Dominican court is claiming that these people aren’t stateless.
However, international law recognizes some one as stateless if they are not considered a national by any country and under the operation of that country’s laws. The opposite of being stateless, as Reddy explained, means that you are holding valid identity documents from that country, which is exactly what these Dominicans of Haitian descent are not.
A "possible claim" or "capacity" or "eventually getting hold of nationality" is not equal to having one, and therefore invalid. “So anyone who has held a Dominican nationality document and has that document invalidated, it’s clear that they are not considered a national by the DR,” Reddy said. Unless they are holding valid identity documents from another place at the moment their documents are taken away, they are therefore stateless.
The third principle, which was the one President Medina denounced so fervently in his speech just a few months ago, is the prohibition of arbitrary denationalization.Reddy explained that it was an arbitrary act when a state suddenly takes away a status that someone had enjoyed since birth: “It places people in an entirely different position than they were in before, and it can’t be justified as a legitimate state interest.”
“It’s imperative that to maintain its status as a country that respects the rule of law, the Dominican government needs to recognize that in this case unfortunately, its own supreme court has a made a mistake. The rights of these people need to be restored publicly, clearly, swiftly, automatically, as soon as possible,” added Reddy.
The impact of the international attention on the Dominican Republic was clear when President Medina spoke earlier this year. “I didn’t have the intention of revisiting the Dominican Republic-Haiti topic again, but Latin America is watching on their televisions and I’d hate for them to receive distorted information, especially since Dominican Republic is present we must not stay quiet,” President Medina said to his audience in Spanish this January.
He said that “for the Dominican Republic it is unacceptable for us to be accused of racists and accuse us of discrimination and human rights violators…”
“We do not accept the label that this forum is trying to impose on us,” he added.
“Dominican Republic has a relationship of utmost solidarity with Haiti. At the moment, in Dominican Republic there are over one million Haitian citizens. The majority of which are undocumented. They have no kind of documents and they stride our streets freely, without a cop, an immigration officer asking them if they have a valid passport to be in the country,” President Medina continued.
But at the grass roots level, modern-day Haitian-Dominican relations are much more disagreeable than the rosy version President Medina would like the world to believe.
While it's true Dominican Republic has done a lot for Haiti, there is a daily struggle by Haitians in DR. With sentencia168/13, the challenges Haitians faced was legitimized. Some in the international community compare the law to those of 1930’s Germany.
Opponents say even though it's fine by the DR's highest court, and while the country can claim “sovereignty,” it still must abide by international laws. Sentencia 168/13 is a vile violation.
A History of Struggle: Through most of modern history, Haitians have had a harsh existence in Dominican Republic. During the Rafael Leonidas Trujillo regime, there was an intense cultural anti-Haitian decades-long campaign that at its peak saw thousands of government-sponsored murder campaigns against Haitians, including the Perejil Massacre of 1937.
More recently, during the 1990’s presidential campaigns, there was a renewal of anti-Haitian sentiment in political parties. Peña Gomez, the candidate for the Partido Revolucionario Dominicano (PRD), was a Dominican of Haitian descent, and his opponent, Leonel Fernandez of the Partido de la Liberación Dominicana (PLD), held what Bolivar Diaz of The Committee of Solidarity with Denationalized Persons called a “xenophobic, racist, and discriminatory campaign.” For the last 12 years, as the PLD has held power, so have the party’s discriminatory inclinations.
Poorer Dominicans, many of whom are of Haitian descent, tend to identify with the PRD, as 700,000 of them did during the ’96 election, of which Gomez won 49 percent of the vote. “Today, many of them see it as an electoral problem, because after excluding them and taking their rights, they think that when they reinstate them they won’t be able to count on those votes,” Juan Bolivar Diaz said in a recent press conference at SEIU Local 1199.
The event was coordinated by the organizations We are all Dominican and Dominicans by Right, both of which exist in response to the ruling that stripped the citizenship of hundreds of thousands of Haitian-descent Dominicans and they focus on in community outreach to inform about the issue.
“But in the end, this can’t justify something so fundamental like the right to nationality, especially because international organizations haven’t recognized this infamy, this nameless injustice,” said Bolivar Diaz.
Many of the people in power of the Dominican Republic are the children of the Trujillo regime of anti-Haitianism, and like Jim Crow, they are incorporating decades-old prejudices against Haitians into the law and social norms.
These practices include putting up discriminatory signs in neighborhoods with large Haitian-Dominican populations, and wage theft, as Manuel Avila of Santiago has seen happen in his hometown: “Since they know that Haitians aren’t going to argue, for every ten hours they work they pay them for five.”
Alien at Home: At the CELAC conference, President Medina portrayed a peaceful cohabitation of Haitians and their Dominican-born descendants and Dominicans. In addition to roaming the streets freely without being harassed by cops or immigration officials, he said that Haitian laborers aren’t given obstacles despite the country’s labor laws. He claimed, “you can’t accuse a country of violating human rights when it guarantees access to health and education, no matter your legal status.”
But Ana Maria Belique has a different narrative.
As a Dominican of Haitian parents and leader of Reconoci.do, an organization that is mostly composed of over 1,000 young Dominicans of Haitian descent who are affected by the sentencing, she offers solidarity where these young people cannot find any.
Members of the organization across six provinces in the country, have difficulty getting access to their birth certificates and national identity documents, all the things that you need to conduct basic life in the Dominican Republic. The majority of these people cannot work or go to school because of the halt of their documents. Through Reconoci.do, Belique organizes parades, marches, and vigils with the aim of bringing awareness to other Dominicans and the authorities of their situation.
“When we talk about the rights of nationality we talk about other things that depend on that basic right… In DR you need your birth certificate to begin elementary school, to enter high school, to finish high school, to enter university. And its not the same copy of your birth certificate, you need to go to the offices to get a new copy every time,” Belique explained in Spanish.
She was subject to the law when in 2007 she attempted to obtain a birth certificate to enter university. After a long trial, that is still inconclusive, she was able to go on to the Universidad Autonoma de Santo Domingo.
An estimated 200,000 people born in Dominican Republic of Haitian parents are in jeopardy of having their lives frozen because of this bureaucratic order.
Once you become of legal age at 18, you need your cedula, your national identity document, for activities from giving birth, cashing a check, buying and selling property, to burying a relative and obtaining a passport. In addition to these issues, many Dominican professionals, like doctors, lawyers, and teachers, are going to be unable to renew their practice licenses, furthering the menace this law has caused.
Unlike the narrative President Medina presented to his peers at the CELAC conference, Haitians in Dominican Republic are living in a predatory environment, enforced by police and immigration officials. The police have something that they call a suspicious profile, as Belique explains: “In DR being Black is usually synonymous with being Haitian.”
This means that in addition to being Black, “you’re not well dressed, and you don’t have ID,” characteristics that usually correspond to the poor. In these situations, the police are empowered to arrest anyone who they suspect may be an illegal Haitian immigrant who isn’t carrying a cedula. Once in custody, if one is unable to prove their legal status, they may be deported. “Every day we learn about the different impacts that this is having on our lives,” Belique said.
With the passing of the National Plan of Regularization of Foreigners in Irregular Migratory Situation the Dominican Government can offer a model for the rest of Latin America, where immigration is a continuous battle, Ramirez Meran said: “It’s the best way we can begin to help our Haitian brothers as well as ourselves.”