CHAPTER II
POLITICAL AND JURIDICAL ORGANIZATION OF THE DOMINICAN REPUBLIC
A. Political structure of the Dominican Republic
38. Article 4 of the Constitution of the Dominican Republic establishes the political and legal organization of the state, which is divided into three branches: Executive, Legislative, and Judicial. The Executive branch is represented by the President of the Republic, who is elected by popular vote every four years. The Chamber of Deputies and the Senate constitute the Legislative branch, and the Supreme Court of Justice, along with all other courts, make up the Judicial branch.
39. The last presidential election was held on May 16, 1996, with the participation of candidates and parties of different ideological persuasions, in a framework of freedom and transparency, as was acknowledged by the international community.3 As a result of those elections, Leonel Fernández, of the Partido de Liberación Nacional (PLD), became president, replacing Joaquín Balaguer, who during different periods was president for a total of 22 years.
40. The 1966 Constitution of the Dominican Republic was amended after 28 years. The amendments were promulgated on August 14, 1994, by then-President Joaquín Balaguer. Among the main amendments is the creation of the National Council of the Judiciary (Consejo Nacional de la Magistratura). The Council is made up of seven members: the President of the republic and four legislators, including the President of the Senate, the Speaker of the lower chamber; and the chief justice (Presidente) and one other justice from the Supreme Court.
41. The reforms introduced in the 1994 Constitution revamped Title VI, Sections I and II, of the Constitution, with respect to the composition and election of the members of the Supreme Court of Justice4. At present, the National Council of the Judiciary is the organ entrusted with designating the members of the Supreme Court. As of September 1996, the Council began to meet to discuss procedural issues. Historically, the Senate elected the judges, but the constitutional reforms put an end to that exclusive input of the Senate, over which the President exercised a decisive influence. At this time, the National Council of the Judiciary is developing a professional career service for the judiciary.5
Article 14 of the Law on the Judicial Career Service provides as follows:
On designating the justices of the Supreme Court of Justice, the National Council of the Judiciary shall determine the time for which the designation is made, which shall be no more than four (4) years from the date of the appointment, all pursuant to the provisions of Article 17 of the Organic Law on the National Council of the Judiciary....
42. This article, which limited the designation of the judges to four years, was declared unconstitutional by the Supreme Court of Justice in August 1998.
43. The Judicial branch is headed up by the Supreme Court (Corte Supreme de Justicia), and includes the Courts of Appeals (Cámaras de Apelaciones), and other courts of lesser jurisdiction such as the land courts (tribunales de tierras), the courts of first instance (juzgados de primera instancia), and justices of the peace (juzgados de paz), as provided by law.6 The Supreme Court is the highest court, with national jurisdiction. It reviews the proper application of the procedural provisions by the lower courts as well as the constitutionality of laws. It currently is made up of 16 members (before there were only nine), elected by the National Council of the Judiciary, which, as noted above, was created pursuant to the 1994 amendments to the Constitution, for the purpose of making the judiciary independent of the other branches of government. Under the Constitution, the administration of justice is gratis throughout the territory of the Dominican Republic.7
44. The Legislative branch in the Dominican Republic is bicameral, made up of the Chamber of Deputies and the Senate. As a result of the 1996 elections, the Congress obtained greater legitimacy and representation. In periods prior to the administration of Leonel Fernández, the prestige and initiative of the Congress had been affected by the manifest political subordination of the legislative majority to the will of the influential President Joaquín Balaguer. At this time, the Congress reflects the array of opinions in Dominican society, and is, in general, independent of the Executive; the government party holds a minority of the seats in both chambers.
B. Individual guarantees set forth in the Constitution
45. The Constitution of the Dominican Republic recognizes the need to protect the rights and liberties of persons, conceiving of such protection as the "principal purpose of the state";8 along with these rights and liberties, the duties of citizens to the state and society are spelled out, requiring them to act in a responsible, moral, and legal manner, contributing to social justice, the common good, and public order.9
46. The Constitution has 122 articles, including article 8, which establishes the individual and social rights of citizens, which are divided into guarantees of equality, liberty, security, and property, and social guarantees.
47. The Constitution also sets forth the concern to stimulate the progressive development of social security, so that all might have adequate protection against unemployment, illness, disability, and old age. In addition, special protection for the family is established, recognizing marriage as the fundamental basis of society.
a. Guarantees of Equality
48. Under the Constitution of the Dominican Republic, it is the state's duty to offer its inhabitants the guarantee of equality, so as to guarantee the enjoyment of their rights and offer equal means for their defense. Three types of equality can be considered: Political equality, legal equality, and social equality.10
49. As regards political rights, the Constitution provides that all Dominican citizens may exercise their right to vote, and to hold any public office.11
50. Legally, all Dominican citizens are equal before the law, and have the same possibility of coming before the pertinent authorities to uphold the rights and guarantees recognized by the Constitution. In addition, they should have the same possibilities of defense so as to guarantee the individual a fair outcome based on equal treatment.
51. According to the Constitution of the Dominican Republic, equality is not limited to legal and political rights, but extends to social rights, providing that Dominican citizens shall not be victims of discrimination. Article 100 of the Constitution condemns all privileges and any situation that tends to violate the equality of all Dominicans, as among whom no differences should be considered other than those that result from talent or virtue, and consequently, no entity of the Republic may grant titles of nobility or hereditary distinctions.
b. Guarantees of Liberty
52. Article 8 of the Constitution establishes individual liberty as a fundamental element for the protection of individual guarantees and is aimed at preventing a person from being deprived of his or her liberty without justified cause or without a judgment handed down by a competent authority that suspends the guarantee.
53. The Constitution further establishes another series of guarantees that are related to living together in society; these include the inviolability of correspondence and the home, freedom of movement, freedom of expression, freedom of association, freedom of conscience and worship, free enterprise, and freedom to work, which is also a social guarantee.12
c. Guarantees of Security
54. The Constitution of the Dominican Republic includes in its provisions those guarantees whose purpose is to offer security to its inhabitants; in this context, the Constitution indicates that neither the death penalty, torture, or any abusive penalty or proceeding that implies the loss or diminution of the individual's physical integrity or health may be established, pronounced, or applied in any case.13
55. In addition, the Constitution establishes the minimal guarantees of due process. Article 8(2) enshrines, for criminal proceedings, the inviolability of the right to defense, the presumption of innocence of the accused, the right to justice and regular process, the guarantee of a hearing, the prohibition on any deprivation of liberty without a reasoned and written order by a competent judicial officer, and the obligation to bring any person deprived of his or her liberty before a competent judicial authority within 48 hours of his or her arrest.14
56. Article 8(2) also establishes the obligation of the judicial authorities to issue an incarceration order or a release order within 48 hours of the detainee being brought before the authority; the interested person should be notified, within the same time frame, of the measures issued for this purpose. Article 8(2) also establishes the principle of non bis in idem, and the right to habeas corpus; prohibits the transfer of any detainee from one prison to another without a written and reasoned order by the competent judicial authority; and prohibits as well court orders of imprisonment for debts.15
d. Guarantees of Property
57. The Constitution of the Dominican Republic, at Article 8(13), guarantees the right to property, pursuant to which no one may be deprived of property other than for justified cause of public utility or social interest, upon prior payment of its fair value as determined by the judgment of a pertinent court. It should be noted that the Constitution includes not only private property, but also guarantees exclusive property rights over inventions and discoveries, as well as the products of scientific and artistic endeavor pursuant to the law.16
e. Social Guarantees
58. In the context of social guarantees, the Constitution refers to the freedom to work, which regulates the need to create sources of employment and to determine a regime to govern labor relations between employers and workers. The Constitution establishes the need to create standards or secondary laws aimed at setting forth labor conditions, such as the maximum work-day, rest and vacation days, minimum wages and salaries, forms of payment, benefits, and social security.
59. The right to strike is derived from the freedom to form and join trade unions; the existence of this right reflects the respect for this form of association. The Constitution recognizes the right of private-sector workers to strike, so long as it is exercised pursuant to the law and to solve conflicts that are strictly labor-related. Nonetheless, it declares unlawful any strike, work stoppage, interruption, encumbrance, or intentional slow-down that may affect the administration, public services, or services of public utility.17
60. Article 8(16) also guarantees the right to education, indicating that one of the principal obligations of the state is to provide basic education to all inhabitants of the national territory and to take the necessary measures to eliminate illiteracy. Primary education is compulsory. Both primary and secondary education are free. In addition, Article 8(16) establishes, among its objectives, the dissemination of science and culture, so as to help ensure that they reach the entire population.
61. Protection for the family is covered in Article 8(15), which provides that the state will provide the maximum possible protection for the family, recognizing marriage as the legal foundation of the family. In addition, maternity shall enjoy the protection of the government authorities and the family shall have the right to official assistance in case of need.
62. The Dominican state, according to the Constitution, should also stimulate the development of public credit in socially advantageous conditions, so that the Dominican family can acquire comfortable housing and live in dignified conditions. Part of this concern for the family is reflected in the adoption of laws that protect the members of the family. Recently, laws have been promulgated on family violence and violence against minors that aim to fill the existing void on these matters.
C. Mechanisms for protecting individual guarantees
63. Article 8(2)(g) of the Constitution establishes habeas corpus as the fundamental means of defense and protection of human rights in the Dominican Republic; habeas corpus procedures are spelled out in the Law on Habeas Corpus (Law No. 10, of November 23, 1978). This remedy seeks to correct any failure to abide by the provisions of Article 8(2), which establishes the procedural guarantees before the courts of justice to prevent any arbitrary detention.18
64. This remedy has been designed to make it possible for one who alleges he or she has been unlawfully detained or deprived of his or her liberty, and any other person, at any time, to present a writ of habeas corpus. Habeas corpus may also be initiated sua sponte when a judge learns that a person has been unlawfully detained in his or her jurisdiction.
65. The officer or person to whom a habeas corpus order has been delivered, pursuant to Article 8 of the Law on Habeas Corpus, shall present the detainee before the judge and under oath shall give a report that states: (a) whether he or she has in his or her custody the person on whose behalf the order has been issued; and (b) which authority or officer ordered him or her to receive the detainee, and pursuant to what order the detainee was taken prisoner. If he or she does not have the detainee under his or her custody, the officer or authority in question shall report: (a) why the detainee was released, or transferred to the custody of another official; (b) on what date the release or transfer occurred; and (c) to which official the detainee was delivered.
66. The judge or court before which the person deprived of liberty is brought pursuant to the issuance of a habeas corpus order shall hold the hearing, and in it shall hear from witnesses, examine documents, and consider the facts alleged and the causes for the detention.
67. If it is shown that in effect the person is deprived of his or her liberty unlawfully, the judge or court shall immediately order his or her release. An important point of the Law on Habeas Corpus is that no official may refuse to carry out the release order, under any pretext; it also states that if any official should oppose the order, he or she shall be punished pursuant to the criminal laws.
68. Article 20 of this law guarantees that the person imprisoned or deprived of his or her liberty, and who has been released pursuant to a habeas corpus order, may not be detained again for the same cause.19
D. Recent legislative advances in the Dominican Republic
a. Code of the Minor
69. In January 1997, the Congress of the Dominican Republic adopted the Code of the Minor, in an effort to guarantee the rights of minors, offering protection for children and adolescents. The promulgation of this law is aimed at safeguarding the physical and mental health of minors, and supporting the development of the personality in its spiritual, cultural, social, and moral dimensions. The Code was drafted based on the principles enshrined in the United Nations Convention on the Rights of the Child.
70. This law determines the duties of the state and creates institutions for the protection of children, all directed by the Directing Agency of the System for the Protection of Children.20
71. Title III of this law defines the acts considered infractions committed by minors, the treatment accorded to them, the procedures, and the correctional centers. This law also creates the Defensorías, or Offices of Ombudsman, for children, adolescents, and families. These Offices of the Ombudsman are part of the Public Ministry and represent the interests of minors before all authorities.
72. In Chapter X of this report, the Commission shall analyze the situation of minors in relation to the new Code.
b. Law on Family Violence
73. Another important stride in the legislation of the Dominican Republic is Law 24-97, Against Family Violence, promulgated on January 27, 1997. These provisions seek to combat all those violations committed in the family context, and which generally are not made known or are ignored.
74. This law gives a social dimension to the question of domestic and family violence, traditionally treated as intimate and private in order to prevent the intervention of society in acts of domestic violence.
75. To achieve its effective application, the law seeks the joint participation of all state and non-state institutions related to the administration of justice and the search for equality as between women and men.
76. In the context of the objective of eradicating family violence, special mention should be made of the creation of the Office for Women's Promotion, which is the state agency responsible for the coordination and implementation of public policies aimed at giving impetus to the integral development of women.21
E. International instruments for the protection of human rights signed and ratified by the Dominican Republic
a. Inter-American system
77. The Dominican Republic has ratified several instruments of the inter-American system for the protection of human rights, while it is merely a signatory of others. On April 19, 1978, the Dominican state ratified the American Convention on Human Rights, which entered into force on July 18, 1978. More recently, on February 19, 1999, it accepted the jurisdiction of the Inter-American Court of Human Rights.
78. On January 29, 1987, the Dominican state ratified the Inter-American Convention to Prevent and Punish Torture. In addition, on March 7, 1996, it ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, also known as the Convention of Belém do Pará.
79. Furthermore, there are some instruments of the inter-American system for the protection of human rights that the Dominican Republic has yet to ratify. They are as follows: (a) the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, also known as the Protocol of San Salvador, of 1988; (b) the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, of 1990; and (c) the Inter-American Convention on Forced Disappearance of Persons, of 1994.
80. The Commission has taken note of the observations of the Government of the Dominican Republic submitted September 10, 1999, regarding the Draft Report of the IACHR, by which it indicated that the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights and the Inter-American Convention on Forced Disappearance of Persons had been deposited in the National Congress, and are merely pending ratification. The Government indicated that it had begun the process for acceding to the Protocol to the American Convention on Human Rights to Abolish the Death Penalty.
b. Universal system
81. As regards human rights instruments adopted in the United Nations system, on January 4, 1978, the Dominican Republic ratified the International Covenant on Economic, Social and Cultural Rights, as well as the International Covenant on Civil and Political Rights and its Optional Protocol; and in 1979, the Convention on the Elimination of All Forms of Discrimination Against Women. On May 25, 1983, it acceded to the International Convention on the Elimination of All Forms of Racial Discrimination; in 1989 it ratified the Convention on the Rights of the Child.
82. In addition, the Government of the Dominican Republic has noted that it initiated the procedure to accede to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at abolishing the death penalty, on December 15, 1989.
F. The treatment accorded international treaties under Dominican law
83. According to the 1994 Constitution of the Dominican Republic, the treatment accorded international provisions under Dominican law is based on the Constitution as the primary and fundamental law that sets forth the basic principles by which the state is organized and governed; international treaties are on a par with the Constitution, followed by procedural laws and regulations.
84. In the Dominican Republic international treaties are regulated by Article 3(2), which provides as follows: "The Dominican Republic recognizes and applies the norms of general and inter-American International Law to the extent that its government authorities have adopted them."
85. International treaties that have been approved by the National Congress and duly promulgated and adopted are accorded precedence over procedural laws and have the same authority as the Constitution insofar as they affect rights enshrined therein, and the treatment accorded violations of such treaties should be the same as the treatment for violations of the Constitution.22
CONCLUSIONS AND RECOMMENDATIONS
86. The Commission values the efforts of the Dominican state in its support for legislative changes aimed at guaranteeing protection for the fundamental rights of its nationals as listed above.
87. Protecting human rights, however, requires the full application of the legal standards, ensuring their realization in practice. In the process of fully implementing such standards, the role of the judiciary and the police is fundamental, as is the existence of a civil society that can press claims for the full exercise of the rights and participate in their consolidation and expansion. Later chapters of this report will include observations and recommendations on these matters.
88. The Commission invites the Dominican state to ratify the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, and the Inter-American Convention on the Forced Disappearance of Persons. Mindful of the abolition of the death penalty in its Constitution, and the declaration made upon signing the American Convention on Human Rights, which reads: "The Dominican Republic ... aspires that the principle pertaining to the abolition of the death penalty shall become purely and simply that, with general application throughout the states of the American region...," the Commission also recommends ratification of the Protocol to the American Convention on Human Rights to Abolish the Death Penalty.
89. Finally, the Commission is pleased to note the recent decision of the Dominican state to accept the jurisdiction of the Inter-American Court of Human Rights pursuant to Article 62 of the American Convention, for the purpose of ensuring more adequate protection of human rights.
Notes________________
3 Observaciones Electorales en República Dominicana 1994-1996, Unit for the Promotion of Democracy, Organization of American States (OAS).
4 The judges of the Supreme Court of Justice shall be designated by the National Council for the Judiciary, which shall be presided over by the President of the Republic.... The other members shall be: (1) The President of the Senate and one Senator chosen by the Senate who belongs to a party other than the Party of the President of the Senate. (2) The Speaker of the Chamber of Deputies and one deputy chosen by the Chamber of Deputies who belongs to a party other than that of the Speaker of the Chamber of Deputies. (3) The chief justice of the Supreme Court of Justice. (4) One member of the Supreme Court of Justice chosen by it, who shall serve as Secretary. Title VI, Section II, Article 64, Paragraph I, Constitution of the Dominican Republic, 1994.
5 Article 70, Law on the Judicial Career Service.
6 Title VI On the Judicial Branch, Art. 68 "On the Courts of Appeals; Section IV, Art. 72 "On the Land Court"; Section V, Art. 73, "On the Courts of First Instance"; Section VI, Art. 76, "On the Justices of the Peace." Constitution of the Dominican Republic, 1994.
7 Title XII, General Provisions, Article 109 of the Constitution of the Dominican Republic, 1994.
8 Title II, Section I, "On Individual and Social Rights", Article 8 of the Constitution of the Dominican Republic, 1994. "It is recognized that the principal aim of the state is the effective protection of the rights of the human person and the maintenance of the means that make possible his or her enhancement in an order of individual liberty and social justice, compatible with public order, the general welfare, and the rights of all."
9 Title II, Section II, "On Duties", Article 9 of the Constitution of the Dominican Republic, 1994. "Mindful that the prerogatives recognized and guaranteed in the preceding article of this Constitution presuppose the existence of a correlate order of juridical and moral responsibility that is binding on the conduct of man in society...."
10 Title II, Section I, "On Individual and Social Rights," Article 8(5), of the Constitution of the Dominican Republic, 1994. "All persons are equal before the law; one cannot order more than what is just and useful for the community, nor prohibit more than that which is prejudicial to it."
11 Title III, Section II, "On "Citizenship," Article 13, Constitution of 1994. "The rights of citizens are: (1) To vote, pursuant to the law, to elect the officials referred to in Article 90 of the Constitution. (2) Being eligible to hold the same posts referred to in the previous paragraph."
12 Title II, Section II, "On Individual and Social Rights," Art. 8, paragraphs 3, 4, 6, 7, 8, 9, 10, 11, 12, Constitution of the Dominican Republic, 1994.
13 Title II, Section I, "On Individual and Social Rights," Article 8(1), Constitution of the Dominican Republic, 1994.
14 Id., Art. 8(2)(b),(c),(d), and (j).
15 Id., Article 8(2)(a),(e),(f),(g),(h), and (l).
18 Title II, Section 1, "On Individual and Social Rights," Article 8(2) of the Constitution of the Dominican Republic, 1994.
19 Law No. 10, of November 23, 1978.
20 According to Article II of the Code of the Minor, all persons under 18 years of age are considered minors. The Code specifies that minors are children from birth to 12 years of age, and adolescents from 13 through 17 years of age.
21 Even though the administration of President Leonel Fernández has fostered the protection of women, it should be noted that these laws are not being fully enforced. The Commission has received information indicating that there are certain doubts regarding their application by the officials in charge of implementing them, either because they are not informed of them, or due to lack of resources for their precise application. In Chapter X the Commission will analyze the situation of women in the Dominican Republic in light of the new law and the agencies entrusted with their protection.
22 Title IV, Section V, "On the Congress," Article 37(14). Title V, Section I, "On the Executive Branch," Article 55(6), Constitution of the Dominican Republic, 1994.
Case-law: Judgment of the Supreme Court of Justice of March 30, 1938. (Boletín Judicial 332). Judgment of the Supreme Court of Justice, of January 20, 1961. (Boletín Judicial 606).