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Amendments, Replacements and Constitutional Instability? The Case of the Dominican Republic

–Leiv Marsteintredet, Associate Professor in Latin American Area Studies, University of Oslo; Associate Professor in Comparative Politics, University of Bergen

In a recent blog post on I-CONnect,[1] Jillian Blake discusses the very disturbing constitutional and legal developments on the right to nationality in the Dominican Republic and argues that they were facilitated by “…the unstable nature of the Dominican constitutional system…”.

I think her impression, and the more general impression, of the highly unstable Dominican constitutional system comes from the impressive Comparative Constitutions Project (CCP) as well as a recent study by Zach Elkins, Tom Ginsburg and James Melton on constitutional endurance, which includes a case-study of the country.[2] The CCP counts no less than 33 Dominican constitutions since independence in 1844, making the 2010 Constitution number 34 (the most in the world).

Despite a record number of constitutions as counted by CCP, there is reason to question whether the Dominican Republic in fact is constitutionally unstable. Indeed, I argue in this blog post that the country is one of Latin America’s most constitutionally stable countries over the last fifty years. As I will show, the Dominican case invites us to reconsider the conceptualization of, and relationship between, amendments, replacements and constitutional instability, and reminds us that concepts constructed for large-N studies may not always be adequate to describe the realities in a single case.

Replacements, Amendments and Constitutional Instability: The Dominican Case

Elkins et al. (2009: 55-59) raise an important methodological question: What counts as an amendment and what is a replacement? The authors point out that the line between an amendment and replacement indeed is fuzzy, and call “…a change an amendment when the actors claim to follow the amending procedure of the existing constitution and a replacement when they undertake revision without claiming to follow such procedure”. (p. 55). Aware of the potential pitfalls of this definition, and of any other, the authors highlight on the same page that Trujillo’s (1930-1961) constitutional changes followed a pattern of only minor changes despite proclaiming a new constitution. They also show (p. 58) that Dominican constitutions have tended to be quite similar despite replacement.[3]

The problem is that the way the CCP defines amendment and replacement deletes the distinction between the two for the Dominican Republic, at least since the start of the Trujillo regime (1930),[4] and codes any constitutional change as a replacement.

This is not a criticism of the CCP. Any comparative coding rule may misplace one single case, and in the Dominican Republic, constitutions at least since the 1930s have not distinguished between amendment and replacement. During the Trujillo regime and after 1966, all constitutional changes have followed the only procedures for amending the constitution (called reforma constitucional in Dominican constitutions),[5] which according to the CCP definition would classify these constitutional changes as amendments. However, and this is where the confusion sets in, whenever a constitutional change of one article or more is made, a new constitution is proclaimed.[6] The resulting problem for a case-study (of the Dominican Republic) is that we cannot make a direct link between the number of constitutions and constitutional instability.

Negretto, on the other hand, observes that “…the important distinction between these two mechanisms is that while constitutional replacements imply the disruption of constitutional legality, amendments preserve the continuity of the existing constitution.”[7] This definition clearly is more directly linked to the concept of constitutional instability since it links replacements to the “disruption of constitutional legality”.

From Negretto’s data, the Dominican Republic does not demonstrate constitutional instability when compared to other Latin American countries. According to Negretto (p. 21), the Dominican Republic has had 13 constitutions since independence, somewhat above the Latin American mean of 10.7. However, since 1900, the Dominican Republic has only had 4 constitutions (somewhat lower than the Latin American mean of 5.7) (1887, 1924, 1963 and 1966). There was no new constitution between 1978 and 2008 (compared to the regional mean of 0.83), and only 2 amendments in the same period (compared to a mean of 7.7 in Latin America).[8]

In fact, the Dominican Republic has gone from being one of the more constitutionally unstable countries in the 19th century, to one of the more constitutionally stable ones in the region over the last half century.

Constitutional Stability, Not Instability, was the Perceived Problem.

In fact, until the extensive 2010 constitutional reform, Dominican political elites from the major parties PRD (Partido Revolucionario Dominicano) and the PLD (Partido de la Liberación Dominicana) had argued since the 1970s that a new constitution was necessary in order to further democratize and improve the country’s institutions.

The 1966 Constitution was imposed by President Balaguer and his Partido Reformista, which controlled the required 2/3 of representatives in Congress at the time, and then oversaw 12 years of electoral authoritarian rule. Therefore, it lacked legitimacy from its origin among the then opposition parties PRD and PLD. The regime was truly democratized only when the PRD won the presidency in 1978. In power the PRD wanted to rewrite the constitution and democratize it, through among other things, the weakening of presidential power and curbing presidential reelection.

The problem, however, was that Balaguer’s party was strong enough to hold veto power against any constitutional changes and protected its own constitution jealously. The constitutional deadlock was such that when Vice President Manuel Fernández Marmol (PRD) died in 1983, it was impossible for the parties to agree upon a minor constitutional change necessary to replace him, and President Jorge Blanco ruled three years without a vice president.[9]

After Balaguer’s return as president in the period 1986-1996, new elites led by President Fernández (PLD, 1996-2000, 2004-2012) and President Mejía (PRD, 2000-2004) argued and presented plans for the need of a comprehensive constitutional reform adapting the document to the more democratic times. The period preceding the 2010 overhaul of the Dominican constitution was therefore considered to be a constitutional failure because of constitutional stability rather than instability, a fact that lends validity to Negretto’s coding of amendments vs. replacements.

Replacements, Amendments and Instability

Despite being a complete overhaul, the 2010 Constitution followed the same procedures as the minor reforms in 1994 and 2002, and would potentially be coded as an amendment by Negretto and replacement by Elkins, Ginsburg and Melton. Regardless of whether they were replacements or amendments, between 1966 and 2010, the Constitution has been changed only twice: five articles in 1994 (in addition to two transitory articles) and one article in 2002.[10]

Whether we code these changes as amendments or replacements matters, however, for the evaluation of the degree to which the country demonstrates constitutional instability. Three Constitutions between 1966 and 2010 gives a very different impression about constitutional stability than one constitution with two minor (albeit important) amendments.

In my view, Negretto’s coding describes better the realities of the Dominican case, and therefore the 2010 complete constitutional overhaul that changed the citizenship regime and many of the original articles, in addition to adding 175 articles, was not caused or facilitated by constitutional instability. The impression of Dominican constitutional instability has therefore been caused by an operationalization of constitutional replacement rather than realities, and this advises us to be careful when using concepts adapted for large-N studies to describe the realities of a single case.

Suggested Citation: Leiv Marsteintredet, Amendments, Replacements and Constitutional Instability? The Case of the Dominican Republic, Int’l J. Const. L. Blog, Oct. 3, 2014, available at: http://www.iconnectblog.com/2014/10/amendments-replacements-and-constitutional-instability-the-case-of-the-dominican-republic

[1] Jillian Blake, Constitutional Stability Through Citizenship in the Dominican Republic, Int’l J. Const. L. Blog, Sept. 5, 2014, available at: http://www.iconnectblog.com/2014/09/constitutional-stability-through-citizenship-in-the-dominican-republic.

[2] Elkins, Zachary, Tom Ginsburg, and James Melton. 2009. The Endurance of National Constitutions. Cambridge: Cambridge University Press.

[3] I argue the same in my comparison of the 1963, 1966 and 2010 constitution when it comes to presidential powers, see Marsteintredet, Leiv. 2012. “Change and Continuity in Dominican Constitutions: The 2010 Reform Compared.” In New Constitutionalism in Latin America: Promises and Practices, edited by Detlef Nolte and Almut Schilling-Vacaflor, 223-242. Farnham and Burlington: Ashgate.

[4] I am less well versed in 19th century Dominican constitutionalism, so I leave that part of the history out.

[5] Exceptions are the 1963 and 1966 constitutions, which were written in a constitutional vacuum created by the death of President Trujillo (1961) and its chaotic aftermath, and by the coup against President Bosch (1963) and the US intervention in 1965, respectively.

[6] Fitzgibbon writes: “It is difficult to catalogue the distinct constitutions of the Dominican Republic because of the practice of promulgating the document as a new constitution each time any modifications are made.” Fitzgibbon, Russell H. 1948. The Constitutions of the Americas. Chicago: The University of Chicago Press: 298.

[7] Negretto, Gabriel. 2013. Making Constitutions. Presidents, Parties, and Institutional Choice in Latin America. Cambridge: Cambridge University Press. Quote from p. 19.

[8] In fact only Argentina, Paraguay and Guatemala had fewer amendments in the same period, but all of these countries enjoyed one constitutional replacement between 1978 and 2008. Therefore it is possible to argue that the Dominican Republic in this period was the most constitutionally stable country in Latin America.

[9] The 1966 Constitution did not include any provisions of how to replace a vice president.

[10] In 1994 electoral as well as judicial reform became possible only after a huge electoral fraud and scandal that made international actors press for the early ouster of President Balaguer accompanied by constitutional reforms. In 2002 President Mejía’s ambitious plan for a constitutional overhaul ended in the reform of only one article to open up for one immediate reelection of the president (immediate reelection was banned in 1994).

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Published on October 3, 2014
Author:          Filed under: Analysis
 

2 Responses

  1. Very interesting post. In my coding, I consider a constitution to be new when, regardless of the procedure followed for its adoption, its drafters claimed it was new, usually by including at the end of the text the abrogation of the previous constitution and all its amendments. In doubtful cases, I have consulted country sources and if sources differed, I coded as new a constitution when it was enacted by an elected constituent assembly. Constitutions that were reinstated after being abrogated are also counted as new constitutions. According to this criterion, the Dominican Republic is indeed a relative stable country (for Latin American standards) since it had only three constitutions in the XX century: 1924, 1963, and 1966 (See my “Replacing and Amending Constitutions. The Logic of Constitutional Change in Latin America”, Law & Society Review, 46, 4 (2012) as well as Making Constitutions. Presidents, Parties, and Institutional Choice in Latin America, Cambridge, 2013).

    My coding differs from that of Elkins, Ginsburg, and Melton because they consider a constitution to be new when revisions are made without claiming to follow the procedure established in the preexisting constitution (see Elkins, Ginsburg, and Melton 2009 : 55). I find some problems with this concept and its correlated coding. In the first place, whether political actors follow the existing procedure is not always explicit and is sometimes a controversial matter. More importantly, several constitutions have provisions that allow for its general or total reform, meaning that a new constitution can be enacted by the ordinary legislature following a procedure established in the precedent constitution. This is the case, for instance, of Switzerland in Europe or Uruguay in Latin America. In addition, a number of countries in Latin America (for instance, Bolivia, Ecuador, Nicaragua, Panamá, or Venezuela) have recently incorporated to their constitutions a distinction between amendments and replacements, so that the former are approved by the ordinary legislature and the latter by a constituent assembly. In all these cases we could have a new constitution, even if passed under the procedures established by the old constitution.

    In the particular case of the Dominican Republic, its constitutions have traditionally established a two-step amendment procedure: first, the necessity of reform is declared by congress, which convenes the meeting of a joint session of congress to deliberate on the specific articles subject to revision; second, the joint session of congress passes the reforms by qualified majority. The vast majority of revisions in the Dominican Republic during the XX century have been passed using this procedure. Following the definition and coding of Elkins, Ginsburg, and Melton any revision passed according this procedure should be counted as an amendment, not as a new constitution.

    Since it wasn’t clear whether revisions were amendments or replacements, I consulted local sources for my coding of the number of constitutions and its respective amendments in the Dominican Republic. In particular, I followed the expert Flavio Dario Espinal. 2001. Constitucionalismo y Procesos Políticos en la Republica Dominicana. Santo Domingo: Ediciones PUCMM. According to Espinal, only the 1924, 1963, and 1996 constitutions were new. They have also been among the few constitutions passed in this country by a constituent assembly or constituent congress.

  2. There is a mistake at the end of my comment. I meant the 1924, 1963, and 1966 (not 1996) constitutions.

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