Local November 4, 2023 | 11:00 am

The Dominican Constitution and its origins

Santo Domingo—The Constitution is the fundamental political and legal order of a nation. It establishes the organs of government of the State and sets its powers and limits. Another conception refers to the Constitution as the act of a state or the first fundamental law that confers legal personality on the State itself and the public authorities.
There are various names by which specialists refer to the Constitution, such as the Magna Carta, Fundamental Pact, and Substantive Charter. It is considered Fundamental Law because it establishes the general principles of the State and because the entire legal system of a country derives from this Supreme Law: laws, regulations, ordinances, regulations, decrees, etc.

Once the Constitution has been drafted and approved, it must be promulgated as law by the National Congress or Legislative Power. The Constitution, according to Ferdinand Lasalle, is not just any law but rather the Law of Laws, the essence and foundation of all ordinary or general rules of a nation, known as adjective laws. In a state of law, nothing is legal if it violates the Constitution.

From ancient times, in Greece and Rome, there is evidence of the use of constitutions as codes of rules drawn up to control the exercise of power by persons elected by the majority of the people to run the government. Hence, since the emergence of the State, it has been governed by a set of legal rules called constitutions.

However, the concept of a constitution, as it is known today, dates back to medieval times. The first known constitutional rule is that of the English people, for it was in England, around the year 1215, when, having overcome some conflicts between the nobility and King John (who was also known as “John without land”), certain rights of the sovereignty were recognized by the Magna Carta, which was not a constitution in the strict sense of the term, but did represent the beginning of regulations, written or not, that limited both the rights of the monarch and those of the members of the nobility.

Constitutions can be customary, i.e., unwritten or uncodified, under which rulers and ruled are governed by rules and customs accepted by the generality of the people. There is also the form of written constitutions, which has prevailed in modern constitutional states since the late 18th century.

Currently, in the United Kingdom or England, there is no written constitution, even though the normative code that governs that nation is primarily based on various written documents, such as the Magna Carta, which dates from the 13th century, and the Bill of Rights from 1689.

In the case of the Dominican Republic, we know that, since its birth as a State, it has had a written constitution according to the Western liberal and democratic model.

In the constitutional system, two constitutions are distinguished: rigid and flexible. The Constitution is strict when it can only be modified or reformed by a Constituent Assembly called or explicitly empowered.

On the other hand, when it can be modified or reformed by the ordinary legislative body, that is, by an assembly established to produce common legislation, the Constitution is said to be of a flexible type.

The Dominican constitution is rigid; However, there are jurists in favor of the criterion according to which, due to the high number of reforms it has received, it has also been of a flexible type on occasion.

On February 27, 1844, the Dominican people proclaimed their political independence and created a State under the name of the Dominican Republic. During the first months of its political existence, the young Dominican State had a provisional constitution, which was the Manifesto of January 16, 1844.

However, between July and November, a Constituent Assembly was chosen with the mandate to draft the first Dominican Constitution. At that time, the notion of a constitution was not unknown among Dominicans, since at the beginning of the 19th century, the Constitution of Toussaint governed them after he unified the Spanish part of the island of Santo Domingo with French Santo Domingo in 1801.

Later, from 1812, during the period known in Dominican history as “La España Boba,” the Constitution of Cadiz was in force in Santo Domingo. In 1821, Dr. José Núñez de Cáceres separated Santo Domingo from Spain. They created the Independent State of Spanish Haiti, protected by a Constitutive Act, a kind of Fundamental Law but of brief existence.

Shortly after, following the expedition of Jean Pierre Boyer in 1822, which gave rise to the Haitian Domination (1822-1844), Dominicans were governed under the legal precepts of the Haitian Constitution of 1816, which was later revised in the Constituent Assembly of 1843, in which several Dominican deputies participated.

Once the Constituent Assembly was convened, the decree stipulated that the constituents would meet in the Villa de San Cristóbal, far from the central seat of government, so that they would have all the necessary freedom of action and opinion, while meeting away from the “pernicious influence of party spirit.”

The Constituent Congress comprised 32 deputies: four for Santo Domingo, three for Santiago, and another three for El Seybo; two for Azua and two for La Vega; and one for each of the remaining commonwealths. The poet, writer, thinker, and later priest Manuel María Valencia, one of the most cultured Dominicans of the time, was elected to preside over the Constituent Assembly.

The Constituent Assembly was installed on September 24, 1844, and a special commission, made up of Vicente Mancebo, Buenaventura Báez, Manuel María Valencia, Juan de Aponte, and Andrés Rosón, was designated to draft the historic text.

To draft the first Dominican constitution of 1844, the constituents had as their primary sources the Constitution of Philadelphia of 1787, Cadiz of 1812, and the French Constitutions.

However, the direct antecedent of our Fundamental Pact is the Manifestation of January 16, 1844. The French revolutionary ideas also influenced the Constitution in the famous Declaration of the Rights of Man and the Citizen of 1789.

The legislators spent more than a month and a half deliberating on the new Draft Constitution, which was finally sanctioned, promulgated, and signed on November 6, 1844. It was an almost perfect legal pact, wisely conceived in the light of American, French, and Spanish liberal ideas in different constitutions.

In its first article, it was stated that Dominicans constituted a free, independent, and sovereign nation; in addition, the democratic system of government was enshrined, which, among other characteristics, was to be civil, elective, alternative, and representative, principles that are still in force in the Dominican Constitution reformed in 2015.

Although the Dominican Constitution, since it entered into force in 1844, has been reformed 39 times, its main postulates have remained unchanged, such as the equality of civil and political rights of the citizen, the abolition of slavery, the protection of the Catholic religion, freedom of worship and expression, as well as the affirmation of Dominican nationality.

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luis aquino
November 7, 2023 9:59 am

One interesting thing about dominican constituion is that DR never had a prohibition on gay relationships. Sodomy has never been a crime in DR since 1795.