“The Future of Constitutional Reform”, an article by Dr. Leonel Fernández

June 15, 2015

Initially it was understood that the Constitution of 2010 was conceived as a rigid constitution. This means that as our Magna Carta, and as such occupying a superior position in the legal hierarchy, it should be difficult to reform or amend.

From a technical-legal perspective, this is what differentiates it from a flexible constitution, which may be changed or abrogated by the legislature through the usual procedure established for the passing of

Under flexible constitutional systems, as in the cases, for example, of the United Kingdom and New Zealand, the Constitution and other legislation, as sources of law, are located at the same level within the juridical order.

This is not the case with a rigid constitution, the model adopted by most countries, which in declaring its supremacy over other norms and legal rulings, requires, for its amendment or abrogation, a special procedure, distinct
from that of ordinary legislation, with the support of a designated majority. In some cases this even includes the holding of a plebiscite or referendum for approval.

This is what we believed we had in the Dominican Republic. We enjoyed the certainty that under Title XIV, referring to constitutional reforms, specifically its two chapters relating to general norms and the National Review Assembly, as well as the six articles extending from 267 to 272, our Magna Carta was a
type of rigid constitutional code, subject to a special procedure that made it difficult to reform or amend.

This, however, has not turned out to be so. In the debates that have arisen among distinguished members of our legal community in relation to the recent constitutional reform, various analysis and diverse explanations were offered on the amendment procedure for our constitutional text, thereby generating perplexity and confusion.

This experience
obligates us, for future reforms, to establish more precise language and a better interrelation of the texts to permit, in place of analogical reasoning, a literal and direct interpretation of our constitution to make it less prone to ambiguity and misunderstanding.

Ordinary and organic laws
Although the Dominican Constitution is rigid, this does not mean it cannot be amended. Indeed, it can. It simply means that the process to be followed
to do so, as mentioned, is a special procedure that is more complex and involved than the one normally used to approve or amend an ordinary law.

This is highlighted in Article 267, which stipulates: “Reform of the Constitution may only be carried out in the manner indicated herein, nor may it ever be suspended or annulled by any power or authority, or by popular acclaim.”

How this process is to be initiated is laid out in Article
269, which indicates that our constitution “may be reformed if the reform proposal is presented in the National Congress with the support of a third of the members of either chamber, or is submitted by the Executive Power.”

From the first instant, our Constitution highlights that the amendment procedure has a special character, as it requires that it be neither a single deputy nor senator who introduces the reform proposal, that is, the bill, but a
third, or 33 percent of the members of either chamber.

But what caused the controversy was Article 270, which confirms that “the need for constitutional reform shall be declared by a convocatory law. This law, which may not be overseen by the Executive Power, shall order the meeting of the National Review Assembly, shall specify the object of the reform, and shall indicate the article or articles of the Constitution the reform shall deal

This convocatory law that declares the need for a constitutional reform – is it an organic or ordinary law?

As Article 270 of the Constitution does not express this directly, advocates of direct (or exegetical) interpretation of the constitutional text conclude that this is not an organic but rather an ordinary law, to be approved by a simple majority.

But instead of limiting ourselves exclusively to the stipulations
of Article 270, an analogical interpretation could be made, combining these dispositions with those of Article 112, which includes among cases that require organic law approval those that have to do with “the regulation of constitutional procedures, matters referenced by the Constitution, and others of like nature.”

Should not the law declaring the need for constitutional reform as specified in Article 270 fit into this category?

Furthermore, if we do an analysis of comparative constitutionalism, it’s clear that in most countries this is the case. In Spain a supermajority of three-fifths of both chambers is required to approve a law reforming the Constitution. Likewise in France, with three-fifths of the members of Parliament; and Germany, with the approval of two-thirds.

In Latin America, we could cite the cases of Chile, which requires approval from three-fifths of senators
and deputies; or Brazil, also three-fifths. In Bolivia it is two-thirds, and in Guatemala also two-thirds.

In short, as can be seen, the prevailing tendency at the international level is for the law calling for the constitutional reform, as part of a special procedure, to be an organic law, requiring a designated majority for its approval.

But here in the Dominican Republic, despite the inescapable evidence, a group of prominent and prestigious jurists
have argued the contrary.

The referendum for approval
The same occurred with the need for the referendum for approval, to follow the approval of the constitutional reform by the National Review Assembly. In this case, the argument has been that the recognition of presidential reelection does not constitute a basic right.

But Article 272 not only establishes basic rights as the sole category for the holding of a referendum
to confer popular legitimacy to the constitutional reform.

It also includes the territorial and municipal codes; the citizenship, nationality, and immigration regime; the currency regime; and the reform procedures established in the Constitution.

In other words, the Constitution outlines five different categories in which the reform of the Magna Carta done by the National Review Assembly requires the Central Electoral Committee, within 60 days of its
proclamation, to call a referendum, which is simply an election, in which more than half of 30 percent of the voters who appear in the electoral registry vote to approve the constitutional reform.

However, as some have argued, since explicit reference is not made to the Executive Power in Title IV of the Constitution with regard to the need for a referendum for approval, this is not a constitutional obligation.

Nonetheless, if the connection is made
with Article 22 on the citizenship regime, it’s clear that the Constitution holds that “The rights of all citizens include electing and being eligible for the offices established in the present Constitution….”

Of course, among those offices established in the Constitution is that of President of the Republic. Therefore, once again by analogical interpretation, the conclusion is reached that fulfillment of this requirement is an obligation for
the legitimate completion of the constitutional reform process.

But in any case, in this matter on which a consensus should have existed among the members of our legal community, none has emerged. The reason seems to lie in the need for more directness of expression in the constitutional text, such that it gives no place to perverse or partial interpretations.

All this leads us to the fact that if our Magna Carta is of a rigid nature, as indeed it is, a
future constitutional reform should safeguard it against such fragility or vulnerability to any sort of modification.

A reform should be made that is expressed in such clear, precise, and direct language that no doubts can arise over whether in the expressly stipulated cases a designated majority and referendum are required to approve any amendment.

We will thereby better protect our Constitution and our democracy.