Constitutional Reforms

Constitutional Reforms

Over time and beginning with its first constitution of November 6, 1844, our country has undergone 37 constitutional reforms: the most recent took effect on July 25, 2002. In the majority of cases, events have determined the reforms: political crises, governmental transitions, plans of an authoritarian power, etcetera.

Generally, these reforms were not a true fracture in the engineering and soul of the 1844 text. The many sources that inspired the document demonstrate the desire and aspiration of the first writers of our constitutions to take from the period’s most important currents of political and constitutional thought.
The constitutional source of the reform can be found in Articles 35, 116, 117, 118, 119 and 120 of the Constitution.

Reform initiative

Article 116 states that a reform proposal can only be presented to the National Congress by 1/3 of its members from one chamber or another or the Executive Power. The initiative for a reform or revision law, when it is exercised by the legislators, supposes the support of at least 11 senators or 50 representatives, depending on the House where the initiative began. This is the only case of collective, not individual, legislative initiative foreseen in our Constitution, with the exception of the principle established in Article 38 that confers the collective initiative to each senator and each representative on an individual and personal level.

When the Executive Power exercises its ability to reform, it is not subjected to any conditions of form, only that it should be in keeping with the demands and processes of a draft of a normal law. This does not prevent the reform Project from the possibility of resulting from a consultation with civil society or the work of jurors especially designated for this work.

Constitutional reform law

The need for reform is declared by law. The National Assembly arranges the meeting, determining the object of the reform and indicating the articles of the Constitution to be discussed. To approve this law, the same process is used as for ordinary laws, which signifies that a majority is not required, unless a declaration of urgency is made, or rather the draft reform should be approved by an absolute majority of votes in each chamber; and if the issue has been previously declared urgent, 2/3 of the votes in each chamber are required for its second discussion.

The law that states the need for reform can be declared unconstitutional if the constitutional processes have not been respected. In this vein, our Supreme Court of Justice, in a sentence announced on January 3, 2002, established the following: “the aforementioned law that declared the need for the reform is a juridical norm of an adjective character, susceptible to attack by a direct action of unconstitutionality, which defers to the rest of the laws decided by the National Congress, in which it should be proposed with the support of a third of the members of one and another House, or submitted by the Executive Power, and which is not observed in this proposal.”

Equally, it can be inferred that neither could the reform law include article 119 in its articles to be reformed. The Supreme Count, in its September 1, 1995, No. 1 decision, indicated “that the only reform of the Constitution which said law could not reform is that which refers to the form of government…”

Character of reform law

As the respected Profesor Manuel Amiama tells us, “The law that proposes a constitutional reform has a sui generis character in various senses”. Our great teacher of public law states this for the following reasons:

1. The law does not constitute a definitive decision on the reform, but a proposal.
   
2. Said law cannot be observed by the Executive Power, which would confer an exceptional attribute upon it, as the Executive Power can observe all other laws. In this case, an important prerogative is established in favor of the National Congress that places it above the other powers of the State
   
3. The law, however, has a decisive aspect, as it allows for the meeting of the National Assembly to resolve the constitutional reform.
   

Structure of the reforming body

The constitutional reform can be effected by:

1. A special body, independent of ordinary legislative bodies (National Congress), chosen especially to effect it: the Conventions in the United States, the Revision Assembly, the Constituting Assembly and the Constitutional Referendum.
   
2. By the ordinary legislative body, as in the case of China, Russia and France, among others.
   
3. By a body more or less derived from the ordinary legislative body (National Congress); in the Dominican case, currently the National Assembly, system established in the 1959 reform and reiterated in the 1966, 1994 and 2002 reforms. The National Assembly is not an ordinary constitutional body, but is derived from the National Congress. That is, it is composed of the same legislators, but under other dispositions and constitutional rules. So, Article 27 of the current Constitution establishes “The houses will meet in the National Assembly in the cases indicated by the Constitution, with more than half of the members from each present. The decisions will be made by absolute majority of votes”. Also, Article 35 should be taken into consideration regarding the directive body of the national assembly.

It should be highlighted that of the 37 constitutional reforms recorded in the country, 20 have been effected by popularly elected representatives, the last in 1963. In our opinion, a mixed reform system should be adopted, through which the partial or limited reform of the Constitution is conferred upon the National Assembly, and in the case of general or total reform, the same would correspond to a constitutional assembly, in the logic of the Dominican constitutional tradition.

Powers of the reforming body

The National Assembly has a double juridical limitation on reforming what has already been established in the current Constitution:

1. No reform can change the form of government, which will always be civil, republican, democratic and representative (Art. 119 of the Constitution).
   
2. No article that has not been included in the law can be declared in need of reform (Article 117 of the Constitution).
   

Regarding these limitations, we should have the following considerations:

• 
  

  Certainly, the Dominican constitutionalist wanted to introduce, in Article 119, the so-called immutable or petrified clause. However, I share the criticism expressed by the teacher Georges Burdeau, referring to a similar clause in the French constitution, introduced in Article 2 on the constitutional law of August 14, 1884: “Its juridical value is null, as constitutional power of one day does not have any right to limit the constitutional power of the future”. I suppose that Professor Burdeau inspired this reflection in the Declaration of rights of 1793, in which he affirms: “A people always have the right to revise, reform and change their constitution. A generation cannot submit future generations to its laws.” But we also have been inspired by Thomas Jefferson, when, upon limiting the value of constitutional recommendations to general terms, stated “that the contemporaries did not have the right nor the possibility of binding posterity with the petrifaction of their supreme regulations.”

  
  
• 
  

  On the contrary, to our Supreme Court of Justice, which considers the only limit that the National Assembly has is constituted by Article 119, we are of the opinion that Article 117 limits the power of revision of the National Assembly upon establishing that “this law, will arrange the meeting of the National Assembly, will determine the object of the reform and will indicate those articles of the Constitution to be discussed.”. This latter statement is not enunciative, and comes from a desire to highlight the principle of juridical certainty, as its objective is to only reform those subjects that have previously be submitted to the consideration and scrutiny of legislators.

Knowledge of a reform Project

The National Assembly will meet within 15 days following the publication of the law that declares the need for reform. In the absence of constitutional procedures for recognizing the reform, the National Assembly can create an ad-hoc or special committee to supply the plenary with a report and it can adopt the internal rules of procedure of one of the chambers for its work.

Quorum for the deliberation of the National Assembly will be composed of more than half of the members of each Chamber. Minimum quorum: 17 Senators and 76 Representatives. The decisions will be made by the two-thirds majority of the votes, irrespective of Chamber origin. In the case of full attendance of the vote, the 2/3 majority would be the following: 32+150 = 182 x 2/3 = 121 legislators. After voting and announcing the results, the Constitution will be published with the reformed articles integrated therein.

Constitutional reforms of the Republic in the 20th and 21st centuries

1. Santo Domingo, September 9, 1907.
   
2. Santiago de los Caballeros, February 22, 1908.
   
3. Santo Domingo, June 13, 1924.
   
4. Santo Domingo, June 15, 1927.
   
5. Santo Domingo, January 9, 1929.
   
6. Santo Domingo, June 20, 1929.
   
7. Santo Domingo, June 9, 1934.
   
8. Santo Domingo, January 10, 1942.
   
9. Santo Domingo, January 10, 1947.
   
10. San Cristóbal, December 1, 1955.
    
11. San Cristóbal, November 7, 1959.
    
12. Santo Domingo, June 28, 1960.
    
13. Santo Domingo, December 2, 1960.
    
14. Santo Domingo, December 29, 1961.
    
15. Santo Domingo, September 16, 1962.
    
16. Santo Domingo, April 29, 1963.
    
17. Santo Domingo, September 3, 1965 (Institutional Act).
    
18. Santo Domingo, November 28, 1966.
    
19. Santo Domingo, August 14, 1994.
    
20. Santo Domingo, July 25, 2002.

Excerpt of a text of Dr. Milton Ray Guevara