by Diony Monestime, edited by S.M.
A principal tenet of international law is that there shall be no ex post facto law, also known as the principle of non-retroactivity of the law. Since the world has become a community of nations through the formation of the United Nations, all member states, including the Dominican Republic and Haiti, have incorporated this principle into their own Constitutions as a pledge that there shall abide by this principle. Unfortunately Dominican Republic decided to go against that principle and its own constitution with the 168/13 ruling of the Dominican Constitutional Tribunal that strips Black Dominicans, mainly of Haitian descent, of their Dominican citizenship.
To understand how the principle works, suppose you bought a bag of cocaine at the time when it was not contraband. The government, through any of its three branches, cannot pass any law, and any decree, or interpret a future law to punish you for purchasing that bag of cocaine if no laws specifically criminalized the act at the time. Furthermore, if you purchased a bag of cocaine at a time the law criminalized the purchase you should be punished accordingly. Therefore a new law cannot be passed to retroactively make your past purchase legal, although under the principle with the new law, you must be released since any advantage conferred by the new law must be given to you. This is the only exception to the principle. In criminal matters, it works only in the advantage of the accused. It does not legalize your otherwise crime, it simply exonerates you from the punishment thereof.
A constitution being the root from which all laws spring, likewise, cannot be interpreted or applied to retroactively unconstitutionalize what was once constitutional. In the same vein, a new constitution cannot be promulgated to retroactively derogate any rights that the constitution it replaces conferred. This is exactly what the Constitutional Court of the Dominican Republic did in its September 2013 decision stripping Haitian descendants of rights that were conferred them in 37 previous constitutions. In 2010 the Dominican Republic promulgated a new constitution. The Constitutional Court interpreted that Constitution to strip Haitian descendants of their Dominican citizenship, going as far back as 1929 arguing that their ancestors were “in transit” when they came to work and that they were in the country “illegally”. Therefore, today's Dominicans of Haitian ancestry should not benefit from the "illegal" presence of their ancestors. This argument fails for several reasons one of which is that “in transit” does not mean “illegal” because back in 1929 the Dominican Republic did not consider “in transit Haitian workers” as “illegal immigrants”. Secondly, this argument violates the principle of non-retroactivity of the law because the Dominican Republic waited three generations to say so ex post facto after developing their economy through the quasi-slave labor of “in transit Haitian workers”. Ironically, however, under this same argument, all the judges on the Constitutional Court bench are likewise not Dominicans as their ancestors were also “in transit” who came to Hispaniola for one reason or another. The question, therefore, remains, what other reason does the Court have to flagrantly violate its own constitution other than racism and hatred towards Haitians?
This examination of the September ruling and its implications makes it even more glaring that the Haitian people is nothing like the Dominican People. We may share the same land, breath the same air, but very early in Haiti’s history, we as a people recognized that we could not be a homogeneous nation… A nation where everyone looks alike: has the same height, same skin color, same hair texture, same grandparents, same ancestry. We understood heterogeneity was important to our cultural growth as a nation. Today, Haiti may not look like it, but it is as much a melting pot as anywhere else. We love it when foreigners of all colors and creeds come to our country to live among us and with us, bear and raise their children among ours. In this spirit the H in Haiti stands for hospitality. In that, we may not be wealthy, but we, Haitians, are a hospitable and tolerant people.
We sought out and welcomed blacks from everywhere, from the Dominican Republic and America in particular, to come here and taste freedom. We reached out beyond our borders and helped liberate Central American countries such as Venezuela from Spain, and did so for the Dominican Republic wholeheartedly with our own army and blood. It is further in the same spirit that we welcomed stateless Jews and Arabs who needed a place to call home in the late 19th century. We sheltered them as if they were children of Dessalines. They became our country's citizens, brothers and sisters to all of Haiti's natives. And we did so without raising barriers to their economic development. We accepted them without preconditions and today they become the most prosperous of us, more prosperous that they could ever dream of becoming anywhere else. We fought hard for this land of ours, only to share it with everybody, even those who did not look like us, and we did so with as much love as we did with those who looked like us.
If today, the Dominicans do not wish for a diverse nation, let them. If they refuse to share their land with the very people who fought for and gave it to them, let them. If today, they don't want people of Haitian ancestry among them, it is fine. Our doors still remain open today for anyone fleeing oppression and persecution; we will welcome all of them back home at anytime. We opened our doors to others who were not of our own before, we leave them open for those with whom we share blood, likeness and history today.
Lakay pa janm twò lwen, chimen lakay pa janm twò long, yo te mèt voye yo bay nou. Se pitit Ayiti yo ye tou, nap kreye espas kite pou yo*.
Our brothers and sisters in the Dominican Republic will not be stateless. Our constitutions have recognized them as citizens of Haiti since the dawn of our nation. You will not be alone in this struggle. Start packing your belongings because you will be coming home, hopefully sooner rather than later.
Home is never too far away, the road home is never too long, and they can send them to us. They are also children of Haiti; we’ll make room and leave a place for them.
**Take courage! or be strong!