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UNCLAS SANTO DOMINGO 000206 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV KJUS PHUM KCOR DR
SUBJECT: President Fernandez and Opposition Leader Vargas on the New 
DR Constitution 
 
REF: A) 08 SDO 1608, B) SDO 9, C) SDO 31, D) 09 SDO 1162, E) 09 SDO 
765, F) SDO 566 
 
SUMMARY 
 
 
 
¶1.   The Dominican Republic formally promulgated a new 
Constitution, composed of 277 Articles and 19 Transitional 
Articles, on 1/26/10.  President Leonel Fernandez, after praising 
his mentor, former President Juan Bosch, Bosch's Constitution of 
1963 and the 1965 "April Revolution" that sought its restoration 
(and saluting that revolution's resistance to the subsequent U.S. 
military intervention),  hailed the new Constitution as an example 
of "the current of constitutional modernism" in keeping with 
post-WWII European counterparts.  Fernandez opined that the new 
Constitution reduces executive powers, creates important mechanisms 
for the exercise of direct democracy, fortifies individual and 
social rights, and strengthens the judiciary, principally through 
the establishment of a Constitutional Tribunal.  Opposition 
Revolutionary Democratic Party (PRD) leader Miguel Vargas Maldonado 
lamented the fact that Fernandez had opted for a Revisionary 
Assembly (made up of both houses of Congress) rather than an 
independent Constituent Assembly  to draft the new Constitution, 
stressed the importance of the document's prohibition of direct 
presidential re-election, which he hoped would minimize the use of 
State resources in campaigns, and challenged the President (and his 
Dominican Liberation Party (PLD) ) to fulfill his prior pledge and 
join with the PRD in passing a Political Parties Law in advance of 
the upcoming May 16 congressional/municipal elections.  Embassy has 
provided an assessment of how the new Constitution affects the 
judicial system, and will be providing similar analyses with 
respect to the other branches of government, civil liberties, and 
human rights.  END SUMMARY. 
 
 
 
PRESIDENT FERNANDEZ 
 
 
 
¶2.  Fernandez began by noting that 1/26, the birthday of the 
"Father of the Nation," Juan Pablo Duarte, was the appropriate day 
for the new Constitution's promulgation since, even before the DR's 
independence, Duarte conceived of a constitution that would protect 
against "arbitrariness, abuse [and] despotism in the exercise of 
power."  However, Fernandez noted, the country's 37 previous 
constitutions generally furthered the political interests of those 
ruling the country at the time.  He explained, "The reason for so 
many constitutional reforms was a lack [...] of political 
stability, which itself was the fruit of weaknesses in our 
democracy and a lack of economic and social development." 
 
 
 
¶3.  Fernandez observed that the 1963 constitution, promulgated 
during the short presidency of anti-Trujillo leader Juan Bosch, 
included a new element in the DR's system:  "social 
constitutionalism" - i.e., the right to education, health, lodging, 
retirement and pensions.  He praised the "Revolution of April 
1965," which followed the overthrow of the Bosch government, and 
that rebellion's resistance to "foreign (i.e., U.S.) military 
occupation," for aiming to restore the 1963 constitution. 
(COMMENT: Although both the PLD and the opposition PRD claim to be 
ideological heirs of Bosch, neither party proposed reviving the 
1963 constitution.  END COMMENT). 
 
 
 
¶4.  Fernandez went on to claim that the new Constitution fits into 
a "modern constitutional trend" that began after World War II 
(citing the Italian, German and French constitutions of 1947, 1949 
and 1958, respectively). Specifically, Fernandez pointed to Article 
7, which states that the Dominican Republic is a "Social and 
Democratic State of Rights."  This, he said, means that it is a 
state "founded on respect for human dignity, (for) fundamental 
rights, (for) labor, (for) popular sovereignty, and (for) the 
separation and independence of public powers." 
 
 
 
¶5.  Fernandez then highlighted the new constitution's provisions 
 
 
to: 
 
 
 
--             Eliminate the President's ability to annul 
municipalities' decisions or to appoint mayors or councilmen 
if/when vacancies arise (as had been permitted under the 1994 
constitution). 
 
 
 
--             Nullify acts that may be taken by persons who alter 
or subvert the constitutional order, as well as any decision made 
due to military force. (Note:  Fernandez added that this provision 
will ensure that the DR will avoid future coups, and thus, "never 
repeat the bitter and tragic experience of September 1963[.]"  See 
also reftel C. End Note) 
 
 
 
--             Guarantee fundamental rights, as well as several 
"collective and diffuse rights." 
 
 
 
--             Permit the use of "popular initiatives" with respect 
to submitting legislative ideas before Congress and "referenda" 
with respect to "whatever matter is submitted" to the people for 
their decision (see also: reftel E).  (COMMENT:  Some of the 
President's critics suggest that he could attempt to use these 
mechanisms to revise the new Constitution's prohibition of direct 
presidential re-election; when questioned on this by a French 
journalist, Fernandez explicitly denied that he would be a 
candidate in 2012.  END COMMENT). 
 
 
 
--             Allow the election of (7) congressmen by Dominicans 
residing outside the DR and the election of "National Deputies," 
which would open the door for minor parties to gain representation 
in Congress. 
 
 
 
--             Protect "privacy and honor," as well as intellectual 
property and professional secrets (including for journalists). 
 
 
 
--             Alter the judicial system in a "profound and 
radical" manner, including creation of a Constitutional Tribunal 
(see reftel B). 
 
 
 
¶6.  Finally, Fernandez stressed that the new Constitution was 
subjected to a long and comprehensive national debate and approved 
by consensus,  rather than being a partisan document as were so 
many of its predecessors. 
 
 
 
MIGUEL VARGAS MALDONADO 
 
 
 
¶7.  PRD leader Miguel Vargas Maldonado, on 1/25, gave a 
nationally-televised speech supporting the new Constitution, 
underscoring the PRD's particular stance on certain issues, and 
proclaiming the party's  self-appointed role as a watchdog for its 
implementation and operability, whether in government or in the 
opposition.  He first defended the PRD's decision to participate in 
the drafting of the document, even though the party has 
consistently upheld the principle that constitutions should be 
altered by means of a Constituent Assembly, a view he claimed was 
shared by most Dominicans.  Vargas criticized President Fernandez, 
who had previously supported this position, but then "forgot his 
old promises" and assigned the task to the Congress as a 
Revisionary Assembly.  He then explained that, to avoid being 
marginalized from the process in a legislature dominated by the 
President's Dominican Liberation Party (PLD) and its Social 
 
 
Christian Reformist Party (PRSC) allies, the PRD chose to 
"participate actively and intensively" in debating and revising the 
reform proposal submitted by Fernandez in September 2008 (reftel 
A). 
 
 
 
¶8.  Vargas then highlighted the following achievements in the new 
Constitution: 
 
 
 
--             Maintenance of a system of nationality that combines 
jus soli and jus sanguinis (details: reftel D); 
 
 
 
--             The election of representatives of the ten percent 
of Dominicans who reside abroad; 
 
 
 
--             "Modernization" of the national police and the armed 
forces; 
 
 
 
--             "Democratization" (i.e., a guarantee that the second 
largest party will have two of the eight seats) of the National 
Judicial Council, which must perform its duties with 
"transparency," as the leading rule-of-law NGO "FINJUS" as urged 
(Ref B); 
 
 
 
--             Establishment of a Constitutional Tribunal; 
 
 
 
--             The prohibition of the consecutive re-election of 
presidents, thereby "stimulating democratic alterations (between 
parties/leaders)" and reducing the incentive of the sitting 
President to use State resources to advance his party's electoral 
interests, adding that this occurred in 2008 (when Fernandez beat 
Vargas). 
 
 
 
¶9.  The PRD leader also commented on the need for Congress to pass 
an immense amount of legislation to implement the changes brought 
about under the new Constitution, including: 
 
 
 
--             A law on constitutional procedures and the 
Constitutional Tribunal; 
 
 
 
--             A law on public administration; 
 
 
 
--             A law detailing the process of public participation 
via referenda and "popular legislative initiatives;" 
 
 
 
--             A law defining the jurisdiction of the two, new 
tribunals for electoral disputes and administrative cases. 
 
 
 
¶10.  Vargas called on President Fernandez to honor his oral 
agreement with Vargas and instruct the PLD to work with the PRD to 
pass a law on political parties.  (COMMENT:  Even if such a law is 
passed when Congress resumes in February, the Central Electoral 
Board has made it clear that insufficient time will exist to 
implement its provisions before the 5/16 congressional/municipal 
elections.  END COMMENT).  The PRD leader concluded by noting that 
his party will act as guardian of the new Constitution. 
 
 
COMMENT 
 
 
 
¶11.  While the DR has had 38 constitutions since its independence 
in 1844, this appears to be the first one developed through a 
lengthy process of dialogue with the opposition, rather than forced 
through by a caudillo or rushed into print as a response to a 
political crisis.  The fact that its formal adoption was by a vote 
of 200-0 demonstrates the bipartisan nature of the document (if not 
the power Fernandez and Vargas have over their respective parties 
and allies) and could mean that this constitution, in contrast to 
its numerous predecessors, may actually have some staying power. 
Embassy has provided an analysis of the Constitution's provisions 
on the judicial system (Ref B), and will be sending in analyses on 
other aspects in coming weeks.  END COMMENT 
 
¶12. Minimize Considered. 
Lambert