Some reflections about the influence of Spanish Constitution on the Dominican Constitution in normative guarantees

Abstract

The new Constitution of Dominican Republic 2010 incorporates, indirectly and through Spanish influence, a good part of the German dogmatic about fundamental rights, including the totality of its normative guarantees, which are the object of this work. Studies in this field by the legal literature on the Caribbean country can be described as emerging.

After the delimitation of the conceptual normative guarantees, the material presents great difficulties. The powerful influence of the Spanish Constitution has led to want to interpret mimetically the rubric of the chapter I of the Title II of the Dominican Constitution "Of the fundamental rights". Correct understanding proposed in the work has required an extensive argumentation to include the political participation among the fundamental rights, as well as to exclude the constitutional rights and mandates to the public powers from the category.

Valid contributions to the Spanish Constitutional law arise from the considerations that this work mades on certain practical problems which have arisen in the peninsula and that the Dominican constituent sought to avoid: the separation between fundamental rights and their guarantees jurisdictions, following in the footsteps of German, but applying the greater part of the normative guarantees to these; the difficulty of providing direct legal effects to certain social fundamental rights or rights that require normative completion; the proposal to try to overcome the difficulties in the delimitation of the organic and ordinary reservation; the requirement of a quorum in the organic law that obliges reaching a consensus in transcendental matters, as well as the correct systematization of these; the differentiation of the conflict between fundamental rights and between these and the values, principles and constitutional goods when the legislator establishes with general character the limits of the fundamental rights and the consequences that should derive to avoid their emptying; the entitlement of the fundamental right of entry in the country exclusively to the Dominican nationals; and, without exhaustive, a correct material delimitation of areas protected by aggravated constitutional reform.

Finally, and outside of the study of the compared law, it is necessary to highlight the research on foundations that are in the origin of the reservations of law and of the limits imposed on the legislator and as those must be born in mind at the time of the control that the constitutional courts exercise through the principle of proportionality, to which there must be juxtaposed that of the essential content. There is an excessive caution by the maximum interpreters of the constitution that is putting the effectiveness of some normative guarantees in danger.