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ACLU denounces U.S. racism against Puerto Rico at United Nations


By The Star Staff


A report made by Puerto Rico’s chapter of the American Civil Liberties Union will be used by the U.N. Committee on the Elimination of All Forms of Racial Discrimination when it evaluates President Joe Biden’s report on the subject this week.


The “shadow report” presented by ACLU on April 21 denounced the discriminatory and racist treatment against Puerto Rico by more than a century of U.S. colonial rule, which has been exacerbated by the Puerto Rico Oversight, Management and Economic Stability Act (PROMESA) that imposed a fiscal oversight board to monitor local affairs.


The committee, which monitors compliance with the International Convention For the Eradication of All Forms of Racial Discrimination, will evaluate Biden’s report between April 28 and June 2. The committee’s evaluation comes days after the U.S. Supreme Court ruled that the U.S. Congress can prevent people who live in Puerto Rico from participating in the Supplemental Security Income (SSI) federal program that provides benefits to low-income elderly, blind and disabled people.


The justices ruled 8-1 in favor of President Joe Biden’s administration, saying that the decision by Congress decades ago to exclude Puerto Rico from the SSI program did not violate a U.S. Constitution mandate that laws apply equally to everyone as Congress is acting by virtue of the Territorial Clause.


ACLU pointed to other examples of discriminatory treatment against Puerto Ricans.


In a case brought up by hedge fund Aurelius Investment Capital that challenged the Financial Oversight and Management Board’s constitutionality, the U.S. Supreme Court ruled that the Constitution’s appointments clause does not restrict the appointment or selection of members of the Board, who are appointed by the president without the Senate’s advice and consent. The ruling upheld the legality of the FOMB.


Before that the top court in 2016 held in the case Puerto Rico vs Sanchez Valle that while Puerto Rico may have its own constitution, its own government, its own laws, it is not a true sovereign under the Fifth Amendment’s Double Jeopardy Clause. Fifth Amendment’s Double Jeopardy Clause states that no person “may be subject for the same offence to be twice put in jeopardy of life or limb.” The U.S. Supreme Court in the past has carved out an exception to this guarantee called the “separate sovereigns” doctrine. Under this rule, both states and the federal government can try a defendant for the same crime: states under state law and the feds under federal law. The Sanchez Valle ruling means that if a person accused of a crime by a federal court cannot be prosecuted for the same crime by the Puerto Rico courts and vice versa because it would be double jeopardy since Puerto Rico does not have separate sovereignty from the United States.


ACLU noted that in 1922, Balzac v. Porto Rico, 258 U.S. 308 was decided, which stated, amongst other things, that the U.S. Constitution did not apply to Puerto Rico, except by express will of Congress but the organization devoted the lion’s share of its presentation to the impact of PROMESA, which was created to help Puerto Rico file for bankruptcy.


“This law has created enormous issues on the island especially related to austerity measures, massive payments to members of the board, lack of transparency, its power to veto local legislation, and the inability for people to access the judiciary for social justice in all cases, including civil rights’ cases,” the ACLU said.


PROMESA has not only created a civil rights free zone in the territory of Puerto Rico, but the danger of extending its application to territories ahead like Guam and Samoa. The legal framework in which the People of Puerto Rico’s economy collapse was mostly designed by laws enacted by the U.S. Congress and misleading procedures at the United Nations. “PROMESA is not the exemption. PROMESA allows an exclusive bankruptcy of the entire insular government, allowing an illegal taking of the budget of Puerto Rico, resulting in a human rights’ crisis and the population displacement,” ACLU said.


Through PROMESA, Congress imposed upon Puerto Rico and its residents the FOMB, composed of seven non-voted members, in charge of handling all matters concerning Puerto Rico’s fiscal policy and the debt restructuring process. ACLU listed some of the Board’s unlimited powers, including veto power over the government’s adoption of budgets: authorization of bonds; and authorization of legislation.


The Board has the power to rescind legislative and executive actions and the Board may review, and rescind, laws that alter the priorities of creditors.


“PROMESA disenfranchised the People of Puerto Rico, because the elected public officials’ actions are overridden by the FOMB if, in its sole discretion, determines that are contrary to PROMESA. Consequently, besides violating the Commonwealth’s Constitution, PROMESA violates the 1st Amendment of the U.S. Constitution, which includes the right to vote as a form of expression. The Board uses the fiscal plan to impose its policy preferences on Puerto Rico’s people, overthrowing decades of progress in the fields of State University autonomy, public education (more than 400 public schools closed), labor law, public health, retirement plans, security, putting essential services in private hands (Electric Power), among others,” ACLU said.


In addition, PROMESA and the “colonial regime” imposed on Puerto Rico violate the customary norm of the right to self-determination, which is binding upon the U.S, the group said.


As a result, ACLU in a statement written by lawyer Fermin Arraiza, asked the United Nations to put Puerto Rico back in the list of non-self governing territories and require the United States to submit reports.


“After the adoption of the Commonwealth Constitution in 1952, the U.S. successfully petitioned the United Nations to remove Puerto Rico from its list of non-self-governing territories. The U.S. thereafter ceased to render reports regarding the administration of the territory. PROMESA simply unmasked what was previously misrepresented as the acquisition of full measures of self-government by the People of Puerto Rico in 1953. After PROMESA, the Oversight Board serves as the “checkmate” to thwart the already discredited constitutional government through the imposition of appointed officials with the power to overrule the decisions of Puerto Rico’s elected Government,” ACLU said.

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