Island Supreme Court rules statehood referendum is constitutional
By Pedro Correa Henry
Special to The Star
Even though they didn’t receive approval from the U.S. Department of Justice (DOJ) in July because they did not comply with federal public policy, the Puerto Rico Supreme Court ruled on Monday that the provisions in Subchapter VIII-B of Law No. 58 of June 20, 2020, the Puerto Rico Electoral Code, and Law No. 51 of May 16 of 2020, the Final Definition of Puerto Rico’s Political Status Law, are constitutional.
Regarding the validity of the latter, Law 51-2020, which provides for the holding of a political status consultation on Nov. 3, 2020, the day of Puerto Rico’s general elections, the high court concluded that it has a public purpose as it is consistent with what is provided in Article VI, Section 9 of the Constitution of the Commonwealth of Puerto Rico “since it allows all Puerto Ricans, under equal conditions, to participate and express themselves in favor of or against ratifying and implementing the status formula that was favored in the plebiscites held in 2012 and 2017” and exercising their right to self-determination.
The court also found that the precedent in Báez Galib II maintains that legislation that substantially alters Puerto Rico’s political relationship with the United States cannot be approved without first obtaining the approval of Puerto Rico residents. Therefore, the ruling concluded that, unlike in 2000, when the case of Báez Galib II was resolved, there is now an electoral mandate for the decolonization of Puerto Rico and in favor of all legal measures that advance those ends. Given this, it also determined that the political status consultation to be held on Nov. 3 is a valid and non-discriminatory mechanism with an eminently public purpose.
Meanwhile, the ruling added that the Legislative Assembly has the power to choose legitimate mechanisms to advance its objectives and register the people’s expression of their will and that the court cannot question the wisdom or convenience of the legislative determination in question because it is a non-justiciable political issue.
On the other hand, regarding Subchapter VIII-B of Law 58-2020, the Electoral Code, which authorizes the holding of presidential elections in Puerto Rico, it was resolved that, unlike Law No. 403-2000, the recent law has a “discernible and definite public purpose.”
According to the Supreme Court’s determination, it is due to the fact that, unlike when Báez Galib II was resolved, the people expressly authorized the Legislative Assembly to pass a presidential voting law in 2017, consistent with the electoral mandate in the 2012 and 2017 plebiscites. Moreover, the high court reaffirmed the ruling in Báez Galib II, that this type of legislation needs to be authorized by the people. In its conclusion, the Supreme Court determined that it does not correspond to invalidate the contested legislation because that express authorization was obtained for Law No. 58-2020 in the 2017 plebiscite and that it is consistent with the aspirations that the people of Puerto Rico expressed when approving the island Constitution.
Justices submit their opinions
Associate Justice Rafael Martínez Torres issued the court’s majority opinion, while Associate Justice Ángel Colón Pérez issued a dissenting opinion, which was joined by Chief Justice Maite Oronoz Rodríguez and Associate Justice Anabelle Rodríguez Rodríguez, in which they pointed out that the majority of the court revoked sub silentio the precedent established several decades ago in the Báez Galib v. State Elections Commission case.
In that precedent, the court had determined in 2000 that because the Constitution of the Commonwealth of Puerto Rico did not favor, nor does it favor, any alternative of any status, it was concluded that using public funds to advance the cause of only one of the political parties “understand, statehood,” was unconstitutional. According to the dissenting judges, by deviating from this rule the majority of the court “dangerously validate in our jurisdiction the use of public funds to advance the status formula proposed by the political party in power.”
Meanwhile, the dissenting justices stated that the actions of the majority of the court were in direct conflict with the provisions of the constitutions of the Commonwealth of Puerto Rico and the United States of America, and their interpretative jurisprudence. That conclusion is based on the statements of the U.S. DOJ in written communication in which it listed its objections to the holding of the plebiscite, both procedurally and substantively.
Likewise, the dissenting opinion emphasized that “you will notice that the public funds that today most of the members of this Forum authorize are to be used in symbolic events, drawn up in dark rooms and with malicious intent, when they would have served a better purpose of having ended up at the doors of all those homes of Puerto Rican families that are still suffering the damage caused by hurricanes Irma and Maria, the earthquakes in the southwest region of the country, or the COVID-19 pandemic; events that have truly revealed the poverty that exists on this island and the economic gaps that sadly and unnecessarily separate one from the other. Perhaps this way, in a more real and accurate way, we can achieve the true EQUALITY that some of my colleagues on the bench claim in their writing!”
Associate Justice Rodríguez Rodríguez, who is slated to retire from her seat on the Supreme Court as she turns 70 on Dec. 24, issued a separate dissenting opinion in which she highlighted her disagreement with the decision of the majority since it allows the million-dollar disbursement of public funds for the holding of two electoral events that lack a public purpose and whose results will be completely inconsequential. As stated, the action in question is unconstitutional and the social and economic implications of the course of action of the majority are just as dangerous and problematic as the judicial precedent they establish.
Resident commissioner applauds Supreme Court’s ruling
Resident Commissioner Jenniffer González Colón, meanwhile, applauded the high court’s decision.
“I think this was another attempt by the leadership of the Popular [Democratic] Party [PDP] to rig, to hinder, to boycott a process. However, I have to tell you that even though they had that tantrum in court, the reality is that this is the first plebiscite process endorsed by all political parties. In the past, the PDP always sought to boycott, to say not to vote or not to participate. They enrolled early [this time] and said they were going to participate. That makes this plebiscite the one that everyone has embraced, defending a decision,” González Colón said in response to questions from the press. “Congratulations on the determination of the Supreme Court of Puerto Rico to say ‘enough’ to these legal attempts to obstruct the free and voluntary voting process of the people of Puerto Rico to tell them what they want to be for their future.”