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Editorial & Column
Status: End Game IV
By RAFAEL HERNANDEZ COLON
April 3, 2003
In the first of these articles, I expressed that the status issue represents a normative conflict, a conflict of values such as liberty, dignity, identity, citizenship, culture, economics, personal welfare, and security, and a host of other considerations. Our status preferences are determined b by the weight which one puts into each of these values; thus, these preferences come to represent different visions of the future we want.
Deeply rooted differences such as these must be resolved through the democratic process if they are to be resolved peacefully. In order to work out a resolution of these differences through a particular process, the people must be aware that they are being called upon to make a final decision. Involving the people to resolve the status issue is a challenge we face after the frustrations they have suffered with the failure of the plebiscites and the efforts in Congress in which they placed their highest hopes. The Constitutional Convention affords us this opportunity.
The Constitutional Convention would be an exercise in participatory representative democracy, and in high-level negotiations with Congress. The people will participate by electing to the Convention delegates who represent their status preferences and, at the end of the day, by approving or disapproving what the Convention obtains from Congress. Representation by the delegates will occur in the Convention proper and before the Congress.
In order for the Convention to be fully representative of the people of Puerto Rico, provisions must be made by the Legislature for proportional representation and the accommodation of leadership from civil society as much as possible within our constitutional system. Article VII, Section 2 of our Constitution invests the Legislature with the power to determine all matters relative to the election of the members of the Constitutional Convention. This power is subject to the rule of "one man, one vote," which is the true foundation of any democratic system.
So, it is not possible within our system for the Legislature to allot delegates--as some have requested--to sectors of society in order to provide for the representation of civil society within the Convention. What can be done, however, is to limit the number of delegates that any one party may elect and provide an additional number of seats so that minorities or sectors of civil society with insufficient voting strength can be elected at the polls under the "one man, one vote" principle.
Such a model was followed in our original Constitutional Convention. At that time, it was provided under Law 1 of July 3, 1951 that the Convention would be composed of 95 delegates, 23 of them at large (and of which no party could nominate more than 14) plus nine delegates from each of eight districts into which the island was divided ad hoc, but no one party could elect more than seven delegates in each of these districts.
Under these provisions, statehooders such as Celestino Iriarte and Leopoldo Figueroa were elected at large, and Luis A. Ferre and Miguel Angel Garcia Mendez by the districts of Ponce and Mayaguez. At that time, the second party in Puerto Rico was the Independence party, but it boycotted the Convention.
The composition of the Convention, the districts into which the island would be divided, the number of delegates at large and per district, and the seats to be allotted for minority or sectorial representation would be priority items in the dialogue of our political parties, which should make these determinations by consensus before they are put into law.
This Convention, however, would be different from the 51-52 Convention because it would propose a status alternative to Congress which may or may not be accepted and, if rejected, the Convention must present another status alternative until one proposal is accepted by Congress. In order to structure this sequential mechanism, it is necessary that the people express themselves again at the polls taking into account the decision from Congress. So, if a status alternative proposal from the Convention is rejected by Congress, a new election of delegates must take place.
For example, if the Congress should reject a proposal for perfected Commonwealth, a new election for delegates would take place so that voters may take this into account. In the new election, the people may vote for whatever delegates they desire and no alternative would be disqualified. But in all probability, the new election would result in the election of a majority of delegates favoring statehood with a larger minority for independence than the first time around and a minority for a renewed Commonwealth proposal.
Through this mechanism for the renewal of the delegates to the Convention in response to Congressional rejections of the Conventions proposals, the various alternatives will have an equal opportunity to put their alternative before Congress in an order of precedence determined by majority rule. Of course, if Congress accepts the first proposal and the people ratify it, then the matter will go no further. This is the risk that the supporters of each alternative must take in setting in motion the Constitutional Convention. But if they are right in their assumptions as to matters such as the unconstitutional character of a bilateral compact for a perfected commonwealth or the impossibility of statehood, then the risk factor becomes very low and the risk becomes worth taking, given the high probability that their alternative will have its turn at bat.
Another measure that should be taken regarding this Constitutional Convention is the requirement that the delegates should not be at the same time elective office holders or candidates for elective office. This requirement was not necessary in the 51-52 Convention because it was engaged in its work for only two years, responding to an invitation from Congress to draft the Constitution. Therefore, it did not transcend the quadrennial electoral cycle. The delegates to the 51-52 Convention were not delegates when they ran for office in 1948 because the Convention had not been called, nor were they delegates in 1952 because it had ended.
This Convention will transcend the quadrennial cycle. It will be in session for over four or eight years if it is to present sequentially the various proposals to Congress. In this situation, being a delegate and holding elective office at the same time presents a conflict between representing the interest of the electorate in resolving the status issue and representing its interest in the proper exercise of the multiple responsibilities of governance. The office holder will not be free to sustain certain positions as a delegate because the voters may punish him/her in his/her re-election bid. In order to resolve the status issue, the Convention should be immune from day-to-day political concerns.
The Constitutional Convention would then be composed of at-large district delegates, non-officeholders elected by the people, including minority representation, and would present its proposals to Congress by majority decision. If the proposals are rejected by Congress, new delegates will be elected who will then make a new proposal. The Convention, as a conflict resolution mechanism, will be in session until the status issue is resolved with Congress.
Contrary to a plebiscite, where a decision is made by the people directly at the polls, leaving no room for further discussions, revisions, accommodations, or negotiations between the participating parties, the Constitutional Convention will provide for continued dialogue and negotiations between the supporters of the alternatives. In the original Convention, Luis Ferre and Miguel Angel Garcia Mendez provided proposals that were worked into the Constitution but which did not emerge as a partisan product. Thus, the Convention affords the representatives of all the people the opportunity to shape whatever alternative the Convention proposes to Congress. This is most important so the process will work out solutions that resolve as much as possible the conflict of values which the status issue presents to the Puerto Rican people.
What will be the requirements of the alternatives that the Convention may propose to Congress?
How will the Convention engage the Congress?
How will we be assured that when a status alternative is proposed there will be a prompt congressional response, whether in the affirmative or in the negative?
The answer to these questions will appear in my next article.
Rafael Hernandez Colon is a three-term (12 years) former governor of Puerto Rico (1973-76 and 1985-92). He had earlier served as secretary of Justice (1965-67) and as president of the Senate (1969-72). He was president of the Popular Democratic Party for 19 years.
This Caribbean Business article appears courtesy of Casiano Communications.