Puerto Ricans in Civic Action
Puertorriqueños en Accion Ciudadana
Miriam J. Ramirez de Ferrer MD, President
Miriam J. Ramirez De Ferrer, MD
Committee On Resources
U.S. House Of Representatives
H. R. 856
'THE UNITED STATES-PUERTO RICO POLITICAL STATUS ACT"
April 21, 1997
Mayaguez, Puerto Rico
WHY SHOULD CONGRESS APPROVE H.R.856?
The first question each Member of Congress must ask regarding HR. 856 is this:
Why should the 105th Congress approve legislation to resolve the political status of Puerto Rico through a federally-recognized process of self-determination
To answer that question, we need to recall that Congress attempted but failed to approve political status legislation for Puerto Rico in 1991. As a result, a plebiscite on political status was held under local law in Puerto Rico on November 14, 1993. In said plebiscite, the definition of the proposed "commonwealth" political relationship on the ballot was formulated by the Popular Democratic Party, a local political party in Puerto Rico.
The result was a definition of "commonwealth" status on the 1993 ballot in which:
· Federal welfare entitlements would increase;
· Puerto Rico would be guaranteed permanent union with the United States;
· United States citizenship would be irrevocable as guaranteed by the U.S. Constitution to the fifty states
· There would be guaranteed exemption from federal income taxation,
· Puerto Rico could nullify federal law if not agreement with acts of Congress applicable to the status of the territory,
· and Puerto Rico would have a form of separate national sovereign identity apart from the U.S.
Even with these enhancements intended to make the "commonwealth" option irresistible to the public, and offering all the benefits of statehood without the responsibilities the commonwealth "status" definition on the 1993 ballot only received 48% of the votes. Statehood (even with taxes), received 46.3% and independence (with guaranteed US citizenship and Social Security, etc.) received only 4.4%.
Since no option received a majority in the 1993 vote there is no decisive democratic mandate for any of those options. This does not create a legal or political dilemma with respect to statehood or independence, since those two options are future status alternatives, the terms for which Congress has yet to define or approve. Only when the voters know the terms under which Congress would consider those two options would a vote on either of these options be meaningful, which is one of the reason H.R. 856 is needed.
It may be said that the present "commonwealth" is the current political relationship as defined by Congress and established by federal law, yet although it was presented on the ballot in the most favorable terms conceivable by its supporters, it still did not receive a majority of votes. Thus, the failure of commonwealth to receive a majority vote creates a legal and political dilemma for Puerto Rico and the United States.
The new reality is that a majority of the patriotic U.S. citizens of Puerto Rico have gone to the polls and rejected the current relationship, which just so happens to be one in which the US citizens in Puerto Rico are disenfranchised in the constitutional process through which federal power is exercised in the territory. Continuation of this territorial "status", without establishing any process defined by Congress for resolution of the status based on self-determination is not consistent with the fundamental democratic principle of government by consent of the governed.
On one hand, some might argue that this simply is the condition of U.S. citizens who reside in unincorporated territories which are under U.S. sovereignty, but not within a state of the union. However, among the U.S. unincorporated territories, Puerto Rico is the largest and most populous, and it alone has a 45 year record of political stability and democratic pluralism, through internal constitutional self-government which compares quite favorably to the governments of states previously admitted to the union.
Yet, Puerto Rico has never been enabled by Congress to vote on options for a permanent status - either within or outside the federal union - according to definitions recognized by the United States. Now, when Puerto Rico was compelled by Congressional inaction to initiate the self-determination process, (based on definitions accepted from the local parties supporting each option, to avoid criticism of bias for or against any status), the voters have withheld majority approval from the existing political relationship.
Ironically, even if the voters in a local plebiscite approved the current political relationship, constitutionally it is not a permanent form of political union. Rather, it is a "status" created by statutes approved by Congress in the exercise of its territorial clause authority. Those statutes can be amended by Congress at any time, consistent with its determination of the national interest. Puerto Rico does not have a legally vested or constitutionally guaranteed right to the current "status".
Thus, the question of Puerto Ricans ultimate status will remain unresolved and can be reopened at any time by federal action or local self-determination initiatives, until a permanent status is achieved through statehood or separate sovereignty It is for this very reason that the provision of H.R. 856, which requires periodic referenda, becomes so critical in the event that there is no status resolution in first cycle of the self-determination process under the bill.
Now that more than a majority have voted to change the current political relationship, it arguably would constitute denial of the right of self-determination not to have in place a Congressionally sponsored procedure through which the people can express their wishes freely. This alone can provide the basis for Congress to respond based on its responsibility to exercise the right of self-determination which the nation as a whole has in its relationship to Puerto Rico.
To eliminate any basis for the allegation that the U.S. policy supporting Puerto Rico's decolonization based on self-determination has broken down or become dysfunctional, there must be a periodic referendum procedure until full self-government achieved.
Congress has the authority and right to prescribe the terms it will accept on behalf of the nation in order to implement a status chosen by the people, or to decline to do so; But the people must have a right to an informed and democratic process of self-determination, and to know what the U.S, will or will not accept so that the U.S. citizens of Puerto Rico can make further informed decisions on our status.
Without such a periodic self-determination process authorized by Congress, the lack of consent to the existing form of government could become the basis for legitimate criticism of U.S. administration of Puerto Rico.
In this connection, the fact that Puerto Ricans voted in 1952 to establish a local constitution did not resolve the political status of the territory. For years some key House and Senate leaders have been misled into believing that the current political status of Puerto Rico was established with the consent of the people in 1952, when in reality the 1952 vote simply established internal constitutional self-government.
Puerto Rico's political relationship with the United States, as an unincorporated territory subject to the authority of Congress under the territorial clause of the U.S. Constitution was established under the Treaty of Paris in (1899) and continues to this day unaltered regardless of statutory measures to increase local self-government The authorization and approval by Congress of a local constitution adopted by the people was an important step to make full self-government possible, but did not complete the decolonization process that started in 1952.
Even though the UN accepted the U.S. decision to stop reporting on Puerto Rico to that international organization in 1953 based on the adoption of the local constitution, the decolonization process that was expected to follow internal self-government stalled in the decades that followed, because of the partisan and commercial interest in preserving the status quo, as discussed below.
Indeed, the U.S. Supreme Court and several lower federal courts have confirmed that adoption of a local constitution, as authorized under federal law in 1952, did not end the territorial clause authority of Congress or unincorporated territory status of Puerto Rico. As recently pointed out in a written statement regarding H.R. 856 addressed to the Committee on Resources from former Congressman Robert J, Lagomarsino, this is a status under the federal constitution which is "permissive" rather than one based on constitutional rights.
No matter what "enhancements" those in Puerto Rico or the federal government who support perpetual "commonwealth" may offer to the people, under the U.S. Constitution the current unincorporated territorial status and statutory citizenship of Puerto Ricans can not be made permanent. The attempt by some over the last four decades to persuade Congress and Puerto Rican leaders that the "commonwealth" can be transformed into a permanent constitutional status with guaranteed citizenship through a statutory sleight-of-hand based on a "mutual consent" requirement for federal law applicable to the territory, has been repudiated and rejected by the House Committee on Resources, the Congressional Research Service, the Department of Justice and the U.S. Supreme Court. (See, House Report 104-713, Part 1, pp. 18-23, 30-36, and Appendix III).
SELF-DETERMINATION BASED ON REAL OPTIONS
I emphasize these points, because in 1987 my grassroots organization delivered to the Congress of the United States over 350,000 individually verified signatures from U.S. citizens from Puerto Rico, petitioning for a permanent status for Puerto Rico and equal citizenship for persons born here through admission of Puerto Rico as the 51st State of the Union.
President Bush responded to the ground swell of support for self-determination in Puerto Rico in his first State of the Union address on February 9, 1989, saying.
" I've long believed that the people of Puerto Rico should have the right to determine their own political future. Personally, I strongly favor statehood But I urge Congress to take the necessary steps to allow the people to decide in a referendum."
The response of Congress to the petition of the people and the commitment of several recent Presidents, including Mr. Bush has been inaction, notwithstanding the difficult and time-consuming effort in Congress from 1989 to 1991 to approve legislation to provide for a self-determination process in Puerto Rico. That legislation died - after great agony - in the 10lst Congress. The primary opponents of that legislation included those who were beneficiaries of the Section 936 tax credit scheme, commonly referred to as "corporate welfare" and only possible under the existing political relationship in Puerto Rico. They are a powerful lobby, that is far more sophisticated than my neighborhood and community-based democratic action network.
Thus, consideration of said Puerto Rico legislation in 1991 became influenced, not by the debate over the national interest relating to the status of Puerto Rico, but by the debate about preserving the Section 936 corporate welfare tax loop hole. Continuation of the current "commonwealth' status, by killing legislation that would produce any real change, was the goal of the Section 936 companies and the Puerto Rican political leaders in their camp. Thus, self-determination legislation was delayed until Congress finally repealed the corrupting Section 936 tax gimmick in 1996.
Ten years later, we still wait - respectfully but with renewed resolve - for an answer to our petition. We believe H.R. 856 is -the best answer Congress can give to our petition in 1997, even though it is not what we asked for in 1987.
This is so, because H.R. 856 will create a process that will by its very nature educate the people of Puerto Rico, and the nation as a whole, to the real choices which must be made to resolve the status of 3.8 million U.S. citizens who are not yet fully self-governing in the most fundamental sense. The record before Congress is now very clear: Puerto Rico is an unincorporated territory, an impermanent "status" which includes U.S. citizenship and political union in a form which constitutionally is alterable and terminable at the discretion of the U.S. Congress - limited, if at all, only by the due process requirement of a legitimate federal purpose.
Although my organization supports admission of Puerto Rico as a state in order to complete the decolonization process and extend equal legal and political rights to the 3.8 million U.S. citizens of Puerto Rico, we recognize that there must be a legitimate self-determination process for both Congress and the qualified voters of Puerto Rico regarding the options for full self-government
The first step is to accurately define the options, then those who favor statehood, as well as those who favor either separate sovereignty or the status quo, can tell their respective stories to the people and Congress. In a fair debate on a level field the people can work their will, allowing Congress it turn to work its will in a proposed transition plan, so there can be a second referendum to determine if there is agreement to resolve the ultimate status of Puerto Rico.
H.R. 856 will accomplish that goal, and Puerto Ricans United in Civic Action supports the bill because unlike some we trust the people and we are prepared to accept the results of a democratic self-determination process. However, there are concerns about the bill which we feel compelled to state for the record.
RESTORE TWO PART BALLOT
First, we believe it was a mistake to revise the legislation in order to present "commonwealth" as a third option, in a side-by-side format with statehood, and separate sovereignty. This does not create a level playing field or provide for a true decolonization process for Puerto Rico, but creates an advantage in favor of the status quo. The original two-part ballot format contained in H.R. 3024, as approved by the Committee on Resources on July 26, 1996, is a more accurate presentation of the questions facing the people of Puerto Rico.
Specifically, the two part ballot format in H.R. 3024 made it possible for the voters in Puerto Rico to understand that "commonwealth" is a territorial status, approval of which does not permanently resolve the question of Puerto Rico's ultimate status, Consequently, approval of "commonwealth" as it actuary is (unincorporated territory will require further self-determination in the future to ascertain the wishes of the people regarding a permanent status.
The proponents of commonwealth as a "status" equal to statehood or independence have been so successful for so many years, that they may actually have felt that it was unfair when Congressional leaders started to pierce the veil of ambiguity and clarify the issues by pointing out that the territorial clause still applies to Puerto Rico. The cries we heard last year about the "unfairness" of a ballot that made a distinction between options for full self-government outside the territorial clause, and the option of remaining under the territorial clause until a form of full self-government is agreed by Congress and the residents of Puerto Rico, still resound in the hails of Congress.
The members of my organization are concerned that the sponsors of H.R. 3024, and now H.R. 856, may have started to believe that maybe it was unfair to make that distinction. If the return to a three option ballot was an attempt to appease those who protested the unfairness of H.R. 3024, we doubt that it will be a sufficient gesture. These are true zealots, hard-core ideological believers, and they will simply want more concessions now.
More importantly, the people may be misled into believing that the commonwealth political relationship and U.S. citizenship based thereon actually are co-equal options, which if approved can become permanent This has the potential for real mischief by the supporters of permanent commonwealth, aimed at confusing people or lead them to the wrong conclusions about that status option.
Therefore, we are concerned that the Committee on Resources may have gone too far to please the critics of H.R. 3024, and we urge the Congress to restore the more truthful and accurate two-part ballot The original format ensured that Puerto Ricans would have the right to vote for the current commonwealth status quo, but not based on the myth that it is or can be transformed into a decolonized permanent status.
"NEW COMMONWEALTH" PROPOSAL
In addition to a ballot format which accurately distinguishes the options for permanent full self-government from the options for continued territorial status, it is very important for Congress to clarify that the current political relationship is not permanent This is due to the fact that for 40 years some of the prominent and influential supporters of "commonwealth" as a final and permanent status, have indoctrinated those among the public who came under their influence to believe that Puerto Rico in 1952 achieved a permanent formula of "separate nationality and free association with common citizenship."
The proposal for a "New Commonwealth" definition submitted to Congress by the Popular Democrat Party ( PDP) of Puerto Rico on March 19, 1997, has been "sanitized" as much as possible with coaching from sympathetic Washington insiders. However, Congress should make no mistake about the fact that this "New Commonwealth" is the same old wine, and it is even in the same old bottle. Only the label is new. Other than that, it is vintage nullificationist doctrine, which seeks to transpose cultural separatism and the politics of ethnocentric alienation into separate nationality in the legal and constitutional sense.
The term they use is "mutual consent" but in reality the "New Commonwealth" definition presented by the PDP is a nullificationist defense of the status quo and the political aristocracy of the colonial period in Puerto Rico. Just as nullification has been the doctrine of choice for other embattled political subcultures, aristocracies and ideological elite in American history which have stopped listening to or trusting the people, in Puerto Rico it is the last refuge for those whose self interest is served by defying the principles of equal justice and full citizenship which are at the heart of American constitutional federalism.
The PDP must learn the same lesson that every other nullificationist movement in American history has learned - the promise of equal citizenship, rule of law and limited government under the U.S. Constitution can be denied and delayed, but by the very abuse of such denial and delay the ultimate inevitability of its redemption is assured.
Thus, if Puerto Rico is to remain within the framework of the U.S. Constitution there is no substitute for full equality of citizenship through statehood. If Puerto Rico wants to isolate itself legally and politically from the rest of the nation, it can not "have it both ways" with separate national sovereignty and the benefits of permanent union and irrevocable citizenship. constitutionally guaranteed separatism and an end to political integration is the will of the people, national independence is the path that ultimately must be taken.
Every day that we spend arguing over the "free association with common citizenship" theory of "commonwealth" is a day wasted; days that could have been more wisely used to promote achievement of self-determination, through a process in which the people inform Congress of their own preferences based on definitions consistent with the federal constitution. This allows the people whose future status is at stake, to make that determination for themselves, and it allows Congress then to understand and respond the results of the self-determination process.
That is how decolonization is achieved in the American constitutional process.
OFF ISLAND VOTING
An additional issue regarding H.R. 856 which I want to address is the proposal made by some at the March 19, 1997 hearing on the bill in Washington that any U.S. citizen born in Puerto Rico should be qualified to vote in the referenda to be held under this legislation. The reasons why this can not be allowed are relatively straight forward.
Each persons born in Puerto Rico who reside in the states of the union have functional political and legal equality with all other U.S. citizens in the states. Thus, they are enjoying the daily blessings of liberty denied in Puerto Rico, including full participation and enfranchisement in the federal political process. U.S. citizens born in Puerto Rico are not in a chronic colonial condition when they are residing in the states in the same sense as those living in Puerto Rico.
The U.S. citizens residing in Puerto Rico are the population which is not yet decolonized due to the lack of full self-government. The territory and population which is subject to decolonization through self-determination is that of Puerto Rico.
Any attempt to define classifications of U.S. citizens in the states eligible to vote in a federally-sponsored status referendum in Puerto Rico would create imponderable constitutional questions of improper discrimination under equal protection and due process principles in the federal constitution. In addition, under principles of self-determination and international decolonization standards recognized by the U.S. voting by Puerto Rican born U.S. citizens in the states would create an impossible dilemma.
These problems would be aggravated in the case of person born in the U.S. but of Puerto Rican born parents.
· How can Congress create a classification under federal law which discriminates between U.S. citizens for purposes of voter eligibility based on place of origin birth or ancestry?
· If persons born in the U.S. of Puerto Rican born parents are allowed to vote, how can persons born in the U.S. who have no Puerto Rican ancestry be denied the right to vote consistent with the equal protection principle?
· If any U.S. citizens born in a state have a legitimate interest and right under federal law to vote in a referendum on the status of Puerto Rico, then how would we deny that all U.S. citizens born in the states have that same interest and right?
· What about people born in the U.S. with one Puerto Rican parent? What about Puerto Rican grandparents? Siblings? Children?
A classification which allows voting by persons born in the U.S. of Puerto Rican born parents would mean that persons with U.S. nationality and citizenship which is guaranteed by the 14th Amendment due to birth in a state could vote for independence for Puerto Rico, and thereby contribute to the result that U.S, citizens born in Puerto Rico could lose their statutory U.S. nationality and citizenship which is based on birth in the territory, or at least lose the ability to pass it on to their children even if statutory U.S. citizenship is grandfathered for living person who decline Puerto Rican citizenship under independence.
In addition, if Puerto Ricans in the mainland are allowed to vote and the result is statehood, the entire process is subject to valid criticism that the colonial power allowed the Puerto Rican population which has full self-government due to migration to the states to determine the status of the less than fully self-governing population in the territory. Again, it is the disenfranchised population in the territory that has not achieved full self-government which has the recognized right of self-determination, not the population which enjoys self-determination through enfranchisement in the states.
The election laws of Puerto Rico provide a procedure for off-island voting by people who are domiciled in Puerto Rico but temporarily absent (see, Section 41a of Title 16). That is the law which should govern the matter of non-resident voting. No special or extraordinary measures should be adopted at this stage because it would disrupt and distort the democratic process.
The fact that absentee voting has been allowed as permitted under local law as part of decolonization procedures in some cases is not a determining factor in the case of Puerto Rico, where the nonresident population of Puerto Ricans is so large that it could very likely decide the outcome of the vote. Even if the constitutional objections could be overcome, this would create the same dilemma regarding the legitimacy of the result as the 1993 vote has created with respect to the current status of the territory.
The argument that stateside Puerto Ricans should be allowed to vote because any U.S. citizen can simply go to Puerto Rico and vote in the referendum is simply wrong. Under Puerto Rican election law (Section 3053 and Section 3054 of Title 16), voters must be a U.S. citizen "domiciled" in Puerto Rico. The law specifically requires that the person has "manifested his intention of remaining" in Puerto Rico, and states that there can be but one domicile for any person. A person in Puerto Rico "temporarily" does not qualify to vote.
Section 41 of the Election Law in Title 16 of the Code is even more specific it requires that the person " in good faith has established a domicile for (1) one year prior to the date of the election..." The statute goes on to state that "...legal residence or domicile is the place where a person habitually resides..."
There were a lot of misrepresentation and misleading statements made to the Committee on Resources about these matters at the hearing on H.R. 856 in Washington on March 19, 1997 In addition to clarifying the issues relating to voting by non-residents it was asserted at the hearing by a Congressman born in Chicago that Puerto Ricans have the nationality and citizenship of Puerto Rico, but also have a right to the citizenship of the United States.
The argument that people born in Puerto Rico have dual nationality and/or citizenship is a cruel and exploitative distortion of the law and political realities. Although I am personally involved in a notorious voting rights case in which these nationality and citizenship issues arise. I have decided not to use this Committee's invitation to testify on H.R. 856 to address those issues at this time.
This decision is based on the expectation that the local and/or federal judicial and legislative process will resolve the debate over the nature of U.S. nationality and citizenship in Puerto Rico in due course. However, for the benefit of the Committee I do wish to conclude my statement by including in the record an article regarding the hidden agenda behind US citizenship renunciations by pro-independence followers in Puerto Rico, which I sent to a local newspaper but was never published, and an article on dual nationality in Mexico. which is an interesting case study in experimentation with nationality and citizenship as the most sacred manifestations of the inherent sovereignty of all peoples.