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Judicial Activism, Part II

by Lance Oliver

July 27, 2000
Copyright © 2000 THE PUERTO RICO HERALD. All Rights Reserved.

What a remarkable week it was in Puerto Rico’s federal courts. Shortly after last week’s Puerto Rico Report was posted on this web site, U.S. District Court Judge Jaime Pieras issued a ruling that aimed like a dagger at the inequalities of the island’s commonwealth status.

Of course just like the earlier ruling by Judge Salvador Casellas, this dagger is unlikely to inflict a flesh wound that will leave a lasting scar, much less kill the status problem.

Still, it is fascinating to see the federal judiciary wading in where the other two branches have been unwilling (Congress) or unable (the president) to make any progress.

Casellas set the stage when he ruled that the federal government could not apply the death penalty in Puerto Rico because the local constitution prohibits it and Puerto Ricans had no voice in choosing the Congress that passed the law or the president who signed it. Casellas distinguished the death penalty from other, more everyday kinds of laws that the federal government applies to Puerto Rico routinely and regularly.

That decision had the air of old-school, pro-commonwealth Popular Democratic Party thinking behind it. The Rafael Hernández Colón faction of the PDP clings to the tenuous belief in a "bilateral pact" between Puerto Rico and the United States, ignoring, or at least rejecting, the many times the U.S. government has made it clear that it has the final say in Puerto Rican affairs and the island is not an entity that negotiates with the federal government like two equals.

By saying the Puerto Rico Constitution could prevent a federal law from being imposed, Casellas supported that school of thought.

Then, just days later, came a ruling by Pieras. In a suit filed by former residents of the states, who lost their right to vote for president by moving to Puerto Rico, Pieras declared that Puerto Rico residents have the right to vote for president.

In doing so, Pieras raised many of the same arguments statehooders often use when they assert that Puerto Ricans deserve statehood and/or the right to vote for president: U.S. citizenship, a history of service in the military, the fact that Puerto Rico residents are subject to federal laws but cannot choose the lawmakers.

But he went beyond saying Puerto Rico residents should have the right to vote. He declared it so.

Naturally, this will be appealed, and successfully. There are plenty of legal precedents showing that voting is not an inherent and irrevocable right of citizens.

Statehooders were elated. Carlos Pesquera, the New Progressive Party candidate for governor openly called it "one step closer" to statehood.

Gov. Pedro Rosselló and Senate President Charlie Rodríguez began planning for an additional ballot in November that would allow islanders to vote for president.

Meanwhile, commonwealth supporters said the ruling, if it stood (and nobody predicted it would) would actually eliminate one reason for statehood. If Puerto Rico could vote for president without scrapping the commonwealth status, then there would be one less reason to seek statehood.

Appeals courts may ultimately turn these two rulings into footnotes in the history books. But for now, the unusual judicial activism on the status front provides for interesting speculation and conversation at least. And it’s also worth noting that another federal judge, Carmen Consuelo Vargas de Cerezo, recused herself from hearing cases involving the Vieques protesters because of her views on that situation.

So what’s gotten into the federal bench in Puerto Rico? These judges, the very arm of the federal government on the island, are starting to sound like they represent the local political parties instead of their employer.

I don’t pretend to know what’s in the minds of the judges, but it must be remembered that these issues are bound to come up as long as an impermanent status rules the island. Commonwealthers claim the current status is not impermanent, but Congress claims the right to unilateral power over U.S.-Puerto Rico relations and has shown time and again that it will make changes as it wishes, regardless of what the people in Puerto Rico want.

As long as those issues of inequality exist, it should not be surprising that these judges, learned people immersed in issues of fairness and equality, right and wrong, legal and illegal, should get hung up on them and periodically issue a ruling that sounds like a condemnation.

But we are a little surprised, anyway. After futile plebiscites, a total lack of will in Congress and a lame-duck presidential effort long on show and short on everything else, who expected the judges to step into the debate? Oh, but they have.

Lance Oliver writes The Puerto Rico Report weekly for The Puerto Rico Herald. He can be reached by email at:

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