Murkowski, Wyden deny Puerto Rican progress
December 19, 2013
by Rafael Hernandez Colon
Governor of Puerto Rico. 1973-1976; 1985-1992

In an unprecedented letter to the presidents of the Commonwealth, Statehood, and Independence parties of Puerto Rico, Senators Ron Wyden (D-Ore.) and Lisa Murkowski (R-Alaska), chairman and majority leader of the Senate Energy Committee with jurisdiction over the political status of Puerto Rico, ruled out developed Commonwealth as an option that may be presented to the people of Puerto Rico in a future referendum.

The policy expressed by Senators Wyden and Murkowski goes against the right of self-determination of the Puerto Rican people. It excludes an option sanctioned in I953 by the United Nations at the request of the United States when Puerto Rico became a Commonwealth.

U.N. General Assembly Resolution 748 VIII of 1953 not only recognized Commonwealth as a legitimate option of self-government for Puerto Rico but it also responded to President Eisenhower's representation that should Puerto Rico desire a broader measure of self-government the United States would correspond to the wishes of the people of Puerto Rico.

The purported policy goes also against the right of Puerto Ricans as American citizens and in particular of their right to vote.

This is made clear in the Report of the United States-Puerto Rico Commission on the Status of Puerto Rico. This Commission was created by Congress through Public Law 88-271, February 20, 1964. The Chairman of what is now the Energy Committee, Senator Henry Jackson, was a member of this Commission.

It undertook the most extensive study on the political status of Puerto Rico that has been carried out since Puerto Rico came under the sovereignty of the United States.

Its report included three volumes relating to the legal-constitutional factors, the economic factors, and the social-cultural factors in relation to the status of Puerto Rico. In its conclusions on the legal-constitutional factors the Commission stated:

“The key to the continuation and development of the relationship between Puerto Rico and the mainland is U.S. citizenship. This citizenship carries with it basic personal and institutional protection which cannot be encroached upon by the Legislature of Puerto Rico or the Congress of the United States. Present constitutional doctrine, therefore, would not permit any action rendering ineffective the right of U.S. citizens of Puerto Rico to participate in the determination of their future, whether it will be continued and developed Commonwealth, Statehood, or Independence.”

The Supreme Court of the United States has not altered its constitutional doctrine since that report was issued.

On the contrary, it has deepened and strengthened the doctrine prevailing at the time of the report by holding that the voting rights of Puerto Ricans as U.S. citizens are rights protected by the Constitution of the United States. Rodríguez v. Popular Democratic Party 457 US I (1982).

Senators Johnston and Wallop, former chairman and minority leader of the Energy Committee, fully recognized the right of Commonwealth supporters to vote for a developed Commonwealth when they presented S. 244 102 Cong. 1st Session Sec. 402 (1991) which provided for a referendum on status options to be held in Puerto Rico.

This bill generated the most serious consideration of this matter undertaken by several Senate Committees up to this date. Hundreds of thousands of Puerto Ricans are supporters of a developed Commonwealth. They have voted for it in the plebiscites of 1967 and 1993 both of which Commonwealth won over statehood and independence. The pro-statehood Legislature then excluded Commonwealth from the ballot in 1998 and Commonwealth supporters were forced to vote for “none of the above” which won that plebiscite.

The pro-statehood Legislature then excluded developed Commonwealth and “none of the above” from the ballot in the plebiscite held in 2012 and structured two ballots in such a way that a majority voted for a change in the current status of Commonwealth.

This majority was not only composed of statehood and independence voters. Supporters of a developed Commonwealth also favor changes in the current status. The plurality voting for statehood in the second ballot by this process has not been taken seriously in the Congress.

Exclusion of a developed Commonwealth from the ballot would deprive Commonwealth supporters of their right to vote.

Developed Commonwealth must be on the ballot for a plebiscite to be a fair exercise of the right to vote of U.S. citizens in Puerto Rico when making use of their right of self-determination to propose to Congress changes in their political status.

Developed Commonwealth, however, does not mean a sovereign Commonwealth as if Puerto Rico were an independent nation.

The U.S. Supreme Court has held that the Commonwealth of Puerto Rico, like a state, is an autonomous political entity “sovereign over matters not ruled by the U.S. Constitution.” Calero Toledo v. Pearson 416 U.S.663 (1974).

The developed Commonwealth would include changes in the compact establishing the federal relations to provide for more effective self-government. There is nothing in the Constitution that prevents Congress from making changes in federal laws.

Basic democratic principles require that voters may vote for such changes if they prefer Commonwealth over statehood or independence.

By disenfranchising the supporters of Commonwealth, the policy announced by Senators Wyden and Murkowski will delegitimize whatever results stem from a referendum and derail the process towards an ultimate solution on status.

The proposal by President Obama including Commonwealth in the process subject to an opinion by the Justice Department as to the constitutional viability of its development is the way to move forward the process.