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By Puerto Rico's Supreme Court has done more than just hand down an erroneous decision on both the facts and merits of the Mari Bras case, it has also acted in an extra-constitutional manner by usurping the powers of the legislative branch in order to achieve a purely politically motivated objective. A majority of the justices, appointed by one of the prime parties to the status debate, has appropriated the legislative function with consequences, both intended and unintended, for their party's position and for all the 3.8 million Puerto Ricans who reside on our island territory. The US constitution and constitutional law, upon which our local constitution not only rests but was approved by the US Congress in passage of PL 600, pursuant to the Treaty of Paris, is grounded on the principle of the separation of powers among the executive, legislative and judicial governmental branches. The legislative branch makes the laws, the executive or president sees to it that they are faithfully executed and the judicial or court system determines their constitutionality and interpretation. As any school child will tell you, in reaction to George III, the Founding Father’s genius begat the separation of powers to serve as both checks and balances among the co-equal branches of government thereby insuring none would assume imperial or dictatorial primacy over the others. An idea not so self-evident to most of our justices who must have either flunked their basic American history or chose to ignore it. Therefore, what makes this decision particularly egregious is the court’s flouting of this constitutional principle and the mischief that might ensue as a result. Further, courts all along have made irrational findings and come out with decisions that defied the facts and logic (almost all of which, it should be noted, were later reversed). Dred Scott, upholding property rights in slaves and Plessy vs. Ferguson legally allowing racial segregation come readily to mind. Similarly, courts at every level of judicial inquiry have decided issues in light of prevailing political, economic and social trends then popular in society. Child labor laws were struck down, unions and the right to strike declared unlawful and trusts and monopolies found to be in the public interest. Yet, in all these situations, some more odious than others, the decisions were grounded in the constitution or an interpretation of a law or laws enacted by the legislature. In no instance did the courts rewrite the legislation or substitute their own law making to suit their pre-conceived political agendas. Even today’s conservatives rail not at activist courts and judges writing laws but rather their interpretation of the constitution and appropriate legislation to support decisions with which they disagree. Abortion and criminal rights, school prayer and busing relate not to the courts writing laws that affect these matters but rather interpreting them to include or exclude these protections. What our Supreme Court did was to substitute its judgment for that of the legislature and rewrite voter qualification criteria which, ironically, the court found to be within the legislature’s constitutional purview. And, it did so along purely party lines. In so acting the court has established a dangerous precedent, undermined its own legitimacy and that of the commonwealth structure here and in Washington and last, but not least, the claim of all of us to inalienable US statutory citizenship. Now, whenever an aggrieved party disagrees with some kind of legislation he or she can now go to the Supreme Court or, the lower courts for that matter, and ask that the offending law be judicially modified to suit the claimants purposes. And if the court’s make-up is such that it disagrees with the legislative party in power it will do just that. Puerto Rico now, for all intents and purposes, has two legislative chambers with the non-elected possessing supremacy over the elected. There’s no appeal from their rulings and they can’t be thrown out in the next election! Having assumed both a judicial and legislative function, the court’s own legitimacy is now in question. Congress could conceivably re-examine the Puerto Rico constitution and find it to be defective given the Supreme Courts failure to honor the inherent separation of powers principle found in the US Constitution upon which ours is modeled. Having approved, after modification and amendment, the Puerto Rican constitution under PL 600, Congress exercising its Territorial Clause powers could today well conclude that further unilateral modification was necessary to see to it that the checks and balances provided by the separation of powers was guaranteed in the future. Who is to check the Puerto Rico Supreme Court’s power grab if not the US Congress. After all, if a governor was to abridge the judicial or legislative functions who would deny the right of the US Congress to act to protect the 3.8 million US citizens residing on the island? Similarly, the Supreme Court’s ‘crazy’ breach of the separation of powers doctrine invites congressional intervention. Evidence supporting congressional intervention? We need go no further than one of the foremost authorities on PL 600, Governor Munoz Marin: "You know, of course, if the people of Puerto Rico should go crazy, Congress can always get around and legislate again." (Gov. Munoz Marin, Hearings Before Committee on Public Lands, H. of Rep., 81st Cong., 2nd., p.33) Surely, the Supreme Court, rather than the people of Puerto Rico has gone crazy. Congress, anyone? Finally, what of the claims that the decision was a boost for commonwealth? The majority opinion goes on and on trying to support illusory commonwealth status over territorial reality but these ‘interpretations’ and ‘findings’ are what my lawyer friends call dicta. That is, whatever the pronouncements on the subject they’re not relevant to the case, irrelevant and without legal authority. It’s the citizenship matter that really counts. Rather than a victory for commonwealth the decision is potentially a lethal blow for our statutory American citizenship. If Puerto Rican citizenship exists then the US Congress would be less hesitant to revoke the statutory American citizenship granted in 1917. And, confronted by a presumably final and official ruling from Puerto Rico’s Supreme Court on the matter, the US Supreme Court might well defer its US constitutional oversight to the Puerto Rico constitution as interpreted by our highest court. In other words, a US Supreme Court fearful of stripping Puerto Rico’s 3.8 million Americans of their US citizenship and thereby leave them stateless, might conclude otherwise if instead of stateless they are now, or always where according to our courts, citizens of Puerto Rico. I can just see, as can the 95 percent of all of us who cherish our American citizenship, the tragedy of the Mari Bras decision come full circle. Finally fed up with our inability to decide on a permanent status other than dependent territory unwilling to either assume full responsibilities under the US flag or go its own way, the American people and Congress decide to cut us adrift as citizens of a newly independent Puerto Rico. It would be a fitting if tragic conclusion to the commonwealth supporter’s nearly fifty year quest to have the ultimate best of all possible world’s, American citizenship and all its benefits without the inherent constitutional or financial obligations. Now with dual Puerto Rican citizenship they would thumb their noses at Uncle Sam all the while with their palms upraised asking for more dinero in Spanish! The American people can stand only so long a finger in the eye, the Puerto Rican Supreme Court's extra-constitutional decision may well turn out to be the straw that breaks the camel's back in any language! Miriam Ramirez de Ferrer can be reached for comments by contacting us at Info@PuertoRico-Herald.org .
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