February 25, 2021

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Supreme Court declares November plebiscite constitutional

It was established that the plebiscite fulfills a public purpose

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San Juan – The Supreme Court of Puerto Rico (TSPR) ruled on Monday that the provisions of Subchapter VIII-B of Law Number 58 of June 20, 2020, known as the Electoral Code of Puerto Rico of 2020 (Law No. 58-2020 ) and Law Number 51 of May 16, 2020, known as the “Law for the Final Definition of the Political Status of Puerto Rico” (Law Number 51-2020), are constitutional.

Regarding the validity of Law Number 51-2020, which provides for the holding of a political status consultation on November 3, 2020, the Court concluded that it has a public purpose, consistent with what is provided in Article VI , Section 9 of the Constitution of Puerto Rico.

It was established that the plebiscite serves a public purpose, “since it allows all Puerto Ricans, under equal conditions, to participate and express themselves in favor or against ratifying and implementing the status formula that was favored in the plebiscites held in 2012 and 2017 ”and exercise their right to self-determination.

In addition, the Court found that the precedent in Báez Galib II, maintains that legislation that substantially alters Puerto Rico’s political relationship with the United States cannot be approved without first obtaining the approval of Puerto Ricans.

Therefore, it concluded that, unlike in 2000, when the case of Báez Galib II was resolved, today there is an electoral mandate for the decolonization of Puerto Rico and in favor of all legal efforts that advance those ends.

Given this, it determined that the political status consultation to be carried out on November 3, 2020 is a valid and non-discriminatory mechanism, with an eminently public purpose.

It was added that the Legislative Assembly has the power to choose legitimate mechanisms to advance its objective and register the expression of the people and that the Court cannot question the wisdom or convenience of this legislative determination because it is a non-justiciable political issue.

On the other hand, regarding Subchapter VIII-B of Law Number 58-2020, which authorizes the holding of presidential elections in Puerto Rico, it was resolved that unlike Law Number 403-2000, it has a discernible public purpose and definite.

This is due to the fact that, unlike when Báez Galib II was resolved, in 2017 the people expressly authorized the Legislative Assembly to pass a presidential voting law, consistent with the electoral mandate in the 2012 and 2017 plebiscites.

The Court reaffirmed the ruling in Báez Galib II, that this type of legislation needs to be authorized by the people.

In conclusion, the Supreme Court determined that it does not correspond to invalidate the contested legislation, because that express authorization was obtained for Law Number 58-2020 in the 2017 plebiscite and that it is consistent with the aspirations that the people of Puerto Rico expressed when approving its Constitution.

Associate Judge Rafael Martínez Torres issued the Court’s Opinion.

On the other hand, Associate Judge Ángel Colón Pérez issued a Dissenting Opinion, which was joined by Presiding Judge Maite Oronoz Rodríguez and Associate Judge Anabelle Rodríguez Rodríguez, in which he pointed out that the majority of the Court revoked sub silentio the precedent established several decades ago in Báez Galib v. EEC

In said precedent, the Court had determined in 2000 that because the Constitution of the Commonwealth of Puerto Rico did not favor, nor does it favor, any alternative of any status, it was concluded that using public funds to advance the cause of only one of the political parties – understand, statehood – was unconstitutional.

According to the dissenting judges, by deviating from this rule the majority of the Court, “dangerously validate in our jurisdiction the use of public funds to advance the status formula proposed by the political party in power.”

They stated that the actions of the majority of the Court were in direct conflict with the provisions of the Constitutions of the Commonwealth of Puerto Rico and the United States of America, and their interpretative jurisprudence.

This is based on the expressions of the federal Department of Justice in a written communication in which it listed its objections to the holding of the plebiscite, both procedurally and substantively.

Similarly, the Dissenting Opinion highlights that: “you will notice that the public funds that today most of the members of this Forum authorize are used in symbolic events, elaborated in dark rooms, and with malicious intent, they would have served a better purpose of having ended up at the doors of all those homes of Puerto Rican families that are still suffering the damage caused by hurricanes Irma and María, the earthquakes in the southwest region of the country, or the COVID-19 pandemic; events that have truly revealed the poverty that exists on this island and the economic gaps that sadly and unnecessarily separate one from the other. Perhaps this way, in a more real and accurate way, we can achieve the true EQUALITY that some of my colleagues on the stage claim in their writing! “

On the other hand, Associate Judge Anabelle Rodríguez Rodríguez issued a separate Dissenting Opinion in which she highlighted her disagreement with the decision of the Supreme Court majority, since it allows the millionaire disbursement of public funds for the celebration of two electoral events that lack of a public purpose and whose results will be completely inconsequential.

As stated, said action is unconstitutional and that the social and economic implications of the course of action of the majority are just as dangerous and problematic as the judicial precedent they establish.


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