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The Enduring Fallacy of the “Self Governing Commonwealth”

In December, Guaynabo Mayor Ángel Pérez Otero was indicted for corruption, including charges of bribery and extortion.

As initially reported in the San Juan Star, the indictment not only raised concerns about local corruption, but the wording of the indictment stirred up debate over Puerto Rico’s status as a U.S. territory.

The concerns stem from the wording of the indictment, which describes Puerto Rico as “a self-governing Commonwealth in association with the United States of America.”

Puerto Rico attorney Gregorio Igartúa took issue with this characterization of Puerto Rico’s relationship with the U.S.

In a letter sent to U.S. Attorney General Merrick Garland, Igartúa asked that “the practice of referring to Puerto Rico as ‘in association with our Nation’ be immediately ended.”

Letter to Attorney General

“I believe that the DOJ is doing a very good job in fighting local corruption cases,” Mr. Igartua began in his letter, “Notwithstanding, there is another very important issue I need to bring to your attention.”

“Several fellow citizens have expressed their concern that in federal documents, including indictments, Puerto Rico is referred to as if “in association with the United States,” he continued.  “This practice cannot be allowed to continue, because it has serious political consequences within the context of what our legal relation with our Nation really is, and considering we are 5th and 6th generation American citizens.”

Writing that the “reference of a ‘relation in association’ is legally unfounded and contradictory to all assimilation policies adopted by Congress for Puerto Rico,” Igartua asked the U.S. Attorney General to carefully consider Puerto Rico’s status as a territory under the U.S. Constitution’s Territorial Clause.

“This practice cannot be allowed to continue,” Iguarta wrote, “because it has serious political consequences.”

The letter concluded with a request for dignity and equal treatment of Puerto Rico.

Puerto Rico “in association with” the US?

The U.S. Justice Department can be forgiven for its mistake; it is one that has been made many times over the years due to a tricky translation of a Spanish name for Puerto Rico.  The term “Estado Libre Asociado de Puerto Rico” is translated literally to mean “Free Associated State of Puerto Rico.”  The term is frequently translated into English as simply “Commonwealth.”

The Federal indictment’s language alluding to an “association with the United States of America” reflects the difficulty of translating the Spanish phrase in a way that is also the correct legal characterization of Puerto Rico as a US territory.

The phrase is also reminiscent of US relationships with three sovereign nations in the Pacific Ocean that have signed Compacts of Free Association with the US: the Federated States of Micronesia, the Republic of the Marshall Islands and Palau.

These three sovereign nations are members of the United Nations and their citizens do not have U.S. citizenship. They are called the Freely Associated States. They are independent nations, not U.S. territories, and Puerto Rico is not among them.  If Puerto Rico were “in association” with the U.S. like the Pacific nations are, there were be no federal courts in Puerto Rico and the indictment would not have been filed in a U.S. court.

Perhaps in recognition of this confusion, Puerto Rico is increasingly simply referred to as a U.S. territory.  “Territory” is the most accurate term to describe the U.S. Puerto Rico relationship, and there are no translation issues with the term.

The Myth of the Self Governing Commonwealth

The origin of the “commonwealth” label stems from the title of Puerto Rico Constitution: “The Constitution of the Commonwealth of Puerto Rico.”  The people of Puerto Rico approved the local1952 after making changes required by Congress. Given that the Constitution’s first draft was deemed unacceptable by Congress and Puerto Rico’s leaders found it necessary to change it, it is clear from the beginning that full autonomy and self-governance has always remained out of reach for the U.S. territory

The historic claim that Puerto Rico became “self-governing” when Congress permitted local governing autonomy upon approval of the Puerto Rico Constitution in 1952 was clearly exposed as a fallacy in 2016, the year Congress enacted of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).  Under PROMESA, a federal oversight board has authority and control over the local government.

The same day that the House of Representatives approved PROMESA, the Supreme Court confirmed in Puerto Rico v. Sanchez Valle that Puerto Rico’s “self governance” is limited by the U.S. Constitution’s Territorial Clause.

As Lyle Dennison explained on SCOTUSblog on June 9, 2016: “Amid a lofty discussion of what the Constitution says about “sovereignty,” a divided Supreme Court ruled on Thursday that Puerto Rico does not have independent authority [in matters of criminal law].  The argument appears to diminish the constitutional stature that the Puerto Rican government thought it has had for nearly seven decades.”

Referencing congressional consideration of PROMESA, Dennison continued, “Congress is actively considering right now whether to create a new option for settling the island’s debts.  The mere fact that the issue is now being weighed on Capitol Hill shows that Congress clearly understands that what Puerto Rico can do depends almost completely upon what the lawmakers are willing to allow.”

In his SCOTUSblog analysis, Dennison further reasoned that the Sanchez Valle ruling “ultimately turned on the basic fact that Puerto Rico has been a territory — with less constitutional rank than a state — since 1898.  As such, it continues to be entirely subordinate to Congress under the Constitution’s Territories Clause.”

Dennison concludes his analysis by emphasizing that “[t]he majority opinion endeavored to show that the Court was not taking away the self-governing authority that Congress gave Puerto Rico in 1950, when it designated the island as a “commonwealth” and allowed it to write (mostly on its own) a constitution” because such authority has never existed.

What is the relationship between Puerto Rico and the US?

Read the Indictment

Read the letter


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