When events like the one unfolded last week come to her as a constitutional crisis, Supreme Court Chief Justice Maite D. Oronoz Rodríguez immediately challenges the idea and argues that it was not the Constitution that was in trouble, but political institutions.
"The Constitution resolved the political crisis," she quickly argued.
Her main argument was the “clear” and “specific” decision written by associate justice Rafael Martínez Torres who, with the unanimous support of Supreme Court justices, declared unconstitutional the swearing-in of former Resident Commissioner Pedro Pierluisi as governor.
According to Oronoz Rodríguez, this is the most important decision the Supreme Court has ever made, in light of this summer historic context, when now-former Governor Ricardo Rosselló Nevares resigned following massive protests triggered by widespread disapproval.
Oronoz Rodríguez believes that the July demonstrations mark the beginning of a new Puerto Rico where citizens are more engaged and involved in government affairs and demand more from public servants.
However, she warned that controversies triggered before, during and after the protests should not lead to swiftly amending the Constitution. She thinks there could be mistakes if constitutional changes are not dully evaluated and considered.
Oronoz Rodríguez said that the Constitution, which gives way to all the island’s laws, is a cutting-edge one to the point that provided the necessary criteria to resolve the lawsuit filed by Senate President Thomas Rivera Schatz challenging Pierluisi.
The controversy arose because Pierluisi, who was named Secretary of State to assume as governor after Rosselló Nevares’ resignation, was not confirmed by the Senate, as the Constitution mandates. However, former Resident Commissioner argued that such confirmation was not necessary due to a 2005 amendment to the Succession Law. The Supreme Court ruled that a part of this amendment was unconstitutional.
The lawsuit was filed on Sunday, the Supreme Court certified it on Monday, arguments were presented on Tuesday and you decided on Wednesday. You are ruling on the case in three days.
—Which is not typical. Precisely because of the importance of the matter ... During the first meeting, and I cannot go into details because they are confidential meetings, in general terms, we discussed two things. One was about procedural terms; how we were going to organize ourselves. We also discussed substantive aspects of Law. We knew that we had to act very quickly because Puerto Rico was waiting for a determination and was uncertainty about who should be the governor. After discussing our particular positions, we knew we wanted to come out with one voice.
Were there any problems to reach unanimity?
—I don't want to talk about the internal process.
Was unanimity something achieved after a discussion between the justices or was it an issue that arose itself?
—I prefer documents to speak for themselves.
By declaring Pierluisi’s appointment null and void, technically, can it be said that Pierluisi was governor of Puerto Rico?
—I have to be careful about that. I think it’s fair to say that the majority decision provides that Pierluisi was sworn in accordance with a law that at that time was valid because it had not been declared unconstitutional. It is the Court that, five days later, decided that a Secretary of State has to be confirmed by the Senate and the House, so that appointment, made based on an unconstitutional law, is not valid.
If someone is appointed to run a government office and then it comes to light that what he did was null and void, can it be said that he took office?
—It is a fair question, but I want to be careful because I know that there are debates over what the decision implies in terms of certain parameters. I think that Pierluisi, aware that the situation could end up in Court, was very cautious. He said so himself ... I think he did so because he knew that the matter would end up in the Supreme Court.
When the political crisis began, did you somehow anticipate that a case like this would reach the Court?
—I don’t. I don't think anyone in early July thought that this outcome was possible. I think there a lot happened in just a month. Sometimes we look at what happened and think it look like years. Certainly, I did not think that during my term as Chief Justice we would be deciding a case on the constitutionality of an appointment that was basically for governor. I don't think many people imagined that the course of last weeks events would end here.
Is this the most important case you’ve ever had?
—Definitely. In my experience in this Court, it is the most important and transcendental case. And I dare say it is the most important case that the justices in this court have ever had.
Could you describe that importance?
— In 66 years (of the Commonwealth) there had not been a situation like the one we are going through. The Constitution is so extraordinary that not only did it foresee a permanent absence of an elected governor, but that there could also be an absence of a Secretary of State, who is the second in the line of succession. In the absence of a governor and a Secretary of State, the law has a preferential order to fill that position. That is the law that was amended in 2005 and that brought the problems we had. The Constitution is so precise that it anticipates something that happened 66 years later and provides the way to resolve it. I’ve heard a lot of people talking about a constitutional crisis here. There was no constitutional crisis here. There was a political crisis here. The Constitution resolved the political crisis.
If the lawsuit hadn’t been filed, would Pierluisi be governor?
— What would have happened if Governor Ricardo Rosselló, before leaving, hadn't called an extraordinary session? What would have happened if the House and the Senate confirmed him before Rosselló left office? What would have happened if the House and the Senate confirmed him the following Monday? All these questions have different answers and it is fascinating for me, as a lawyer and as a judge, because the answers are there. All these questions have legal answers.
That Constitution was recently mistreated with cases such as Sánchez Valle which ratifies that Puerto Rico's sovereignty comes from Congress and PROMESA through which Congress imposes an unelected entity over the government.
— There, we would get into politics there and I don't think it's wise for me to get into that issue.
Some say that in light of last month’s experience, the Constitution should be amended ...
—I think that if you have a Constitution that worked. You have to be careful about amending it, and, not that it shouldn’t be done, but you are talking about a document that was thought, that was discussed, prepared by a multisectoral group, in consensus, with a plurality of representatives ... When I hear people saying that we have to rush to amend the Constitution, I think we have to take a pause. Reactively legislation to address a particular situation of a historic moment may not be useful in the future.
—The perfect example is the amendment to Law 7-2005. A 1952 law was amended to address a specific situation, where the governor at the time was from a party other than those controlling the Legislature. This amendment was created for a particular situation of the person proposed as Secretary of State back then. They all made an important mistake then because they drafted legislation to address a specific issue and did so in contravention of the Constitution. We, who are still immersed in this political crisis, do not have enough distance from the events to calmly think about what is convenient for Puerto Rico.
Are you concerned about an amendment?
—My only concern is that we react without granting the island space and time to return to stability. These amendments, if they are proposed, must come after a deep evaluation, study, consensus, and a very well-thought-out process. Besides, you cannot have a constantly changing Constitution. That brings distress and instability.
Why didn't you accept the lawsuit filed by the municipality of San Juan?
—I believe that the matter could be comprehensively resolved by addressing the Senate President’s lawsuit.
How unusual is a unanimous Supreme Court decision in such a short time?
—It's extremely unusual.
Is that why you wanted the vote to be unanimous?
— I think we were all aware that what we said was not only important but also how we said it. A six to three decision or a five to four decision is not the same as a unanimous decision.
It is also unusual that all members issued concurrence opinions.
— I think this is the most important case this Court has ever seen. We clearly see the historical significance of this ruling for future generations. I think it was important, and that all of us need to express ourselves. We were very clear in our determination, but we wanted to make additional points. I have to say that I think judge (Rafael) Martínez Torres was the right person to write the decision. Not only is he a very intelligent justice, he has incredible legal knowledge, but he can write promptly and clearly. It was important for that opinion to be clear, not only because it would be read by lawyers, but because it was an opinion that would be read by the whole island and people from outside of Puerto Rico. It was necessary to transmit the idea in a simple and timely manner, and I think he captured it brilliantly.
Anything in particular that you would like to highlight in the opinions of the case?
—I put it in my concurrence opinion. I think judge (Rafael) Martínez Torres gathered everything I wanted to say, and the comment I wanted to make was simply about the historical importance of the moment and that we are before a different Puerto Rico.
When you saw citizens walking to the demonstrations and images in the media, what did you think?
—I think Puerto Rico had two very important moments in recent years. One is (Hurricane) María and the other, this summer. I think that María united us as a people. I think Maria got the best out of the Puerto Ricans. That’s why you have people who were helping for months and are still helpingpeople they didn’t even know. I think it brought more solidarity to us. The summer of 2019 created an island more involved in its governance. I think Puerto Ricans are watching and will ask much more from all of us public servants, and will be more aware of the decisions, whether they affect them or how they affect them. I think, for the first time in its history, or in a long time, Puerto Rico has been able to tangibly feel that the power of governance is in its hands. Public exercise and public power fall in the hands of Puerto Ricans. I think it was the first time that it has been extraordinarily concrete. That makes us – and we already were – a great island and a much stronger democracy.
Could it be said that the Constitution made room for a peaceful coup d'etat?
—In my concurrence opinion, I said there was a peaceful revolution and it was something that I have been thinking about, since everything began, and that is, without entering into judgments about whether it was correct or not, Puerto Rico managed to have a governor resign in 12 days and, except for a few instances where there was violence, it was a peaceful process. When you look at other countries’ history, you can see coups d’etat by the military, with blood running in the streets, people being kidnapped, with civil wars between brothers. Puerto Rico achieved what the people on the street demanded. It did it in 12 days and in a peaceful way. I think that’s worth celebrating. I recently met with chief justices from other U.S. jurisdictions, and they expressed astonishment at what Puerto Rico had made. Many years from now, we will look back, and we will see that what we are going through is historic, especially because Puerto Ricans don’t usually take the streets that way. Certainly, it was historic.