Washington - With the end of the Cold War, the perception that the so-called "Free Associated State or Commonwealth" (ELA) was a special relationship between the United States and Puerto Rico began to fall apart, a theory that PROMESA law ended up burying.
Tuesday marks the 65th anniversary of the adoption of the Constitution of ELA Puerto Rico. But, midway, the US was responsible for making visible the gaps in territorial status, which many call ELA and which framework of self-government has been diminished.
Just as the status process began in 1989-1991, interim Secretary of Justice Edward G. Dennis told the Senate Energy and Natural Resources Committee that any definition of ELA should stress that "Puerto Rico remains under United States sovereignty ".
"Congress retains the authority to legislate with respect to Puerto Rico, and a federal law can not be rejected or annulled by the local government", Secretary Dennis said on July 12th, 1989, at a time when the government of the Popular Democratic Party (PPD) and the then governor Rafael Hernández Colón proposed that ELA could have a mechanism to discard federal rules.
On February 7th, 1991, the US Attorney Richard "Dick" Thornburgh, told the Senate that for President George Bush, who in his 1989 State of the Union message advocated a process of self-determination for Puerto Rico and backed statehood, "it was incongruous to applaud the movements" towards freedom in Eastern Europe, Latin America and elsewhere, but to refuse to guarantee a process of self-determination for our own citizens".
Then, when the process started in the federal Senate was running aground, Thornburgh said that an ELA with sovereignty like that of the states was incompatible with the United States Constitution.
"Under the territorial clause of the United States Constitution ... an area within US sovereignty that is not included in a state, has to be necessarily governed under the authority of Congress" Thornburgh added.
A 1994 memorandum, referring to Guam, further cornered ELA advocates, stating that the promise that "mutual consent" is needed to alter agreements between a territory and the United States is not enforceable, since one Congress does not oblige another.
The reports of the Working Groups of President George W. Bush (2005 and 2007)had to dispel doubts about the vision of the political component of the federal government - which has always decided the status debate - regarding the colonial nature of the Island .
Bush first report stated that the power of Congress is so broad that it can give Puerto Rico away if it wants to.
With President Barack Obama, the White House tried to soften the burden on the ELA, with a 2011 report noting that although it is subject to the clause for territories of the federal Constitution, it leaves plenary power over those areas in hands of Congress, "Puerto Rico has significant local autonomy".
But, when the controversy of the constitutional clause against Double Jeopardy for criminal charges went to the US Supreme Court with the case known as Sanchez Valle, and at a time when options were sought for Puerto Rico to restructure its public debt, the Obama administration did not remain mute. "The last source of power of the territories - like Puerto Rico - is derived from Congress", said the Deputy Attorney General Nicole Saharsky to the Supreme Court on January 13th, 2016.
Saharsky wondered and answered: "Can Congress unilaterally change aspects of its relationship with Puerto Rico? "The answer is yes".
The decision of the Sánchez Valle case - which clearly determined that for the purpose of the Double Jeopardy clause for criminal charges the source of power is in the Congress -, generated new political interpretations in San Juan. But PROMESA made the scenario clear to all and justified the arguments of the Department of Justice of President Obama, by striking out, as never before, the illusion of the own government.
By creating a new territorial bankruptcy system that allows Puerto Rico to restructure much of its public debt, Congress imposed a Board that controls the fiscal decisions of elected officials, to the point of passing over the Puerto Rico Constitution by giving the members of the new financial authority full power to propose and legislate the budget.
"The control included in PROMESA may be the widest that Puerto Rico has experienced under the American flag", said Jeffrey Farrow, who co-chaired Bill Clinton's White House Working Group on the Island and has advised in recent years statehood sectors, including the government of Luis Fortuño.
Those who have defended the concept of ELA also recognize that PROMESA was the fatal blow that confirmed the Island's political subordination to Congress. "In the last 20 years, the US has changed its position (on ELA), specifically from the Legislative and Executive branches", said Hector Ferrer, president of the Popular Democratic Party (PPD, Spanish acronym).
Ferrer proposes the PPD to initiate an internal process to generate a new status proposal that maintains between its aspirations the American citizenship, the Puerto Rican identity, access to international markets and the disassociation of "federal laws restrictive to our economy". "It must be a relationship that is recognized both in the federal Constitution and in international law", he said.
Since 1989, the PPD has claimed a partnership with the United States outside the territorial clause. Its big challenge, however, is still to convince Washington.
Along the way, as established by the US Department of Justice on April 13th, the proposals for an improved ELA have also been discarded at the Executive and Congress level.
Although the federal government has recently been consistent in limiting to three the alternatives of status - territory, independence (including free association) and statehood - Ferrer said the PPD will insist on seeking "a fourth alternative".
"I'm not going to fall into names or labels. I will promote the substantive aspirations of the autonomists", noted the PPD president.
After the Island sank further in a colonial situation, José Javier Colón Morera, a professor of political science at the University of Puerto Rico (UPR), considers clear that "the PPD can not continue evading a future where alternative scenarios to statehood could arise".
A POLITICAL LIMBO
PROMESA has created a limbo that can last a decade. The judicial process of bankruptcy that only works under the territory, threatens to prevent a change of status in the short term.
Colón Morera is concerned about the "lack of intellectual consensus on the future of Puerto Rico" in universities and study groups. On one hand, he said that it must be taken into account that Congress has received "in stony silence" the recent plebiscite, but also perceives "lack of will in the main US parties to invest political capital in the issue".
Colón Morera added that the possibility of a change of status "is a window that is not open, but it is a mistake not to be prepared for when it happens”.
Farrow, on his part, does not believe that it can be affirmed that the territory is the preferred status of the US government. But he does accept that for the federal government it is "a comfortable relationship" as it is in the US Constitution.
"The position of the US government is that a different status - statehood or national sovereignty - are options, but it must be shown, without dispute, that a vast majority wants one of those alternatives", Farrow said.
Following the 2012 plebiscite, which clearly reflected a rejection of 54% of the voters to the current territorial system, Congress legislated in January 2014 that the Attorney General of the United States could examine the status alternatives of an upcoming local plebiscite, in exchange for $ 2.5 million to help finance the consultation.
It was the second time the US proposed a similar process. The previous time, after the 2000 legislation, the government of Sila Maria Calderón rejected the idea. This time, although the government of Ricardo Rosselló announced that they would seek the endorsement of the Federal Executive, he refused to complete the process and postpone the last June consultation, which prevented a final review of the plebiscite law by the US Secretary of Justice.
That 2014 offer is still in force. Last month consultation – in which, according to the preliminary certification, 502,000 people voted for statehood (97%) - suffered from a very low voter turnout (23%), amid a boycott of the entire opposition.
If nothing changes in the relationship with the US at the end of the PROMESA law, how do you get outof the hole? "You govern on the basis of substantive proposals", Ferrer said, adding that the PPD will be willing to negotiate a new agreement.
For Farrow, the United States, thinking about itself- as it did during the Cold War years when the USA defended ELA -, can always try to muscle its way and try to brighten up a relationship that is already difficult, as in 1953, "but it can not make ELA more than it is: a territorial status".