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"COMMONWEALTH IS LOSING LITTLE POWER IT HAD" THE SAN JUAN STAR, VIEWPOINT, SUNDAY, APRIL 5, 1998, PAGE 39. It is almost unbelievable, but the fact is that former Gov. Rafael Hernández Colón still insists that the commonwealth was set up through a "legal and binding contract" and that Congress cannot unilaterally "undo the commonwealth structure" (STAR, March 29). Such a statement is to be expected from a ward activist of the Popular Democratic Party, but not from a lawyer who has been a law school professor, Secretary of Justice, President of the Senate and Governor of Puerto Rico. Hernández Colón has shown a keen interest in the status problem ever since he was an undergraduate student at John Hopkins University. As Secretary of Justice, Hernández was one of the key players for the holding of the 1967 plebiscite. As Senate President, he opposed the designation of an ad hoc committee on the presidential vote. As President of the PDP and Governor for three terms, he appointed an ad hoc committee for the enhancement of commonwealth, requested from congressional leaders the passage of legislation for the holding of a status referendum, and proposed many commonwealth definitions. Among them we find the "Aguas Buenas Pronouncement" and the Pact of Permanent Union of 1975. After so many efforts, definitions and proposals by Hernández Colón, the commonwealth formula has not advanced an inch. In fact, the degree of authority of commonwealth has been greatly reduced. Since the enactment of the Federal relations Act until this day, Congress has passed a myriad of laws whose terms have limited the field of action originally allowed to the commonwealth government. The degree of authority of the Puerto Rican government in purely local matters, such as labor law, health, environmentalism, highway construction, education, welfare, housing, nutrition, energy, prison overcrowding and many fields of public interest is now much less than it was in 1952. These facts are known by Hernández Colón. In an article published in the "Revista Jurídica" of the University of Puerto Rico (Vol. 65: 533) (1966), he admitted that "the commonwealth relationship with the United States established by the Federal Relations Act of 1952, has a major defect which is the imposition of legislation by Congress on Puerto Rico without the consent of our people." Thus, it is evident that when Hernández Colón is now claiming that the commonwealth is "a legal and binding contract" his words are aimed at the demoralized and disoriented rank and file of his PDP. A contract has been defined as an agreement creating obligation, in which there must be competent parties. Is the Commonwealth of Puerto Rico a competent party to enter into an agreement, on equal terms, with Congress? The legislative history of the Federal Relations Act and its interpretation by the federal judiciary have already answered that question in the negative. What was really intended with the Federal Relations Act was to give a certain degree of authority to the people of Puerto Rico to organize the local government by adopting a state constitution whose terms would be subject to the final approval by Congress. The report of the Interior and Insular Affairs Committee of the U.S. Senate is clear: "These measures are designed to complete the full measure of local self-government on the island by enabling the 2-1/4 million American citizens there to express their will and to create their own government." The report of the Public Lands Committee of the U.S. House of Representatives leaves no doubt as to the true juridical nature of commonwealth: "It is important that the nature and general scope of S. 3336 be made absolutely clear. The bill under consideration would not change Puerto Rico's fundamental political social and economic relationship to the United States concerning such matters as the applicability of United States laws, customs, internal revenue, federal judicial jurisdiction in Puerto Rico, Puerto Rican representation by a Resident Commissioner, etc., would remain in force and effect, and upon enactment of S. 3336 would be referred to as the Puerto Rican Federal Relations Act. Nor will it (S. 3336) in any way preclude a future determination by the Congress of Puerto Rico's ultimate political status." Antonio Fernós Isern, who was then the Resident Commissioner, made a very important statement before the Committee on Interior and Insular Affairs of the U.S. Senate, on May 17, 1950: "As already pointed out, S. 3336 would not change the status of the island of Puerto Rico relative to the United States... It would not alter the powers of sovereignty acquired by the United States over Puerto Rico under the terms of the Treaty of Paris." And U.S. Rep. Jacob Javits, in unequivocal terms, said: "The bill does restrict, and let us have that very clear, the people of Puerto Rico to a constitution which is within the limitations of the Organic Act for Puerto Rico. Their fundamental status is unchanged." The federal judiciary has interpreted the Federal Relations Act, Public Law 600, in similar terms with its legislative history. The island is still a territory within the purview of the Territorial Clause of the U.S. Constitution, Americana of Puerto Rico v. Kaplus, 368 F. 2d 431; the island was a territory "both before and after the adoption and approval of its constitution," Detrés v. Lions Bldg. Corp., 234 F. 2d 596; "Congress has the power to treat Puerto Rico differently, and every federal program does not have to be extended to it," Califano v. Torres, 435 U.S. 1. In a recent case, U.S. v. Sánchez, 992 F. 2d 1143, the Court of Appeals for the Eleventh Circuit held that the Congress' decision to permit self-government in the island did not remove Puerto Rico from application of the Territorial Clause. The court concluded that there has been no fundamental alteration in the island's relationship with the nation: "Puerto Rico is still constitutionally a territory, and not a separate sovereign." Why does such reality seem so hard to be understood by Hernández Colón and his PDP?
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