THE BOARD IS HERE; AND NOW WHAT? (translated from the original Spanish version)

This weekend I took the time to do a first reading of the draft bill prepared by the House Natural Resources Committee and the Republican leadership. I admit that it’s much worse than I thought and even worse than the very good stories written by reporters and columnists. To give you an idea, this board that they intend to impose on us, whose real name should be Omnipresent, Dictatorial and Colonial Board, which Puerto Ricans will not vote for nor will they have any say about its appointments and even worse over how it’s carried out, will have, among others, the following omnipresent and unlimited powers:
1. Tell the Governor and the Legislature the 5 years Fiscal Plan they must approve and if they don’t approve the plan the Board wants, then they will unilaterally approve it and will be law;
2. Tell the Governor and the Legislature what budget they must approve to meet the fiscal plan, and if not approved as the Board wants, then they will unilaterally approve it and it becomes law;
3. The power to order budget cuts if there is a deficit during the fiscal year, which may not include cuts to the debt service;
4. The power to veto any law validly approved by the Legislature and the Governor;
5. The power to repeal any regulation duly approved by any agency of the government of Puerto Rico or to dictatorially adopt any regulation that applies to any agency of the government of Puerto Rico;
6. The power to appoint a kind of trustee to administer any agency or public corporation;
7. The power to approve any contract of more than $1 million legally and legitimately granted by the government;
8. The power to grant any multi-million energy or infrastructure contract, without an auction and without having to comply with environmental regulations and other regulations;
9. The power to review and revoke any “tax waiver” agreement. Although it does not define “tax waiver” it appears to refer to all mechanisms of agreements and tax exemption decrees granted by the government of Puerto Rico under the law.
10. The power to decide what budget they need, which we will pay and if we will not “voluntarily” give what they ask for, then they will take it from the taxes we pay.

This is just a quick list and not exhaustive of the powers of the Board. But there is more. In regards to the possible restructuring of the debt, many are celebrating that the draft authorizes it. But you have to read carefully and understand.

The draft bill takes from Puerto Rico the most essential part in the process of bankruptcy or debt restructuring: the right to be the debtor. Yes, it is true that there is an authorization to use a process similar to bankruptcy. But it is the Board, not us, who decide when and how to use it. We are the debtors, but they decide when we can truly use the mechanism of bankruptcy. In other words, if we have to decide between lying off government employees, raising tolls or stopping payment to the vulture funds, it is not the Puerto Ricans elected by the Puerto Rican who will get to decide. After that, if we do go through the bankruptcy process, it is them who are in the driver’s seat. We’re not even in the car.

If anyone had proposed that these powers be given to the governor elected by the Puerto Ricans in order to overcome the crisis, the press, the commentators, everyone, would be saying that we’re on our way to a dictatorship and that it would violate our Constitution and the scheme of separation of powers.

What is being proposed is worse than the Foraker Act of 1900. In essence, we are returning to the military government, but with its powers exercised by civilians. Something similar to what the United States did in Iraq after the war. I’ll explain.

Under the Foraker Act and later the Jones Act, the governor appointed by the President, could NOT approve a budget unilaterally, could NOT unilaterally adopt regulations and could NOT give contracts outside the requirements of law. Even if he vetoed a law, there was a process to override that veto. And under these clearly colonial and antidemocratic Acts, laws passed by the Legislature of Puerto Rico could be repealed by Congress or by the President, but at least they were elected by someone. Here those same power are granted to this Board, that is not elected by anyone and therefore does not answer to anyone.

In the constitutional history of the United States, I do not remember any body to which the federal government granted these executive and legislative powers, omnipresent and high-handed, without any check or balance.

This moment is crucial. It is about whether we believe in democracy or whether we open the way to an anti-democratic regime. That is always the first step towards dictatorships. Under Franco, Trujillo, Pinochet, Batista and later Fidel, everyone who defended them said, “it’s not the best, but it is necessary”, “we need someone to do what needs to be done no matter what the people want”. Exactly the same arguments used today to advocate for this board.

Right now the United States is going through one of its most difficult political moments, with a politicized gridlock Congress, divided, full of prejudices and obstructionists. There are candidates for President that are scary and are already an international embarrassment. They have inflicted a discourse of hate, intolerance, racism and sexism. But no one proposes taking away the right of the people to chose their congressmen or the President. No one proposes ending American democracy, yet that is precisely what they propose for Puerto Rico. I’ve said it before and I’ll repeat it: the problems of democracy should be met with more democracy.

And now, what?

A lot of people say that this is only a draft and we need to keep waiting. For me, the mere fact that this is presented by the Chairman of the congressional committee that has jurisdiction over Puerto Rico and has the support of the Republican leadership in the House is enough. And don’t tell me that the Obama administration is blameless. It was the Obama administration that went to the Supreme Court in January to say that Congress has the power to do as they wished with Puerto Rico. It was Obama’s Treasury Department who first proposed a Board to “supervise” Puerto Rico. It was Obama’s Treasury Department who went before the House Resources Committee and said that they, Congress, could unilaterally go over the Constitution of Puerto Rico.

As they say, “the writing is on the wall”. It is not the time to wait, it’s time to speak clearly and put accents where we have to put them.

If this draft is what they think in Washington about Puerto Rico, lets demand that they stop being hypocrites: if they truly believe that we can’t govern ourselves then suspend the application of the Constitution of the Commonwealth, thereby suspending elections and openly grant this board all the powers today held by the executive and legislative branches (the draft technically renders the judicial branch inoperable and inconsequential, because all the decision made by the Board, if challenged, would go to the federal courts). It is cruel to ask the people of Puerto Rico to go vote for a Governor and a legislature, when the key decisions concerning the future of our country won’t be made by them, but by five bureaucrats who won’t be on November 8th ballot.

Since Congress obviously won’t have the courage to speak clearly, I propose a patriotic agenda of 5 points.
1. Immediately approve a Joint Resolution of the Legislature with the Governor’s signature, which establishes clearly what Puerto Rico is willing to accept from Congress. The approval yesterday of a resolution by the Senate of Puerto Rico, is a step in the right direction. But we shouldn’t limit ourselves to oppose the Board’s proposal. We cannot remain reactive. The resolution must say that if a Federal Board is proposed, it must be approve at the polls by the people of Puerto Rico. If they are going to override our Constitution, the least they can do is follow a mechanism similar to the one they employed when we passed (us and them) our Constitution in 1952. Let’s put our cards on the table. That resolution should aspire to be approved unanimously.
2. To approve in advance by our Legislature legislation establishing how the government of Puerto Rico should proceed if May 1 or July 1 arrive and there are no resources to pay the debt. In order not to affect the ongoing negotiations with bondholders and with Congress, the bill must say that it will only enter into effect if an agreement with bondholders is not reached before a certain date or if Congress does not grant a restructuring process before a certain date. We must tell the country, Congress and the creditors what actions we will take if they do not act on good faith now. What I’m proposing is to legislate now what David Bernier has described as “a coordinated payment system of the public debt”. Waiting until April 30 or June 30 to legislate will be too late.
3. Start the process to amend our Constitution to change the order of priority of payments on case of insolvency. If Congress has already assumed the position that they can unilaterally amend our constitution, lets defend our dignity and do it ourselves using our democratic and constitutional powers.
4. A firm commitment from our current Governor and from EVERY candidate for Governor that if this bill or a similar one is approved, they will disobey it. It is not only about going to court (which must be done). Democracy is not vindicated at court. It is vindicated in the day-to-day actions. If David, Pedro, Ricky, María de Lourdes, Rafael, Manuel o Alexandra want to be governor and then allow for those not elected to govern, let them say it now. I have no doubt that if the Governor and all the candidates say today, firmly and clearly, that they will disobey a law like this one, the country will be on their side and Congress will have to listen. The invitation that Alejandro has made to meet with all the candidates for governor presents and adequate scenario. As said one time by a governor which whom I’ve had and continue to have differences with: “don’t push it”.
5. The Government of Puerto Rico has to go to the United Nations to denounce this action and to formally request that the case of Puerto Rico return to the General Assembly for full discussion. We should even ask the Committee on Decolonization advice to see the possibility of going before the International Court of Justice to denounce the United States for grossly violating its commitment with Puerto Rico and the international community.

The best defense is always to take the offensive. It is time as a country to stop reacting to “the inevitable” and act with firmness toward what we want.

Aníbal Acevedo Vilá
March 29, 2016