Puerto Rico’s New Penal Code Criminalizes Dissent
A new amendment to Puerto Rico’s Penal Code (208a) that makes it a felony of the fourth degree to paralyze or otherwise obstruct construction projects is being tested in the courts. Under trial are six protestors who were arrested on December 15, 2011 while picketing the arrival of the first of 44 windmills to be installed as part of the Wind Farm of Santa Isabel, a small agricultural town in the southwest region of the island. The case has generated concern for environmental activists in Puerto Rico because it pits renewable energy projects against food security concerns. It is widely recognized that Amendment 208(a) aims to criminalize dissent, particularly those that question government approved projects like the Wind Farm by imposing hefty fees of restitution and jail sentences of up to three years.
Renewable Energy over Agricultural Production
The Wind Farm of Santa Isabel is the first commercial wind project in Puerto Rico. A venture of Pattern Energy, the 75 megawatt wind farm will impact 3,700 acres of Prime Farm Land as designated by the US Farm service, among the most fertile on the island. Although this terrain was originally protected as a reserve under Law 242, which established the Southern Agricultural Corridor, legislation passed by the current administration specifies that all agricultural reserve lands may be used for energy projects if they are compatible with agricultural needs. In this case, because wind turbines are renewable energy, it qualifies as a legitimate enterprise to be installed on agricultural terrain. Ironically, this legislation ignores the fact that given the massive holes dug up to install each individual wind turbine the topsoil needed for cultivation will be permanently destroyed through construction.
Puerto Rico has few remaining acres of arable land as a result of its relationship to the United States which promoted rapid industrialization and urbanization in order to “modernize” the island. Today, less than 4% of its economy is based on agricultural production and over 80% of food is imported from the United States. Given that the island has a relatively small land mass, it would be more appropriate to explore other options to develop renewable energy projects, particularly in the eastern mountain region where there are higher wind gusts and less fertile soil for agricultural projects. Governor Luis Fortuño’s political alliances partially explain why such a project would even be considered. His fervent support for full integration of the island into the United States as a state has made him eager to support US based businesses even at the expense of local industry. In so doing, he has applied a one size fits all environmental policy instead of working to develop initiatives that would improve the food security of the island.
The History of Amendment 208(a): Tito Kayak’s Law
Amendment 208(a) has been hotly contested since September 2010 when it appeared as a proposal in the Senate under the name Project 1505. It became popularly referred to as “Tito Kayak’s Law” in reference to activist Alberto de Jesus, known for his use of occupation as a way to draw attention to construction projects that are controversial. Indeed, in the original proposal presented by statehood party member, Antonio Soto Díaz explicitly referenced Paseo Caribe, a high-rise luxury apartment building whose construction was halted for almost six years as a result of public controversy that erupted after activists alleged the project was being built on public lands. Of the most spectacular manifestations of the protest was Tito Kayak’s week-long occupation of a crane at the site as well as an onsite encampment inhabited by activists for several months.
Soto Díaz’s justification for creating the amendment was to protect developers, and to secure the public good by protecting private property which he argued took precedent over limits placed on the right to free expression. Although Soto Díaz claimed that the measure did not target a particular kind of expression, it is clear that it does target citizens who openly question approved government projects. Under this statute, anyone who engages in civil disobedience will be treated as a criminal and not a citizen with rights to be protected.
The central concern of those who are opposed to the amendment is that the wording is too vague, particularly in its stipulation of intent. The amendment’s preamble sets forth that any person who intends to occupy or otherwise impede any aspect of the construction process will be subject to arrest. Using the Wind Farm case currently before the court as an example, the protestors that were arrested were simply picketing one of several entrances to the land, did not directly impede the workers from doing their job, or occupy the lands where the turbine was to be installed. Thus, this case could establish that intent to occupy is as simple as picketing outside a construction site. If found guilty, each protestor will face up to three years of jail time in addition to paying restitution to Pattern Energy, a hefty sum of $6 million.
Amendment 208 (a) is based on a premise that once a developer possesses government approval, its project is totally legitimate, irrespective of public sentiment. Amendment 208 (a) is one of a series of legislative efforts approved by Governor Fortuño, to repress free expression by limiting legal avenues for expressing dissent. These legal statues aim to intimidate people with hefty economic penalties and jail time so fewer participate in direct action. The idea that protesting in the streets represents a criminal act makes it impossible for the public to contest government corruption. By making the courts the only site of legitimate resistance, this legislation excludes the average citizen, forcing all dissenters to engage in a financially onerous and slow process. As Amaris Torres, an attorney representing the defendants explained to me, “this amendment represents a collapse of democracy.”
Melissa Rosario is a PhD candidate in cultural anthropology at Cornell University. Her dissertation, “On Revolutionary Time: Social Movements as Liberation Experiments in Contemporary Puerto Rico,” examines the dis/continuities between historical and nascent logics of direct action in two resistance encampments. She can be contacted at email@example.com.