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damental issue that the three branches of government should be properly recognized in our Organic Act, our constitution.
The second objection that is common to those who oppose the bill is that this should really be left to the people of Guam. It needs to be recognized in our Organic Act, our constitution. The virtue of this bill is that we are trying to recognize the three branches on equal footing; there really should be no issue.
Mr. FLAKE. Mr. Lamorena, if the changes are made as suggested by the Justice, would you still object? And if so, why?
Judge LAMORENA. Yes, I will still object. I have not seen his proposal, so I am totally not familiar with it. But absent that, I will still object, because it runs against the fundamental concept of selfgovernment. I think if the people of Guam wish to pass a law that affects them directly and that sets up a structure by which they are to be governed, I think the people of Guam should be the ones to determine that structure.
Like I quoted earlier, the U.S. Supreme Court said the judiciary is the heart of internal self-government and should be delegated to the state legislatures or to the people that live there. And what I am concerned about is Congress and this Committee have always had a policy to have the people of Guam determine what they want to be. Like I said earlier, the attorney general bill was amended, but it did not say the attorney general shall be elected by the people of Guam. Congress did not state that. Congress said the people of Guam may pass a law to elect an attorney general.
So what Congress has always done in the past has always given the option for the people of Guam to self-govern themselves. And I feel that when the late Congressman Won Pat introduced this bill, he was very sensitive to that. He, being a former Guam legislator at the time and former Guam speaker, was very sensitive to have the people of Guam determine what their judiciary should be.
Mr. FLAKE. Well, this fix, does it not address that concern? Because it says if Guam goes ahead and drafts its constitution that that will be the law rather than the Organic Act or rather than any fix that we make here. And just a follow-up question: is there a move at this point, what process are we in at this point on Guam in drafting a constitution?
Judge LAMORENA. On the first question, I hate to set conditions on what this will trigger in if the people of Guam do this. I think it is kind of a carrot thing, you know, dangling, saying, well, if the people of Guam will pass this law, this legislation, and the people of Guam do a certain thing and follow the carrot, then, it will go that way.
I think the whole principle of self-government is to allow the people to determine what they want to do. We all live on Guam, and we all have to live by the laws of Guam, and if the people of Guam decide that those laws should be changed or a constitution should be imposed, then so be it. But I think the people of Guam should determine that and not Congress. I think Congress should follow its policy of allowing the people of Guam the options to pursue its own course.
Mr. FLAKE. I would agree with that. I would just simply state that we are waiting-everyone is waiting for Guam to draft that constitution. We have said please, go ahead, but as long as Guam
does not, then, the Organic Act is what rules here. And so, I think it is incumbent on us to have something that makes better sense than what we have right now.
Just let me state for the record: I know there are concerns that the Supreme Court determining the structure of the inferior courts may impose or some say, you know, just assign dog bite cases to the rest of the structure and take everything else to itself. I worry less about that than I do having the Legislature have the ability to nullify and to simply get rid of the Supreme Court if they would like.
But I thank you, and thanks for your indulgence on this.
Mr. ABERCROMBIE. Judge, but you would admit-sorry, Judge
Mr. ABERCROMBIE. We are operating under the Organic Act, right?
Judge LAMORENA. Yes, that is the Federal statute governing Guam.
Mr. ABERCROMBIE. That is right.
I mean, you cannot have it both ways, Judge. You know, this is a little ridiculous. You want independence for Guam, or you want to become a state? What do you want to do? I do not like to be lectured here about what my duties here are with respect to local jurisdiction in Guam or any other place. I do not like this whole colonial situation in the first place.
You know perfectly well you could have passed a constitution for 25 years; you have not done it. I do not think it is seemly for you to come in here as a jurist and lecture us in this way.
Now, the Organic Act, as long as you have the Organic Act, this Congress is going to do it. Now, we are not going to have a situation, as benign as you may want to characterize the situation, where legislatures, if they are in Zimbabwe right now, can overturn the judiciary. I mean, the singular democratic issue, it seems to me, is the equality of the branches of government in our democracy. But here, you have a situation which makes a mockery of it if the legislature can come in and overturn the judiciary anytime it sees some political advantage to do it.
Now, unless you can come up with something compelling with respect to whether or not we can pass this legislation, I think you have got a terrific burden to carry.
Judge LAMORENA. Do you want a response?
I feel that the concept-OK-of self-government is fundamental to all peoples, and I think Congress in the past has always given deference to the people of Guam in cases of changes in the Organic Act, the ability to pass laws that would meet the needs of their people.
Mr. ABERCROMBIE. You do not think equality of the judiciary is fundamental to the well-being of the people of Guam?
Judge LAMORENA. Well, if Congress had that position when Congressman Won Pat was there, they had that opportunity, but they did give the opportunity to the people of Guam to create the judici
ary, and I feel that was confidence in the people of Guam through their Guam Legislature to create a structure in the judicial branch of government that would maintain the confidence of the people of Guam.
Mr. ABERCROMBIE. If something takes place, then, in Guam that the politicians do not like, that a decision is made in the courts, you want to say that you can change the structure of the courts in the Legislature?
Judge LAMORENA. Well, if you look at the issue of the structure of the courts, Congress can also add circuits to the Federal courts. I think as far as the structure of the court system itself, Congress has that prerogative, and I think the Guam Legislature should have that prerogative as well.
Mr. ABERCROMBIE. But this is a contradiction. I will just let it go. You want it both ways. If Congress—do we have the jurisdiction or do we not to pass this legislation?
Judge LAMORENA. Congress, as any lawmaking body, can pass any legislation it wishes.
Mr. ABERCROMBIE. Because you are under Federal jurisdiction, and you do not have a constitution that says otherwise now; is that not correct?
Judge LAMORENA. Right now, the Organic Act is the Federal statute
Mr. ABERCROMBIE. Right now, and it has been for more than 25 years.
Judge LAMORENA. Well, I do not purport to speak for all of the people of Guam whether or not we should have a constitution. That is still an ongoing debate.
Mr. ABERCROMBIE. Well, in the absence of—when you say you do not purport to speak for them, but the facts speak for themselves. There is no constitution.
Judge LAMORENA. Well, in the absence of a constitution, then, the enabling legislation passed by Congress earlier under the late Congressman Won Pat, I think, is still good policy.
Mr. ABERCROMBIE. And speaking of enabling legislation, we will enable the people of Guam to have an equal judiciary if we pass this bill. Would that not be the case?
Judge LAMORENA. Well, I always feel that the people of Guam should be the ones to determine
Mr. ABERCROMBIE. You mean your position is that the people of Guam can determine whether or not they are actually going to have an equal judiciary, and if they determined they did not want an equal judiciary that I should acquiesce to that as a Member of Congress?
Judge LAMORENA. But they have spoken already.
Mr. ABERCROMBIE. But I have sworn to uphold the Constitution of the United States, which emphasizes, I think, as a beacon to the whole world that we have the rule of law and not the rule of political fashion of the moment and that we uphold the idea that there are three equal branches of government. And for you to argue to me that you get to make a local decision as to whether or not, at any given point, people can decide whether to subject the judiciary to even more political-as Mr. Underwood said, there's politics in everything, but to subject it to legislative fashion, it seems to me an extraordinary statement.
How does that comport with the entire history of the struggle for equality of people before the law and the idea of equal branches of government as a cornerstone of our democracy.
Judge LAMORENA. I think it complements it. One, it does allow the people of Guam to self-govern themselves. We may disagree what the people of Guam may be doing
Mr. ABERCROMBIE. Judge, excuse me.
Judge LAMORENA. —but any legislative body passes laws that reasonable people can disagree about.
Mr. ABERCROMBIE. We are not talking about reasonable people disagreeing. It is not as if we are talking about what kind of coffee you prefer. You mean to tell me that if the people of Guam decide that if you are a Chamorro-American as opposed to Scottish-American like myself that you could be discriminated against, for example, because that is local decisionmaking? You do not contend that, do you? Of course, you do not.
So what you are saying here locally, if people decide locally they do not want to have equal justice that that is OK.
Judge LAMORENA. I am not saying that.
I am sorry, Judge. You are not making a persuasive case here.
. The CHAIRMAN. As you can see, we have got a vote on. We want to wrap this thing up.
Ms. CHRISTENSEN. Right, and I just want to make a brief statement and probably yield some time to my colleague, Mr. Underwood.
I think all of us support the need for Guam and my territory to draft their own constitution, but I just disagree with the position of my colleague on my right, Mr. Abercrombie, because I think the people of Guam have demonstrated that they fully support the separation of the judiciary from the other branches of government. And I just think the issue is one of until such time as we draft our constitution, turning over more authority and governance to the people of the territories, and that is what I see the recommended amendments as being, and I fully support that, and I have done that in several instances in the case of the people of the Virgin Islands.
I wanted to take the opportunity to welcome the witnesses from Guam and especially our former colleague, as Congressman Underwood has welcomed him, Congressman Ben Blaz. And I find the issue very interesting. It is one that the Virgin Islands has not yet done completely, anyway, and we still rely on our Federal District Court as our territorial appellate court. So we are even further behind Guam on some of the issues. However, there have been calls by our local bar association as well for the creation of a local appellate court. As a result of the experience of Guam in creating this independent judiciary, it would be key for us as a guide.
And I want to take this opportunity to commend our colleague, Mr. Underwood, for this legislation, for the separation of the branches of government is a cornerstone of our democracy, and I trust that the whole Committee will support his bill and in doing so protect the rights of the people of Guam.
If my colleague would like some of my time, I would yield the rest of my time to Mr. Underwood.
Mr. UNDERWOOD. Thank you for yielding me the time. And basically, I just wanted to go over a couple of points that had been mentioned earlier, and I wanted to make sure for the record that it is clearly understood. Reference is made to the authority granted to the people of Guam to draft their own constitution. In doing so, Congress specified that there would be a republican form of government with three co-equal branches. So this is not even if Guam were to draft its own constitution, I daresay that its constitution would end up looking like—would have the kind of judiciary that we are envisioning here, which is three co-equal branches of government.
Second, you have mentioned, Judge Lamorena, I think on several occasions that there was a grant of authority granted by Congress to create this appellate court, and at the same time, you have made comparisons to the creation of the attorney general. I know you have credited Congressman Won Pat repeatedly for the earlier version.
Judge LAMORENA. For the attorney general, I will credit you for that one.
Mr. UNDERWOOD. Thank you, thank you very much. I am glad you acknowledge that that was my legislation.
Mr. UNDERWOOD. But more importantly, in vetting that legislation, even though we allowed that to happen, to allow that according to whether the Legislature wanted to have an elected attorney general or not, we did structure it in a way to avoid the kinds of problems that we are simply having in this issue, which is to kind of clearly delineate what it would look like and had this kind ofmaybe the Virgin Islands is smarter in this, because they are waiting to see what kind of experiences we have had on this.
But just so that I allow Mr. Kearney a chance to make a quick comment, Mr. Kearney, in your testimony, you stated that Guam has a bifurcated local court system at a time when virtually all of the states have unified court systems and by implication saying that, well, Guam is a little bit different than the rest. Can you elaborate on that a little bit?
Mr. KEARNEY. Well, mostly, it focuses on what we have been discussing here, that there is a potential role for the Legislature with respect to the judicial system in Guam currently that is not reflected in the other 50 states. And so, to the extent to which changes in this legislation would be consistent with those 50 states, it would address that inconsistency.
Mr. UNDERWOOD. OK; so this legislation addresses that inconsistency, and the administration has no objection to the legislation.
Mr. KEARNEY. That is correct.