out of 1,019) of which about 70% are civil cases and 30% are criminal. One must recognize, however, the evergrowing backlog of cases at the Supreme Court, but that should not be a valid reason to hamper Justice by frivolous disposition of an excess work load. The worst imperilment to Justice is that the aforesaid Rule 15.1 is silent about compelling the Court to give the reason, if any, to reject petitions of appeal and revision. Furthermore, the aforesaid Rule has weakened the legal and moral power of the Supreme Court to oversee decisions of lower courts. That is so because compliance with Rule 43.1 of the Rules of Civil Procedure has not been compelled by the Supreme Court. Said Rule 43.1 makes it mandatory for any lower court to specify in its judgment or decree the proven facts and its conclusions of rights that constitute the basis of the decision, be it a final judgment or an interlocutory injunction. Under those circumstances the Supreme Court obviously has no moral power to enforce compliance with a rule that they deliberately have avoided to include for themselves. If in spite of all these arbitrary rules Justice had not been impaired, there would be no reason for concern. But the truth is that some of the Supreme Court decisions don't make sense. Let us present three examples to illustrate this assertion: 1. This is the case of a child beaten by a woman who, ill advised by her lawyer, unjustly brings charges against the child in the Juvenile Court to neutralize an action brought by the child's parents against her. Before the hearing, two incidents take place between the parents and the judge, including the administrator of the Juvenile Court. The parents think that the judge is discriminating, thus they request his inhibition. The judge refuses and consequently a writ of certiorari is petitioned to the Supreme Court. Later on, one of the lawyers, who participated as defendant's representative in court, is appointed to a vacant seat at the Supreme Court. Instead of inhibiting himself because of his past participation in the case, he handles the case and decides that the Juvenile Court judge has to inhibit. The case is sent back to the court of origin for continued proceedings, but has to be pigeonholed. During the case invernation at the Supreme Court (8 years), the child has become of legal age and is no longer under the jurisdiction of the Juvenile Court. Other cases have been reported to take as long as eleven years to be solved by the Supreme Court of Puerto Rico. 2. This next case presents a sheer violation of constitutional rights by the Supreme Court of Puerto Rico. A Superior Court judge of San Juan resolves within three days two almost identical petitions of mandamus on cases of violation of the due process of law whereby both plaintiffs are summarily dismissed from their respective positions in public and quasi-public corporations. The judge resolves both cases by authorizing the writ of mandamus in one case and by denying it in the other. Both cases are appealed to the Supreme Court and, incredibly, both were dismissed with "NO HA LUGAR." It could only be expected that if the lower court has erred by resolving oppositely two cases in which the substantial constitutional rights element is equally violated. the Supreme Court, in equity and justice would not possibly resolve them both identically, but it did. If Rule 15.1 were written so that a decision must be supported by facts and by the spelling out of the applicable constitutional and statutory rights of the parties, the Supreme Court would not have arbitrarily disposed of these two cases, and hundreds more. 3. The third and last example is more complex because it entails two aspects: one political and the other judicial. This case was reported on the front page of The San Juan Star on February 22, 1974 and in El Mundo on February 25. The court adjudication is unimportant for the purpose of this writing. We are mainly concerned with the political overtones of its opinion emitted by. Associated Judge Mr. Carlos J. Irizarry Yunque and because of its sheer disregard for the essence of Justice expressed in said opinion. The case refers to the Supreme Court decision on a writ of mandamus petitioned by Gamalier Perez Aldarondo, case 0-73-123, resolved May 2, 1973 and denied again in a request for reconsideration on June 26. 1973. The petitioner further requested from the court to give the reasons they had to deny the petition. The Supreme Court surprisingly decided to emit an opinion and do so on February 20. 1974. Said opinion began stating that the Court does not believe it necessary to explain why it has arrived at such a decision. But then it enters into a lengthy opinion (23 pages) explaining what it has just said it was unnecessary to explain. Why this contradiction? It is simply because the petitioner has implicitly touched a very sensitive area of the local Supreme Court-the everpresence of the Federal District Court in Puerto Rico. Besides the substantial constitutional violation involved, it was also because the petitioner dared to sustain his request quoting a State Federal Court decision on an almost identical case, and that such decision-also founded on the violation of constitutional provisions-is giving a heavy blow to Rule 15.1, Clauses (a) and (g) of the local Supreme Court Rules. The decision in question was emitted by the District Court of Illinois on February 22, 1971 in the case of U.S.A. ex rel. Keating v. Besinger, Director, Department of Corrections State of Illinois, et al. The Memorandum Opinion of the aforementioned case states among other things: (A) "The respondents admit, and we agree, that the federal courts do have the power to review the actions of State courts in denying bail when it is alleged that the denial violates some provision of the Constitution." (B) "We explicitly note that we are not holding that justifiable reasons may exist for the denial of bail to petitioner. We concluded only that the State court's failure to provide any basis for its decision to deny bail creates a presumption of arbitrariness." (C) "Where State court denied bail authorized by State legislature without providing any supporting reason, the failure to indicate the motivating reasons for the denial of bail was in and of itself an arbitrary action violative of the Eighth and Fourteenth Amendments. U.S.C.A. Const. Amends. 8, 14; Supreme Court Rules, rule 609 (b)." To the above partly quoted opinion, the Court through Justice Irizarry Yunque commented: "We respect the criteria there, but it is not binding to us, it is not binding either to the decisions of any federal court, with the exception, in appropriate cases, to those made by the (Federal) Supreme Court." To support this thesis the Court alludes to at least four Federal or State court decisions. Of course, most court decisions are not binding-our local Supreme Court overrules itself quite often-but it seems that if the ultimate expression of Justice is the Truth, then a judicial opinion should be considered for what it is worth in its content and for its reflection of the Truth, thus it should not be lightly brushed aside, even if it comes from the Imperial Court of Mars. He also discusses the jurisdictional dualism by federalism which he claims has developed a doctrine of hands off in matters under consideration in local or State courts. These doctrines, the decision states, could be resumed on the known policy of abstention developed by the Federal Supreme Court which is aimed to avoid friction between both systems. Then he claims that such a policy of abstention has gathered strength in the light of present relations between Puerto Rico and the United States. Then the Court goes into a panegyric dissertation on the developments of Puerto Rico's self government since the end of the Spanish-American War, and the importance and significance of Puerto Rico in U.S. relations with Latin America. This writer is not taking issue with those manifestations, but he regrets to see them expressed in what is supposed to be an objective non-political opinion. What one can see behind the courtroom scenario is a preview of the inevitable confrontation of the aims of the Commonwealth advocates to eliminate the Federal Court in Puerto Rico. God save us from being solely at the mercy of our local Supreme Court! Going back to the Supreme Court opinion, emitted by Judge Irizarry Yunque, at the end it incredibly states: "One has to presume that the courts are acting fairly, even if they don't explicitly state the reasons for the actions . . . Our faith in justice would crumble if the moment arrived when the courts were obliged to prove that they acted correctly, with a sense of responsibility and in accordance with the law." What the Higher Court is inferring is that one must accent its decisions bu faith and that if the Court gives no better reasons for its acting, then it will not be vulnerable to proven arbitrary. It can be assured that not only faith, but Justice itself will crumble if judiciary discretion continues unrestrained. It is not enough to suffer so much human miserv and injustice, that now we are also demanded to accept our Supreme Court decisions by faith? The Lord deliver Puerto Rico from such an autocratic misconception of Justice! Not content with its presumptious views of Justice, the Supreme Court further "modestly" praises itself for its tradition of cleanliness, moral and intelectual honesty of which, it claims, Puerto Ricans are proud. One must say that honesty and all other virtues are not the things to be pompously chanted. The Court also states that to adopt here the unusual presumption of arbitrariness established in the case of Besinger would be offensive to the (Holy Spirit) of the Courts of Puerto Rico. In a related opinion in the footnotes of the aforesaid case, ex-judge Martinez Munoz, in reference to the Besinger case is quoted from Pueblo v. Cortes Burgos (1972) as saying: "This policy is injurious to the dignity of State courts." One would think that courts were mainly concerned with administering Justice, not with the promotion of an image seemingly arrogant. When courts in Puerto Rico become legitimately concerned for the human dignity of the people who seek justice from them, only then will it be valid their concern for their own dignity. It has often been said that if one is not part of the solution, one is part of the problem. Thus, law schools in Puerto Rico might not be free from blame for our judiciary crisis. They have the responsibility to train students not only in the knowledge of the law, but in a code of ethics that would enhance the needed courage to free themselves from the prevailing silent content which is perpetuating these evils in our judicial system. STATEMENT OF GONZALO FERNOS FROM SAN JUAN, P.R. (U.S.A.) Mr. Chairman and members of the committee; My name is Gonzalo Fernos. I am not representing any particular group, civic, political or otherwise. I am not even remotely connected in any way with the legislative process in Puerto Rico. I am a retired architect, rather a bioarchitect, presently teaching a course in problems of human ecology at the University of Puerto Rico. But I am always interested in matters like those the object of these hearings. On the 17th of May, 1963, I testified at the House's Subcommittee on Territorial and Insular Affairs, 88th Congress on eight bills "To Establish a Procedure for the Prompt Settlement in a Democratic Manner of the Political Status of Puerto Rico." That was almost eleven years ago, and the discussion of the subject is as fresh now as it was then. Perhaps the impossibility of the aforesaid Congress to accomplish something concrete arose from: (1) the fact that the problem was referred to a commission for study and (2) the bills' irreconciliable intention to accomplish a "prompt settlement" in a "democratic manner". I am sure that the elder legislators in this committee, especially the distinguished chairman, have learned to survive one congressional session after another without holding their breath while their bills go through the arduous process and scrutiny of public hearings, commissions, and both Chambers. Thus, one must acknowledge with regret that the inevitable nature of democratic processes certainly frustrate the timely improvement of government and society in general. This holds specially true in considering the urgency of improving the administration of justice. However, one could lessen that necessary evil of democracy by tackling problems directly and avoiding as much as possible to refer them to commissions for study. First, I would like to comment on bill S. 2978. This bill has apparently the same purpose as bill S. 2803, but instead of working directly with the establishment of the so called independent permanent mechanism, it takes away the responsibility for such creation from the 93d Congress and places it in the hands of a special commission. One may assume that Senator Cranston is sincerely wishing to produce a workable piece of legislation, otherwise one could not avoid thinking that it is a sinister plan to provoke the premature death of bill S. 2803, the other bill in question. Through deferred action (for all practical purposes inaction), the creation of a special commission as referred to in bill S. 2978 is the most evasive way to face direct responsibility. It is a passing-the-buck-attitude. It is further necessary to pinpoint the futility of letting bill S. 2978 stand by itself as it is spelled-out. For example, under Duties of the Commission, page 4, lines 21-23, the words "the desirability and feasibility of possible means for the establishment of an independent mechanism. ." may anticipate the self-defeating nature of the duties of the commission and thus the intention of the bill might result in the commission concluding that the establishment of an independent permanent mechanism is undesirable and unfeasible, thus defeating the purpose of the commission at that very instant. There are, however, good features in bill S. 2978. To reconciliate this bill with S. 2803, these suggestions are given: A. Change introductory paragraph to read: "To establish an Advisory Commission of the Congress to enact the law for the establishment of the Department of Justice as an independent instrument of the United States." B. Change in page 1, lines 3 and 4 to read: "That this Act may be cited as the Advisory Commission of the Congress on an Independent Prosecutor Act pursuant to the purpose of bill S. 2803." C. Under "Reports": Page 6, line 24, delete the phrase "the President and". Please notice that if it is intended to be a congressional commission, its findings should be directed to the Congress, although it may choose to keep the President informed, and most likely will do so. D. On page 7, lines 8 to 15, it is recommended to change them to read: (c) "Not later than ninety days after the date on which the Commission reports its findings and recommendations to the Congress, and having been sent copies also to the President and the Attorney General, if the President and the Attorney General deem necessary to express their views, and thus choose to submit them to the Congress, the latter in turn shall refer those views to the Commission for study and to report back to the Congress within another ninety days." A change to the above expressed effect is necessary since the way it is now spelled out in bill S. 2978 is violative to the constitutional executive prerogatives. That is, a commission empowered by the Congress or the Congress itself cannot order the President to: "submit to the Congress and publish a report specifying his views, . . . E. Under "Expiration of the Commission": Page 7, line 21, conforming the above, change to one hundred eighty days. In line 22, also change to read: "after the submission of its report to the Congress COMMENTS ON SENATOR ERVIN'S BILL S. 2803 In a wider scope and longer range context, this seems to be an excellent piece of legislation long time needed. Its purpose is well defined and a valid one. The following suggestions are offered as a possible improvement: I. As a separate suggestion, please notice the need for a constitutional amendment to validly structure the mechanism of purpose of this bill. II. This witness has been concerned about the Puerto Rican experience on political appointments to the judicature and quasi-judicial organisms of the Government by the Executive with only the restriction of the Senate's so called "advice and consent". To some extent, this concern may be applicable to the presidential appointments. Advice seems to be non-existent and after rejecting the first nominee, the Congress could find other choices increasingly embarrassing to reject. Furthermore, a six year appointment might be meaningless when the appointment concurs with the first and second presidential terms if the President is reelected. III. To strengthen the purpose of this bill, due consideration should be given, not only to the way of appointment of the Attorney General, but also of the U.S. Supreme Court Justices. One possible and effective way to bring independence of criteria to such important posts, in line with the principle of check and balance, could be by the creation of an independent nomination commission similar to that proposed by Senator Cranston in his bill S. 2978, page 3, lines 5 to 20, and through an amendment to the U.S. Constitution vesting such commission with the power to submit, say 12 candidates to the President and the latter being compelled to select among those 12 or the next 12, etc. Finally, the presidential appointees by such procedure will be subjected to the scrutiny and confirmation of the Senate. One must emphasize the benefit and wider guarantee of independent judgment of the Attorney General and the Supreme Court Justices appointed through a nomination commission. That is so because the personal gratitude of the appointee toward the appointment power, under a nomination commission, would be diluted among the nine or whichever number of commission members and the twelve nominees. Thus, the relations between the President and his choice among them would be more impersonal and objective. IV. Another suggestion which should be given due consideration is the creation of the post of Constitutional Ombudsman within the restructured Department of Justice. His function will be to investigate citizen's grievances, or motu proprio investigate the facts about a seeming intrusion of one of the three powers into the other's domain, and to report his findings to the Attorney General, who shall be empowered to effect the necessary corrective action, either by persuasion or through legal action in the Supreme Court, or District Court whichever has jurisdiction on the case. However, Supreme and District Court Justices while continuing to be selected at the sole discretion of the President, may not be inclined to issue writ of mandamus or injunctive relief upon the findings of the Department of Justice through the Constitutional Ombudsman or otherwise, specially in cases where the controversy arises because of the intervention of the Executive Power. V. In relation to The Attorney General Authority To Adopt Its Rules and Regulations, this witness wishes to warn of the danger and risk of granting the Attorney General the unrestrained authority "to adopt, amend, and repeal rules and regulations governing . . . the performance of the powers and duties granted to or imposed upon it by law;" (See page 5, lines 6 to 9) The proper thing to do, in this witness' opinion, is to authorize the Attorney General or for all purposes the Department of Justice, to draft those rules and regulations to be submitted for the approval by the Congress. To leave those rules to the sole discretion of the Attorney General will leave the door open to arbitrariness and injustices (Please refer to Kenneth C. Davis' book Discretionary Justice). VI. Finally, referring to The Attorney General Authority To Accept Gifts, it is suggested to add at the end line 12, page 5: "except whereby those gifts or donations are intended for the direct benefit of the Department of Justice, in which case, said authority shall be vested in the Congress." There seems to be no need for giving reasons for the convenience of this clause. VII. This witness believes that the need and time for enacting controls for the possible abuse of power and discretion is past due, thus he favors that bill S. 2803, with or without amendments, be approved by the Congress and the President as the cornerstone of a new era of improvement in the government of the people. Thank you. THE UNIVERSITY OF UTAH, MR. WALKER F. NOLAN, Deputy Chief Counsel, Subcommittee on Separation of Powers, Committee of the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. NOLAN: This is responsive to a February 4, 1974, letter of invitation from Senator Sam J. Ervin, Jr., to Dean Samuel D. Thurman with |