Almost US, but still Latin America. This is the brief definition one can give to Puerto Rico. US is actively engaged in cooperation with the archipelago, but the chances that this area ever really become an integral part of the United States are still unclear. More so, it is a unique habitat with its own unique development system, including the judiciary.
Puerto Rico is a dependent territory of the United States and has the status of "unincorporated organized territory”, which means that the area is under the control of the United States (and is not an integral part thereof), the action of the United States Constitution is limited; the supreme power belongs to Congress, but the territory has its own system of government. Puerto Rico has its own constitution, legislative, executive and judicial branches of government. The connection with the US is in common citizenship, currency and defense. In the absence of a clear legal framework on the status of the territory of this issue is being actively discussed on the island, in the United States and the United Nations.
In 1952, after the "voluntary association" of Puerto Rico with the United States, the judicial system established by the Puerto Rican constitution and the law on the judicial system, was considered one of the most ideal and complete, and even considered in the US as a possible model for the whole state. However, what then was ideal, simply does not work as good now (Larkins, 1996). And some alterations, or an altogether change are simply necessary to keep the judiciary efficient.
Thus, it is feasible to say that the system has to change for the better. Considering the attempts of the majority to become incorporated into the USA as the 51st state, some might think that it is best to adopt the US model (Burnham, 2011). However, it has its own limitations and flaws. This brings us to the need of developing a new judiciary from the position that Puerto-Rico is an independent territory.
The system is to have two levels to separate the value and importance of its parts. The lower level is to be comprised of the municipal and major trial courts, whereas the upper tier is to belong solely to the higher court. Puerto-Rico is to retain the Supreme Court as it is the highest court of appeal and the court of first instance in a limited number of cases (Burnham, 2011). All appeals are to be sent to the Supreme Court where they are considered mandatory.
Considering the history over the past 25 years we have witnessed the increase of the number of magistrates’ courts which have to be abolished and their functions shifted to the municipal courts. Though with the ever increasing population and the increase of minor felonies and violation there is still a need for courts of limited jurisdiction, it might be a better option for the legislature of Puerto Rico to establish special judges and honorary magistrates at the municipal courts (Komarek, 2005).
Considering the attempts of Puerto-Rico to become part of the USA it is feasible to consider the US states judicial system as an example. The American states have very differing court system. For the most part explained by their particular historical conditions of formation of the judicial system in the state. Sometimes re-states formed a scheme borrowed from the judicial organization of neighboring states (Burnham, 2011). In the states most often are used the two- and three-tier system of general courts, as well as various courts have limited or special jurisdiction. The two-stage system of general courts, which includes only the courts of first instance and the supreme judicial body, is usually characterized by small size and population of the states, and a three-stage, with intermediate courts of appellate jurisdiction, the larger states, the courts which is considered a large number of civil and criminal cases .
The court at the head of the judicial system in the state is often called the Supreme Court, but in some states it is called the Court of Appeal. They have from five to nine judges, one of whom is appointed by the Chief Justice. Sovereign and their respective state courts deal mainly in appeals against decisions of the lower courts. In most states, they consider the complaint only to judgments which deal with matters of law, in other also on questions of fact. In most states, the supreme courts are free to decide whether to accept the consideration of appeals and other appeals to them, except for death sentences, complaints that are subject to compulsory proceedings in the Supreme Court of the State. In some states, the rule according to which the Supreme Court is obliged to consider all without exception, it receives a complaint.
This system is very near to what we would have wanted to implement, except that for the moment we are focusing on Puerto-Rico as a separate and independent State.
Municipal courts (there are now 13) are to adopt all the rights of the magistrates’ courts and, beyond that, will be allowed to conduct a preliminary hearing of cases of minor offenses. The character of offense is more administrative rather than criminal. All necessary measures to protect the property interests of the claimant are to be made prior to the pending “judgment in the case”, in particular, the seizure of the property about which litigation is conducted (Rivera Ramos, 2001). In some cases, by a special instructions of the Chairman of the Supreme Court, the Municipal Court may decide work upon the case which, under subject to the usual procedures should be directed to the Major Trial Court.
Major Trial Courts are in fact district courts of general jurisdiction which consider the case in the first instance. The court is entitled to take over criminal cases on charges of committing minor offenses to conduct a preliminary hearing of cases involving more serious crimes. The jurisdiction of the district court in the area of civil law relations applies only to the case with the amount of the claim not exceeding $10 thousand USD. Some categories of cases, particularly cases involving wills, the compulsory acquisition of land, and issue of writs cannot be heard in this court (Lenaerts, 2007). Appeals against decisions of the district courts are sent to the Supreme Court of Puerto Rico and they are considered mandatory.
The High Court of First Instance considers a wide range of criminal and civil cases: outside its expertise are only matters within the jurisdiction of the lower courts and the Supreme Court. As for appeals against decisions in civil cases, they are bypassing the appellate department directly to the Supreme Court. The High court deals only with appeals from the municipal courts (Romano, 1999).
The Supreme Court, is constituted by seven judges, one of whom is the chairman. It is the highest court of appeal in all cases heard in Puerto Rico. Without fail they are considered appeals against decisions in criminal matters and constitutional questions affecting the civil cases. In other cases, the Supreme Court, having examined the arguments of the parties, seek a review of the case, decide whether to accept the case for consideration or to dismiss the appeal (Romano, 1999). In some cases, the Supreme Court may request a case pending consideration of the appeal in the High Court, and take it into their production, if it considers that such a deviation from normal procedure will largely contribute to the "strengthening of the rule of law."
In the first instance the Supreme Court tries very few cases: mostly complaint on unlawful detention (habeas corpus), as well as cases of unusual or extraordinary nature which were considered by the Supreme Court a sufficient basis for taking them to their production (Burnham, 2011).
This is the ideal model, which will create the best design of the Puerto Rican judicial system. It is interesting also because it quite clearly reflects the characteristic of the US attitude towards the court as a body which plays an active role beyond the proper administration of justice. Thus, the Supreme Court of Puerto Rico is developing legislation in the field of civil and criminal proceedings, sets out the principles of evaluation of evidence that can be brought to justice (Blume and Brown, 1962). Relevant projects are made by the court in Puerto Rico legislature and, if the Legislature does not reject them they are to become law within 30 days after the presentation at the Congress.
The procedure for appointing judges and replacement judges' positions is not complex. All judges are appointed by the Governor "with the advice and consent" of the Senate. Members of the Supreme Court are appointed for life, with a mandatory retirement upon reaching the age of 65 (Lenaerts, 2007). Members of the High Court are to remain in the position for a period of 10 years, with a possible extension of this period until a qualified successor would be chosen. Members of the district courts will be appointed for two periods of four years each. This is necessary to conduct an evaluation of the judge’s work and his decency in passing sentences. If the test will be passed the judge is to be appointed for a second 4 year term. The municipal judges re appointed for two periods of 2 years each, with the same idea as the members of district courts.
Requirements for judges, are as follows: members of the Supreme Court must be citizens of the United States and Puerto Rico. The must have been admitted to the practice of law for the period of at least 10 years prior to the appointment of a judge, as well as have a five years permanent residence in Puerto Rico. As to the members of the High Court the term is reduced to five years of practicing law prior to the appointment, and judges of the district court - up to three years of practicing law (Burnham, 2011). In addition, the law sets the minimum age for employment in the judicial office in the High Court as of 35 years, and in the districts - 30. The ae limitations are somewhat high, however this is necessary to provide all parties with a qualified and experienced judge ready to tackle any problem set before him.
There are some harsh and imminent rules concerning the possibility of participation of judges in political activities: none of them has the right to support financially or in any other way any political campaign; his nomination to any elective position is invalid, if this happens within six months after his resignation from judicial office (Clark and Rogers, 1952). This is to provide a clear process not influenced by the judge’s potential decisions whilst in office.
A pre-eminent release of the judge from his position is possible because of misconduct or incompetence, on the basis of investigation of complaints received by the Office of Court Administration. In such cases, the issue is reported to the Supreme Court, which can recognize any complaint unconvincing and reject it, or to instruct the Puerto Rican Attorney General to conduct a deeper investigation (Rivera Ramos, 2001). In some cases, the Supreme Court, without recourse to the Attorney General, can itself carry out the necessary investigation and appoint for this purpose one of the members of the Supreme Court.
For his part, the Attorney-General on his own initiative or at the request of the Governor may conduct an independent investigation on the basis of the complaint that became known to him. The final decision is always made by the Supreme Court and no appeal can be made. In recent years, there is a tendency to expand the list of reasons due to which a judge may be removed from office (Romano, 1999). Some of the definitions are very decisive: the legislator admits, for example, that the judge may be "relatively or absolutely incapable physically or mentally" to perform their duties (Blume and Brown, 1962).
Understanding the obvious fact that the dissociation of courts and the lack of a body, which could be entrusted with organizational functions in relation to the federal courts at various levels is a serious drawback of the system as a whole, was also reflected in the development of the Puerto Rican judicial control circuit. The supreme administrative organ is the Supreme Court, represented by its chairman (Burnham, 2011). In order to render the necessary assistance a special Bureau of Justice Administration, headed by the Director was formed. Its members are appointed by the governor through the provision of the Supreme Court. The Supreme Court is liable to find the candidates for all positions in the Bureau in accordance with the rules approved by the Court itself.
The project on budget allocations of Puerto Rico courts is developed by the Supreme Court and then the legislature is passed through o the Governor, the latter being only the transfer authority and cannot bring in any changes to the project; requests for additional appropriations go directly to the legislature. According to the latest draft legislation we see that the tendency to pursue full administrative autonomy of the Puerto Rican will be the best way for the development of the Puerto-Rico judiciary.
A minor role in the development of measures to improve the judicial system in Puerto Rico plays the Judicial Council, established by the Law on the Judicial System. It is feasible to retain its body and function. It consists of the chairman of the Supreme Court, the President of the Senate, Speaker of the House of Representatives, the Attorney-General and a number of persons who are not associated with either the administration or the courts (Komarek, 2005). In the past the council had developed 50 draft laws on improvement of the judicial system; almost all of them were taken up by the legislature, in particular the laws on the improvement of judicial selection methods, replacing municipal magistrates and the establishment of the Appeals Division of the High Court. Their initiative is highly recommended as the Judicial Council is a body that will allow the whole judiciary system to progress and further develop (Komarek, 2005).
In criminal cases the FBI investigation is conducted, and many other federal agencies, as well as the services of other numerous police agencies that are subject to the relevant authorities are also requested. They have the right to make arrests, interrogate suspects, search for and collect evidence of a crime. Arrests, searches and some other investigations is carried out by the police with advanced or, in exceptional cases, a subsequent court approval (Larkins, 1996).
In some cases, a preliminary investigation is conducted by the General or District (city, county, etc.) Attorney. All these officials act independently and not in a relationship of subordination. Essentially, it is the Attorney at all levels who plays a decisive role in the initiation of criminal prosecution, and deciding whether to bring the accused to justice. The grand jury, consisting of 12-17 jurors, is to be retained, to check whether the prosecution has enough evidence for a trial (in some cases a grand jury can act as an investigative body).
Another important function of Attorneys is the maintenance of charges in court. At the same time on the pre-court stage the prosecution in most cases, forces the accused to conclude a so-called "deal" of plea. The essence of the deal is that the defendant agrees to the consideration of his case without a jury trial in exchange for a promise to restrict the prosecution of a less serious crime (e.g. theft instead of robbery), or not to require the imprisonment at all, etc. . The Attorney shall have the right to appeal to a higher court judgments in criminal cases, except for acquittals by a jury (Larkins, 1996).
Attorney involved in the courts of first instance and the appellate division of the High Court for civil cases in which the party or the person concerned is the US government or Congress of Puerto Rico, or the state, municipality, city, etc.
Protection of the accused in criminal cases and representation of interests of the parties in the civil process is carried out by lawyers who do not fall into any category, differing in their specialization (Burnham, 2011). According to the decisions of the Supreme Court of the last decades, which interpret constitutional provisions of criminal procedural nature, it is recognized that the accused has the right to attend his counsel in the case from the moment of detention, and if the accused is unable to afford a lawyer, he has the right to free legal assistance at all important stages of the investigation and judicial proceedings, as well as an appeal against sentence (Burnham, 2011). Just like in the USA.
Conditions for admission to the practice of law is usually established by the Supreme Court, but the question of the admission is decided by a special commission for the admission to the Bar, formed an association of lawyers, or by appointment of the court or the governor. Usually, this commission is made up of legal practitioners (Burnham, 2011). To be eligible to practice law it is necessary to pass the exams. For admission to this exam one requires a diploma of higher legal education.
In deciding on the admission to the practice of law the commission is based on the moral qualities of the candidate and the results of the examination conducted by it. The study of moral character precedes the exam and is followed by the study of documents submitted by the candidate. If the Commission have any doubts about the veracity of the information provided, it has the right to conduct covert inspection and examination. Characteristics of persons consists of the applicant's story about himself, as well as information about the presence or absence of previous convictions, arrests by the police, whether he is suffering from alcoholism or drug addiction. The exam consists of an oral interview and written work. Written work, usually lasts a few days, during which the applicant has to answer 20-30 questions concerning knowledge, interpretation and application of legal norms (Burnham, 2011). The decision of the examination committee may be appealed in court. A person admitted to the examination after the practice of law, is entitled to act in all the courts of Puerto-Rico. Advocacy structure implies a Bar Association. In Puerto-Rico a compulsory membership in an association for all persons admitted to practice law is established.
The Lawyers Association has two main objectives:
- First - to contribute to the development of law and the strengthening of justice in general, the legal education of citizens, etc
- Second, but no less important - to assist its members, raising the professional level of lawyers, the development of the legal profession as such.
Also, another task of the association is to establish standards of professional ethics, assistance to lawyers, disciplinary action, the development of advocacy standards, contribute to the improvement of law and of justice, and so on. The Lawyers Association is purely a professional associations and does not conduct any practical legal activities (Burnham, 2011). Contributions to the Association are not connected with the income of lawyers, nor with those in which the legal department or the company they work for. It should be noted that members of the Associations are not only practicing lawyers, but also those working in the establishment of the Attorney, as well as persons employed as solicitors (Lenaerts, 2007).
The organizational form of the activity of lawyers combines the ability to work both independently and as part of legal practice. At the same time, more than half the lawyers work alone or together with two or three lawyers. However, the basic, most important, form of advocacy are law firms. Such companies usually do not engage in criminal cases, but prefer to do business with corporations as customers (Lenaerts, 2007). These are hardly present on the territory of Puerto-Rico, nonetheless, such companies frequently bring-in their own lawyers to represent them in court. The owners of these firms are senior partners. A senior partner is a lawyer with an extensive practice, and as a result a higher income and the right to get a part of the profits of the law firm (Burnham, 2011). The second group of attorneys working in law firms are associates – usually young budding lawyers who have their own small clientele, or not having any at all. Attorneys-associates receive a salary from the company. Some of the lawyers work in the offices of "public defenders" - the organizations funded by the state budget and providing free of charge defense to the accused. Attorneys' fees is established by agreement with the client. Thus, there is no well-established system of tariffs on payment of a lawyer (Lenaerts, 2007). The most common is the hourly wage system. Also practiced is a system of payment, when the lawyer receives a fee only in the case of winning the case. Lawyers in civil matters, in particular the obligations arising out of injury, are often involved in the process on the condition that in case of winning the case the client gives up from 30 to 50% of the amount he had received as compensation.
We believe that this system will work for sure, and there will be no sign of corruption that has endangered the judicial systems of many countries.
References
Blume, W. and Elizabeth Gaspar Brown. (1962). Territorial Courts and Law: Unifying Factors in the Development of American Legal Institutions: Part I. Establishment of a Standardized Judicial System. Michigan Law Review. Vol. 61 (1). pp. 39-106.
Burnham, W. (2011). Introduction to the law and legal system of the United States. St. Paul, MN: Thomson/West.
Clark, C. and William D. Rogers. (1952). The New Judiciary Act of Puerto Rico: A Definitive Court Reorganization. The Yale Law Journal. Vol. 61 (7). pp. 1147-1171.
Komarek, J. (2005). Federal Elements in the Community Judicial System: Building Coherence in the Community Legal Order. Common Market Law Review. Vol. 42. pp. 9-34.
Larkins, Christopher M. (1996). Judicial Independence and Democratization: A Theoretical and Conceptual Analysis. The American Journal of Comparative Law. Vol. 44 (4). pp. 605-626.
Lenaerts, K. (2007). The Rule of Law and the Coherence of the Judicial System of the European Union. Common Market Law Review. Vol. 44. pp. 1625-1659.
Rivera Ramos, Efrén. (2001). The legal construction of identity: The judicial and social legacy of American colonialism in Puerto Rico. Law and public policy. pp. 55-70.
Romano, Cesare P.R. (1999). Proliferation of International Judicial Bodies: The Pieces of the Puzzle. Hein.
