A review by Pedro Reina-Pérez*
Originally published in ReVista, the Harvard Review of Latin America (Spring 2014)
— Reprinted with permission of the author and ReVista, the Harvard Review of Latin America
Derecho al Derecho: Intersticios y Grietas del Poder Judicial en Puerto Rico, Editors Érika Fontánez-Torres and Hiram Meléndez-Juarbe (Cabo Rojo: Editora Educación Emergente, 2012, 213 pages)
On March 23, 2011, a woman attacked by her partner, was denied a legal remedy under Puerto Rico’s Domestic Violence Prevention and Intervention Law in a highly publicized case (Pueblo v. Flores Flores), because she was in an adulterous relationship with her aggressor. To the astonishment of many, the Puerto Rico Supreme Court issued a split decision (3-3) effectively upholding an appellate court ruling that many felt betrayed the original purpose of this law. The court claimed, in Justice Eric Kolthoff-Caraballo’s formulation, that the law’s intention had been to protect the family unit leaving adulterous relationships outside its protection. Yet the 1989 law, approved by the legislature to eradicate domestic violence, was broad in its intention, referring to relationships in the most diverse ways and making no distinction as to people’s sexual orientation, gender or marital status. The court’s opinion therefore generated a vigorous public reaction.
Renowned legal scholars denounced the ruling, contending that it invalidated the legal protections originally intended in the letter of Law 54, to shield a victim from an act of violence, in this case inflicted by her partner. Other opinions followed in the media, focusing on the effects on other pending cases of a conservative-leaning court willing to extend its moral views to other pending cases, and the repercussions that one case may have in arresting social advances achieved through litigation.
These and other relevant cases and legal topics are carefully analyzed in Derecho al Derecho, an ambitious book comprised of a selection of articles published between 2008 and 2012, mostly in a blog by the same name (some appeared in other electronic and traditional media), compiled and edited by Érika Fontánez-Torres and Hiram Meléndez-Juarbe, professors of law at the University of Puerto Rico. Many of the texts are followed by comments posted by readers and the authors themselves, resembling a conversation among a greater community seeking to expound on a particular topic. Its title is a clever play on words as “derecho” in Spanish, aside from “law,” can also mean “straight” or “right,” depending on its use. Any combination of the two reveals the intention of the editors to promote open discussions of legal matters, particularly those dealing with the performance of the courts and the standards of the legal profession for the general public.
The book is organized into four main chapters: A Critique of Judicial Power, Legitimacy of Judicial Power, Democracy and Deliberation in the Political Process, and The Social Responsibilities of Lawyers. Each chapter presents eight to twelve articles followed by commentary. Among the authors are legal scholars Esther Vicente, Ana Matanzo-Vicéns, Julio Fontanet and Efrén Rivera-Ramos—former dean of the University of Puerto Rico Law School.
In the introduction, the editors describe their motivation in pursuing this project. “Traditionally, legal scholars have served as translators of norms and developments occurring inside the legal system for the greater community. That has averted a more active and critical citizen participation in matters pertain- ing to the law, its institutions and its experts. At the same time we have incurred the contradiction of reproducing certain practices, institutions and discourses that limit and hinder critical public engagement with the legal system. But the digital information technologies available today offer new possibilities to overcome these structural hurdles. Thus, however imperfect or incomplete they may be, these technologies can help breach the barriers to take legal discussions to the public forum. This seems particularly important at a time when public trust in the justice system has reached a new low, and politics and government are in a crisis.”
The book offers a detailed portrait of a troubling period in Puerto Rico, marked by the 2008 election of Governor Luis Fortuño of the pro-statehood New Progressive Party (PNP in Spanish). A rising Latino star in Republican circles (his name was even floated as candidate for Vice President on the 2012 national ticket), Fortuño reacted to a declining economy with massive layoffs of government employees, among other drastic measures to reduce the payroll. Fortuño and the PNP controlled both houses of the legislature, allowing them to enact an aggressive conservative agenda. His predecessor, Governor Aníbal Acevedo-Vilá (2004-2008), from the rival Popular Democratic Party (PDP), had been unable to fully enact his party’s platform as the legislature was fully controlled by the PNP during the same period. The legislative deadlock that ensued led to a government shutdown in 2006 and prevented the governor from filling vacancies in many government agencies: among other difficulties, his nominees would fail to win confirmation by the Senate. This was particularly troubling in the case of the Supreme Court, which had four vacant seats.
Once in office, Governor Fortuño appointed four new justices to the top court: Mildred Pabón-Charneco, Rafael L. Martínez-Torres, Erick Kolthoff-Caraballo and Edgardo Rivera-García, effectively giving control of the Court to justices appointed by his party for the first time in history (the remaining three justices had been appointed by the PDP). The confirmation process was denounced as a travesty for not allowing enough time to examine the candidates’ professional records, thus preventing proper evaluation of the nominees. It was clear that the new governing party was keen on taking control of the island’s highest court. Yet more controversies awaited.
Shortly thereafter, the new majority in the Court, invoking the constitution, requested an increase in the number of judges from seven to nine. Governor Fortuño enacted legislation to comply with the request, deemed necessary from his perspective to lighten the workload of the Court, which had almost 800 cases pending resolution. The proposed law again was quickly approved by the Legislature. The expansion was criticized as unnecessary, while others contended that it was a partisan attempt to stack the court with PNP appointees. Media coverage and public discussion of these events were vigorous. Claims of a partisan takeover of the judiciary abounded and the aforementioned blog was a notable place to follow the discussion on the consequences of these and other matters.
These events concerning the Supreme Court are discussed at length in the book as the editors pose a series of questions dealing mainly with transparency, accountability, access and public trust in the democratic process. It is evident that they intend to raise issues that concern not only lawyers but also the general public as stakeholders of their judicial institutions. The editors want to expand the conversation to include citizens as well as law students in order to empower people to speak up against perceived prejudice and unfairness. The conversation is not limited to the actions of the courts but includes the executive and legislative branches as well. References to cases dealing with environmental protection, community organizing and minority rights are presented and commented on. In this regard the editors play their part as legal educators well, challenging the reader to carefully examine the implications of each event, and to offer their own views on the consequences of arbitrary decisions beyond the legal realm. They constantly refer to the social responsibilities of lawyers, a topic that is present from cover to cover. It is clear that they intend to reclaim the legal process not only as a tool for the privileged but also for the disenfranchised, as they pursue the leverage of social and economic change for the greater good.
Finally, the book is an important historical document containing a cross section of intellectual reflections on one of the most troubled periods in contemporary Puerto Rican history. The editors have fulfilled their objective valiantly with academic rigor, and most importantly with utmost respect for the general public.
*Pedro Reina-Pérez is the Wilbur Marvin Visiting Scholar at the David Rockefeller Center for Latin American Studies at Harvard University. He is a Professor of Humanities at the University of Puerto Rico.