Opinion of
Mr. Justice Santana Becerra in which Mr.. Justice Hernández Matos concurs.San Juan, Puerto Rico, March 12, 1959
I concur in the conclusions set forth by Mr. Justice Her-nández Matos in his opinion. I believe that the facts proved, do not warrant nor support a conviction for immoral conduct within the meaning, extent, and content which I attribute to-that concept for the purposes of the removal of a magistrate-of the Court of First Instance, which is, in my opinion, the-sole purpose that may and should be pursued by a conviction for immoral conduct under § 24 of the Judiciary Act of the-Commonwealth of Puerto Rico. Although I am in full agreement with Mr. Justice Hernández Matos, I wish to set forth other considerations, perhaps very personal, which lead me to-reaffirm his conclusions and my concurrence.
In view of the facts proved in this case, there arises a conflict of two social values of utmost importance which transcend the limits of this or any other particular case. One involves the magistracy as respects the integrity of the admin*75istration of justice; the other, as respects the political integrity of the judicial function. Between both values there is a sensitive balance that should be closely watched, lest one of them should hurt the other.
The exercise of that part of the single and indivisible sovereignty of the people of Puerto Rico inhering in the judicial function was delegated to the Supreme Court and to the •other courts created by law.1 The Court of First Instance was created by law and, hence, its judges exercise that part •of the sovereignty of the people which deals with the judicial function on an equal footing of political power with the Supreme Court, since it should not be understood that the superior hierarchy of the Supreme Court, which is a common thing in the structure of judicial systems such as ours, nor its power, in other jurisdictions, of supervision or vigilance over the courts of lower hierarchy, will represent a limitation of the political function of sovereignty incarnated in and exercised by the magistrates of first instance; or that such political function of sovereignty reaches them through hierarchical channels or by delegation of the Supreme Court.
Because it was the people who delegated to the magistrates the exercise of that function of their sovereignty, the appointment of the judges called upon to exercise the public duty entrusted to them, the stability and enjoyment of such tenure .as well as the cessation of the office for reasons other than its natural expiration, have been of vital interest and a source ■of concern to the people itself, for the protection of the delegated power.2 As regards the latter, the causes fixed for the removal of a Justice of the Supreme Court, that is, what the people considered should be the causes for depriving the *76justice of the exercise of the judicial function of sovereignty vested in him, are treason, bribery, other felonies, and misdemeanors involving moral turpitude. Regarding the removal of judges of the other courts, the people expressly delegated to the Legislative Power the power to establish the causes. therefor;3 and § 24 of the Judiciary Act — Act No. 11 of July 24, 1952 — provided that the Judges of the Court of First Instance must be charged with immoral conduct or neglect of judicial duties, and, if the charges are found proved, the Supreme Court may censure, suspend, or remove them permanently from office.
The term “immoral conduct” is in itself a general and. all-embracing term. The definitions of this term, whether' of a purely legal order or social order, comprise many other generalizations. There does exist a definite concept, many times perceived or drawn by intuition rather than the defined concept, of what is meant by immoral conduct, which is determined by the ethical values prevailing in a society or in a civilization. But sometimes such general meaning does not help in the solution of concrete problems.
Hence, in the absence of a more precise legislative rule as. to what acts or what kind of actions of the magistrates of the Court of First Instance will warrant their deprivation of the political function of sovereignty with which they are invested, it seems more appropriate, in the face of the problem involving the removal of a judge and in ascribing meaning" and content to the imprecise term of “immoral conduct,” if the Supreme Court would look to the intent of the people and. fix such conduct, or a similar one, as that which the people deemed fit to fix for the deprivation of the exercise of equal function of the sovereignty vested in a Justice of the Supreme-Court. If deemed convenient, there could also be adopted as. orientation such conduct, or a similar one, as the Legislative-Power itself established in the past as cause for the removal *77of magistrates of the Superior Court, then District Judges.4 In either case there would be elements of moral turpitude or moral deformation.
And it seems fitting that, after all, it ought to he so because even though there exist functional hierarchies within the magistracy, in the purity of its symbol and in the public concept of esteem and respect which it should deserve, there is no room for ethical hierarchies in the magistracy. Different scales of moral values are not in order, since in any hierarchical plane in which a magistrate by his acts becomes unworthy of the honor and confidence entrusted to him, he offends equally the society and equally defrauds public values of significant worth entrusted to him.
The foregoing considerations on the interpretative rule which in my opinion should be adopted under § 24 — inspired essentially and fundamentally on the immovability and stability of the judges in their offices, which is a basic postulate, not only of the independence of the judicial function as a governmental body against other governmental bodies, but also of the judicial independence in the freedom of the mind and conscience of the judge — explain why I believe that the facts proved against the respondent Judge Fernando Gallardo Diaz do not constitute immoral conduct, for lack of depravation therein. They are facts which Mr. Justice Hernández Matos has characterized in a manner that I need not repeat here, but which arose suddenly from an incident not anticipated by the judge; they are facts which lack malice, insofar as malice is an element of a scheme or plan conceived or carried out with tortuous intention and insofar as there is no malice in the sudden reaction. The judges, unless made *78of separate clay, are not immune to the weakness and feebleness of the human mind, which is at times carried off and gives vent to passion.5
Regarding the incident three days later, Monday, May 6, 1957, alleged as ground for the second charge, I am fully convinced from the evidence that the judge did not coerce or intimidate or induce the newspaper reporter to rectify the information published, nor did he utter any untruth or commit any malicious or wicked act. If he committed any wrongdoing, unbecoming a judge as such but justifiable in the light of the circumstances of the moment, it was to lend his cooperation to that reporter and then spread the rectification upon the minutes of the court together with harsh comments.
They are facts which, I submit, clash with the prevailing rules of the good character and the proper conduct of a magistrate in or outside of a courtroom, and which have thereafter been embodied in a code of judicial ethics adopted subsequent to this case, but the facts are such that, because of their failure to show malice, mental turpitude or deformation, it would be dangerous to consider them as constituting immoral conduct justifying the removal of a magistrate, as affecting the public and constitutional order which I have pointed out. I have referred only to the removal, but not through inadvertence.
To consider as immoral conduct under § 24 the conduct of a magistrate who merely does not live up to the best judicial tradition or to the rules known as canons of ethics, could easily disturb the balance of the two public values referred to earlier in this opinion and thus upset the desired equilibrium between them. It could be argued, on the contrary, that a conviction for immoral conduct under this sec*79tion does not necessarily imply the removal of the magistrate, in view of the fact that he could be temporarily suspended and even censured and that, therefore, any misconduct would be sufficient. I do not share this view for the following considerations resulting from profound conviction:
First, the conviction of a magistrate for immoral conduct and the fact that he continues to impart justice after a period of suspension as punishment or censure, are irreconciliable in my opinion. The term “immoral conduct,” regardless of its nature under § 24, has ordinarily in the public concept a connotation of vileness, vice, or wickedness, at least, of impurity. The disrepute with which the judiciary of a country and the public values in general are tainted whenever a magistrate is convicted for immoral conduct is not aggravated or lessened by the greater or lesser degree of punishment imposed on a delinquent judge. The conviction in itself is enough. There are values, such as chastity, which can not be restored once they are lost, and one of them is the attribute of purity of soul which those whose privilege it is to impart justice among his fellow creatures should possess, and if true justice is to be done, it should come from suitable hands and minds which have not once lost such attribute. Thus, I believe, as stated earlier in this opinion, that the only purpose of a conviction for immoral conduct under § 24 is and should properly be the removal of the convicted magistrate. Had I been convinced in this case, or in any other case, that the judge has been guilty of immoral conduct, once convicted, I would vote for absolute removal because I believe that the entire magistracy would suffer by his reinstatement after a temporary suspension, with his robe so tainted.
The Report of the Committee which designed the Judiciary Act supports, in my opinion, my view of § 24. According to that Report, the causes for removal or for other punishments to be imposed on a judge are immoral conduct and neglect in *80his official duties. It says that immoral conduct includes any indicium of immorality or prevarication which unfits the judge to serve as such and to deserve the public confidence; and that the negligence in the judicial duties consists not only of the failure to perform the work but also the failure to abide by the high standards of judicial ethics established by professional codes, which it was expected would be expressly ■adopted for the courts of the Commonwealth of Puerto Rico. The commentary could not, in my judgment, be clearer. Immoral conduct: any indicium of immorality or prevarication which unfits the judge to deserve the public confidence. This does not imply the notion that the unfitness be temporary, particularly since the unfitness is to serve as judge and to deserve the public confidence. Negligence in the judicial duties: failure to perform the work, but also the failure to abide by the high standards of judicial ethics, referring undoubtedly to the codes of judicial ethics in force in other jurisdictions and which at that time had not been adopted in Puerto Rico. Hence, it follows that, although it may not be so clearly stated in the wording of § 24, in referring to suspensions or censures it did not contemplate such cases of immoral conduct as would produce, according to the Report, the unfitness of the judge as such; and it likewise follows that misconduct, in the light of the canons of judicial ethics, which was the only thing proved in this case, would call at the most for charges of negligence.
Second, because since under a charge of “immoral conduct” it would be permissible to impose the punishment of temporary suspension or censure if § 24 were construed differently from what I suggest, I do not believe in the virtue of discoloring the term to include any judicial behavior which is merely unwise, intemperant, or improper which might be embodied in such charge. It could happen eventually that the judges of first instance would be subjected actually and effectively, as respects their tenure and the discharge of the *81office, to a disciplinary power inherent in the Supreme Court which, for obvious reasons and because of the great difference in the origin of the function, should be confined to the practicing attorneys. The eventuality gains more weight if we consider that it is for the Supreme Court to determine, upon the facts presented, whether or not further proceedings should be had; and if a majority of the Court should be of the opinion that any misbehavior or misconduct of a judge is sufficient immoral conduct for the purposes of § 24, there is no question that further proceedings will often be had.
For various considerations I do not believe that such a situation is sound. In the long run, it would tend to belittle the prestige and the high esteem which judges should deserve from the community, which esteem becomes more necessary the more directly one is in contact with it and which in our traditional medium they have always justly deserved. Noth-withstanding the absence of a judicial career with the resulting immovability; that the appointments to the magistracy of a hierarchy lower than that of the Supreme Court have not been for life; and that the compensation of judges has not been the most desirable, our magistracy has earned a reputation for honesty free from bribery, prevarication, and venality. José Castán Tobeñas comments that if the prestige of English justice is unquestionable, and that if the standards of Great Britain are very high as respects the independence and integrity of the judges, it is due, rather than to constitutional reasons or of judicial organization, to a set of fortunate, historical, and social circumstances, and that it is the Medium and the social environment in particular what has insured the independence and the reputation of the judiciary.6 And per*82haps these other statements of Mr. Justice Frankfurter are also in point:
. . The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be ‘as free, impartial, and independent as the lot of humanity will admit.’ So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige . . . .”7
The higher and more worthy the esteem accorded by society to its judges, the greater their shield and the less incursions shall be attempted against the integrity of their office. I honestly believe that a system in which magistrates are, or are likely to be, the object of frequent disciplinary punishments, will not help any in holding them in the high esteem and prestige accorded by society and which is so necessary, even more than the perfect organization of the English system, as observed by Castán, for the adequate function of justice.
There is also at least one other consideration which makes me reflect deeply upon the foregoing statements. I do not know whether the people really had in mind to subject the magistrates to periodical suspensions or punishments other than removal in justified cases. I am not thinking now about a problem of power of the Legislative Assembly to authorize *83punishments other than the removal of judges. I have in mind a problem of desirability, because the people might well have not considered it desirable, and perhaps, they had reasons for so doing.8 When the Constitutional Convention met, the legislative tradition was that of Act No. 58 of 1930 for Superior Judges, which again appears in the Organic Act of the Judiciary of 1950 (footnote 4 ante). For the then Municipal Judges, now District Judges, there was no provision of law, but it is known that they could not be removed except for just cause; nor did there exist the temporary suspension from office as a punishment. A system which operated in such a fashion for half a century or more must have survived for some reason because, aside from the moral effect in the community to which I have referred above, of judges who have been punished or publicly censured, insofar as it reflects on their delicate function of imparting justice and insofar as they symbolize the judicial authority, in a balance of consequences the suspension of a magistrate from office — I presume that he can not resign during the term of suspension — might well prompt him, in a struggle for existence, to perform acts, not necessarily reviling, but which in some way would harm his reputation and injure the dignity of his office as much as or even more than those for which he was punished.
I do not mean to say that the magistrates of first instance have license to descend to any level of prestige. On the contrary, in such magistracy, as in any other magistracy, there should prevail a perpetual sense of excellence and enlargement of his moral and intellectual values, but it is preferable that it should be so by exaltation of the spirit and by full consciousness of the high prerogative which it performs — justice— which, in the words of William McAdoo, is the brightest jewel *84in the crown of democracy;9 and not because it be afraid to suffer such punishments and discipline as, rather than exalt it, will in the long run impair it in the public opinion. Judges are not devoid of responsibility. Nothing is so true now as it was 87 years ago, when Eugenio Montero Ríos, Minister of Justice and Ecclesiastical Affairs, addressing the Spanish judges on the occasion of the inauguration of the courts on September 16, 1872, in announcing their immovability sanctioned in the Organic Act of the Judicial Power of September 15, 1870, authorized by the Constitutional Courts, said:
“You are, therefore, a power in the Constitution of the State. You are also a great force in the social life. As a public power, you,are the guarantee of all the rights. As a social force, you impart efficacy to all the duties. As a power, you are entrusted with the integrity of the Constitution and of the laws. As a social force, you are responsible to the public conscience for the moral state of the Nation .... But justice must be elevated to the category of the public powers by the vigorous organization of the institutions charged with its administration, and by the prerogatives and guarantees conferred to the magistrates toho represent them for the meritorious discharge of their functions .... Today, hence, with greater reason than on September 15, 1870, I can therefore say to you: you are immovable. But mind you: you are immovable from your office because you are responsible for your acts .... The law has endowed you with everything which you have a right to demand. It is your duty to preserve it ... . The immovability without the conditions which limit it would be the impunity of the betraying magistrate; and our times, as you know well, are not as a general rule favorable to the inviolability of the human powers nor to the impunity of those who transgress in its name .... Therefore, if you wish to preserve the immovability, watch yourself incessantly and see that your judicial duties are performed in anticipation of the citizen, who may exercise the popular right vested in him *85by the Constitution .... Never confuse the sanctity of justice with the inviolability of your acts, for it would work great danger to attempt to shroud the wrongdoings of man in the sanctity of the institution.” (Italics ours.)
This is an eloquent statement of principles for a magistracy and, above all, the fact, never to be overlooked by the judges, that they are acting under the sanction of the community which is always present, at times more critical and severe than any hierarchical discipline, which is voiced in the press, in the public opinion in general, and in the other political bodies of the State.
By accident, this Court has not handed down a decision in this case. Because I believe, however, that the foregoing considerations, which are the product of a firm conviction, go beyond the boundaries of the case before us and are common to all others of like nature which may arise, and because of the problem of public right involved, I do not wish to bring this opinion to a close without expressing my personal views as to the desirability of reviewing § 24 of the present Judiciary Act in order that the Legislative Power, as the most direct representation of the people which invested the judges with the judicial power, should determine the particular acts or kinds of acts of a magistrate of first instance which may warrant the privation of his investiture.; as well as such other conduct, in the event it is deemed advisable, as would warrant the judge’s suspension or some other punishment, together with such measures as may be deemed proper in order not to create a condition affecting the magistrate, which in the long run may injure the administration of justice rather than himself.
Thus, rather than the normative function, which to a certain extent is compulsory under § 24 as it now stands, the Supreme Court should be given, in the initial as well as in the following stages, the more appropriate function of trier *86of facts and imposition of punishment in the light of public standards predetermined by law.10
In view of the foregoing, in the belief that the charge of immoral conduct which is the charge preferred against the respondent judge calls only for a conviction for immoral conduct, without there being lodged in the Supreme Court the inherent power to discipline him unless he is found guilty of such kind of conduct, in which case only a removal would, in my opinion, be in order; and since in my opinion the facts proved did not show immoral conduct within the meaning and content, as I understand it, of that term under § 24 of our Judiciary Act, I voted for the exoneration of Judge Fernando Gallardo Diaz.
Constitution, Art. I, §⅞ 1 and 2; Art. V, ⅜ 1.
Constitution, Art. V, § 8 — constitutional minimum term oí tenure; ⅞ 10 — retirement of judges by special law; ⅞ 12 — protection of tenure against political activities; ⅜ 13 — protection against termination of tenure by indirect means; Art. IX, § 3 — protection of tenure against constitutional age limit.
Constitution, Art. V, §11; Art. Ill, §21.
Act No. 58 of April 29, 1930 (Sess. Laws, p. 418), provided for the removal of District Judges (Superior) on the following grounds: prevarication, bribery, immoral conduct, any offense implying moral turpitude, inexcusable negligence, or manifest incompetence to perform their duties. The Organic Act of the Judiciary — Act No. 432 of May 15, 1950 (Sess. Laws, p. 1126) — prescribed identical causes for removal. None of those laws provided for other punishment except removal.
God grant — recalling a speech delivered by Hon. Samuel R. Quiñones, President of the Senate, at the opening of the past Judicial Conference— that modern technique may never succeed in producing artifacts for imparting justice, perhaps very perfect but lacking human sentiment with all its virtues and weaknesses.
Judicial Power and Judicial Independence, address read by Mr. José Castán at the inauguration of the Courts in 1951. Castán cites, in passing, Manuel de la Plaza, an authority on procedural law, who points out, among the reasons for the success of the English judicial system, “the high esteem which in the social environment is attached to the judge’s mission, which holds in check the eventuality, very remote, on the other hand, of interference with his functions; the suppression of promotion made possible by *82the meager compensation . . . the difficulties encountered in the removal of the judges .... It all shows that the exalted merits of British justice are not derived from the system of appointment, which can not be frankly rejeetable for many reasons, but from the national conception of justice as a function.” (Italics ours.)
United States v. Mine Workers, 330 U. S. 258, 308.
Constitution, Art. V, § 11, provides lor removal only.
Senator William G. McAdoo in the impeachment proceeding of federal judge Halsted L. Ritter, cited by Yankwich in Impeachment of Civil Officers, etc., 26 Geo. L. J. 849, 869. The compilation of impeachments of judges made by the author and the charges against them, beginning with that of Lord Chancellor Sir Francis Bacon in 1620, is interesting.
It is said that Aragon was the first country in Europe which recognized by 1442 the stability of its judges, and England next in 1688. In the Constitution of Bayonne of 1808, Spain provided for a certain form of immovability, but it was as of the Constitution of Cadiz of 1812, and thereafter in all the constitutions which followed, that provision was made only as respects the judges for the immovability from office, consisting in the prohibition to remove, suspend, transfer, or pension the magistrates except for the causes and other acts provided by law. In the preamble of the Constitution of Cadiz of 1812, it was stated that “Since the integrity of the judges is the most essential requisite for the efficient discharge of their office, it is necessary to insure this virtue by all means possible. Their mind must be free of any impression that might even entertain remote suspicion of sudden removal.” The Organic Act of the Spanish Judiciary —Act of September 15, 1870' — as amended or implemented up to the present time, enumerates expressly and in detail, as does the Penal Code of Spain in the sections dealing with prevarication, the acts which warrant the removal of magistrates, suspension for certain periods, transfers, and other punishments, as well as compensation or 'loss thereof during the period of suspension. This practice of specifying the acts in detail in the law or in the constitution, at least as respects removal, exists in many other jurisdictions. Medina y Marañón, Leyes Penales de España (10th ed. 1947) ; Códigos, Leyes y Tratados Vigentes (1885) ; 18 Enciclopedia Jurídica Española 903; 20 Id. 775; Id. App. 1946, p. 916; 6 Alcubilla, Diccio-nario de Administración 173; 41 Revista de Legislación y Jurisprudencia 112 et seq.; 65 Id. 119.