NATURAL-BORN CITIZENS OF THE UNITED STATES
“By the 3d article of the treaty Spain ceded to the United States 'the archipelago known as the Philippine islands,' and the United States agreed to pay Spain the sum of $20,000,000 within three months. The treaty was ratified; Congress appropriated the money; the ratification was proclaimed. The treaty making power, the executive power, the legislative power, concurred in the completion of the transaction.
“The Philippines thereby ceased, in the language of the treaty, 'to be Spanish.' Ceasing to be Spanish, they ceased to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection.”--The Diamond Rings, 183 U.S. 176 (1901), Chief Justice Fuller
“Neither the climate nor the soil, but allegiance and obedience that makes the subject born.”--Calvin's Case (1608)
Sec. 2, (a) (1) “All citizens of the Philippine Islands shall owe allegiance to the United States.”
Sec. 8. (a) (1) “For purposes of the Immigration Act of 1917 … citizens of the Philippine Islands shall be considered as if they were aliens.”
--The Philippine Independence Act (1934) (Tydings-McDuffie Act)
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The Citizenship Clause in Section 1 of the Fourteenth Amendment of the U.S. Constitution declares:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
A. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS READ OFFICIALLY AND JUDICIALLY AS A “QUALIFYING PHRASE” OF THE ELEMENT PRECEDING IT, “ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES”
Officially and judicially in the United States, the phrase “and subject to the jurisdiction thereof” in the Citizenship Clause is viewed as a “qualifying phrase,” a modifier of the element preceding it, “All persons born or naturalized in the United States.”
“Congress’ intent in including the qualifying phrase “and subject to the jurisdiction thereof,” was apparently to exclude from the reach of the language children born of diplomatic representatives of a foreign state and children born of alien enemies in hostile occupation, both recognized exceptions to the common-law rule of acquired citizenship by birth, as well as children of Indian tribes subject to tribal laws.” [See FindLaw, citing U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) and Elk v. Wilkins, 112 U.S. 94 (1884)]
We underscore the phrases “recognized exceptions” and “subject to tribal laws,” both of which will be discussed in detail later.
B. U.S. CIRCUIT COURTS REJECT THE INTERPRETATION THAT THE WORDS “IN THE UNITED STATES” INCLUDE THE TERRITORY OF THE PHILIPPINE ISLANDS
In Rabang v. INS (9th Circuit, 1994), again in Valmonte v. INS (2nd Circuit, 1998), several Filipino Plaintiffs argued that the words “in the United States” in the Clause include within its coverage the U.S. Territory of the Philippine Islands.
Sadly, the Circuit Courts rejected the validity of that reading; the cases were dismissed, and the Plaintiffs deported. In affirming the harsh deportation in Rabang, the Court said:
“Supreme Court precedent compels a conclusion that persons born in the Philippine Islands during the territorial period were not “born … in the United States,” within the meaning of the Citizenship Clause of the Fourteenth Amendment and are thus not entitled to citizenship at birth.”
In his stirring dissent in Rabang, however, Judge Pregerson asserted forcefully:
“… all persons born within the territory of a sovereign nation and who owe complete allegiance to that nation are deemed “natural born” for purposes of citizenship. Thus, I would hold that persons born in the Philippines during the territorial period--between December 10, 1898 and July 4, 1946--should be considered United States citizens within the meaning of the Fourteenth Amendment’s Citizenship Clause.”
And he concluded:
“A review of the relevant authorities ineluctably leads me to conclude that the District Court erred in dismissing Plaintiffs complaints for failure to state a claim, and that the majority opinion erroneously affirms that dismissal. Persons born in the Philippines during the territorial period indisputably were born within the dominion of the United States, and therefore were born ‘in the United States.’ Within the meaning of the Citizenship Clause. Moreover, neither congressional power to control naturalization and regulate territories, nor the now disfavored doctrine of territorial incorporation, authorizes this Court to deny to the Plaintiffs what the people of this country sought to ensure under the Fourteenth Amendment—the inviolability of the fundamental right to citizenship at birth.”
We applaud the depth of Pregerson’s dissent (which covers more pages than the majority decision) and his concern towards rectifying the injustice in depriving “the fundamental right to citizenship at birth” Territorial Filipinos were entitled to.
C. TERRITORIAL FILIPINOS CHALLENGE THE PREVAILING OFFICIAL AND JUDICIAL READING OF THE CITIZENSHIP CLAUSE
It was the PREGERSON DISSENT in Rabang that inspired the authors to embark on a journey of scrutinizing a FUNDAMENTAL RIGHT DENIED to Territorial Filipinos. And this led us to a deeper analysis of what the author really intended the Clause to convey.
What we gathered during our studies is that the author’s intent, grammatically read, has altogether been incredibly overlooked--a misreading of the phrase “and subject to the jurisdiction thereof” the legal community already reveres as gospel truth.
Undaunted, WE, TERRITORIAL FILIPINOS, challenge the official and judicial view of the Citizenship Clause--now stare decisis for well over a hundred years, mindful that:
“Discovery consists in seeing what everyone else has seen and thinking what no one else has thought.”—Albert Szent Gyorgy, 1937 Nobel Prize for Medicine.
We insist that it is a grammatically erroneous reading, emboldened by the words of Irving Brant:
"Human rights are not to be denied because some judges went wrong a hundred years ago. Judicial disagreements produce dissenting opinions, and dissenting opinions publicize the disagreements. They also educate the public, which then helps to turn the remedial dissents into the law of the land.
"The most ancient errors are hardest to correct, partly because they become indurated by their antiquity."--The Bill of Rights: It's Origin and Meaning, p. 502 (1967).
Truly, “by their antiquity,” for Territorial Filipinos belong, historically, to a different yet almost forgotten breed of Filipinos, portrayed in many ways to be--
--Filipinos born during the American territorial period between 11 April 1899 and 04 July 1946 following the ratification of the Treaty of Paris (concluded 10 December 1898) and the cession of Las Islas Filipinas by the Spanish Crown to the United States of America for 20 million Dollars;
--Filipinos born in the outlying possession and U.S. territory of the Philippine Islands and, by 1934, in the Commonwealth of the Philippines, over which the United States was sovereign;
--Filipinos mandated to “owe allegiance to the United States” and, conversely, “entitled to the protection of the United States”;
--Filipinos over whom the United States exercised the rights of sovereignty and jurisdiction under a policy of “Benevolent Assimilation”;
--Filipinos designated by U.S. laws with the racist oxymoron status of non-citizen ”American nationals” at birth, but to be “considered as if they were aliens” of foreign birth (legalizing a “presupposition contrary to fact”), with the sole intent of placing them all, now regarded by law as “aliens by supposition,” subject to U.S. immigration laws.
--Filipinos who validated their “allegiance to the United States,” ennobled its tie to BIRTHRIGHT, by defending, as a CALL to DUTY, American territory against the onslaught of Japanese invaders in gory battlefields of WWII, and who, proudly bearing the Stars and Stripes Japan humiliated after Bata-an Fell, waged a relentless Guerilla War of Resistance unparalleled in the annals of unconventional warfare.
Yet, to the U.S. Congress, they were “aliens by supposition.” And It is precisely the misreading of the Citizenship Clause that legitimized the “supposition” and rendered TERRITORIAL FILIPINOS--natural-born citizens of the United States under the Clause (had it been grammatically read as it was written)--
STATELESS, WITHOUT ANY COUNTRY, AT BIRTH!
After a long, careful review, we are fully convinced of the weight of our findings, aware that the vindication of this Claim, of this RIGHT, will go a long way towards rectifying, finally, the injustice, the inequity—and the inhumanity—that has become the sad birthright of the Filipino from decades of greedy exploitation by their so-called religious or benevolent colonizers, for in the words of Justice Black:
“The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”--Afroyim v. Rusk, 398 U.S. 253 (1967)
D. THE CONJUNCTION “OR” JOINS THE WORDS “BORN” AND “NATURALIZED”
As worded, the conjunction “or,” defined as “introducing the second of two alternatives,” in the phrase “born or naturalized in the United States,” joins together the word “born” with the alternative, “naturalized”; and the phrase “in the United States” is the determinant for both alternatives, (1) “born” and (2) “naturalized.”
Hence, it is clear that, under this section of the Clause, “citizens of the United States’ are “persons” who are (1) “born … [only] in the United States” and “persons” who are (2) “naturalized [only] in the United States” and NOT anywhere else, other than ONLY “in the United States.”
In other words, owing to the definition of the conjunction “or,” if a person is deemed NOT to qualify as a “citizen of the United States” for having been “born” in a place designated as OUTSIDE of, and NOT in, “the United States”; that same person obviously does NOT also qualify to be “naturalized,” since to be “naturalized” is the “second of two alternatives” of the status conferred by the same determinant “in the United States” and joined to the first alternative “born” by the conjunction “or” which the person is already deemed ineligible to be conferred with under.
Strangely enough, this consistency has not been made to apply in the particular case of the inhabitants of the Commonwealth of Puerto Rico and of the U.S. territory of Guam.
For insofar as “born … in the United States” is concerned, Puerto Ricans and Guamanians are deemed NOT qualified to be “citizens of the United States” having been “born” in a place designated as OUTSIDE of, and NOT in, “the United States,” being merely “unincorporated” territories; however, as regards the alternative, “naturalized in the United States”—and joined by the conjunction “or”-- Puerto Rico and Guam are considered, this time around, to be a place already “in the United States.”
Hence, the inhabitants of both territories are deemed qualified to be “naturalized (although NOT qualified to be “born”) in the United States--under what the U.S. Congress refers to as “COLLECTIVE NATURALIZATION”--and become “citizens of the United States.”
What this means is that: For purposes ONLY of determining “place of birth,” Puerto Rico and Guam are deemed OUTSIDE of, and NOT in “the United States”; but for purposes of “naturalization,” they are now suddenly found lying squarely “in the United States.”
Do you not find the logic of this selective application of a constitutional provision somewhat bizarre, even comical, not to mention racist?
The U.S. Congress, of course, can lean on the other option--Article I, Section 8.
“The Congress shall have the Power … To establish an uniform law of Naturalization.”
But this authority embodied in the original 1787 U.S. Constitution was no doubt modified by the Citizenship Clause in the Fourteenth Amendment ratified 80 years later in 1868 which declares that ONLY “persons … naturalized in [and NOT OUTSIDE of] the United States,” can qualify to be “citizens of the United States.”
So, in view of this modification, upon what constitutional authority does the U.S. Congress rely on to legitimize the term “COLLECTIVE NATURALIZATION“?
The anomaly of this assumed power is readily evident in the provisions of the U.S. Code itself which defines the term “naturalization” to mean “the conferring of nationality of a state upon a person after birth, by any means whatsoever.”
Note it well the limiting keywords “AFTER BIRTH.” Thus, “Collective Naturalization” should cover only those already “born,” say the inhabitants of (already “born” in) a newly-ceded territory upon annexation and even their children “born” later, but NOT ANY child “born” there.
One question, it seems, is enough to underline the incongruity of the power exercised: Even assuming that they are “in the United States” for purposes of “naturalization,” can the U.S. Congress confer “Collective Naturalization” upon Puerto Ricans and Guamanians “AT BIRTH,” when “naturalization” is applicable ONLY “AFTER BIRTH”?
The answer is, unbelievably, Yes! For under the Immigration and Nationality Act (INA), as codified in the United States Code (U.S.C.), the U.S. Congress, indeed, can:
Sec. 302 (8 U.S.C. 1402) declares:
“All persons born in Puerto Rico on or after April 11, 1899 … subject to the jurisdiction of the United States … are hereby declared to be citizens of the United States.”
To that, add Sec. 307 INA (8 U.S.C. 1407):
“(b) All persons born in the island of Guam on or after April 11, 1899 (whether before or after August 1, 1950) subject to the jurisdiction of the United States are hereby declared to be citizens of the United States.”
Upon reading these provisions (even assuming that these persons are “in the United States”), we were stunned, speechless; so, we prefer not to comment, other than to underscore the phrase “All persons born” in the cited provisions above in relation to the legal definition of “naturalization” (“after birth,” that is) for your further scrutiny.
And we, of course, must also emphasize the date these cited provisions were to become effective--“April 11, 1899”--which is the date, mind you, of the exchange of ratifications of the Treaty of Paris, the same date the Spanish Crown ceded Las Islas Filipinas (Philippine Islands) to the United States, and the same fateful date Territorial Filipinos became “subject to the jurisdiction” of the United States.
But why has this date been moved RETROACTIVE to “April 11,1899,” when Puerto Ricans were conferred U.S. citizenship only in 1917 and Guamanians only in 1950?
Let the U.S. Congress respond and explain these inexplicables.
Perhaps, by moving the date RETROACTIVE, the U.S. Congress has finally recognized--and is now merely trying to be subtly consistent with-- the jus soli principle that citizenship of a state is acquired if birth occurs in territory over which the state is sovereign on or after the date of formal acquisition of such territory.
In any case, had it really been the intention to authorize the so-called “Collective Naturalization” in the manner it is being applied by the U.S. Congress now, the Citizenship Clause should have been reworded in a way that the words “in the United States,” do not qualify the words “or naturalized,” as follows:
“All persons born in the United States, and subject to the jurisdiction thereof, or naturalized, are citizens of the United States and of the State wherein they reside.”
Understandably, the exercise of this anomaly has NOT been raised or argued in the Courts, nor has it been exhaustively discussed in legal journals, since “COLLECTIVE NATURALIZATION” affords the enjoyment of rights, privileges, benefits and immunities to those “naturalized” upon conferment of citizenship or nationality. So, why complain?
And, if this is the first time that it has been questioned, the reason is that Territorial Filipinos are the ONLY group that has been unjustly affected, having been collectively “denationalized” by the exercise of this awesome power the U.S. Congress assumes.
These cited implications alone (among others to be discussed later here), brought about by the ungrammatical reading of the Clause, officially and judicially, which views the phrase “and subject to the jurisdiction thereof” as a “qualifying phrase,” may be regarded as a monumental reading error, unbelievably persisting to this day.
E. THE WORDS “OR NATURALIZED” WERE INSERTED LATER
Actually, the words “or naturalized” do not appear in the draft Senator Jacob Merritt Howard, the author, proposed on 30 May 1866 that was debated and “agreed to” that same day. The draft Senator Howard submitted for consideration reads:
"All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
It was only a week later, June 8th, that the words, “or naturalized,” were inserted “by general consent, after the word 'born'" (without any debate), sponsored by Joint Committee on Reconstruction Chairman Senator William Pitt Fessenden.
It is, perhaps, this later addition of another conjunction “or” from the newly inserted words “or naturalized” (aside from the conjunction “and” in Senator Howard’s original) that may have brought about the grammatical confusion and fueled the lamentable misreading of the Clause.
For shorn of all modifiers and adjuncts, Senator Howard’s draft as originally debated and approved, without the words “or naturalized,” would have been easier to grammatically parse, for it would have looked like this:
“Persons born, and subject to, are citizens.”
This confusion is apparently the reason why the official and judicial view that regards the phrase “and subject to the jurisdiction thereof” as a qualifier or modifier to “All persons … naturalized in the United States” provokes a glaring redundancy, a superfluity.
The official and judicial view is superfluous, since the phrase itself is, in fact, the very reason why a person files a “petition” to be “naturalized” and that is, to be “subject to the jurisdiction” of the United States or, specifically, of the Court. And this can be gleaned from the Court’s view that “An applicant for naturalization is a suitor, who, by his petition, institutes a proceeding in a court of justice for the judicial determination of an asserted right.” (In re Bodek, 1894, Fed Rep. 813, Pa. Dist 725)
Even if the phrase is to be read otherwise, not as a qualifier or modifier, but as a mere description of what a person “naturalized” is or becomes; the prevailing view is still redundant, since a person deemed “naturalized” is simply another way of saying that that person is already “subject to the jurisdiction” of the United States.
NOTE: It is, indeed, odd that this insertion has not been given much thought. In fact, Google and Wikipedia search engines fail to provide a citation in a law journal or Court case that discusses this addition on a later date of the words “or naturalized” to Senator Howard’s Draft. In Wong Kim Ark (1898), it merely mentions about the “omission” as an aside, with nary a comment, that the words “or naturalized” were not in the draft.
This amendment to Senator Howard’s draft has remained virtually unnoticed, probably because the insertion of the words “or naturalized,” which appears on page 3040 (08 June 1866) of the Congressional Globe, is 143 three-column pages from the last page of the Senate Citizenship Clause debate that ended at page 2897 (30 May 1866).
F. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS ENCLOSED WITHIN A PAIR OF COMMAS
Now, take careful note that, as originally proposed, a pair of commas already enclosed the phrase “and subject to the jurisdiction thereof” and, for that matter, even after the words “or naturalized” were inserted later “after the word ‘born.’”
An innocuous comma is often crucial--even fatal.
“Sir Roger Casement was 'hanged by a comma.' This British diplomat was charged with treason during WW I. His trial centered on the question; 'Did the law apply to acts of treason performed abroad?' The answer depended on whether or not there were a pair of commas in the relevant section of the law. It was ruled there were, and Casement was hanged.” (Quoted in Lynn Truss, “Shoots, Eats & Leaves," 2004)
The British Statute of Treasons (1351) referred to declares: "If a man do levy war against our said Lord the King in his realm or be adherent to the enemies of our Lord the King in his realm giving to them aid and comfort in the realm or elsewhere."
“The question of interpretation can be shortly stated: is it treason to adhere outside the realm to the King's enemies? In other words, do the words or elsewhere qualify only the words which immediately precede them, or do they qualify the entire phrase be adherent to the enemies of our Lord the King in his realm giving to them aid and comfort in the realm? If the document had been punctuated, where would the commas have been?
“His counsel contended that, because the Act was unpunctuated, the phrase 'if the man be adherent to the king's enemies in his realm giving to them aid and comfort in the realm or elsewhere' could be construed to mean that it was perfectly all right to plot against the realm provided you did it abroad. Two judges trudged off to the public records and found a faint comma, after the second 'realm'. This, according to Mr Justice Darling, proved that 'giving aid and comfort' were words of apposition, ie if you were on the side of the king's enemies you were on their side wherever you happened to be. And Casement was duly hanged.”
In other words, since the comma was placed before the coordinating conjunction “or,” after the word “realm,” the word “elsewhere” that follows the coordinator was intended to convey the meaning that it was to be regarded as a separate element.
Territorial Filipinos for their part were collectively “hanged by a pair of commas” the author already affixed in the Citizenship Clause but read and ruled--officially and judicially--to be anywhere, except there!
G. COMPARING THE CITIZENSHIP CLAUSE WITH A SIMILAR PROVISION IN THE 1866 CIVIL RIGHTS ACT ENACTED TWO MONTHS EARLIER BY THE SAME 39TH CONGRESS
Had Senator Howard really intended the phrase, "and subject to the jurisdiction thereof," in his original draft to modify the phrase preceding it, "All persons born in the United States," he could have simply followed what the same 39th Congress did just two months earlier in wording a similar provision in the 1866 Civil Rights Act—OMIT THE COMMAS.
The first sentence in the Act reads:
“All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
Note that the grammatical subject of both the Act and Senator Howard’s original draft is basically the same structure:
Draft --“All persons born in the United States, and subject to the jurisdiction thereof,”
Act --“All persons born in the United States and not subject to any foreign power”
Both the Draft and the Act begin with the main subject “All persons” and the adverbial modifier “born in the United States,” but differ only in the phrase that follows joined by the coordinating conjunction “and.”
The telling difference between the two is the manner in which the phrases joined by the coordinator “and” is structured: The phrase in the Draft is enclosed within a pair of commas while that in the Act is not, NO commas are used
Owing to the absence of commas in the Act, the phrase “and not subject to any foreign power” is no doubt intended to modify or qualify the phrase preceding it, “All persons born in the United States,” which is how it was read and intended to convey.
The other more significant difference between the two phrases joined by the coordinator “and” pertains to the words employed: The Draft uses the words “subject to the jurisdiction” while the Act avails only of the words “subject to” (negatively phrase), particularly the absence of the crucial determinant word “jurisdiction,“ which is the subject matter of separate discussion.
H. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS NON-RESTRICTIVE
In the case of the Citizenship Clause, the phrase “and subject to the jurisdiction thereof” is enclosed between a pair of commas, with the first comma placed before the coordinating conjunction “and,” and the second before the linking verb “are,” leaving the phrase virtually sandwiched between the subject and the verb.
Note the stark similarity of the punctuation between the comma in “Casement” (the “hanging” discussed earlier) and that in the Clause: The comma in “Casement” is marked before the conjunction “or,” while the first comma in the Clause is placed also before a conjunction, the coordinating conjunction, “and.”
English grammarians designate an element enclosed within a pair of commas, in this instance the phrase “and subject to the jurisdiction thereof,” as “non-restrictive” whenever “the element enclosed is not grammatically essential to the construction of a sentence” and “the omission of which would not change the meaning of the main clause.”
Simply put, the rule says: “if it can be omitted,” which means that the element is “non-restrictive,” as in the Citizenship Clause, “it can be set off by commas”; if not, which means that the element is “restrictive,” as in the Civil Rights Act, it “should not be set off by the comma.”
Thus, based on these simple rules, the phrase “and subject to the jurisdiction thereof”--which, to repeat, is defined as “non-restrictive” since it is “set off by commas”--is definitely not intended to qualify or modify the element preceding it, “All persons born [“or naturalized” added later] in the United States.”
The phrase does NOT qualify as an “appositive,” since the term means “a noun, noun phrase, or noun clause which follows a noun or pronoun and renames or describes the noun or pronoun.” Even granting the phrase is, it is still a “non-restrictive appositive.”
NOTES: In The Elements of Style by Strunk (1918), “If a parenthetic [or non-restrictive] expression is preceded by a conjunction,” the rule is “place the first comma before the conjunction, not after it.”
In New Handbook of Composition (1926) by Woolley (used as text by the pre-war Cebu Normal School): “Rule 223, (b) A non-restrictive phrase following its principal should be set off by the comma; a restrictive phrase following its principal should not be set off by the comma.”
I. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS THE SECOND OF A COMPOUND SUBJECT
But if the phrase does not act as a modifier or as an appositive, why is it there?
The clue comes from the coordinating conjunction “and” the phrase enclosed begins with and the first comma placed before it.
Grammatically defined, a “coordinating conjunction is a little word [in this case
“and”] whose sole function in a sentence is to tie together two elements that are completely equal in value and alike in function.”
In other words, “a coordinating conjunction is a link that joins two exactly similar elements into one, making a compound.”
Thus, the coordinating conjunction “and” in the subject of the Clause ties together “two exactly similar elements into one, making a compound” or, to be precise, a “compound subject.”
So, since it is not a modifier, nor an appositive, the author obviously intended the phrase to act as the second of a “compound” subject (joined together by the coordinating conjunction “and”), deliberately enclosing the phrase within a pair of commas in order to be identified as “non-restrictive,” so as not to be mistaken or confused later as a modifier or qualifier of the element preceding it, the First subject of the compound.
The compound subject of the Citizenship Clause joined together by the coordinating conjunction “and” consists of:
First: “All persons born or naturalized in the United States”;
Second, “subject to the jurisdiction thereof”
NOTES: It is pertinent to mention in passing that there is a distinct punctuation mark--comma-plus-plus-coordinating-conjunction-“and”--Robert Brittain defines in “Correct Punctuation” as “a single mark composed of two symbols, one of which we normally think of as a punctuation mark and the other as a word symbol” employed to “join two independent clauses into one compound sentence.” This structure, Brittain continues, “allows the same subject in the second sentence to be omitted and understood rather then stated.”
“Grammar English's Famous Rule of Punctuation: Never use only one comma between a subject and its verb.”
J. THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” IS AN ELLIPTICAL
But the Second subject of the compound--or the phrase “subject to the jurisdiction thereof”--does not carry a noun, not even a pronoun; thus, the “antecedent” the omission refers to needs to be determined.
As defined, “grammatical structures that omit words that they would usually include are called elliptical” and “the missing subject of the elliptical clause should always be the same as the explicit subject of the main clause.”
The definition continues: “Elliptical Clauses are grammatically incomplete … The missing parts of the elliptical clause can be guessed from the context and most readers are not aware that anything is missing. In fact, elliptical clauses are regarded as both useful and correct, even in formal prose, because they are often elegant, efficient means of expression.”
Guided by this definition of “elliptical,” it is evident that, being joined together by the coordinating conjunction “and” with a comma placed before the coordinator, the “antecedent” that the subject “missing” or omitted from the phrase refers to is no other than the same “explicit” subject of the First in the compound, which is the noun “persons,” modified by the adjective “all” or “all persons.”
Thus, the phrase “and subject to the jurisdiction thereof” is actually the “elliptical construction” for "and all persons subject to the jurisdiction of the United States," with the main subject "all persons" omitted to be understood rather than to be stated or repeated for brevity or style.
There is also another “elliptical” in the Clause.
This is the “elliptical” the author employed in the second of the compound object of the Clause--"citizens of the United States and [citizens] of the State wherein they reside"--with the second object "citizens" in the compound also omitted to be understood rather than to be stated or repeated for brevity or style.
NOTE: A “gapping comma” is meant “to show that one or more words have been left out when the missing words would simply repeat the words already used earlier in the same sentence,” and It “indicates that you have decided not to repeat some words which have already occurred in the sentence.”
K. U.S. SENATE DEBATE CONFIRMS THE PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” TO BE AN ELLIPTICAL FOR “ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
The one question remains: Was the phrase really intended to function as an “elliptical”?
The Draft of the Citizenship Clause Senator Jacob Merritt Howard authored on 30 May 1866 as "prefix" to Section 1 of House Joint Resolution No. 127 (internet accessible at Congressional Globe, 39th Congress, 1st Session, May 30, 1866, p. 2890, 2nd col.) reads:
"All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
His Draft "was agreed to" that same day. (Id. at 2897, 3rd col.)
Note that, as earlier discussed (Item F), the words “or naturalized” do not appear in Senator Howard’s Draft. It was only a week later, June 8th, that the words were inserted, sponsored by Joint Committee on Reconstruction Chairman Senator William Pitt Fessenden, and approved, without any debate, but "by general consent, after the word 'born.'" (Id. at 3040, 2nd col.)
What should be underscored at this point is that the 8-page Senate debate in the Congressional Globe was focused solely on Senator Howard’s original draft--without the inserted words, “or naturalized” yet.
Following Senator Howard's sponsorship speech, Senator James Doolittle immediately moved "to amend the amendment … by inserting after the word 'thereof' the words 'excluding Indians not taxed.'" (Id. at 2890, 3rd col.)
Senator Doolittle explains the reason behind his amendment, critical of the phrase “subject to the jurisdiction thereof” Senator Howard employed in his draft:
"I moved this amendment, because it seems to me very clear that there is a large mass of the Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States…For instance, there are seven to eight thousand Navajoes … in [the territory of] New Mexico." (Id. at 2892, 3rd col.)
Worth mentioning as well is the fact that the entire Senate debate on the Citizenship Clause was a discussion on Senator Doolittle’s proposal concerning the implications of the phrase “subject to the jurisdiction thereof” Senator Howard used in his draft.
Judiciary Committee Chairman Senator Lyman Trumbull responds to clarify:
"What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means ... It cannot be said of any Indian who owes allegiance, partial if you please, to some other government that he is 'subject to the jurisdiction of the United States.'" (Id. at 2893, 1st col.)
Senator Trumbull proceeds to describe where these persons "owing allegiance," or "subject to the jurisdiction thereof," are situated by delineating the territorial extent or applicability of the Clause:
"[T]he first section [Citizenship Clause] refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia." (Id. at 2894, 1st col.)
Senator Howard (the author) adds to qualify the word “jurisdiction”:
"[T]he word 'jurisdiction,' as here employed, ought to be construed so as to imply the full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States." (Id. at 2895, 2nd col.)
Unconvinced and still fearful of the consequences of "the very language" Senator Howard used—"subject to the jurisdiction of the United States" (as distinguished from just the words "subject to" used two months earlier in a similar provision in the 1866 Civil Rights Act quoted earlier here)—Senator Doolittle restates the question:
"My friend from Michigan will not contend that an Indian can be taxed if he is not subject to the State or to the United States; and yet if they are subject to the jurisdiction of the United States they are regarded by the very language of this amendment to be citizens … Why, sir, what does it mean when you say that a people are subject to the jurisdiction of the United States." (Id. at 2896, 1st col.)
When the vote was finally taken that day, Senator Doolittle's "amendment to the amendment was rejected" and Senator Howard's "amendment was agreed to." (Id. at 2897, 3rd col.)
Noteworthy during the debate is Senator Doolittle's long-overlooked reason for his apprehension concerning "the very language" Senator Howard employed in defining another category, the now-forgotten SECOND category, of citizens of the United States:
"But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language he uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does." (Id. at 2897, 1st col.)
What is interesting to underscore at this point is that the phrase “all persons subject to the jurisdiction of the United States” Senator Doolittle cited in the remarks above as “the language he [Senator Howard, the author] uses” appears in the scanned Congressional Globe page (at page 2897) printed in “QUOTATION MARKS.”
The printed “quotation marks” appearing in the Congressional Globe journal are significant, crucial. The words a Speaker directly quotes during a debate require a specific instruction to show precisely where the quotation marks are to begin and end.
So, during the debate, Senator Doolittle was obviously obligated to utter the words, “quote” or “to quote,” before citing the phrase, “all persons subject to the jurisdiction of the United States,” in order to warn the Senate stenographers that the line he was about to speak was a direct quotation, requiring it to be printed in the journal punctuated with “quotation marks” later. In fact, for that matter, he had to order at the end, the warning words “unquote” or “end of quote,” to signal to the stenographers that he had already finished citing the direct quotation.
What this reveals, no doubt, is that the phrase Senator Doolittle directly cited that appears in “quotation marks” in the Congressional Globe was precisely what he, along with the author, Senator Howard, and the 39th Congress for that matter understood it to mean at the time it was spoken, and that is, the complete construction for the “elliptical phrase” used in the Clause; otherwise, Senator Dollittle’s “quote” and “unquote” instructions to the stenographers to enclose the phrase during the debate would certainly have elicited a roomful of questions or, at the least, corrected and discussed.
But there is no discussion whatsoever, and Senator Doolittle’s direct quotation was accepted--evidenced by his colleague’s silence on the line he quoted--as the complete construction of the elliptical phrase Senator Howard used in his draft.
So here, lying dormant in suspended animation, unnoticed, on page 2897 (1st column), Congressional Globe, 39th Congress, 1st Session, May 30, 1866, Senator Doolittle cites the complete construction for the elliptical "language" of this SECOND category of citizens of the United States printed in “QUOTATION MARKS”--
"All persons subject to the jurisdiction of the United States."
Of course, this is in addition to similarly-worded statements Senator Doolittle delivered during the debate already quoted but repeated for emphasis below:
--Page 2893: “… there is a large mass of the Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States.”
--Page 2897: “… and yet if they are subject to the jurisdiction of the United States they are regarded by the very language of this amendment to be citizens.”
--Page 2897: “… what does it mean when you say that a people are subject to the jurisdiction of the United States …?”
For clarification and to avoid confusion, allow us to repeat what Senator Trumbull said at page 2893 cited earlier in reply to the foregoing remarks of Senator Doolittle, arguing that the phrase was inapplicable to Indians:
"What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means ... It cannot be said of any Indian who owes allegiance, partial if you please, to some other government that he is 'subject to the jurisdiction of the United States.'”
Actually, the U.S. government continued to treat the native American tribes or nations as “quasi-sovereign bodies,” and the territory reserved to the native Americans was and is regarded as “within the bounds of the Union.” All native Americans were granted U.S. citizenship in 1922. (See Alan Tauber, "The Empire Forgotten: The Application of the Bill of Rights to U.S. Territories," November 17, 2005, available at SSRN.)
In any case, it is evident that, as understood by the 39th Congress during the debate, the phrase enclosed between the commas, “and subject to the jurisdiction thereof,” is the elliptical for the complete construction, “all persons subject to the jurisdiction of the United States,” conferring a separate, still-unrecognized SECOND category of citizens of the United States.
Applying the clarifications advanced by Senators Trumbull (on “owing allegiance” and “in Territories and in the District of Columbia”) and Howard (on “coextensive in all respects with the constitutional power of the United States”) quoted earlier during the debate, the phrase may be regarded to mean:
“All persons owing allegiance in the Territories and in the District of Columbia over whom the constitutional power of the United States extends.”
This is, of course, consistent with the dictionary meanings of the words (Webster’s Revised Unabridged Dictionary, 1913-1828) at the time they were written:
01. Subject (to) – “Owing allegiance to a particular sovereign or state.” (Sense 2)
02. Jurisdiction – "Sphere of authority; the limits within which any particular power may be exercised. Jurisdiction is limited to place or territory, to persons, or to particular subjects.” (Sense 3)
L. THE ELLIPTICAL PHRASE “AND SUBJECT TO THE JURISDICTION THEREOF” DEFINES A STILL-UNRECOGNIZED CATEGORY OF CITIZENS OF THE UNITED STATES—“ALL PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
Having established that the Citizenship Clause consists of a compound subject with an elliptical second subject, it goes without saying that the Clause was intended to confer U.S. citizenship upon TWO categories of “citizens of the United States":
First Category: All persons born or naturalized in the United States
Second Category: All persons subject to the jurisdiction of the United States
The concern for these two categories, (1) "in the United States" and (2) "subject to the jurisdiction of the United States," is consistent with the THIRTEENTH AMENDMENT ratified a year earlier in 1865, insofar as "slavery" is concerned, which declares:
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
First category: Slavery shall not exist within the United States
Second category: Slavery shall shall not exist any place subject to their jurisdiction.
A detailed discussion of the Civil War Amendments is in Part III of this paper.
This conclusion we have reached, of course, contradicts the prevailing official and judicial view of the Clause in the United States which regards the phrase “and subject to the jurisdiction thereof” to be a “qualifying phrase” of the element preceding, “All persons born in the United States.”
We are not alone. Justice Harlan, dissenting in Elk v. Wilkins, 112 U.S. 94 (1884), also had occasion to contradict the official and judicial reading:
“Our brethren, it seems to us, construe the fourteenth amendment as if it read: 'All persons born subject to the jurisdiction of, or naturalized in, the United States, are citizens of the United States and of the state in which they reside … there is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.”
In fact, in line with Justice Harlan’s thinking, had Senator Howard really intended his original draft to convey the official and judicial view, he could have written his draft with far fewer words to simply read:
“All persons born subject to the jurisdiction of the United States …”
M. TERRITORIAL FILIPINOS ARE PERSONS “SUBJECT TO THE JURISDICTION OF THE UNITED STATES”
Several U.S. Supreme Court and Circuit Court decisions all agree that the U.S. Territory of the Philippine Islands (later Commonwealth of the Philippines in 1934) as well as Territorial Filipinos were--“subject to the jurisdiction of the United States,” to cite a few:
In Grafton v. U S, 206 U.S. 333 (1907). Mr. Justice Harlan delivered the opinion:
“The government of a state does not derive its powers from the United States, while the government of the Philippines owes its existence wholly to the United States, and its judicial tribunals exert all their powers by authority of the United States. The jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount.”
The U.S. Supreme Court in Barber v. Gonzalez, 347 U.S. 637 (1954) at Footnote (1), reiterating pronouncements in several previous Supreme Court decisions, said:
"From the Spanish cession in 1898 until final independence in 1946, the Philippine Islands were American territory subject to the jurisdiction of the United States. See Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945); persons born in the Philippines during this period were American nationals entitled to the protection of the United States and conversely owing permanent allegiance to the United States.’ See Gonzales v. Williams, 192 U.S. 1 (1904); Toyota v. U.S., 268 U.S. 402 (1925)."
And from the Executive, on 04 July 1946, U.S. President Harry S. Truman proclaimed that:
“The United States withdraws and surrenders all rights of possession, supervision, jurisdiction, control or sovereignty now existing and exercised by the United States of America in and over the territory and people of the Philippines …”
Thus, the phrase “subject to the jurisdiction of the United States” is of “paramount” importance to Territorial Filipinos; for, to summarize, in:
--Grafton (1907), “the jurisdiction … of the United States over the territory and its inhabitants, for all legitimate purposes of government, is paramount”;
--Barber (1954, citing Hooven & Allison Co. v. Evatt, 1945), “the Philippine Islands were American territory subject to the jurisdiction of the United States”;
--President Truman’s Proclamation (1946, text taken from 1934 Philippine Independence Act ): “the United States withdraws and surrenders all rights of … jurisdiction … now existing and exercised by the United States of America in and over the territory and people of the Philippines.”
Territorial Filipinos, therefore---whatever the political status they were conferred with, or the territory they were born in as arbitrarily designated, by the U.S. Congress--were unquestionably:
“Persons subject to the jurisdiction of the United States.”
N. UNDER THE CITIZENSHIP CLAUSE, TERRITORIAL FILIPINOS (THE ANTENATI AND THE POSTNATI) ARE CITIZENS OF THE UNITED STATES
Doubtless, the territory of the Philippine Islands and Territorial Filipinos were “subject to the jurisdiction of the United States”; if they were not, to what state were they “subject to the jurisdiction of” after Spain ceded them to America in 1898?
Now, since Territorial Filipinos were persons “subject to the jurisdiction of the United States,” there is only ONE conclusion as to their status during the American territorial period in the light of the correct grammatical reading of the Citizenship Clause, and that is--
Territorial Filipinos are citizens of the United States.
Territorial Filipinos belong to two distinct categories:
(1) The “Antenati “were born before 11 April 1899 and became citizens of the United States from and after the moment they became, on that date AFTER BIRTH, ”subject to the jurisdiction of the United States”; and
(2) The “Post Nati “were born after 11 April 1899 and before 04 July 1946, “subject to the jurisdiction of the United States,” and became citizens of the United States AT BIRTH or are “natural-born.”
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Part III discusses the historical context of the Citizenship Clause, particularly the "Abolition of Slavery in the Territories," and the irrelevance and unconstitutionality of the laws the U.S. Congress enacted regarding the status of Territorial Filipinos during the American territorial period.
Friday, July 28, 2006
PART ONE: TERRITORIAL FILIPINOS
AMERICAN NATIONALS AT BIRTH AMERICA DISOWNED
TERRITORIAL FILIPINOS are Filipinos born during the American Territorial period in the U.S. Territory of the Philippine Islands and, after 1934, in the Commonwealth of the Philippines, over which the United States exercised the rights of sovereignty and jurisdiction from 11 April 1899 to 04 July 1946.
Filipinos born during the American territorial period belong to a distinct class, having been born “subject to the jurisdiction of the United States” in territory over which the United States is sovereign and mandated by law to “owe allegiance to the United States"; hence, Territorial Filipinos were "American nationals" AT BIRTH by virtue of the jus soli doctrine the Citizenship Clause in the Fourteenth Amendment to the U.S. Constitution guarantees--“birth within the realm and within the allegiance.”
Territorial Filipinos through the years have been misled to believe by U.S. officials, abetted by Court decisions, that the change in sovereignty from the United States to the Republic of the Philippines in 1946 nullified or invalidated the status they acquired AT BIRTH, a status conferred by the defining circumstances attendant to their nativity.
The United States is quick to cite the stare decisis of the “Insular Cases” highlighted in the 5-4 plurality decision in Downes v. Bidwell, 182 U.S 244 (1901), and the myth of the “Doctrine of Territorial Incorporation” these cases enunciated that Justice Harlan, dissenting in Downes, bewailed:
“I am constrained to say that this idea of 'incorporation' has some occult meaning which my mind does not apprehend. It is enveloped in some mystery which I am unable to unravel.”
“Occult,” indeed; and so, “unconstitutional precedents create constitutionality.”
What is significant to underscore at the outset is the undeniable fact that Territorial Filipinos were born before 04 July 1946, the date the U.S. Territory of the Philippine Islands (or the Commonwealth of the Philippines by 1934) became the Republic of the Philippines, a state that was still non-existent at the time they were born.
Fact is a person can only be born ONCE. The circumstances of birth---place of birth, date of birth, parentage, and the sovereign at the place of nativity--are indelible, better still, “a Gift of the Creator.” No law or regulation can nullify circumstances nature has dictated and the Almighty has ordained to be so, unless the miracle of a person suddenly resurrecting to be born again occurs.
Justice and a sense of fair play thus demand that the United States should have afforded Territorial Filipinos the opportunity, at the very least, to expressly renounce or preserve voluntarily the American nationality they acquired AT BIRTH upon its withdrawal of sovereignty---otherwise, having been disowned by the sovereign at their place of nativity, they would all be (as they are now) rendered STATELESS AT BIRTH!
A. COLONIAL MENTALITY AND THE RIGHT TO U.S. CITIZENSHIP
This paper investigates the political status of Filipinos during the American Territorial period.
Filipinos are wont to dismiss efforts to link the fate of Filipinos to Americans as "colonial mentality"—the pejorative term defined as "a cultural notion of inferiority sometimes seen amongst populations previously subjugated and colonized by foreign entities."
Nothing in this paper resurrects "colonial mentality."
For it survives only in the mind of the submissive, the unquestioning, where the "mentality" of a "colonial" lurks, thrives—a "mentality" incessantly brainwashed to be intimidated, to be cowed by anything resembling "WHITE."
This paper is about a RIGHT DENIED, undertaken primarily to stimulate efforts and drum up support to vindicate a RIGHT America denied Filipinos born during the American Territorial period—their BIRTHRIGHT, that is, as NATURAL-BORN CITIZENS OF THE UNITED STATES.
The very survival of nationhood the Philippines is now confronted with is grim; it demands a RADICAL solution that Nationalists certainly would howl in protest.
But, in a way, the purpose is still Nationalistic, because it is a collective demand of a once subjugated non-white race, the FILIPINO PEOPLE, to a former colonizer and sovereign, AMERICA, to recognize a RIGHT withheld, a DENIAL spawned by dictates of prejudice, racism, intolerance, discrimination.
A RIGHT is a RIGHT by whatever name ascribed.
The efforts to be taken are certainly not about racial hierarchy—American superiority, Filipino inferiority; and this undertaking, definitely, is not to be mistaken as a veiled attempt to make the Philippines the 51st State of the Union.
Far from all these vestiges of "colonial mentality," this paper deals instead with the notion as fundamental as EQUALITY, particularly of EQUAL RIGHTS DENIED to a select category of Filipinos—TERRITORIAL FILIPINOS, or Filipinos born after the 1866 Treaty of Paris is signed and before the 1946 Philippine Independence is proclaimed.
Rather than pray in earnest for financial assistance, beg on bended knees for usurious loans to be condoned or even seek compensation for the inequity and injustice endured, this paper demands from AMERICA that the RIGHT DENIED to TWO generations of TERRITORIAL FILIPINOS, their RIGHT to the OPPORTUNITY, the PURSUIT OF HAPPINESS that all citizens of the United States are entitled to enjoy be recognized, upheld.
Grammatically reading the Citizenship Clause may well be the first step towards the realization of that endeavor—TO VINDICATE A RIGHT TO U.S. CITIZENSHIP AMERICA DENIED! Others will follow to add, refine and INSIST.
Irving Brant forcefully asserts this militant approach:
"Human rights are not to be denied because some judges went wrong a hundred years ago. Judicial disagreements produce dissenting opinions, and dissenting opinions publicize the disagreements. They also educate the public, which then helps to turn the remedial dissents into the law of the land.
"The most ancient errors are hardest to correct, partly because they become indurated by their antiquity."—The Bill of Rights: It's Origin and Meaning, p. 502 (1967).
B. TERRITORIAL FILIPINOS MANDATED BY LAW TO OWE ALLEGIANCE TO THE UNITED STATES ARE AMERICAN NATIONALS AT BIRTH NOT ALIENS OF FOREIGN BIRTH
By Article III of the 1898 Treaty of Paris (30 Stat. 1754), concluded 08 December 1898:
"Spain ceded to the United States the archipelago known as the Philippine Islands, and the United States agreed to pay Spain the sum of $20,000,000 within three months. The treaty was ratified; Congress appropriated the money; the ratification was proclaimed. The treaty-making power, the executive power, the legislative power concurred in the completion of the transaction. The Philippines thereby ceased, in the language of the treaty, 'to be Spanish.' Ceasing to be 'Spanish,' they ceased to be foreign country. They came under complete and absolute sovereignty and dominion of the United States, and so became territory of the United States … there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection." (Fourteen Diamond Rings, 183 U.S. 176, 1901)
In 1902, after a period of military rule in the Philippines, the United States Congress enacted the Philippine Government Act (32 Stat. 691), and--
“it was declared that all inhabitants continuing to reside therein who were Spanish subjects on April 11, 1899, and then resided in the Islands and their children born subsequent thereto, 'shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain,' according to the treaty. The citizens of the Philippine Islands are not aliens. See Gonzales v. Williams, 192 U.S. 1, 13 , 24 S. Ct. 177. They owe no allegiance to any foreign government. They were not eligible for naturalization under section 2169 because not aliens and so not within its terms …” (Toyota v. U. S., 268 U.S. 402, 1925)
The U.S. Supreme Court in Barber v. Gonzalez, 347 U.S. 637 (1954) opined that, as regards the respondent, Gonzalez, who “was born in the Philippine Islands in 1913 … It is conceded that respondent was born a national of the United States; that as such he owed permanent allegiance to the United States, including the obligation of military service.”
In support of its view, the Court at Footnote (1) reiterated the pronouncements in several previous decisions:
"From the Spanish cession in 1898 until final independence in 1946, the Philippine Islands were American territory subject to the jurisdiction of the United States." See Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945); "persons born in the Philippines during this period were American nationals entitled to the protection of the United States and conversely owing permanent allegiance to the United States." See Gonzales v. Williams, 192 U.S. 1 (1904); Toyota v. U.S., 268 U.S. 402 (1925)."
In the celebrated case of Decano v. State, 7 Wn.2d 613, 627, 110 P.2d 627 (1941), the Court cited the following decisions:
"Alien" is commonly understood and has been judicially defined to be a person who owes allegiance to a foreign government. Ex parte Fung Sing, 6 F. (2d) 670. The 1937 law, as we have pointed out, applies to native Filipinos, although it is well known that, since the Spanish-American War, they have owed allegiance only to the United States. Regardless of whatever uncertainty may have existed as to their precise status, whether quasi-citizens or American nationals, the United States supreme court, in effect, held, as early as 1904, in the case of Gonzales v. Williams, 192 U. S. 1, 48 L. Ed. 317, 24 S. Ct. 177, that they are not aliens.
“In that case, it was decided that citizens of Porto Rico (whose status, with reference to United States nationality, is substantially identical with that of citizens of the Philippine Islands) were not aliens within the meaning of the Federal immigration laws.
“In Toyota v. United States, 268 U. S. 402, supra, decided in 1925, the same court said: "The citizens of the Philippine Islands are not aliens. See Gonzales v. Williams, 192 U. S. 1, 13."
“In 1935, the United States circuit court of appeals for the ninth circuit squarely held, in De La Ysla v. United States, 77 F. (2d) 988, supra, that citizens of the Philippine Islands of the Filipino race are not aliens because, in the language of the opinion: "They owe no allegiance to any foreign government, but do owe allegiance to the United States.’
Other Court opinions have consistently declared that Territorial Filipinos, like the “citizens of Porto Rico, whose permanent allegiance is due to the United States; who live in the peace of the dominion of the United States; the organic law of whose domicile was enacted by the United States, and is enforced through officials sworn to support the Constitution of the United States, are not 'aliens,' and upon their arrival by water at the ports of our mainland are not 'alien immigrants,' within the intent and meaning of the act of 1891“ (Gonzalez v. Williams, 192 U.S. 1, 1904).
So, the Court’s view is clear: Territorial Filipinos are “not aliens,” they are “American nationals” and, upon arrival at a U.S. port of entry, they are to be regarded not as “alien immigrants”; and hence “not eligible for naturalization.”
C. THE STATUS OF TERRITORIAL FILIPINOS AS “NON-CITIZEN NATIONALS OF THE UNITED STATES” AT BIRTH WAS A “CONVENIENT CONSTRUCT” AND “A TERM OF ART” TO RECOGNIZE THEM AS “MEMBERS OF THE NATIONAL COMMUNITY” AND TO DISTINGUISH THEM FROM “ALIENS” OF FOREIGN BIRTH
Oddly enough, the term "national" does not appear in the U.S. Constitution as a definition of political status; rather, under it, one is either a "citizen" or, if not, an "alien."
As defined under the United States Code, specifically Title 8 (Aliens and Nationality), Chapter 12 (Immigration and Nationality), Subchapter I (General Provisions), Section 1101 (Definitions), (a):
“(3) The term ‘alien’ means any person not a citizen or national of the United States.
"(21) The term ‘national’ means "a person owing permanent allegiance to a state.
"(22) The term ‘national of the United States means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.
"(23) The term ‘naturalization’ means "the conferring of nationality of a state upon a person after birth, by any means whatsoever."
"(31) The term ‘permanent’ means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.”
Note that the term "permanent" as used in the U.S. Code above does not convey the same meaning the dictionary defines it to be, but a “term” coined to denote its ANTONYM, since the permanence of the “relationship of continuing or lasting nature” can still be “dissolved,” in the same way that the solemn vow “till death do us part” Americans pledge during marriage ceremonies can still be untied by simply filing for a “divorce,” if pleaded “in accordance with law.”
”The term ‘national’ referred to non-citizen inhabitants of territories that the United States had acquired outside of its continental limits who nevertheless owed permanent allegiance to the United States and who were entitled to the United States' protection.“ (See 4 Charles Gordon et al., Immigration Law and Procedure, Sec. 91.01[3][b], at 91-5, rev. ed. 1997.)
The status was a "convenient construct for those who favored territorial expansion but did not wish to make the people of the new territory citizens of the United States or otherwise suggest that they might aspire to equality under the American constitutional system." (José A. Cabranes, Citizenship and the American Empire: Notes on the Legislative History of the United States Citizenship of Puerto Ricans, 127 U. Pa. L. Rev. 391, 396-97 n.12 , 1978, cited in Valmonte v. INS, 1998 WL 54575, 2nc cir., 11 Feb 1998).
The term "National" was "originally intended to account for the inhabitants of certain territories--territories said to 'belong to the United States,' including the territories acquired from Spain during the Spanish-American War, namely the Philippines, Guam, and Puerto Rico--in the early twentieth century who were not granted U.S. citizenship, yet were deemed to owe 'permanent allegiance' to the United States and recognized as members of the national community in a way that distinguished them from aliens." (see Charles Gordon et al., Immigration law and procedure, cited in Marquez-Almanzar v. INS, 2003).
"The term 'non-citizen national' developed within a specific historical context and denotes a particular legal status. The phrase 'owes permanent allegiance '... is thus a term of art that denotes a legal status for which individuals have never been able to qualify by demonstrating permanent allegiance, as that phrase is colloquially understood." (Ibid.)
In short, the special status of "non-citizen national" conferred upon Territorial Filipinos was a "convenient construct,” a “term of art” applicable only to the people of the newly-ceded territories, recognizing them as “members of the national community”--but not citizens of the United States---to distinguish them from the only other status, “aliens.”
D. UNDER THE 1934 PHILIPPINE INDEPENDENCE ACT, TERRITORIAL FILIPINOS WHO ACQUIRED AMERICAN NATIONALITY AT BIRTH ARE MANDATED TO CONTINUE TO “OWE ALLEGIANCE TO THE UNITED STATES” BUT, UNBELIEVABLY, ARE ALSO TO “BE CONSIDERED AS IF THEY WERE ALIENS”
In 1934, thirty-five years after the United States acquired the Philippines from Spain, Congress adopted the Philippine Independence Act which provided for the adoption of a Philippine Constitution and the withdrawal of United States sovereignty ten years thereafter. (Philippine Independence Act, ch. 84, § 10(a), 48 Stat. 456, 463, 1934, codified as amended at 22 U.S.C. § 1394).
Section 8(a) of the Act states that:
"(1) For purposes of the Immigration Act of 1917 ... and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For such purposes, the Philippine Islands shall be considered as a separate country and shall have for each fiscal year a quota of fifty..."
Section 2 (1) of the same Act, oddly enough, commands that:
"All citizens of the Philippine Islands shall owe allegiance to the United States."
Thus, under the Act, “citizens of the Philippine Islands,” or Territorial Filipinos, continue to be obligated to “owe allegiance to the United States” and, therefore, remain to qualify as defined to be "nationals" of the United States.
However, there is the glaring anomaly under the same Act which provides that Territorial Filipinos “shall be considered as if they were aliens” and, therefore, subject to “laws of the United States relating to the immigration, exclusion, or expulsion of aliens.”
What is significant in the phraseology employed in Section 8(a)1 is that the words “as if” means “as would be the case if” or ”on the condition or supposition that.” Bartleby.com tells us that the past subjective “were” appears chiefly in “if” clauses … expressing hypothetical conditions” and is used “to describe an occurrence that you have presupposed to be contrary to fact.”
Accordingly, the phrase “as if they were aliens” as used in the Act is obviously intended to convey the sense that “they”--referring to Territorial Filipinos--are NOT, in reality, “aliens.” Designating them under the Act as “aliens” is, therefore, “contrary to fact.” And the fact is that a person who is not an “alien” must be a “national.”
Similarly, the clause “the Philippine Islands shall be considered as a separate country” is merely a supposition “contrary to fact,” since the Philippine Islands at the time the Act was passed in 1934 (until 1946 for that matter) was actually still a U.S. territory “subject to the jurisdiction of the United States.”
The term "naturalization," to repeat for emphasis, means "the conferring of nationality of a state upon a person after birth, by any means whatsoever"; and the term "alien" means "any person not a citizen or national of the United States."
So, by definition alone, Territorial Filipinos--who are “American nationals” AT BIRTH for the simple reason that they “owe allegiance to the United States”--can never be classified by any stretch of linguistic imagination as “aliens,” nor as “alien immigrants,” subject to “the immigration laws of the United States.”
Thus, the Act intentionally creates a confusing, oxymoron status—Aliens owing allegiance to the United States, or American nationals (at birth) eligible to be naturalized (after birth).
For while Territorial Filipinos are commanded in Sec. 2(1) of the Act to "owe allegiance to the United States," and thus qualify as American "nationals" AT BIRTH; yet, in Section 8(a)(1) of the very same Act, Territorial Filipinos are to "be considered as if they were aliens" since “the Philippine Islands shall be considered as a separate county,” justifying, as a consequence, the declaration that "the immigration laws of the United States shall apply to persons born in the Philippine Islands," including “naturalization.”
E. DESIGNATING TERRITORIAL FILIPINOS AS ALIENS IN THE PHILIPPINE INDEPENDENCE ACT WAS INTENDED TO ANNUL AND INVALIDATE COURT DECISIONS RECOGNIZING THEIR STATUS AS AMERICAN NATIONALS AT BIRTH
Under the Philippine Independence Act, Territorial Filipinos, mandated to continue to “owe allegiance to the United States,” are the ONLY class of persons who can qualify to be designated the status of BOTH a "national" and an "alien" at the same time!
The underlying intention of those who schemed to downgrade the status of Territorial Filipinos from “American nationals” AT BIRTH to the contradiction of “as if they were aliens” was to forbid or deny the “entry” into the United States of Territorial Filipinos.
So, by the Act, Americans were able to enjoy literally the best of BOTH worlds—The “ALLEGIANCE” of “ALIENS” together with “POWER WITHOUT RESPONSIBILITY.” But the clincher to all this inanity is yet to unfold at Section 16 of the Act, declaring that:
"Upon the final and complete withdrawal of American sovereignty in the Philippine Islands the immigration laws of the United States (including all the provisions thereof relating to persons ineligible to citizenship) shall apply to persons who were born in the Philippine Islands to the same extent as in the case of other foreign countries."
In other words, “persons who were born in the Philippine Islands,” or Territorial Filipinos,” become subject to “the immigration laws of the United States,” including “all the provisions thereof relating to persons ineligible to citizenship.”
It is obvious that, together with Section 8(a)(1) earlier discussed, this provision was intended to nullify and invalidate altogether at one fell swoop Court decisions that recognized Territorial Filipinos to be “American nationals” AT BIRTH and not as “aliens.”
This cleverly-worded provision in Section 16 legalizes the status of Territorial Filipinos as “aliens” not by expressly designating them to be what the U.S. Court decisions have repeatedly declared that they are NOT, but by subtly inserting the “killer” clause that “PERSONS WHO WERE BORN IN THE PHILIPPINE ISLANDS” were persons born “to the same extent as in the case of other foreign countries,” and hence subject to “the immigration laws of the United States.”
So, to legitimize relegating Territorial Filipinos to the status of “Aliens,” the U.S. Congress simply employed the past tense “were born” and declared the Philippine Islands, the PLACE where they “were born,” to be “to the same extent as in the case of other foreign countries,” even though the Philippine Islands was unarguably not a “foreign” country at the time Territorial Filipinos, and to use the language of the Act, “were born.”
Section 16 amounts to this: Territorial Filipinos “were born” in a “foreign” country; hence, “aliens” subject to U.S. laws on immigration.
But the incongruity is inescapable: The territory of the Philippine Islands became the Republic of the Philippines only on 04 July 1946---AFTER ALL Territorial Filipinos “were born” already; and this means that ALL of them “were born” during the period that the Philippine Islands was still undeniably a U.S. territory.
Besides, how can the Philippine Islands be considered as being “to the same extent as in the case of other foreign countries” when the very same Section 16 also speaks of the “withdrawal of American sovereignty in the Philippine Islands”?
The Philippine Islands (from the U.S. viewpoint) became a “foreign” country only AFTER “the withdrawal of American sovereignty” on 04 July 1946. Thus, only Filipinos born AFTER that cut-off date--or the “postnati” (as understood in Calvin’s Case)--should have been the persons placed subject to “the immigration laws of the United States,” not the “antenati,” or Territorial Filipinos, already born “American nationals” BEFORE that deciding cut-off date.
So, if the Philippine Islands was to be regarded “to the same extent as in the case of other foreign countries,” what “American sovereignty in the Philippine Islands” was there to “withdraw” if, indeed, the Philippine Islands was really a “foreign” country?
Can the claim of “American sovereignty” legally exist or be exercised in a territory the Americans themselves by a provision of law designate to be a “foreign” country?
Americans may have disowned Territorial Filipinos under the Philippine Independence Act; but the "Philippine Islands" still appears listed (as of 2006) in the United States Code under Title 48 (Territories and Insular Possessions), Chapter 5 (Sections 1001 - 1276e, now "omitted" or "transferred") with the following Chapter Notes:
"Philippine Independence - Independence of the Philippine Islands recognized and American sovereignty withdrawn by Proc. No. 2695, eff. July 4, 1946, 11 F.R. 7517, 60 Stat. 1352, issued pursuant to section 1394 of Title 22, Foreign Relations and Intercourse, under that section."
The above note alone stating that “American sovereignty withdrawn by Proc. No. 2695, eff. July 4, 1946” can only mean one thing: America exercised the rights of sovereignty in and over the territory of the Philippine Islands BEFORE “Proc. No. 2695” was issued. And during the time the United States was sovereign (from 1898 to 1946), the Philippine Islands was undeniably NOT a “foreign” country as declared in the Philippine Independence Act, but a territory or insular possession of the United States.
To appreciate fully the extent and consistency of Court decisions recognizing Territorial Filipinos as “American nationals” that the provisions in the Act INVALIDATED on the basis of a “supposition,” read the following litany of citations already quoted earlier:
--“[The Philippine Islands] ceased to be foreign country. They came under complete and absolute sovereignty and dominion of the United States, and so became territory of the United States”
--“The citizens of the Philippine Islands are not aliens … They owe no allegiance to any foreign government. They were not eligible for naturalization under section 2169 because not aliens and so not within its terms”
--"The Philippine Islands were American territory subject to the jurisdiction of the United States"
--"Persons born in the Philippines during [the American territorial] period were American nationals entitled to the protection of the United States and conversely owing permanent allegiance to the United States"
--“Regardless of whatever uncertainty may have existed as to their precise status, whether quasi-citizens or American nationals, the United States supreme court, in effect, held, as early as 1904 … that [Territorial Filipinos] are not aliens.”
--“Citizens of the Philippine Islands were not aliens within the meaning of the Federal immigration laws”
--"The citizens of the Philippine Islands are not aliens”
-- “Citizens of the Philippine Islands of the Filipino race are not aliens because, in the language of the opinion: ‘They owe no allegiance to any foreign government, but do owe allegiance to the United States’
--“[Territorial Filipinos, like the] citizens of Porto Rico, whose permanent allegiance is due to the United States … are not 'aliens,' and upon their arrival by water at the ports of our mainland are not 'alien immigrants’“
--The term "National" was "originally intended to account for the inhabitants of … the Philippines, Guam, and Puerto Rico … who were not granted U.S. citizenship, yet were deemed to owe 'permanent allegiance' to the United States and recognized as members of the national community in a way that distinguished them from aliens"
Yet, owing to provisions in the Philippine Independence Act, an “American national” AT BIRTH, or a Territorial Filipino, is barred from “entry” into the United States without a U.S. Visa and become subject to arrest and deportation if “overstaying.”
The grim irony of this humiliation is that Territorial Filipinos, proudly bearing the Stars and Stripes, validated their ALLEGIANCE to the United States in gory battlefields of WWII, defending American territory from the onslaught of Japanese invaders, tantamount to barring "aliens" from the land of the rising sun to "enter" the U.S. territory of the Philippine Islands--without a U.S. visa.
F. TERRITORIAL FILIPINOS ARE STATELESS AT BIRTH AND SLAVE-BORN
Actually, at that time in 1934, there would not have been any need for inserting the “supposition” in the cited provisions of the Philippine Independence Act at all; the U.S. Congress could have simply proclaimed that it possesses the power to declare the “political status” of Territorial Filipinos as “aliens;” even if they were born in territory over which the United States is sovereign.
Possession of that awesome power to designate the “political status” of inhabitants in ceded territories is basically what America was claiming under the “Doctrine of Incorporation” at the beginning of its regime in the Philippine Islands, a claim the Courts reluctantly recognized and upheld in the “Insular Cases.”
Territorial Filipinos now challenge that claim.
But why have Territorial Filipinos allowed this injustice, this glaring denial of the privileges and immunities of "American nationals” AT BIRTH, to fester unresolved for so long now?
Territorial Filipinos certainly respect, and prefer not to question, the "wisdom" of an Act of the U.S. Congress, as upheld by the Courts, that renders concededly "American Nationals" AT BIRTH unduly subject to the "immigration laws of the United States."
Territorial Filipinos have long accepted the reality that America can very well continue the discrimination and the injustice they have openly inflicted upon two generations of Territorial Filipinos born from 1899 to 1946, and continue to disown their status and ignore their existence.
Rather, what Territorial Filipinos are now seeking from America is the RECOGNITION of their status AT BIRTH, having been born "in territory over which the United States is sovereign," mindful that, unless Congress clothes itself with the robe of the omnipotent "Creator," Territorial Filipinos cannot be commanded to be BORN AGAIN!
They cry for clarification, since the one festering question lingers: To what state were TWO generations of "Territorial Filipinos" born in during the American Territorial Period from 1899 to 1946 in the light of the fact that America, the sovereign at their place of birth, formally declared the U.S. territory of the Philippine Islands as a separate and independent state--the Republic of the Philippines--only on 04 July 1946?
It is, therefore, safe to conclude that the provisions of the Philippine Independence Act, discussed and cited, intentionally rendered Territorial Filipinos STATELESS AT BIRTH.
The Act may also be regarded as having viewed Territorial Filipinos, NOT as PERSONS, not even as “colonial subjects,” but simply as “OTHER PROPERTY” (as in Dred Scott), incident to, or part and parcel of, the purchase and cession of a “TERRITORY.”
For under the Act, the U.S. Congress relegated Territorial Filipinos to a class comparable to a “human chattel,” or to persons who, having been purchased (in this instance for $20 million), are “the legal property of another or others and [are] bound to absolute obedience” (synonymous with “permanent allegiance”), which, mind you, is the dictionary meaning of the term eerily familiar in U.S. history, law, constitution, custom, and tradition, and that is, a “SLAVE” in the sense of INVOLUNTARY “absolute obedience” or legally mandated “permanent allegiance,” as distinguished from the equally obnoxious term “SLAVERY,” generally defined as “INVOLUNTARY servitude.”
So, having been born unwanted, disowned, abandoned and neglected by the sovereign at their place of nativity, these questions remain to haunt:
Were Territorial Filipinos BORN STATELESS (unrecognized by their STATE OF BIRTH)? Were Territorial Filipinos SLAVE-BORN (bound AT BIRTH to INVOLUNTARY permanent ALLEGIANCE and absolute OBEDIENCE to their STATE OF BIRTH)?
Not content with having coined the absurd status of “non-citizen national of the United States” to designate Territorial Filipinos relying on the "myth" of the "unincorporated territory" doctrine, Congress under the Philippine Independence Act finally relegated them to the status of an “alien,” having been born supposedly in a “foreign” country.
Yet, Court decisions have always conceded that, the territory of the Philippine Islands was “subject to the jurisdiction of the United States,” over which the United States was sovereign and that Territorial Filipinos were “American nationals” mandated to ”owe allegiance to the United States.”
Why, then, were Territorial Filipinos--having acquired their U.S. nationality AT BIRTH and, in the words of the U.S. Supreme Court, "entitled to the protection of the United States"--made subject to U.S. immigration laws on the mere supposition (contrary to fact) as worded in the Act that they were “aliens”?
The reason why?
Racism, Discrimination and Birthplace Prejudice aborting Birthright Citizenship!
In this regard, the U.S. Congress should be ashamed each time a Territorial Filipino is arrested, humiliated, handcuffed, detained and DEPORTED--or, in short, TERRORIZED--for violating U.S. immigration laws, on the basis of a provision that is undeniably a “supposition” embedded in the Philippine Independence Act.
This is the grand “supposition” earlier discussed, arbitrarily designating “American nationals” AT BIRTH--Territorial Filipinos--as “aliens” and the U.S. territory of their nativity--the Philippine Islands--as a “foreign” country, designations Congress merely “presupposed contrary to fact,” but to be applied nonetheless with the full force of the law even though inapplicable to them sans that “supposition.”
The U.S. Congress understandably remains adamant and unperturbed, pointing to the myth of “unincorporated territory,” the “Territorial Clause,” the 1898 Treaty of Paris, and the official and judicial reading of the Citizenship Clause to legitimize the glaring RACISM, DISCRIMINATION AND BIRTHPLACE PREJUDICE of their acts.
Anyway, to the U.S. Congress, a few more years (it’s now 2006), and Territorial Filipinos will have been all gone to meet their Creator, the Almighty above and beyond, who gifted them with the precious circumstances of their birth--indelible, invulnerable.
To put it bluntly, the U.S. Congress clearly abhorred the idea of assimilating Territorial Filipinos; it was interested only in the territory but not its inhabitants. This view is best expressed in the remarks of Senator G.G. West--typical of those who voted against the ratification of the Treaty of Paris (see Objections to Annexing the Philippines, The North American Review, Vol. CLXVIII, No. 506, 1898):
“I vote against annexing the Philippines because such annexation makes the people of those islands ultimately citizens of the United States, and necessitates the admission of the territory thus acquired a State.
“The idea of conferring citizenship upon the half-civilized, piratical, muck-running inhabitants of two thousand islands, seven thousand miles distant, in another hemisphere and creating a state of the Union from such materials, is so absurd and indefensible that the expansionists are driven by the necessity of advocating the colonial system of Europe …
“… whatever may be the status as to citizenship of the older inhabitants, their children born after annexation are citizens and voters … It being certain from [the Fourteenth and Fifteenth Amendments] that the children of the Filipinos will be citizens and voters, in case of annexation, it follows that they must be educated and civilized in order to fit them for the duties imposed by our jurisdiction over the country.”
“Let the flag of our Republic not be ‘hauled down,’ but brought back to congenial soil where it will wave over freemen, instead of floating over conquered islands in another hemisphere and ten million half-barbarians bought for two Dollars each.”
But the U.S. Congress still has to contend with BIRTHRIGHT CITIZENSHIP under the jus soli doctrine the Citizenship Clause--GRAMMATICALLY READ as intended by Senator Jacob Howard, its author--guarantees, a CONSTITUTIONAL RIGHT beyond the reach of the Legislative Power, of the U.S. Congress.
TERRITORIAL FILIPINOS are Filipinos born during the American Territorial period in the U.S. Territory of the Philippine Islands and, after 1934, in the Commonwealth of the Philippines, over which the United States exercised the rights of sovereignty and jurisdiction from 11 April 1899 to 04 July 1946.
Filipinos born during the American territorial period belong to a distinct class, having been born “subject to the jurisdiction of the United States” in territory over which the United States is sovereign and mandated by law to “owe allegiance to the United States"; hence, Territorial Filipinos were "American nationals" AT BIRTH by virtue of the jus soli doctrine the Citizenship Clause in the Fourteenth Amendment to the U.S. Constitution guarantees--“birth within the realm and within the allegiance.”
Territorial Filipinos through the years have been misled to believe by U.S. officials, abetted by Court decisions, that the change in sovereignty from the United States to the Republic of the Philippines in 1946 nullified or invalidated the status they acquired AT BIRTH, a status conferred by the defining circumstances attendant to their nativity.
The United States is quick to cite the stare decisis of the “Insular Cases” highlighted in the 5-4 plurality decision in Downes v. Bidwell, 182 U.S 244 (1901), and the myth of the “Doctrine of Territorial Incorporation” these cases enunciated that Justice Harlan, dissenting in Downes, bewailed:
“I am constrained to say that this idea of 'incorporation' has some occult meaning which my mind does not apprehend. It is enveloped in some mystery which I am unable to unravel.”
“Occult,” indeed; and so, “unconstitutional precedents create constitutionality.”
What is significant to underscore at the outset is the undeniable fact that Territorial Filipinos were born before 04 July 1946, the date the U.S. Territory of the Philippine Islands (or the Commonwealth of the Philippines by 1934) became the Republic of the Philippines, a state that was still non-existent at the time they were born.
Fact is a person can only be born ONCE. The circumstances of birth---place of birth, date of birth, parentage, and the sovereign at the place of nativity--are indelible, better still, “a Gift of the Creator.” No law or regulation can nullify circumstances nature has dictated and the Almighty has ordained to be so, unless the miracle of a person suddenly resurrecting to be born again occurs.
Justice and a sense of fair play thus demand that the United States should have afforded Territorial Filipinos the opportunity, at the very least, to expressly renounce or preserve voluntarily the American nationality they acquired AT BIRTH upon its withdrawal of sovereignty---otherwise, having been disowned by the sovereign at their place of nativity, they would all be (as they are now) rendered STATELESS AT BIRTH!
A. COLONIAL MENTALITY AND THE RIGHT TO U.S. CITIZENSHIP
This paper investigates the political status of Filipinos during the American Territorial period.
Filipinos are wont to dismiss efforts to link the fate of Filipinos to Americans as "colonial mentality"—the pejorative term defined as "a cultural notion of inferiority sometimes seen amongst populations previously subjugated and colonized by foreign entities."
Nothing in this paper resurrects "colonial mentality."
For it survives only in the mind of the submissive, the unquestioning, where the "mentality" of a "colonial" lurks, thrives—a "mentality" incessantly brainwashed to be intimidated, to be cowed by anything resembling "WHITE."
This paper is about a RIGHT DENIED, undertaken primarily to stimulate efforts and drum up support to vindicate a RIGHT America denied Filipinos born during the American Territorial period—their BIRTHRIGHT, that is, as NATURAL-BORN CITIZENS OF THE UNITED STATES.
The very survival of nationhood the Philippines is now confronted with is grim; it demands a RADICAL solution that Nationalists certainly would howl in protest.
But, in a way, the purpose is still Nationalistic, because it is a collective demand of a once subjugated non-white race, the FILIPINO PEOPLE, to a former colonizer and sovereign, AMERICA, to recognize a RIGHT withheld, a DENIAL spawned by dictates of prejudice, racism, intolerance, discrimination.
A RIGHT is a RIGHT by whatever name ascribed.
The efforts to be taken are certainly not about racial hierarchy—American superiority, Filipino inferiority; and this undertaking, definitely, is not to be mistaken as a veiled attempt to make the Philippines the 51st State of the Union.
Far from all these vestiges of "colonial mentality," this paper deals instead with the notion as fundamental as EQUALITY, particularly of EQUAL RIGHTS DENIED to a select category of Filipinos—TERRITORIAL FILIPINOS, or Filipinos born after the 1866 Treaty of Paris is signed and before the 1946 Philippine Independence is proclaimed.
Rather than pray in earnest for financial assistance, beg on bended knees for usurious loans to be condoned or even seek compensation for the inequity and injustice endured, this paper demands from AMERICA that the RIGHT DENIED to TWO generations of TERRITORIAL FILIPINOS, their RIGHT to the OPPORTUNITY, the PURSUIT OF HAPPINESS that all citizens of the United States are entitled to enjoy be recognized, upheld.
Grammatically reading the Citizenship Clause may well be the first step towards the realization of that endeavor—TO VINDICATE A RIGHT TO U.S. CITIZENSHIP AMERICA DENIED! Others will follow to add, refine and INSIST.
Irving Brant forcefully asserts this militant approach:
"Human rights are not to be denied because some judges went wrong a hundred years ago. Judicial disagreements produce dissenting opinions, and dissenting opinions publicize the disagreements. They also educate the public, which then helps to turn the remedial dissents into the law of the land.
"The most ancient errors are hardest to correct, partly because they become indurated by their antiquity."—The Bill of Rights: It's Origin and Meaning, p. 502 (1967).
B. TERRITORIAL FILIPINOS MANDATED BY LAW TO OWE ALLEGIANCE TO THE UNITED STATES ARE AMERICAN NATIONALS AT BIRTH NOT ALIENS OF FOREIGN BIRTH
By Article III of the 1898 Treaty of Paris (30 Stat. 1754), concluded 08 December 1898:
"Spain ceded to the United States the archipelago known as the Philippine Islands, and the United States agreed to pay Spain the sum of $20,000,000 within three months. The treaty was ratified; Congress appropriated the money; the ratification was proclaimed. The treaty-making power, the executive power, the legislative power concurred in the completion of the transaction. The Philippines thereby ceased, in the language of the treaty, 'to be Spanish.' Ceasing to be 'Spanish,' they ceased to be foreign country. They came under complete and absolute sovereignty and dominion of the United States, and so became territory of the United States … there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection." (Fourteen Diamond Rings, 183 U.S. 176, 1901)
In 1902, after a period of military rule in the Philippines, the United States Congress enacted the Philippine Government Act (32 Stat. 691), and--
“it was declared that all inhabitants continuing to reside therein who were Spanish subjects on April 11, 1899, and then resided in the Islands and their children born subsequent thereto, 'shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain,' according to the treaty. The citizens of the Philippine Islands are not aliens. See Gonzales v. Williams, 192 U.S. 1, 13 , 24 S. Ct. 177. They owe no allegiance to any foreign government. They were not eligible for naturalization under section 2169 because not aliens and so not within its terms …” (Toyota v. U. S., 268 U.S. 402, 1925)
The U.S. Supreme Court in Barber v. Gonzalez, 347 U.S. 637 (1954) opined that, as regards the respondent, Gonzalez, who “was born in the Philippine Islands in 1913 … It is conceded that respondent was born a national of the United States; that as such he owed permanent allegiance to the United States, including the obligation of military service.”
In support of its view, the Court at Footnote (1) reiterated the pronouncements in several previous decisions:
"From the Spanish cession in 1898 until final independence in 1946, the Philippine Islands were American territory subject to the jurisdiction of the United States." See Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945); "persons born in the Philippines during this period were American nationals entitled to the protection of the United States and conversely owing permanent allegiance to the United States." See Gonzales v. Williams, 192 U.S. 1 (1904); Toyota v. U.S., 268 U.S. 402 (1925)."
In the celebrated case of Decano v. State, 7 Wn.2d 613, 627, 110 P.2d 627 (1941), the Court cited the following decisions:
"Alien" is commonly understood and has been judicially defined to be a person who owes allegiance to a foreign government. Ex parte Fung Sing, 6 F. (2d) 670. The 1937 law, as we have pointed out, applies to native Filipinos, although it is well known that, since the Spanish-American War, they have owed allegiance only to the United States. Regardless of whatever uncertainty may have existed as to their precise status, whether quasi-citizens or American nationals, the United States supreme court, in effect, held, as early as 1904, in the case of Gonzales v. Williams, 192 U. S. 1, 48 L. Ed. 317, 24 S. Ct. 177, that they are not aliens.
“In that case, it was decided that citizens of Porto Rico (whose status, with reference to United States nationality, is substantially identical with that of citizens of the Philippine Islands) were not aliens within the meaning of the Federal immigration laws.
“In Toyota v. United States, 268 U. S. 402, supra, decided in 1925, the same court said: "The citizens of the Philippine Islands are not aliens. See Gonzales v. Williams, 192 U. S. 1, 13."
“In 1935, the United States circuit court of appeals for the ninth circuit squarely held, in De La Ysla v. United States, 77 F. (2d) 988, supra, that citizens of the Philippine Islands of the Filipino race are not aliens because, in the language of the opinion: "They owe no allegiance to any foreign government, but do owe allegiance to the United States.’
Other Court opinions have consistently declared that Territorial Filipinos, like the “citizens of Porto Rico, whose permanent allegiance is due to the United States; who live in the peace of the dominion of the United States; the organic law of whose domicile was enacted by the United States, and is enforced through officials sworn to support the Constitution of the United States, are not 'aliens,' and upon their arrival by water at the ports of our mainland are not 'alien immigrants,' within the intent and meaning of the act of 1891“ (Gonzalez v. Williams, 192 U.S. 1, 1904).
So, the Court’s view is clear: Territorial Filipinos are “not aliens,” they are “American nationals” and, upon arrival at a U.S. port of entry, they are to be regarded not as “alien immigrants”; and hence “not eligible for naturalization.”
C. THE STATUS OF TERRITORIAL FILIPINOS AS “NON-CITIZEN NATIONALS OF THE UNITED STATES” AT BIRTH WAS A “CONVENIENT CONSTRUCT” AND “A TERM OF ART” TO RECOGNIZE THEM AS “MEMBERS OF THE NATIONAL COMMUNITY” AND TO DISTINGUISH THEM FROM “ALIENS” OF FOREIGN BIRTH
Oddly enough, the term "national" does not appear in the U.S. Constitution as a definition of political status; rather, under it, one is either a "citizen" or, if not, an "alien."
As defined under the United States Code, specifically Title 8 (Aliens and Nationality), Chapter 12 (Immigration and Nationality), Subchapter I (General Provisions), Section 1101 (Definitions), (a):
“(3) The term ‘alien’ means any person not a citizen or national of the United States.
"(21) The term ‘national’ means "a person owing permanent allegiance to a state.
"(22) The term ‘national of the United States means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.
"(23) The term ‘naturalization’ means "the conferring of nationality of a state upon a person after birth, by any means whatsoever."
"(31) The term ‘permanent’ means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.”
Note that the term "permanent" as used in the U.S. Code above does not convey the same meaning the dictionary defines it to be, but a “term” coined to denote its ANTONYM, since the permanence of the “relationship of continuing or lasting nature” can still be “dissolved,” in the same way that the solemn vow “till death do us part” Americans pledge during marriage ceremonies can still be untied by simply filing for a “divorce,” if pleaded “in accordance with law.”
”The term ‘national’ referred to non-citizen inhabitants of territories that the United States had acquired outside of its continental limits who nevertheless owed permanent allegiance to the United States and who were entitled to the United States' protection.“ (See 4 Charles Gordon et al., Immigration Law and Procedure, Sec. 91.01[3][b], at 91-5, rev. ed. 1997.)
The status was a "convenient construct for those who favored territorial expansion but did not wish to make the people of the new territory citizens of the United States or otherwise suggest that they might aspire to equality under the American constitutional system." (José A. Cabranes, Citizenship and the American Empire: Notes on the Legislative History of the United States Citizenship of Puerto Ricans, 127 U. Pa. L. Rev. 391, 396-97 n.12 , 1978, cited in Valmonte v. INS, 1998 WL 54575, 2nc cir., 11 Feb 1998).
The term "National" was "originally intended to account for the inhabitants of certain territories--territories said to 'belong to the United States,' including the territories acquired from Spain during the Spanish-American War, namely the Philippines, Guam, and Puerto Rico--in the early twentieth century who were not granted U.S. citizenship, yet were deemed to owe 'permanent allegiance' to the United States and recognized as members of the national community in a way that distinguished them from aliens." (see Charles Gordon et al., Immigration law and procedure, cited in Marquez-Almanzar v. INS, 2003).
"The term 'non-citizen national' developed within a specific historical context and denotes a particular legal status. The phrase 'owes permanent allegiance '... is thus a term of art that denotes a legal status for which individuals have never been able to qualify by demonstrating permanent allegiance, as that phrase is colloquially understood." (Ibid.)
In short, the special status of "non-citizen national" conferred upon Territorial Filipinos was a "convenient construct,” a “term of art” applicable only to the people of the newly-ceded territories, recognizing them as “members of the national community”--but not citizens of the United States---to distinguish them from the only other status, “aliens.”
D. UNDER THE 1934 PHILIPPINE INDEPENDENCE ACT, TERRITORIAL FILIPINOS WHO ACQUIRED AMERICAN NATIONALITY AT BIRTH ARE MANDATED TO CONTINUE TO “OWE ALLEGIANCE TO THE UNITED STATES” BUT, UNBELIEVABLY, ARE ALSO TO “BE CONSIDERED AS IF THEY WERE ALIENS”
In 1934, thirty-five years after the United States acquired the Philippines from Spain, Congress adopted the Philippine Independence Act which provided for the adoption of a Philippine Constitution and the withdrawal of United States sovereignty ten years thereafter. (Philippine Independence Act, ch. 84, § 10(a), 48 Stat. 456, 463, 1934, codified as amended at 22 U.S.C. § 1394).
Section 8(a) of the Act states that:
"(1) For purposes of the Immigration Act of 1917 ... and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For such purposes, the Philippine Islands shall be considered as a separate country and shall have for each fiscal year a quota of fifty..."
Section 2 (1) of the same Act, oddly enough, commands that:
"All citizens of the Philippine Islands shall owe allegiance to the United States."
Thus, under the Act, “citizens of the Philippine Islands,” or Territorial Filipinos, continue to be obligated to “owe allegiance to the United States” and, therefore, remain to qualify as defined to be "nationals" of the United States.
However, there is the glaring anomaly under the same Act which provides that Territorial Filipinos “shall be considered as if they were aliens” and, therefore, subject to “laws of the United States relating to the immigration, exclusion, or expulsion of aliens.”
What is significant in the phraseology employed in Section 8(a)1 is that the words “as if” means “as would be the case if” or ”on the condition or supposition that.” Bartleby.com tells us that the past subjective “were” appears chiefly in “if” clauses … expressing hypothetical conditions” and is used “to describe an occurrence that you have presupposed to be contrary to fact.”
Accordingly, the phrase “as if they were aliens” as used in the Act is obviously intended to convey the sense that “they”--referring to Territorial Filipinos--are NOT, in reality, “aliens.” Designating them under the Act as “aliens” is, therefore, “contrary to fact.” And the fact is that a person who is not an “alien” must be a “national.”
Similarly, the clause “the Philippine Islands shall be considered as a separate country” is merely a supposition “contrary to fact,” since the Philippine Islands at the time the Act was passed in 1934 (until 1946 for that matter) was actually still a U.S. territory “subject to the jurisdiction of the United States.”
The term "naturalization," to repeat for emphasis, means "the conferring of nationality of a state upon a person after birth, by any means whatsoever"; and the term "alien" means "any person not a citizen or national of the United States."
So, by definition alone, Territorial Filipinos--who are “American nationals” AT BIRTH for the simple reason that they “owe allegiance to the United States”--can never be classified by any stretch of linguistic imagination as “aliens,” nor as “alien immigrants,” subject to “the immigration laws of the United States.”
Thus, the Act intentionally creates a confusing, oxymoron status—Aliens owing allegiance to the United States, or American nationals (at birth) eligible to be naturalized (after birth).
For while Territorial Filipinos are commanded in Sec. 2(1) of the Act to "owe allegiance to the United States," and thus qualify as American "nationals" AT BIRTH; yet, in Section 8(a)(1) of the very same Act, Territorial Filipinos are to "be considered as if they were aliens" since “the Philippine Islands shall be considered as a separate county,” justifying, as a consequence, the declaration that "the immigration laws of the United States shall apply to persons born in the Philippine Islands," including “naturalization.”
E. DESIGNATING TERRITORIAL FILIPINOS AS ALIENS IN THE PHILIPPINE INDEPENDENCE ACT WAS INTENDED TO ANNUL AND INVALIDATE COURT DECISIONS RECOGNIZING THEIR STATUS AS AMERICAN NATIONALS AT BIRTH
Under the Philippine Independence Act, Territorial Filipinos, mandated to continue to “owe allegiance to the United States,” are the ONLY class of persons who can qualify to be designated the status of BOTH a "national" and an "alien" at the same time!
The underlying intention of those who schemed to downgrade the status of Territorial Filipinos from “American nationals” AT BIRTH to the contradiction of “as if they were aliens” was to forbid or deny the “entry” into the United States of Territorial Filipinos.
So, by the Act, Americans were able to enjoy literally the best of BOTH worlds—The “ALLEGIANCE” of “ALIENS” together with “POWER WITHOUT RESPONSIBILITY.” But the clincher to all this inanity is yet to unfold at Section 16 of the Act, declaring that:
"Upon the final and complete withdrawal of American sovereignty in the Philippine Islands the immigration laws of the United States (including all the provisions thereof relating to persons ineligible to citizenship) shall apply to persons who were born in the Philippine Islands to the same extent as in the case of other foreign countries."
In other words, “persons who were born in the Philippine Islands,” or Territorial Filipinos,” become subject to “the immigration laws of the United States,” including “all the provisions thereof relating to persons ineligible to citizenship.”
It is obvious that, together with Section 8(a)(1) earlier discussed, this provision was intended to nullify and invalidate altogether at one fell swoop Court decisions that recognized Territorial Filipinos to be “American nationals” AT BIRTH and not as “aliens.”
This cleverly-worded provision in Section 16 legalizes the status of Territorial Filipinos as “aliens” not by expressly designating them to be what the U.S. Court decisions have repeatedly declared that they are NOT, but by subtly inserting the “killer” clause that “PERSONS WHO WERE BORN IN THE PHILIPPINE ISLANDS” were persons born “to the same extent as in the case of other foreign countries,” and hence subject to “the immigration laws of the United States.”
So, to legitimize relegating Territorial Filipinos to the status of “Aliens,” the U.S. Congress simply employed the past tense “were born” and declared the Philippine Islands, the PLACE where they “were born,” to be “to the same extent as in the case of other foreign countries,” even though the Philippine Islands was unarguably not a “foreign” country at the time Territorial Filipinos, and to use the language of the Act, “were born.”
Section 16 amounts to this: Territorial Filipinos “were born” in a “foreign” country; hence, “aliens” subject to U.S. laws on immigration.
But the incongruity is inescapable: The territory of the Philippine Islands became the Republic of the Philippines only on 04 July 1946---AFTER ALL Territorial Filipinos “were born” already; and this means that ALL of them “were born” during the period that the Philippine Islands was still undeniably a U.S. territory.
Besides, how can the Philippine Islands be considered as being “to the same extent as in the case of other foreign countries” when the very same Section 16 also speaks of the “withdrawal of American sovereignty in the Philippine Islands”?
The Philippine Islands (from the U.S. viewpoint) became a “foreign” country only AFTER “the withdrawal of American sovereignty” on 04 July 1946. Thus, only Filipinos born AFTER that cut-off date--or the “postnati” (as understood in Calvin’s Case)--should have been the persons placed subject to “the immigration laws of the United States,” not the “antenati,” or Territorial Filipinos, already born “American nationals” BEFORE that deciding cut-off date.
So, if the Philippine Islands was to be regarded “to the same extent as in the case of other foreign countries,” what “American sovereignty in the Philippine Islands” was there to “withdraw” if, indeed, the Philippine Islands was really a “foreign” country?
Can the claim of “American sovereignty” legally exist or be exercised in a territory the Americans themselves by a provision of law designate to be a “foreign” country?
Americans may have disowned Territorial Filipinos under the Philippine Independence Act; but the "Philippine Islands" still appears listed (as of 2006) in the United States Code under Title 48 (Territories and Insular Possessions), Chapter 5 (Sections 1001 - 1276e, now "omitted" or "transferred") with the following Chapter Notes:
"Philippine Independence - Independence of the Philippine Islands recognized and American sovereignty withdrawn by Proc. No. 2695, eff. July 4, 1946, 11 F.R. 7517, 60 Stat. 1352, issued pursuant to section 1394 of Title 22, Foreign Relations and Intercourse, under that section."
The above note alone stating that “American sovereignty withdrawn by Proc. No. 2695, eff. July 4, 1946” can only mean one thing: America exercised the rights of sovereignty in and over the territory of the Philippine Islands BEFORE “Proc. No. 2695” was issued. And during the time the United States was sovereign (from 1898 to 1946), the Philippine Islands was undeniably NOT a “foreign” country as declared in the Philippine Independence Act, but a territory or insular possession of the United States.
To appreciate fully the extent and consistency of Court decisions recognizing Territorial Filipinos as “American nationals” that the provisions in the Act INVALIDATED on the basis of a “supposition,” read the following litany of citations already quoted earlier:
--“[The Philippine Islands] ceased to be foreign country. They came under complete and absolute sovereignty and dominion of the United States, and so became territory of the United States”
--“The citizens of the Philippine Islands are not aliens … They owe no allegiance to any foreign government. They were not eligible for naturalization under section 2169 because not aliens and so not within its terms”
--"The Philippine Islands were American territory subject to the jurisdiction of the United States"
--"Persons born in the Philippines during [the American territorial] period were American nationals entitled to the protection of the United States and conversely owing permanent allegiance to the United States"
--“Regardless of whatever uncertainty may have existed as to their precise status, whether quasi-citizens or American nationals, the United States supreme court, in effect, held, as early as 1904 … that [Territorial Filipinos] are not aliens.”
--“Citizens of the Philippine Islands were not aliens within the meaning of the Federal immigration laws”
--"The citizens of the Philippine Islands are not aliens”
-- “Citizens of the Philippine Islands of the Filipino race are not aliens because, in the language of the opinion: ‘They owe no allegiance to any foreign government, but do owe allegiance to the United States’
--“[Territorial Filipinos, like the] citizens of Porto Rico, whose permanent allegiance is due to the United States … are not 'aliens,' and upon their arrival by water at the ports of our mainland are not 'alien immigrants’“
--The term "National" was "originally intended to account for the inhabitants of … the Philippines, Guam, and Puerto Rico … who were not granted U.S. citizenship, yet were deemed to owe 'permanent allegiance' to the United States and recognized as members of the national community in a way that distinguished them from aliens"
Yet, owing to provisions in the Philippine Independence Act, an “American national” AT BIRTH, or a Territorial Filipino, is barred from “entry” into the United States without a U.S. Visa and become subject to arrest and deportation if “overstaying.”
The grim irony of this humiliation is that Territorial Filipinos, proudly bearing the Stars and Stripes, validated their ALLEGIANCE to the United States in gory battlefields of WWII, defending American territory from the onslaught of Japanese invaders, tantamount to barring "aliens" from the land of the rising sun to "enter" the U.S. territory of the Philippine Islands--without a U.S. visa.
F. TERRITORIAL FILIPINOS ARE STATELESS AT BIRTH AND SLAVE-BORN
Actually, at that time in 1934, there would not have been any need for inserting the “supposition” in the cited provisions of the Philippine Independence Act at all; the U.S. Congress could have simply proclaimed that it possesses the power to declare the “political status” of Territorial Filipinos as “aliens;” even if they were born in territory over which the United States is sovereign.
Possession of that awesome power to designate the “political status” of inhabitants in ceded territories is basically what America was claiming under the “Doctrine of Incorporation” at the beginning of its regime in the Philippine Islands, a claim the Courts reluctantly recognized and upheld in the “Insular Cases.”
Territorial Filipinos now challenge that claim.
But why have Territorial Filipinos allowed this injustice, this glaring denial of the privileges and immunities of "American nationals” AT BIRTH, to fester unresolved for so long now?
Territorial Filipinos certainly respect, and prefer not to question, the "wisdom" of an Act of the U.S. Congress, as upheld by the Courts, that renders concededly "American Nationals" AT BIRTH unduly subject to the "immigration laws of the United States."
Territorial Filipinos have long accepted the reality that America can very well continue the discrimination and the injustice they have openly inflicted upon two generations of Territorial Filipinos born from 1899 to 1946, and continue to disown their status and ignore their existence.
Rather, what Territorial Filipinos are now seeking from America is the RECOGNITION of their status AT BIRTH, having been born "in territory over which the United States is sovereign," mindful that, unless Congress clothes itself with the robe of the omnipotent "Creator," Territorial Filipinos cannot be commanded to be BORN AGAIN!
They cry for clarification, since the one festering question lingers: To what state were TWO generations of "Territorial Filipinos" born in during the American Territorial Period from 1899 to 1946 in the light of the fact that America, the sovereign at their place of birth, formally declared the U.S. territory of the Philippine Islands as a separate and independent state--the Republic of the Philippines--only on 04 July 1946?
It is, therefore, safe to conclude that the provisions of the Philippine Independence Act, discussed and cited, intentionally rendered Territorial Filipinos STATELESS AT BIRTH.
The Act may also be regarded as having viewed Territorial Filipinos, NOT as PERSONS, not even as “colonial subjects,” but simply as “OTHER PROPERTY” (as in Dred Scott), incident to, or part and parcel of, the purchase and cession of a “TERRITORY.”
For under the Act, the U.S. Congress relegated Territorial Filipinos to a class comparable to a “human chattel,” or to persons who, having been purchased (in this instance for $20 million), are “the legal property of another or others and [are] bound to absolute obedience” (synonymous with “permanent allegiance”), which, mind you, is the dictionary meaning of the term eerily familiar in U.S. history, law, constitution, custom, and tradition, and that is, a “SLAVE” in the sense of INVOLUNTARY “absolute obedience” or legally mandated “permanent allegiance,” as distinguished from the equally obnoxious term “SLAVERY,” generally defined as “INVOLUNTARY servitude.”
So, having been born unwanted, disowned, abandoned and neglected by the sovereign at their place of nativity, these questions remain to haunt:
Were Territorial Filipinos BORN STATELESS (unrecognized by their STATE OF BIRTH)? Were Territorial Filipinos SLAVE-BORN (bound AT BIRTH to INVOLUNTARY permanent ALLEGIANCE and absolute OBEDIENCE to their STATE OF BIRTH)?
Not content with having coined the absurd status of “non-citizen national of the United States” to designate Territorial Filipinos relying on the "myth" of the "unincorporated territory" doctrine, Congress under the Philippine Independence Act finally relegated them to the status of an “alien,” having been born supposedly in a “foreign” country.
Yet, Court decisions have always conceded that, the territory of the Philippine Islands was “subject to the jurisdiction of the United States,” over which the United States was sovereign and that Territorial Filipinos were “American nationals” mandated to ”owe allegiance to the United States.”
Why, then, were Territorial Filipinos--having acquired their U.S. nationality AT BIRTH and, in the words of the U.S. Supreme Court, "entitled to the protection of the United States"--made subject to U.S. immigration laws on the mere supposition (contrary to fact) as worded in the Act that they were “aliens”?
The reason why?
Racism, Discrimination and Birthplace Prejudice aborting Birthright Citizenship!
In this regard, the U.S. Congress should be ashamed each time a Territorial Filipino is arrested, humiliated, handcuffed, detained and DEPORTED--or, in short, TERRORIZED--for violating U.S. immigration laws, on the basis of a provision that is undeniably a “supposition” embedded in the Philippine Independence Act.
This is the grand “supposition” earlier discussed, arbitrarily designating “American nationals” AT BIRTH--Territorial Filipinos--as “aliens” and the U.S. territory of their nativity--the Philippine Islands--as a “foreign” country, designations Congress merely “presupposed contrary to fact,” but to be applied nonetheless with the full force of the law even though inapplicable to them sans that “supposition.”
The U.S. Congress understandably remains adamant and unperturbed, pointing to the myth of “unincorporated territory,” the “Territorial Clause,” the 1898 Treaty of Paris, and the official and judicial reading of the Citizenship Clause to legitimize the glaring RACISM, DISCRIMINATION AND BIRTHPLACE PREJUDICE of their acts.
Anyway, to the U.S. Congress, a few more years (it’s now 2006), and Territorial Filipinos will have been all gone to meet their Creator, the Almighty above and beyond, who gifted them with the precious circumstances of their birth--indelible, invulnerable.
To put it bluntly, the U.S. Congress clearly abhorred the idea of assimilating Territorial Filipinos; it was interested only in the territory but not its inhabitants. This view is best expressed in the remarks of Senator G.G. West--typical of those who voted against the ratification of the Treaty of Paris (see Objections to Annexing the Philippines, The North American Review, Vol. CLXVIII, No. 506, 1898):
“I vote against annexing the Philippines because such annexation makes the people of those islands ultimately citizens of the United States, and necessitates the admission of the territory thus acquired a State.
“The idea of conferring citizenship upon the half-civilized, piratical, muck-running inhabitants of two thousand islands, seven thousand miles distant, in another hemisphere and creating a state of the Union from such materials, is so absurd and indefensible that the expansionists are driven by the necessity of advocating the colonial system of Europe …
“… whatever may be the status as to citizenship of the older inhabitants, their children born after annexation are citizens and voters … It being certain from [the Fourteenth and Fifteenth Amendments] that the children of the Filipinos will be citizens and voters, in case of annexation, it follows that they must be educated and civilized in order to fit them for the duties imposed by our jurisdiction over the country.”
“Let the flag of our Republic not be ‘hauled down,’ but brought back to congenial soil where it will wave over freemen, instead of floating over conquered islands in another hemisphere and ten million half-barbarians bought for two Dollars each.”
But the U.S. Congress still has to contend with BIRTHRIGHT CITIZENSHIP under the jus soli doctrine the Citizenship Clause--GRAMMATICALLY READ as intended by Senator Jacob Howard, its author--guarantees, a CONSTITUTIONAL RIGHT beyond the reach of the Legislative Power, of the U.S. Congress.
NOT IN MY NAME!
Gloria's PP 1017 (now lifted) and "warrantless arrests" (now claimed to persist) remind me of the Senate, the fall guy named Norberto B. Gonzalez—and U.S. Senator Joseph McCarthy in the 1950s.
EXECUTIVE POWER OF CONTROL, OF COMMAND THE SOVEREIGN DELEGATES
Cabinet Secretary Norberto B. Gonzalez is an Executive Officer over whom the President "shall have control of," or the "Executive Power of Control" (Sec. 17, Art. VII). It is a Power akin to the "Power of Command" as "Commander-in-Chief" (Sec. 18, Art. VII).
The verb "control," which means "to have the power of commanding; the power of restraining," is synonymous with the verb "command"--"to have authority or control over, to have at one's disposal." Thus, Secs. 17 and 18, both of which fall under "The Executive Power" in Article VII, authorize the President, as defined, to "order," "direct" or "restrain" acts, among others, of officers in all "executive departments, bureaus, and offices" and members of "all armed forces."
Are these not the same awesome Executive Powers Gloria relied on to "legitimize" her issuance of EO 464?
Incidentally, the U.S. President does not possess the "Power of Control," claiming the exercise of "control" over executive officers to be merely part of a nebulous (and often controversial) "Executive Privilege." This is a "privilege" claimed to be incident to the "separation of powers" the Sovereign dispersed among the three co-ordinate co-equals, the Legislative, the Executive, the Judiciary, wary always of "concentrated power," distrustful even of power itself (as in "lust for") delegated at any level.
Thus, the only way to prevent the continued issuance of executive orders, such as EO 464, is through a constitutional amendment to deny our President the power "of control" over Executive Officers.
In this regard, leaning on a merely implied "Executive Privilege"--and not the Executive Power of Control, of Command the Constitution expressly vests the Philippine President with--and citing U.S. Supreme Court decisions regarding "Executive Privilege" (a "privilege" claimed by a U.S. President who does not possess the Power of Control) to justify EO 464 is irrelevant, impertinent, to say the least.
PARLIAMENTARY QUESTION HOUR AND THE RIGHT OF PARLIAMENT TO INTERPELLATION
The other way to abort the issuance of Executive Orders like EO 464 is to embark on a radical shift to parliamentary wherein the cabinet is under the "control of" the Prime Minister, and the Prime Minister is, in turn, subject to removal at the pleasure of a majority of Parliament, with the entire Cabinet "required" (and not just "requested") to appear before and "answer questions" (and not just to be "heard") by members of Parliament during Question Hour interpellations, as in Sec. 12(1), Article VIII of the 1973 Constitution with a parliamentary form of government.
Note it well that the term "interpellation" in the 1973 Constitution, oddly enough, still appears in Sec. 22, Article VI of the 1987 Constitution (supposedly establishing a "presidential" form of government) although the "Question Hour" has been deleted, as follows:
"The heads of departments may ... upon the request of either House ... appear before and be heard by it ... Interpellations shall not be limited to written questions, but may cover matters related thereto ..."
What is notable is that the term "interpellation" is defined in Wikipedia as "a Right of Parliament," and to quote:
"The word Interpellation is also used to refer to the formal right of a parliament to submit formal questions to the government. In many parliaments, each individual member of parliament has the right to formally submit questions (possibly a limited amount during a certain period of time) to a member of government. The respective minister or secretary is then required to respond and to justify government policy. Interpellation thus allows the parliament to supervise the government's activity."
Owing to these contradictory provisions (the Executive Power of Control, of Command side by side with the "Right of Parliament" to "require" Cabinet members of the Executive "to respond and to justify government policy") engendered by the inexplicable retention of the uniquely parliamentary term "interpellation, the Congress in the 1987 Constitution may be regarded as "semi-" or "quasi-parlimentary" in function. (See a more detailed discussion of this oddity at NOTE 7 later here.)
AUTHORITY TO INQUIRE IN AID OF THE POWER TO LEGISLATE THE SOVEREIGN DELEGATES
Section 21, Art. VI provides that: "The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected."
Note that this provision is copied word-for-word from Sec. 12(2), Article VIII of the 1973 Constitution and did not appear in the 1935 Constitution.
If the Court views either House of Congress or its respective committess as having the authority to summon and compel the appearance of members of the Executive Cabinet during an inquiry "in aid of legislation," then, the 1987 Constitution may be regarded as "quasi-parliamentary," since the Executive is rendered inutile, impotent by the all-embracing extent of the Legislative Power which allows the Legislative to needlessly encroach upon the Executive, a branch deemed coordinate and co-equal under a Presidential form of government.
In fact, this is basically what distinguishes a Presidential from a Parliamentary form of government--the Parliamentary Cabinet is responsible directly to a majority of Parliament.
Fall guy Gonzalez, a Cabinet Secretary, was requested by the Senate to shed light on the Venable LLP public relations Agreement the Executive entered into with a US-based corporation. During the inquiry "in aid of legislation," Gonzalez "responded with evasiveness ... and did not answer any of the crucial questions," was cited for contempt and subjected by the Senate to an ordeal Sen. McCarthy would have loved to do himself--
--Ordered arrested, tried, convicted, and punished by the Senate, the institution authorized merely to inquire "in aid of legislation" (understood to mean to "investigate" to justify the authority to cite in contempt, but not to arrest and detain), but actually acting as the constitutional "investigator," the Ombudsman (an institution the U.S. Constitution does not provide, with the U.S. Congress traditionally assuming the investigative function, as with our Congress before the Ombudsman's creation, constitutionally in 1987, implemented by law in 1989) and, simultaneously, acting as the co-equal Judiciary, exercising in the process "concentrated power," the "Executive Power of Control" of another co-equal notwithstanding.
--Publicly maligned, insulted, humiliated and subjected to "pitiless publicity and exposure" (by itself, already a form of "punishment" inflicted) for seeking refuge under his "right to remain silent" during an "investigation" ("inquiry"?), in glaring violation of the caveat to Congress (embedded in the 1973 and the 1987, but not in the 1935, Constitutions) that "[t]he rights of persons appearing in or affected by such inquiries shall be respected," among which is the right against compulsory self-incrimination.
--Arrested "warrantless" by persons with a military-like designation (Sergeant-at-Arms), but without the authority to arrest and detain, and held hostage (Al Qaeda-style vigilante justice) "legitimized" by an "inquiry in aid of legislation."
--Being placed under "Protective Custody" or "on recognizance" of the Executive (as an Executive Officer and "alter ego" of) was NOT an option made available to him, although made readily available to members of the Legislative (the "Batasan 5") similarly situated.
--Condemned to indefinite detention (for well over a month, or over 720 hours) from 21 Sept to 26 Oct 2005, although temporarily relieved of the "effects of his detention" for "humanitarian considerations"; yet, because of his "mysterious intransigence," the inquiry "in aid of legislation" can be "re-opened if circumstances warrant," and his continued "detention" can be resumed, later (to last forever?).
--Sneered at for seeking medical attention for a serious, life-threatening ailment (diagnosed as hypertension) that incarceration without charges naturally magnifies, exacerbates.
--Accusation proved his guilt, and his denial or refusal doubled it, by subjecting him to the "coercive sanction of contempt" as punishment for his contumacious conduct (his denial, refusal), a mode of "testimonial compulsion," doubtless violative of the prohibition on the use of "threat, intimidation . . . which vitiates the free will" to extract "confession" or "admission."
--Deprived of his liberty without the benefit, the safeguards of "due process of law," section 1 of the Bill of Rights cries out to guarantee, unconditionally; such that, the concession of recourse to the "Writ of Habeas Corpus" later (but often too late) may not be enough to assuage the agony from mortal wounds, impaled earlier by the injustice, the inhumanity of the deprivation ("human rights" violation?).
--Punished before he is guilty for fear that he should be guilty, evidenced by a mere legislative pronouncement of guilt (or "Trial by Legislature"), bereft of even a rudimentary hearing before an impartial tribunal competent to determine the question of guilt.
--Willingly accepted the "coercive sanction of contempt" punishment the Senate meted out to him, (without the usual theatrics and showmanship outbursts), ennobled perhaps by the thought that his mistreatment was the price one pays for having pleaded the valued privilege against self-incrimination or "testimonial compulsion"--"a protection of the innocent though a shelter for the guilty."
--Has not been charged nor convicted in Court for the punishment of an offense he has already served and may continue serving (possibly for life), if he remains tight-lipped, opting not to divulge anything self-incriminatory or disclose those received "in confidence" (as part of the official duties of a subordinate), in order to be worthy of the trust of, and obedient to orders emanating from, a superior.
Thus, the Executive Power of Control, of Command squares off with the Authority to Inquire in Aid of the Power to Legislate, a classic case of two separate, co-equal powers demanding recognition, and hence requiring obviously the third separate co-equal Power, the Judiciary, to intervene and resolve.
RIGHTS THE SOVEREIGN RETAINED
But these are Powers invoked that the Sovereign merely delegated to agencies of government it created. So, what of the RIGHTS the Sovereign retains and, under Sec. 21, Art. VI, expressly commands that: "The rights of persons appearing in or affected by such [legislative] inquries shall be respected"?
What is disturbing to me (and to other voiceless promdi "nit-pickers" out there) is: Why Gonzales, a Filipino citizen entitled (presumably) to the protection of the Republic, "innocent until ..." can just as easily be maltreated (the SPCA would have howled in protest if Gonzalez were a dog).
Yet, no one cared; it was as if it's OK to manhandle--if you're the "enemy," if you're the "friend" of "my enemy," if you're Gloria's "associate"; or what was it all about Sen. McCarthy--"Guilt by Association"?
BAN ON ATTAINDER
The abuses the Senate perpetrated are dangerously close to the dreaded Bill of Attainder, generally defined as "[a] legislative act that singles out an individual or group for punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties within the meaning of the Constitution."
For his part, Sen. McCarthy (joined by Rep. Martin Dies) claimed that a resolution by his HUAC sub-committee--or, in the case of fall guy Norberto B. Gonzalez, an act by just one House of Congress alone--that "singles out an individual" for "punishment without a judicial trial" by detention (or, in McCarthy's case, by "pitiless publicity and exposure" of suspected communists) is not a "bill"; neither would it qualify as a "legislative act." (See Irving Brant, The Bill of Rights: Its Origin and Meaning, Chap. 37 "Attainder by Congressional Committees," 1967.)
But the question by inescapable logic, looms: If Congress, both Houses jointly, is forbidden to pass a Bill of Attainder; can either House of Congress or a committee conducting an inquiry "in aid of legislation" or, for that matter, any legislative process, do what the whole Congress is forbidden to do? Can the Executive?
If "warrantless arrests," "arbiratry detentions" and "punishment without trial" are to be abhorred, the Court should address this anomaly at the next opportunity and revisit stare decisis (Arnault?), since the 1987 Constitution (and the 1973, but not in the 1935) already adds the command that "[t]he rights of persons appearing in or affected by such inquiries shall be respected."
The evil the prohibition seeks to avoid is clearly the deadly "attainder" a hapless victim is brutalized with--and not in the form or manner by which the injustice is handed down "officially" by whosoever, the Legislative or the Executive. The prohibition was meant to be a "positive denial" of any power to government on the subject of "attainder." For "a power expressly denied to the whole government, a single branch may not assume."
To the distraught victims, "punishment without a judicial trial" is the thorns of "terror" unleashed by whatever "rose" it is named, be it by way of a "bill" or by whatever the means concocted, or by the "legal" alibi foisted, as by declaring a "State of National Emergency," no different from the "New Society." Ask the few remaining survivors of the countless victims "attainted" under Martial Rule by an "ASSO" justified by an Executive, surreptitiously wielding Legislative Power usurped under Amendment No. 6 (1976) of the 1973 Constitution (still perfectly "legitimate," not to mention "legal and constitutional," right?).
Like what it was then, if one House of Congress can escape a constitutional ban by the mere expediency of straining taut the authority to inquire "in aid of legislation" to rise above the prohibition on "attainder" (as defined by sorrowful relatives of victims dying, not by legalists debating); there is no limit to what one House of Congress, or both Houses jointly, can do under that assumed authority--an "ex post facto" next? the "spin" editor of a muckraking tabloid later? a jueteng whistleblower?
LEGISLATIVE PRIVILEGE TO PUNISH
The Legislative possesses certain privileges "necessary and proper" for its preservation or existence, one of which is to "punish" ("suspend or expel") its own members for "disorderly conduct" under previously approved "rules of its proceedings"--although "punishment" is solely a judicial function.
That privilege to "punish" obviously extends to protection from "disorderly conduct" of nonmembers. The protection Congress invokes should be afforded by the passage of laws for proceeding against nonmember offenders, laws honoring the Sanctity of the Person, laws protecting rights the people as Sovereign retain.
The legislative, of course, deserves a certain degree of trust and respect. But that trust, that respect to be accorded must be earned; it cannot be extracted or coerced by a blatant "misrule of law"--by threats of a contempt citation or "punishment without trial"--from the very institution the Sovereign delegates the Power to Make Law.
RIGHT TO INFORMATION IN MATTERS OF PUBLIC CONCERN THE SOVEREIGN RETAINED
As regards the refusal of Gonzalez, a Cabinet Member, to furnish information concerning the Venable LLC Agreement, the right "to obtain information in matters of public concern" and to have "access to official records" (Sec. 7, Art. III), together with the State policy "of full public disclosure of all its transactions involving public interest" (Sec. 28, Art. II) are intended, no doubt, to benefit the common good.
But that "right," that "State policy," already "subject to such limitations as many be provided by law," may not be stretched into what would amount to a general authority to allow the invasion with impunity of the "other" rights individuals possess--retain jealously as Sovereign. Mind you, a State Policy (Sec. 11, Art. II) also proclaims that: "The State values the dignity of every human person and guarantees full respect for human rights"--friend or foe.
FREEDOM OF SPEECH, OF EXPRESSION, OF THE PRESS THE SOVEREIGN RETAINED
The assault on media by Gloria's PP 1017 enforcers should not be taken lightly. The view I hold strongly is that media should not just demand "no prior restraint"; it should insist instead on what the Constitution commands, absolutely, in no uncertain terms--"NO LAW SHALL BE PASSED ... " (Sec. 4, Art. III).
For in the words of James Madison in the Virginia Resolutions of 1798: "[T]he censorial power is in the people over the government, and not in the government over the people," the judicial concept of "calculated falsehood" and "actual malice" notwithstanding.
Elaborating on Madison's words, Dr. Alexander Meiklejohn (the U.S. Medal of Freedom Awardee, "the nation's highest honor," in 1963) wrote about what he calls "an activity of 'governing importance' within the powers reserved to the people and made invulnerable to sanctions by their agency-governments"--"the central meaning of the First Amendment"--by these illustrations:
"The principle here at stake can be seen in our libel laws. In cases of private defamation, one individual does damage to another by tongue or pen; the person so injured in reputation or property may sue for damages. But, in that case, the First Amendment gives no protection to the person sued. His verbal attack has no relation to the business of governing."
Meiklejohn adds: "If, however, that same verbal attack is made in order to show unfitness of a candidate for governmental office, the act is properly regarded as a citizen's participation in government. It is, therefore, protected by the First Amendment. And the same principle holds good if a citizen attacks, by words of disapproval and condemnation, the policies of government, or even the structure of the Constitution. These are 'public' issues concerning which, under our form of government, he has authority, and is assumed to have competence, to judge. Though private libel is subject to legislative control, political or seditious libel is not."
To buttress his point, Meiklejohn adverted to the analogy in the immunity members of Congress enjoy which provides (under Sec. 12, Art. VI of our 1987 Constitution) that: "No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof." He argued that: "Just as our agents must be free in their use of their delegated powers, so the people must be free in the exercise of their reserved powers"--otherwise the immunity afforded to mere agents exercising powers the Sovereign delegates to government would enjoy an altogether unfair, even irreverent, advantage.
These "reserved powers," Meiklejohn speaks of, which "he labeled powers of 'governing importance' are concerned, not with a private right, but with a public power, a governmental responsibility. Freedom of expression in areas of public affairs is an absolute. 'Public discussion of public issues,' he said, 'together with the spreading of information and opinion bearing on those issues must have a freedom unabridged by our agents. Though they govern us, we, in a deeper sense, govern them. Over our governing, they have no power. Over their governing we have sovereign power."
Meiklejohn explained that the people "are, it is true, 'the governed.' But they are also 'the governors.' Political freedom is not the absence of government. It is self-government ... The people do not delegate all their sovereign powers ... [the Constitution] speaks of a reserved power which the people have decided to exercise by their own activity ... [and that is] the voting power through which the people, as an electorate, actively participate in governing both themselves, as subjects of the laws, and their agencies, as the makers, administrators, and interpreters of the laws."
"The revolutionary intent of the First Amendment," Meiklejohn concludes, "is, then, to deny to all subordinate agencies authority to abridge the freedom of the electoral power of the people."
Meiklejon goes on to clarify the extent of this "Power": "It is essential to keep clear the crucial difference between 'the rights' of the governed and 'the powers' of the governors ... In the field of our 'rights,' each one of us can claim 'due process of law.' In the field of our governing 'powers,' the notion of 'due process' is irrelevant." Indeed, for how can the exercise of a mere delegated Sovereign power supersede the supremacy of the reserved power the Sovereign wields directly?
Acting as "the governor," the citizen in a republic is "the most important public official" and to be critical of "public servants" in government is a citizen's "public duty" in a democracy, Thus, the "right" to vote, the "right" to speak for or against the government, the "right" to peaceably assemble are some of the retained "rights" the Sovereign exercises individually or collectively under a reserved "Governing Power," the Electoral Power.
The Bill of Rights is, therefore, intended, not only to restrict and delimit the Powers the Sovereign delegated to government it created; but also, more importantly, to proclaim "Rights" the Sovereign retained, the "Governing Powers" the Sovereign reserved.
These quotations from Meiklejohn's "The First Amendment is Absolute" (1961) is cited in William J. Brennan, Jr., "The Supreme Court and the Meiklejohn Interpretation of the First Amendment," Harvard Law Review (November 1965). Justice Brennan (later Chief Justice) penned the "landmark" free speech decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
The concurring opinions in that case echo Madison's and Meiklejohn's thesis: "An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment" (Justice Black); "[t]he Constitution accords citizens and press an unconditional freedom to criticize official conduct" (Justice Douglas).
So, from Madison: "The censorial power is in the people over the government, and not in the government over the people"; from Meiklejohn: "Over our governing, they have no power. Over their governing we have sovereign power"; and that Power the Sovereign reserves to be exercised at its pleasure, immune from sanctions for criticism of official conduct, Meiklejohn calls--"THE ELECTORAL POWER."
In this light, Gloria's PP1017 enforcers should be warned to refrain from encroaching upon grounds sacrosanct to a Sovereign--The Electoral Power to choose or to remove, to establish or to dissolve government, to legitimize, to criticize.
RIGHT TO PEACEABLE ASSEMBLY THE SOVEREIGN RETAINED
Similarly distressing is Gloria's CPR (Calibrated Preemptive Respose). "The right of peaceable assembly is a right cognate to those of free speech and is equally fundamental," Justice William O. Douglas in "The Right of the People" (1962) quotes from a U.S. court decision. But the "traffic congestion [in walking and massing towards a peaceful gathering] is a legitimate concern of any city," he adds, and continues by saying that "[o]ne would not be justified in ignoring the familiar red traffic light ... to direct public attention to an announcement of his opinions."
In short, what of the nameless passengers in public transportation caught, unwillingly, in the middle of a monstrous gridlock? Unlike PU drivers, PU passengers, collectively, do not belong (as yet) to any militant group, NGO, or "Party-List." But unorganized they may be, these sacrificial lambs are citizens nonetheless. So, allow me to call them as belonging to a group named, say, "ANAK PASAHERO"--as in "ANAK PAWIS."
"Anak Pasahero" members also possess "rights" too (don't they?), like, for instance, the "right" to work to earn a living, without being penalized for arriving late at work. How about the "right" to education of those who wish to attend school--on time, or after work? I'm sure they have nothing bad to say against rally organizers; all they wish for is simply to be able to reach their respective destinations or appointments on time. Is this unquestionably legitimate desire (or right?) of fellow citizens to be PUNCTUAL too much to ask?
So, during the usual confrontation between rallyists and Gloria's CPR enforcers, who will represent the muted yet exasperated voices of "Anak Pasahero" whose members are mercilessly left to fend for themselves? Ignored for so long now, nobody seems to care for them at all. As citizens of the Republic, I suppose their anger, their frustrations are valid "grievances," entitled equally to be listened to and addressed.
If a "rights" compromise is to be agreed upon between rallyists seeking to "redress grievances" and Gloria's enforcers insisting on a "No Permit, No Rally" policy regarding, say, how to reroute traffic and avoid inconvenience to the public, that agreement should include, or take into consideration, the "rights," not only of the rallyists, but also of the silent, lamentably unrepresented "Anak Pasahero."
Fair enough, "Anak Pawis"? And reasonable still, if the requirement of having to secure a "permit" (actually, a "traffic" permit) is not to be employed by Gloria's PP 1017 enforcers as a pretext to deny or abridge the right the Sovereign retained to peaceable assembly--the same "right" the Filipino people invoked at EDSA in 1986 to wield their reserved Electoral Power to remove.
EXECUTIVE DUTY TO INFORM THE SOVEREIGN OF THE STATE OF THE NATION
Under Sec. 23, Art. VII, the President is obligated to "address the Congress at the opening of its regular session"--or to deliver the "State of the Nation Address" (SONA). So, that goes without saying that, at any time, if the President wants to address, not only Congress, but the entire Filipino people as well to inform them of the "State of the Nation," the President who wields the Executive Power is free to do so, duty-bound, in fact, in times of "lawless violence" or "rebellion."
For if the "State of the Nation"--as perceived by the President who is sworn to "ensure that the laws be faithfully executed"--be confronted with a "national emergency," why should legalists construe PP 1017, declaring the "State of the Nation" to be under a "National Emergency" unconstitutional? On the contrary, the proclamation should be viewed as a laudable performance or execution of a duty.
I think the controversy lies, not in the presidential authority to proclaim and to inform the Filipino people of the "State of the Nation," but in the "unlawful" implementation of orders issued under that proclamation. Newspaper reports, however, confirm that those who claim to having been arrested "warrantless" have at least been afforded the opportunity of "due process of law."
THE JUDICIARY--THE THIRD SEPARATE, CO-EQUAL POWER THE SOVEREIGN DELEGATED
Punishment, in ANY case, is too serious a matter to be entrusted to ANY group (particularly those who anoint themselves to be the "good" people and arrogate to themselves the prerogative to dictate who are to be the "bad" people to be tagged as the "enemies of the State") other than the judiciary.
And there is only ONE way, and no other, in which the "good" can dispose of the "bad," and that way is, by the Court after a trial conducted with all the judicial safeguards in place.
UNRESTRAINED BY THE RULE OF LAW
PP 1017 has been lifted--"officially," at least. Yet, an omnipotent Congress reigns supreme and continues to wield the assumed authority to order a "warrantless" arrest and the indefinite, arbitrary detention of Filipino citizens (even including foreign officials of a bank) under the guise of conducting an inquiry--"in aid of legislation."
Sadly, during the litany of horrors (or "terror") the Senate inflicted openly upon a "named" citizen of the Republic, the avowed champions of freedom and democracy, among many in the media and the opposition, simply looked the other way, eerily silent--Gonzalez was their perceived "enemy"--condoning instead the humiliation, the deprivation the fall guy Gonzalez endured.
Doubtless, it's not just the Executive, after all, that's "unrestrained by the rule of law," but the Legislative as well; so, why make a fuss over the "warrantless," the "arbitrary," the "dictatorial" repercussions under Gloria's PP 1017--only now?
SHOULD ADVOCACY OF A CAUSE BE SELECTIVE?
"He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself." --Thomas Paine
Justice Rutledge quoted Paine's line, dissenting in, In re Yamashita, 327 U.S. 1 (1946), to emphasize the Court's unwavering commitment to due process of law--the bedrock--that he viewed as having been compromised by the majority decision, and concluded forcefully:
"That door is dangerous to open. I will have no part in opening it. For once it is ajar, even for enemy belligerents, it can be pushed back wider, perhaps, ultimately for all."
To that, add this dying wish of St. Thomas More—King Henry VIII's "bosom friend" (later his "enemy") ordered beheaded by an "Act of Attainder" in 1535, canonized 1935:
"Yes, I'd give the Devil benefit of law, for my own safety's sake!"--"A Man of All Seasons"
Meanwhile, "Good Night, and Good Luck," McCarthyism lingers to haunt. It lurks clothed with that assumed congressional authority to "attaint" and, like the "sword of Damocles," hangs unsheathed ready to decapitate its next victim, the "enemies of the State," caricatured as the "bad," the "devil."
Yes, not just the Executive, either House of Congress can, a Congress the "Sovereign Will" enthroned to represent "We, the Filipino people." So, to the "public servants" the Sovereign delegated the Power to Legislate; go ahead, let the "Rule of Your Will" continue to prevail. Armed with the "legitimacy" of that assumed authority to "attaint"--"Thy Will Be Done" anyway.
But, please, I beg you--NOT IN MY NAME!
NOTE: ATTAINDER BY CONGERSSIONAL COMMITTES
I am quoting below the U.S. Supreme Court decision in WATKINS v. UNITED STATES, 354 U.S. 178 (1957) regarding "congressional attainder." (See also GROPPI v. LESLIE, 404 U.S. 496, 1972.)
"MR. CHIEF JUSTICE WARREN delivered the opinion of the Court ...
"Since World War II, the Congress has practically abandoned its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House. The sanction there imposed is imprisonment by the House until the recalcitrant witness agrees to testify or disclose the matters sought, provided that the incarceration does [354 U.S. 178, 207] not extend beyond adjournment. The Congress has instead invoked the aid of the federal judicial system in protecting itself against contumacious conduct. It has become customary to refer these matters to the United States Attorneys for prosecution under criminal law.
"The appropriate statute is found in 2 U.S.C. 192. It provides:[See also 193 and 194]
"Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. 45 [354 U.S. 178, 208]"
"In fulfillment of their obligation under this statute, the courts must accord to the defendants every right which is guaranteed to defendants in all other criminal cases ..."
GROPPI v. LESLIE (1972), reiterates the WATKINS view:
"Legislatures are not constituted to conduct full-scale trials or quasi-judicial proceedings and we should not demand that they do so although they possess inherebt power to protect their own processes and existence by way of contempt proceedings. The Congress of the United States, for example, no longer undertakes to exercise its contempt powers in all cases but elects to delegate that function to federal courts (52 Stat 942, 2 U.S.C. Secs 192-194)."
The U.S. law cited (52 Stat. 942) was enacted in 1857 yet. Brant (op. cit. at page 433) has this to say: "One of the greatest recommendations of this bill, said [Senator] Bayard, was that it transferred the power of punishment for contempt from Congress to a court of justice after judicial inquiry. 'I am aware,' said he, 'that legislative bodies have transcended their powers--that under the influence of passion and political excitement they have very often invaded the rights of individuals, and may have invaded the rights of co-ordinate branches of government.' if our institutions were to last, there could be no greater safeguard than to transfer that indefinite power of punishment to the courts of justice."
In any case, the "coercive sanction of contempt proceedings at the bar of the House" mentioned above--now deemed "abandoned" by the U.S. Congress--is what Section 18 (on "Contempt") of the "Senate Rules of Procedure Governing Inquiries in Aid of Legislation" similarly provides, the same provision the Senate invoked to detain indefinitely, and "attaint," fall guy Gonzalez.
To thwart any attempt in the future to transform congressional inquiry "in aid of legislation" into "congressional attainder," our own Congress should be respectfully petitioned to adopt the solution offered above in 2 U.S.C. 192 (identical to Sec. 150 Revised Penal Code), and let the separate, co-equal Court try, decide and punish after a "judicial" inquiry has been concluded.
This way, "[t]he rights of persons appearing in or affected by such [legislative] inquiries" the Constitution commands Congress "to be respected" are upheld (particularly the privilege against self-incrimination), in the same way that the cherished rights of a group now labeled the "bad" people, "enemies of the State"--the "Batasan 5" accused of rebellion--be equally honored, protected.
I conclude this Note by freely quoting Brant's (op. cit.) enumeration, among others, of "concerted attacks that put the very foundation of government at peril":
"... when the wrong people ask the right remedies"
"... when lawyers who have the courage and sense of professional duty to act as counsel of Communists, though hating their doctrine and despising their conduct, are assailed as sympathizers with the system they condemn"
"... when the rights of citizens lawlessly attainted by congressional committes, invite not only scurrility of extremists" but unconcern, apathy of the majority.
Add, finally, to attacks that imperil government, this definition of "Communal Reinforcement" by skepdic.com in relation to GARCI:
"COMMUNAL REINFORCEMENT is the process by which a claim becomes a strong belief through repeated assertion by members of a community ... independent of whether the claim has been properly researched or supported by empirical data significant enough to warrant belief by reasonable people ... [o]ften the mass media contribute to the process by uncritically supporting the claims ... and provide tacit support for untested and unsupported claims by saying nothing skeptical about even the most outlandish claims ... explains how entire nations can pass on ineffable gibberish ... how testimonials reinforced by other testimonials within the community of ... theologians, politicials, talk show hosts, etc., can supplant and be more powerful than scientific studies or accurate gathering of data by disinterested parties."
Is this not how the GARCI TAPE persists to be welcome as "breaking news" everytime?
So, "reasonable people" kindly go to and search the following definitions in the same website for your "illumination":
--Selective thinking is the process whereby one selects out favorable evidence for remembrance and focus, while ignoring unfavorable evidence for a belief.
--Confirmation bias refers to a type of "selective thinking" whereby one tends to notice and to look for what confirms one's beliefs, and to ignore, not to look for, or undervalue the relevance of what contradicts one's belief.
--Wishful thinking is interpreting facts, reports, events, perceptions, etc., according to what one would like to be the case rather than according to the actual events.
--Incontrovertible evidence is evidence introduced to prove a fact which is so conclusive, that by no stretch of the imagination can there be any other truth as to that matter. Examples: a fingerprint ... a DNA test.
This is relevant to the GARCI controversy since every Certificate of Canvass bears the imprint of the right hand thumbmarks (aside from the signatures) of each the three members of the Board of Canvassers of each constituency.
Rather than listen to testimony (mostly hearsay) of partisan witnesses, Congress should have summoned these board members to authenticate the figures and words (or corrections, if any) in the certificates of canvass wherein their "incontrovertible" right hand thumbmarks appear.
ADDITIONAL NOTES:
01. IS PEOPLE POWER THE ELECTORAL POWER THE SOVEREIGN RESERVED, RETAINED?
To the question of whether the Electoral Power is the same Power the Filipino people wielded at EDSA in 1986, now renamed aptly People Power, the writings of John Locke (Of Civil Government, Chapt. XIV, Prerogative) offers a clue:
"They [the people] reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, by a law antecedent and paramount to all positive laws of men, whether they have just cause to appeal to heaven ..."
W.T. Jones (Masters of Political Thought, Vol. II, p. 200, 1964) elucidates:
"By this pious phrase, an "appeal to heaven," Locke does not mean the people passively to wait the operation of divine justice on their behalf. He means that, when no earthly judge exists before whom they can take their case (i.e. when no constitutional channels of change exist), they must put their trust in heaven and, believing in the rightness of their cause, appeal to arms."
The Locke-inspired American Declaration of Independence (1776) proclaims that the exercise of the "Electoral Power" is a "right," a "duty":
"... Governments are instituted among Men deriving their just powers by the consent of the governed--that whenever any form of Government becomes destructive of these ends [earlier enumerated], it is the Right of the People to alter or abolish it ... it is their Right, it is their Duty to throw off such government and to provide new Guards for their future security ..."
"People Power" is, therefore, an exercise of the supreme "Electoral Power" Meiklejohn coined from Madison's concept of "Censorial Power" and referred to as "an activity of governing importance, a power Locke viewed as "a law antecedent and paramount to all positive laws of men" or to constitutions, the Filipino people as Sovereign reserve to choose or remove those chosen, to create or dissolve government created, to promulgate or rewrite a Constitution ordained and provide new safeguards; it is a Power "which belongs to all mankind" the people jealously forever retain and do not delegate or relinquish to any government they establish.
In 1986, with "no constitutional channels of change" left open and "believing in the rightness of their cause," the Filipino people opted to wield the Electoral Power they reserved to Remove, to make their "appeal to heaven," but not an "appeal to arms" as Locke;s writings exhorted.
Rather, still placing "their trust in heaven" and in prayers to the Almighty, the Filipino people gathered for a "peaceable assembly" at EDSA and dutifully exercised their reserved ELECTORAL POWER to demand the immediate removal from office of Marcos, the dictator, and to bestow, by that Power invoked, "Sovereign Legitimacy" to Aquino's assumption to the Presidency as the winner in the 1986 presidential snap election held weeks earlier and her dissolution of the 1973 Constitution.
02. LEGISLATIVE POWER TO IMPEACH AND REMOVE THE SOVEREIGN DELEGATES
Kin to "attainder" (to legitimize beheadings and check Royal Prerogative), the Power to impeach, "try and decide" the "removal from office" of the Executive is an extraordinary authority the Sovereign (who reserves the Electoral Power to choose, to remove--aptly renamed "People Power"--Locke refers to as "a law antecedent and paramount to all positive laws of men," or to Constitutions) delegates to the Legislative for one specific purpose only--to shorten the tenure of the incumbent impeached by a "removal from office."
Nonetheless, the Sovereign still leaves to the Judiciary the "prosecution, trial, and punishment" of the officer impeached--or to the Court to decide the "CLOSURE" of acts politicians (not necessarily the law) define to be "impeachable." In fact, the non-voting Chief Justice presides to paint a "judicial" color to what Alexander Hamilton in the Federalist No. 65 (1787) refers to as a trial "which may with peculiar propriety be denominated POLITICAL" (all caps as in original).
A "well-constituted court for the trial of impeachment," Hamilton clarified, "is an object not more to be desired than difficult to be obtained in a government wholly elective." Often, he adds "The prosecution of them will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the preexisting factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt."
And, "from that circumstance," Hamilton continues, "the most cunning or the most numerous faction" in an "elective" legislative "can hardly be expected to possess the requisite neutrality towards those whose conduct may be subject of scrutiny."
Well, that's how Hamilton, a framer of the U.S. Constitution and one of the authors of The Federalist Papers (a "classic in American political theory"), defined--and defended as "necessary"--the Impeachment Clause, a description that still sounds starkly familiar to us today, since a removal is to be decided "by the most cunning or the most numerous" rather than "by the real demonstrations of innocence or guilt."
03. WHEN DOES AN OFFENSE BECOME IMPEACHABLE?
Section 2, Art. XI mandates that: "The President ... may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
The phrase "may be removed from office" signifies that a verified complaint of an impeachable offense to be deemed impeachable should be initiated and tried while the Executive is still "in office" serving the six-year presidential TERM OF OFFICE--and certainly NOT after the term has lapsed or terminated.
For how could the President be "removed from office" if the President is already out of office, having served the full six-year TERM OF OFFICE?
The phrase likewise means that--in order to be impeachable--any allegation of "culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust" must be committed by the President DURING the presidential TERM OF OFFICE, while still being authorized to exercise Executive Power--and certainly NOT after the six-year TERM OF OFFICE has lapsed or terminated, and surely NOT before assuming the Office of President.
For how could the incumbent be held liable to be "removed from office" for offenses committed before assuming office as Presideng or after having already served the prescribed TERM OF OFFICE?
Then Vice-President Gloria succeeded to the Presidency to serve President Estrada's unexpired term which ended at noon of 30 June 2004.
Gloria was allowed to run for President during the 2004 elections. She was "proclaimed elected," having received the highest number of votes in the certificates of canvass prepared by the board of canvassers of each province and city, and assumed the Office of President beginning at noon 30 June 2004--as successor to herself, the incumbent President--for a NEW, SECOND six-year TERM OF OFFICE.
What this means is that, the alleged election fraud which is now the subject of so much controversy, cannot be regarded as a valid impeachable offense for Gloria to be "removed from office" during her NEW--or SECOND, now current--six-year TERM OF OFFICE, since the factual basis of the alleged offense committed occurred at the time Gloria was still serving her FIRST TERM OF OFFICE as President which already expired at noon 30 June 2004.
For how can Gloria be "removed from office" during her SECOND TERM OF OFFICE for an alleged impeachable offense committed during her FIRST TERM OF OFFICE as President that has already lapsed or expired on 30 June 2004?
Is the Supreme Court decision in Aguinaldo v. Santos (212 SCRA 768, 1992) relevant?
Not only that, the case of Gloria's classmate William Jefferson "Bill" Clinton is also pertinent and instructive.
Bill faced a lawsuit filed against him by Paula Corbin Jones during his incumbency as U.S. President for sexual harassment which occurred while Bill was still Governor of the U.S. State of Arkansas. The evidence-gathering process in the Jones case ultimately uncovered Bill's affair with White House intern Monica S. Lewinsky. It was this relationship with Monica and allegations of perjury in a deposition in Jones case--with Bill now U.S. President--that fueled his impeachment trial, and NOT his earlier tryst with Jones as Arkansas Governor (See Clinton v. Jones 520 U.S. 881, 1997).
No one, of course, is above the "Rule of Law." And so, like classmate Bill (who eventually paid $850,000 to settle the Jones sexual harassment suit), Gloria is still "liable and subject to prosecution, trial and punishment acording to law" for offenses she allegedly committed during her FIRST TERM OF OFFICE that ended 30 June 2004--but NOT, to repeat for emphasis, to be impeached and "removed from office" during her SECOND TERM OF OFFICE.
04. THE INSIGNIFICANCE OF PULSE ASIA AND SWS SURVEYS SPINNED AS SIGNIFICANT
The Philippines is proclaimed as a "democratic and republican state"; but it's constitution allows the President to be chosen by less than an absolute majority (fifty plus one) or by a MINORITY--Ramos (21%); Estrada (39%); Gloria (40%) of total votes cast.
Arroyo, the INCUMBENT running for a new mandate in May 2004, garnered 40% of the votes cast, while the other 60% (100% minus 40%) voted for the six other presidential candidates.
By opting to vote for candidates other than Arroyo (the "incumbent," to repeat), the 60% obviously wanted to change the "incumbent" seeking re-election for another.
That was May 2004.
It's now, "the first quarter of 2006"; and SWS tells us in a recently-released survey that 48% say that "It is good for the country if PGMA will be removed by means of a People Power."
But 60% already wanted to kick her out in 2004. Now, two years later in 2006, 48% want her "removed by means of People Power" (or "kicked out").
So, the data to compare with are: The solid 60% in 2004 (with no "undecided" votes cast) and a lower 48% in 2006 against GMA.
That's a spread of 12% (60% minus 48%) in two years.
In an earlier survey, Pulse Asia tells us that fully 65% want Gloria to quit in 2006; but, as early as 2004, 60% (100% minus 40%) did not want her to be President in the first place, reflecting a difference of only 5% (65% in 2004 election minus 60% in 2006 survey).
At 3% margin of error, is the recent Pulse Asia survey result showing a difference in preference (during the 2004-2006 time frame) of only 5% against Gloria significant? Really, Pulse Asia?
Is SWS (and Pulse Asia earlier) both ignoring altogether the relevance or significance of what contradicts its "mind-set"; its "selective thinking"; or its "confirmation bias," perhaps?
05. CONGRESS, THE ONLY LEGITIMIZER AUTHORIZED TO EFFECT A CLOSURE ON GARCI AND GLORIA'S LEGITIMACY
Sec. 4 (4th par.), Art. VII states that:
"The returns of every election for President and Vice-President, duly certified by the board of canvassers ... shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall ... open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.
"The person having the highest number of votes shall be proclaimed elected ..."
So, Gloria did not proclaim herself President; Congress "proclaimed elected" Gloria. Hence, it was Congress that "legitimized" Gloria's assumption to the Presidency--and her alleged "cheating."
In reality, not just Gloria, but Congress should bear the blame as well for their negligence, dereliction in the performance of the duty entrusted to "canvass the votes."
Congress, THE LEGITIMIZER, particularly the Senate President to whom the "certificates of canvass is to be "directed to," should be ashamed of their dereliction, apologize to the Sovereign for their negligence, and rectify their mistake.
The congressional Power to Proclaim Elected the President carries with it the Power to Review (as in "to appoint" carries also "to remove") for the purpose of either affirming or rescinding that proclamation issued.
The Power to Review the Proclamation can be implied from, or is incidental to, the Power to Proclaim Elected, since Sec. 4 (6th par.) cited specifically provides that:
"The Congress shall promulgate its rules for the canvassing of the certificates."
The power to promulgate "rules for the canvassing" obviously carries with it also the power to review the manner of canvassing.
Not only that, Sec. 4 (5th par.) further suggests that the additional authority to Congress to "break a tie" may justify resort to the power to review:
"... but in case two or more shall have equal and highest number of votes, one of them shall be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately."
Section 30 of R.A. 7166 (Synchonization and Electoral Reforms) implements the constitutional duty of Congress to canvass under Sec. 4, Art. VII cited earlier:
"Congress shall determine the authenticity and due execution of the certificate of canvass for President and Vice-President as accomplished and transmitted to it by the local boards od canvassers, on a showing that:
"(1) each certificate of canvass was executed, signed and thumbmarked by the Chairman and members of the board of canvassers and transmitted or caused to be transmitted to Congress by them;
"(2) each certificate of canvass contains the names of all of the candidates for President and Vice-President and their corresponding votes in words and in figures; and
"(3) there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and in figures in the certificate."
The authority to review the manner in which Congress performed its "determination of the authenticity and due execution" of the certificates of canvass is NOT to be confused with that in a contest "relating to the election, returns and qualifications of the President and Vice-President," which the Constitution confers solely upon the Supreme Court (sitting as PET).
Legalists can argue that Congress is devoid of that authority to Review; but the public interest towards the "closure" to questions concerning Gloria's "legitimacy" as President demands that any doubt raised be resolved (please!) in favor of recognizing that authority.
For no congressional proclamation; no "legitimacy" to Gloria's presidency.
06. THMUB PRINTS DO NOT LIE
In conducting the review, Congress should bear in mind this time around that fingerprints (like DNA) never lie.
Each certificate (prepared in 7 copies with one already with PET) bears the incontrovertible "right hand thumbmarks" of the three members of the board of canvassers of each constituency along with their signatures.
Signatures can easily be faked or forged; but thumb prints do not lie.
Instead of calling Garci, Ong and the rest of the partisan hustlers who were not even present during the actual voting and canvassing in the provincial and municiapl levels, Congress should summon all three members of each board of canvassers (career officers) assigned to all contested constituencies (provincial and city first, municipal boards later).
Let experts (independent and from the COMELEC) verify the authenticty of the certificates and thumb prints and let the board members attest to the correctness of the words and figures they wrote in the certificates.
Having done that, proceed to compare everything affixed or written in all 6 (since 1 is with PET) copies available for each certificate in front of the board members in public view of those interested to witness the review of the canvassing.
So, let Congress, the ONLY constitutional "legitimizer" (and no other entity), review the "legitimacy" of that proclamation in the manner proposed above so that the Filipino People can look forward to a finality--the "closure"--of the longest "election period" in world electoral history.
After this, ONE TERM ONLY, NO RE-ELECTION, NO DYNASTY, and INELIGIBILITY OF PERSONS WHO EVER OCCUPIED ELECTIVE POSITIONS LOCAL AND NATIONAL, INCLUDING BARANGAY, PARTICULARLY THE ELECTIVE INCUMBENTS, FROM THE TIME THE PHILIPPINES BECAME A REPUBLIC ON 04 JULY 1946.
Lord, please, bless the Filipino People with a government without the MARCOSES, ARROYOS, ESTRADAS, DRILONS, ANGARAS, DE VENECIAS, LACSONS and the rest of ALL the TRAPOS who, collectively, destroyed this nation and give the remaining 80 million promdis the opportunity to serve.
EXECUTIVE POWER OF CONTROL, OF COMMAND THE SOVEREIGN DELEGATES
Cabinet Secretary Norberto B. Gonzalez is an Executive Officer over whom the President "shall have control of," or the "Executive Power of Control" (Sec. 17, Art. VII). It is a Power akin to the "Power of Command" as "Commander-in-Chief" (Sec. 18, Art. VII).
The verb "control," which means "to have the power of commanding; the power of restraining," is synonymous with the verb "command"--"to have authority or control over, to have at one's disposal." Thus, Secs. 17 and 18, both of which fall under "The Executive Power" in Article VII, authorize the President, as defined, to "order," "direct" or "restrain" acts, among others, of officers in all "executive departments, bureaus, and offices" and members of "all armed forces."
Are these not the same awesome Executive Powers Gloria relied on to "legitimize" her issuance of EO 464?
Incidentally, the U.S. President does not possess the "Power of Control," claiming the exercise of "control" over executive officers to be merely part of a nebulous (and often controversial) "Executive Privilege." This is a "privilege" claimed to be incident to the "separation of powers" the Sovereign dispersed among the three co-ordinate co-equals, the Legislative, the Executive, the Judiciary, wary always of "concentrated power," distrustful even of power itself (as in "lust for") delegated at any level.
Thus, the only way to prevent the continued issuance of executive orders, such as EO 464, is through a constitutional amendment to deny our President the power "of control" over Executive Officers.
In this regard, leaning on a merely implied "Executive Privilege"--and not the Executive Power of Control, of Command the Constitution expressly vests the Philippine President with--and citing U.S. Supreme Court decisions regarding "Executive Privilege" (a "privilege" claimed by a U.S. President who does not possess the Power of Control) to justify EO 464 is irrelevant, impertinent, to say the least.
PARLIAMENTARY QUESTION HOUR AND THE RIGHT OF PARLIAMENT TO INTERPELLATION
The other way to abort the issuance of Executive Orders like EO 464 is to embark on a radical shift to parliamentary wherein the cabinet is under the "control of" the Prime Minister, and the Prime Minister is, in turn, subject to removal at the pleasure of a majority of Parliament, with the entire Cabinet "required" (and not just "requested") to appear before and "answer questions" (and not just to be "heard") by members of Parliament during Question Hour interpellations, as in Sec. 12(1), Article VIII of the 1973 Constitution with a parliamentary form of government.
Note it well that the term "interpellation" in the 1973 Constitution, oddly enough, still appears in Sec. 22, Article VI of the 1987 Constitution (supposedly establishing a "presidential" form of government) although the "Question Hour" has been deleted, as follows:
"The heads of departments may ... upon the request of either House ... appear before and be heard by it ... Interpellations shall not be limited to written questions, but may cover matters related thereto ..."
What is notable is that the term "interpellation" is defined in Wikipedia as "a Right of Parliament," and to quote:
"The word Interpellation is also used to refer to the formal right of a parliament to submit formal questions to the government. In many parliaments, each individual member of parliament has the right to formally submit questions (possibly a limited amount during a certain period of time) to a member of government. The respective minister or secretary is then required to respond and to justify government policy. Interpellation thus allows the parliament to supervise the government's activity."
Owing to these contradictory provisions (the Executive Power of Control, of Command side by side with the "Right of Parliament" to "require" Cabinet members of the Executive "to respond and to justify government policy") engendered by the inexplicable retention of the uniquely parliamentary term "interpellation, the Congress in the 1987 Constitution may be regarded as "semi-" or "quasi-parlimentary" in function. (See a more detailed discussion of this oddity at NOTE 7 later here.)
AUTHORITY TO INQUIRE IN AID OF THE POWER TO LEGISLATE THE SOVEREIGN DELEGATES
Section 21, Art. VI provides that: "The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected."
Note that this provision is copied word-for-word from Sec. 12(2), Article VIII of the 1973 Constitution and did not appear in the 1935 Constitution.
If the Court views either House of Congress or its respective committess as having the authority to summon and compel the appearance of members of the Executive Cabinet during an inquiry "in aid of legislation," then, the 1987 Constitution may be regarded as "quasi-parliamentary," since the Executive is rendered inutile, impotent by the all-embracing extent of the Legislative Power which allows the Legislative to needlessly encroach upon the Executive, a branch deemed coordinate and co-equal under a Presidential form of government.
In fact, this is basically what distinguishes a Presidential from a Parliamentary form of government--the Parliamentary Cabinet is responsible directly to a majority of Parliament.
Fall guy Gonzalez, a Cabinet Secretary, was requested by the Senate to shed light on the Venable LLP public relations Agreement the Executive entered into with a US-based corporation. During the inquiry "in aid of legislation," Gonzalez "responded with evasiveness ... and did not answer any of the crucial questions," was cited for contempt and subjected by the Senate to an ordeal Sen. McCarthy would have loved to do himself--
--Ordered arrested, tried, convicted, and punished by the Senate, the institution authorized merely to inquire "in aid of legislation" (understood to mean to "investigate" to justify the authority to cite in contempt, but not to arrest and detain), but actually acting as the constitutional "investigator," the Ombudsman (an institution the U.S. Constitution does not provide, with the U.S. Congress traditionally assuming the investigative function, as with our Congress before the Ombudsman's creation, constitutionally in 1987, implemented by law in 1989) and, simultaneously, acting as the co-equal Judiciary, exercising in the process "concentrated power," the "Executive Power of Control" of another co-equal notwithstanding.
--Publicly maligned, insulted, humiliated and subjected to "pitiless publicity and exposure" (by itself, already a form of "punishment" inflicted) for seeking refuge under his "right to remain silent" during an "investigation" ("inquiry"?), in glaring violation of the caveat to Congress (embedded in the 1973 and the 1987, but not in the 1935, Constitutions) that "[t]he rights of persons appearing in or affected by such inquiries shall be respected," among which is the right against compulsory self-incrimination.
--Arrested "warrantless" by persons with a military-like designation (Sergeant-at-Arms), but without the authority to arrest and detain, and held hostage (Al Qaeda-style vigilante justice) "legitimized" by an "inquiry in aid of legislation."
--Being placed under "Protective Custody" or "on recognizance" of the Executive (as an Executive Officer and "alter ego" of) was NOT an option made available to him, although made readily available to members of the Legislative (the "Batasan 5") similarly situated.
--Condemned to indefinite detention (for well over a month, or over 720 hours) from 21 Sept to 26 Oct 2005, although temporarily relieved of the "effects of his detention" for "humanitarian considerations"; yet, because of his "mysterious intransigence," the inquiry "in aid of legislation" can be "re-opened if circumstances warrant," and his continued "detention" can be resumed, later (to last forever?).
--Sneered at for seeking medical attention for a serious, life-threatening ailment (diagnosed as hypertension) that incarceration without charges naturally magnifies, exacerbates.
--Accusation proved his guilt, and his denial or refusal doubled it, by subjecting him to the "coercive sanction of contempt" as punishment for his contumacious conduct (his denial, refusal), a mode of "testimonial compulsion," doubtless violative of the prohibition on the use of "threat, intimidation . . . which vitiates the free will" to extract "confession" or "admission."
--Deprived of his liberty without the benefit, the safeguards of "due process of law," section 1 of the Bill of Rights cries out to guarantee, unconditionally; such that, the concession of recourse to the "Writ of Habeas Corpus" later (but often too late) may not be enough to assuage the agony from mortal wounds, impaled earlier by the injustice, the inhumanity of the deprivation ("human rights" violation?).
--Punished before he is guilty for fear that he should be guilty, evidenced by a mere legislative pronouncement of guilt (or "Trial by Legislature"), bereft of even a rudimentary hearing before an impartial tribunal competent to determine the question of guilt.
--Willingly accepted the "coercive sanction of contempt" punishment the Senate meted out to him, (without the usual theatrics and showmanship outbursts), ennobled perhaps by the thought that his mistreatment was the price one pays for having pleaded the valued privilege against self-incrimination or "testimonial compulsion"--"a protection of the innocent though a shelter for the guilty."
--Has not been charged nor convicted in Court for the punishment of an offense he has already served and may continue serving (possibly for life), if he remains tight-lipped, opting not to divulge anything self-incriminatory or disclose those received "in confidence" (as part of the official duties of a subordinate), in order to be worthy of the trust of, and obedient to orders emanating from, a superior.
Thus, the Executive Power of Control, of Command squares off with the Authority to Inquire in Aid of the Power to Legislate, a classic case of two separate, co-equal powers demanding recognition, and hence requiring obviously the third separate co-equal Power, the Judiciary, to intervene and resolve.
RIGHTS THE SOVEREIGN RETAINED
But these are Powers invoked that the Sovereign merely delegated to agencies of government it created. So, what of the RIGHTS the Sovereign retains and, under Sec. 21, Art. VI, expressly commands that: "The rights of persons appearing in or affected by such [legislative] inquries shall be respected"?
What is disturbing to me (and to other voiceless promdi "nit-pickers" out there) is: Why Gonzales, a Filipino citizen entitled (presumably) to the protection of the Republic, "innocent until ..." can just as easily be maltreated (the SPCA would have howled in protest if Gonzalez were a dog).
Yet, no one cared; it was as if it's OK to manhandle--if you're the "enemy," if you're the "friend" of "my enemy," if you're Gloria's "associate"; or what was it all about Sen. McCarthy--"Guilt by Association"?
BAN ON ATTAINDER
The abuses the Senate perpetrated are dangerously close to the dreaded Bill of Attainder, generally defined as "[a] legislative act that singles out an individual or group for punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties within the meaning of the Constitution."
For his part, Sen. McCarthy (joined by Rep. Martin Dies) claimed that a resolution by his HUAC sub-committee--or, in the case of fall guy Norberto B. Gonzalez, an act by just one House of Congress alone--that "singles out an individual" for "punishment without a judicial trial" by detention (or, in McCarthy's case, by "pitiless publicity and exposure" of suspected communists) is not a "bill"; neither would it qualify as a "legislative act." (See Irving Brant, The Bill of Rights: Its Origin and Meaning, Chap. 37 "Attainder by Congressional Committees," 1967.)
But the question by inescapable logic, looms: If Congress, both Houses jointly, is forbidden to pass a Bill of Attainder; can either House of Congress or a committee conducting an inquiry "in aid of legislation" or, for that matter, any legislative process, do what the whole Congress is forbidden to do? Can the Executive?
If "warrantless arrests," "arbiratry detentions" and "punishment without trial" are to be abhorred, the Court should address this anomaly at the next opportunity and revisit stare decisis (Arnault?), since the 1987 Constitution (and the 1973, but not in the 1935) already adds the command that "[t]he rights of persons appearing in or affected by such inquiries shall be respected."
The evil the prohibition seeks to avoid is clearly the deadly "attainder" a hapless victim is brutalized with--and not in the form or manner by which the injustice is handed down "officially" by whosoever, the Legislative or the Executive. The prohibition was meant to be a "positive denial" of any power to government on the subject of "attainder." For "a power expressly denied to the whole government, a single branch may not assume."
To the distraught victims, "punishment without a judicial trial" is the thorns of "terror" unleashed by whatever "rose" it is named, be it by way of a "bill" or by whatever the means concocted, or by the "legal" alibi foisted, as by declaring a "State of National Emergency," no different from the "New Society." Ask the few remaining survivors of the countless victims "attainted" under Martial Rule by an "ASSO" justified by an Executive, surreptitiously wielding Legislative Power usurped under Amendment No. 6 (1976) of the 1973 Constitution (still perfectly "legitimate," not to mention "legal and constitutional," right?).
Like what it was then, if one House of Congress can escape a constitutional ban by the mere expediency of straining taut the authority to inquire "in aid of legislation" to rise above the prohibition on "attainder" (as defined by sorrowful relatives of victims dying, not by legalists debating); there is no limit to what one House of Congress, or both Houses jointly, can do under that assumed authority--an "ex post facto" next? the "spin" editor of a muckraking tabloid later? a jueteng whistleblower?
LEGISLATIVE PRIVILEGE TO PUNISH
The Legislative possesses certain privileges "necessary and proper" for its preservation or existence, one of which is to "punish" ("suspend or expel") its own members for "disorderly conduct" under previously approved "rules of its proceedings"--although "punishment" is solely a judicial function.
That privilege to "punish" obviously extends to protection from "disorderly conduct" of nonmembers. The protection Congress invokes should be afforded by the passage of laws for proceeding against nonmember offenders, laws honoring the Sanctity of the Person, laws protecting rights the people as Sovereign retain.
The legislative, of course, deserves a certain degree of trust and respect. But that trust, that respect to be accorded must be earned; it cannot be extracted or coerced by a blatant "misrule of law"--by threats of a contempt citation or "punishment without trial"--from the very institution the Sovereign delegates the Power to Make Law.
RIGHT TO INFORMATION IN MATTERS OF PUBLIC CONCERN THE SOVEREIGN RETAINED
As regards the refusal of Gonzalez, a Cabinet Member, to furnish information concerning the Venable LLC Agreement, the right "to obtain information in matters of public concern" and to have "access to official records" (Sec. 7, Art. III), together with the State policy "of full public disclosure of all its transactions involving public interest" (Sec. 28, Art. II) are intended, no doubt, to benefit the common good.
But that "right," that "State policy," already "subject to such limitations as many be provided by law," may not be stretched into what would amount to a general authority to allow the invasion with impunity of the "other" rights individuals possess--retain jealously as Sovereign. Mind you, a State Policy (Sec. 11, Art. II) also proclaims that: "The State values the dignity of every human person and guarantees full respect for human rights"--friend or foe.
FREEDOM OF SPEECH, OF EXPRESSION, OF THE PRESS THE SOVEREIGN RETAINED
The assault on media by Gloria's PP 1017 enforcers should not be taken lightly. The view I hold strongly is that media should not just demand "no prior restraint"; it should insist instead on what the Constitution commands, absolutely, in no uncertain terms--"NO LAW SHALL BE PASSED ... " (Sec. 4, Art. III).
For in the words of James Madison in the Virginia Resolutions of 1798: "[T]he censorial power is in the people over the government, and not in the government over the people," the judicial concept of "calculated falsehood" and "actual malice" notwithstanding.
Elaborating on Madison's words, Dr. Alexander Meiklejohn (the U.S. Medal of Freedom Awardee, "the nation's highest honor," in 1963) wrote about what he calls "an activity of 'governing importance' within the powers reserved to the people and made invulnerable to sanctions by their agency-governments"--"the central meaning of the First Amendment"--by these illustrations:
"The principle here at stake can be seen in our libel laws. In cases of private defamation, one individual does damage to another by tongue or pen; the person so injured in reputation or property may sue for damages. But, in that case, the First Amendment gives no protection to the person sued. His verbal attack has no relation to the business of governing."
Meiklejohn adds: "If, however, that same verbal attack is made in order to show unfitness of a candidate for governmental office, the act is properly regarded as a citizen's participation in government. It is, therefore, protected by the First Amendment. And the same principle holds good if a citizen attacks, by words of disapproval and condemnation, the policies of government, or even the structure of the Constitution. These are 'public' issues concerning which, under our form of government, he has authority, and is assumed to have competence, to judge. Though private libel is subject to legislative control, political or seditious libel is not."
To buttress his point, Meiklejohn adverted to the analogy in the immunity members of Congress enjoy which provides (under Sec. 12, Art. VI of our 1987 Constitution) that: "No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof." He argued that: "Just as our agents must be free in their use of their delegated powers, so the people must be free in the exercise of their reserved powers"--otherwise the immunity afforded to mere agents exercising powers the Sovereign delegates to government would enjoy an altogether unfair, even irreverent, advantage.
These "reserved powers," Meiklejohn speaks of, which "he labeled powers of 'governing importance' are concerned, not with a private right, but with a public power, a governmental responsibility. Freedom of expression in areas of public affairs is an absolute. 'Public discussion of public issues,' he said, 'together with the spreading of information and opinion bearing on those issues must have a freedom unabridged by our agents. Though they govern us, we, in a deeper sense, govern them. Over our governing, they have no power. Over their governing we have sovereign power."
Meiklejohn explained that the people "are, it is true, 'the governed.' But they are also 'the governors.' Political freedom is not the absence of government. It is self-government ... The people do not delegate all their sovereign powers ... [the Constitution] speaks of a reserved power which the people have decided to exercise by their own activity ... [and that is] the voting power through which the people, as an electorate, actively participate in governing both themselves, as subjects of the laws, and their agencies, as the makers, administrators, and interpreters of the laws."
"The revolutionary intent of the First Amendment," Meiklejohn concludes, "is, then, to deny to all subordinate agencies authority to abridge the freedom of the electoral power of the people."
Meiklejon goes on to clarify the extent of this "Power": "It is essential to keep clear the crucial difference between 'the rights' of the governed and 'the powers' of the governors ... In the field of our 'rights,' each one of us can claim 'due process of law.' In the field of our governing 'powers,' the notion of 'due process' is irrelevant." Indeed, for how can the exercise of a mere delegated Sovereign power supersede the supremacy of the reserved power the Sovereign wields directly?
Acting as "the governor," the citizen in a republic is "the most important public official" and to be critical of "public servants" in government is a citizen's "public duty" in a democracy, Thus, the "right" to vote, the "right" to speak for or against the government, the "right" to peaceably assemble are some of the retained "rights" the Sovereign exercises individually or collectively under a reserved "Governing Power," the Electoral Power.
The Bill of Rights is, therefore, intended, not only to restrict and delimit the Powers the Sovereign delegated to government it created; but also, more importantly, to proclaim "Rights" the Sovereign retained, the "Governing Powers" the Sovereign reserved.
These quotations from Meiklejohn's "The First Amendment is Absolute" (1961) is cited in William J. Brennan, Jr., "The Supreme Court and the Meiklejohn Interpretation of the First Amendment," Harvard Law Review (November 1965). Justice Brennan (later Chief Justice) penned the "landmark" free speech decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
The concurring opinions in that case echo Madison's and Meiklejohn's thesis: "An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment" (Justice Black); "[t]he Constitution accords citizens and press an unconditional freedom to criticize official conduct" (Justice Douglas).
So, from Madison: "The censorial power is in the people over the government, and not in the government over the people"; from Meiklejohn: "Over our governing, they have no power. Over their governing we have sovereign power"; and that Power the Sovereign reserves to be exercised at its pleasure, immune from sanctions for criticism of official conduct, Meiklejohn calls--"THE ELECTORAL POWER."
In this light, Gloria's PP1017 enforcers should be warned to refrain from encroaching upon grounds sacrosanct to a Sovereign--The Electoral Power to choose or to remove, to establish or to dissolve government, to legitimize, to criticize.
RIGHT TO PEACEABLE ASSEMBLY THE SOVEREIGN RETAINED
Similarly distressing is Gloria's CPR (Calibrated Preemptive Respose). "The right of peaceable assembly is a right cognate to those of free speech and is equally fundamental," Justice William O. Douglas in "The Right of the People" (1962) quotes from a U.S. court decision. But the "traffic congestion [in walking and massing towards a peaceful gathering] is a legitimate concern of any city," he adds, and continues by saying that "[o]ne would not be justified in ignoring the familiar red traffic light ... to direct public attention to an announcement of his opinions."
In short, what of the nameless passengers in public transportation caught, unwillingly, in the middle of a monstrous gridlock? Unlike PU drivers, PU passengers, collectively, do not belong (as yet) to any militant group, NGO, or "Party-List." But unorganized they may be, these sacrificial lambs are citizens nonetheless. So, allow me to call them as belonging to a group named, say, "ANAK PASAHERO"--as in "ANAK PAWIS."
"Anak Pasahero" members also possess "rights" too (don't they?), like, for instance, the "right" to work to earn a living, without being penalized for arriving late at work. How about the "right" to education of those who wish to attend school--on time, or after work? I'm sure they have nothing bad to say against rally organizers; all they wish for is simply to be able to reach their respective destinations or appointments on time. Is this unquestionably legitimate desire (or right?) of fellow citizens to be PUNCTUAL too much to ask?
So, during the usual confrontation between rallyists and Gloria's CPR enforcers, who will represent the muted yet exasperated voices of "Anak Pasahero" whose members are mercilessly left to fend for themselves? Ignored for so long now, nobody seems to care for them at all. As citizens of the Republic, I suppose their anger, their frustrations are valid "grievances," entitled equally to be listened to and addressed.
If a "rights" compromise is to be agreed upon between rallyists seeking to "redress grievances" and Gloria's enforcers insisting on a "No Permit, No Rally" policy regarding, say, how to reroute traffic and avoid inconvenience to the public, that agreement should include, or take into consideration, the "rights," not only of the rallyists, but also of the silent, lamentably unrepresented "Anak Pasahero."
Fair enough, "Anak Pawis"? And reasonable still, if the requirement of having to secure a "permit" (actually, a "traffic" permit) is not to be employed by Gloria's PP 1017 enforcers as a pretext to deny or abridge the right the Sovereign retained to peaceable assembly--the same "right" the Filipino people invoked at EDSA in 1986 to wield their reserved Electoral Power to remove.
EXECUTIVE DUTY TO INFORM THE SOVEREIGN OF THE STATE OF THE NATION
Under Sec. 23, Art. VII, the President is obligated to "address the Congress at the opening of its regular session"--or to deliver the "State of the Nation Address" (SONA). So, that goes without saying that, at any time, if the President wants to address, not only Congress, but the entire Filipino people as well to inform them of the "State of the Nation," the President who wields the Executive Power is free to do so, duty-bound, in fact, in times of "lawless violence" or "rebellion."
For if the "State of the Nation"--as perceived by the President who is sworn to "ensure that the laws be faithfully executed"--be confronted with a "national emergency," why should legalists construe PP 1017, declaring the "State of the Nation" to be under a "National Emergency" unconstitutional? On the contrary, the proclamation should be viewed as a laudable performance or execution of a duty.
I think the controversy lies, not in the presidential authority to proclaim and to inform the Filipino people of the "State of the Nation," but in the "unlawful" implementation of orders issued under that proclamation. Newspaper reports, however, confirm that those who claim to having been arrested "warrantless" have at least been afforded the opportunity of "due process of law."
THE JUDICIARY--THE THIRD SEPARATE, CO-EQUAL POWER THE SOVEREIGN DELEGATED
Punishment, in ANY case, is too serious a matter to be entrusted to ANY group (particularly those who anoint themselves to be the "good" people and arrogate to themselves the prerogative to dictate who are to be the "bad" people to be tagged as the "enemies of the State") other than the judiciary.
And there is only ONE way, and no other, in which the "good" can dispose of the "bad," and that way is, by the Court after a trial conducted with all the judicial safeguards in place.
UNRESTRAINED BY THE RULE OF LAW
PP 1017 has been lifted--"officially," at least. Yet, an omnipotent Congress reigns supreme and continues to wield the assumed authority to order a "warrantless" arrest and the indefinite, arbitrary detention of Filipino citizens (even including foreign officials of a bank) under the guise of conducting an inquiry--"in aid of legislation."
Sadly, during the litany of horrors (or "terror") the Senate inflicted openly upon a "named" citizen of the Republic, the avowed champions of freedom and democracy, among many in the media and the opposition, simply looked the other way, eerily silent--Gonzalez was their perceived "enemy"--condoning instead the humiliation, the deprivation the fall guy Gonzalez endured.
Doubtless, it's not just the Executive, after all, that's "unrestrained by the rule of law," but the Legislative as well; so, why make a fuss over the "warrantless," the "arbitrary," the "dictatorial" repercussions under Gloria's PP 1017--only now?
SHOULD ADVOCACY OF A CAUSE BE SELECTIVE?
"He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself." --Thomas Paine
Justice Rutledge quoted Paine's line, dissenting in, In re Yamashita, 327 U.S. 1 (1946), to emphasize the Court's unwavering commitment to due process of law--the bedrock--that he viewed as having been compromised by the majority decision, and concluded forcefully:
"That door is dangerous to open. I will have no part in opening it. For once it is ajar, even for enemy belligerents, it can be pushed back wider, perhaps, ultimately for all."
To that, add this dying wish of St. Thomas More—King Henry VIII's "bosom friend" (later his "enemy") ordered beheaded by an "Act of Attainder" in 1535, canonized 1935:
"Yes, I'd give the Devil benefit of law, for my own safety's sake!"--"A Man of All Seasons"
Meanwhile, "Good Night, and Good Luck," McCarthyism lingers to haunt. It lurks clothed with that assumed congressional authority to "attaint" and, like the "sword of Damocles," hangs unsheathed ready to decapitate its next victim, the "enemies of the State," caricatured as the "bad," the "devil."
Yes, not just the Executive, either House of Congress can, a Congress the "Sovereign Will" enthroned to represent "We, the Filipino people." So, to the "public servants" the Sovereign delegated the Power to Legislate; go ahead, let the "Rule of Your Will" continue to prevail. Armed with the "legitimacy" of that assumed authority to "attaint"--"Thy Will Be Done" anyway.
But, please, I beg you--NOT IN MY NAME!
NOTE: ATTAINDER BY CONGERSSIONAL COMMITTES
I am quoting below the U.S. Supreme Court decision in WATKINS v. UNITED STATES, 354 U.S. 178 (1957) regarding "congressional attainder." (See also GROPPI v. LESLIE, 404 U.S. 496, 1972.)
"MR. CHIEF JUSTICE WARREN delivered the opinion of the Court ...
"Since World War II, the Congress has practically abandoned its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House. The sanction there imposed is imprisonment by the House until the recalcitrant witness agrees to testify or disclose the matters sought, provided that the incarceration does [354 U.S. 178, 207] not extend beyond adjournment. The Congress has instead invoked the aid of the federal judicial system in protecting itself against contumacious conduct. It has become customary to refer these matters to the United States Attorneys for prosecution under criminal law.
"The appropriate statute is found in 2 U.S.C. 192. It provides:[See also 193 and 194]
"Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. 45 [354 U.S. 178, 208]"
"In fulfillment of their obligation under this statute, the courts must accord to the defendants every right which is guaranteed to defendants in all other criminal cases ..."
GROPPI v. LESLIE (1972), reiterates the WATKINS view:
"Legislatures are not constituted to conduct full-scale trials or quasi-judicial proceedings and we should not demand that they do so although they possess inherebt power to protect their own processes and existence by way of contempt proceedings. The Congress of the United States, for example, no longer undertakes to exercise its contempt powers in all cases but elects to delegate that function to federal courts (52 Stat 942, 2 U.S.C. Secs 192-194)."
The U.S. law cited (52 Stat. 942) was enacted in 1857 yet. Brant (op. cit. at page 433) has this to say: "One of the greatest recommendations of this bill, said [Senator] Bayard, was that it transferred the power of punishment for contempt from Congress to a court of justice after judicial inquiry. 'I am aware,' said he, 'that legislative bodies have transcended their powers--that under the influence of passion and political excitement they have very often invaded the rights of individuals, and may have invaded the rights of co-ordinate branches of government.' if our institutions were to last, there could be no greater safeguard than to transfer that indefinite power of punishment to the courts of justice."
In any case, the "coercive sanction of contempt proceedings at the bar of the House" mentioned above--now deemed "abandoned" by the U.S. Congress--is what Section 18 (on "Contempt") of the "Senate Rules of Procedure Governing Inquiries in Aid of Legislation" similarly provides, the same provision the Senate invoked to detain indefinitely, and "attaint," fall guy Gonzalez.
To thwart any attempt in the future to transform congressional inquiry "in aid of legislation" into "congressional attainder," our own Congress should be respectfully petitioned to adopt the solution offered above in 2 U.S.C. 192 (identical to Sec. 150 Revised Penal Code), and let the separate, co-equal Court try, decide and punish after a "judicial" inquiry has been concluded.
This way, "[t]he rights of persons appearing in or affected by such [legislative] inquiries" the Constitution commands Congress "to be respected" are upheld (particularly the privilege against self-incrimination), in the same way that the cherished rights of a group now labeled the "bad" people, "enemies of the State"--the "Batasan 5" accused of rebellion--be equally honored, protected.
I conclude this Note by freely quoting Brant's (op. cit.) enumeration, among others, of "concerted attacks that put the very foundation of government at peril":
"... when the wrong people ask the right remedies"
"... when lawyers who have the courage and sense of professional duty to act as counsel of Communists, though hating their doctrine and despising their conduct, are assailed as sympathizers with the system they condemn"
"... when the rights of citizens lawlessly attainted by congressional committes, invite not only scurrility of extremists" but unconcern, apathy of the majority.
Add, finally, to attacks that imperil government, this definition of "Communal Reinforcement" by skepdic.com in relation to GARCI:
"COMMUNAL REINFORCEMENT is the process by which a claim becomes a strong belief through repeated assertion by members of a community ... independent of whether the claim has been properly researched or supported by empirical data significant enough to warrant belief by reasonable people ... [o]ften the mass media contribute to the process by uncritically supporting the claims ... and provide tacit support for untested and unsupported claims by saying nothing skeptical about even the most outlandish claims ... explains how entire nations can pass on ineffable gibberish ... how testimonials reinforced by other testimonials within the community of ... theologians, politicials, talk show hosts, etc., can supplant and be more powerful than scientific studies or accurate gathering of data by disinterested parties."
Is this not how the GARCI TAPE persists to be welcome as "breaking news" everytime?
So, "reasonable people" kindly go to and search the following definitions in the same website for your "illumination":
--Selective thinking is the process whereby one selects out favorable evidence for remembrance and focus, while ignoring unfavorable evidence for a belief.
--Confirmation bias refers to a type of "selective thinking" whereby one tends to notice and to look for what confirms one's beliefs, and to ignore, not to look for, or undervalue the relevance of what contradicts one's belief.
--Wishful thinking is interpreting facts, reports, events, perceptions, etc., according to what one would like to be the case rather than according to the actual events.
--Incontrovertible evidence is evidence introduced to prove a fact which is so conclusive, that by no stretch of the imagination can there be any other truth as to that matter. Examples: a fingerprint ... a DNA test.
This is relevant to the GARCI controversy since every Certificate of Canvass bears the imprint of the right hand thumbmarks (aside from the signatures) of each the three members of the Board of Canvassers of each constituency.
Rather than listen to testimony (mostly hearsay) of partisan witnesses, Congress should have summoned these board members to authenticate the figures and words (or corrections, if any) in the certificates of canvass wherein their "incontrovertible" right hand thumbmarks appear.
ADDITIONAL NOTES:
01. IS PEOPLE POWER THE ELECTORAL POWER THE SOVEREIGN RESERVED, RETAINED?
To the question of whether the Electoral Power is the same Power the Filipino people wielded at EDSA in 1986, now renamed aptly People Power, the writings of John Locke (Of Civil Government, Chapt. XIV, Prerogative) offers a clue:
"They [the people] reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, by a law antecedent and paramount to all positive laws of men, whether they have just cause to appeal to heaven ..."
W.T. Jones (Masters of Political Thought, Vol. II, p. 200, 1964) elucidates:
"By this pious phrase, an "appeal to heaven," Locke does not mean the people passively to wait the operation of divine justice on their behalf. He means that, when no earthly judge exists before whom they can take their case (i.e. when no constitutional channels of change exist), they must put their trust in heaven and, believing in the rightness of their cause, appeal to arms."
The Locke-inspired American Declaration of Independence (1776) proclaims that the exercise of the "Electoral Power" is a "right," a "duty":
"... Governments are instituted among Men deriving their just powers by the consent of the governed--that whenever any form of Government becomes destructive of these ends [earlier enumerated], it is the Right of the People to alter or abolish it ... it is their Right, it is their Duty to throw off such government and to provide new Guards for their future security ..."
"People Power" is, therefore, an exercise of the supreme "Electoral Power" Meiklejohn coined from Madison's concept of "Censorial Power" and referred to as "an activity of governing importance, a power Locke viewed as "a law antecedent and paramount to all positive laws of men" or to constitutions, the Filipino people as Sovereign reserve to choose or remove those chosen, to create or dissolve government created, to promulgate or rewrite a Constitution ordained and provide new safeguards; it is a Power "which belongs to all mankind" the people jealously forever retain and do not delegate or relinquish to any government they establish.
In 1986, with "no constitutional channels of change" left open and "believing in the rightness of their cause," the Filipino people opted to wield the Electoral Power they reserved to Remove, to make their "appeal to heaven," but not an "appeal to arms" as Locke;s writings exhorted.
Rather, still placing "their trust in heaven" and in prayers to the Almighty, the Filipino people gathered for a "peaceable assembly" at EDSA and dutifully exercised their reserved ELECTORAL POWER to demand the immediate removal from office of Marcos, the dictator, and to bestow, by that Power invoked, "Sovereign Legitimacy" to Aquino's assumption to the Presidency as the winner in the 1986 presidential snap election held weeks earlier and her dissolution of the 1973 Constitution.
02. LEGISLATIVE POWER TO IMPEACH AND REMOVE THE SOVEREIGN DELEGATES
Kin to "attainder" (to legitimize beheadings and check Royal Prerogative), the Power to impeach, "try and decide" the "removal from office" of the Executive is an extraordinary authority the Sovereign (who reserves the Electoral Power to choose, to remove--aptly renamed "People Power"--Locke refers to as "a law antecedent and paramount to all positive laws of men," or to Constitutions) delegates to the Legislative for one specific purpose only--to shorten the tenure of the incumbent impeached by a "removal from office."
Nonetheless, the Sovereign still leaves to the Judiciary the "prosecution, trial, and punishment" of the officer impeached--or to the Court to decide the "CLOSURE" of acts politicians (not necessarily the law) define to be "impeachable." In fact, the non-voting Chief Justice presides to paint a "judicial" color to what Alexander Hamilton in the Federalist No. 65 (1787) refers to as a trial "which may with peculiar propriety be denominated POLITICAL" (all caps as in original).
A "well-constituted court for the trial of impeachment," Hamilton clarified, "is an object not more to be desired than difficult to be obtained in a government wholly elective." Often, he adds "The prosecution of them will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the preexisting factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt."
And, "from that circumstance," Hamilton continues, "the most cunning or the most numerous faction" in an "elective" legislative "can hardly be expected to possess the requisite neutrality towards those whose conduct may be subject of scrutiny."
Well, that's how Hamilton, a framer of the U.S. Constitution and one of the authors of The Federalist Papers (a "classic in American political theory"), defined--and defended as "necessary"--the Impeachment Clause, a description that still sounds starkly familiar to us today, since a removal is to be decided "by the most cunning or the most numerous" rather than "by the real demonstrations of innocence or guilt."
03. WHEN DOES AN OFFENSE BECOME IMPEACHABLE?
Section 2, Art. XI mandates that: "The President ... may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
The phrase "may be removed from office" signifies that a verified complaint of an impeachable offense to be deemed impeachable should be initiated and tried while the Executive is still "in office" serving the six-year presidential TERM OF OFFICE--and certainly NOT after the term has lapsed or terminated.
For how could the President be "removed from office" if the President is already out of office, having served the full six-year TERM OF OFFICE?
The phrase likewise means that--in order to be impeachable--any allegation of "culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust" must be committed by the President DURING the presidential TERM OF OFFICE, while still being authorized to exercise Executive Power--and certainly NOT after the six-year TERM OF OFFICE has lapsed or terminated, and surely NOT before assuming the Office of President.
For how could the incumbent be held liable to be "removed from office" for offenses committed before assuming office as Presideng or after having already served the prescribed TERM OF OFFICE?
Then Vice-President Gloria succeeded to the Presidency to serve President Estrada's unexpired term which ended at noon of 30 June 2004.
Gloria was allowed to run for President during the 2004 elections. She was "proclaimed elected," having received the highest number of votes in the certificates of canvass prepared by the board of canvassers of each province and city, and assumed the Office of President beginning at noon 30 June 2004--as successor to herself, the incumbent President--for a NEW, SECOND six-year TERM OF OFFICE.
What this means is that, the alleged election fraud which is now the subject of so much controversy, cannot be regarded as a valid impeachable offense for Gloria to be "removed from office" during her NEW--or SECOND, now current--six-year TERM OF OFFICE, since the factual basis of the alleged offense committed occurred at the time Gloria was still serving her FIRST TERM OF OFFICE as President which already expired at noon 30 June 2004.
For how can Gloria be "removed from office" during her SECOND TERM OF OFFICE for an alleged impeachable offense committed during her FIRST TERM OF OFFICE as President that has already lapsed or expired on 30 June 2004?
Is the Supreme Court decision in Aguinaldo v. Santos (212 SCRA 768, 1992) relevant?
Not only that, the case of Gloria's classmate William Jefferson "Bill" Clinton is also pertinent and instructive.
Bill faced a lawsuit filed against him by Paula Corbin Jones during his incumbency as U.S. President for sexual harassment which occurred while Bill was still Governor of the U.S. State of Arkansas. The evidence-gathering process in the Jones case ultimately uncovered Bill's affair with White House intern Monica S. Lewinsky. It was this relationship with Monica and allegations of perjury in a deposition in Jones case--with Bill now U.S. President--that fueled his impeachment trial, and NOT his earlier tryst with Jones as Arkansas Governor (See Clinton v. Jones 520 U.S. 881, 1997).
No one, of course, is above the "Rule of Law." And so, like classmate Bill (who eventually paid $850,000 to settle the Jones sexual harassment suit), Gloria is still "liable and subject to prosecution, trial and punishment acording to law" for offenses she allegedly committed during her FIRST TERM OF OFFICE that ended 30 June 2004--but NOT, to repeat for emphasis, to be impeached and "removed from office" during her SECOND TERM OF OFFICE.
04. THE INSIGNIFICANCE OF PULSE ASIA AND SWS SURVEYS SPINNED AS SIGNIFICANT
The Philippines is proclaimed as a "democratic and republican state"; but it's constitution allows the President to be chosen by less than an absolute majority (fifty plus one) or by a MINORITY--Ramos (21%); Estrada (39%); Gloria (40%) of total votes cast.
Arroyo, the INCUMBENT running for a new mandate in May 2004, garnered 40% of the votes cast, while the other 60% (100% minus 40%) voted for the six other presidential candidates.
By opting to vote for candidates other than Arroyo (the "incumbent," to repeat), the 60% obviously wanted to change the "incumbent" seeking re-election for another.
That was May 2004.
It's now, "the first quarter of 2006"; and SWS tells us in a recently-released survey that 48% say that "It is good for the country if PGMA will be removed by means of a People Power."
But 60% already wanted to kick her out in 2004. Now, two years later in 2006, 48% want her "removed by means of People Power" (or "kicked out").
So, the data to compare with are: The solid 60% in 2004 (with no "undecided" votes cast) and a lower 48% in 2006 against GMA.
That's a spread of 12% (60% minus 48%) in two years.
In an earlier survey, Pulse Asia tells us that fully 65% want Gloria to quit in 2006; but, as early as 2004, 60% (100% minus 40%) did not want her to be President in the first place, reflecting a difference of only 5% (65% in 2004 election minus 60% in 2006 survey).
At 3% margin of error, is the recent Pulse Asia survey result showing a difference in preference (during the 2004-2006 time frame) of only 5% against Gloria significant? Really, Pulse Asia?
Is SWS (and Pulse Asia earlier) both ignoring altogether the relevance or significance of what contradicts its "mind-set"; its "selective thinking"; or its "confirmation bias," perhaps?
05. CONGRESS, THE ONLY LEGITIMIZER AUTHORIZED TO EFFECT A CLOSURE ON GARCI AND GLORIA'S LEGITIMACY
Sec. 4 (4th par.), Art. VII states that:
"The returns of every election for President and Vice-President, duly certified by the board of canvassers ... shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall ... open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.
"The person having the highest number of votes shall be proclaimed elected ..."
So, Gloria did not proclaim herself President; Congress "proclaimed elected" Gloria. Hence, it was Congress that "legitimized" Gloria's assumption to the Presidency--and her alleged "cheating."
In reality, not just Gloria, but Congress should bear the blame as well for their negligence, dereliction in the performance of the duty entrusted to "canvass the votes."
Congress, THE LEGITIMIZER, particularly the Senate President to whom the "certificates of canvass is to be "directed to," should be ashamed of their dereliction, apologize to the Sovereign for their negligence, and rectify their mistake.
The congressional Power to Proclaim Elected the President carries with it the Power to Review (as in "to appoint" carries also "to remove") for the purpose of either affirming or rescinding that proclamation issued.
The Power to Review the Proclamation can be implied from, or is incidental to, the Power to Proclaim Elected, since Sec. 4 (6th par.) cited specifically provides that:
"The Congress shall promulgate its rules for the canvassing of the certificates."
The power to promulgate "rules for the canvassing" obviously carries with it also the power to review the manner of canvassing.
Not only that, Sec. 4 (5th par.) further suggests that the additional authority to Congress to "break a tie" may justify resort to the power to review:
"... but in case two or more shall have equal and highest number of votes, one of them shall be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately."
Section 30 of R.A. 7166 (Synchonization and Electoral Reforms) implements the constitutional duty of Congress to canvass under Sec. 4, Art. VII cited earlier:
"Congress shall determine the authenticity and due execution of the certificate of canvass for President and Vice-President as accomplished and transmitted to it by the local boards od canvassers, on a showing that:
"(1) each certificate of canvass was executed, signed and thumbmarked by the Chairman and members of the board of canvassers and transmitted or caused to be transmitted to Congress by them;
"(2) each certificate of canvass contains the names of all of the candidates for President and Vice-President and their corresponding votes in words and in figures; and
"(3) there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and in figures in the certificate."
The authority to review the manner in which Congress performed its "determination of the authenticity and due execution" of the certificates of canvass is NOT to be confused with that in a contest "relating to the election, returns and qualifications of the President and Vice-President," which the Constitution confers solely upon the Supreme Court (sitting as PET).
Legalists can argue that Congress is devoid of that authority to Review; but the public interest towards the "closure" to questions concerning Gloria's "legitimacy" as President demands that any doubt raised be resolved (please!) in favor of recognizing that authority.
For no congressional proclamation; no "legitimacy" to Gloria's presidency.
06. THMUB PRINTS DO NOT LIE
In conducting the review, Congress should bear in mind this time around that fingerprints (like DNA) never lie.
Each certificate (prepared in 7 copies with one already with PET) bears the incontrovertible "right hand thumbmarks" of the three members of the board of canvassers of each constituency along with their signatures.
Signatures can easily be faked or forged; but thumb prints do not lie.
Instead of calling Garci, Ong and the rest of the partisan hustlers who were not even present during the actual voting and canvassing in the provincial and municiapl levels, Congress should summon all three members of each board of canvassers (career officers) assigned to all contested constituencies (provincial and city first, municipal boards later).
Let experts (independent and from the COMELEC) verify the authenticty of the certificates and thumb prints and let the board members attest to the correctness of the words and figures they wrote in the certificates.
Having done that, proceed to compare everything affixed or written in all 6 (since 1 is with PET) copies available for each certificate in front of the board members in public view of those interested to witness the review of the canvassing.
So, let Congress, the ONLY constitutional "legitimizer" (and no other entity), review the "legitimacy" of that proclamation in the manner proposed above so that the Filipino People can look forward to a finality--the "closure"--of the longest "election period" in world electoral history.
After this, ONE TERM ONLY, NO RE-ELECTION, NO DYNASTY, and INELIGIBILITY OF PERSONS WHO EVER OCCUPIED ELECTIVE POSITIONS LOCAL AND NATIONAL, INCLUDING BARANGAY, PARTICULARLY THE ELECTIVE INCUMBENTS, FROM THE TIME THE PHILIPPINES BECAME A REPUBLIC ON 04 JULY 1946.
Lord, please, bless the Filipino People with a government without the MARCOSES, ARROYOS, ESTRADAS, DRILONS, ANGARAS, DE VENECIAS, LACSONS and the rest of ALL the TRAPOS who, collectively, destroyed this nation and give the remaining 80 million promdis the opportunity to serve.
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