Consider entire Earth as One Family!
[In re
Sergio C. Garcia case 04-09-2013]
As a lawyer from India, on a
temporary visit to the United States, I was very glad to have the
occasion to attend the hearing at admission, by the Supreme Court of California
sitting at San Francisco, of the In re Sergio C. Garcia case
(4 September 2013) that deals
with the important matter of whether an immigrant not yet naturalized as a US
Citizen can be granted a professional license to practice law in the Courts of
California. It seems to be an uncontested truth and settled law that though the
California Bar certifies an applicant-lawyer as qualified to practice law, it
is only the Supreme Court which has the power to grant him the professional
license to do so. As such the crucial question was whether the Supreme Court
has the power to grant professional license to practice law to a Mexican
immigrant of longstanding residence in United States who has not yet been
naturalized by grant of US Citizenship and when the federal law explicitly bars
any professional license being granted by any state agency to such immigrants
absent any state legislation to the contrary. It was also an admitted fact by
all parties concerned that there is as of date no law enacted by the California
Legislature enabling such grant of professional licenses despite the general
federal bar.
I found the seven judges of the
Supreme Court – I was happily surprised to find a majority of judges including
the Chief Justice to be females – quite intelligent, inquisitive, pro-active
even, welcoming and causing a lively discussion on the various facets of law
concerning the subject though not very much impressed by the various counsels
representing the petitioner or respondents who appeared not able to rise to the
peak levels that this historic case demanded. Especially I was irked by both
the Court and the Counsels not treading upon the precious constitutional rights
of the petitioner and various constitutional questions involved in the matter
and the discussion seemed a bit hyper-technical focusing mainly on the ambit
and impact of the federal law, especially Section 1621 of US Code, and as to whether
Supreme Court would be covered under the definition of State Agency specified
in that Section.
The Constitution of California is very clear on some basic rights
of ‘persons’ – obviously including non-citizens too. The right to life, liberty
and property is one such fundamental right that is guaranteed to all persons by
the people of California, and I did not find the term people defined in the
Constitution but I don’t think it could be limited to citizens only. Then it
seems to be a settled law in the United States, or at least in several states,
that professional license is itself a kind of property right. For example,
Nevada Supreme Court, categorically holding that professional license is
property, had this to say: “That a professional license is property and is
protected by the Constitution is recognized by both Nevada law, State ex rel.
Kassabian v. State Bd. of Medical Examiners, 68 Nev. 455, 235 P.2d 327, 331
(1951), and by federal law, Schware v. Bd. of Bar Examiners, 353 U.S. 232,
238-39, 77 S.Ct. 752, 755-56, 1 L.Ed.2d 796 (1957). The Board could not,
consistently with the due process clause, deprive Mishler of his license.” [896 F.2d 408, 58 USLW 2514, Alan J. MISHLER,
M.D., Plaintiff-Appellant v. NEVADA STATE BOARD OF MEDICAL EXAMINERS; Robert C.
Clift, M.D., et al., Defendants-Appellees, para 7]. In this background, the constitutional right granted to persons
to own property is remarkable as Section 20 of Article 1 [Declaration of
Rights] clearly says: “Noncitizens have the same property rights as citizens.”
Further, Section 1 of the same Article 1 categorically declares that – “SECTION 1. All people are by nature free and independent
and have inalienable rights. Among these are enjoying and defending life
and liberty, acquiring, possessing, and
protecting property, and pursuing and obtaining safety, happiness, and
privacy” (emphasis mine). I am sure nobody doubts that a professional
license is a means to acquire and possess property, even if one may doubt if it
is property by itself. Also, the unequivocal declaration that “SEC. 7. (a) A person may not be deprived of life,
liberty, or property without due process of law or denied equal protection of
the laws…” in Article 1 points to
the inalienable right to life, and life does not mean mere animal existence.
The right to livelihood is an indispensable part of the right to life and a
person cannot be deprived of such right by any procrastinating methods and
practices of law. The Constitution of California is neither limited by nor is in
contradiction to the federal constitution of US which also grants several such
rights to all persons – not just to citizens only. A broader and liberal
discussion with such constitutional perspectives would do a lot more justice to
the cause the Supreme Court is seized of.
Here it has to be borne in mind that superior courts – especially
the Supreme Court – are not just courts of law but more as courts of justice
and courts of equity. Also, though doubtless they are i.e. judiciary is a
branch of the State [or of Government], by no means they could be trivialized
as state agencies. Then, the universal ideal of fraternity of human beings
transcends all the trammels of national law and at least the superior courts
are expected to rise to that level. It would be instructive for all of us to
keep in mind the wise and emphatic declaration in the famous ancient Sanskrit
Sloka [verse] – “ayam nijah paroaveati
gananaam laghu cheatasaam, udaara charitaanaam vasudhaiva kutumbakam” [“to
consider this is mine, that is others etc. are the deeds of small-minded
persons, for liberal and broadminded characters the entire earth is one family”]
– and try to act up to the achievement of this great ideal.
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