Friday, September 6, 2013

Consider entire Earth as One Family! - my latest article from San Francisco, US.

Consider entire Earth as One Family!
[In re Sergio C. Garcia case 04-09-2013]
- I. Mallikarjuna Sharma§
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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§ Lawyer practicing in High Court of Andhra Pradesh, Hyderabad, A.P., India; now on temporary visit to the US; C/o Mr. Paul Gilbert, Board Member (Mobile: 6502306240), ACLU-Mid Peninsula Unit California, at Mountain View - 94043 (CA).