POSTSCRIPT / March 25, 2004 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Brandy ad stirs storm over its sexual pitch

SICK ALCOHOL AD: We cheer on former Mayor Fred Lim for tearing out the offensive element of that brandy billboard on Roxas Blvd. asking “Nakatikim ka na ba ng kinse anyos?”  (“Have you tasted a 15-year-old?”).

The marketing managers of that product and their advertising agency would be dishonest to claim it never occurred to them that the question would be read by most Filipinos in the context of sex and 15-year-old girls.

Precisely that line was used to catch attention with its double-entendre. Tama na po yang kunwari di ninyo alam! (Stop feigning ignorance.)

Why don’t the vendors of that alcoholic drink ask their mothers, wives and especially their teenaged daughters what they think of the ad?

Surely there must be better ways to sell intoxicating drinks.

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STILL AMERICANS: Our inbox is bursting with reactions to our Postscript of 16March2004 on the petition of seven Filipinos for the US embassy to issue them US passports, as they are, according to them, Americans.

Born here before July 4, 1946, when the Philippines was still US territory, they claim they are Americans under US law and the principle of jus soli. As they have not gone through the processes specified by law stripping them of their US citizenship, they must still be Americans.

The seven petitioners — Domingo T. Arong, Joseph M. Baduel, Augustus L. Momongan, Dennis B. Cuizon, Jose M. Caminade, Fermin T. Rotea and Vicente F, Gambito of Cebu — said the US embassy has not responded.

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EARLIER CASES: Reacting, Elbert G. Friend of BF Homes, Parañaque, said in an email:

“According to US courts, all Filipinos born before July 4, 1946, were non-citizen American nationals. This is also the official position of the US government.

“However, the US government claims that the US Congress, acting on its constitutional power to pass ‘needful rules’ for the Philippine Islands, legally divested the Filipinos of their American nationality through Section 14 of Tydings-McDuffie Law, otherwise known as the Philippine Independence Act of 1934.

“In 1985, Atty. Elly Velez Pamatong (the same Pamatong disqualified by Comelec as a nuisance presidential candidate) asserted that Section 14 of Tydings-McDuffie Law was, and still is, null and void ab initio in that it divested American nationals of their nationality without due process of law.

“He said that American nationals in the Philippines should have been individually served an order to show cause why their American nationality should not be divested from them; or the Filipinos should have been granted a reasonable time within which to preserve their US nationality.

“Failure to do this, Pamatong claimed, rendered Section 14 of Tydings-McDuffie Law null and void because it is a bill of attainder (a legislative act that inflicts punishment without a judicial trial). Therefore, all Filipinos born before July 4, 1946, are still US nationals.

“The US nationality for Filipinos is in limbo because of an adverse development wherein the Judge of the Northern District Court in San Francisco ordered Pamatong, counsel for the plaintiffs, to prove that all plaintiffs are residents within the jurisdiction of the Court.

“Pamatong said even if the case is thrown out, a new case could be refiled and pursued to its logical consequences.

“In 1990, the Central District Court of California dismissed a citizenship suit filed by a Filipino lawyer demanding that those born in the Philippines between Dec. 10, 1898, and July 4, 1946, be recognized as US citizens.

“Gamaliel G. Bongco, plaintiff, promptly filed a notice of appeal. Bongco invoked the 14th amendment to the US Constitution that adopted the principle of jus soli (the place of birth determine one’s citizenship).

“The judge ruled, however, that the Treaty of Paris provided that Congress would determine ‘the civil rights and political status of the native inhabitants of the Philippines’ and the Philippine Bill of 1902 in turn merely considered the Filipinos as ‘non-citizen nationals’. Hence, plaintiff was not a citizen.

“Bongco insisted that in case of conflict between the Constitution and a treaty or statute, the higher law prevails.

“In a close 2-1 decision in 1994, the 9th US Circuit Court of Appeals rejected a claim of US citizenship by seven Filipinos who faced deportation proceedings in Hawaii on the case of Rabang vs. INS No. 91-16125.

“The recent bid of another seven Filipinos is destined for a similar fate in the lower courts until it reaches the US Supreme Court.”

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ADVERSE CITATIONS: From Santiago, Chile, former ambassador Rodolfo A. Arizala emailed:

“The petitioners have presented a very interesting legal theory and I hope that they would be successful in claiming they are American citizens. They would have, nevertheless, to overcome the opinion of the US Attorney General that:

“The undisputed attitude of the executive and legislative departments of the Government has been and is that the native inhabitants of Porto Rico and the Philippine Islands did not become citizens of the United States by virtue of the cession of the Islands by Spain by means of the Treaty of Paris. It was not the intention of the commissioners who negotiated the treaty to give those inhabitants the status of citizens of the United States. . .” (Ops. Atty. Gen. 370 January 23, 1901, Moore, Digest, III, p. 317).

“Also, the decision of the Court in Goetze v. United States /_182 US (1901) 221_/ wherein it was held that the Philippines was a foreign country, and that the Treaty of Paris did not change that status. Nor did the treaty make the inhabitants of the Philippines citizens of the United States.”

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CUSTOMS CASE: Another reader, Benjamin Subido, said: “There is an interesting footnote in US history for those born before July 4, 1946, claiming US citizenship. It is found in 14 Diamond Rings v. U.S. [183 U.S. 176; 46 L. Ed. 138; 22 S.Ct. 59 (1901)].

“A soldier from the Philippine-American war brought in 14 diamond rings into the US. Customs seized the items as being contraband (unpaid duties). The soldier claimed that the Philippines being a territory of the US under the Treaty of Paris is not a foreign country and therefore, the diamond rings were exempt from import duties.

“In a 5-4 decision, the US Supreme Court, through Chief Justice Fuller, ruled that the US never intended to incorporate the Philippines within its territory and grant its inhabitants US citizenship.

“If one justice had swung his vote, it could have paved the way towards the Philippines’ becoming a territory, a precondition towards statehood. A quirk of fate that an insignificant customs case led to the Philippines becoming a free and independent state.”

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MOM’S BIRTH PAPERS: Ted Sanchez of 1936 San Anselmo St., Fairfield, CA, said:

“The petitioners are right, because at that time we were under the Commonwealth. To support this statement, I can provide them with a copy of the birth certificate of my wife who was born on March 20, 1936.

“Her original birth certificate heading states: ‘Commonwealth of the Philippines, Municipality of Mabalacat.’ If those seven Filipinos need a copy to support their claim that we were indeed under the Commonwealth (American territory), I will be happy to send them a copy.’ ”

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LIKE PUERTO RICO: Emer D. Cato of Woodside, NY: “Those petitioners have the legal rights to claim US citizenship just like Puerto Ricans who are considered as nationals and are accorded citizenship privileges except to participate in elections in the US.

“Since the Philippines was once upon a time a Commonwealth of the US, then it stands to reason that those born during that time are considered as US citizens.

“Lawyer Elly Pamatong (yes, the same) filed a class action suit in California, but it seems that it was tossed out by the court.”

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(First published in the Philippine STAR of March 25, 2004)

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