- We are well aware of the US constitutional arguments. Dr. Lin’s legal team has done extensive research on which constitutional provisions do actually apply in a US overseas territory such as Taiwan.
In our court documents, this has been stated as follows:
[color=#4000BF]RELIEF REQUESTED: Considering that the judicial branch has the authority and obligation to preserve the Constitutional rights of persons subject to the jurisdiction of the United States, whether or not such persons are United States citizens, non-citizen nationals, or aliens, Plaintiffs/Appellants respectfully pray that the Court enter an Order declaring that:
Plaintiffs/Appellants, by virtue of living in a territory subject to the jurisdiction of the United States,
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have fundamental rights under United States laws, including the United States Constitution.
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have the Fifth Amendment right and Fourteenth Amendment right against deprivation of life, liberty, or property, without due process of law.
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have the Eighth Amendment right against cruel and unusual punishment, including deprivation of a recognized nationality and being “stateless.”
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have the First Amendment right to petition the government for a redress of grievances.
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have the Fourteenth Amendment right of equal protection of the laws, etc.
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may not be deprived of the Fifth Amendment right to travel (including the right to apply for a passport) without due process of law, which requires a notice and a hearing. [/color]
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We are well aware that just because Taiwan is subject to the jurisdiction of the United States, it is not “part of” the United States. However, the recent Guantanamo cases in the US Supreme Court have confirmed that some constitutional rights apply even in such circumstances.
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In IceEagle’s analysis, there are often references to the “Republic of China,” but please be aware that this terminology is not recognized under the Taiwan Relations Act or under current US State Dept. guidelines for dealing with Taiwan. In other words, in the eyes of the US Executive Branch, there is no country called “Republic of China.” HENCE, when IceEagle affirms that ROC institutions are legitimate in the eyes of the US … I would say that it is exactly this viewpoint which can be seriously challenged.
That the US Congress has the right to recognize the ROC’s current administration over Taiwan as lawful is incorrect however, because foreign relations are decided upon by the US President.
In Dr. Lin’s analysis, it is exactly this “presumption of ROC legitimacy” which must be challenged in the US court system, in order to fully protect the civil rights of native Taiwanese people. Dr. Lin’s case is a very serious legal challenge to the current “ambiguous situation.”
- The District Court already ruled on March 18, 2008, that native Taiwanese people have been essentially stateless for nearly 60 years. (It is recognized that Japan had sovereignty over Taiwan until April 28, 1952, and native Taiwanese people were of the Japanese nationality up until the Spring of 1952.)
As long as it can be proved that the US is the principal occupying power of Taiwan (clearly stated in SFPT Article 23(a) and confirmed by Article 4(b)), then the “US national” determination is automatic under the US immigration statutes. If you want more details, you should read the Nov. 3 and Dec. 17, 2008, court briefs by the Plaintiffs/Appellants.
- IceEagle stated that "The Republic of China, as one of the Allied Powers, worked with the US to take Taiwan away from Japan and restore it to the sovereignty of the ROC . . . . " but Dr. Lin does not agree to this. All military attacks against Taiwan in the WWII period were conducted by US military forces. The ROC didn’t participate, nor was Taiwan in the “China Theater.”
The USA was the conqueror of Taiwan, hence it would be wholly expected that the United States would be the principal occupying Power over Taiwan. The notion that there was a transfer of Taiwan’s sovereignty to China on the Oct. 25, 1945 date of the surrender ceremonies is merely Chinese propaganda. None of the Allies had any such recognition.
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IceEagle stated that “Although the intent was for the US and Japan to sign a treaty to formally restore sovereignty of Taiwan to the ROC, this failed to come to pass because of the rise of the PRC on the mainland.” We believe that it is more complicated than this. Most importantly, by moving its central government to occupied Taiwan in December 1949, the ROC has become a government in exile. The Allies were obviously not going to award a “territorial cession” to a government in exile.
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IceEagle stated “. . . the US has lawfully allowed the ROC to administer Taiwan.” Dr. Lin’s court case is serving to challenge this assumption. Dr. Lin feels that the ROC’s continuing administration of Taiwan after April 28, 1952 is a gross miscarriage of justice. Taiwan was not awarded to the ROC in the SFPT. (The Treaty of Taipei is merely a subsidiary treaty under the SFPT, and did not award Taiwan to the ROC either.)
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Dr. Lin is arguing that the native Taiwanese people are eligible for certain fundamental rights under the US Constitution, and the recent Guantanamo rulings also support such an interpretation. In terms of “US jurisdiction,” Taiwan’s status is on a higher level than Guantanamo. Under the SFPT, it can be successfully argued that Taiwan has no government, because the ROC is not recognized as the legal government of Taiwan. The US Executive Branch does not recognize the ROC as a “state” in the international community.