POSTSCRIPT / September 26, 2002 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Can state yield citizen’s rights sans his consent?

QUESTIONS ON S.C. RULING: As a layman, this observer is not comfortable with the Supreme Court ruling that a Filipino being sought by American authorities and who has not been arraigned before a competent US court should be denied bail for alleged crimes that are not at all heinous.

The object of the SC decision just happens to be a congressman, Manila Rep. Mark Jimenez (aka Mario Batacan Crespo), but that is immaterial to his enjoyment of the right to bail. The Constitution guarantees such a right for “all persons” in the country with a few specific exceptions.

Read Section 13 of Article III (Bill of Rights) yourself: “All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.”

Jimenez is not charged with a crime punishable with life sentence. The crime attributed to him in Washington was his allegedly giving $40,000 to Democratic Party candidates reportedly including then President Bill Clinton.

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PRESUMPTION OF INNOCENCE: Our Constitution also provides in Section 14 of the Bill of Rights that “in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.” As Jimenez has not been arraigned, much less convicted, he must be presumed innocent of alleged offenses arising from his involvement in US politics.

If ordinary citizens are protected by the Bill of Rights, why would the State be less protective of an elected representative of the people? Section 1 of the Bill of Rights makes no distinction: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied equal protection of the laws.”

We are calling attention to these points, citing the Constitution no less, because the handling of the Jimenez case by our courts could set a dangerous precedent. Political considerations should not be allowed to intrude into our appreciation of the rights of an individual, whoever he is, covered by the Bill of Rights.

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WAIVING CITIZEN’S RIGHTS:One basic question bothers us: Can or must the State arbitrarily waive or surrender to another State the rights of a citizen without his consent?

In the same way that the State exacts allegiance from us citizens, we citizens expect in return that the State protect us from undue harassment. We are violated when the State betrays us and delivers us to a foreign power in wanton disregard of our basic rights.

At this point, citizen Jimenez is just a suspect, has not been arraigned, is not yet under the jurisdiction of an American court, much less convicted. He is presumed innocent and is entitled to reasonable bail.

Eight of the 14 learned justices of the Supreme Court think otherwise. Ordering the cancellation of Jimenez’s P1-million bail, the majority in the tribunal appears to have started to hew to the US line that any Filipino it wants extradited must be surrendered to it posthaste.

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CONVENTION ON ENVOYS: On the matter of our government possibly declaring a foreign diplomat persona non grata (go to Archive for POSTSCRIPT of Sept. 24, 2002), former Ambassador Rodolfo A. Arizala contributed this citation from an international convention to explain the procedure:

“Article 8 of the 1961 Vienna Convention on Diplomatic Relations to which both China and the Philippines along with other countries are signatories, provides:

“1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission.”

It is clear from this provision that if a receiving State would like to notify that the envoy of a sending State is persona non grata, it could be done without having to explain its action.

As we said last time in discussing the threat of Justice Secretary Hernando Perez to declare Chinese Ambassador Wang Chungqui persona non grata in preparation for expelling him, we can just do that — if indeed we want to do it.

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IF NO ACTION IS TAKEN?: What happens if the sending State (China in the case cited) despite the notification that its envoy is persona non grata refuses or fails to carry out its obligations under paragraph 1 of Article 8 of the Vienna Convention?

Arizala told us of Paragraph 2 of the said Article 8 that provides: “If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article, the receiving State may refuse to recognize the person concerned as a member of the mission.”

It is, therefore, clear that the Vienna Convention on Diplomatic Relations provides the remedy or solution to problems of inter-state relations.

Arizala said that “the proper and better approach is to quietly make representation with the sending State and inform or notify the government concerned that the continued presence of its envoy would no longer be for the mutual benefit of both countries.”

He added that most likely, “upon being quietly notified of such fact, the sending State would recall the envoy concerned or assign him somewhere else where he is acceptable.”

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INFOTECH WORMS: At least 10 percent of the more than 100 emails we receive daily are infected with viruses, worms and the like. While the infection has not crippled our hardware so far, the tedious process of eliminating the infection eats into our working time.

For the past weeks, the most common worms reaching our emailbox are of the Klez variety. We’re surprised that our vaunted Norton anti-virus software is unable to stem the problem. What it does is merely quarantine every worm or virus detected.

Many of the infected mail come from friends in media, but they are probably not even aware that they are the source of the infection. The malicious program worms itself into the address book of its host/victim and randomly sends itself to various addresses using false messages and pseudo return addresses.

System administrators of media establishments similarly victimized by what looks like an epidemic may want to get together to plan and execute a common action against the spreading infection.

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(First published in the Philippine STAR of September 26, 2002)

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