China and persona non grata

No one is above the law. Specially if you are from a foreign country that has the unseemly habit of committing malice against the Philippines, particularly by trying to grab its territories with obvious, overt, and complete disregard of international law.

Hence, if officials from China assert the existence of audio recordings to bolster its claim of a “gentleman’s agreement” or “new model” but admittedly without the knowledge or assent of the participants to such recordings, then a violation of Philippine law is clear.

RA 4200 (or the Wiretapping Law) declares that it’s “unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described.”

If it turns out that no such recording exists but rather audio material has been manipulated to create a fake audio recording, then RA 10175 (Cybercrime Prevention Act of 2012) applies instead. Hence, the likely culpable acts are a.) computer-related forgery — which is the input, alteration, or deletion of any computer data without right resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible; or the act of knowingly using computer data which is the product of computer-related forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design; or b.) computer-related fraud — which is the unauthorized input, alteration, or deletion of computer data or program or interference in the functioning of a computer system, causing damage thereby with fraudulent intent.

Either way, a crime has been committed. If the Chinese individuals concerned (or some of them) are private citizens or government officials but without diplomatic personality, then criminal prosecution is the necessary con-sequence.

If, however, the Chinese official is imbued with diplomatic functions and immunity, then the provisions of the Vienna Convention on Diplomatic Relations (VCDR) come in: “The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the 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 such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State” (Article 9).

Note that if China refuses to accept the Philippine “persona non grata” declaration, then the Philippines “may refuse to recognize the person concerned as a member of the mission.” In which case, he can be criminally prosecuted like any ordinary person.

Incidentally, the mere fact that China has been dealing directly with our Department of Defense already constitutes an international law violation. The VCDR requires China to conduct its business through the Philippine Department for Foreign Affairs. Furthermore, the premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention, other rules of general international law, or by any special agreements in force between the sending and the receiving State.

Which leads us to the fact that it is illegal for anyone to knowingly possess, replay, or make transcriptions of any record or similar type of any communication or spoken word created in violation of the Wiretapping Law, or willfully or knowingly aid or permit such acts.

The crime of “inciting to sedition” is also committed if a person, without taking any direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by means of speeches, proclamations, writings, etc. This includes passing on the misinformation that the Chinese officials concerned are not accountable for the violation of Philippine or international law. Hence too, any person that acts to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities, commits the crime of inciting to sedition.

It must be emphasized that foreign diplomatic officials need to respect the laws of the Philippines and ensure that they do not interfere in the internal affairs of our country. Whatever impression people may have from watching movies, international espionage is not accepted under international law and the Philippines is fully correct in enforcing its constitutional provisions or international law rights.

The views expressed here are his own and not necessarily those of the institutions to which he belongs.

Jemy Gatdula is the dean of the Institute of Law of the University of Asia and the Pacific and is a Philippine Judicial Academy lecturer for constitutional philosophy and jurisprudence. He read international law at the University of Cambridge.