by Allen Salas Quimpo
Institute of Public Policy Studies
Graduate School of Public Administration
Northwestern Visayan Colleges
I. INTRODUCTION
This is a case of first impression. It encompasses legal, political and economic issues. This brief paper attempts to present these aspects for official consideration from the perspective of the best interest of the Philippine Government.
II. FACTS
a) On December 27, 2010, the National Bureau of Investigation acting upon the tip and request of the Security Police of the People’s Republic of China (PRC), which have a pending warrant of arrest in mainland China, arrested 24 Chinese, suspected of being members of an international syndicate defrauding mostly Chinese nationals in mainland China of $20 million via internet transactions.
b) The Bureau of Immigration after inves-tigation determined that 14 were Taiwanese nationals and citizens of the Republic of China (ROC). Trade and Economic Cooperation (TECO) envoy in the Philippines attempted to take jurisdiction of the 14 Taiwanese citizens. It even filed and was issued a Temporary Restraining Order from the Court of Appeals to prevent the deportation proceedings. However, notwithstanding this legal move, those Chinese were deported to mainland China accompanied by Red Chinese Security Police.
c) The official reason advanced by the Philippine Government is the One China Policy which in effect recognizes that there is only one China, One Chinese Government and therefore the Taiwanese or Taiwan is only a part of mainland China, rightfully should be deported to mainland China.
d) Taiwan or the Republic of China immediately lodged a formal protest. It recalled its TECO Envoy Donald Lee, imposed a ban on OFW recruitment which currently is around 90,000, ordered the freezing of all Taiwanese Chinese investments, and demanded that the Philippine Government makes a formal apology.
e) Right away, the Philippine Government refused to make the public apology and insisted that the move it took is the correct one.
f) If there is now a serious controversy which the Philippine Government due to the geographical and historical ties could hardly afford to ignore.
Time heals. Let us learn from this incident and meanwhile from a short term policy, try to make amends and be good to both of our neighbors. Its hard to be in the center of two bulls fighting. However, from the long term policy, let’s all make our country strong, powerful and rich. These are ingredients to enforce our will and our rights.
ISSUES AND ASPECTS OF THE PROBLEM:
No doubt the ultimate issue at hand is what is to the best national interest of the Philippines. National interest partakes of the following aspects:
1. The Legal Aspect – Under International and National Law, the issue of jurisdiction over the crimes committed within the Philippine territory, regardless of the nationality of the offender, is undoubtedly the sole jurisdiction of the Philippine government. To consider whether the act of defrauding others through the use of the internet, is legal or illegal, should alone be determined wholly by the laws of the country where the act is committed (American Banana Co., vs. United Fruit Co., 213 US 347 (1909). This principle should be correlated to modern crimes. Those committed through the communications technology or the internet.
The Council of European Convention in Cyber Crimes, the first International Treaty attempted to bring together countries to agree on how to provide common rules on Cyber Crimes. However, like all International Agreement, it is the accompanying national law adopting such rules that provides the legal basis for its implementation.
In the Philippines, after the embarrassing "Love Bug" incident where a Filipino hacker practically littered virus in computers around the world and billions of dollars lost in damages, Congress passed the E Commerce Law R.A. 8792 on June 22, 2000. This law defined what acts are considered unlawful and imposed penalties for their violations. The elements for taking jurisdiction are, the machines and computers were located here, the servers were here, and the defendants were caught here. Cyber crimes like this instant case of Chinese nationals caught in the Philippines, are well within the purview and coverage of our E Commerce Law. The Philippine Government should have taken jurisdiction and prosecution of these cyber criminals. Having abandoned its jurisdiction, the Philippines may become a safe haven for cyber criminals. If our government took this position, the Philippines could have avoided an international incident. This could have been an opportunity to gain the support and respect of the two Chinas. By favoring one over the other in taking jurisdiction, the Philippines became a pawn in the conflict of leviathans.
The Political Aspect – The One China Policy is a political issue. This has its historical basis when the Communists overran China and the Kuomintang retreated to the island of Formosa or Taiwan. The aftermath brought the People’s Republic of China and the Republic of China. Each one claiming to be the only legitimate government. With the emergence of the PRC, the majority of the members of the United Nations began to recognize the PRC as the State of China and Taiwan as an integral part thereof. However, because Chinese will always be Chinese, each country is moving towards reunification or unification and peaceful recognition of each others separate identity. Both agreed that there is a China in both sides of the Straits of Formosa. Even business and official exchanges with an average of six (6) flights daily between Taipeh and Beijing are allowed. The only unique policy being that they do not accept the passport but instead stamp the words "Compatriot visit Permit" in the case of the PRC, and "Mainland Resident" in the case of the ROC. The United States and many other countries are following developments of the two governments with anticipated interest. The official US definition of One China is "still undetermined".
However, in the Philippines, it appears to be more acquiescent and exacting in our definition of the One China Policy. That Taiwan is just a province of PRC Mainland China. Thus, the severe consequence resulting to the Taiwan – Philippine Row.
The Economic Aspect – While, it is true that PRC has the highest growth rate in the region, yet one cannot deny that ROC is our closest neighbor and a friendship, economic, and historical relations that can be labeled as substantial. The better policy that serves best our national interest could have been a balanced and mutually acceptable policy of friendly relations. The Filipinos are good at that. After all we have a Trade and Cultural Office, which though private, really performs like a foreign embassy between Taiwan and the Philippines. This should have been the primordial consideration. We could simply have avoided resorting to a definition and application of the One China Policy or simply kept quiet about this policy and instead dealt on the legal aspects of international law and the cyber crimes as covered by our own E Commerce Law. Prosecute them here and show to both Chinas that indeed we are a sovereign country that knows how we dispense justice.
Time heals. Let us learn from this incident and meanwhile from a short term policy, try to make amend, short of apologizing. Be good to both of our neighbors. It’s hard to be in the center when two elephants are fighting. However, from the long term policy, let’s take jurisdiction when we have the legal laws as basis for taking jurisdiction. Let the Philippine Law assumes jurisdiction. File cases, prosecute them and impose the sanctions under our laws. The news about three Filipino citizens to be executed for drug violations in China is the best example of my thesis. (Although we too have Anti-Drug Laws, but because the act was committed in China, Chinese Law took jurisdiction). On a long period, let our nation and our country strive to become strong, powerful and independent. These are ingredients to enforce our will and our rights. This is the hallmark of a sovereign country. /MP
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