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Duterte's rape joke: Can diplomats comment on election-related issues?

As a state policy, the Philippines adopts an absolute “iron curtain” rule against any foreign intervention in the elections.

The 1987 Constitution – specifically, Article IX- C, Section 2 (5) – expressly directs the Commission on Elections to refuse the registration of any political parties, organizations, or coalitions which “are supported by any foreign government.”

The same provision bans any “interference in national affairs” in the form of “financial contributions” from foreign governments and their agencies to Philippine political parties, organizations, coalitions, or candidates related to elections.

The more explicit and draconian state policy against foreign interventions, however, has been laid down in Section 81 of the Omnibus Election Code. It provides:

Section 81. Intervention of foreigners. – It shall be unlawful for any foreigner, whether judicial or natural person, to aid any candidate or political party, directly or indirectly, or take part in or influence in any manner any election, or to contribute or make any expenditure in connection with any election campaign or partisan political activity.

The ban on intervention in Section 81 covers “any foreigner”or non-Filipino, either natural or juridical person (that is, corporation or partnership). Here, the ban on intervention is more encompassing as it descends to the the individual level, as opposed to those in Article IX- C, Section 2 (5) of the 1987 Constitution.

Section 81 deems the following 3 acts as constituting unlawful “interventions”:

Duterte’s “rape joke” is more than just an issue of feminism or women’s rights, it has a political layer. Gorely and Goldberg’s statements, even if intended as apolitical, have been spoken in a politically-charged context that they are unavoidably perceived as political.

The distasteful remarks are being used by various camps to question Duterte's fitness to hold the country’s highest office. With the election happening in a few weeks, any statement coming from ambassadors can have an unavoidable bearing on how public opinion on Duterte and his candidacy is shaped.

The comments of the diplomats could be interpreted by voters as Australia's or the United States' expression of non-preference of Duterte, if taken extremely. Under these circumstances, their statements can come within the purview of Section 81.

The ambassadors' views that are critical of Duterte’s “rape joke” can be interpreted as “aiding” his rival candidates, as they stand to directly benefit from any bad press the tough-talking mayor gets. It must be remembered that the law qualified the word “aiding” with “directly or indirectly,” to cover those indirect means of aiding candidates, even if the benefit is merely residual.

Those critical views against Duterte could also be interpreted as “influencing”the local election, which is the second mode of violating Section 81.

Merriam-Webster defines “influence” as “to affect or alter by indirect or intangible means” or “to have an effect on the condition or development of.” The law also qualified the word “influencing” with the phrase “in any manner,”with the obvious intention of making its scope also broad, encompassing and far reaching. The word thereby covers even those acts or statements which tend to influence voters, even though remotely.

Violation of Section 81 is an election offense, punishable by imprisonment of not less than 1 year but not more than 6 years, under Section 262 of the Omnibus Election Code. This means “any foreigner” can be imprisoned if found guilty of intervening in Philippine elections.

While the two diplomats may be insulated by reason of their diplomatic privileges and immunities, the scope of such protection in relation to Section 81 or other criminal statutes is better discussed in detail elsewhere.

Nonetheless, the point being stressed in Section 81 is that the Philippines, as an independent and sovereign state, has an official policy against any forms of interventions by foreign governments, their diplomats and citizens/subjects in the local elections.

This provision of the law should impress on the two ambassadors or any foreigner that, as “guests” in the Philippines, they have the duty to abide by local laws on non-intervention, regardless of how strongly they feel about local election-related issues. They also have the obligation to remain as neutral bystanders in the local elections. 

Duterte’s “rape joke” was inarguably inappropriate, but he is correct in reminding the two ambassadors that, as long as they are in the Philippines, they have to toe the line. – 

Emil Marañon III is an election lawyer who served as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He is currently studying Human Rights, Conflict and Justice at SOAS, University of London, as a Chevening scholar.