Ex-WESCOM chief Carlos: I did not enter into any deal with China

Former Armed Forces of the Philippines' Western Command (AFP WESCOM) commander Vice Admiral Alberto Carlos on Wednesday confirmed receiving a phone call from a Chinese military attaché but clarified that he did not enter into any deal that could compromise the Philippines' national interest.

This is the first time that Carlos addressed the alleged "New Model" agreement for managing the situation in Ayungin Shoal in the West Philippine Sea, which was first disclosed by the Chinese Embassy in Manila.

During the Senate probe into the alleged wiretapping by the Chinese Embassy, Carlos said he received a phone call early this January from Chinese Military Attaché whom he identified as "Senior Colonel Li" of the Chinese Embassy.

Carlos was not able to give the full name of the Chinese military attaché.

But in his opening statement, he outrightly stated that he did not enter into any binding agreement between the Philippines and China.

"I did not forge any agreement at the level and magnitude that would bind our two countries for the long term and redefine foreign policy. I am only the commander of the Western Command and not even of the entire West Philippine Sea," Carlos said.

"As WESCOM commander, I have done my very best to provide for the welfare of WESCOM personnel. I did not enter into any secret deals that will compromise the interest of our country," he added.

According to Carlos, the phone conversation, which lasted around three to five minutes, and initiated by the Chinese military attaché was "very informal" and "casual."

"I did not initiate the call... We talked about how to reduce the tension in the West Philippine Sea, particularly during our rotation and resupply mission in Ayungin Shoal... coming from the December 2023 RORE where our supply ships were water cannoned and we were planning for our next RORE," Carlos said.

"We did not discuss the 'new model.' The term(s) 'common understanding, new model' were not part of our conversation, Mr. Chair," he added.

Executive session

Carlos did not disclose further details about the conversation, but told the Senate national defense committee that he is willing to brief the senators regarding the operational concept for that RORE, which involves the said telephone conversation, in an executive session.

Upon the questioning of Senate President Pro Tempore Jinggoy Estrada, the chairperson of the committee, Carlos said he did not give consent for the phone call with the Chinese military attaché to be recorded.

"I have not given my consent to record to anybody and I have not been asked for permission to do so, Mr. Chair," he said.

After the claims on the "new model," Carlos said he no longer talked with the Chinese military attaché, but the latter had reached out to him two days ago through Viber.

"He sent me a message two days ago, Mr. Chair, but I did not acknowledge," Carlos said, adding that he can show the message to the senators in an executive session.

At the end of the hearing, Carlos disclosed that the Chinese military attaché apologized to him, but he no longer responded to the message.

"So guilty siya na siya ang nagpalabas? We can put it that way? Safe to say?" Estrada asked, to which Carlos responded, "That's a reasonable assumption, Mr. Chair."

The former WESCOM commander said he met this Chinese military attaché in several AFP special events and diplomatic events.

Asked if he had engaged in any negotiations with any foreign diplomat since he assumed office in January 2022, Carlos said, "negative, sir."

Under Republic Act 4200, it is unlawful to tap, secretly overhear, intercept, or record any conversation without being authorized by all the parties to the private communication.  

Persona non grata

Senate Majority Leader Francis Tolentino, who sought the investigation, then raised questions on the procedure of declaring a diplomat persona non grata following Carlos' testimony.

"Hindi kumilos ang DFA. Hindi pinatawag ang ambassador. Hindi nag-file ng diplomatic protest. Walang ginagawa pa ang DFA? Ang DFA nag-aantay pa na may mag-file ng kaso. Oh sino magfa-file ng kaso? Ang DFA may poder na mag-declare ng persona non grata. Hindi ko rin alam kung ano pa ang hiniintay natin dito. Is the DFA conducting its own investigation into the matter?" Tolentino said.

(The DFA did not act on this. The [Chinese] ambassador was not called. No diplomatic protest was filed. The DFA has not done anything yet? Are they waiting for someone to file a complaint? Who will file a complaint? The DFA has jurisdiction in declaring one a persona non grata. I don't know what they're waiting for.)

DFA Assistant Secretary Aileen Rau explained that they can only call an ambassador if there is already a prima facie case or there are cases filed with law enforcement agencies.

In criminal cases, Rau explained that diplomats, such as military attachés, are covered by the immunities and privileges.

These privileges would have to be waived by the embassy concerned before they can proceed with the declaration of persona non grata on the diplomat involved.

Tolentino pointed out that the Foreign Affairs Department can declare persona non grata on its own and even without the findings from the law enforcement agencies-- a position confirmed by the DFA Deputy Assistant Secretary Ruel Gunabe.

Rau then read a statement approved by Foreign Affairs Secretary Enrique Manalo which indicated that DFA defers to the law enforcement agencies in looking into reports of wiretapping activities by foreign diplomats in the country.

"If alleged wiretapping activities by foreign diplomats are confirmed, the Department of Foreign Affairs is prepared to undertake necessary action in line with existing laws and regulations," Rau, reading the statement, said.

"Given the delicate nature of diplomacy and international relations, such action will have to be taken with prudence and in full consideration of all possible repercussions. The DFA will consider all options accordingly," she went on.

Tolentino then stressed that under Article 41 of the Vienna Convention on Diplomatic Relations, diplomats covered by privileges and immunities are duty-bound to respect the laws and regulations of the receiving state and they also have the duty not to "interfere in the internal affairs of the State."

"Isn't this an interference in the internal affairs of the State, 'yung pag-tap ng conversation?" Tolentino asked.

Responding to the question, both Rau and Gunabe answered in the affirmative.

The senator then asked if this violation of the Vienna Convention could necessitate the declaration of the diplomat as persona non grata.

Rau answered in the affirmative.

For its part, the Department of Justice (DOJ) said that with Carlos' testimony before the Senate panel, they can use this in their proceedings as they consider this is indeed a violation of the Anti-Wiretapping Law.

"For the DOJ, this is the first time that we are hearing the sworn testimony of Vice Admiral Carlos because we are not alo sure before of the truthfulness, the authenticity of the transcript, Mr. Chair. So we don't know, but we have a testimony now that we can use that indeed there was a call and it was recorded," DOJ Senior State Counsel Fretti Ganchoon said.

According to Ganchoon, the DOJ, as well as the DFA, could not determine the authenticity and the truthfulness of the transcript of the phone conversation between the former AFP WESCOM chief and the Chinese military attaché.

"Anything that comes from our friend, from our neighbor, we treat it very carefully because we are in the middle of the fight for the West Philippine Sea...So we did not accept it right away that this transcript is authentic, that transcript is true, that there was wiretapping, but now that we have a sworn testimony from Vice Admiral, we thank him, that there indeed was wiretapping. But with respect to the contents, of course, we are not talking here about the contents yet," she said.

With regard to the procedure of declaring a diplomat a persona non grata, Ganchoon said, "If the embassy refused to waive his (diplomat) immunity, based on the procedure... the refusal to waive immunity in the face of evidence that there was wiretapping can lead to the declaration of that person being considered as persona non grata under Article 9 of the Vienna Convention on Diplomatic Relations."

Justice Secretary Jesus Crispin Remulla has recently ordered the National Bureau of Investigation (NBI) to probe illegal and unlawful activities committed by foreign diplomats.

The Senate panel has sent an invitation to the Chinese Embassy through the Department of Foreign Affairs (DFA), but they have not responded to the invitation.

Over the weekend, Carlos was replaced by Rear Admiral Alfonso Torres Jr. Carlos had gone on leave.for personal reasons.

In a statement, AFP Public Affairs Office (AFP PAO) chief Colonel Xerxes Trinidad said Torres’s designation was "an administrative decision of the AFP.” — RSJ, GMA Integrated News