SIXTEENTH REGIONAL SEMINAR ON GOOD

With the support of the Government of Japan
14-16 December 2022, Tokyo, Japan

August 2023

978-4-87033-344-1

SIXTEENTH REGIONAL SEMINAR ON GOOD
GOVERNANCE FOR SOUTHEAST ASIANCOUNTRIES

Hosted by UNAFEI
With the support of the Government of Japan
14-16 December 2022, Tokyo, Japan

August 2023
TOKYO, JAPAN-1-1-

DISCLAIMER
The views expressed in this publication are those of the respective presenters and authors
only, and do not necessarily reflect the views or policies of UNAFEI, the Government ofJapan, or other organizations to which those persons belong.

MORINAGA Taro
Director
United Nations
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
2-1-28 Mokuseinomori, Akishima-shi, Tokyo 196-8570, Japan
https://www.unafei.or.jp
unafei@i.moj.go.jp-2-2-

FOREWORD
It is my great pleasure and privilege to present this report of the Sixteenth Regional
Seminar on Good Governance for Southeast Asian Countries, which was held in Tokyo, Japan,
from 14-16 December 2022. The Good Governance Seminar was held in an in-person format
for the first time in three years.
The main theme of the Seminar was New and Emerging Forms of Corruption and the
Effective Countermeasures. The Seminar was attended by two visiting experts – one from the
Independent Commission Against Corruption (ICAC), Hong Kong, China, and one from theUnited Nations Office on Drugs and Crime (UNODC) – and 17 criminal justice practitioners
from the countries of Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, thePhilippines, Singapore, Thailand, Viet Nam and Timor-Leste.
Corruption is a complex social, political and economic phenomenon that affects all
countries. Corruption undermines democratic institutions, slows economic development andcontributes to governmental instability. As with other regions in the world, the fight against
corruption in Southeast Asian countries has taken on an international dimension. The main
theme of the Sixteenth Seminar focused on providing updates on the latest corruption trends
and effective countermeasures across Southeast Asia.
The Seminar addressed the importance of the widest measure of cooperation and assistancein order to effectively counter the new and emerging forms of corruption such as Covid-19
corruption, corruption in sport, and the use of digital assets and electronic transfers incorruption. The participants exchanged knowledge, experiences, effective strategies and bestpractices, and the Chair’s Summary, published in this report, details the key conclusions andrecommendations of the Seminar. In addition, the Seminar enabled the participants to develop
personal and professional contacts between anti-corruption authorities and investigators inSoutheast Asia.
It is a pleasure to publish this Report of the Seminar as part of UNAFEI’s mission, entrusted
to it by the United Nations, to widely disseminate meaningful information on criminal justicepolicy.

MORINAGA Taro
Director, UNAFEI
August 2023-- 33 --

-4-4-

INDEXNEW AND EMERGING FORMS OF CRIME RELATED TO CORRUPTION AND
THE EFFECTIVE COUNTERMEASURESIntroduction ………………………………………………………………………………….7
Opening Remarks ………………………………………………………….....................9
Chair’s Summary ……………………………………………………………………………11
Experts’ Contributions ……….……………………………………………………………..19
Expert, Mr. Andrew Cheung, Principal Investigator, Operations Department,
Independent Commission Against Corruption, Hong Kong Special
Administrative Region, People’s Republic of China ………………………...…………..21
Expert, Mr. Giovanni Gallo, United Nations Office on Drugs and Crime ……................31
Country Presentation Papers …………………………………………………………………43
Brunei Darussalam …………………………..……………….......................................45
Cambodia ……………….………….……………………….…………..…..…...……...55
Indonesia ………………….……………………………………………………………65
Japan ……………………………...……………………………….…………..................83
Lao PDR ………………...…………………………………….…………....................89
Malaysia ………………......……………………………..............................................99
Philippines …………………...………………………………………….……..............113
Singapore …………….…………………….…………………….................................133
Thailand …………………….......…………………….………………………………...141
Timor-Leste …………....…………….………….……………………………………163
Viet Nam …………….......….…………………………….…….....................................175
Appendix ………………………………………………………………………………...…193
Participants' List ………………………………………………………………………193
Seminar Schedule ……………………………………………………………………....195
Photographs …………………………………………………………………………....197-- 55 --

-6-6-

INTRODUCTION

Opening Remarks by
Mr. MORINAGA Taro
Director of UNAFEI-- 77 --

-8-8-

OPENING REMARKSMORINAGA Taro *Distinguished participants,
It is truly my great pleasure to welcome you all to Tokyo, to UNAFEI and to this 16th Good
Governance Seminar for Southeast Asian Countries. What makes this seminar so special is that
we somehow managed to do it in an in-person form for the first time in almost three years,
during which period we had to resort to the online system because of Covid-19. Our hearts arefilled with joy, I can tell you.
All of the UNAFEI training courses and seminars such as this one are designed so that theparticipants are able, and are indeed encouraged, to not only listen to the Japanese and foreign
experts, but to share information with each other, teach each other and learn from each other,and thereby build up a stable network among each other. This forms the core part of ourseminars from which not only you but UNAFEI members also learn a lot. So, I expect that eachof you will actively attend the sessions and enjoy lively conversations in and outside theprogramme, carry a lot of takeaways home and make good friends. Since we are all in the sameor similar category of professions, such acquaintances and friendships will last for a long time
and will surely benefit your private and professional lives.
It is indeed a short stay for you, and, unfortunately, Covid is still lingering, so I mustregrettably remind you about the restrictions and ask you to take utmost care of yourselves; but
still, please enjoy your stay here in Japan as much as possible.
Thank you.

Director, United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of
Offenders (UNAFEI).

*-- 99 --

- 10 - 10 -

CHAIR’S SUMMARYSIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCEFOR SOUTHEAST ASIAN COUNTRIESTokyo, Japan
14 – 16 December 2022

OPENING CEREMONY
1. MR. MORINAGA TARO, Director of the United Nations Asia and Far East Institute for thePrevention of Crime and the Treatment of Offenders (UNAFEI), welcomed the participants to
the Sixteenth Regional Seminar on Good Governance for Southeast Asian Countries, co-hosted
by the Ministry of Justice of Japan (MOJ) and UNAFEI. Officials and experts from thefollowing jurisdictions attended the seminar: Brunei, Cambodia, Hong Kong, Indonesia, Japan,
Lao PDR, Malaysia, Philippines, Singapore, Thailand, Timor-Leste and Viet Nam. The
seminar was chaired by UNAFEI PROFESSOR KUBO HIROSHI.

VISITING EXPERTS’ LECTURE
2. MR. FUJIWARA DAISUKE, National Police Agency (NPA), Japan, delivered his lecture on thetheme of Investigation of Corruption Cases by the Japanese Police. After providing an
overview of the parallel structure of the national and prefectural police organizations, it wasnoted that Japan secures political neutrality in policing through its use of public safetycommissions to oversee police policies and practices. Corruption cases are handled by theJapanese Police through its Second Investigation Division, which is primarily responsible fordetecting structural injustices in political, administrative and economic matters. Corruption
crimes are difficult to detect because they typically have no direct victims and little evidence,and the suspects often have high social status. Corruption investigations by the Japanese Police
typically occur in four steps: information collection (review and confirmation of reports ofcorruption), covert investigation, overt investigation (interrogation and other compulsory
steps) and clearance. Two actual corruption cases were introduced. The first involved bribery
to obtain a public contract for waste disposal, and the second involved systemic corruption incity government. In the second case, which involved bid rigging and bribery to secure
construction projects in connection with organized crime groups, the investigation stalled basedon a lack of evidence. The case was ultimately cracked when a subcontractor was blackmailed
but reported the crime to the police, which enabled the police to make an arrest. Accordingly,
public trust and cooperation with the police are important to facilitate corruption investigations.
3. MR. Andrew Cheung, Principal Investigator, Operations Department, Independent
Commission Against Corruption (ICAC), Hong Kong, China, delivered his lecture on thetheme of New and Emerging Forms of Corruption and the Effective Countermeasures. In the
1960s and ‘70s, corruption was rampant in Hong Kong. Founded in 1974, the ICAC wasestablished as an independent anti-corruption body tasked with rooting out corruption in awholistic manner by employing a three-pronged anti-corruption strategy: enforcement,
prevention and education. Its legislative mandate enables it to pursue both public- and privatesector corruption. The ICAC began by targeting corruption in the public sector, but private- 11 - 11 -

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

sector corruption cases have exceeded public-sector cases since 1988. The ICAC’s mandate
exceeds corruption cases (bribery etc.) and extends to crimes such as dishonesty offences,serious and organized crime, and other cases connected with or facilitated by corruption. A
case study was introduced that demonstrated how private-sector corruption in the banking
industry (bribes paid by secretarial firms to bankers) facilitated the opening of accounts onbehalf of people residing outside of Hong Kong without proper due diligence procedures. To
strengthen its ability to investigate corruption, the ICAC developed a number of technologicalresources with adoption of artificial intelligence in some of them. The Operations Department
Information System (OPSIS) is a centralized database that stores investigative information, andthe Records Digitalization System (RDS) stores and analyses voluminous records such as banktransactions. These databases assist investigators in drawing links between parties that mayotherwise be undetectable. In future, law enforcement agencies should utilize artificial
intelligence and corruption-crime forecasting to assist investigative work. To combat
transnational corruption, mutual legal assistance and other forms of international cooperation
are necessary tools, and MOUs were also introduced as a measure to enhance informationsharing among domestic investigative and regulatory agencies, enable joint investigations, andpromote training and capacity-building of relevant personnel.
4. MR. Giovanni Gallo, United Nations Office on Drugs and Crime, presented on the topic of new
and emerging forms of corruption and responses. Since 2005, the United Nations Convention
against Corruption has been the only global legally binding instrument to prevent and combat
corruption domestically, facilitate international cooperation and the recovery of stolen assets.
The Implementation Review Mechanism (IRM) of the Convention, adopted by the Conferenceof the States Parties (CoSP) in 2009, has evidenced significant implementation efforts, good
implementing practices but also gaps and technical assistance needs. The CoSP at its 8th
session (2019) adopted a number of resolutions also related to new and emerging
manifestations of corruption and action to counter them, such as safeguarding sport from
corruption, the measurement of corruption, the effectiveness of anti-corruption measures, theimpact of corruption on crimes that affect the environment (wildlife and forest crime), andcollaboration between supreme audit institutions and anti-corruption bodies. In June 2021, theUnited Nations General Assembly held its first-ever special session against corruption. In theensuing political declaration, Member States reiterated the centrality of UNCAC and its IRM
while recognizing anti-corruption as an enabler for the 2030 Agenda for Sustainable
Development and advancing a forward-looking anti-corruption agenda and framework. At its
9th session (2021) the CoSP emphasized, among other issues, the importance of strengthening
regional approaches to anti-corruption efforts to address common forms of corruption, as wellas promoting education, awareness-raising and training to address the root causes of corruption.
Accordingly, anti-corruption practitioners can look to the resolutions and other activities of the
CoSP for information on new and emerging forms of corruption and new and innovative
approaches to address them.

COUNTRY PRESENTATIONS
5. BRUNEI DARUSSALAM: The Anti-Corruption Bureau (ACB) investigates corruption byreviewing official corruption complaints, conducting proactive detection through the Special
Intelligence Services Division and the use of technology to gather intelligence and conduct
forensic analysis. Corruption trends include the use of electronic platforms and hawalatransactions. ACB investigators sometimes struggle to understand the complex technology. In
response, the ACB is seeking to strengthen and introduce new approaches (including using- 12 - 12 -

CHAIR’S SUMMARY

social media) in conducting intelligence work and improving detection using bank accounts
and digital records. Moreover, it is important to promote domestic interagency andinternational cooperation and to cooperate with financial institutions and financial intelligence
units (FIUs) to gather intelligence on suspicious transaction reports (STRs). Upon completionof its investigation, the ACB refers cases to the Attorney General’s Chambers (AGC) for
prosecution. The AGC applies the principles of prosecutorial discretion, fairness and public
interest in reaching its prosecution decisions, and it functions as an independent body that
reviews and supervises the work of investigative bodies. The AGC has successfully prosecuted
serious and high-profile corruption cases. Like the ACB, the AGC has had to deal with thechallenge of obtaining testimony from witnesses in other countries.
6. CAMBODIA: Since 2010, the Anti-Corruption Unit (ACU) has exercised exclusive power toinvestigate corruption and other related offences. Unlike the Cambodian police, the ACU isauthorized to conduct arrests and wiretapping without obtaining permission from prosecutors.
Emerging forms of corruption in Cambodia include abuse of power (an act by public servantsor citizens in the exercise of his or her duty such as to hinder law enforcement in order to takeany illegal advantage) and misappropriation of public funds (demanding or receiving any sum
known not to be due). Cambodia has changed from paper-based to computer-based services
and recordkeeping to reduce opportunities for committing corruption. As recognized by
UNCAC, prevention and education are important components of Cambodia’s anti-corruption
strategy, and MOUs have been signed with 1,000 companies and more than 30 private higher
learning institutions. Two cases were introduced – a bribery case in connection with aconstruction permit and a drug trafficking case. These cases underscored the importance ofconfiscation of illicit proceeds and property, including cars, boats, mobile phones, etc., as aneffective means of suppressing and deterring corruption.
7. INDONESIA: Covid-19 corruption has been a significant new and emerging form of corruption
in Indonesia. Social assistance programmes became targets for corruption, through which
persons in positions of authority appointed friends and unvetted businesses in order to control
the distribution of goods and services intended for the public. Another emerging form ofcorruption in Indonesia is stock market corruption. Under Indonesian law, any unlawful act
resulting in state financial loss is deemed a corruption offence, which includes stock market
offences resulting in state losses. These cases are complex and can involve many parties. One
massive case included brokers, investment managers, the Indonesia Stock Market, theFinancial Service Authority, nominees and more than 100 companies and 200 bank accounts.
Complex cases require forensic analysis of electronic evidence, including electronicinterception technology, and the parties are often high profile and involve evidence from othercountries. Proposed countermeasures include sentencing offenders with the maximum penalty,
confiscation of proceeds of crime, implementation of corruption impact assessments, andinternational cooperation in asset recovery.
8. LAO PDR: The State Inspection Authority (SIA) was established in 1982 and is an independent
authority that reports directly to the Prime Minister. In 2021, the SIAA became a national
independent organization (in line with Article 6, 36 of UNCAC) which is directly responsible
to the President of the State. The Law on Criminal Procedure, the Law on State Inspection 2017
and the Law on Anti-Corruption 2012 cover both the public and private sectors, and prohibit
corruption by persons with certain positions, powers and duties, as well as other actions that
constitute corruption. Lao PDR is implementing asset declarations for public officials and is
working to implement its national anti-corruption strategy, which aims to promote educationand public awareness; researching, improving and creating legislation on prevention and anti-

-- 13
13 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

corruption; improving the state management mechanism; and increasing technical support for
anti-corruption staff. Currently, as well as performing usual duties, including reviewing
complaints, disseminating laws, monitoring state investment projects and others, the SIAA
conducts inspection and investigation at the national and local levels by establishing special
task forces to inspect and investigate corruption cases. Lao PDR faces the challenge of politicalcorruption within the party-state organization and suffers from unfocused laws and incomplete
anti-corruption regulations. The implementation of anti-corruption measures and asset
recovery continues to face challenges.
9. MALAYSIA: In 2020, lockdown orders were implemented in response to the global Covid-19
pandemic, and the government authorized the payment of hiring incentives and subsidies topromote employment during the pandemic. The hiring incentive paid money to companies thatpermanently employed people below the age of 40 years old, among other criteria. However,some employers misused the incentives by submitting false claims of employment. Personal
information was harvested from social media platforms such as Facebook or WhatsApp, but
the potential workers were never actually recruited. In another case, the CEO of a governmentlinked company manipulated the government grant process, which was aimed at training
employees during the Covid-19 pandemic, to obtain an unwarranted 30 per cent commission.
The CEO personally invested the commission into an unrelated company in which he held a
50 per cent interest. Combating corruption requires top-level commitment, corruption risk
assessments of politically exposed persons, implementation of effective control measures,
systematic review, monitoring and enforcement; training and awareness-raising.
10. PHILIPPINES: In March 2020, a public health emergency in response to the Covid-19 pandemic
was declared in the Philippines. Subsequent legislation authorized the President to redirect
funds to respond to Covid-19 and authorized economic stimulus programmes to provide
support for social services and health care. Numerous schemes were hatched to take advantageof these funds, resulting in price gouging for personal protective equipment (PPE),
questionable contracts, conflicts of interest, fraud and waste in procurement processes,
selective distribution of assistance, etc. Thus, the Covid-19 pandemic created new and grander
opportunities for corruption. Another short-lived scheme was the illegal sale of vaccines andvaccination slots. These schemes generally took place online, adding a new dynamic for law
enforcement authorities to address. Time was perhaps the greatest challenge faced byinvestigators, given that lives were at stake and the ability to verify and investigate aid
programmes was limited. Investigations are time consuming and require witness affidavits andconfirmation of ineligibility for benefits. Also, Typhoon Odette legitimately destroyed somerecords, but it was used as an excuse for the failure to present others. To respond to these many
challenges, investigative authorities should, among others, pursue timely investigations,strengthen internal review mechanisms, and promote public awareness and participation in thefight against corruption.
11. SINGAPORE: The Prevention of Corruption Act is Singapore’s primary legal framework against
corruption, coupled with the Corruption, Drug Trafficking and Other Serious Crimes(Confiscation of Benefits) Act (CDSA). The Attorney-General’s Chambers serves as theCentral Authority for MLA and extradition, and the Crime Division is primarily involved incountering corruption. As an international financial hub, Singapore has had significant
experience in countering financial crime. Concerns over match-fixing, illegal gambling andconnections with organized crime are well-known issues in physical sports, like football(soccer), but Singapore has recently experienced match-fixing in international e-sports
competitions (online competitive computer- or console-based gaming). In addition to strict- 14 - 14 -

CHAIR’S SUMMARY

enforcement, Singapore has recognized the need to engage in education and public-awarenesscampaigns directed at youth. Moreover, Singapore created an online anti-corruption gamecalled Corruzione to promote youth awareness. During the Covid-19 pandemic, Singapore has
observed individuals attempting to bribe police officers to avoid mask rules and bribing nurses
to certify vaccination compliance. While there are currently no reported cases of corruption
involving cryptocurrency and non-fungible tokens (NFTs), courts recently had to consider
whether NFTs bear proprietary rights, i.e., whether they have sufficiently unique characteristics
that would enable a court to protect the assets as property. Investigators and prosecutors also
undergo regular training to upskill themselves in blockchain technology.
12. THAILAND: Policy corruption is a new and emerging form of corruption in Thailand. Unlike
typical corruption cases, which can be classified as passive corruption, policy corruption is
active corruption committed by a political group to achieve political benefits. It also involves
very complex schemes perpetrated by high-level administrators that benefit those high-levelinterests who claim the policy is in the national interest, amend existing law and policy, andresult in unreasonable benefits to the few at the expense of the many. Policy corruption schemes
were introduced that involved the Ministry of Public Health, where a high-level official in theministry was paid a bribe to remove price ceilings on pharmaceutical drugs, which increased
the price of these drugs by 300 per cent. To counter these corrupt practices, Thailand requires
political parties to conduct a Political Corruption Risk Indicator (PRI), which identifies theorigins of the new policy scheme, and formally connects the policy to a particular party, andrequires the party to conduct a corruption risk assessment for the purpose of helping the people
decide which political party to vote for. In the past, many corruption schemes were domestic,
meaning that the assets remained in Thailand subject to its jurisdiction. Recently, however,even policy corruption has involved transferring assets to neighbouring countries. Accordingly,
MLA is of great importance in recent corruption cases. The Office of the Attorney General(OAG) serves as Thailand’s Central Authority, and a case was introduced demonstrating
successful prosecution of the defendants in the United States. The American bribe givers paid
bribes in Thailand and other countries in connection with an international film festival, but thecase study explored challenges faced in large-scale MLA and asset-recovery cases.
13. TIMOR-LESTE: The Anti-Corruption Commission (CAC) places great emphasis on promoting
public participation and civic engagement in anti-corruption efforts. Corruption is a grave
global phenomenon that hinders national development, slows economic growth, widens
inequality gaps and harms the environment. The Timorese Constitution guarantees the right ofactive participation of all citizens in society and respect for the principle of democracy, andTimor-Leste’s anti-corruption laws echo the importance of broad public participation,
including civil society organizations, the private sector etc., in anti-corruption efforts. A newlaw requires a national anti-corruption strategy and disclosure requirements on assets andincome of public officials. Negative public response to the defamation law, which was revoked,
was an important step in protecting free speech and the right of persons to report corruption. In
the context of Covid-19 corruption, the CAC plays an important role in ensuring proper
oversight and sufficient internal control systems by mobilizing civil society, youth and otherkey stakeholders. These efforts resulted in the recovery of USD 4 million to the state treasury.
Despite the CAC’s efforts, strong political will remains a problem, and significant lack ofpublic understanding of the harm caused by corruption remains. To address these issues, anintegrated anti-corruption work plan needs to be promoted which requires full public
participation. Regarding the prosecution of corruption cases, the Law 7/2020 on Measures toPrevent and Combat Corruption was adopted on 26 August 2020 and was promulgated by the
President. This law replaces other legislation related to preventing and combating corruption,

-- 15
15 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

including the Penal Code, creates new categories of illegal acts and concentrates all corruption
crimes in a single law. Law 7/2020 defines corruption crimes as those committed while
exercising public roles, passive corruption of public officials for illegal acts, passive corruptionof public officials for legal acts, active corruption of public officials, embezzlement,
embezzlement of public property, violation of the participation right and equal candidacy inprocurement, sale or concession tenders, abuse of power, profiting from economic interest in
business and conflicts of interest.
14. VIET NAM: Corruption in the public sector has been a persistent problem in Viet Nam in theforms of economic corruption (to obtain money and material things), abuse of power andpolitical corruption. Emerging corruption cases include the use of false identity documents inthe commission of crime and the use of legal entities, subordinates and relatives to participate
in corrupt schemes. Thus, legitimate entities, bank leaders (white collar criminals) and people
without significant criminal backgrounds are being used to commit corruption and fraud that
results in significant state losses. These crimes are becoming more complex, and they involve
transnational aspects that require international cooperation to address. The Supreme People’s
Procuracy (SPP) exercises the public prosecution function and supervises judicial activities toensure that the law is implemented in a fair manner, including that all corruption cases areproperly prosecuted and that all available corrupt assets are recovered. Regarding international
cooperation, Viet Nam strictly follows the spirit of UNCAC and has been committed toparticipation in UNCAC’s IRM. The SPP is the Central Authority for MLA, and Viet Nam hasentered MLA treaties with numerous States. While corruption remains a serious issue, the SPP
has been actively working to improve its anti-corruption practices through enforcement, MLA
and asset recovery.
15. JAPAN: Despite ranking highly in Transparency International’s Corruption Perception Index,
Japan is not immune to corruption. Like many other countries, Japan fell victim to Covid-19
corruption in an amount exceeding 17 billion yen (as of Oct. 2022). While much of the fraud
was committed by members of the public, a number of public officials were convicted for theirroles in various schemes, demonstrating the need for greater efforts to enhance integrity in the
public sector. Corruption in sport was also reported in connection with the 2021 Tokyo
Olympics. One corruption scheme involved corporate executives bribing a board member of
the Tokyo Olympic organizing committee in order to secure a corporate sponsorship agreement.
Although board members of major international events are not public officials, they are“deemed public officials” under Japanese law and can be punished as such for engaging in
corruption. To facilitate investigation and prosecution of corruption and other serious cases,
Japan introduced a cooperative agreement system that entered into force in 2018. The new
system allows suspects and defendants to enter into negotiations with public prosecutors,
whereby evidence of others’ criminal conduct can be provided in return for criminal charges
being reduced or dropped. Cooperative agreements can be used for white collar crimes such as
fraud, bribery and so on.

CONCLUSIONS AND RECOMMENDATIONS
16. In the absence of a globally accepted definition of corruption, new and emerging forms can bedifficult to define and identify. The challenging nature of such efforts is complicated bydifferences in language, political philosophies and legal systems, domestic legislation(including definitions of corrupt acts and the issue of private-sector corruption), social norms
etc., and these differences can impede efforts to combat corruption when cases involve- 16 - 16 -

CHAIR’S SUMMARY

transnational elements. Despite, or perhaps because of, these many differences, UNCAC callson States parties to provide the “widest measure of cooperation and assistance” when engaging
in mutual legal assistance, asset recovery and technical assistance (UNCAC, Arts. 46, 51 and60.2). In many cases, new and emerging forms of corruption are new variations on old themes– new modus operandi for committing corruption-related crimes such as abuse of power,
embezzlement and bribery, and new money-laundering measures to conceal and transfer theproceeds of corruption.
17. Among the numerous forms of corruption discussed during the seminar, Covid-19 corruption,
corruption in sport, and the use of digital assets and electronic transfers in corruption andmoney-laundering stand out as new and emerging forms of corruption that many countries are
dealing with or are likely to face in the near future. In developed and developing countries alike,
Covid-19 corruption has taken many forms, including abuse of power, bribery, conflicts ofinterest, embezzlement, fraud, price gouging, etc. Public officials – alone or in concert withothers – have created illegal schemes to line their pockets with public funds at the expense of
members of the general public who are in desperate need of government assistance. Likewise,
corruption in sport is a growing concern that threatens the integrity of athletics and othercompetitions (including e-sports), undermining public confidence in the fairness of publicly
held events. Some cases involve rigging the outcome of a particular competition (e.g., to gain
illicit proceeds from gambling), while other cases involve corruption in the administration orsponsorship of major sporting events to unfairly obtain financial benefits through bribery,
conflicts of interest etc. at the expense of private-sector competitors or the public. Finally,
digital assets and electronic transfers have been used as a means to facilitate corruption andmoney-laundering. Cryptocurrencies and NFTs are used to pay, transfer and conceal bribes andother corrupt payments, and business professionals engaged in white collar crime continue tohelp corrupt clients move and hide their illicit proceeds.
18. To counter these and other new and emerging forms of corruption effectively, States parties areinvited to consider the following recommendations:A. Address Covid-19 corruption by (1) creating, implementing and updating corruption risk
management strategies for programmes, projects and subsidies that may be targeted bycorruption, such as by imposing internal controls, conducting audits and ensuring oversight,and (2) requiring continuous integrity training for public officials and verifying integrity
through regularly updated and transparent asset, income and conflict-of-interest
disclosures;
B. Address corruption in sport by (1) extending integrity training and verification practices,
as well as oversight and enforcement functions, to individuals and private-sector entities
involved in major international sporting events and (2) promoting public awareness ofcorruption in sport, its links with criminal organizations and impact on sustainable
development by targeting youth and other relevant stakeholders;C. Address the use of digital assets and electronic transfers in corruption and moneylaundering by (1) establishing specialized units to engage in special investigation
techniques, including real-time data interception and seizure of electronic assets, (2)conducting basic training for criminal justice practitioners on the use of technology in thecommission of crime, and (3) combating white collar crime by ensuring proper regulationand oversight of financial, accounting, legal and other professional advisers;

-- 17
17 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

D. Continue efforts to identify new and emerging forms of corruption by, among others,
pursuing efforts to utilize databases and AI technologies to evaluate corruption trends andconduct investigations;E. Within the scope of UNCAC, reinforce basic anti-corruption measures and practices toaddress new and emerging threats, such as preventive measures, criminalization and law
enforcement, and the “widest measure of cooperation and assistance” when engaging inmutual legal assistance, asset recovery and technical assistance;
F. Allocate sufficient resources to central and competent authorities to strengthen theircapacity to conduct investigations and engage in international cooperation, which isnecessary to counter new and emerging forms of corruption, including investigativetechniques using new technologies;
G. Enhance international cooperation and technical assistance, including by sharing goodpractices and effective countermeasures, to establish robust mechanisms for raising publicawareness, maintaining the integrity of public officials, conducting effective oversight, andtraining to counter new and emerging forms of corruption.
16 DECEMBER 2022
TOKYO, JAPAN- 18 - 18 -

EXPERTS’ CONTRIBUTIONS

Mr. Andrew Cheung
Principal Investigator, Operations Department
Independent Commission Against Corruption
Hong Kong Special Administrative Region
People’s Republic of China

Mr. Giovanni Gallo
United Nations Office on Drugs and Crime- 19 - 19 -

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE- 20 - 20 -

EXPERTS’ PAPERS

NEW AND EMERGING FORMS OF CORRUPTION AND THE
EFFECTIVE COUNTERMEASURES
Andrew Cheung *I. INTRODUCTION
This paper will discuss the new and emerging forms of corruption and the effective
countermeasures from the perspective of a practitioner with the Operations Department of the
Independent Commission Against Corruption (ICAC) of the Hong Kong Special
Administrative Region of the People’s Republic of China (PRC). For a better understanding of
the approach taken by the ICAC, this paper will set out the brief history of the ICAC, the anticorruption strategy adopted by it to stem out the then widespread corruption, the transformationof the corruption scene in Hong Kong in recent decades, and finally outline the corresponding
countermeasures in response to the new and emerging forms of corruption.
II. BRIEF HISTORY OF THE ICAC
In Hong Kong in the late 1960s and early 1970s, corruption was rampant and was a way oflife. Public services, such as nursing care at hospital, were provided on condition that the patient
was willing to pay the bribe. Corruption seriously undermined the legitimacy of the public
administration, and, therefore, distrust grew substantially between the public and the thenadministration. The administration sensed the alarming distrust and pressed for theestablishment of a new watchdog – the ICAC.
In late 1970 when moving the second reading of the Prevention of Bribery Bill – the very
weapon with which the ICAC was equipped to crack down on corruption – the then Attorney
General made a remark that succinctly outlined the acute situation in Hong Kong as follows:
Sir, it is impossible to assess with any accuracy the extent to which society in Hong
Kong is affected by corruption… But… corruption does exist here to an extent which
not only justifies, but demands, that the utmost efforts be made to eradicate it from our
public and business affairs…
It was against such backdrop that the ICAC was established. In March 1974, the ICAC
became the new organization charged specifically with the responsibility to combat corruption.
It was given extensive special investigative powers that changed the way corruption had beentackled in the past. Most importantly, to underscore its independence, the control of the ICAC
was shifted from the Attorney General to the Commissioner who was appointed by andaccountable to the then Governor. In fact, after the resumption of the exercise of sovereignty
over Hong Kong by the PRC, the accountability system remained, save that the Commissioner
is now held accountable to the Chief Executive. Its independence is further entrenched into
Article 57 of the Basic Law, which provides:
Principal Investigator, Operations Department, Independent Commission Against Corruption, Hong Kong
Special Administrative Region, People’s Republic of China.

*

-- 21
21 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

A Commission Against Corruption shall be established in the Hong Kong Special
Administrative Region. It shall function independently and be accountable to the Chief
Executive.
Independence aside, the accountability of the ICAC is seen in the set-up of the Operations
Review Committee (ORC) which, comprising 13 non-official members, monitors all ICAC
investigations. The ORC, appointed by the Chief Executive, meets regularly to receive status
reports on all cases and monitors investigations, people on bail and court cases. The ORC
directs follow up investigations and referrals of cases which can include advice for internal
disciplinary actions or administrative reform. Its purpose, among others, is to ensure that there
are no cover-ups and failures of the ICAC to pursue matters that should be investigated. It isa bold innovation in terms of the check and balance regime that can rarely be seen in otherforeign counterparts to allow such substantial involvement of civilians in the daily operational
matters of an anti-corruption watchdog. The set-up of the ORC by itself underlines the valueof independent oversight and review of the operational aspects of the ICAC’s work.
III. THREE-PRONGED APPROACH
It should be noted that at the outset the ICAC was intended not only to combat corruption
by means of enforcement, but also in a holistic manner by prevention and education. Suchapproach was codified in section 12 of the Independent Commission Against Corruption
Ordinance, Cap. 204, Laws of Hong Kong which provides:
It shall be the duty of the Commissioner, on behalf of the Chief Executive, to –(a) receive and consider complaints alleging corrupt practices and investigate
such of those complaints as he considers practicable;(b) investigate –(i) any alleged or suspected offence under this Ordinance;(ii) any alleged or suspected offence under the Prevention of Bribery
Ordinance (Cap. 201);(iii) any alleged or suspected offence under the Elections (Corrupt and Illegal
Conduct) Ordinance (Cap. 554);(iv) any alleged or suspected offence of blackmail committed by prescribed
officer by or through the misuse of his office;(v) any alleged or suspected conspiracy to commit an offence under thePrevention of Bribery Ordinance (Cap. 201);(vi) any alleged or suspected conspiracy to commit an offence under theElections (Corrupt and Illegal Conduct) Ordinance (Cap. 554);(vii) any alleged or suspected conspiracy (by 2 or more persons including aprescribed officer) to commit an offence of blackmail by or through themisuse of the office of that prescribed officer;(c) investigate any conduct of a prescribed officer which, in the opinion of theCommissioner, is connected with or conducive to corrupt practices and toreport thereon to the Chief Executive;(d) examine the practices and procedures of Government departments and publicbodies, in order to facilitate the discovery of corrupt practices and to secure
the revision of methods of work or procedures which, in the opinion of theCommissioner, may be conducive to corrupt practices;(e) instruct, advise and assist any person, on the latter’s request, on ways in which
corrupt practices may be eliminated by such person;- 22 - 22 -

EXPERTS’ PAPERS(f)advise heads of Government departments or of public bodies of changes inpractices or procedures compatible with the effective discharge of the duties
of such departments or public bodies which the Commissioner thinks
necessary to reduce the likelihood of the occurrence of corrupt practices;(g) educate the public against the evils of corruption; and(h) enlist and foster public support in combatting corruption.
Organizationally, the ICAC comprises the Operations Department, the Corruption
Prevention Department, the Community Relations Department as well as the International
Cooperation and Corporate Services Department. The former three departments were charged
with the respective responsibilities as per the ICAC Ordinance detailed above. 1 This in a way
reflected the three-pronged approach the ICAC has been employing since its establishment.
Looking back, it was quite a novel approach especially in comparison with the then foreigncounterparts who largely intended their anti-corruption watchdog to be an investigatory body
only. The rationale for such a broad and novel approach to the problem of corruption was
explained by the then Colonial Secretary on the occasion of the second reading of the ICACBill:
It is the intention of the Commission to concentrate much of its energies on theprevention of corruption. In the past our efforts in dealing with the problem havetended to be concentrated mainly on the punishment of it and I believe honourable
Members will support the organisation of the Commission into three complementary
departments for if the problem of corruption is to be tackled successfully, our efforts
must not only be directed at the detection and punishment of offenders but also at thesocial causes and administrative sources of corruption.
Shortly after the establishment of the ICAC, corruption in Hong Kong was substantiallycut down. Not only were the corrupt criminals brought to justice but the seeds of anticorruption were sowed in the public administration and the civic society, much thanks to theexcellent work by the prevention and education arms of the ICAC.
In fact, the three-pronged approach is also in line with requirements of the United Nations
Convention Against Corruption (UNCAC), which urges the States parties to tackle corruption
using a comprehensive approach comprising enforcement, prevention and education measures.
IV. CHANGES IN THE CORRUPTION SCENE
From 1974 till now, the ICAC has been actively enforcing the anti-corruption laws andwitnessing the shift of the corruption scene in terms of, inter alia, the case figures in the public
and private sectors, as well as the case typologies in recent years. The following table outlines
the figures of corruption complaints in the public and private sectors:

Points (a), (b) and (c) correspond to the works of the Operations Department; (d), (e) and (f) to the Corruption
Prevention Department; and (g) and (h) to Community Relations Department.

1

-- 23
23 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Figures of Corruption Complaints

Note: A corruption report may contain multiple complaints against different government departments / publicbodies / industries. Commencing 2010, corruption statistics have been compiled on the basis of complaints
instead of reports

Corruption complaints against the public sector took the largest share in the first few years
following the establishment of the ICAC. This trend should be read in the context that thecreation of the ICAC was a direct response by the then administration to dismantle the deeply
rooted corruption syndicates in the then civil service in Hong Kong, and, therefore, the generalpublic would be eager to come forward to the ICAC to lodge corruption complaints against thecivil service.
1977 was a watershed year for the ICAC. The huge success in cracking down on thecorruption syndicates in the first few years had been won at huge cost to the police. Police
morale was low and there was building resentment over the way that the ICAC usedaccomplices as prosecution witnesses in its investigation. The prevalent use of accomplices
turned colleague against colleague and created an atmosphere of suspicion and mistrust
between police officers. Given the sentiments, coupled with an operation in late 1977 resulting
in the mass arrest of over 140 police officers for alleged involvement in syndicated corruption,a group of police officers marched to and raided the office of the ICAC with a view to protesting
against the latter’s rigorous enforcement. The crisis did not end with the demonstration – itescalated further because the police demanded an outright response by the then administration
to abort the corruption investigation against the police. Since the matter had been elevated toa security issue threatening a breakdown of law and order, the then administration promulgateda partial amnesty that was subsequently inserted into the ICAC Ordinance as section 18A.
It is against the above backdrop that Hong Kong saw corruption complaints against the
public sector plummet in 1977. After a decade’s time of vigilant enforcement against public
sector corruption, the pleasing result was seen in the year of 1988 when the number of private
sector corruption complaints outnumbered that of the public sector for the very first time since
the establishment of the ICAC. And such a bifurcated trend remains as of today.

- 24 - 24 -

EXPERTS’ PAPERS

A. Case Typologies
In terms of case typologies, those in the public sector and private sector are different innature, complexity and modus operandi. Before illustrating their respective trends in recent
decades, it is helpful to first set out their legal principles.
The workhorses of the ICAC in prosecuting corruption in the public and private sectors are
sections 4 and 9 2 of the Prevention of Bribery Ordinance (POBO), Cap. 201, Laws of Hong
Kong, respectively.
In regard to public sector corruption, section 4 of the POBO provides:(1) Any person who, whether in Hong Kong or elsewhere, without lawful authority
or reasonable excuse, offers any advantage to a public servant as an inducement
to or reward for or otherwise on account of that public servant’s –(a) Performing or abstaining from performing, or having performed or
abstained from performing, any act in his capacity as a public servant;(b) Expediting, delaying, hindering or preventing, or having expedited,
delayed, hindered or prevented, the performance of an act, whether bythat public servant or by any other public servant in his or that otherpublic servant’s capacity as a public servant; or(c) Assisting, favouring, hindering or delaying, or having assisted,favoured, hindered or delayed, any person in the transaction of any
business with a public body,shall be guilty of an offence.
(2)

Any public servant who, whether in Hong Kong or elsewhere, without lawfulauthority or reasonable excuse, solicits or accepts any advantage as an
inducement to or reward for or otherwise on account of his –(a) Performing or abstaining from performing, or having performed or
abstained from performing, any act in his capacity as a public servant;(b) Expediting, delaying, hindering or preventing, or having expedited,
delayed, hindered, or prevented, the performance of an act, whether byhimself or by any other public servant in his or that other public
servant’s capacity as a public servant; or(c) Assisting, favouring, hindering or delaying, or having assisted,favoured, hindered or delayed, any person in the transaction of any
business with a public body,shall be guilty of an offence.
In regard to private sector corruption, section 9 of the POBO provides:(1) Any agent who, without lawful authority or reasonable excuse, solicits or accepts
an advantage as an inducement to or reward for or otherwise on account of his–
Sections 3 (Soliciting or accepting an advantage), 5 (Bribery for giving assistance, etc. in regard to contracts),
6 (Bribery for procuring withdrawal of tenders), 7 (Bribery in relation to auctions) and 8 (Bribery of public
servants by persons having dealings with public bodies) of POBO are also other offences used to prosecute
bribery. For illustration purpose, the present discussion would focus on sections 4 and 9 of POBO.

2

-- 25
25 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE(a) Doing or forbearing to do, or having done or forborne to do, any act
in relation to his principal’s affairs or business; or(b) Showing or forbearing to show, or having shown or forborne to show,
favour or disfavour to any person in relation to his principal’s affairs
or businesses,
shall be guilty of an offence.
(2) Any person who, without lawful authority or reasonable excuse, offers any
advantage to any agent as an inducement to or reward for or otherwise on
account of the agent’s –(a) Doing or forbearing to do, or having done or forborne to do, any act
in relation to his principal’s affairs or business; or(b) Showing or forbearing to show, or having shown or forborne to show,
favour or disfavour to any person in relation to his principal’s affairs
or businesses,
shall be guilty of an offence.
A person can be guilty of the above offence if he offers an advantage to an agent, or being
an agent, he solicits or accepts an advantage. However, there is no mention of the word
“corruption”, or variants of it, in these offences. Proof of corruption comes from establishingthat the advantage was offered, solicited or accepted “as an inducement to, reward for orotherwise on account of” the agent doing an act in his capacity as a public servant (section 4);
or an act in relation to his principal’s affairs (section 9).
Notwithstanding the slight variances in the words employed by sections 4 and 9, the corerequirement of the need to establish the purpose, be it “as an inducement to, reward for orotherwise on account of”, of the advantage being offered, accepted or solicited stands the same.
Such purpose is an element of the offence which makes the conduct of the offering, solicitingor acceptance of the advantage corrupt, and hence it is essential that it be proved.
One can imagine the proving of such linkage would rely on the utterance of at least one
party to the crime to tell the investigators how the corruption scheme is orchestrated. Whenthe ICAC was established, the initial scepticism of the public towards its effectiveness soonturned to unswerving support because of both the positive case results and complete
convictions exhibited by the investigators. Therefore, quite a number of offerors, especiallythose who had succumbed to the undue requests by the corrupt public servants, were willing tocome forward and lodge complaints with the ICAC to testify against the corrupt public servants.
As a result, the ICAC yielded a number of successful prosecutions concerning public sector
corruption, and dismantled the deeply-rooted corrupt syndicates in a very quick and effective
manner.
B. The Prevalent Use of the Common Law Offence “Misconduct in Public Office” toProsecute
After almost two decade’s rigorous enforcement, the corruption situation in the public
sector stabilized. But it does not mean that corruption was completely rooted out; instead, there
were cases where public servants abused their position and powers for the benefit of themselves
or others, used their discretionary power improperly, showed favours to a particular contractor
for personal interest, and wilfully neglected to perform their duties. All such behaviours
undoubtedly exhibited signs of deviation from integrity and fidelity; however, they did not- 26 - 26 -

EXPERTS’ PAPERS
involve the solicitation or acceptance of advantages, and hence escaping from the reach ofsections 4 and 9 of the POBO.
This became a problem, namely that there was no statutory crime targeting the
aforementioned misbehaviour. So, attention inevitably turned to the common law offence inthe hope that it might complement the existing bribery laws by filling a gap left by an ordinancethat otherwise exhaustively dealt with all possible permutations of bribery by and of public
officials.
C. Private Sector Corruption
As compared to public sector corruption against which the legislature had created several
offences 3 to combat, section 9 is the only offence in the POBO dedicated solely to corruption
in the private sector, but it is limited in its scope by the requirement that there exists a
principal/agent relationship and that the principal’s interests are prejudiced or at risk of being
prejudiced by the secret actions either of his corrupt agent or by a person with whom he ishaving dealings who seeks to corrupt his agent. This is the traditional narrow view ofcorruption which is typically found in anti-corruption legislation and is even reflected in Article
21 of the UNCAC, which proscribes the offering, solicitation or acceptance of undue
advantages to or by the employees of private sector entities “in order that he or she, in breachof his or her duties, act or refrain from acting”. Thus, the focus of UNCAC and other similar
offences is on conduct which undermines the integrity of the agent in his relationship with his
principal. But a caveat must be added here that not all acts that undermines the integrity of theagent in his relationship with his principal are subjected to criminal sanctions. The very act
that section 9 is intended to address is one of “secret commissions”. Thus, in order that theoffence can be established, the principal must be unaware of what is taking place, or otherwise
a defence of the principal’s consent, be it express or implied, would be pleaded by the corrupt
agent.
Those who make their living by earning agency commissions on sales or other transactions,which account for a large portion in the commercial world nowadays, are under the radar ofsection 9. Given the rapid economic development in Hong Kong over the last half century, theprosperous economic activities naturally brought about a higher number of cases of corruption
in the private sector.
Although the corruption-complaint figures in the private sector remained steady over the
past two decades, there is an uprising trend of prosecution of s.9 offences in conjunction withother common dishonest offences, such as fraud, deception and theft (both in their substantive
and inchoate forms), as well as serious and organized crimes, such as money-laundering, thetrafficking of dangerous drugs, illegal gambling and smuggling. In many instances, corruption
is a predicate offence that facilitates the commission of the underlying substantive crime.
Therefore, in the majority of corruption investigations nowadays, the scope of the investigation
very often goes beyond corruption to include crimes that are connected with or facilitated bycorruption.
Rapid change in technology plays a highly influential role in driving how corruption
investigation, especially in the private sector, is undertaken. The continuing advances inscience and technology undoubtedly have a far-reaching impact in all areas of humanendeavour. Insofar as corruption is concerned, when nowadays communication goes largely
3

Please refer to note 2 for the list of provisions dealing with public sector corruption.

-- 27
27 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

virtual, the chance of collecting direct evidence to prove the corrupt negotiation of the parties
becomes slimmer than that in the past, not to mention the fact that most instant messaging
platforms are now designed with message self-destruction function. The situation was
aggravated by the outbreak of Covid-19. The daily life of people has been changed and manyof them worked from home, and avoided or were prevented from meeting with others due tosocial distancing measures and travel restrictions. Investigators are to exhaust all conceivablemeans to collect more and more circumstantial evidence than ever in the past to prove to thecourt of law that the accused is beyond reasonable doubt guilty of corruption offences.
The increasing trend of globalization requires investigators to look beyond the traditional
concepts of physical locations and territories. In this day and age, businessmen handle
multinational projects and need to deal with cross-border transactions. And many are engaged
in transactions in cyberspace with no physical boundaries. This global development meansthat law enforcement agencies, including corruption investigators, are required to tackle crossborder criminal activities. Under the current complicated geopolitical climate, investigators
would come to a standstill on occasions when the investigation in question involves anadversarial foreign jurisdiction, rendering informal law enforcement cooperation and mutual
legal assistance unfeasible and inviable. This in a way makes cross-border investigation
counterproductive.
V. MEETING THE NEW CHALLENGE
To meet the aforementioned challenges, first and foremost we must ensure that there is andcontinues to be a solid and effective infrastructure that consists of a sound legal framework, aneffective enforcement agency, an independent judiciary to uphold the rule of law, and equallyimportant, a supportive community. These have been covered in the previous paper submitted
by a participant from the ICAC, 4 and thus are not intended to be repeated here.
In the fight against corruption, an anti-corruption watchdog can never afford to becomplacent regardless of how much remarkable progress has been made to reduce andminimize the risk of corruption. Every era gives rise to fresh challenges, and thus investigatorsneed to be alert to new trends and new types of corruption-related activities, and must adapt
and update their skills and knowledge in combating corruption. In addition, investigators alsoneed to respond to changing circumstances promptly and appropriately, and have to anticipatechanges and devise strategy to cope with the problems.
Over the years, the ICAC has been sparing no efforts in sharpening investigative
capabilities. During the past decade, in order to improve work efficiency and streamline work
procedures, the ICAC implemented the new Operations Department Information System(OPSIS), which serves as the one-stop-hub to digitalize the corruption investigation process.
OPSIS also acts as a centralized database that stores the information on the parties involved in
the case. This lays one core pillar of the infrastructure supporting the efficient conducting ofcorruption investigation in the ICAC because it allows investigators to identify the otherwise
undetectable linkage between the relevant corrupt parties.
To further strengthen investigative capabilities, the ICAC invented the Records
Digitalization System (RDS) that consolidates and analyses the usually voluminous case data

4

https://www.unafei.or.jp/publications/pdf/RS_No105/No105_16_IP_HongKong.pdf- 28 - 28 -

EXPERTS’ PAPERS
such as bank transactions, greatly facilitating the corruption investigation and unearthing the
intricate relationships of the corrupt and their associates.
As mentioned before, the scope of corruption investigation extends to many other offencesthat intermingle with the underlying corruption. Their effective crack-down needs a contextspecific understanding of a wide variety of issues, for example the product knowledge of
relevant industries and the legal principles emanating from recent judicial decisions that dictate
the way investigators collect admissible evidence. A thorough understanding of such issues isthus of paramount importance to successful corruption investigation. However, learning takes
time, so a systematic self-help repository substantially promotes efficiency. To close the gap,
the ICAC rolled out the Information and Knowledge Management System (IKMS) – a platform
which identifies, captures and retains valuable information, knowledge and experience related
to the work of the investigators. It turns disparate information, knowledge and experience intoa structured system to train, inform and assist investigators to better discharge daily
investigative duties. Now, investigators no longer need to spend time on figuring out who totalk with and learn from; they look up in IKMS and locate the answers to their questions
conveniently.
There are many other technological tools and systems in place in the ICAC to facilitate thedaily work of the investigators. But law enforcement agencies, especially those who are
predominantly involved in combating white-collar crimes like the ICAC, shall stay vigilant
about the technological know-how to make sure that they are always one step ahead of thecriminals.
Further, as Hong Kong is an international financial centre, ICAC’s expertise in tacklingcorruption in the financial market must be continuously developed given the rapidly evolving
nature of the financial system. To this end, in 2019 and 2021, respectively, the ICAC enteredinto Memorandums of Understanding (MoUs) with the Securities and Futures Commission andthe Financial Reporting Council to formalize and strengthen cooperation in fighting against
corruption, illicit activities and malpractice in the financial market. The MoUs cover a rangeof matters including referral of cases, joint investigations, exchange and use of information,
mutual provision of investigative assistance, as well as capacity-building.
VI. THE WAY FORWARD
In the era of big data, a corruption watchdog shall make good use of the massive historicaland ongoing data generated from corruption investigation to assess the corruption scene, makeinformed decisions and allocate resources based on predictive analysis to maximize theenforcement effect while minimizing the resources needed.
Firstly, artificial intelligence should be promoted to increase both efficiency andeffectiveness at work. For example, investigators quite often come across voluminous video
and image analysis and need to examine them to elicit information regarding people, objects
and actions to support criminal investigations. The examination exercise is labour intensive,
and there are existing analytical tools to crop the relevant part of video and image byinvestigators to further the corruption investigation. Artificial intelligence should be
proactively and widely used in other areas of the investigative work.
Secondly, undertaking crime forecasting by suitably tapping on the historical and ongoingcase data can help the anti-corruption watchdog allocate resources more accurately. As

-- 29
29 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

explained, the corruption landscape changes from time to time. Those managing the anticorruption watchdog need to engage themselves in predictive analysis, which utilizes large
volumes of data to forecast and formulate potential outcomes, and predict and reveal people orestablishments at risk from such enterprises. When suitable, the anti-corruption watchdog can
deploy resources and intervene early to frustrate corrupt criminal enterprises so that the spillover damages to society can be kept to the minimum. In contrast with the traditional approach,which relies substantially on the expertise and experience of the human analyst, such predictive
analysis operated by artificial intelligence hugely improves efficiency and accuracy, thereby
assisting management in optimizing resources in a more precise manner.
Last but not least, the trend of cross-border corruption is on the rise, and as a resulttransnational anti-corruption enforcement is urgently needed more than ever before to preventthe corrupt from abusing the high accessibility to the global financial systems to advance theircorrupt schemes and hide corrupt proceeds. But nowadays the tension and friction ininternational relations render the multilateral law enforcement cooperation and mutual legal
assistance regime counterproductive. Cooperation and multilateralism must be restored todrive forward development and ensure that some of the world’s most pressing issues, including
corruption, can be more effectively tackled and their ill-effects reversed.
VII.

CONCLUSION

Corruption is a complex challenge that continues to persist in many countries across theworld. It has a direct impact on the three dimensions of sustainable development – social,economic and environmental – and affects each of the five pillars of the United Nations 2030
Agenda: people, planet, prosperity, peace and partnerships. The 2030 Agenda has establishedanti-corruption as a global imperative on which hinges the achievement of all sustainable
development goals. Goal 16 is rooted in human rights and highlights the importance ofstrengthening institutions and governance in our pledge to leave no one behind. It is hopedthat by a discussion from multiple perspectives the readers of this paper will be informed of
the new and emerging forms of corruption and the effective countermeasures, in order thatpractitioners in the anti-corruption community are equipped with the necessary know-how todevise strategies, appropriate and consistent with their domestic legal systems, to call a halt tothe evil phenomenon of corruption.

- 30 - 30 -

EXPERTS’ PAPERS

THE UN CONVENTION AGAINST CORRUPTION: THE CONFERENCE
OF THE STATES PARTIES TO THE CONVENTION, ITS
IMPLEMENTATION REVIEW MECHANISM AND NEW AND EMERGINGCORRUPTION FORMS
Giovanni Gallo *I. NEW AND EMERGING FORMS IDENTIFIED BY THE GENERAL ASSEMBLY
In June 2021, the General Assembly held an unprecedented special session against
corruption that culminated in the adoption of a high-level political declaration 1 in which
Member States “pledge[d] to pursue a multilateral approach in preventing and combating
corruption and reaffirm[ed] [their] strong commitment to the Convention as the mostcomprehensive legally binding universal instrument on corruption, and to integrating it into
[their] domestic legal systems, as necessary”. Member States further stated: “We reaffirm our
support for the bodies created under the Convention, most notably the Conference of the States
Parties to the United Nations Convention against Corruption and the Mechanism for the
Review of Implementation of the Convention, which are leading to important improvements
and progress in the implementation of anti-corruption measures in many States parties. We will
step up our efforts to promote and effectively implement our anticorruption obligations androbust commitments under the international anticorruption architecture, which we as acommunity have created together, and will further work towards finding synergies andcommon solutions”. 2
Those deliberations represent a clear commitment to the existing anti-corruption normative
frameworks, to the United Nations Convention against Corruption (hereinafter, “UNCAC” or“the Convention”) and the bodies created under it, placing emphasis on the need to redouble
implementation efforts.
The political declaration contains seven operational sections. The first five, preventive
measures, criminalization and law enforcement, international cooperation, asset recovery andtechnical assistance and information exchange, mirror the chapters of the Convention. The
sixth and the seventh, on anti-corruption as an enabler for the 2030 Agenda for Sustainable
Development and advancing a forward-looking anti-corruption agenda and framework,
reaffirm the centrality of anti-corruption to the attainment of the 2030 Sustainable
Development Agenda, the need to strengthen anti-corruption measures in the United Nations
peacekeeping and peacebuilding efforts and the need to advance anti-corruption responses.
In particular, in the seventh and final section of the political declaration, Member Statescommit to ensuring that “appropriate measures are in place to prevent and combat corruption

United Nations Office on Drugs and Crime (UNODC).
See the Political declaration adopted through Resolution S-32/1 by the General Assembly at its special session
against corruption (June 2021), entitled “Our common commitment to effectively addressing challenges andimplementing measures to prevent and combat corruption and strengthen international cooperation”.
2
Ibid. 3.
*
1

-- 31
31 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

when responding to or recovering from national crises and emergencies, while striving not tonegatively impact the speed and quality of responses in such situations.” 3
In furtherance of these commitments, Member States also recognize the important role ofsupreme audit institutions and oversight bodies, the need to substantially decrease corruption
by 2030, and the central role of the Convention and its Implementation Review Mechanism(hereinafter, “IRM” or “the Review Mechanism”) “in global efforts to improve the capacity ofand cooperation among States parties to effectively and comprehensively prevent and combat
corruption.” 4Since its entry into force in 2005, the Convention has been used by States to prevent andcounter corruption in contexts that were unimaginable at the time of negotiating it. Despite thecontinuous emergence of new corruption risks posed by emergencies such as the Covid-19
pandemic or the emerging forms of corruption in sectors such as sport or wildlife, UNCAC
continues to provide a comprehensive framework for effective responses.
II. NEW FORMS OF CORRUPTION AND UNCAC IMPLEMENTATION
A. Innovative Resolutions of the Conference of the States Parties
As recognized by Member States and foreseen by the Convention, the Conference of theStates Parties (hereinafter “CoSP” or “the Conference”) plays a critical role in improving thecapacity of and cooperation between States in the implementation of the Convention. Its
resolutions provide direction to the secretariat and to States parties on focus areas aimed at
supporting their efforts to respond to new challenges faced by States or identified through the
IRM.
In December 2019, at its last session before the onset of the Covid-19 pandemic, theConference recognized the risks of corruption in sport and the environment as well as theimportance of education in addressing corruption at its root. In particular, the Conference
adopted resolution 8/4 on “Safeguarding sport from corruption” in which it reaffirmed its
commitment to further coordinating and strengthening efforts to mitigate the risk of corruptionin sport and reiterated the role of sport as an “important enabler of sustainable development”;
resolution 8/5 on “Enhancing integrity by raising public awareness”, in which it encouraged
States to build a culture of zero tolerance into national educational programmes to mitigate therisks of corruption; and resolution 8/12 on “Preventing and combating corruption as it relates
to crimes that have an impact on the environment”.
At the most recent session of the Conference held in December 2021, States parties
recognized new corruption threats, particularly those arising in the context of the Covid-19
pandemic as well as in other global emergencies and crises. This culminated in resolution 9/1
entitled “Sharm el-Sheikh declaration on strengthening international cooperation in theprevention of and fight against corruption during times of emergencies and crisis response andrecovery”. Through this resolution, States recognized that “corruption risks may increaseduring times of emergencies and crisis response and recovery as the urgency of needs, highdemand for economic and health-related relief and the speed with which Member States andparties to the Convention against Corruption are required to respond create opportunities for

3
4

Ibid., para. 73.
Ibid., paras. 74-76.

- 32 - 32 -

EXPERTS’ PAPERS
corruption…”. 5 The resolution highlights the risks that arise particularly in times of a national
or global emergency and the need for States parties to strengthen prevention, oversight andenforcement mechanisms to address those risks. To that end, the Conference notably urgedStates parties to strengthen “whole public procurement cycles”, building on prior efforts that
had focused on specific segments of the procurement cycle.
The global nature of emergencies and crises have underscored the importance ofinternational coordination and cooperation in responding to challenges, including thechallenges posed by corruption. In resolution 9/2, States parties reaffirmed the politicaldeclaration and committed to improving cooperation including with international and regionalorganizations. In view of the new challenges posed by the pandemic and other emergencies,
the Conference reiterated “the need to strengthen measures and develop new approaches” toidentifying and addressing challenges and gaps and overcoming obstacles in theimplementation of the Convention. 6
B. The Findings of the UNCAC Implementation Review Mechanism
The Conference took a bold step when it agreed at its first session to establish a mechanism
to assist States parties in reviewing the implementation of the Convention. The Mechanism
was thus established as a peer review process aimed at supporting States parties in theireffective implementation of the Convention. Reviews are conducted in accordance with the
Mechanism’s Terms of Reference, which require each State party to be reviewed by two peers,
one of which is from the same regional group, determined by a drawing of lots. The first cycleof the Review Mechanism commenced in 2010 and covers the substantive chapters of theConvention on criminalization and law enforcement and international cooperation. The second
cycle, launched in 2015, covers the substantive chapters on preventive measures and asset
recovery. The cornerstones of the Review Mechanism are its objectivity and impartiality, as it
consists of technical reviews undertaken by anti-corruption experts.
More than ten years since its establishment, and in view of the Convention’s almost
universal reach and the breadth of its substantive provisions, the Review Mechanism isunprecedented in terms of geographic and thematic reach. It has had a considerable impact on
States parties, leading to legislative reforms, improved institutional frameworks, enhanced
coordination and information-sharing among national institutions, strengthened international
cooperation, and overall increased capacity to prevent and act against corruption. The Covid19 pandemic exposed weaknesses in institutional and legal frameworks. Together with newchallenges arising from the emergency measures implemented in response to the pandemic, theneed to mainstream integrity and corruption-prevention measures has been further underscored.
An important element of the evolution both of corruption and the mechanisms to preventand counter it is the advancement of technology. The use of technologies in the fight against
corruption has attracted growing attention in recent years. Innovation in anti-corruption efforts
and the rapid development of those technologies have led to new approaches and solutions,
Resolution 9/1 adopted by the Conference of the States Parties to the United Nations Convention against
Corruption at its ninth session (December 2021), entitled “The Sharm el-Sheikh declaration on strengthening
international cooperation in the prevention of and fight against corruption during times of emergencies and crisis
response and recovery”.
6
Resolution 9/2 adopted by the Conference of the States Parties to the United Nations Convention against
Corruption at its ninth session (December 2021), entitled “Our common commitment to effectively addressing
challenges and implementing measures to prevent and combat corruption and strengthening international
cooperation: follow-up to the special session of the General Assembly against corruption”.
5

-- 33
33 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

which may be used to strengthen transparency and accountability, increase public participation
and build trust in government. Solutions based on information and communications
technologies provide citizens with direct access to government information and public services,limit face-to-face interaction with public officials, thus reducing opportunities for corruption,
provide direct communication channels with society and facilitate citizens’ feedback, and canbe used to build the capacity of preventive anti-corruption bodies, to facilitate inter-agency
coordination and to boost the effectiveness of anti-corruption efforts.
The development or use of technological tools is a cross-cutting need in the fight against
corruption or to minimize corruption opportunities. 7 Their use has been effective for
procurement systems, the management of conflicts of interest through online interest and asset
declarations, as well as for financial investigations and forensic accounting.
III. NEW AND EMERGING FORMS OF CORRUPTION AND RESPONSES
Chapter II (preventive measures), Chapter IV (international cooperation) and Chapter V(asset recovery) of the Convention provide States parties with comprehensive measures toprevent corruption and respond to corruption offences through international cooperation andasset recovery. The sections below provide an overview of the practices of implementation ofthese chapters to address all types of corruption risks arising in various contexts and sectors.
A. Preventive Measures
An entire chapter of the Convention is dedicated to prevention, with measures directed atboth the public and private sectors. These include model preventive policies, such as theestablishment of anti-corruption bodies and enhanced transparency in the financing of election
campaigns and political parties. States must endeavour to ensure that their public services are
subject to safeguards that promote efficiency, transparency and recruitment based on merit.
Once recruited, public officials should be subject to codes of conduct, requirements forfinancial and other disclosures and appropriate disciplinary measures.
1. Corruption Risk Management
The Convention requires States parties to have “effective and efficient systems of risk
management and internal control” as a means for promoting “transparency and accountability
in the management of public finances”. 8 All organizations and government institutions facerisks of corruption. Whether through the awarding of public contracts, the management ofpublic finances, payment of social benefits, or in any of the other ways in which a government
interacts with its citizens, there is the ever-present possibility that in the absence of measuresin place, corruption may occur.
Likewise, persons interacting with government institutions and public officials might try touse corruption to influence or circumvent rules, procedures and decisions. The challenge thatmost organizations face is identifying the points in their operations where corruption is most
Note of the Secretariat presented at the ninth session of the Conference of the States Parties to the United
Nations Convention against Corruption (December 2021), entitled “Analysis of technical assistance needs
emerging from the country reviews and assistance delivered by the United Nations Office on Drugs and Crimein support of the implementation of the United Nations Convention against Corruption” at para. 26, p. 9.
8United Nations Convention against Corruption (2004), art. 9, para. 2(d): “2. Each State Party shall, in
accordance with the fundamental principles of its legal system, take appropriate measures to promotetransparency and accountability in the management of public finances. Such measures shall encompass, interalia: […] (d) Effective and efficient systems of risk management and internal control; […]”.
7- 34 - 34 -

EXPERTS’ PAPERS
likely to occur, developing and implementing strategies to prevent such forms of corruption
from occurring, and ensuring that all members of the organization work with integrity toachieve the organization’s mandate. 9
Corruption risk management can contribute to the enhanced delivery of services to citizens
that is neutral and objective, prevent the loss of revenue or safeguard law enforcement
operations.
In implementing preventive measures and in the context of the Review Mechanism, several
States parties have identified risk management and, more specifically, the conduct of
corruption risk assessments, as a technical assistance need. The institutions targeted by suchrisk assessments ranged from public sector institutions in general and “corruption-prone
institutions” more specifically, to private sector entities. Such increased interest in risk
assessments has also been witnessed by UNODC during the Covid-19 pandemic.
IN FOCUS: Preventing Corruption Within Wildlife Authorities
In 2015, Kenya, and much of Eastern Africa, was experiencing a wildlife-poaching crisis,with numbers in flagship species decreasing by the day. In the media, corruption in the
wildlife sector was indicated as the main enabler of wildlife crime, with wildlife authorities
being accused of being corrupt and of facilitating the illegal wildlife trade. Furthermore, civilsociety and the public at large identified corruption as a key factor enabling wildlife crimeand illegal trade. In response to a request from the Government of Kenya, UNODC began
working with the Kenya Wildlife Service (KWS) to strengthen its internal mechanisms andsystems to better prevent future occurrences of corruption from taking place.
The project Preventing Corruption Within Wildlife Authorities, uses a risk mitigation
approach articulated in three steps:
1. First, establishing a working group of senior managers to identify and prioritize areas
vulnerable to risk.
2. The working group then develops risk mitigation strategies, which are detailed andsystematized with the view of addressing the root cause of each risk area.
3. Finally, a corruption prevention committee (CPC) is established within the institution
to ensure ownership and implementation of the risk mitigation strategies developed.
Often CPCs are composed of the senior managers from various divisions whodeveloped the risk mitigation strategies.
As the CPC progressively became empowered in its institutional role, it began to berecognized as an important committee to be included in various forums.
2. Education
The importance of education in preventing corruption and raising awareness of its harmful
effects was stressed by the Conference in its resolution 9/8, which called upon States parties topromote, at various levels of the education system, programmes that instil concepts andprinciples of integrity and accountability, and to devote special attention to working with young
people and children as part of a strategy to prevent corruption. The political declaration adopted
by the General Assembly in 2021 places anti-corruption education and training at the core of aholistic and multidisciplinary approach to promote transparency, accountability, integrity anda culture of rejection of corruption as a basis for preventing and countering corruption. In a
UNODC publication “State of Integrity: A guide on conducting corruption risk assessments in publicorganizations” (2015).
9

-- 35
35 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

meeting to follow up on the implementation of the political declaration held in September 2022,
Member States again emphasized the importance of education and of raising public awarenessof the existence and root causes of corruption and committed to furthering their efforts. 10
Building on the success of the Education for Justice (E4J) 11 and Anti-Corruption Academic(ACAD) initiatives, UNODC launched the Global Resource for Anti-Corruption Education andYouth Empowerment (GRACE) 12 initiative, to further promote the role of education and youth
empowerment in preventing and countering corruption. The GRACE initiative brings to theinternational community knowledge of and expertise in working with educators, academics,
children and youth, anti-corruption authorities and practitioners to foster a culture of rejectionof corruption. The initiative helps children and youth become responsible citizens and integrity
leaders of tomorrow by equipping them with skills and mindsets required to promotetransparency, accountability and integrity within their communities and organizations.
3. Public Procurement and Management of Public Finances
Mindful of the cases of corruption in the procurement of medical equipment and services
reported throughout the Covid-19 pandemic, more focus has been placed on the corruption
risks across the whole procurement cycle. Several States parties have identified technicalassistance needs related to public procurement, particularly to training requirements including
the conduct of risk-based procurement audits, the prevention and detection of fraud in public
procurement, the monitoring and evaluation of public procurement systems, the conduct ofprocurement investigations and the preparation of procurement investigation reports. Several
States parties have also adopted e-procurement systems, with enhanced oversight,
simplification and clarity being highlighted as benefits of their introduction. 13 In the quest forenhancing transparency, different practices have been observed. One State party reported
establishing a “transparency portal” for the budgeting process of public finances, while anotherprocessed state expenses (with certain exceptions) through an electronic database, following
the adoption of a new law on budgetary transparency. For enhanced transparency in public
spending, one anti-corruption body established an online tool compiling all financialtransactions in the public sector. Similarly, another State party established an electronic
dashboard for real-time tracking of budget and infrastructure spending. Driven by the Covid19 pandemic, data on expenses on health-care infrastructure had been added as a separate
category.
Finally, States recognize that oversight by supreme audit institutions or other bodies
remains critical to ensuring that public procurement or finance systems are used in accordancewith the legal framework in place.
IN FOCUS: The Abu Dhabi Declaration Programme
Given the broad range of offences that are covered by the Convention, it is critical torecognize that all parts of society have a unique yet complementary role to play in addressing
corruption. Accordingly, the work of anti-corruption bodies must be aligned in scope and“Outcome of the intersessional meeting of the Conference on the achievements of the political declaration
adopted by the special session of the General Assembly against corruption” (September 2022), at p. 5.
11
See website of the “Education for Justice” initiative.
12
See website of the “Global Resource for Anti-Corruption Education and Youth Empowerment” (GRACE)
initiative.
13
Note of the Secretariat presented at the ninth session of the Conference of the States Parties to the United
Nations Convention against Corruption (December 2021), entitled “Good practices and experiences of, andrelevant measures taken by, States parties after the completion of country reviews, including information related
to technical assistance” at para. 58, p. 13.
10- 36 - 36 -

EXPERTS’ PAPERS
supported by the work of other institutions that may play a part in the prevention, detection
and tackling of corrupt practices. Crucially, this includes supreme audit institutions, whoserole in monitoring the effective management of public resources and ensuring transparency
and accountability, makes them a pivotal entity in the response to corruption.
While traditionally not considered central entities in this area, supreme audit institutions
and their role have increasingly been recognized in international anti-corruption forums. At
the eighth session of the Conference, resolution 8/13 was adopted, calling for enhanced
collaboration between supreme audit institutions and anti-corruption bodies to more
effectively prevent and counter corruption. This resolution, and its subsequent discussions
at the ninth session of the Conference, underscore the critical role of supreme audit
institutions and their relationship with anti-corruption bodies in promoting integrity,
accountability, transparency and the proper management of public affairs and public
property.
This recognition comes at a highly relevant moment in time. As the pandemic
demonstrated, the vast amounts of resources allocated towards crisis response and recovery
efforts – often with weak or insufficient oversight and accountability measures –, lead toincreased opportunities for corruption.
4. Corruption in SportThe sport sector has undergone significant changes in recent decades. Globalization, a huge
influx of money at the top level of professional sport, the rapid growth of legal and illegal
sports betting and marked technological advances have transformed the way in which sport isplayed and consumed. These factors have also had a major impact on corruption in sport, bothin terms of its scale and its forms, and on the role played by international organizations,
governments, and sports bodies to tackle it. 14
Competition manipulation has become a significant problem in sport. Major evolutions in
sport have made it more vulnerable to this type of corruption, with the risks becoming
increasingly complex. Corruption within sports organizations has been exposed on a broad
scale, not least with regard to the awarding of hosting rights of major sport events. The role oforganized crime groups in corruption in sport and the criminal infiltration of sports
organizations has also grown markedly because of the recent evolutions in sport. Criminalgroups are exploiting vulnerabilities linked to development-related changes and theweaknesses of legislative and regulatory frameworks that govern sport.
The need to strengthen legislative and regulatory frameworks and tools to effectively
combat corruption in sport has put the spotlight on sports administrations, their autonomy andcooperation with criminal justice authorities. 15
•

14
15

UNODC works to safeguard sport from corruption and crime by supporting the:Effective implementation of the United Nations Convention against Corruption,
including where appropriate, reviewing and updating legislation, regulations and rules
to bring them in line with the requirements of the Convention.

UNODC publication “The Global Report on Corruption in Sport” (2021).
Ibid.

-- 37
37 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE•

Development of comprehensive anti-corruption policies in sport based on anassessment of risks, including those related to the organization of major sports events,
competition manipulation, illegal betting and the involvement of organized crimegroups.

•Establishment of bodies by international organizations, governments and sportorganizations that have a clear responsibility for the prevention, detection, investigationand sanctioning of corruption in sport, ensuring they have the independence, training
and resources required to carry out their functions effectively.

5. Protection of Reporting Persons
The value of facilitating the reporting by citizens and persons working within theinstitutions is clear: information provided by individuals is one of the most common ways – if
not the most common way—in which fraud, corruption and other forms of wrongdoing are
identified. 16This was demonstrated during the Covid-19 pandemic, which led States to mobilize anddisburse emergency funds to contain and mitigate the spread of the virus, with the resulting
risk of increased corruption. In ordinary and emergency circumstances, it is essential toestablish measures and mechanisms to protect reporting persons and to facilitate confidential
and timely reporting in order to allow States to detect instances of wrongdoing, including
corruption.
B. International Cooperation
Successful international cooperation is required to eradicate the corrosive effects ofcorruption. The United Nations Convention against Corruption offers a strong framework forStates parties to engage in international cooperation at both the informal and formal levels. Oneof the central goals of the Convention is to promote, facilitate and support international
cooperation in the fight against corruption. Chapter IV of the Convention contains detailed
provisions on the main modalities of international cooperation in criminal matters, such as
extradition, mutual legal assistance and the transfer of sentenced persons; it also covers law
enforcement cooperation, joint investigations and special investigative techniques. Moreover,
the Convention, in its article 43, requires States parties to consider assisting each other ininvestigations of and proceedings in civil and administrative matters where appropriate andconsistent with their domestic legal systems. 17 Open-ended intergovernmental expert meetings
to enhance international cooperation under UNCAC are convened once a year. 18 By bringing
UNODC publication “Resource Guide on Good Practices in the Protection of Reporting Persons” (2015) andUNODC publication “Speak up for Health, Guidelines to enable whistle-blower protection in the healthcare
sector” (2021).
17
United Nations Convention against Corruption (2004), art. 43:“Article 43 International cooperation
1. States Parties shall cooperate in criminal matters in accordance with articles 44 to 50 of this Convention.
Where appropriate and consistent with their domestic legal system, States Parties shall consider assisting eachother in investigations of and proceedings in civil and administrative matters relating to corruption.
2. In matters of international cooperation, whenever dual criminality is considered a requirement, it shall bedeemed fulfilled irrespective of whether the laws of the requested State Party place the offence within the same
category of offence or denominate the offence by the same terminology as the requesting State Party, if the
conduct underlying the offence for which assistance is sought is a criminal offence under the laws of both States
Parties”.
18
See webpage of the Open-ended intergovernmental expert meetings to enhance international cooperation
under the United Nations Convention against Corruption.
16- 38 - 38 -

EXPERTS’ PAPERS
together competent authorities, anti-corruption bodies and practitioners involved in extradition
and mutual legal assistance, these meetings facilitate the exchange of experiences, disseminate
information on good practices in order to strengthen capacity at the national level and to build
confidence and encourage cooperation between requesting and requested States parties. 19
1. Law Enforcement Cooperation
The most prevalent challenges to international cooperation exist at the legislative andpractical levels. Some States lack legislation allowing for cooperation and for the Convention
to be used as a legal basis when extradition is conditional on the existence of a treaty. 20 As aresult, although the legislation of many States allows for the Convention to be used for the
purposes of extradition and mutual legal assistance, few cases of its effective use have been
observed. This highlights the importance of conducting further research on the use of theConvention as a legal basis for extradition and mutual legal assistance and enhancing
awareness among practitioners of the benefits of such application.
The Convention has been more often used as a legal basis for mutual legal assistancerequests than for extradition requests. The completeness of requests, as well as appropriate
training of relevant staff are fundamental for the success of mutual legal assistance requests.
Most forms of cooperation have been based on bilateral or multilateral agreements that regulate
cooperation between the competent authorities of the parties and generally provide for thefollowing forms of cooperation: exchange of intelligence and legislative information;
assistance in locating persons suspected of having committed crimes; assistance in carrying out
investigative measures; exchange of experience and specialists; and training of members of thecompetent authorities. These formal modes of cooperation are supplemented by informalcooperation among law enforcement authorities.
IN FOCUS: The GlobE Network
The Global Operational Network of Anti-Corruption Law Enforcement Authorities(GlobE) was established in 2021 under the auspices of UNODC to facilitate informalcooperation by providing a global network for anti-corruption law enforcement authorities.
The proposal for the GlobE Network was originally conceived under the presidency of
Saudi Arabia of the G20 in 2020 and was welcomed at the G20 Anti-Corruption Ministerial
Meeting held on 22 October 2020 and the G20 Leaders’ Summit held on 21 and 22
November 2020. UNODC convened an online meeting of experts on 3 and 4 March 2021,
which brought together over 130 technical experts and participants from 53 States from thefive regional groups of the United Nations and 21 international organizations and entities.
Interim task forces were created to develop various components of the Network.
The first plenary meeting of the GlobE Network was held in Vienna in a hybrid format
from 15 to 17 November 2021. In its first meeting, the plenary adopted the charter of the
See generally Note of the Secretariat presented at the tenth session of the Open-ended intergovernmental
expert meetings to enhance international cooperation under the United Nations Convention against Corruption(September 2021), entitled “Statistical information on the use of the United Nations Convention against
Corruption as a legal basis for extradition, mutual legal assistance and law enforcement cooperation” .
20
Note of the Secretariat presented at the tenth session of the Open-ended intergovernmental expert meetings toenhance international cooperation under the United Nations Convention against Corruption (September 2021),
entitled “Statistical information on the use of the United Nations Convention against Corruption as a legal basis
for extradition, mutual legal assistance and law enforcement cooperation”.
19

-- 39
39 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

GlobE Network and established its governance structure to ensure that its activities directly
respond to the needs of its members. 21
The GlobE Network has grown rapidly since its launch. As of 9 August 2022, it included
112 authorities from 63 States parties to the Convention and one observer. Pursuant to thepolitical declaration adopted by the General Assembly at its special session against
corruption, the GlobE Network aims at providing a quick, agile and efficient tool for
facilitating transnational cooperation in combating corruption and strengthening
communication exchange and peer learning between anti-corruption law enforcement
authorities.
C. Asset Recovery
The process of tracing, freezing, confiscating and returning stolen assets to their country oforigin is typically a complex and lengthy one, involving multiple jurisdictions and often
complicated by technical, legal and political barriers. Recognizing the serious problem ofcorruption and the need to facilitate the recovery of corruption proceeds, the international
community introduced a new framework for the return of stolen assets through Chapter V of
the Convention, which requires States parties to take measures to seize, confiscate, and return
the proceeds of corruption.
Over the past 12 years, States have reinforced their efforts to trace stolen assets acrossborders, with a marked increase in cases of completed returns of corruption proceeds between
2017 and 2021. Almost all States parties now have some form of framework or arrangement
for asset recovery (art. 51) in place, although the extent of these at the regulatory, institutionaland operational levels vary significantly. 22 While many challenges remain throughout therecovery and return process, data shows that the continued discussion of the topic of asset
recovery by the international community has spurred countries to action. 23 International asset
recovery of proceeds of corruption can no longer be considered a rare occurrence, and active
engagement in international cooperation on asset recovery has become prevalent. 24
A number of States parties make use of asset recovery networks or other initiatives tofacilitate international cooperation in asset recovery efforts. The Stolen Asset Recovery
Initiative (StAR) is a partnership between the World Bank Group and the United Nations Officeon Drugs and Crime that supports international efforts to end safe havens for corrupt funds.
StAR works with developing countries and financial centres to prevent the laundering of theproceeds of corruption and to facilitate a more systematic and timely return of stolen assets.
1. Beneficial Ownership
One of the key obstacles to tracing and recovering illicit gains from corruption is a lack of
corporate transparency: during corruption investigations, investigators must first uncover who
controls a company or benefits from the ownership of an asset – for example, a real estate
See website of the Global Operational Network of Anti-Corruption Law Enforcement Authorities (GlobE
Network).
22
Thematic Report prepared by the Secretariat presented at the second resumed thirteenth session of the
Implementation Review Group (November 2022), entitled “Implementation of chapter V (Asset recovery) of theUnited Nations Convention against Corruption”.
23
Note of the Secretariat “Statistical information on the use of the United Nations Convention against
Corruption as a legal basis for extradition, mutual legal assistance and law enforcement cooperation”.
24
Thematic Report prepared by the Secretariat, “Implementation of chapter V (Asset recovery) of the United
Nations Convention against Corruption”, table 2, p. 4.
21- 40 - 40 -

EXPERTS’ PAPERS
property or a corporate bank account that is involved in a corrupt scheme – since the beneficial
owner may be hidden behind multiple layers of shell companies or behind a nominee director.
Implementing an effective beneficial ownership disclosure regime is increasingly seen as
an essential policy tool in the fight against corruption and for preventing money-laundering.
Article 12, paragraphs 1 and 2, of the Convention promotes beneficial ownership transparency
by providing that each State party shall take measures to prevent corruption involving theprivate sector. Over the past few years, States parties have increasingly enacted laws and issued
regulations to enhance their domestic frameworks and achieve greater transparency with regard
to the ultimate beneficial ownership of legal entities and trusts. While only a few States
established a comprehensive framework as recently as in 2018, an increasing number are in theprocess of setting up, or actively considering creating, a framework for the establishment of abeneficial ownership register. 25
While beneficial ownership transparency may be an effective tool for asset recovery incomplex transnational corruption cases, it remains a highly technical area in which many
countries still lack sufficient legal, regulatory and institutional frameworks and systems, aswell as practical experience. Beneficial ownership transparency is a critical tool for combating
corruption and tackling the misuse of legal structures to conceal proceeds of corruption.
IV. CONCLUSIONSIn September 2022, a follow-up inter-sessional meeting of States parties on theachievements of the political declaration was held, during which States took stock of theimplementation of the commitments made in the political declaration and emphasized that“corruption is a local and a transnational phenomenon that affects all societies and undermines
economies, making international cooperation to prevent and combat it essential.” 26
The United Nations Convention against Corruption remains the key global instrument tofacilitate international cooperation and prevent and fight corruption. New forms of corruption
have only reinforced the urgent need to fully implement the Convention as Member States aim
to achieve the Sustainable Development Agenda 2030.
The political declaration represents a reaffirmation of the importance of this legal
instrument and a commitment by the Member States to redouble efforts to addressing
corruption in all of its forms.
In its final operative paragraphs, the General Assembly requests UNODC “to prepare acomprehensive report for the Conference on the state of implementation of the Convention
after the completion of the current review phase, taking into account information on gaps,
challenges, lessons learned and best practices in preventing and combating corruption, ininternational cooperation and in asset recovery since the Convention entered into force.” 27
Once completed, this report will provide a comprehensive overview of the state ofConference Room Paper presented at the sixteenth session of the Open-ended Intergovernmental Working
Group on Asset Recovery (November 2022), entitled “Good practices and challenges with respect to beneficial
ownership and how it can foster and enhance the effective recovery and return of proceeds of crime”.
26
Preamble of the Political Declaration “Our common commitment to effectively addressing challenges andimplementing measures to prevent and combat corruption and strengthen international cooperation”.
27
Political Declaration “Our common commitment to effectively addressing challenges and implementing
measures to prevent and combat corruption and strengthen international cooperation”, para. 83.
25

-- 41
41 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

implementation of the Convention following the first and second cycles of the Review
Mechanism and opportunities and areas for new or more effective measures. It should,
therefore, serve as a useful tool to further support States parties in their individual and collective
efforts to develop stronger legislative and institutional frameworks and enhance capacity tobetter prevent and counter corruption, including its new and emerging forms.

- 42 - 42 -

COUNTRY PRESENTATION PAPERS
Mr. Md Khairol Faizal Rizal Paijan & Mr. Md Qamarul Affyian Abdul Rahman,
Brunei Darussalam***
Mr. Soy Chanvicheth & Mr. Ros Saram, Cambodia***
Mr. Suyanto Reksasumarta & Mr. Titto Jaelani Agis, Indonesia***
Mr. Hiroshi Kubo, Japan***
Ms. Kienthong Namkhalak, Lao PDR***
Mr. Yuhafiz Bin Mohd Salleh & Mr. Law Chin How, Malaysia***
Ms. Luanne Ivy Montano Cabatingan, Philippines***
Mr. Hu Youda Eric, Singapore***
Mr. Yongyoot Srisattayachon & Ms. Panyakorn Amonpanyapakomol, Thailand***
Mr. Matias Soares & Mr. Luis de Oliveira Sampaio, Timor-Leste***
Ms. Hoang Thi Thuy Hoa & Ms. Nguyen Trung Kien, Viet Nam- 43 - 43 -- 44 - 44 -

BRUNEI DARUSSALAM

NEW AND EMERGING FORMS OF CORRUPTION AND THE
EFFECTIVE COUNTERMEASURES
Khairol Faizal Rizal Paijan *I. BACKGROUND
Integrity in public office is integral in ensuring the efficiency of the delivery of services in
the Government. In addressing the civil service, His Majesty the Sultan and Yang Di-Pertuanof Brunei Darussalam has emphasized that integrity is crucial to be practiced by civil servants.
He had mentioned in his 2010 New Year Royal Decree that “…Integrity should be thecornerstone of public services. Without it, any country can collapse, or at best lose its will
(ability) to develop”. Corruption will not be tolerated in any form, and stern actions will betaken against civil servants involved in any corrupt practices.
Integrity is unquestionably a priority and an important principle that contributes to thesuccess in suppressing corruption. With a high standard of integrity in public office, theGovernment will maintain public trust and most importantly the trust of foreign investors.
Brunei is constantly working to diversify its economy and reduce its dependency on oil andgas. Foreign Direct Investment is seen as one of the strategic ways for that purpose; hence,
maintaining corruption free governance is vital in attracting foreign investors.
II. NEW AND EMERGING FORMS OF CORRUPTION IN EACH
PARTICIPATING COUNTRY
A. Mechanisms for the Detection of New and Emerging Forms of Corruption*•

The ACB works on two fronts when it comes to detecting corruption activities: reactive
and proactive detection.

•

Reactive – Apart from receiving formal complaints via hotline or from those who lodge
reports at the ACB office, the ACB also receive referral letters from other Government
agencies informing of corrupt practices committed by third parties or members of thosedepartments.

•

Proactive – On the proactive side, the ACB’s Special Intelligence Services Division(SPIN) have been working actively with our formal/informal sources in order to trackdown corrupt activities. The ACB is also working closely with intelligence agencies,
the Audit Department, FIU and other Law Enforcement Agencies, and this has been of
great assistance in further strengthening our network in our effort to combat corruption.

•

Technological Capabilities – Technological capabilities is one of the areas which the
ACB has been tapping into. Under SPIN, two units have been tasked on developing
technical capabilities, namely the Operational Research Unit (OPUS) and the Digital
Forensic and Technical Services Unit (DATA). Both units have a dedicated team to

Chief Special Investigator, Anti-Corruption Bureau, Brunei Darussalam.

-- 45
45 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

conduct research and development on developing tools for intelligence and surveillance
purposes. The forensic team meanwhile has the capability to examine and retrieve
valuable digital evidence that can be used for intelligence and investigation purposes.
B. Features and Trends of New and Emerging Forms of Corruption•

One of the common trends which has been investigated by the ACB in recent years isthe abuse of power by the people holding senior positions in the Government.

•

The gratification received may not come in the form of cash and may not be transferred
directly to the public officer. The gratification may be transferred using a proxy or toan immediate family member in the form of employment, assets, property development,
shares and vehicles.

•

In one of the cases that has been investigated by the ACB, a former surveyor-generalof the Surveyor Department, namely Haji Mohammed Jamil bin Haji Ali, had received
gratification in the form of six return plane tickets and bill payments for car servicing,mobile phone use and broadband Internet from one Puah Heng Yew of Selective
Powertech Consulting (SPC).

•

The gratification was received following the awarding of a $9.5 million e-government
project to create National Spatial Data Infrastructure for which SPC was selected as theprimary contractor in 2007.

•

Haji Mohammed Jamil was found guilty on four charges for corruptly accepting
gratification with a total value of $7,479.31. He was also found guilty of all 16 counts
of offences under Section 165 of the Penal Code, which forbids public servants fromobtaining “valuable things” from a person connected to his official function. He wassentenced to four years’ imprisonment.

•

Meanwhile, co-accused Puah Heng Yew also received a four-year sentence after being
found guilty of bribing the surveyor-general as an inducement or reward for varying
tender specifications for a Government spatial mapping project and submitting SPC’s
progress payment claims to the Ministry of Development between May 2007 andOctober 2008 in respect to the tender.

•

Puah was also found guilty of all 16 charges of abetting Haji Mohammed Jamil incommitting the offences under Section 165 of the Penal Code by giving the said“valuable things” to Haji Mohammed Jamil.

C. Principal Causes or Backgrounds of New and Emerging Forms of Corruptiona) Greed and the lack of integrity. In the above case, Haji Mohammed Jamil has taken
advantage of his position being the project manager and abused his power.
b) Lack of supervision and monitoring from higher authority. During theimplementation, the project has encountered several problems such as delays indelivering hardware, disagreement between project members and the surveyor-general.
The Ministry of Development was also unaware of the changes made by Haji
Mohammed Jamil.
- 46 - 46 -

BRUNEI DARUSSALAMc) Lack of due diligence during tender process. There was no prior checking on thecontractor’s portfolio and capabilities to take up a project of that size when the tenderassessment was made. In the end, the project was deemed unsalvageable after thecontractor failed to meet its one-year completion date even after being twice given
extensions when it fell behind schedule.
D. Prospects of the Future Evolution or Transformation of New and Emerging Formsof Corruption•

Continued evolution beyond traditional cash transactions to receiving in-kind or
through third party services via digital mediums.

III. BEST PRACTICES FOR TACKLING NEW AND EMERGING FORMS OF
CORRUPTION
A. Challenges and Obstacles Posed to Investigation, Prosecution and Adjudication•

In the new and emerging forms of corruption, the perpetrators have used electronic
platforms to facilitate and cover their activities, such as social platforms for their modeof communication as well as the use of fintech such as cryptocurrency for transferring
gratification.

•

Apart from that, corruptors have been using a “hawala” type of transaction to transfer
the proceeds of crime. Bribe money is paid by someone linked to the giver and received
by a proxy on behalf of the public officer. It would be even harder to detect if thetransaction is executed in a foreign country.

•

Some project/equipment needs an expert to understand the technical complexity of thematters to be investigated. The investigation team may not have personnel that has therelevant expertise and may end up searching for outsiders who can perform the task.

•

Some of the witnesses or the subjects may be residing in other countries. Firstly,
locating the subjects or witnesses may take time and sometimes they could not be traced
at all. Secondly, for the witnesses, under Mutual Legal Assistance arrangements, somecannot be compelled to give evidence to the requesting party and their availability isdependent on their willingness to cooperate with the investigators.

B. Effective Methods for Investigation, Prosecution and Adjudication of New andEmerging Forms of Corruption, E.g. Detection of Criminals, Collection of Evidence•

In the context of investigation, the most effective method of detecting new andemerging forms of corruption is by strengthening intelligence capabilities as well as theintelligence network. Conducting continuous research with regard to the developmentof the new trend will also help in identifying the possible modus operandi and at which
process that corruption is likely going to happen.

•

Traditional surveillance will no longer be effective to uncover corrupt activities. New
approaches have to be made such as better penetration of electronic devices, media

-- 47
47 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

platforms and electronic access such as company records, call logs from service
providers and national registries.
•

Another way to detect the activity of the people involved in corrupt activities is throughbank accounts and digital records. This can help intelligence officers assess the
spending pattern and whether or not the target is living beyond means.

C. Future Recommendations•

Information-sharing sessions between agencies involved in international investigations
on latest detection technologies, and making them available to other agencies, is verymuch required for investigations to close in on changing and modern modus operandi
of syndicates.

•

Financial institutions also need to proactively and very quickly report on suspicioustransactions, as well as develop their own internal checks on any likely moneylaundering activities.

IV. INTERAGENCY COOPERATION AND INTERNATIONAL COOPERATION
A. Cooperation among Domestic Agencies (FIU, Security, Taxation, Customs Etc.)•

In our effort to combat corruption, the ACB has over the years been working closelywith various intelligence, law enforcement agencies as well as the Attorney General’sChambers. ACB is also a member of the Brunei National Anti-Money Laundering andCombating the Financing of Terrorism Committee (NAMLC) and is empowered as oneof the investigative bodies under the Criminal Asset Recovery Order, 2012.

B. International Cooperation (Joint Investigation and Other Forms of Cooperation)•

Over the years, the ACB has been working closely with its Malaysian counterpart, theMalaysian Anti-Corruption Commission (MACC), Singapore’s Corrupt Practices
Investigation Bureau (CPIB) and the Indonesian Corruption Eradication Commission(CEC) for matters pertaining to investigation such as locating persons of interest,
repatriation and expatriation of subjects and proceeds of crime, recording of statements
as well as conducting joint investigation.

•

Our cooperation is also extended to training, capacity-building, and legal andoperational coordination.

- 48 - 48 -

BRUNEI DARUSSALAM

CORRUPTION: A PROSECUTOR’S PERSPECTIVE
Muhammad Qamarul Affyian Abdul Rahman *I. INTRODUCTION
The flagship Corruption Perception Index by Transparency International scored Brunei
Darussalam at 60 of 100 – ranking Brunei Darussalam 35th out of 180 countries and 2nd in theSouth East Asian region in 2020. Despite its relatively small size and population, Brunei
Darussalam is not shielded from the negative effects brought by corruption.
Brunei Darussalam has always taken a zero-tolerance approach towards corruption.
Demonstrating the need to eradicate all types of corruption, His Majesty Sultan Haji Hassanal
Bolkiah Mu’izzaddin Waddaulah bin Al-Marhum Sultan Haji Omar ‘Ali Saifuddien Sa’adul
Khairi Waddien, Sultan and Yang Di-Pertuan of Brunei Darussalam, in a number of Titahs
addressed to the nation highlighted the devastating impacts of corruption to developments inboth the public and private sectors. He stresses that corruption can weaken the administration
and bring about a country’s downfall.
Accordingly, the Prevention of Corruption Act, Chapter 131, provides for crushingpenalties to ensure that corruption is a crime that does not pay in Brunei Darussalam.
II. CHALLENGES AND EFFECTIVE MEASURES
While fraud takes minutes, investigation takes months, and prosecutions take even longer.
Corruption cases are hard cases to make. They can be nuanced and difficult to pinpoint.
To set things in motion before a corruption offence is brought to court, section 31 of thePrevention of Corruption Act, Chapter 131, requires the consent of the Public Prosecutor. Thisrequirement is to ensure that proposed prosecution is first scrutinized and that judgment is madeabout its appropriateness before proceedings are brought.
The Attorney-General’s Chambers of Brunei Darussalam have identified the following
challenges in prosecuting corruption cases:
A. Prosecutorial Discretion
Article 81(3) of the Brunei Constitution provides that the Public Prosecutor has power
exercisable in his discretion to institute, conduct or discontinue any proceedings for any offence.
In short, prosecutorial discretion is the power to decide whether or not to charge a person for acrime, and which charges to bring. It is exercised wisely, not abusively, without fear or favour,
ill will or affection.
The outcome following the considerations expounded below have enormous impact on
individuals and communities and one that is not, rightly so, taken lightly. It is seldom astraightforward exercise and is one that requires the balancing of competing interests.
*

Deputy Public Prosecutor, Criminal Justice Division, Attorney-General’s Chambers, Brunei Darussalam.

-- 49
49 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

The underpinning thread at the heart of the decision-making process is fairness – fairness
not just to victims, but it also extends to witnesses and suspects. Independent from investigators,
prosecutors ensure that the decision whether to bring the matter to court is made impartially. It
would not be fair to expect anyone so intertwined and so close to the investigation of a serious
case to make the vital decision to charge a person or, just as importantly, not to charge that
person.
With this in mind, prosecutors apply a consistent test across all referred cases before
proceedings are initiated. Every decision is based on a two-stage test:
1. Is there enough evidence to prosecute the person for the crime, and
2. Is it in the public interest to charge the person?
Evaluation on whether to pursue prosecution would likely include, but not be limited to,the following questions: What is the level of evidence against the subject? Can the evidence
gathered be effectively tendered in court? What is the likelihood that further investigation will
uncover additional evidence? Can the information obtained from a particular subject becorroborated? What is the credibility of the suspect? What is the credibility of the witnesses
when he or she testifies? What will serve the public in the long run? Do we take a top-down
approach in bringing these cases to court or work our way up the hierarchy? Can the matter be
dealt with in a better way without going to court? Is the case so serious that prosecutors needto decide straight away whether to charge or not? What will be the bail considerations?
The trouble in arriving at a just decision is heightened in corruption offences due to its
covert nature, where in most cases, independent supporting evidence are absent. In thoseinstances, the strenuous exercise on who, what and when to prosecute hinges on the statements
made by the receiver and/or giver only. Where there exists independent evidence to support
the charge, both the receiver and the giver are prosecuted.
The cases below illustrate that the decision depends on the circumstances particular to eachcase:
In the case of the former head of the Serious Investigations Unit at the Royal Brunei Police
Force involving a complex web of abuse of power and secret dealings with cross-borderorganized crime syndicates, the then Supt Hj Khairul Rijal was charged for accepting a Toyota
Hilux from a Malaysian national in exchange for facilitating his re-entry into Brunei
Darussalam after being expelled. The Malaysian national was also charged for giving thegratification. Following a joint trial, both of them were found guilty.
Similarly, in a case involving the then Minister of Development, a man in high andpowerful public office, charges were brought against him together with the giver, the managing
director of TED Sdn Bhd. The case involves three construction contracts and five variation
orders in respect of one of them being awarded to TED Sdn Bhd. The decision was made to try
the case together and the prosecution secured a conviction.
On the contrary, collectively known as the Brunei Shell Petroleum (BSP) corruption cases,
it was decided that the defendants were to be charged separately. The former BSP employees
received bribes as gratification for creating purchasing work orders in their respective roles
within BSP which allowed Musfada Enterprise to sell supplies to BSP, with many of the orders- 50 - 50 -

BRUNEI DARUSSALAM
not delivered at all, causing losses for BSP. The prosecution went for the managing director ofMusfada Enterprise first before going after the BSP employees.
In the trial involving ex-judges siphoning $15.75 million from the judgment debtors’
accounts, the largest amount of money ever embezzled by a public servant in Brunei
Darussalam, the decision was to engage a Queen’s Counsel (QC) from the United Kingdom tolead the prosecution team to avoid any perception of bias. Similarly, the Judiciary Department
also assigned the case to be heard before a visiting High Court Judge from the United Kingdom.
B. Securing Witnesses Out of Jurisdiction
Where there is a cross-border element, an additional hurdle faced by the prosecution issecuring witnesses out of jurisdiction. The prosecution has identified that the witness list mustremain flexible in order to control the inevitable – unplanned events and issues that arise inalmost every trial.
This was certainly the case in the trial involving ex-judges explained above where theprosecution tried to secure the attendance of a witness residing in Malaysia.
During investigations, the defendants had explained that the accumulated “wealth” camefrom a lady residing in Malaysia, but due to the confidential agreement and nature of the job,
the defendants were reluctant to discuss the matter any further. The Anti-Corruption Bureau(ACB) worked with their Malaysian counterparts, the Malaysian Anti-Corruption Commission(MACC), to secure an explanation from the lady in the form of a written statement.
In the early stages of preparing for the case, the Malaysian lady agreed to give evidence
through video-link and as such, she was listed as a prosecution witness and arrangements weremade for her to testify virtually. However, due to scheduling constraints, which only arose midtrial, she eventually became unable to testify.
C. Presentation of Evidence of Corruption in Court
Due to the nature and complexity of corruption offences, prosecutors must strategize on
how to effectively build a case. Equally indispensable is how evidence is eventually presented
in court.
The fundamental rule of evidence states that relevant evidence is admissible, irrelevant
evidence is not. The two general types of evidence are direct and circumstantial evidence.
Direct evidence is considered to be the strongest method of proof, but circumstantial evidenceis evidence that tends to prove a fact indirectly, or by inference from other facts. A combinationof these two will be presented to persuade the court. In particular, proof of knowledge andintent are almost always proved by circumstantial evidence in corruption cases.
The logical sequence of evidence presented to the court would be, for example, the use of
direct evidence to show that the suspect had received a thing of value usually through banktransfers in the form of bank slips or statements, followed by circumstantial evidence such as
the sudden spike in wealth which cannot be accounted for or the substantial use of cash without
legitimate source of funds. This evidence can be strengthened again through the discovery ofconcealed or withholding of relevant records during investigations. The aim in the sequencingof the evidence is to lead the judge, one step at a time, to the sensible conclusion that thedefendant is indeed guilty beyond reasonable doubt.

-- 51
51 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

In particularly convoluted corruption cases, an effective presentation can also include theintroduction of aids. Examples include: a money trail analysis chart, transcript of recorded
telephone conversations pre-marked and the effective use of headings in court documents.
In the context of the ex-judges’ case above where there was a dizzying amount of
documentary evidence that relied on involving numerous banking records, copious
correspondence and complex money-trail analysis, the prosecution presented sample
documentary evidence in the opening speech of the trial before meticulously going througheach of them in the trial proper. In doing so, this allowed the judge to be introduced to the seriesof documents and their relevancy before being tendered by the witnesses.
Alongside the above, the prosecution listed 133 witnesses in their witness list to prove theircase. In preparing such a list, the prosecution grouped, with the use of headings, the witnesses
according to their roles and respective agencies, such as, the Judiciary witnesses, the Banking
witnesses, the car dealership witnesses and the ACB witnesses. This was to ensure that thedirection and presentation were made clear to the judge at the outset.
D. Case Management
It goes without saying that the criminal courts were congested even before the pandemic.
With criminal trials initially put on hold as a response to containing the virus, the burden on
the prosecution of live caseloads and backlogs was immense – the longer cases run, the morecase tasks there are to manage.
In recognizing the issues arising when trials are adjourned indefinitely, the adoption oftechnology was unprecedented in pace and scale. The outbreak of the coronavirus has forced
the prosecution to shift to online presence rapidly. In particular, the prosecution has leveraged
technology not just to stay operational during the pandemic but also to improve swift disposalof cases.
Now, virtual courtrooms are the norm and relevant agencies are now equipped with thenecessary infrastructure to ensure that cases run smoothly even when conducted remotely. In
some instances, proceedings are heard almost entirely virtually. For example, in the case of theformer director of state broadcaster, Radio Televisyen Brunei, who was charged for allegedly
accepting a luxury car in exchange for promoting the assistant head of the news division, thecourt mention was conducted virtually without the defendant ever setting foot into a courtroom.
In that particular case, the defendant was present at the ACB Headquarters for the mentions.
Mindful of the emerging trends showing increasingly intricate corruption cases especiallyin this digital age, and the challenges discussed above, it is imperative for prosecutors to beahead of the curve. Prosecutors need to be equipped with the necessary expertise by specialist
training and sharing of good practices. The adoption of best practices shared regionally andinternationally remains paramount in order to advance the understanding of the crime.
III. CONCLUSION
We are all aware that the fight against corruption is not one that can be fought by one
country alone; any success to be meted out will have to be the result of a unified stance at both
the regional and global levels to enhance and continue efforts to stifle these criminal activities
which deeply impact governments and individuals around the world.

- 52 - 52 -

BRUNEI DARUSSALAM
To this end, the Attorney-General’s Chambers of Brunei Darussalam is committed tocontinuously improving our work and adopting best practices learned through its own
experiences, as well as those of other countries.

-- 53
53 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE- 54 - 54 -

CAMBODIA

NEW AND EMERGING FORMS OF CORRUPTION AND EFFECTIVE
COUNTERMEASURES
Chanvicheth Soy *I. OVERVIEW
Corruption is a complex problem that impacts the world, even rich or poor countries.
Corruption slows the economy, creates social injustice, undermines investment and exacerbates
poverty. For the Royal Government of Cambodia (RGC), good governance is the key neededto achieve sustainable economic development and ensure equity and social justice. Good
governance requires active participation with strong commitment, responsibility andtransparency from all concerned stakeholders. The RGC always considers corruption as
obstacles to economic development, the rule of law, democracy, social stability, as well as themain cause of poverty.
A. Institutional Framework
On 17 April 2010, the Anti-Corruption Law (ACL) was promulgated, and the AntiCorruption Institution (ACI) was established. The Anti-Corruption Institution has two bodies:
the National Council Against Corruption (NCAC), which plays the role as an advisory body
giving advice, recommendations and setting out the strategies on the fight against corruption,
while the Anti-Corruption Unit (ACU) has the role of the implementing body to independently
undertake its duties.
The ACL was based on the Code of Criminal Procedure 2007 and the Criminal Code 2009of Cambodia. The ACL has the purpose to promote the effectiveness of all forms of service
delivery and to strengthen good governance and the rule of law as well as to maintain integrity
and justice, which are fundamental to social development and poverty reduction.
B. The Highlights of the Anti-Corruption Law
1. The Investigative Power of the ACU
a. Exclusive power to investigate all corruption offences. 1
b. In the course of the investigation if other offences are found related to the corruption
case being investigated, the Judicial Police Officers (OPJ) of ACU are empowered
to investigate the new offences to the final stage.
c. The ACU can investigate all criminal offences if ordered by the court.
d. In the framework of these investigations, the President of the ACU, or the officiallyassigned representative thereof, has the duty to lead, coordinate and control the missionof the ACU’s OPJ on behalf of the Prosecutor till the stage of arresting the suspect. 2
2. Privileges of the ACU 3
If there is a clear lead on a corruption offence, the ACU is empowered to:Assistant to Anti-Corruption Unit (ACU), Kingdom of Cambodia.
Anti-Corruption Law, 17 Apr. 2010, art. 22.
2Anti-Corruption Law, 17 Apr. 2010, art. 22.
3Anti-Corruption Law, 17 Apr. 2010, art. 27.
*
1

-- 55
55 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

a. Check and put under observation the bank accounts or other accounts that are
viewed as bank accounts.
b. Check and order the provision or copy of authentic documents or individual
documents, or all related banking, financial and commercial documents.
c. Monitor, oversee, eavesdrop, record sound and take photos, and engage in phone
tapping.
d. Check documents and documents stored in the electronic system.
e. Conduct an operation with a view to collect flagrant evidence.
The ACU has its own custody room and is authorized to keep suspects in custody at any
place, for example a hotel room, wherever appropriate. In addition, the ACU can request
competent institutions to keep any suspect arrested by the ACU in custody. 4
The President of the ACU is empowered to command public authorities, government
officials, citizens who hold public office through election as well as units of the private sector
concerned, namely financial institutions, to cooperate with officials of the ACU in the work ofinvestigation. 5 In a criminal case related to corruption, the court receiving the case shallconduct a speedy trial. 6
C. International Legal Framework
As we are living in a globalized world, countries are connected, and cooperation between
countries is crucial. In order to perform its duty, the ACU has been working closely withnational, regional and international organizations to share information and help each other.
In terms of international cooperation, the ACU has been a full member of the following
anti-corruption institutions and international instruments, namely (i) The ADB/OECD AntiCorruption Initiative on 5 March 2003; (ii) The United Nations Convention against
Transnational Organized Crime (UNTOC) on 12 December 2005; (iii) The International
Association of Anti-Corruption Authorities (IAACA) since 2006; (iv) The United Nations
Convention against Corruption (UNCAC) on 5 September 2007; (v) South East Asia Parties
Against Corruption (SEA-PAC) on 11 September 2007; (vi) ASEAN Mutual Legal Assistancein Criminal Matters on 26 January 2010; and (vii) The International Anti-Corruption Academy(IACA) on 14 December 2013. Regarding bilateral cooperation, the ACU signed an MoU on
anti-corruption with the State Inspectorate and Anti-Corruption Agency of Laos (15 Nov 2013)
and the National Anti-Corruption Commission of Thailand (3 Sep. 2014).
II. NEW AND EMERGING CORRUPTION AND ITS PRINCIPAL CAUSES
A. New and Emerging Forms of Corruption
Despite good anti-corruption laws and commitments, corruption in the region is still aproblem and continues to weaken the society, economy and justice. Cambodia is also
experiencing this situation. The ACU, as the implementation body for fighting against
corruption, has worked responsibly and transparently until it gained support and recognition
from the public. Corruption in the form of abuse of power refers to an act committed by public
servants or citizens in the exercise of their duty or in the course of exercising their duty suchas taking action to hinder law enforcement in order to take any illegal advantage, and the actsof misappropriation of public funds, which is committed by a public official by demanding or
Art. 26 of the Anti-Corruption Law.
Art. 29 of the Anti-Corruption Law.
6
Art. 30 of the Anti-Corruption Law.
4
5

- 56 - 56 -

CAMBODIA
receiving of any sum known not to be due, or known to exceed the due amount. These havebeen recognized as emerging forms of corruption in the country. The two cases below are
examples of the two forms.
B. Case Study #1 (Abuse of Power)•

The ACU received complaints regarding the irregularities committed by Mr. LBB
demanding unofficial payment, so the ACU started to collect information and evidencewith regard to the matter. After receiving additional information that Mr. LBB
demanded illegal money that amounted to US$ 100,000 from one company, the ACU
arranged an operation to collect information and evidence on the spot, arresting threepeople (Mr. LBB, 7 Mr. CVV and Mr. TBB) in a restaurant, while the latter werereceiving US$45,000 from the victim, in addition to the previous US$5,000 (a few days
before), in total US$50,000. 8•

Based on the investigation, the ACU also found the previous transactions committed
by Mr. LBB, who demanded illegal payment from Mr. CT in the amount of US$20,000
and from Mr. CHL in the amount of US$12,000.

•

Through our search at his office, the ACU found that since 2016 until the day of arrest,
Mr. LBB demanded illegal money involved in over 140 cases which amounted to about
US$ 384,997. We also found his cash in the drawer amounted to US$21,587. Mr. LBR
used the money generated from these illegal acts (384,997+20,000+12,000=
US$416,997) to buy two houses, one plot of land (plus construction of a swallow’snest) and two vehicles which in total amounted to around US$ 421,500.

•

After being sent to court, the three offenders were charged. First Mr. LBB withextortion, abuse of power and money-laundering (Art. 592-593 of the Criminal Code,Art. 35 of the Anti-Corruption Law, Art. 29-30 the new Law on Anti-Money
Laundering and Combating the Financing of Terrorism), while the other two (Mr. TBB
and CVV) were charged with extortion and abuse of power (Arts. 592-593 of the
Criminal Code, Art. 35 of the Anti-Corruption Law).

C. Case Study #2 (Misappropriation of Public Funds)
During the Covid-19 pandemic, the health sector in every country struggled to survive.
Cambodia also experienced that difficult time. The high demand of staff in the health sector,
especially for Covid-19 patients, sharply increased almost beyond capacity. The government
immediately issued the policy to encourage and incentivize people to work in the health sector
by giving the opportunity to the qualified medical staff who are working as volunteers to
become permanent staff without taking any exam if they agreed to work with doctors who weretaking care of Covid-19 patients both at home or in the hospital. Two officers of the provincial
health department committed corruption. After receiving the information about the policy fromthe ministry, those two officers forced their staff members in the province to pay money tothem if they wanted to be selected as permanent staff. The two officers believed they would
not be noticed as the government was focused strongly on fighting against Covid-19 more thananything else, and most parts of the country were in lockdown as people worked remotely fromhome. But the ACU received complaints from victims, and we started to collect information
7
8

He overcharged the official payment for permission of the construction of solar power.
He demanded extra money in return for his services.

-- 57
57 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

and evidence with regard to the matter. The ACU arranged an operation to collect informationand evidence on the spot and arrested two offenders. The amount of $854,000 has been
recovered from the two detainees and returned back to the victims. The ACU found that money
was collected from 129 qualified medical staff members. The two officers were charged with“misappropriation of public funds”.
D. Principle Causes of Corruption
Since established, the ACU has performed its job with responsibly and transparency.
Corruption has been considered as a complicated offence. The two parties, the giver and thetaker of the bribery, both end up happy. Corruption cases demand strong evidence and goodinvestigation. There are several causes of corruption that we should take into account:•People have little knowledge about the corruption laws, and some people cannot
differentiate between a gift and bribery. In the Asian context, especially for Cambodian
people, giving a gift to anyone who provided a service for them is wrongly thought ofas a thank you.

•

Corruption is still a new context for some people. Based on the complaints to the ACU,
we have seen that many of the complaints are unrelated to corruption. But because of
the people’s trust and the good reputation of the ACU, it was considered as one of theirfirst options for reporting possible crime.

•

As a developing country, we understand that low monthly earnings are one of the main
reasons which some people use as their excuse to commit corruption.

•

When we are talking about corruption, we also take the loopholes of the system into
consideration. When the service provider and the service receiver have more chances
to meet in person, the rate of corruption also increases. As a developing country, thedigitalization of the public services has been seen as a key to reducing corruption.

III. BEST PRACTICES FOR TACKLING CORRUPTION IN THE CAMBODIAN
CONTEXT
Even though there is a long way to go, the ACU in Cambodia can be considered as a new
anti-corruption body compared to those other in regions, but it has been significantly
recognized and trusted by the Cambodian people. Following its own strategy and policy, theACU has focused on education, prevention and law enforcement in combating corruption.
A. Education and Dissemination Activities
1. Law Dissemination
With its knowledge on anti-corruption laws (ACL), the ACU has set out its action plan andsuccessfully disseminated the ACL to a total of 652 targets and 921,747 participants from2012-2022.
2. Education on Anti-Corruption
Regarding education, the ACU in collaboration with Ministry of Education Youth andSport have also launched an education programme on anti-corruption:•

High school level (grades: 10,11,12): implemented 2014-2015,- 58 - 58 -

CAMBODIA•

Secondary school level (grades: 7,8,9): implemented 2015-2016,•

We are in the process of collecting data for university and vocational training textbooks.

3. Anti-Corruption Day
Cambodia has organized the National-International Anti-Corruption Day (9 December)from 2011 to the present.
B. Prevention Activities
1. Public Services Work 2012-2021
The ACU has participated with the concerned ministry to review, launch and adjust aninter-ministerial joint declaration (Joint Prakas) on the public service delivery, penalties andincentives with a total of 22 institutions, and 118 prakas.
2. The Signing of MOUs
A total 105 MOUs were signed, as well as with more than 1,000 companies and more than
30 private higher learning institutions. The main objective of the MOU is to ensure that thecompany will not become involved in any corruption, but the company will be the partner ofthe ACU for reporting any corruption committed by any public servant.
C. Obstruction Activities
The ACU has participated in observing the procurement and examination processes. From2012-2021, the ACU observed public procurements with a total 308 procurement entities,
totalling 5,019 projects. Prior to these observations, procurement was considered as one of thehigh-risk sectors. Regarding the examination process, the ACU observed high school entrance
exams every year since 2014, as well as exams for the recruitment of civil servants.
D. Law Enforcement

An effective complaint and response system is important for fighting corruption.
Corruption complaints are accepted through a 24/7 complaint system by telephone, white boxes,
e-mail and direct complaints made at the ACU office. The complaint system is, thus, easy to
use and implement. Complaints will be analysed only one to three days after they have been
made, and we have breakfast meetings every morning to discuss the received complaints. We
also allow the complainer to join the meeting if they agree.

It is also important to have an effective investigation process. There must be a fast responseto the complaint for collecting the evidence or investigating the case. Officials must work
closely with the Ministry of Justice to ensure that the judge will set the corruption case to a
speedy trial. A clear witness-protection mechanism should be established to encourage people
to report corruption cases. Finally, it is important to build up good collaboration with important
institutions such as the FIU, tax department, customs department, telecom companies, land
registration, vehicle registration body etc.
IV. CHALLENGES AND OBSTACLES POSED TO INVESTIGATIONThe ACU of Cambodia does face challenges in investigation of corruption cases. Actually,
before the suspect has been sent to court, the investigator has done much work. But the evidence
stage is always hard and complicated. Anonymous complaints typically point only to a person
or case but rarely include evidence. So, in these cases, it takes the investigator a very long time
to gather the information or evidence.

-- 59
59 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

The ACU is also facing difficulty in doing computer forensics in order to obtain evidence.
In some cases, the main evidence must be retrieved from an electronic storage device. In
addition, the slow response from the relevant entities in sharing the information of the suspectis also considered as one of the problems that always delays the process of the investigation.
V. CONCLUSION
From the time that the Anti-Corruption Unit was established in 2010 to the present, theACU, with the strong support of the Royal Government of Cambodia, has been recognized andtrusted by most people and became one of the first options of the people as a law enforcement
agency. The ACU will continue to perform its job with utmost care, responsibly andtransparency. The ACU is also ready to work together with all anti-corruption agencies andstakeholders to quickly respond to all kinds of challenges, especially new and emerging formsof corruption.

- 60 - 60 -

CAMBODIA

NEW AND EMERGING FORMS OF CORRUPTION IN CAMBODIA
Ros Saram *45

I. INTRODUCTION
I am pleased to be nominated by the Ministry of Justice of the Kingdom of Cambodia toattend this 16th Regional Seminar on Good Governance for Southeast Asian Countries under
the theme “New and Emerging Forms of Corruption and the Effective Countermeasures” upon
the invitation of UNAFEI (United Nations Asia and Far East Institute for the Prevention of
Crime and the Treatment of Offenders). In fact, corruption does exist in Cambodia. Corruption
has caused damage, affected the quality of life, and distorted the market. Corruption may also
lead to terrorism, organized crimes, and unfair competition. Therefore, the combating ofactions defined as “corruption” is the commitment of the Cambodian Government and therelevant stakeholders. I believe that today’s seminar will further broaden knowledge about
corruption in each country and further enhance the comprehension of the challenges in theinvestigation, prosecution and trial of corruption cases, as well as further strengthen the interagencies and international cooperation.
To exchange experiences, to understand the challenges and obstacles in the process ofinvestigation, prosecution, and collection of evidence, and to find the effective measures incombating the new forms of corruption, I would like to raise two cases occurring in Cambodia
as follows:
II. CASE NO. 1 1
A. Facts
Between April and May of 2019, the representative of a Solar Company engaged with X,
an official of Pursat Casdatral Department to inquire about the application for solar
construction. The representative of the company has provided the land title to X. On 26 July
2019 at 11 am, X has guided the representative of the company to meet Y who is the superiorof X at Y’s office to discuss the service fee for the construction of a solar factory. Y and X
have calculated the fee for the transfer of land title which amounts to USD 75,000 (seventyfive thousand) and the fee for the application for a construction permit which amounts to USD
25,000 (twenty-five thousand). The meeting between the representative of the company and X
was arranged by A. On 27 July 2019 at 8 am, Y told X and A to meet the representative of thecompany at Moha Leap restaurant in room no. VIP8. Y was also present in that room. The
representative of the company handed over the cash amounting to US 45,000 (forty-fivethousand) to Y, and Y gave this cash for X to count. A was outside guarding the room,promising the company’s representative that he would watch out here. Shortly after, the AntiCorruption Unit (ACU) intervened in this flagrante delicto case and arrested X, Y, and A for
further questioning and taking other measures as provided by law.

Prosecutor of the Prosecution Office attached to the Koh Kong Provincial Court of First Instance, Cambodia.
Criminal case file No. 4930 dated 30th July 2019 of Prosecution attached to Phnom Penh Court of First Instance;
Criminal judgement No. 157 "្រក8 ញ", 27 February 2020 of Trial Judge of Phnom Penh Court of First Instance.

*
1

- 61
61 -

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

B. Procedures
The ACU arrested X, Y, and A and sought the property suspected as the proceeds of crime.
On 30 July 2019, the ACU brought X, Y, and A before the Prosecution Office attached to the
Phnom Penh Court of First Instance. The prosecution charged X and A for “misappropriationof public funds” and Y for “misappropriation of public funds”, “abuse of power” and “money
laundering”. The prosecution and request for the confiscation of property were conducted inparallel with the inculpatory statement of the ACU, the judicial police in this case. X, Y, andA were detained the next day. In the judicial investigation process, the investigating judge
ordered to freeze Y’s property. The public hearing of the three accused took place on 6
February 2020 and continued on 7 February 2020. The bench, consisting of three judges of thePhnom Penh Court of First Instance issued judgment no. 157 “្រក៨ញ” dated 27 March 2022
but dropped the charge on “abuse of power” for X and A.
C. Penalty and Law
For the act conducted in Pursat province on 26 and 27 July 2019, X and A were sentenced
to 2-years-and-6-months’ imprisonment on the charge of “misappropriation of public funds”
per Article 592 and Article 593 of the Cambodian Criminal Code.
For the act committed in Pursat from 2016 until 26 and 27 July 2019, Y was sentenced to
8 years’ imprisonment and was ordered to pay a monetary fine in the amount of Riels 8,000.000(eighty million) on the charge of “misappropriation of public funds”, “abuse of power” and“money laundering” per Article 592 and Article 593 of the Cambodian Criminal Code, Article
35(2) of the Law on Anti-Corruption and Article 3(new) and Article 29(2)(new) of the Law on
the Amendment of Article 3, Article 29 and Article 30 of the Law on Anti-Money Launderingand the Combating of the Financing of Terrorism.
D. Enforcement of the Judgment
The judgment above became final on 2 July 2020. The property of Y, such as a house, threeplots of land, two cars, and cash in the amount of USD 17,529 and Riels 16,250,000, wasconfiscated as public property.
E. Challenges and Obstacles
In fact, in each country, public services come in many forms, from small to large, and someare complex, and require collaboration with national and sub-national ministries andinstitutions. Completing public service applications is often a bit of a hassle for civilians due
to a lack of comprehensive understanding of a particular public service, and, therefore, public
service applicants and public service providers often have to pay extra or overpay in order toachieve the desired results or needs. The Royal Government has the Anti-Corruption Unit as
its secretary body, striving to prevent all forms of corruption by using various methods.
However, the above offences are very difficult to suppress and find evidence to charge theperpetrators. Bribery is similar to the above facts, sometimes from service users and sometimes
from public service providers. Due to the lack of cooperation from the victims, the repression
was met with real obstacles. In fact, in court, I have never had a victim submit an applicationor file a complaint for corruption against anyone. I would like to share the above forms of
public service corruption with ASEAN countries and together find effective ways to preventand suppress them.

62- 62 -

CAMBODIAIII. CASE NO. 2 2
A. Facts
On 22 October 2021 at 10:15 am, the Police Commissioner of Koh Kong province, under
the facilitation of the representative of the Prosecution Office attached to the Koh Kong
Provincial Court of First Instance, led a team comprising an Anti-Drug Crime Force, Srea
Ambel District Police Inspectorate, a special intervention force, and a border police battalion
no. 269 and cracked down on a case of illegal drug possession, transportation, and traffickingof narcotic substances in Chom Kar Krom Village, Srea Ambel Commune, Srea Ambel District,
Koh Kong Province. During the crackdown, a total of 7 people along with other exhibits,
including 10 boxes of white powder (heroin) weighing 212.40 kg, one Toyota Highlander, twodifferent types of boats, 7 mobile phones, and various cards, were arrested or seized. After the
initial inquiry with the suspects, the authorities continued to inspect the boats and another houseon Steung Meas Street, Village no. 3, Au Tres Commune, Steung Hav District, Sihanouk
Province; however, no new evidence was found. Then, the authorities confiscated the white
powder to test with a TruNarc scanning machine and MakiTest and found that the confiscatedwhite powder is indeed heroin. Consequently, the authorities forwarded this case to theProsecution Office attached to Koh Kong Provincial Court of First Instance for further legal
proceedings.
B. The Prosecution and Confiscation
Regarding the above-mentioned case, 9 people were prosecuted for illegal drug possession,transportation, and trafficking of narcotic substances as well as for money-laundering as per
the Order no. 34 អ.យ/២២ dated 7 March 2022 of the Prosecution Office attached to the KohKong Provincial Court of First Instance. The identities of the above 9 people are as follows:
1.
2.
3.
4.
5.
6.
7.
8.
9.

Name: SangSing Bramuch, called Lag, Male, 55 years old, Thai national
Name: Si Thavnoyar, called Yar, Male, 55 years old, Thai national
Name: Horn Phanna, called Anna, Female, 32 years old, Khmer national
Name: Pich Kong, called Rim, Male, 39 years old, Khmer national
Name: Ros Sithanh, Male, 46 years old, Khmer national
Name: Nov Chanthou, called Chhit, Male, 46 years old, Khmer national
Name: Sav Nak, Male, 43 years old, Khmer national
Name: CHAT SUWAN THEERAPHAT, called Auo, Male, Thai national
Name: SIRISAK CHATSUWAN, called Piyai, Male, Thai national

However, the Koh Kong Provincial Court of First Instance held a public hearing on 15 July
2022 and on the same day issued judgment number 67 “ង”, where:
1.
2.
3.
4.
5.

Name: SangSing Bramuch, called Lag, Male, 55 years old, Thai national
Name: Si Thavnoyar, called Yar, Male, 55 years old, Thai national
Name: Horn Phanna, called Anna, Female, 32 years old, Khmer national
Name: CHAT SUWAN THEERAPHAT, called Auo, Male, Thai national
Name: SIRISAK CHATSUWAN, called Piyai, Male, Thai national

were sentenced to 3 years’ imprisonment for a money-laundering offence committed in Koh
Kong Province in 2021 pursuant to Article 38 of the Law on Anti-Money Laundering andCriminal case file No. 55 dated 24th February 2022 of Prosecution attached to Koh Kong Court of First Instance.
+ Criminal judgment No. 67 "ង" dated 15th July 2022 of Trial Judge of Koh Kong Court of First Instance.

2

- 63
63 -

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Combating the Financing of Terrorism. However, the remaining four suspects were notconvicted of a money-laundering offence.
The significant assets confiscated as public property include a vehicle, a ferry, a boat, a
motorbike, and cash of about USD 45,982 (forty-five thousand nine hundred eighty-two).
C. Challenges and Obstacles
Regarding the above cases, it was very challenging for the Cambodian authorities to trace
the assets being the proceeds of crime from the offence committed by the criminal in the past
and which have been hidden overseas. Moreover, there were Thai nationals among the arrested
suspects which required regional and international cooperation for evidence collection.
However, international cooperation in criminal cases must follow international law andconventions which consume a substantial amount of time and thus affect the judicial
investigation. The duration of provisional detention has also been clearly determined under thelaw which forces the court to close the investigation prematurely even though in some cases,
the masterminds or the criminals could not be identified and convicted, for instance, in the caseof SIRISAK CHATSUWAN, called PHAI YA.
IV. FURTHER COMMENTS
In the meantime, I notice that recently the Cambodian government is strongly committed
to cracking 3 down and tackling crimes including drugs, human trafficking, labour exploitation,
online scams, illegal gambling, corruption, customs, and environmental offences in order totrace and implement the Law on Anti-Money Laundering 4 and Combating the Financing ofTerrorism where many adhoc working groups have been established continuously.
Furthermore, all courts at all levels throughout the country have been prompted to investigate,prosecute, freeze and confiscate the assets of criminals consecutively.
49

From my point of view, combating corruption in Cambodia should start with theeducational campaigns educating the local people and the strengthening of work productivityof the public and private institutions as well as the strengthening of law enforcement. The
mechanisms established by the Cambodian ggovernment as mentioned above have also
tremendously helped to diminish the new forms of corruption. On the other hand, theadvancement of technology is another concern that might hinder the prevention of new formsof corruption, which are occurring globally.

Instruction No. 768 សជណ dated 09th September 2022 of the Cambodian Government.
Decision No. 04 កយ.សសរ/22 dated 18th January 2022 of the Ministry of Justice; Decision No. 001
សសរ/តសហ dated 21st January 2022 of the Cambodian Government.

3
4

64

- 64 -INDONESIA

NEW AND EMERGING FORMS OF CORRUPTION IN INDONESIAAND THE EFFECTIVE COUNTERMEASURES: CORRUPTION IN
THE STOCK MARKET SECTOR
Suyanto R. Sumarta *I. INTRODUCTION
A characteristic of a developed country is the existence of an advanced stock market. The
stock market refers to an equity market and is one of the important areas of a market economy
as it gives firms access to capital while both the existing and potential investors could also bepart of a company's ownership through the acquisition of shares. 1 The stock market also
provides information about the economic condition of a country, through the composite stockindex report. Stock Market development plays a crucial role in the national economy andfinance. 2 If the composite stock index shows a declining trend, it indicates that there is an
economic crisis in a country. Several countries in Asia, including Indonesia, have been hit bya financial crisis, and Indonesia has been hit by the crisis for a long time due to its fragile
economic foundation. Some factors causing the crisis are mismanagement by the company's
management and corruption.
Corruption cases are not only an issue for national development in Indonesia but also havebeen an issue of global development. 3 In Indonesia, corruption was widespread in government
at both central and local levels, and no exception to the business sector involving statecompanies (state-owned enterprises), that have core business in banking, taxation, capital
market, trade and industry, commodity futures, or in the monetary and financial sector.
In 2020, the Attorney General Office of the Republic of Indonesia (AGO RI) in this case
Deputy Attorney General on Special Crime Affairs 4 investigated corruption at PT Jiwasraya 5with a state financial loss amount of Rp16.81 trillion (equivalent to USD1.1 billion). 6 Then in
2021, AGO investigated corruption at PT Asabri 7 with a state financial loss amount of
Rp22.788 trillion (equivalent to USD1.5 billion). 8

Special/Specific Crime Investigator and Prosecutor, Head of Section II of Sub. Directorate Corruption andMoney Laundering at Directorate Investigation of Deputy Attorney General on Special Crime Affair.
1
Kennedy, Osoro. 2013. Kenya’s Foreign Trade Balance: An Empirical Investigation. European Scientific
Journal July 2013 edition vol.9, No.19 ISSN: 1857 – 7881. School of Economics, University of Nairobi, Kenya.
2
Hasan Ayaydın, Nuri Baltacı. 2013. Corruption, Banking Sector, And Stock Market Development: A Panel Data
Analysis, European, Journal of Research on Education.
3
Zulkipli. 2016. Legal Policy of Corruption Eradication At State-Owned Enterprises Sector In Indonesia,
International Journal Of Scientific & Technology Research Volume 5, Issue 02, February 2016.
4
At the Attorney General Office of the Republic of Indonesia, special/specific crimes refer to corruption, tax
crimes, customs crimes, economic crimes, and serious human rights violations crimes (genocide and crimes
against humanity).
5
A state-owned enterprise (BUMN) with a core business in the insurance sector.
6
https://www.bpk.go.id/news/kerugian-negara-kasus-jiwasraya-rp1681-triliun.
7
Other state-owned enterprises (BUMN) with a core business in the insurance sector.
8
https://papua.bpk.go.id/bpk-kerugian-negara-dari-kasus-korupsi-asabri-rp-2278-triliun/
*

-- 65
65 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

The results of the investigation revealed that PT Jiwasraya and PT Asabri invested theirfunds in shares affiliated with Heru Hidayat and Benny Tjokrosaputro. Then the shares werepumped and dumped at the desired value so that it seemed like PT Jiwasraya and PT Asabri
were making a profit. In Indonesia, corruption cases in the capital market are new and emerging
forms of corruption. Corruption in the capital market is very complicated because it involves
so many parties i.e., brokers, investment management, Indonesia Stock Market, Financial
Service Authority, nominees, more than 100 companies affiliated with Heru Hidayat andBenny Tjokrosaputro, and more than 200 bank accounts belonging to suspects and nominees.
II. ATTORNEY GENERAL OFFICE AT A GLANCE
The Attorney General Office of the Republic of Indonesia is the state agency that
implements state power, especially in the field of prosecution. The Attorney General is acompetent authority in law enforcement and justice, elected by and responsible to the President.
The Attorney General Office has wider core duties and powers, from the investigation of
special crimes up to the execution of court sentences and criminal decisions. These are addedby the duties to upkeep public order and stability, and supervision of religious and traditional
beliefs which might be a threat to the state and public interest.
With numerous duties applied for the legal field, the AGO as one of the law enforcement
authorities is demanded to perform more roles in law enforcement that are free from corruption,collusion, and nepotism, the upholding of legal supremacy, protecting the public interest, as
well as the preservation of human rights. Referring to Legislation Number 16/2014 andNumber 11/2021, the AGO as a government institution exercising the prosecutorial power ofthe state must be independent in performing the functions, duties, and powers, unbounded toany influence, either from the governing power or other parties.
Besides a role in a criminal case, prosecutors also have other roles in the Civil Code andthe State Administration, which may represent the Government in a Civil Case and the State
Administration for the State Attorney Prosecutor.
III. CORRUPTION CASES IN THE LAST TEN YEARSThe Government of Indonesia has implemented strategies and approaches to combating
corruption, by Law Number 31/1999 on Eradication of Corruption, as amended with Law
Number 20/2001 on the Amendment of Law Number 31/1999 on Eradication of Corruption.
The law regulates seven types of corruption, i.e.:--

unlawful acts that cause state financial or economic loss;
The formulation of the element of “state financial losses” in the provision has theconsequence that there should be a state financial loss caused by an unlawful act orabuse of power.
bribery;
embezzlement;
extortion;
fraud;
conflict of interest; andgratification.

- 66 - 66 -

INDONESIAIn Indonesia, three institutions have the authority to investigate corruption cases, i.e., theAttorney General’s Office, the Indonesian National Police, and the Corruption Eradication
Commission (KPK-RI).
In the last ten years, many corruption cases have been revealed by these three institutions.
Most cases are corruption in the procurement of goods and services sector. Based on theperformance report of the Prosecutor's Office of the Republic of Indonesia in 2021, theinvestigation stage is 1,856 cases, the prosecution stage is 1,633. Statistically, when comparedto the previous years, the number of cases handled tends to increase, with details as follows:
Table 1.
No
1
1
2
3
4
5
6
7
8
9
10

Corruption Cases Handled by the INP, 9 the AGO-RI, and the Corruption
Eradication Commission (KPK-RI) from 2012-2021

Period
2
2021
2020
2019
2018
2017
2016
2015
2014
2013
2012

INP & AGO RI
3
1.633 111.275 13
1.596 15
1.803 171.918 192.434 212.446 232.225 25
2.013 27
1.511 29

KPK-RI 10
4

122 1281 14
234 16151 18103 20
76 22
95 24
45 26
73 28
45 30

Indonesian National Police (Polri).
Corruption Eradication Commission of the Republic of Indonesia.
11
Secretariat of Deputy Attorney General on Special Crime Affair, (2022) Recapitulation of Corruption Cases in
2021, Jakarta.
12
KPK-RI, (2022), 2021Annual Report, p. 40.
13
Ibid.
14
KPK-RI, (2021), 2020 Annual Report, p. 50.
15
Deputy Attorney General on Special Crime Affair, (2022), Recapitulation of Corruption Cases in 2021, Jakarta.
16
KPK-RI, (2020), 2019 Annual Report, p. 64.
17
Attorney General Office, (2019), 2018 Annual Report, Jakarta: AGO, p. 47.
18
KPK-RI, 2018 Annual Report, p. 73.
19
Ibid.
20
Ibid.
21
Attorney General Office, (2017), 2016 Annual Report, Jakarta: AGO, p. 64.
22
Ibid.
23
Attorney General Office, (2016), 2015 Annual Report, Jakarta: AGO, p. 58.
24
KPK-RI, 2015 Annual Report, Jakarta: KPK-RI, p. 72-102.
25
Attorney General Office, (2015), 2014 Annual Report, Jakarta: AGO, p. 53.
26
KPK-RI, 2014 Annual Report, Jakarta: KPK-RI, p. 41.
27
Attorney General Office, (2014), 2013 Annual Report, Jakarta: AGO, p. 49.
28
KPK-RI, 2013 Annual Report, Jakarta: KPK-RI, p. 59-83.
29
Attorney General Office, (2013), 2012 Annual Report, Jakarta: AGO, p. 47.
30
KPK-RI, 2011 Annual Report, p. 64-72.
9

10

-- 67
67 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Table 2. Recapitulation of Asset Recovery in 2012-2021 31

No

Period

1
1
2
3
4
5
6
7
8
9
10

2
2021
2020
2019
2018
2017
2016
2015
2014
2013
2012

Asset Recovery
by AGO
Million
USD
Trillion Rupiah(1USD~
Rp15,247)3
4
22.1351,453
19.563
1,284
2.237
147
0.843
55.3
0.734
48.2
0.579
37.9
1.347
88.4
1.614
105.8
0.607
39.8
0.404
26.5

Asset Recovery
by KPK-RI
Million
USD
Billion Rupiah(1USD~
Rp15,247)
5
6
249.6
16.4
122
8
330.6321.7
528.1234.6
315.15
20.7
512.3
33.6
211.92
13.9
112.7
7.4
260.6217.1
146.38
9.6

IV. CORRUPTION IN THE STOCK MARKET SECTORThe Deputy Attorney General on Special Crime Affairs focuses on corruption with a large
scale of state financial losses and complex case corruption that is difficult to prove. As per the
Corruption Crime Law, Indonesia categorizes corruption as a crime that is challenging to prove,with the following indicators:
a. cross-sector;
b. conducted using advanced technology; orc. committed by the suspect/defendant as a state administrator.
The explanation of Article 27 of the Corruption Crimes Law states that those categories
include: corruption in the banking sector, taxation, capital market, trade and industry,
commodity futures, or in the monetary and financial sector.
In the last ten years, AGO-RI has shown a significant role in dismantling and proving casesthat are categorized as difficult. Cases categorized as complex cases include the following:
1.
2.
3.
4.
5.
6.

the perpetrator is a high-ranking public official;
the perpetrator is from the private sector (corporations and other businesses);using a pattern of financial transactions that are complicated;
capital market and banking sector;
export/import of commodities needed by the public, especially during periods of crisis;
enormous state losses.

In handling complex cases, the Investigators and Prosecutors of the AGO no longer performa simple proof mechanism but have also optimized scientific evidence, including electronic
Processed from the Annual Reports of the Attorney General Office of the Republic of Indonesia and Corruption
Eradication Commission (KPK-RI) from 2012-2021.

31- 68 - 68 -

INDONESIA
evidence. Forensic analysis of electronic evidence is one of the important sources of
information used in investigations, including interception technology.
Several other methods are used in the investigation of trading on the stock market,
investigation of companies that are nominees who are facilitators of corruption, andconcealment of corruption proceeds.
These “high profile” cases also involve foreign jurisdictions in concealing the proceeds ofcorruption. For example, in the Jiwasraya corruption case, the Investigator utilized electronic
evidence to prove the corruption, by analysing electronic data from computers, mobile phones
and other electronic devices.
A. Summary of the Jiwasraya Corruption Case
Jiwasraya's finances, which have been worsened since 2008, were used by the suspects(Benny Tjokrosaputro, Heru Hidayat, and friends) to benefit themselves by pretending to havesaved Jiwasraya's finances. First, Heru Prasetyo, Finance Director of Jiwasraya, made anagreement with Heru Hidayat and Benny Trokrosaputro, that Jiwasraya would place its funds
in shares owned by Heru Hidayat and Benny Tjokrosaputro. Jiwasraya bought shares owned
by Benny and Heru Hidayat without proper analysis. The shares purchased are third-liner
shares which are not liquid and are “pump and dump” shares. The shares were pumped anddumped for window dressing so that Jiwasraya's financial statements seemed to be making a
profit.
Because the composition of shares affiliated with Heru Hidayat and Benny Tjokro in the
Jiwasraya portfolio exceeded the regulatory limit, then Hery Prasetyo made an agreement with
13 Investment Managers to create a special Mutual Fund (Reksa Dana) for Jiwasraya only. The
mutual funds (reksa dana) are not managed professionally by Investment Management but arecontrolled by Benny Tjokro and Heru Hidayat through Joko Hartono Tirto. Underlying the
Mutual Funds (Reksa Dana) are also shares owned by Benny Tjokro and Heru Hidayat. The
shares as an underlying Mutual Fund are also third-liner shares which also are not liquid andare “pump and dump” shares.
The consequences of the actions of the suspects have caused a state financial loss of
Rp16.81 trillion (equivalent to USD1.1 billion).
B. Money-LaunderingState financial losses amounting to Rp16.8 trillion (equivalent to USD1.1 billion) werereceived by Benny Tjokrosaputro and Heru Hidayat, through the accounts in the names ofBenny Tjokrosaputro and Heru Hidayat and on behalf of several nominees. For example, from26 November to 22 December 2015, Benny Tjokrosaputro received payment of the Medium
Term Note (MTN) of PT Armidian Karyatama and PT Hanson International, in the amount of
Rp880 billion. Furthermore, Benny Tjokrosaputro hid or disguised the origin of the funds, used
the proceeds to purchase property in Jakarta, Bekasi, Maja, Lebak, Jogjakarta, Singapore, New
Zealand, and also used the proceeds to purchase shares in the name of another person (nominee)
and companies.
The money-laundering carried out by Benny Tjokrosaputro and Heru Hidayat involved
more than 100 companies affiliated with Heru Hidayat and Benny Tjokrosaputro, more than
200 bank accounts belonging to suspects and nominees.

-- 69
69 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

C. Asset Recovery
Benny Tjokrosaputra and Heru Hidayat have testified at trial that they purchased assets in
Singapore and New Zealand. Accordingly, AGO RI pursued international cooperation torecover the proceeds of crime.
To recover the state’s financial losses, the AGO has made efforts to request cooperation
with several regional countries to assist the Government of Indonesia in the forfeiture of assets
by sending requests for mutual legal assistance (MLA). The AGO also cooperates with New
Zealand in asset recovery in the country through the informal asset recovery network, ARINAP.
Regarding asset recovery, Indonesia issued Law No. 8/2010 on Anti-Money Laundering,which provides more opportunities to investigate with a “follow the money” approach. Thislaw has been implemented in Indonesia as an instrument to recover assets from the perpetratorsof corruption. With the Anti-Money Laundering Law, crime proceeds can be recovered andcontrolled by the state. These have been done by forfeiture and prosecution so that the assets
can be recovered by the State, following the asset recovery strategy of UNCAC.
AGO RI has investigated and prosecuted the Jiwasraya corruption for 5 (five) months, from27 December 2019 to 11 May 2020. In the forfeiture of assets, Investigators and Prosecutors
seized assets of the suspects worth Rp18.5 trillion (equivalent to USD1.17 billion) in the formof land, buildings, apartments, hotels, factories, coal mining, cash, mutual funds, insurance
policies, and securities/shares as well as companies.
V. CHALLENGES OF ASSET TRACING AND ASSET RECOVERY
Modern communication tools as well as the easy mobility of assets and funds allow
individual perpetrators to transfer their illicit proceeds around the globe. So that requires very
close cooperation on a supranational level, especially in Asia and the Far East. Secondly, laws
in the relevant jurisdictions need to provide powerful tools to freeze assets, which arepotentially proceeds of corruption.
The international community has recognized the importance of asset tracing and recovery,i.e., First, the United Nations Convention Against Corruption considers the return of stolen
assets one of its fundamental principles, and requires its signatories to provide a factual andlegal framework for the effective cross-border recovery of assets. Secondly, the European
Union has introduced several legal instruments aimed at simplifying asset recovery and tracing– considered to be a strategic priority – across the jurisdictions of its member states. 32
In the Jiwasraya corruption case, until now after the final judgment, not a single asset fromoverseas has been recovered by AGO RI. The Government of Indonesia has requested
assistance through an MLA request to Singapore for the freezing and returning of the following
assets:1. Forfeiture of 28 apartment units;
2. Freezing of 7 bank accounts.
Knoetzl, B. and Marsch, P. 2016. Article: Challenges of Asset Tracing and Asset Recovery.
<www.whoswholegal.com>

32- 70 - 70 -

INDONESIA
Based on court sentences/criminal decisions, all assets indicated above stemmed from
corruption. Hence, AGO RI requested help from Singapore to freeze and forfeit all these assets.
However, until now, no agreement has been met to obtain the MLA agreement approval.
Therefore, through this meeting, AGO RI hopes to develop solutions with other countries
in the region to provide practical steps for each country facing obstacles in enforcing corruption
laws overseas. We hope to get assistance in the form of a quick reaction that is certainly
beneficial for asset recovery, as envisioned by UNCAC.
VI. COUNTERMEASURES
A. Imposing Maximum Penalties in Corruption Cases
According to the Supreme Court's decision, Heru Hidayat and Benny Tjokrosaputro weresentenced to life imprisonment, as well as compensation for state financial losses of Rp 10.78
trillion (Heru Hidayat) and Rp6,078 trillion (Benny Tjokro). Meanwhile, Hary Prasetyo,
Hendrisman Rahim, and Joko Hartono Tirto were sentenced to 20 years in prison. Syahmirwan
was sentenced to 18 years in prison.
This is an historical judgment in the effort to eradicate corruption in Indonesia and provesthat the Attorney General's Office of the Republic of Indonesia is very serious about eradicating
mega corruption.
B. Forfeiture of All Proceeds of Crime and Criminal Instruments
In the Jiwasraya corruption case, investigators and prosecutors carried out asset tracing andrecovery with an estimated value of around Rp18.5 trillion in the form of property, cash, mutual
funds, insurance policies, and securities/shares as well as companies.
C. Implementation of Corruption Impact Assessment
The Deputy Attorney General on Special Crime Affairs is committed to implementing the
Corruption Impact Assessment as a key mechanism to identify and remove corruption-causing
factors in legislation and supporting institutional arrangements.
The corruption impact assessment is designed to examine, evaluate and remove, whereappropriate, corruption-causing factors in laws, regulations, and other legal instruments.
The Guidelines are designed to assist government agencies with identifying corruptioncausing factors in legislation, regulations, and other legal instruments and the supporting
institutional arrangements, and to develop and implement appropriate strategies to remove
identified corruption-causing factors.
VII.

CONCLUSION

From the above description, the following conclusions can be conveyed:
1. In the last ten years, AGO has revealed many cases of corruption, and new andemerging forms is corruption are arising in the stock market sector;
2. Corruption in the stock market sector is a “high profile” and very complicated casebecause it involves so many parties, i.e., brokers, investment management, nominees,

-- 71
71 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

more than 100 companies affiliated with Heru Hidayat and Benny Tjokrosaputro, andmore than 200 bank accounts belonging to suspects and nominees;
3. Effective countermeasures include the imposition of maximum penalties, forfeiture ofassets, and the application of the Corruption Impact Assessment (CIA); and4. The effectiveness of asset tracing and recovery will depend on the degree of cooperation
between countries, especially in Asia and the Far East.
VIII. RECOMMENDATIONAGO-RI supports regional solutions to provide practical steps for each country facing
obstacles in enforcing corruption laws overseas. The Deputy Attorney General of Special
Crime Affairs hopes to get assistance in the form of a quick response that is certainly beneficial
for asset recovery, as envisioned by UNCAC.
IX. CLOSING
The work of AGO RI in dealing with corruption cases has increasingly gained trust andappreciation from the public. This is shown by the results of the 2022 national survey regarding
the Public Evaluation of Government in the field of Economy, Politics, Law Enforcement, andCorruption Reduction, which shows an increase in public trust toward AGO RI.
Previously on April 2022, AGO RI placed eighth on the survey. The institution has now
climbed to fourth place in July 2022 with 74.5 per cent. This is a result of our success inhandling and resolving massive and complex cases, and resulting in significant state loss, andeven impact on the state economy. We managed to handle the Jiwasraya case with a state
financial loss totalling Rp16.81 trillion (equivalent to USD1.1 billion), the Asabri case with
Rp22.788 trillion (equivalent to USD1.5 billion), and a corruption case committed by a public
administrator resulting in the rarity of cooking oil in a period of crisis with current calculated
loss of 20 trillion rupiahs, and Duta Palma which caused state financial losses and state
economic losses of around Rp78 trillion (equivalent to USD5 billion), both of which are still
being tried.

- 72 - 72 -

INDONESIAREFERENCES
Alsherfawi AlJazaerli, Sirop, Mouselli. 2016. Corruption and stock Market Development: New
Evidence from GCC Countries. Journal: Verslas: Teorija ir praktika.
Attorney General Office of The Republic of Indonesia. 2012-2021 Annual Report. Jakarta:
AGO-RI.
Corruption Eradication Commission (KPK-RI). 2012-2021 Annual Report. Jakarta: KPK-RI.
Hasan Ayaydin, Nuri Baltaci. 2013. Corruption, Banking Sector, And Stock Market
Development: A Panel Data Analysis, European, Journal of Research on Education.
Secretariat of Deputy Attorney General on Special Crime Affairs. 2022. Recapitulation of
Corruption Cases in 2021. Jakarta.
Kennedy, Osoro. 2013. Kenya’s Foreign Trade Balance: An Empirical Investigation. European
Scientific Journal July 2013 edition vol.9, No.19 ISSN: 1857 – 7881. School of
Economics, University of Nairobi, Kenya.
Kuntadi. 2022. Introduction to the 2nd Panel with the Theme: “Current Developments andChallenges in Investigating and Prosecuting Complex Corruption Cases in the Region”.
Speech of Director of Investigation of Deputy Attorney General on Special Crime in
The Regional Anti-Corruption Conference for Law Enforcement Professionals inSoutheast Asia, August 28th up to Sept 1st, 2022 di Royal Orchid Sheraton Bangkok,
Thailand.
Supardi, S. 2020. The collapse of our insurance: the chaos of Jiwasraya Insurance, the Dutch
Heritage to the Absence of the State. Jakarta: IPB Press.
Zulkipli. 2016. Legal Policy of Corruption Eradication at State-Owned Enterprises Sector inIndonesia, International Journal of Scientific & Technology Research Volume 5, Issue
02, February 2016.

-- 73
73 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE- 74 - 74 -

INDONESIA

WHEN THE VIRUS BROKE OUT, THE OUTBREAK OF CORRUPTIONWAS EVEN MORE MASSIVE IN INDONESIA
Titto Jaelani *I. THE STATUS OF THE NATIONAL DISASTER IS A REASON FOR
CORRUPTION
On 2 March 2020, the first case of Covid-19 was officially detected in Indonesia. Thissuddenly shocked the public, considering that at first the government was optimistic that thevirus variant would not enter Indonesian territory, so that people were faced with a situation inwhich they had not been prepared to deal with the emergency. The spread of Covid-19 has had
the impact of increasing the number of victims and property losses, expanding the coverage ofareas affected by the disaster and having implications for broad socio-economic aspects inIndonesia.
To anticipate this emergency, the President of Indonesia issued Presidential Decree No. 12
of 2020 concerning the Designation of Non-Natural Disasters Spreading COVID-19 as a
National Disaster (Keppres 12/2020) deciding the spread of Covid-19 as a National Disaster andthe establishment of a Task Force chaired by the Regional Head, namely the Governor, Regent
and Mayor, to decide a policy in the affected area.
In line with the adage “Salus Populi Suprema Lex Esto”, which means people's safety is thehighest law, the Indonesian government immediately rushed to take various steps and strategies
to suppress the spread of Covid-19 and also overcome the domino effect of the pandemic. Oneof the sectors affected by the pandemic is the economic sector, so the government was forced to
immediately take the right policies. 1
The initial step taken by the government was the enactment of Law Number 2 of 2020
concerning State Financial Policy and Financial System Stability for Handling the COVID-19
Pandemic and/or in Facing Threats That Endanger the National Economy and/or Financial
System Stability (Law 2 /2020), but the problem is seen in Article 27 paragraph (2) of the Law,
namely:KSSK members, secretaries, secretariat members and officials or employees of the
Ministry of Finance, Bank Indonesia, the Financial Services Authority and the Deposit
Insurance Corporation and Other Officials, relating to the implementation of thisRegulation, cannot be prosecuted either civilly or criminally if in carrying out the task
it is based on good faith and in accordance with the provisions of the regulation. 2
The content of Article 27 of Law 2/2020 shows that there is “immunity” for the actions ofofficials in handling Covid who may commit corrupt acts. Sure enough, the practice ofcorruption has never been extinguished even though the country is being hit by the Covid-19
Public Prosecutor, Corruption Eradication Commission, Republic of Indonesia.
Journal of Anti-Corruption, Volume 3 Issue I, May 2021.
2
Law Number 2 of 2020 (emphasis added).
*
1

-- 75
75 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

pandemic and is even more massive and worrying. During the Covid-19 pandemic, whereIndonesia is helter-skelter to face the epidemic, corruption is getting worse and had mushroomed
into a “new epidemic”. Like a dazzling gold field, the situation is all-round. This difficulty isused by corruptors for personal gain. Corruption controversies have become increasingly heatedafter the former Minister of Social Affairs, Juliari Batubara, was caught red handed overcorruption cases involving public social assistance funds. Society is being hit by an all-roundsituation, and the crisis is getting worse. The priority of the state at this time is indeed the healthaspect, but this type of white-collar crime cannot be ignored. This paper will discuss the modeof corruption during the pandemic, especially cases that have been handled directly by the author.
II. MAIN DISCUSSION
A. Typology of Corruption in Indonesia
Corruption in Indonesia is widespread in society. Its development continues to increase fromyear to year, both in terms of the number of cases that occur and the amount of state financial
losses as well as in terms of the quality of criminal acts that are carried out more systematicallyand in scope that enters all aspects of people's lives.
The uncontrolled increase in corruption crimes will bring disaster not only to the life of thenational economy but also to the life of the nation and state in general. The widespread andsystematic crime of corruption is also a violation of social rights and economic rights of thecommunity, and because of that all corruption crimes can no longer be classified as ordinary
crimes but have become extraordinary crimes. Likewise, in efforts to eradicate it, it can no longer
be carried out normally, but extraordinary methods are required through special rules governingit.
One of the principles of preference known in legal science is lex specialis derogate legi
generalis, namely special laws that override general laws. The principle has the intention thatfor special events a law that mentions the event must be applied, although for such special eventsa law can also be applied which mentions the event more broadly or more generally.
In line with this principle, the crime of corruption is regulated lex specialist through the Lawof the Republic of Indonesia Number 31 of 1999 concerning Eradication of Criminal Acts ofCorruption as amended by Law of the Republic of Indonesia Number 20 of 2001 concerning
Amendments to Law Number 31 of 1999 (PTPK) concerning Eradication of Acts of Corruption.
Meanwhile, in a lex generalist manner, the rules for corruption are contained in the Criminal
Code (KUHP).
The categories of types of criminal acts of corruption as contained in the 30 Articles
contained in the Law of the Republic of Indonesia Number 31 of 1999 are as follows:
•
•
•
•
•
•
•
3

State financial losses;
Bribery;
Blackmail;Embezzlement in Position;
Fraud;
Conflict of Interest in the Procurement of Goods and Services;
Gratification. 3

Adami Chazawi, Material Criminal Law and Formal Corruption in Indonesia.

- 76 - 76 -

INDONESIA

Referring to the category of types of corruption and looking at the handling of corruption
related to the Covid-19 pandemic, law enforcement officers in Indonesia usually charge
corruption related to state financial losses as regulated in Article 2/Article 3 of the PTPK Law
and Bribery as regulated in Articles 5, 11, 12, 13 of the PTPK Law.
Likewise in handling corruption cases involving the Minister of Social Affairs, Juliari
Batubara, corruption cases of public social assistance funds are subject to an article on bribery,
namely Article 12 of the PTPK Law. Therefore, the author will discuss cases of corruption
during the Covid-19 pandemic outside of corruption which resulted in state financial losses andbribery, namely Conflicts of Interest in the Procurement of Goods and Services (Article 12 Letter
I of the PTPK Law).
B. Authority of the CEC Post Revision of the Law
In Indonesia, there are basically three law enforcement agencies in eradicating corruption,
namely: (i) the Police; (ii) the Corruption Eradication Commission (CEC) and (iii) the Attorney
General's Office (AGO). Each agency has the authority to investigate criminal acts of corruption.
In an effort to eradicate corruption, the implementation is carried out optimally, intensively,
effectively, professionally and continuously. Based on the provisions of Article 43 of Law
Number 31 of 1999 concerning the Eradication of Criminal Acts of Corruption as amended by
Law Number 20 of 2001, the CEC has the authority to coordinate and supervise, including
conducting investigations, and prosecution. The CEC is a Central Government institution thathas the duty and authority to prevent and eradicate Corruption Crimes as regulated in Law
Number 30 of 2002 concerning the CEC.
However, in its development, the performance of the CEC is felt to be less effective, the lackof coordination between law enforcement lines, the occurrence of violations of the code of ethics
by the leaders and staff of the CEC, as well as problems in the implementation of duties andauthorities. These problems include: (i) the implementation of the duties and authorities of the
CEC that are different from the provisions of the criminal procedure law, (ii) weakness ofcoordination with fellow law enforcement officers, (iii) problems of wiretapping, (iv)management of investigators and investigators who are not coordinated, (v) overlapping
authority with various law enforcement agencies, as well as the weakness of the absence of asupervisory agency capable of supervising the implementation of the duties and authorities of
the CEC so as to allow faults and deficiencies to exist, and (vi) accountability for the
implementation of the duties and authorities of eradicating corruption by the CEC. For thisreason, legal reform has been carried out so that the prevention and eradication of corruption
acts in an effective and integrated manner so as to prevent and reduce state losses that continue
to grow due to corruption.
Furthermore, the Government of Indonesia together with the House of Representatives of
the Republic of Indonesia promulgated Law number 19 of 2019 concerning the Second
Amendment to Law number 30 of 2002 concerning the Corruption Eradication Commission
where the institutional arrangement of the CEC was carried out in line with the Constitutional
Court Decision Number 36/PUU-XV/2017, which stated that the CEC is part of the executive
branch of government, which is often called a government institution.
Under Article 6 of Law number 19 of 2019, the CEC has the task of taking preventive actions,coordinating with agencies authorized to carry out eradication of corruption and agencies that

-- 77
77 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

carry out public services, monitoring the implementation of state government, supervision of
agencies authorized to carry out corruption eradication, investigation and prosecution of criminal
acts of corruption as well as actions to carry out the determination of judges and court decisions.
Then in addition to the duties, there is also the authority of the CEC as contained in Article
11 of the Act, namely, in carrying out its duties, the CEC has the authority to carry out
investigations and prosecutions carried out by:•

involving law enforcement officers, State Administrators, and other people who are
related to Corruption Crimes committed by law enforcement officers or State
Administrators; and/or•

concerning state losses of at least Rp. 1,000,000,000.00 (one billion rupiah). 4

C. Corruption Case Related to the Distribution of Shopping Food During the Covid-19
Pandemic
It is undeniable that Article 27 of Law 2/2020 is a gap for corrupt officials to smooth out
their intentions to take advantage to be used for their personal and cronies' interests. Instead ofsaving the community from the impact of the Covid-19 pandemic, the official betrayed the nationand state, especially with regard to his influence on the procurement of goods and services in the
procurement of social assistance in the form of nine basic commodities (sembako) for the lower
middle class.
1. Case Description
Former West Bandung Regent AA UMBARA SUTISNA, hereinafter referred to as thePerpetrator, was, around March 2020, involved in a corruption case involving the misuse of his
position to participate in the procurement of goods for the COVID-19 Pandemic Emergency
Response at the West Bandung Regency Social Service Office in 2020. The case began after
there were reports from the public related to the existence of social assistance in the form of
packages of nine staples (sembako) which are not feasible where the budget allocation comesfrom the Unexpected Expenditure (BTT) of West Bandung Regency in the amount of
Rp52,151,200,000.00 (fifty two billion one hundred fifty one million two hundred thousand
rupiah) , which is intended for social assistance in the form of food packages as much as 120,000(one hundred and twenty thousand).
However, in realizing the Social Assistance programme, because the Perpetrator wanted
benefits for himself and his family, the Perpetrator appointed the social assistance package
provider to the closest people to the Perpetrator and the Perpetrator's family, which was carriedout in the following modes, namely:•

4

The perpetrator held a meeting with M. TOTOH GUNAWAN, a businessman who was
his friend since childhood who was also the Perpetrator's Success Team during the 20182023 West Bandung Regent Election; in the meeting it was agreed that M. TOTOH
GUNAWAN would be the provider of the Social Assistance (Bansos) package for thepeople of West Bandung Regency who were affected by the Covid-19 pandemic as manyas 120,000 (one hundred and twenty thousand) basic food packages with the condition
that they must set aside six per cent of the total profit for the Perpetrator;

Article 11 of Law number 19 of 2019.

- 78 - 78 -

INDONESIA•

The perpetrator ordered the procurement official to directly appoint the company M.
TOTO GUNAWAN without being accompanied by a study by the agency regarding thefeasibility of the company.

•

The Perpetrator also used the company owned by M. TOTOH GUNAWAN in the
procurement of this social assistance, the Perpetrator also appointed a company preparedby ANDRI WIBAWA (the Perpetrator's biological son) without being accompanied bya study by the agency regarding the feasibility of the company in exchange for one percent of the company's profits. 5

The perpetrator as the West Bandung Regent who was assigned to oversee the procurementof goods and services in an emergency; however, it turned out that the Perpetrator participatedin arranging the provider of the goods procurement package for the COVID-19 Pandemic
Emergency Response at the District Social Service West Bandung TA. 2020 by appointing his
close friend, TOTOH GUNAWAN and including his son ANDRI WIBAWA.
By the CEC Public Prosecutor, Perpetrator AA UMBARA was charged with a violation of
Article 12(i), which reads: “a civil servant or state administrator either directly or indirectly
intentionally participates in the chartering, procurement, or leasing, which at the time of theact, for the whole or in part assigned to manage or supervise it”, then imprisonment for 7(seven) years and additional punishment in the form of payment of compensation as much asreceived by the Perpetrator in the amount of Rp.2,379,315,000.00 (Two billion three hundred
seventy nine million three hundred and fifteen thousand rupiah) as well as the revocation of
the right to be elected in public office for 5 (five) years after serving the sentence.
Furthermore, the judge at the first level up to the cassation level granted all the demands of
the Public Prosecutor, but the case of corruption involving a close friend and child of
Perpetrator AA UMBARA was acquitted by the judge on the grounds that it was not legallyand convincingly proven.
2. Obstacles in Handling the Case
The main challenge in handling this case was to prove the involvement of the private sector
or other parties for proof of article 12(i). This was the first time the CEC carried out a Covid19 social assistance case, which previously only used acts of corruption that harm state finances
as stated in Article 2, Paragraph (1), or Article 3 and acts of bribery as referred to in Articles 5,
11, 12 and 13 of the Corruption Eradication Law.
The CEC Public Prosecutor has screened the actions of other parties in layers with theactions of people who commit or who participate in and carry out as referred to in Article 55
paragraph (1) to 1 of the Criminal Code and then also present experts in the criminal field who
explain that other parties can be held criminally responsible. However, the Judge is of theopinion that conflicts of interest in the procurement of goods and services can only be imposed
on officials or state administrators who have the authority or influence over the decision in the
procurement, which is of course contrary to the analysis submitted by the public prosecutor.
Another challenge in handling this case is that there is no common understanding between
other law enforcers who still tend to move only to find state financial losses in the misuse ofsocial assistance funds, which on the one hand really requires quite complicated proof while5

Supreme Court Decision Number: 2910 .K/Pid.Sus/202 2 dated 13 July 2022.

-- 79
79 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

the time is limited due to the length of detention of a suspect. The statutory instrument regulates
other acts of corruption so that there is no harm in using articles that do not require complicatedevidence and in the end it can also be confiscated assets by using additional penalties in theform of payment of compensation for an amount that the Perpetrator enjoys as stated in articles
17, 18 of the Eradication Law Corruption.
3. Countermeasures
Social assistance for handling those affected by Covid-19 can contain the potential for
massive and large corruption due to the first weakness of supervision in the procurement
process in which internal supervision is formed by the Regional Head, which is of course prone
to intervention; secondly, the overlapping of rules related to procurement for social assistanceand limitations of personnel in interpreting the intent of the regulation; and, thirdly, the weakvalue of integrity possessed by the bureaucracy in Indonesia.
The CEC has the authority in terms of prevention; therefore, strategic steps must be agreed
to prevent acts of corruption including:
1. Encouraging government and winning companies to be more transparent in reporting
all their activities including profits;
2. Improving the quality of the bureaucracy;
3. Strict punishment;
4. Increasing community participation in monitoring the implementation of social
assistance;
5. Supervision of Anti-Corruption Institutions;
6. Reviewing overlapping rules.
From the handling of the cases above, a lesson can be drawn, namely that the Regional
Head in determining policies that are prone to abuse of authority can involve relevant agencies
as an example for preventing corruption involving the CEC. Then for technical procurement ofgoods and services it can involve the Government Goods and Services Procurement Policy
Institute (LKPP).
In addition, law enforcement officers, including investigators, public prosecutors andjudges, need to also improve their ability to recognize the ways in which the perpetrators ofcorruption carry out their actions so that there are similarities and updates on the mode of action,
especially those who can be held criminally accountable, not only limited to actions regulated
in one law but must be synchronized with other laws.
III. CONCLUSION
1. Social Assistance for communities affected by Covid-19 is very vulnerable to corruption,
especially in Indonesia. Regional Heads or the highest officials in Ministries/Institutions arefilled with people who come from political parties so that they can certainly have goals fortheir own interests or parties in determining policies. Instead of helping the community's
economy, the fact is that the assistance was corrupted by taking refuge in the rules of Article
27 paragraph (2) of Law Number 2 of 2020 to obtain immunity, even though they forgot
there was a phrase in the article that stated “...in carrying out tasks based on Good intention...”contrary to their actions that are not based on good faith. Therefore, serious efforts are needed
to change the mindset of bureaucratic officials, especially regarding the values of integrity.

- 80 - 80 -

INDONESIA
2. Conflict of Interest in the Procurement of Goods and Services is a type of corruption as
referred to in Article 12(i) of Law Number 31 of 1999 concerning the Eradication of Criminal
Acts of Corruption as amended by Law Number 20 of 2001, which is certainly vulnerable tothe authority possessed by an official. Therefore, it is necessary to involve the competentagency from an early stage to oversee the procurement process starting from planning toprocurement implementation so that corruption can be avoided.

-- 81
81 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE- 82 - 82 -

JAPANNEW AND EMERGING FORMS OF CORRUPTION AND THE
EFFECTIVE COUNTERMEASURES IN JAPAN
Hiroshi Kubo *I. INTRODUCTION
Based on the 2021 survey of Transparency International, Japan ranked 18 among 180
countries globally in terms of the Corruption Perception Index (1 best, 180 worst). And ingeneral, Japanese citizens place a relatively high degree of trust in public servants. That said,
Japan is not a corruption-free country, and we still have a long way to go before eliminating
corruption completely from our society. In this paper, I would like to touch upon “New andEmerging Forms of Corruption and the Effective Countermeasures in Japan” including the
explanations of our investigative agencies and how public prosecutors investigate corruption
cases in Japan.
II. INVESTIGATIVE AGENCIES IN JAPAN
A. The Police
In Japan, the police are the main investigative agency. Although officers of someadministrative bodies, such as narcotics agents and coast guard officers, also have limited
jurisdiction to investigate certain types of offences, police officers have general jurisdiction
over all types of offences. There is no special investigative agency which exclusively
investigates and prosecutes corruption cases in Japan. The vast majority of criminal cases
including corruption cases are investigated by the police and referred to public prosecutors.
Since the police do not have the power to decide whether to prosecute criminal cases, all cases
investigated by the police must be sent to public prosecutors for disposition except for very
limited minor offences. The police have headquarters in each of Japan’s 47 prefectures.
Currently there are approximately 260,000 police officers in Japan.
B. Public Prosecutors
Public prosecutors have the exclusive power to decide whether or not to prosecute eachcriminal case. Moreover, they are fully authorized to conduct criminal investigations, andactively supplement police investigations by directly interviewing witnesses and interrogatingsuspects as well as instructing police officers to investigate matters which they deem necessary.
There are 50 District Public Prosecutors’ Offices in Japan (1 in each of 46 prefectures and 4 in
Hokkaido in accordance with its vast size). Currently there are approximately 2,700 publicprosecutors in Japan.
III. HOW PUBLIC PROSECUTORS INVESTIGATE CORRUPTION CASES
A. Collecting Initial Information
In this section, I would like to touch upon how public prosecutors investigate corruption
cases especially in bribery cases. Since these cases are committed secretly among very limited
parties, it is extremely difficult to collect initial information as well as sufficient evidence to*Professor, UNAFEI.

-- 83
83 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

establish their guilt. Therefore, I believe it is worthwhile to address bribery cases and look into
how investigation is conducted in such cases.
First of all, public prosecutors need to collect initial information to commence theirinvestigation. They need some grounds or leads to initiate cases. And there are some methods
to collect initial information of these cases, such as complaints from witnesses in the form of
telephone, letters, emails etc., through investigation of other cases, publications such as weekly
magazines or newspapers and so on. That said, public prosecutors must bear in mind that thecredibility of the collected initial information is always dubious, as some people may
intentionally disseminate false negative information to frame their adversaries. Therefore,public prosecutors must, in the first place, examine whether the collected information istrustworthy enough to commence an investigation. If they fail to do so, they will definitely
cause great harm to the people involved and loose the trust of society, which they need themost.
B. Tracing the Flow of Illicit Funds
In the investigation of corruption cases, identifying and proving the flow of illicit funds isfundamental and crucial. For example, in a bribery case, tracing the flow of money – namelyfrom the source of the bribe to the receipt of the bribe as well as the concealment or use of thebribe by the recipient – is indispensable to prove the facts of the case objectively. Also, tracing
the flow of money enables public prosecutors to confiscate the bribe as criminal proceeds fromthe offender.
In order to trace the flow of illicit funds, first of all, search and seizure is imperative. By
executing search and seizure in a prompt and proper manner, gathering physical evidence will
be possible. For example, in the process of search and seizure, public prosecutors could collectnecessary physical evidence including receipts, letters, memos, diaries, contract documents,
photos, bankcards, passbooks, CDs, DVDs, USBs, computers, smartphones and otherelectronic devices etc. Then public prosecutors could develop the big picture of the flow ofillicit funds by analysing the collected evidence.
Secondly, interviewing witnesses and interrogating suspects are also necessary. Even if
physical evidence was properly collected and analysed as mentioned above, that does notalways mean everything has been completely answered. In many cases, the explanations of
witnesses or suspects are needed to clarify the entire flow of the funds. For example, oncemoney in a bank account is detected, if it was withdrawn from the bank account and its current
whereabouts are unknown based on the analysis of the collected physical evidence, then publicprosecutors further need to seek the explanations of witnesses or suspects in order to clarify
the outcome of the withdrawal of the money. Their explanations could supplement the flow of
the money corroborated by the collected physical evidence.
In addition, there are also cases where international cooperation between other countries orregions is indispensable. For example, if the money in a bank account in Japan was transferred
to a bank account in other country or region, public prosecutors would probably encounter
difficulties in tracing the flow of the money afterward, because public prosecutors in Japan do
not have jurisdiction over other countries and regions. In such cases, Japanese publicprosecutors would seek assistance from investigative authorities of other countries or regions
and ask them to provide necessary information to clarify the flow of the money. By utilizingthese methods, public prosecutors seek to trace the flow of illicit funds.

- 84 - 84 -

JAPANC. Identifying the Nature of the Funds
After identifying and proving the flow of illicit funds, public prosecutors need to identify
and prove the nature of the funds. In some cases, suspects may admit the receipt or use of thefunds; however, they claim that the receipt or the use is legal. They argue that the receipt or
use of the funds is based on legitimate transactions, or they have the legitimate right to receiveor use the funds. In order to examine or, if necessary, rebut their arguments, public prosecutors
need to thoroughly identify the nature of the funds and prove whether their receipt or use of
the funds is illegal and groundless or not.
To identify and prove the nature of the funds, public prosecutors need to collect physicalevidence including documents, data, etc., and analyse them comprehensively in addition tointerviewing witnesses and interrogating suspects. Based on the analysis of the collected
evidence and interrogations of suspects etc., public prosecutors may precisely understand how
and why the funds were received or used by the suspects.
It is especially important to obtain the confessions of the suspects and the statements of
the witnesses in order to prove the nature of the funds because they are the only ones who know
the truth of their stories. For example, in a bribery case, if a bribe giver admits that funds wereintended to bribe the bribe taker, and at the same time, based on the overall investigation, no
evidence was found to corroborate legitimate transactions etc. between the provider and therecipient, it is highly likely that their guilt will be established at trials.
In order to obtain the confessions, it is necessary to listen carefully to the voices of thesuspects and never deny their arguments completely. They may sometimes lie or hide the true
story but, at the same time, they may reveal the truth to some extent. If public prosecutors try
to press their opinions unilaterally, the suspects would refuse to talk and never tell the truth topublic prosecutors. And it is also essential to present the collected objective evidence to thesuspects and seek their opinions on the evidence. By being presented with overwhelming
objective evidence, some suspects might give up arguing on and start telling the truth to publicprosecutors.
D. Identifying All the Suspects
Public prosecutors also need to identify all the suspects involved in a case. In some bribery
cases, in addition to a bribe giver and bribe taker, there is also an architect who organizes thecrime and a beneficiary who receives criminal proceeds in the end, including gang members
and politicians etc. These figures tend to hide behind other junior figures and press their
responsibilities to those people to escape from their own charges, but they are the ones whoshould be held accountable the most.
Public prosecutors must examine the case thoroughly, identify all the suspects, especiallythe kingpin, and bring all of them to justice without fail. Public prosecutors must collect andanalyse enough evidence so that court can be fully confident to establish guilt of all the suspects
beyond reasonable doubt.
IV. NEW AND EMERGING FORMS OF CORRUPTION IN JAPANA. Covid-19-Related Cases
From the outset of the Covid-19 pandemic in 2020, there were cases where individuals andlegal entities defrauded the Japanese Government out of subsidies originally designed to assist
those adversely affected by Covid-19 in Japan. As of 6 October 2022, more than 1,600

-- 85
85 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

individuals and legal entities have wrongfully received subsidies of more than 17 billion yen,equivalent to US$116 million. Among these cases, some were committed by Japanese
Government officials, for example, those of the Ministry of Economy, Trade and Industry(METI), which is in charge of the Covid-19-related subsidy programme, as well as one of the
National Tax Bureau, which is involved in the process of distributing subsidies. Two METI
officials were found guilty and sentenced to 2 years and 6 months in prison and 2 years inprison with the sentence suspended for 4 years, respectively, for swindling 15 million yen
jointly. And an official of the National Tax Bureau was also found guilty and sentenced to 3
years in prison with the sentence suspended for 5 years for swindling 7 million yen with his
accomplices. Those officials, all in their 20s, have allegedly abused their knowledge andexperience as officials of responsible ministries and bureaus and defrauded the government out
of funds which could have otherwise helped those in desperate need.
B. Corruption Cases Related to the Tokyo Olympics
In August 2022, a former Tokyo Olympic organizing committee board member wasarrested by the Tokyo Public Prosecutor’s Office over allegations that he was bribed 51 million
yen, equivalent to US$380,000, to secure a sponsorship contract for a business wear company
and grant it approval to sell official Games goods. Technically speaking, the organizing
committee board members are not public servants themselves, but they are categorized as“deemed public servants”. In Japan, some non-public servants are regarded as public servantsin accordance with the nature of their professions, which are highly public or related to the
public benefit etc., in line with those of public servants by the special acts. For example, theofficials of the Bank of Japan are not public servants, but they are deemed public servants by
the Bank of Japan Act in accordance with the nature of their professions. The deemed public
servants are punishable by the provisions which punish public servants such as bribery, abuseof authority by public servants etc. Likewise, the former board members are deemed public
servants based on the Special Act of the Tokyo Olympic Games, and they are subject topunishment for receiving bribes.
Public prosecutors arrested the founder (former chairperson) of the company, along withthe former vice chairperson and the senior managing director of the firm, for allegedly offering
those bribes to the former board member. It is said that the former board member denied
pushing organizing committee officials to give the company such favourable treatment, saying
the money was just paid for consulting services. Following this case, the former board member
was arrested several times in connection with other similar cases, but he also denies
wrongdoing. The investigations by public prosecutors are still ongoing, and the overall pictureof the cases is yet unclear. The Olympic Games were originally commenced to encourageinteractions among athletes regardless of their backgrounds in order to establish a peacefulworld, but recently they have become too extravagant. In fact, in the Tokyo Olympics (2021),
US$28 billon was used, whereas, in London Olympics (2012) and in Sydney Olympics (2000),
only US$15 billion and US$5 billion were used, respectively. 1 The expenses of the Olympic
Games have ballooned nearly sixfold in just 21 years. I believe this trend is one of the big
causes of such corruption cases, and the business wear companies and others sought to gain
their own interests in the Tokyo Olympics Games by exploiting the enormous clout of theformer board member on the organizing committee. If people concerned keep doing the samethings and do not change their directions, similar cases might occur in the near future as there
seems to be no sign of keeping the expenses of the Olympic Games down. And also, to prevent
https://www.forbes.com/sites/niallmccarthy/2021/07/27/tokyo-is-the-worlds-most-expensive-city-forconstruction-infographic/?sh=2a363d9170d2
1- 86 - 86 -

JAPANthe recurrence of similar cases, we need to have an effective mechanism in place which robustly
scrutinizes conflicts of interest of all deemed public servants both incumbent and prospectivewith companies or individuals likely to be engaged in their businesses.
C. Cases Involving Cooperative Agreements
In Japan, the cooperative agreement system was created in 2016 and came into force in2018. The new system allows suspects and defendants to enter into negotiations with publicprosecutors, whereby evidence of others’ criminal conduct can be provided in return for
criminal charges being reduced or dropped. It covers white collar crimes such as fraud, bribery
and so on.
Since its introduction, the system has been used in several cases, and the first case wasrelated to a Japanese power equipment manufacturing company. The company was engaged in
the construction of a thermal power plant in a Southeast Asian country in 2015. However, inFebruary 2015, when the company’s logistics provider tried to unload components for the plant
at a jetty near the construction site, local residents along with public officials from the local
port authority claimed that the logistics provider had not properly obtained the necessary
licence to use the jetty and they blocked the jetty. The logistics provider was asked to pay a
bribe (around USD 600,000) in order to use the jetty, and the company’s employees paid thebribe to the local residents and the port authority officials, as requested, through the logistics
providers, so that they could avoid the delay of the construction. Later the company becameaware of the said case and could not deny the fact that the company’s employees had bribed
foreign public officials. Therefore, the company reported its findings to public prosecutors andentered into a cooperative agreement with public prosecutors in 2018 under which publicprosecutors agreed not to charge the company in exchange for its cooperation in theinvestigation. Three former employees were prosecuted for bribing foreign public officials, andall of them were found guilty. Among them, two were sentenced to 1 year and 6 months inprison with the sentence suspended for 3 years, and the remaining one was sentenced to 1 year
and 4 months in prison with the sentence suspended for 3 years. The number of cases in which
the cooperative agreement system has been used is still small in Japan; thus, it is yet premature
to judge whether the system is a truly effective means of investigation.
D. Exam-Related Cases
In Japan, national exams including the bar exam and other entrance exams of prestigious
universities, especially those of medical schools, are quiet competitive. In fact, only 2 or 3 outof 100 applicants passed the bar exam each year in the past, and they were indeed extremelycompetitive.
In 2015, an unprecedented case happened in relation to the bar exam in Japan. A professorof a law school who was one of the members to set the bar exam of that year, disclosed somequestions in advance to one of his female students, whom he was reportedly dating. This casebecame evident, as the female student gained unnaturally high marks. He fed exam questions
to the student because she had failed the exam a year before and he wanted to help her. He wasfound guilty and sentenced to 1 year in prison with the sentence suspended for 5 years.
Also in July 2022, a former senior education ministry official was found guilty andsentenced to 2 years and 6 months in prison, suspended for 5 years, for allegedly receiving
bribes related to a ministry support programme for private universities. He accepted a requestfrom the members of a medical university in Tokyo to give favourable treatment to the

-- 87
87 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

university in return for his second son fraudulently passing the entrance exam of that university
in February 2018.
These are the two examples of corruption cases related to exams. These suspects were bothin highly responsible positions, and they should have or must have surely recognized the great
responsibilities attached to them at the moment of committing their crimes. However, they
averted their eyes from them and acted wrongfully in favour of their loved ones even thoughthese acts will turn out to be a major disadvantage for their loved ones in the end.
V. CONCLUSION
As mentioned above, corruption still exists in Japan and new cases are emerging. In orderto prevent and fight against corruption, I believe maintaining the integrity of public servants,
including those regarded as public servants, is crucial and imperative. In Japan, the National
Public Service Ethics Act was enacted in 1999, and the National Public Service Ethics Codewas also enacted in 2000 in order to maintain the integrity of public servants.
Based on the Act and Code etc., various trainings have been conducted for public servantsso as to maintain their integrity and to raise anti-corruption awareness. However, these efforts
are insufficient, and we still have much to do to completely eradicate corruption from oursociety. For example, in addition to conducting these trainings, we could enhance awarenessof the risks of corruption by informing them repeatedly of the actual cases and teach them how
corruption could destroy the suspect’s life. They need to realize from the bottom of their heartthat the results of corruption are enormous and irreparable. By learning these cases, I believe,
they can finally associate them with their own lives more directly.
And this is completely my personal opinion, and someone may strongly disagree, but, tosome extent, we may need to think of raising salaries of young public servants so that theywould be commensurate with their workload. It is said that some young public servants arequitting their jobs early because they think they are not paid enough for their work, especiallyfor overtime, compared to their peers in the private sector. In fact, after WWII, the system of
the salaries of the public servants in Japan was reformed, and the salaries of police officers
became higher than those of other public servants. That led to the decrease of the amount ofcorruption committed by police officers. Until then, in some prefectures, surprisingly, five percent of police officers received the sanction of disciplinary dismissal due to their wrongdoingin just one year 2 (currently, it is less than 0.0001%).
It is not clear whether the amount of salary is directly connected to corruption for the
moment (however, the officials of the METI and the National Tax Bureau, who committed
fraud in Covid-19-related cases, were all in their 20s), and we may need to consider budgetaryissues in advance, but if they receive salaries which they view as being commensurate with
their own work, it could dissuade them from becoming engaged in corruption in the future.

2

Keisatsugaku Ronshu (The Journal of Police Science) Vol. 65, No. 9, p. 108.

- 88 - 88 -

LAO PDRNEW AND EMERGING FORMS OF CORRUPTION AND EFFECTIVE
COUNTERMEASURES
Kienthong Namkhalak *I. RAISING THE ROLE OF PREVENTING AND COMBATING CORRUPTION IN
THE NEW ERA
Corruption is a crime that occurs in the organizations of the public sector, a great danger
that affects and delays the socio-economic development of each country in the world.
Corruption is a threat to the stability of both public and private organizations, causing unrest,
injustice in society, undermining the strength, trust and value of the society towards various
administrative institutions and organizations. Corruption diverts money from the national
budget in various development projects of the state and the income of the collectives as wellas the citizens in many ways and in the most subtle ways which makes the quality of thoseprojects low, the state and citizens lose a lot of income every year. Corruption is also an open
expression of violation of laws and regulations of the state and the lack of virtue, lack of ethicsof civil servants, soldiers, police in public and private organizations, causing groups, clans, andfamilies, neighborhoods and relatives to share economic and political interests and lead todisunity, causing disunity in leadership and society. The behaviours of corruption have been
expressed in many different and complicated forms. It exists in a narrow circle of individuals
or groups of people and widens out to organizations, groups of people, government officials,
private individuals and entrepreneurs with transnational activities and others.
II. PROVISION OF ANTI-CORRUPTION
Preventing and combating corruption in the Lao PDR is aimed at ensuring that the propertyof the state or the rights and interests of citizens and society are not damaged, embezzled ordefrauded, and to protect the innocent, aiming to make government organizations, massorganizations and social organizations strong and transparent, ensure that the country has
political stability, stable economic growth, and a peaceful, orderly and fair society. Therefore,
preventing and combating corruption is the duty of all party, state and social organizations thatmust work together and also practice the political virtues, revolutionary moral qualities of party
members, especially the party leadership.
III. ACTIVITIES TO PREVENT AND COMBAT CORRUPTION
To prevent corruption, it is important to:•*Limit, fight and solve the phenomenon of corruption by increasing and improving thequality of coordination between law enforcement organizations and government
administration authorities at each level.

Senior Anti-Corruption and Investigation Officer, State Inspection Authority, Lao PDR.

-- 89
89 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE•

Find, eliminate and solve the phenomenon of corruption that occurs gradually by using
the measures, rules, regulations and laws in the prosecution of corruption cases
strictly, sincerely and fairly.

•

Limit the behaviours of officials who abuse their powers, positions and duties toembezzle, cheat, accept bribes, and give bribes and engage in other behaviours.

State anti-corruption inspection work is the duty of party committees, administrative
authorities, social organizations and inspection committees at each level, and party members
and citizens have obligations as defined in the law on anti-corruption.
IV. CAUSES OF CORRUPTION
There are many causes of corruption in the state, including factors that depend on theactual environment, policies and problems related to socio-economics, customs and culture,
which indicate some of the following factors:
1. Mechanisms, policies, regulations and laws are not focused and complete, and there
are still many gaps, but additional improvements have been delayed;
2. The organizing and performance of the political system in general, in the party-stateorganization, in particular, there are still many weaknesses. Quality and efficiency are
not high. The roles, duties and rights of some organizations are not clearly defined andare repeated and scattered. Solving the problem of party members who violate the laws
in some sectors is sympathized which causes correction according to regulations, andlaws are not strict enough;3. Among party committees, board of directors, governing body and party members,some have not fully understood their roles, duties and rights, and have not yet beenrole models in organizing. Set to implement the rules of the party, state laws, leadingby example, leadership is not well oriented, monitoring and inspection are not regularand continuous, some places have plans to monitor and inspect but have not yet been
implemented, making the summary of the good/weak aspects in the implementation of
the policy plan of the party, resolutions, orders and laws of the state do not correspondto reality, when creating plans, programmes, there are only expectations, not based onreality, causing gaps of corruption;
4. Monitoring, inspection and management of the activities of party members have notbeen done well. The party committee and a number of leadership committees have not
yet acknowledged the number of staff and party members under their management.
Education in political virtue is just done in an overall style. Resolutions, orders,regulations, laws and important documents of the party-state are not yet deep enough.
A number of employee-party members are lacking in political ideas, virtues, qualities,
revolutionary morals, lifestyles and lack of leading as role models for the masses.
V. PREVENTION OF CORRUPTION
In order to prevent corruption in the government and in the areas of government officials,
party members to be transparent, strong, limit and fight back various scandals in the future,
we must pay attention to implement some measures to prevent and fight corruption as follows:- 90 - 90 -

LAO PDR

1. Party committees and governing organizations at each level must pay attention to theparty's policies, rules, requirements, laws on anti-corruption, the dangers of corruption
to party workers-members, improve the state administration mechanism to beconsistent, effective and transparent. At the same time, employee-party members mustalso be leaders who train themselves and serve as examples in respecting and following
rules and laws.
2. Defining and implementing clearer policies to the staff-party members of each level
and to ensure that their lives are resolved appropriately and must consider the task ofinspecting, preventing and fighting corruption as an important and regular duty of theparty-state and the entire Lao people in the mission of protecting and building the nationin order to simultaneously prevent and resolutely defeat corruption;
3. Party committees and governing organizations continue to improve and implement themechanisms, policies, regulations of the state and employees in a focused manner, theyalso implement the work of the employees in a democratic, open, and transparent
manner, especially in the selection, recruitment, placement, appointments, transfers,
reshuffle, evaluations, praises, disciplinary actions for employees and other issues in atimely manner;
4. Continue to improve the legal system, monitoring, inspection, verification,
investigation and consistent solution methods, the management system for the economy
and society to be focused, promote the people, the media and social organizations toparticipate in the prevention and fight against corruption widely and strictly;
5. Increasing the coordination, monitoring and inspection activities of the sectors, theNational Assembly, and the Provincial People's Council for the prevention and anticorruption work. Enhance the role of the Lao National Front and political-socialorganizations, the media, and people to participate in the monitoring and inspection
widely;6. Continue to improve the state administration system and work plans, create measures,list of job positions and the number of positions in every sector to be complete;
Enhancing sanctity in state management and managing society with laws to suppress
and anti-corruption.
VI. THE SUMMARY OF ANTI-CORRUPTION IMPLANTATION/PRACTICES IN
THE PREVIOUS PHASE
In the ranks of party members, workers have been educated in politics – the idea oforganizing and improving political life within the party, conducting political life within eachlevel of the party regularly to survey themselves and send messages to help each other within
the party with sincerity to help prevent and solve such problems, so that party members, civil
servants, soldiers and police can see that they maintain political virtues, good revolutionary
morals, and love the party for the party, for the nation, for the rights and interests of thenation, and for the people.
Recently, especially from 2016-2020, anti-corruption laws have been strictly enforced.
The party committee, leadership, management organization and inspection committee at each

-- 91
91 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

level have paid attention to monitoring and inspecting the state management at their levelwith many goals, in which civil servants were found to violate party regulations, state laws
and corruption. In these cases, the staff were disciplined as follows: 749 people (Government
employees: 639 people, companies: 99 people, employees of state enterprises: 3 people,
indivdiuals: 8 people). Proceedings 130 people (Government employees 93 people, companies
26 people, State enterprise employees 3 people, 8 people); Summary of the case sent to theprosecutor: 93 people (Government employees 64 people, companies 24 people, employeesof state enterprises 3 people, 2 people); The court has decided 79 people (Government
employees 64 people, companies 19 people, employees of state enterprises 3 People); Fix all
administrative aspects 619 people, (Government employees 546 people, companies 73
people); Found all the damage 746, 27 billion kip, 362, 10 million baht, 14, 21 A million
dollars and can be recovered 391, 95 billion kip, 25, 16 million baht and 10,000 dollars.
Specific year 2020 Proceeding all corruption cases 5 A list of cases in which there are those whohave been prosecuted 24 people (government employees 16 people, companies 2 people, 6 people);
Damaged value 208, 13 billion kip, 331, 83 million baht, 14, 3 million dollars; Cleared already14.04 billion kip, more than 14 million baht; Requests and proposals received 4.817 Edition, in
which research has been considered and corrected 1.524 Version, sent to other parties to correct
1.581 version, inform the relevant parties 155 version, collect to track 273 version, pending 1.284
Version.
A number of financial assets damaged by corruption have been recovered and returned tothe state. Those who violate the law are disciplined and punished according to the law. As
well as raising consciousness of respect and implementing party discipline, state laws forparty workers-members and citizens are gradually improving.
VII.

THE CONTENTS OF THE ANTI-CORRUPTION STRATEGY

The government of Lao PDR has defined an anti-corruption strategy. In order to define itin more detail, the State Inspection and Anti-Corruption Authority has created programmes toimplement the anti-corruption strategy, which includes 4 plans and 16 projects. In order toimplement the anti-corruption strategy of the government, aiming to achieve results, theprevention and anti-corruption work have been transformed in a more proactive direction,
whereby the State Inspection Agency has determined a strategic implementation plan. Each
phase is detailed below:
Programme 1: Education on civic knowledge and creating awareness of law− Project 1: Education on general political ideas (policy guidelines, party
resolutions, regulations and regulations of the state) that are issued from time to time.
This is a task that needs to be done regularly and continuously;− Project 2: Education for law enforcement officers on laws related to theprevention of corruption such as Law on Anti-corruption, Criminal Law, Criminal
Procedure Law, Laws and other provisions by selecting the content related to theprevention of corruption. The Ministry of Justice, the State Inspection Agency, theParty Committee and various governing bodies are responsible;- 92 - 92 -

LAO PDR− Project 3: Recommend and organize an assessment to integrate the contents of
the anti-corruption strategy. State inspection agency, Ministries-organizations andother local parties are responsible.
The State Inspection Agency is responsible for the integration and implementation ofrecommendations; Party Committee of Ministries-Organizations and Localities, Department
of Inspection and the inspection committee at each level is the organizer of integration andactual implementation. The period of integration and development is detailed for eachministry-agency and locality;− Project 4: Turn the prevention and anti-corruption content into curriculum forstudents and specialized schools at various levels. The Ministry of Education andSports, National Political-Government Institute and other institutions are responsible
for coordination with the State Inspection and Anti-corruption Agency. Start taking
teaching–learning courses from the 2014-2015 school year onwards;− Project 5: Study/review the regulations of the government, ministriesorganizations, localities and police departments, especially the requirements,
regimes-regulations related to the prevention and anti-corruption. It is the duty of theleaderships of ministries-organizations, localities and various police departments
which must be done regularly and continuously.
Programme 2: Research, improve and create legislation on prevention and anticorruption− Project 1: Review and revise the laws that have been promulgated. Law on Anticorruption, Law on Handling of Petitions, Decree on Anti-Money Laundering andCounter-Financing of Terrorism, Law on State Inspection. The State Inspection
Agency and the Ministry of Justice are responsible;− Project 2: Review the creation of new government legislation. Executive order of
the Prime Minister on property declaration and income; The requirements of theCentral Party Inspection Committee on the application-proposal regulations; The
Prime Minister's Department of State for monitoring and supervising government
projects; The provisions of the Party Central Secretariat regarding the coordination
regime of the party's inspection with the state inspection and the people's inspection.
The Party Central Inspection Committee Inspection Organization and the Ministry ofJustice are responsible.
Terms of the Party Central Secretariat that the mechanism for mass organizations,social organizations, media and citizens to participate in the inspection; Responsible
for the requirements of the Prime Minister regarding the subsidy policy regime forinspection workers and inspection participants. Responsible inspection agency;− Project 3: Revising old legislation and creating new legislation at the ministryorganization and local level. Review and revise the laws that have been promulgatedin order to be in line with the anti-corruption strategy, guarantee managementprotection of employees-civil servants in their sector from corruption;

-- 93
93 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Research and create new legislation that is seen as necessary to prevent and fightcorruption. The specifics of each ministry-organization and its locality. Responsibleorganizations: Ministries-organizations and Local.
Programme 3: Improving the state management mechanism− Project 1: To improve the state administration mechanisms are:1.1. Research and improve the roles, duties, and rights of some ministriesorganizations and local sectors to be clear and non-repetitive - step by step inaccordance with the resolution 3 of the Political Department and the Prime
Minister's State Department on work to create;
1.2. Research and improve the organizational system at all levels in the direction ofconcise, reasonable, transparent, strong-highly effective, ensure that the work
does not have a bargaining gap, drag, make the administration of the work quick,timely and transparent; and1.3. Improve various existing laws and create new laws such as the Administrative
Law; Various regulations for administrative management and relations between
the central and local governments, relations between sectors and others;− Project 2: Research and improve various policy regimes for civil servants andsoldiers, police, such as salary regimes, subsidies, internet, health care, and others
that are deemed necessary. Responsibility: Ministry of Interior and other relatedorganizations (responsible for both projects);− Project 3: Research and determine the coordination regime between the inspection
agency and the law enforcement agency. Responsible organization: the inspection
agency in conjunction with law enforcement agencies.
Programme 4: To adjust the support of the organization and the staff working in theprevention and anti-corruption work
− Project 1: To improve the organizational structure of inspection agencies and anticorruption agencies both at the centre and locality:
1.1. Research and improve roles, duties, scope of rights to be clear and in line withthe law on state inspection and the law on anti-corruption;
1.2. Determine the number of positions and the criteria for positions in accordancewith the political functions of inspection and anti-corruption at each level;
1.3. The internal rules and regulations of the inspection agency and the anticorruption agency should be clear and focused. Responsible Inspection
Organization in collaboration with Ministries-organizations and localities;− Project 2: Improve public sector inspection and combat corruption in various
ministries-organizations, institutions and government enterprises. Ministriesorganizations are responsible in conjunction with the inspection agency.
− Project 3: Improvement and establishment of the Department of State Inspection
and Anti-Corruption in all departments in provinces, capitals and district offices to- 94 - 94 -

LAO PDR
comply with the state inspection law (to be a special unit and have professional staff
to do special inspection work). Ministries-line agencies and the party committee, theinspection committee of the province of the district as well as the relevant
departments and offices in the province and in the district are responsible.
− Project 4: Improve the general inspection unit of various grassroots units linked tothe inspection board or the inspection unit of the party at each grassroots party (theinspection board at each level is in charge of each grassroots unit of the party).
− Project 5: Build and organize training for inspection work, prevention and anticorruption work for staff working on inspection and anti-corruption work:
5.1. Collect-check and re-evaluate the employees who are doing inspection work in
the country.
5.2. Organize maintenance and upgrade for 3 months, 6 months, or shorter training
for employees each stage of inspection is already available.
5.3. Select and build staff that work in a systematic inspection at the National
Institute of Politics and Administration and send them to study abroad. Practicestarting from 2013 onwards. Responsible organization: Party Central Inspection
Committee in conjunction with the Central Organizing Committee and the
National Political-Government Institute.
VIII. HOW TO IMPLEMENT
1. The Central Party Inspection Committee, the inspection organization will continue toinvestigate and organize into a detailed schedule for each job and coordinate with
relevant ministries and local organizations to clearly define and divide responsibilities;
Allocate in more detail the duration of the implementation to suit each task.
2. The programmes and projects defined as such, each ministry-organization and locality
must be responsible for detailed research and implementation according to their roles
and responsibilities.
3. The implementation of the strategy must be evaluated every year, starting with eachministry-organization and local area, summarizing, evaluating, learning lessons every
6 months (for each ministry-organization and local area, police department) andreporting to the State Inspectorate two times a year. To determine the implementation
period of the organization State inspection summary and interpretation Draft strategicplan for the next phase.
4. Through actual implementation, if there is any difficulty, there must be a regular
report and feedback from the upper level (in particular, the inspection agency in thecoordinating place).
Corruption includes behaviours of employees, civil servants, soldiers, and police officers
who abuse their power, position and duties to embezzle, defraud, accept bribes, give bribes
and other behaviours defined in Article 11 of the Law on Anti-Corruption (2013) to gain

-- 95
95 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

benefits for themselves, relatives, friends and other parties, which harm the interests of thestate, collective, society or the legitimate interests of citizens.
From these problems, our state party has always taken importance and paid attention to
the solution of crime, preventing and fighting corruption, by pointing out the danger of crimeand corruption, and paying attention to prevent and solve this problem forever. Starting with
political-ideological education, disseminating legislation on prevention and corruption, suchas the law on anti-corruption, resolutions, orders and strategic plans to combat and prevent
corruption, 9 prohibitions for party members; 14 prohibitions for civil servants at each leveland other documents for party members, civil servants to understand and mobilize the masses
to participate in combating and suppressing the crime and the widespread corruption problem.
In order to solve the problems to reduce corruption gradually, according to the author's
point of view, the following points are important:
1) Continue to advance awareness and understanding of the evils and intractability ofcrime and corruption. First of all, starting from the strategic leadership staff, theleadership-management staff at each level must focus on correcting selfish thinking,private thinking, abusing the position for personal gain and paying attention to raising
the leadership role of the party and the leadership role model of the party committee
and party members.
2) To improve the mechanism, system and regulations regarding the prevention andtreatment of crime and corruption, such as the system of the administrative plan andthe working methods of the party committee and administrative staff at all levels;
Regime, regulation and the content of political life is to conduct monthly and annual
reviews of party committees and party members regularly, to ensure the nature of
education, the nature of leadership and the nature of struggle, with mutual feedback
and strictly creative, enhancing democracy, creating conditions for the lower level toform ideas, to direct the upper level; Research and improve the various policies ofparty workers-members, who have worked for the nation, for the revolution
appropriately; Research legislation, regulations, such as management regulations andpromote the creation of the family economy of employees, soldiers, police officers
and other regulations that are not yet sufficient and oriented.
3) Increase the effectiveness of state management by law; The National Assembly,
Provincial-Capital Council, State Audit Organization, Party Central Inspection
Committee, State Inspection Organization and Anti-corruption Organization at eachlevel must increase strictness and pay attention to the implementation of their roles
and responsibilities to be higher, be the ones to monitor, inspect the implementation ofparty discipline, state laws regularly so that everyone, all organizations have a senseof respect and strictly implement the law.
4) To improve the organization of the party so that it is clear and strong, first of all, therole of the organization of the party must be improved at the central level ministries
and local agencies, determining the content, rules and regulations for building thefoundation of the party to be clear and in accordance with the role, which is from thegrassroots area.

- 96 - 96 -

LAO PDR
5) Respect and strictly adhere to the principles of inclusive democracy, organize as acommittee, divide work into responsible individuals, discuss work democratically, thelower level must follow the upper level, the individual should follow the organization,
the voice of the minority depends on the voice of the majority; Working closely withreality, sticking to the grassroots, being the master of the fight against and eradicating
crime, solving the abuse of power that is a violation of the rules and principles of theparty and violations of the laws and regulations of the state, correcting the situation ofmany meetings but the agreement to solve the problem is not clear, decisive, always
easy, acting superficially, lacking responsibility, talking not in line with the actual
action, talking more and doing less, solving problems not according to rules andprinciples, doing things according to others.
6) To increase the status of the party committee as a good role model, leadership,
governing body and inspection committee at each level in carrying out the assigned
political duties, leading a life of integrity, transparency, economy, and anti-fraud;
Being directly responsible for the scandal, damage to property, violation of disciplineand violation of the law of employees, party members under their management.
7) Hold importance and pay special attention to monitor and inspect areas that are at riskof corruption such as: revenue collection, tax evasion, tax, budget revenue-expenditure
management, infrastructure investment, land use management, management andexploitation of natural resources, planning, procurement, hiring, etc.; Monitoring,inspecting and taking action against those who violate the law, abuse their position,
their duties for personal gain, bribery, partying.
8) Paying attention to monitoring and inspecting party members, civil servants, including
administrative and management staff at each level with unusual wealth, raising voices,
reporting, and filing complaints from employees, party members and citizens. Whenexamining problems related to abuse of office, corruption, they must be resolved
carefully and promptly according to the scope of management rights at each level.
References:− Law on Anti-corruption of Lao PDR (Amended in 2013)− Law on the Office of the People’s Prosecutor (Amended version 2017)− Anti-corruption Strategic Plan of the State Inspection Authority− Extract from the Inspective Magazine

-- 97
97 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE- 98 - 98 -

MALAYSIANEW AND EMERGING FORMS OF CORRUPTION AND THE
EFFECTIVE COUNTERMEASURES
Yuhafiz Bin Mohd Salleh *I. INTRODUCTION AND EMERGING CORRUPTION
New threats of crime including corruption are evolving rapidly at the same pace of the newtechnology. This crime is progressing intensively, and the modus operandi have also changed.
Therefore, as law enforcement in anti-corruption, we need to buff up on our methods andinvestigation skill to overcome such threats.
Corruption happens everywhere and involves multiple levels of society. From politicians
misusing public funds to government officials involved in bribes in exchange for services,
corruption can happen anytime, anywhere and behind closed doors. Furthermore, the rewards
can be in different kinds of assets, not only in cash or properties but in bonds, shares and evenin bitcoins. The same scenario is happening in the private sector where people at all levels arealso involved in soliciting, accepting of bribes and misuse of power. The higher the position,
the bigger the cash cows flooding in and the higher the value of the bribe taken!
The cost of corruption exceeds its monetary value in that it infringes your rights and therule of law. Corruption has devastating socio-economic impacts for a country and certainly has
a big political impact. Corruption is one of the causes for the people being denied the expected
service delivery access, uneven distribution of wealth and leakages of the nation's resourcesand government funds.
Sharing the experience of MACC in investigation of the 1MDB case, the investigator
detected that the money was transferred to numerous accounts in various countries before it
ended up in the suspect’s account in Malaysia. This is a classical case where the crime-scheme
was very well organized using forged documents and shadow companies. The shadow
company was purposely formed using the same name as the genuine company. The suspectholds multiple strategic posts in Government, and the government-linked company misuses its
power and position to collude with well-known businessman to syphon the money out of
Malaysia. The money trail showed that the money ended up in the suspect’s bank account, andthe company now struggles with a very high debt. With good collaboration and cooperationfrom the countries, MACC managed to complete the investigation and the suspect was chargedin Court. The suspect was found guilty and sentenced to 12 years’ imprisonment and a fine of
MYR210 million.
Corruption is an inherited crime. It has happened for ages and has caused the fall ofcivilizations. Before such collapse, the crime only involves “petty corruption” and does not
involve cross-border links, syndicated crime or multiple transactions through bank institutions.
Based on my experience, the current ways of crime are well-organized and difficult toinvestigate. Enforcement agencies will face a very tough task to penetrate such schemes. The
current scenario of the corruption case involved syndicated/organized crime, cross-border*

Chief Senior Assistant Commissioner, Malaysian Anti-Corruption Commission, Malaysia.

-- 99
99 --

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

transactions, proxy/shadow companies and hid behind political funds, inexperienced judges,
weak political will, weakness of law and weakness of investigation techniques.
II. EFFECTIVE COUNTERMEASURES
A. Enforcement Technique/Model
The objective of an investigation is to collect the evidence and ensure it is admissible incourts. It is important for the enforcement agencies to have an efficient technique/model ofinvestigation. Weak techniques or strategies of investigation may result in failure, and thesuspect will avoid conviction. To meet the investigation’s objectives, the Malaysian AntiCorruption Commission (MACC) implemented Intelligence Based Investigation (IBI) andManaging Team Based Investigation as techniques in investigation.
IBI was used in the pre-operation stage to collect all the relevant information like general
information of the suspect or witness, companies’ details, list of assets ownership and modus
operandi (MO). This information will be useful to the investigation team. While MTI 1 is usedin the operation and post-operation stage. Its focus is on management of the case, which
involves the planning and monitoring of the investigation process, determining the action to betaken and identifying the witnesses and evidence. MTI ensures the positive outcome of theinvestigation and shortens the investigation period through tight monitoring and optimizationof manpower.
In addition, MACC also emphasizes asset tracing to identify the proceeds owned illegally,such as by means of corruption or as a result from any other crime. All the illegal proceeds will
be forfeited. The tracing of assets is done during the pre-operation stage using multiple sources
like banking institutions, land offices, local authorities and other relevant authorities.
B. Law Reform
Strict laws are required to combat corruption and increase integrity among society. The
corruption law in Malaysia has undergone a process of change and amendment. The
culmination of these changes was the 2009 passage by the House of Representatives and Senateof the Malaysian Anti-Corruption Act 2009 (MACC Act 2009). This act enhanced the AntiCorruption Act 1997 (ACA 1997), which led to the establishment of MACC, formation of the
independent panel as a check and balance mechanism and amendments to some less-clear partsof the previous act.
In 2018, MACC Act 2009 again underwent changes when section 17A (corporate liability)
and section 41A (admissibility of documentary evidence) were added. The aim of section 17A
is to foster the growth of a business environment that is free of corruption and to encourage allcommercial organizations to take reasonable and proportionate measures to ensure theirbusiness does not participate in corrupt activities for their advantage or benefit. Meanwhile,
Section 41A provides that any document obtained by the Malaysian Anti-Corruption
Commission shall be admissible in evidence in any proceedings under the principal Act,notwithstanding anything to the contrary in any other written law. This provision appears wide
enough to include illegally obtained documents and privileged documents.
The issue of witness intimidation has been brought up by many countries many years ago.
Witness-protection assistance is important to help protect the witness from any threats which
1

See MACC’s Guidelines on MTI.

- 100 - 100 -MALAYSIA
might be made by persons whom the witness might testify against. Threat or intimidation to
the witness can take place in many ways. Therefore, the protection assistance should be able toovercome each and every threat so as to effectively shield the witness from intimidation. The
introduction of the Witness Protection Act in Malaysia could be regarded as one approach
adopted by the government to overcome the above problem. The Witness Protection Act 2009
took effect on 15 April 2010. This ensured that witnesses could properly testify, without being
fearful of the accused or any party. Hence, the law aims to avoid cases in which prosecution
fails when no witness is daring enough to come forward because he or she feels threatened.
Furthermore, in 2010, the Whistleblower Act 2010 was enforced in Malaysia. This act is tocombat corruption and other wrongdoings by encouraging and facilitating disclosures ofimproper conduct in the public and private sectors, to protect persons making those disclosuresfrom detrimental action, to provide for the matters disclosed to be investigated and dealt withand to provide for other matters connected therewith. The effectiveness of this act, has boosted
the confidence level of the public and resulted in an increase of the amount of corruption
information provided to the MACC.
C. Special Law on Beneficial Ownership (BO)A beneficial owner is an individual or natural person who ultimately owns or controls anentity. In Malaysia, business entities play an important role in economic growth. However, thelegal structure of this business such as Sdn Bhd, or Limited Liability Partnership, is susceptible
to being misused for carrying out illicit activities such as money-laundering, terrorism
financing, corruption and others. The individuals that hide behind such businesses employ
devious means to avoid their identities from being detected.
The Companies Commission of Malaysia (SSM) is the Registrar issuing the Guidelines
Reporting Framework for Beneficial Ownership of Legal Persons, which came into effect on
1 March 2020 and established a transitional period of 1 March 2020 to 31 December 2020.
During the transitional period, entities need to obtain, keep and update the beneficial ownership
information at the entity level. After the transition period, they are required to obtain, keep andupdate the beneficial ownership information and inform the Registrar. However, as of now, theperiod has been extended to a later date to be determined by the Registrar to coincide with theenforcement date of the proposed Companies (Amendment) Bill and Limited Liability
Partnerships (Amendment) Bill.
D. Special Law on Anti-Jump Party
On 9 December 2020, Datuk Seri Akhbar Sattar, former President of Transparency
International Malaysia (TI Malaysia), stated that “Malaysia should enact an Anti-Party
Hopping law to overcome the ‘political pandemic’ in the country.” He said the rather regularcases of party-hopping among elected representatives at both Parliament and State Legislative
Assembly levels should no longer be allowed to persist as they undermined the stability of thegovernment. Apart from this, such party-hopping would also lead to corrupt practices. Whenthey hop from one party to another, it could also lead to the collapse of a ruling government,
and they do this because they are paid to do so.
Many Malaysians seem to agree with the above statement, and they believe that the act of
hopping from one party to another party was influenced or inspired by something valuable likemoney (huge sums), positions or projects. The act of hopping by politicians (dubbed as “frogs”)
is considered as betraying the trust given by the voters and as being selfish. Money is a major

101 --- 101

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

incentive for elected representatives to party hop. Though hard to prove, money is certainly a
big reason why Malaysia is experiencing political instability.
Malaysia needs a law to stop this unethical behaviour, and history was made in Malaysia
on 4 October 2022, after the King consented to the enforcement of the anti-hopping law, which
entered into force on 5 October 2022. The law, Constitution (Amendment) (No. 3) Act 2022
will be enforced against any Members of Parliament who switch parties.
E. Special Law on Political Funding
Political funding, or political financing, refers to how political parties or politicians raisemoney for election campaigns and other activities. A political funding law regulates how
parties and politicians receive and use money by ensuring disclosure of the source of funds anddonations as well as the amounts received. Proponents of the law argue that it is essential forholding political parties and politicians accountable, ensuring transparency over funds andpreventing misappropriation, bribery, fraud or abuse of power where funding is concerned.
Former President of Transparency International Malaysia Datuk Seri Akhbar Sattar also
pointed out that a law on political funding to check and balance the risks of corruption among
politicians that had long been debated about should be enacted without further delay. Such law
would be an effective means to curb abuse of power, corruption, breach of trust anduncontrolled political funding.
On 19 May 2022, the Malaysian Prime Minister announced that Special Cabinet Committee
on Anti-Corruption had agreed in principle to a political funding bill, adding that the proposal
would be discussed in the Cabinet before further engagement with political parties. The Law
Minister announced that the bill on political funding will be tabled in the House ofRepresentatives and is hoped to be passed before the 15th General Election.
F. The Judiciary
On August 2022, the Special Committee on Corruption (a committee formed under the
MACC Act 2009) proposed the creation of the Anti-Corruption Court as an enhancement to
the existing Special Session Court of Corruption. Currently, there are 18 Special Session Courtsin Malaysia. There is a need for an Anti-Corruption Court, or a court on corruption to beestablished specifically, from (the level of) the Sessions Court, the High Court, the Court ofAppeal and the Federal Court, with judges who are experts and who are not changed
periodically. This is to ensure the country has expertise, as well as the precision to run a court
specifically to handle corruption cases.
Currently, trials related to corruption are considered ordinary trials, without any priority
accorded to them. The establishment of the Anti-Corruption Court (High Court, Court ofAppeal and Federal Court) will speed up the trials and help to reduce the number of pendingcases. The appointment of experienced judges is expected to uphold justice, transparency andintegrity, and they should not be easily compromised. Ridiculous excuses and requests topostpone scheduled proceedings would be rejected. Justice delayed is justice denied! This
proposal was in the attention of the Government of Malaysia. I hope the Malaysian Government
will give due attention to this and not delay its implementation.
G. Government Administration
In 2018, an asset declaration portal administered by MACC was launched whereby thegovernment agreed that all Ministers and Deputy Ministers would be required to declare theirassets. Further, this policy was enhanced by the current Prime Minister of Malaysia on 19- 102 - 102 -MALAYSIA
September 2022, whereby it was announced that Members of Government Linked Companies(GLCs), Members of Linked Investment Companies (GLICs) and Judiciary Members are
required to declare their assets to MACC as well. However, these are still being researched by
MACC and to be presented later.
H. Governance, Integrity and Anti-Corruption Centre (GIACC)
GIACC formed on 1 June 2018. GIACC’s objectives are to plan, coordinate and monitor
the implementation of the policies about anti-corruption and good governance initiatives. The
coalition has created the institutions and pathways, and articulated the objectives and norms
that warrant documentation and assessment. GIACC reports directly into the Prime Minister’s
Office, which underscores its commitment to all efforts to strengthen governance in Malaysia
post GE14.
GIACC also launched the National Anti-Corruption Plan (NACP) on 29 January 2019 tocreate a corrupt-free nation through specific goals which are the Accountability and Credibilityof Judiciary, Prosecution and Law Enforcement Agencies, Efficiency and Responsiveness in
Public Service Delivery, and Integrity in Business. The NACP aims at establishing practicaltargets based on the initiatives to address national issues of corruption, integrity andgovernance to be undertaken during the next five years.
I. Curbing the Cartel
Elite corruption is the most difficult to combat because of the power at the disposal of theelite unless there is a major political upheaval. Based on the corruption trend in Malaysia overthe last five years (2013-2018), 2 the public sector has been the most vulnerable to corruption.
Compared to the vulnerability rate of 17.06 per cent in the private sector, the public sector
showed a more alarming rate of 63.30 per cent. It was discovered that such a high vulnerability
to corruption in the public sector stemmed from weak governance in its procurement practices,
legal enforcement agencies and administration. This fact was further substantiated by the
MACC’s statistics. The agency found that between 2015 and 2018, a total of 30 top civil
servants had been arrested for corruption charges. Their involvement does not only cause losses
in the public funds, but more crucially it questions the public sector’s integrity in ensuring thecountry’s security and prosperity.
Recently, however, a new style of crime has been developing widely, which is corruption
by cartel. A group of crime perpetrators are working together to get contracts from thegovernment by manipulating their quotation and price submitted during the tender process ofthe government contract. When the selected contractor are chosen, pricing are manipulated,
services provided are minimal and sometimes the jobs are not performed at all. MACC’s
prevention section managed to overcome this issue by advising government on short-term andlong-term remedies. Although it shall never eliminate these cartel issues, it helps government
offices to control and restrain further the losses to the value of government contracts.
Integrity pledges have also been introduced for public and private offices in Malaysia. Thisis a pledge taken by the leader of the office leading the whole staff, including officers and evenboard members, to give their oaths to refrain from taking bribes or becoming engaged incorruption within the office. To date, there are 1,828 agencies that have taken the oath.

2

Statistics from MACC’s records.

103 --- 103

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

III. CONCLUSION
It is apparent that corruption not only ruins the corruptors, but it can go beyond to ruin theentire country. Malaysia has come under the spotlight for being involved in mega scandals.
These scandals have seen billions of ringgit being syphoned off from the country. Syndicatedcases involved high-level corruption and lack of governance on funds amounting to millionsof ringgit affected multiple countries. The adverse effects of corruption on countries’ economic
development are widely acknowledged. Such large-scale corruption will also affect the overallpublic confidence, which will shake the confidence of investors, reduce the productivity of
public expenditures, distort the allocation of resources and, thus, lower the economic growthof countries. Therefore, to combat corruption in full force, government plays a critical role inensuring resources (e.g., human resource and financial) as well as access to these resources are
made available to all the relevant stakeholders to undertake the various initiatives. We at the
MACC do hope that the responsibility in achieving Malaysia as a corruption-free country is
not only on us solely but on other public and private agencies as well. In the end, the benefits
will be shared by all.

- 104 - 104 -MALAYSIANEW AND EMERGING FORMS OF CORRUPTION AND THE
EFFECTIVE COUNTERMEASURESLaw Chin How *The outbreak of the deadly Covid-19 virus, which has been sweeping across the world, hascaused the loss of life in millions in every corner of the world. Governments have come up
with a variety of countermeasures to contain the spread of Covid-19 for the livelihood andsurvival of the mankind. Corruption, which is tantamount to another form of pandemic andmuch more lethal than Covid-19 in causing the irreparable destruction to any civilization, as if
corruption is yet to eradicate society from stem to stern. A new form of corruption has emerged
during the pandemic as some unscrupulous people take advantage of the incentives or subsidies
offered by the government to groups that are underprivileged and who are struggling to makeends meet.
Against that backdrop, the Government of Malaysia announced the economy stimulus
package in March 2020 which includes financial aid, incentives, training or reskilling courses
etc. for the poorer or underprivileged to ease their burdens during the Covid-19 pandemic
movement control order (MCO), or the lockdown, that was implemented by the authorities tocurb the spread of Covid-19 across Malaysia.
For instance, the Ministry of International Trade and Industry (MITI) of Malaysia
introduced the “Service Provider for Employability and Re-Training Local Talent” programme(ERT) which amounted to RM 40 million in June 2020 being the course to enhance skill andvalue of the workforce in the automotive industry that has been badly hit by the pandemic.
Unfortunately, the goodwill of the ministry did not reach the labours of this dying industry, but
the scenario is deteriorating because of some irresponsible parties who manipulated theprogramme and eventually pocketed the financial allocation of the ministry that was initiallymeant to train people earning low incomes to be much more competitive, competent andproductive in this automotive industry. The chief executive officer (CEO) of the subsidiarycompany, i.e. A2Z which is wholly owned by the ministry (MITI), had manipulated this ERT
programme by awarding this programme to another company, i.e. AKSB, and in return the
CEO solicited RM 5 million from AKSB which obtained the ERT programme. The CEO
instructed AKSB to camouflage the corrupt gratification of RM 5 million as a purported
friendly loan given by AKSB by way of entering the loan agreement between the CEO andAKSB. The AKSB channelled the RM 5 million to the account of a law firm that acted as a
stakeholder for the CEO upon the instruction of the CEO after the purported loan agreement
entered by the parties. The said law firm was involved in money-laundering activities by wayof helping the CEO to disburse the corrupt money to various parties on the instruction of theCEO. Moreover, part of the sum of RM 5 million was used by the CEO as paid-in capital to set
up the law firm which eventually helped the CEO with money-laundering activities. Ironically,
the legal practitioners of said the law firm, who supposedly act as guardians to steadfastly
uphold justice and the rule of law but opted to dip themselves into the clandestine moneylaundering plot for the ill-gotten gain.

*

Deputy Public Prosecutor, Attorney General’s Chambers, Malaysia.

105 --- 105

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Another new form of corruption took place in Malaysia during the Covid-19 pandemic
when the organizer of an employee training course in the automotive industry misappropriatedthe budget allocated by the MITI (the ministry). The said organizer manipulated the moduleand the syllabus of the training course, that is being designed initially to intensify the skill andexperience of the workforce in this industry. AKSB, the company that organized the employee
training course, was supposed to hold the training at a designated site. Instead, the company
held the online course virtually to dispense with the physical appearance of the employees at
the training site. The change of the training module and syllabus by the organizer at the very
last minutes defeated the goal of having the employees become more productive, efficient andcompetitive regarding the workmanship in the automotive industry as the training course washeld virtually and theoretically without physical practice at the site, defying the golden ruleprinciple of “Practice Makes Perfect” which is applicable in every industry.
On 5 June 2020, the Government of Malaysia announced an economic restructuring planunder which hiring incentives would be paid to the employers who keep their employees in thecourse of business throughout the Covid-19 pandemic. The purpose of the plan was to relieve
the financial burden on the employer for survival and sustainability during this hard time. The
authority in charge was namely, PERKESO, was to reimburse the employer the hiring
incentives which amounted to RM 800 monthly per employee below the age of 40 years old
and RM 1000 monthly per employee above the age of 40 years old. The hiring incentives were
to be paid monthly to the employer in six months continuously after the incentive application
made by the employer was approved by PERKESO. Unfortunately, the hiring incentives weremisused by irresponsible parties who made false statements to substantiate their claims to
PERKESO. ESM, a company which engages in the field of construction, had submitted to
PERKESO incentive applications that contained false particulars such as the number anddetails of the employees are in doubt. The modus operandi of the ESM began with a job offerthat requires the personal particulars as application credentials via a social media platform suchas Facebook or WhatsApp and such personal particulars of the job applicant were stated in the
incentive application to PERKESO. Sometimes, ESM paid RM100 to each job applicant, while
RM800 or RM1000 was received by ESM from PERKESO as hiring incentives albeit no job
applicant was hired by ESM. Seventy-four (74) false incentive applications were submitted by
ESM and approved by PERKESO, which suffered the loss of RM 370,800.00.
Meanwhile, there is a scenario where an unscrupulous employer instructed his employees
to set up new companies and, accordingly, to submit incentive applications that contained false
particulars of the purported working personnel, whereas there is no employment in the light of
the incentive application. All the correspondence and documentation were prepared by theemployer for the approval process of PERKESO before the false incentive application was
submitted by his employee under the purported new company. The said employee will be paid
RM 2000 by the employer in the event that the incentive application of the new company
incorporated by his employee is approved by PERKESO.
On the other hand, there was a company which employed the worker with pay that was
below the minimum wage, which is RM 1000 as prescribed by the government, and thecompany submitted the incentive application to PERKESO in order to facilitate the hiring
incentive claim of RM 800 or RM 1000 per person during the pandemic.
The foregoing reflects that new forms of corruption took place in Malaysia during theCovid-19 pandemic. Such corrupt practices have rendered the entire effort of government invain as the poor keep getting poorer and richer keep getting richer; hence, the needs of society- 106 - 106 -MALAYSIA
are not addressed effectively and efficiently pertaining to the hardship and misery caused by
the Covid-19 pandemic. Indirectly, the spread of Covid-19 failed to be contained by thegovernment, as the poor and underprivileged continued to work during the pandemic to makeends meet although they knew they would be highly exposed to this deadly virus.
In a nutshell, corruption is a menace to the country. Therefore, effective countermeasures
must be taken to eradicate this disease which is much more fatal than Covid-19. I would liketo adopt and apply the principle of T.R.U.S.T, which is distilled from the ministry guidelines
concerning corporate liability, which might give us some ideas in thinking of corruption
countermeasures. The principle of T.R.U.S.T consists of the following:
Top-Level Commitment:(a) The top-level management of the commercial organization (“Top-Level Management”)
must ensure that the highest level of integrity and ethics is practised in the commercialorganization. There should be full compliance with the applicable laws and regulatory
requirements on anti-corruption and key corruption risks of the organization must be
effectively managed.
(b) The Top-Level Management must provide assurance to its internal and external
stakeholders that the organization is operating in compliance with its policies andapplicable regulatory requirements.
(c) The Top-Level Management must establish, maintain and periodically review an anticorruption compliance programme and communication of the organization’s anticorruption policies and commitment internally and externally.
(d) The Top-Level Management must encourage the use of any reporting (whistle-blowing)
channel. The results of any audit, reviews of risk assessment, control measures andperformance are reported to all top-level management including the full Board of
Directors and acted upon.
For instance, in the case study of ERT that I mentioned earlier, there is an urgency to havean effective, efficient and expedient reporting system implemented promptly within or outside
the commercial organization to encourage its subordinate to report any alleged wrongdoing of
anyone including the CEO or director of A2Z to authorities such as the Malaysian AntiCorruption Commission (MACC) or the top management of the commercial organization
before the same report is lodged to the MACC without putting the whistle-blower at the risk ofidentity exposure. Statutory protection is conferred to the whistle-blower under the Whistle
Blower Protection Act 2010, an act to combat corruption and other wrongdoings byencouraging and facilitating disclosures of improper conduct in the public and private sector,
to protect persons making those disclosures from detrimental action, to provide for the mattersdisclosed to be investigated and dealt with and to provide for other matters connected therewith.
Meanwhile, section 17A of the Malaysian Anti-Corruption Commission Act (MACC) 2009
entered into force in June 2019 concerning corporate liability. In the case of ERT, the AKSB
should be indicted under this provision as the AKSB bribed the CEO of A2Z, and the CEO of
A2Z should be charged in court for accepting a bribe. We must eradicate corruption from stem
to stern adamantly and relentlessly. Section 17A of the MACC Act 2009 is reproduced asfollows:

107 --- 107

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE(1) A commercial organization commits an offence if a person associated with thecommercial organization corruptly gives, agrees to give, promises or offers to any
person any gratification whether for the benefit of that person or another person withintent(a) to obtain or retain business for the commercial organization; or(b) to obtain or retain an advantage in the conduct of business for the commercialorganization.
(2) Any commercial organization who commits an offence under this section shall on
conviction be liable to a fine of not less than ten times the sum or value of thegratification which is the subject matter of the offence, where such gratification iscapable of being valued or is of pecuniary nature, or one million ringgit, whichever isthe higher, or to imprisonment for a term not exceeding twenty years or to both.
(3) Where an offence is committed by a commercial organization, a person(a) who is its director, controller, officer or partner; or(b) who is concerned in the management of its affairs,
at the time of the commission of the offence, is deemed to have committed that offence
unless that person proves that the offence was committed without his consent or
connivance and that he exercised due diligence to prevent the commission of the offence
as he ought to have exercised, having regard to the nature of his function in thatcapacity and to the circumstances.
(4) If a commercial organization is charged for the offence referred to in subsection(1), it is a defence for the commercial organization to prove that the commercialorganization had in place adequate procedures to prevent persons associated with thecommercial organization from undertaking such conduct.
(5) The Minister shall issue guidelines relating to the procedures mentioned insubsection (4).
(6) For the purposes of this section, a person is associated with a commercialorganization if he is a director, partner or an employee of the commercial organizationor he is a person who performs services for or on behalf of the commercial organization.
(7) The question whether or not a person performs services for or on behalf of thecommercial organization shall be determined by reference to all the relevant
circumstances and not merely by reference to the nature of the relationship between
him and the commercial organization.
(8) For the purposes of this section, "commercial organization" means(a) a company incorporated under the Companies Act 2016 [Act 777] and carries ona business in Malaysia or elsewhere;(b) a company wherever incorporated and carries on a business or part of a business
in Malaysia;(c) a partnership(i) under the Partnership Act 1961 [Act 135] and carries on a business in Malaysia or
elsewhere; or- 108 - 108 -MALAYSIA(ii) which is a limited liability partnership registered under the Limited Liability
Partnerships Act 2012 [Act 743] and carries on a business in Malaysia or elsewhere;or(d) a partnership wherever formed and carries on a business or part of a business in
Malaysia.
Furthermore, top level commitment must be shown blatantly, fearlessly and unreservedly
by the government and the private sector as we do not tolerate any form of corruption in
Malaysia. A good illustration, on 23 August 2022, was when the apex court in the case of Dato
Sri Mohd Najib Bin Hj Abdul Razak v Public Prosecutor (Criminal Appeal No: 05(L)-28912/2021) upheld the conviction and sentence meted by the High Court against the former
premier of Malaysia in respect of 1 charge of abuse power, 3 charges of criminal breach oftrust and 3 charges of money-laundering in relation to RM 42 million entered into the accountof the former premier in the case of SRC International. The former premier has to serve 12
years’ incarceration and pay a fine of RM 210 million.
Risk Assessment:(a) Comprehensive risk assessments are advised to be conducted every three (3) years, withintermittent assessments to be conducted whenever necessary.
(b) Risk assessment should be used to establish appropriate processes, systems and controls
approved by the Top-Level Management to mitigate specific corruption risks and/or
potential corruption risks that the commercial organization may be exposed to.
The government and commercial organization should be taking the risk assessment on
every high-risk position held by any personnel from time to time to prevent any one-man
decision in respect of any matter. In the case of ERT, the impugned CEO held the managerial
position at A2Z with exclusive administrative power since its incorporation without any checkand balance from the board of directors of A2Z. A rotation of high-risk position is reasonable
and in line with the spirit of good governance regardless of the seniority and contribution of
the personnel in the organization.
Undertake Control Measures:(a) Appropriate controls and contingency measures, which are reasonable andproportionate to the nature and size of the commercial organization, are advised to be
implemented and enforced to address any corruption risks arising from weaknesses in
the commercial organization’s governance framework.
(b) The said controls and measures should include due diligence and reporting channels.
(c) Policies and procedures should be endorsed by Top-Level Management, which should
be up-to-date and easily available.
Due diligence must be taken in every decision-making process to avoid any unscrupulous
party from taking advantage of the weaknesses in the system. In the case of misappropriationof the hiring incentives given by the PERKESO to the applicant, i.e. the employer, the wrongful
loss suffered by PERKESO could be avoided as if due diligence performed by the PERKESO
in verifying the particulars of the employee stated in each application such as interviewing the

109 --- 109

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

said employee or cross checking with the Inland Revenue Board or other agency. Tragically,no due diligence was done by PERKESO, which merely acted as a rubber stamp on eachapplication.
Systematic Review, Monitoring and Enforcement:(a) The Top-Level Management is advised to ensure regular reviews are conducted toassess the performance, efficiency and effectiveness of the anti-corruption programmeof the commercial organization and to ensure the anti-corruption programme isenforced effectively.
(b) Reviews may take the form of an internal audit or an external audit.
(c) Reviews should form the basis of any efforts to improve the existing anti-corruption
controls in place in the organization.
Collaboration among the agencies such as the MACC, Customs Department, Inland
Revenue Board, Police Force, Immigration Department etc. is needed badly and swiftly, which
will prompt positive and fruitful outcomes as each agency plays the role watchdog to one
another in every decision-making process. For example, there is no room for false claims totake place if the Inland Revenue Board or Employee Provident Fund is involved in theinspection of particulars of employees when the incentive application is submitted to
PERKESO, even assuming that PERKESO fails to perform due diligence when discharging its
duty.
Training and Communication:(a) Commercial organizations should develop and disseminate internal and external
training and communications relevant to their anti-corruption management system,in proportion to their operations.
(b) The commercial organization’s anti-corruption policy should be made publicly
available and appropriately communicated to all personnel and business associates.
(c) When planning strategies for communicating the organization’s position on anticorruption, the organization should take into account what key points should becommunicated, to whom they should be communicated, how they will be
communicated, and the timeframe for conducting the communication plan.
(d) Employees and business associates should be provided with adequate training toensure their thorough understanding of the organization’s anti-corruption position,
especially in relation to their role within or outside the commercial organization.”
All public servants and private-sector employees should take the training course in relation
to anti-corruption, which is paramount to society if this detrimental issue is not sufficiently
addressed through deterrence. We must not overlook the cause behind what motivated thepeople who willingly gave their personal particulars to the purported employer who had ill
intention to submit the false incentive application to PERKESO. Such abettors were willing towork in cahoots with others to defraud PERKESO in exchange for RM 100 for personal details
given by him. Based on the statistics given by the MACC, the 61 companies involved in the- 110 - 110 -MALAYSIA
fraud incentives application to PERKESO and 51 wrongdoers were arrested in relation to thismatter. The total loss suffered by PERKESO is RM 38,939,508.00 nationwide. Lack of publicawareness and education of the society on the corruption issue is the main reason why everyone
takes corruption lightly. Some might even think that corruption creates a win-win situation.
The Federal Court in the case of Public Prosecutor v Dato' Waad Bin Mansor [2005] 2
MLJ 101 has articulated the severity and seriousness of corruption which warranted adeterrence sentence to be meted out against the accused who was convicted of a corruption
offence:Any offence, be it murder, rape, robbery or corruption is viewed as an offence against
society and the community at large. By stating that the crime of corruption stands in aleague of its own and cannot be equated with the heinous crimes of murder, rape,robbery, criminal breach of trust etc, the CA has certainly underplayed the effectof corruption in our society. The offence of corruption, if unabated or undeterred, ismore far reaching in its consequences than the crimes of robbery, criminal breach oftrust or rape. Thus, we feel that the sentences imposed for offences of corruption should
be deterrent in nature so as to reflect the gravity of the offences.
Therefore, combating corruption is never done regardless of the form in which corruption
emerges. We all have responsibility in maintaining the integrity of society as justice is neededindefinitely and everywhere for any civilization of mankind.

-- 111111 --SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE- 112 - 112 -PHILIPPINESCORRUPTION IN THE PHILIPPINES IN THE MIDST OF THE
PANDEMIC
Olivia I. Laroza-Torrevillas *Corruption is a form of dishonesty or a criminal offence which is undertaken by a person
or an organization which is entrusted in a position of authority, in order to acquire illicit benefits
or abuse of power for one's personal gain. While corruption appears to be a legal andinstitutional problem, the same should be treated as a social, political, and cultural phenomenon
driven by human behaviour and circumstances.
Philippine Laws Penalizing Corruption:
1. Acts of Graft and Corruption punishable under the Revised Penal Code;
2. Republic Act No. 3019, or the Anti-Graft and Corruption Practices Act;
3. Republic Act No. 7080, or An Act Defining and Penalizing the Crime of Plunder;
4. Republic Act No. 6713, or the Code of Conduct and Ethical Standards for Public
Officials and Employees;
5. Republic Act No. 9184, or the Government Procurement Reform Act;
6. Republic Act No. 9485, as amended by RA 11032, or the Ease of Doing Business andEfficient Government Service Delivery Act of 2018;
7. Republic Act No. 6770, or the Ombudsman Act of 1989;
8. Presidential Decree No. 46 series of 1972, Punishing the Receiving of Gifts by Public
Officials and Employees; and9. Anti-Red Tape Act of 2007.
I. THE DUTERTE ADMINISTRATION’S FIGHT AGAINST CORRUPTION
It was the commitment of then President Rodrigo Duterte to rid the government of corrupt
officials and employees. He issued Executive Order No. 43 creating the Presidential AntiCorruption Commission, the anti-corruption government agency during the Duterteadministration. Also, in a Memorandum dated 27 October 2020, he mandated the Departmentof Justice to investigate allegations of corruption in the entire government. Thus, theDepartment of Justice, in a Department Order, created the mega Task Force Against Corruption
which consists of other bodies and agencies of the government. The Task Force Against
Corruption was authorized to investigate, prosecute and file appropriate charges in allegationsof corruption, taking into consideration the gravity of the acts and the impact on the deliveryof government services. The creation of TFAC resulted in the filing of corruption complaints
directly with the Office of the Secretary of Justice who acted as the Chairperson of the Task
Force Against Corruption.
The Covid-19 outbreak increased corruption risks, exposing the health sector andundermining the health care system of the Philippines. The pandemic led to the granting of
emergency powers to then President Rodrigo R. Duterte who enacted measures, rules and laws
to address the Covid-19 crisis.
*

Deputy State Prosecutor, National Prosecution Service, Department of Justice, Philippines.

-- 113113 --SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

II. REPUBLIC ACT NO. 11469 OR THE BAYANIHAN TO HEAL AS ONE ACT
Republic Act No. 11469, also known as the Bayanihan Act, is a law in the Philippines thatwas enacted in March 2020 granting the President additional authority to combat the Covid-19
pandemic in the Philippines. The law provides the President of the Philippines the power toimplement temporary emergency measures to respond to the crisis brought about by Covid-19,
such as:•adopting and implementing measures, to prevent or suppress further transmission
and spread of Covid-19;•

authorizing the National Health Insurance Program of the Philippine Health
Insurance Corporation to cover the cost of medical expenses due to Covid-19;•

providing an emergency subsidy amounting to five thousand pesos (₱5,000.00) to
eight thousand pesos (₱8,000.00) to low-income households based on prevailingregional minimum wage rates;•

partnering with the Philippine Red Cross in giving aid to the people;•

implementing an expanded and enhanced Pantawid Pamilya Pilipino Program andproviding an assistance programme through the Department of Social Welfare andDevelopment and the Department of Labor and Employment;•

enforcing measures against hoarding, profiteering, injurious speculations,manipulation of prices, product deceptions, cartels, monopolies or othercombinations to restraint trade or affect the supply, distribution and movement offood, clothing, hygiene and sanitation products, medicine and medical supplies,
fuel, fertilizers, chemicals, building materials, implements, machinery equipment
and spare parts for agriculture, industry and other essential services;•

procuring of goods and services for social amelioration measures, in the most
expeditious manner through exemptions from Republic Act No. 9184 or the"Government Procurement Reform Act" and other relevant laws; and•Others.
III. RECENT CORRUPTION SCANDALS

The emergency powers given to the President under the Bayanihan Act did not deter private
and public individuals from committing corruption activities during the pandemic. A numberof corrupt acts emerged during the Covid-19 pandemic which are magnified in the following
scandals:
A. Pharmally Scandal
The emergency procurement system was hit by corruption when in 2020-2021, thegovernment of the Philippines entered into a string of multi-billion-peso contracts with acompany called Pharmally Pharmaceuticals, despite the fact that Pharmally is a small firm thatwas incorporated only in 2019 and lacked the funds, experience and credibility to handle major
government contracts. It was later revealed that Pharmally has direct ties with Chinese- 114 - 114 -PHILIPPINES
businessman Michael Yang, a close friend and former advisor of President Rodrigo Duterte.
While direct corruption in this case has not yet been proven, the circumstances are extremely
suspicious, and this is just one high-profile example of questionable Covid-related procurement
deals.
B. Wasted Pandemic Response Fund
The Commission on Audit reported trillions of pesos of wasted pandemic response funds.
In August, the Commission on Audit (COA) flagged deficiencies in the use by the DOH of
P63.72 billion in funds which were supposed to be used to help fight the Covid-19 pandemic.
The COA found billions of pesos in the coffers of the health department, as well as suspectedirregularities in transactions made using the Covid-19 funds. COA findings also showed that:(1) P6 million was spent on expired drugs and medicines; (2) P69 million was spent on
overstocked, slow-moving or idle drugs and medicines; and (3) P20 million was spent on nearly
expired drugs and medicines. Senators also questioned the alleged P550 million worth of test
kits that had expired in 2020 without being used, as well as the acceptance by PD-DBM of faceshields deemed unfit for use by health care workers at the frontline.
C. Corruption in PhilHealthThe problem of corruption in PhilHealth more than anything victimizes the vulnerable, thesick and poor Filipinos who are being cheated on medical assistance that could have been used
to treat their illnesses and possibly save their lives. The current composition of PhilHealthunderrepresents patients, health providers, concerned civil society groups and the public(Filipino citizens) in general, and overrepresents the government. There’s only one slot on the
PhilHealth board dedicated to consumer/patient representation. This is a major deficiency thatneeds to be addressed if accountability and transparency are to be ensured in PhilHealth’s
operations and decision-making processes.
D. Corruption in the Implementation of the Social Amelioration Program (SAP)
According to the Presidential Anti-Corruption Commission, a total of 7,601 complaints ofcorruption in the distribution of cash aid in time of the pandemic have been reported andinvestigated by its office. It shows that the billions of pesos could have been misused. One of
the Philippine senators claimed irregularities when DSWD tapped a private corporation to issue
the cash assistance through e-wallets. Thus, the recipients who do not know how to download
the app for e-wallets did not receive the allocated financial assistance.

-- 115115 --SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE- 116 - 116 -PHILIPPINESCORRUPTION – THE SECONDARY “PANDEMIC” IN THE TIME OF
COVID, AND THE CHALLENGE OF FACING DUAL PANDEMICS
Luanne Ivy M. Cabatingan *I. INTRODUCTION
In the latest 1 Corruption Perception Index (CPI) of Transparency International, 2 thePhilippines ranks 117th worldwide, with a score of 33, 3 dropping two places from its 2020
ranking of 115th and scoring 1 point less. In fact, the Philippines ranks second among the“Most Significant Decliners” in the Asia-Pacific region, having declined 5 ranking spots since2014. 4 With the average score for the region being 45, the Philippines’ declining score, alreadyfar below the regional average, shows much to be done in the country’s battle against corruption.
Given the fact that the country’s rank (and score) in the CPI for both 2020 5 and 2021 have been
its lowest since 2012, one must wonder if the situation brought about by the Covid-19 6
pandemic 7 contributed to the worsening corruption in the country, and to what extent it hasdone so. From various news reports during the pandemic, the effect appears to be quite
significant, to the point that corruption has been likened more than once to the pandemic itself,and even said to be “deadlier” than Covid. 8 How, then, does a country embattled by a pandemic,
the likes and magnitude of which it has never faced before, deal with another, all-too-familiar“pandemic” at the same time?

*
Graft Investigation and Prosecution Officer III, under the Office of the Ombudsman – Visayas, Office of the
Ombudsman, Philippines.
1
For 2021.
2
Transparency International is a global movement working in over 100 countries to end the injustice of corruption.
<https://www.transparency.org/en/about>
3
Corruption Perception Index for 2021, <https://www.transparency.org/en/cpi/2021>
4“CPI 2021 FOR ASIA PACIFIC: GRAND CORRUPTION AND LACK OF FREEDOMS HOLDING BACKPROGRESS,” 25 January 2022, <https://www.transparency.org/en/news/cpi-2021-for-asia-pacific-grandcorruption-holding-back-progress>
5
Found in “PH further drops two places in 2020 Corruption Perception Index”, by Camille Elemia, Rappler, 28
January 2021, available at https://www.rappler.com/nation/philippines-rankings-corruption-perception-index2020/
6Previously known as 2019 Novel Coronavirus; otherwise known as Coronavirus Disease / disease caused by the
Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2),<https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-thecoronavirus-disease-(covid-2019)-and-the-virus-that-causes-it>
7
Defined as “the worldwide spread of a new disease.” Found in the article “Novel coronavirus: What makes anoutbreak a pandemic?” by Jodesz Gavilan, Rappler, 12 March 2020, available athttps://www.rappler.com/newsbreak/iq/254242-things-to-know-pandemic-definition-novel-coronavirus/
8“Corruption is deadlier than COVID-19,” Rufa Cagoco-Guiam, Philippine Daily Inquirer, 15 March 2021,<https://opinion.inquirer.net/138496/corruption-is-deadlier-than-covid-19>“Scale of corruption has become ‘pandemic-like’ during COVID-19 crisis, say experts,” Ina Reformina, ABSCBN News, posted online on 10 December 2020, <https://news.abs-cbn.com/news/12/10/20/scale-of-corruptionhas-become-pandemic-like-during-covid-19-crisis-say-experts>“Pandemic corruption,” Gerardo P. Sicat, The Philippine Star, 2 September 2020,<https://www.philstar.com/business/2020/09/02/2039392/pandemic-corruption>-- 117117 --SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

II. THE PHILIPPINES AND THE COVID-19 PANDEMIC
Then President of the Republic of the Philippines, Rodrigo Roa Duterte, declared a Stateof Public Health Emergency throughout the Philippines due to Covid-19 on 8 March 2020, by
virtue of Proclamation No. 922, Series of 2020. The Senate and House of Representatives,
prompted by said Proclamation, accordingly passed 9 Republic Act No. 11469 10 (otherwise
known as “Bayanihan to Heal As One Act”, or Bayanihan Act I, for brevity). While theaforesaid piece of legislation encompassed various areas which the Philippine legislative bodyfound essential in the country’s efforts to battle the pandemic, the highlight of Bayanihan Act
I was the authority given to the President to realign unused or unallocated funds from the 2020
national budget and utilize them to augment the budget for priority areas specified under saidlaw. A second “Bayanihan Act”, Republic Act No. 11494 11 (otherwise known as “Bayanihan
to Recover as One Act”, or Bayanihan Act II, for brevity), was subsequently passed, 12 whichin essence was mostly an “economic stimulus” intended to place the country on the track to(economic) recovery.
In line with the aforementioned laws, the different government agencies also came up withnumerous issuances to carry out the various directives and/or objectives of said laws. The
Department of Health (DOH), for instance, being the principal health agency in the country
and, therefore, at the forefront of the battle with the Covid pandemic, had a plethora of policy
issuances pertaining to Covid-19. 13 The Philippine Health Insurance Corporation (PhilHealth,for brevity), the primary health insurance provider in the country, being responsible for theadministration of the “National Health Insurance Program,” has a dedicated “Covid” page,
where one could find its various issuances and other information (such as health care packages/ benefits) pertaining to Covid-19. 14
At the heart of both Bayanihan Acts is the provision of assistance, subsidies and other formsof socioeconomic relief to low-income households and other individuals or sectors, such as
displaced workers / employees. The key agency tasked with the distribution of such assistance/ subsidies / relief is the Department of Social Welfare and Development (DSWD). There areseveral programmes for the distribution of financial and other forms of assistance and services
to affected individuals and communities, involving DSWD in coordination and collaboration
with other national government agencies such as the Department of Labor and Employment(DOLE), Department of Trade and Industry (DTI), Department of Agriculture (DA),
Department of Finance (DOF), Department of Budget and Management (DBM), andDepartment of Interior and Local Government (DILG), which programmes are known by thecollective term “SAP”, short for “Social Amelioration Program.” 15 More precisely, it is the
Passed by both Senate and House of Representatives on 23 March 2020; signed into law by President Rodrigo
R. Duterte on 24 March 2020.
10
An Act Declaring the Existence of a National Emergency Arising from the Coronavirus Disease 2019 (COVID19) Situation and a National Policy in connection therewith, and Authorizing the President of the Republic of thePhilippines for a Limited Period and Subject to Restrictions, To Exercise Powers Necessary and Proper to Carry
Out the Declared National Policy and for Other Purposes
11
An Act Providing for COVID-19 Response and Recovery Interventions and Providing Mechanisms to
Accelerate the Recovery and Bolster the Resiliency of the Philippine Economy, Providing Funds Therefor, andfor Other Purposes
12
Passed by the Senate on 20 August 2020 and the House of Representatives on 24 August 2020; signed into law
by President Rodrigo R. Duterte on 11 September 2020.
13
DOH Covid-19 policies can be found here: https://doh.gov.ph/COVID-19-policies
14
PhilHealth’s Covid-dedicated page can be found here: https://www.philhealth.gov.ph/covid/
15
DSWD’s page for Frequently Asked Questions (FAQs) on SAP, in Filipino, can be found here:
https://www.dswd.gov.ph/frequently-asked-questions-on-sap/
9- 118 - 118 -PHILIPPINES“Emergency Subsidy Program” (ESP) of the SAP which encompasses the provision of cash or
non-cash subsidy to 18 Million (low-income) household beneficiaries, in the total amount of atleast PhP5,000.00, but not exceeding PhP8,000.00, per month for two months, intended forbasic food, medicine and toiletries of the target beneficiaries. Special Guidelines were issued
in relation thereto, specifically Joint Memorandum Circular (JMC) No. 1, Series of 2020,
executed by and between DSWD, DOLE, DTI, DA, DOF, DBM and DILG. These involved
agencies also had various issuances in relation to the implementation of the aforesaid JMC andthe particular social amelioration programmes administered by their respective agencies
pursuant thereto.
In the country’s recovery efforts, these various agencies also had programmes / initiatives
and/or other forms of assistance or services. The DSWD, for instance, had the Educational
Cash Assistance, which aimed to extend financial assistance to qualified indigent students. 16
DOLE, on the other hand, had “TUPAD” 17 (which stands for Tulong Panghanapbuhay sa Ating
Disadvantaged / Displaced Workers), while DTI also extended various services to assist 18 in
the recovery efforts and also in the programmes being implemented by the other national
government agencies in relation thereto.
Recognizing the urgent need to procure vital medical equipment and supplies for thecountry’s Covid response efforts, the Government Procurement Policy Board (GPPB) swiftly
issued “Guidelines for Emergency Procurement under Republic Act No. 11469 or the
Bayanihan to Heal as One Act”, 19 followed by various issuances to cover myriad aspects of thegovernment procurement process during the pandemic.
With the numerous legislative and executive (implementing) measures in place, the country
seemed poised to tackle the Covid-19 pandemic head-on. On paper, at least, the Philippines
appeared to be quite capable and ready to face the emergency situation suddenly brought about
by Covid. How seemingly swift and decisive action brought about a second “pandemic” canbest be seen, however, from the manner of implementation by various agencies of thesemeasures.
III. EMERGING CORRUPTION TRENDS AND THREATS
Being at the forefront of the fight against Covid, the DOH was the first, if not, mostprominent to face an onslaught of corruption allegations. Not long after the passage ofBayanihan Act I in March 2020, Senators were already calling for a probe / investigation into
allegations of overpricing in the purchase of personal protective equipment (PPE) and swab
kits for coronavirus disease 2019 (Covid-19) testing. 20 This call for investigation was repeatedafter the Commission on Audit (COA) released its Consolidated Annual Audit Report on the
DOH for Calendar Year 2020. 21
16“DSWD Cash Assistance for Students (All Levels) Nationwide,” <https://governmentph.com/dswd-cashassistance/>
17
DOLE’s page, “About TUPAD,” can be found here: https://www.dole.gov.ph/tupad-contents/
18
DTI’s page, “DTI ASSISTANCE AND OTHER GOVERNMENT INITIATIVES FOR MSMES,” can be foundhere: https://www.dti.gov.ph/covid19/assistance/
19
GPPB Circular 01-2020
20“Probe alleged overpriced PPE gears, test kits: solons,” Jose Cielito Raganit, Philippine News Agency (PNA),
18 May 2020, <https://www.pna.gov.ph/articles/1103229>
21
Senate Press Release: “Drilon seeks Senate investigation into DOH mismanagement of P67.32B COVID-19
funds,” 12 August 2021, <https://legacy.senate.gov.ph/press_release/2021/0812_drilon1.asp>-- 119119 --SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

In its report, the COA found “various deficiencies involving some PhP67,323,186,570.57
worth of public funds and intended for national efforts of combatting the unprecedented scaleof the COVID-19 crisis”. The COA stated that “(T)hese deficiencies contributed to thechallenges encountered and missed opportunities by the DOH during the time of state ofcalamity / national emergency, and casted doubts on the regularity of related transactions.” 22
The findings consisted of the following: (i) Unobligated / unutilized funds, which wereintended to improve the capacity of DOH to address the ongoing health crisis, and to reinforce
the country's health care system; (ii) Failure to meet the accomplishment targets for the rolloutof Foreign-Assisted Projects by the end of 2020; (iii) Various deficiencies in the procurement
process and lack of documentation in a number of contracts; (iv) Unutilized and not
immediately utilized medical equipment and supplies procured for Covid-19 response; (v)Issues in the grant of cash advances and handling of petty cash funds by various operating
units; (vi) Fund transfers to procurement partners or implementing agencies without
memoranda of agreement or other supporting documents, as well as delays in delivery of muchneeded medical equipment / supplies / devices; (vii) Failure to pay around PhP4.88 million
worth of claims to financial aid beneficiaries by the end of 2020 due to delayed downloadingof cash allocations; (viii) Incomplete documents for the payment of Covid-19 allowances tohealth workers, payment to unqualified recipients, overpayment, and payment of suchallowances during periods not covered by the Enhanced Community Quarantine (ECQ); (ix)Distribution of meal allowances to operating unit personnel through cash allowances, gift
certificates and grocery items, without sufficient legal basis and which were charged to funds
intended for life insurance, accommodations, transportation and meals of public health care
workers; (x) Payment of death and sickness compensation despite deficient or non-existent
supporting documents; (xi) Lack of proper accounting for in-kind donations; and (xii)
Deficiencies in the management of funds for the Interim Reimbursement Mechanism (IRM) bypublic health care institutions.
The DOH was swift to deny the allegations of corruption, claiming it was ready to face any
probe regarding them. 23 Banking on the clarification made by COA 24 that the Annual Audit
Report did not mention any findings of funds lost to corruption, and that the audit process forthe deficiencies pointed out had not yet been completed as there were recommendations forcompliance, DOH asserted that it had always been transparent and that the accusations ofcorruption were misplaced, as the agency was yet in the process of submitting the needed
evidence or documents in relation to the COA findings. 25 The Annual Audit Report for the
Calendar Year 2021 seems to “support” its claims, as the majority of the COA
recommendations on the Covid-19 Audit Findings for 2020 were “implemented”, while only a
few were either partially implemented or not implemented. The 2021 Report, however,brought with it new audit findings still related to the Covid-19 response. What remains to be
seen is whether these new findings were attended by some form of corruption or caused merely
by lapses of internal control in the DOH that may be corrected by implementing the audit
recommendations.
Part E, No. 1 of the 2020 Executive Summary (in relation to the COA Consolidated Annual Audit Report on
the DOH for the Calendar Year 2020).
23“‘Disheartened’ DOH ready to face any probe on corruption allegations,” Analou de Vera, Manila Bulletin, 29
June
2021,
<https://mb.com.ph/2021/06/29/disheartened-doh-ready-to-face-any-probe-on-corruptionallegations/>
24
COA News Release: “COA clarification on audit findings of DOH COVID-19 funds,” 16 August 2021,<https://coa.gov.ph/coa-clarification-on-audit-findings-of-doh-covid-19-funds/>
25“DOH transparent, no corruption in P67-B flagged by COA: exec,” Joyce Ann L. Rocamora, PNA, 14 August
2021, <https://www.pna.gov.ph/articles/1150455>
22- 120 - 120 -PHILIPPINES
While the probe of DOH pushed through, with various government agencies conducting
their own investigations, another government agency was brought into the “limelight” ofcorruption accusations as a result thereof – the Procurement Service of the Department of
Budget and Management (PS-DBM). Central to this was the Senate Blue Ribbon Committee
probe on the procurement of Covid-19 supplies from “Pharmally”, 26 a company created mere
months before the declaration of a state of national emergency (due to the Covid-19 pandemic)
that lacked funds, 27 track record and credibility to handle the multi-billion-Peso deal(s) it wasawarded by the government through the PS-DBM. While the Committee’s Report died a swift
death due to failure to garner enough signatures from the Senators in order for the Report to be
tackled before the Plenary, 28 the findings 29 of the Committee were still widely publicized byvarious news outlets. Besides findings of overprice in the medical supplies (such as PPEs, 30
face masks, face shields) purchased from Pharmally, some of the supplies provided were also
found to be substandard or defective, prompting even the DOH itself to launch its own
investigation on the matter. 31
The matter of procurement of various medical supplies by the PS-DBM from Pharmallynot even having been settled completely, the corruption spotlight falls upon PS-DBM once
again, this time together with the Department of Education (DepEd), on the matter of its
procurement of laptop computers intended for the use of teachers, who had to conduct online
classes due to the pandemic. The approved budget for the contract was supposed to be at
PhP35,046.50 per unit, for a total purchase of 68,500 units. However, the laptops purchased
were priced at PhP58,300.00 each, resulting in fewer units purchased. Worse, the laptops
purchased were also assailed for not just being “pricey” but also “outdated”, being equippedwith Intel Celeron processors. As succinctly stated by COA in its 2021 Management Letter, 32(A) public school teacher needs an efficient and effective processor that can allow
multiple applications to run at the same time. The TSs required by the DepEd did
not intend to procure a laptop computer equipped with an Intel Core Celeron, themost low-end type of Intel processor in the market. As a result, public school
teachers were deprived of the benefits of the use of a laptop computer equippedwith better processor that would help them to perform their tasks.

Pharmally Pharmaceutical Corporation
Pharmally reportedly only had PhP625,000.00 of paid-up capital. Found in “What is Pharmally
Pharmaceuticals? Who controls it?”, ABS-CBN News, Posted and updated on 31 August 2021, <https://news.abscbn.com/business/08/31/21/what-is-pharmally-pharmaceuticals-who-controls-it>
28“Gordon: Filipinos lose as Pharmally report failed to get Senate’s nod,” Hannah Torregoza, Manila Bulletin, 3June 2022, <https://mb.com.ph/2022/06/03/gordon-filipinos-lose-as-pharmally-report-failed-to-get-senatesnod/>
29“LIST: Alleged anomalies uncovered at Senate probe on Pharmally,” Benise Balaoing, ABS-CBN News,
Posted on 27 September 2021, <https://news.abs-cbn.com/spotlight/09/27/21/read-what-has-been-uncovered-sofar-at-senate-probe-on-pharmally>
30
Personal Protective Equipment
31“DOH probes Pharmally sale of substandard face shields,” Sheila Crisostomo, The Philippine Star, 28
September
2021,<https://www.philstar.com/headlines/2021/09/28/2130212/doh-probes-pharmally-salesubstandard-face-shields>
32
Management Letter was issued, in lieu of an Annual Audit Report, as the COA Audit Team was unable toexpress an opinion on the financial statements of the PS-DBM, which had not submitted its year-end (2021)
financial statements by 23 June 2022. Found in the 29 June 2022 Transmittal Letter of the Management Letter ofthe Audit on the Procurement Service for the period 1 January to 31 December 2021, from Daria B. Sison, Director
IV of the National Government Audit Sector, Cluster 2 – Oversight and Public Debt Management Agencies,
addressed to Atty. Jasonmer L. Uayan, Officer-in-Charge of the Procurement Service.
26
27

121 --- 121

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

In response to the COA’s findings 33 on the questionable laptop procurement, the DepEd
essentially “passed the bucket” to PS-DBM for an explanation on the matter, 34 while the latteragency just caused the issue to be more muddled, with the confusing and inconsistenttestimonies of its officials before the Senate. 35
Another government agency vital to the Covid-19 response that has been equally, if not
more, hounded by corruption allegations is the DOH attached agency, PhilHealth. Not longafter the start of the state of national emergency, there were already allegations of overpricing
in its Covid-19 testing package, which cost around double the package cost that other facilities
could offer. 36 The dust on this matter was far from even settled 37 when new corruption
allegations were levelled against the agency, by no less than one of its officials who had
resigned over such corruption issues, among other reasons. 38 Questions were raised on thematter of the Interim Reimbursement Mechanism (IRM), 39 prompting various calls forinvestigation on the alleged corruption in PhilHealth. Both the Senate and the House ofRepresentatives held several investigative hearings on the matter, wherein several issues,beyond the IRM matter, were uncovered, such as: (i) bloating of PhilHealth’s proposed
information technology budget for 2020; (ii) a proposal to procure 15 Cisco network switches
that was grossly overpriced, which had already been flagged by COA; (iii) “doctored” financial
statements intended to cover up losses and inconsistencies that would have been otherwise
difficult to explain; (iv) use of the “case rate package” as a scheme for fraud / unjust enrichment
by hospitals; (v) additional burdens to Overseas Filipino Workers (OFWs); and (vi) existenceof a “syndicate” or “mafia” comprised of high-ranking PhilHealth officials that perpetuatedillegal operations in the agency.

There were also corresponding findings in the 2021 Annual Audit Report for the DepEd.
Official Statement of the Department of Education: “On the COA report on the procurement of laptops,” 5August 2022, <https://www.deped.gov.ph/2022/08/06/on-the-coa-report-on-the-procurement-of-laptops/>
35“New PS-DBM head: DepEd’s laptop procurement may be illegal,” contributed by Marvin Joseph Ang, Yahoo!
Philippines (News), 3 October 2022, <https://ph.news.yahoo.com/new-ps-dbm-head-deped-laptop-procurementmay-be-illegal-062916112.html>“DepEd laptops procurement process ‘defective,’ says senator,” Hana Bordey, GMA News, 15 September 2022,<https://www.gmanetwork.com/news/topstories/nation/844970/deped-laptops-procurement-process-defectivesays-senator/story/>“Gatchalian flags inconsistent statements of PS-DBM execs on legal basis of DepEd laptop procurement,” Hana
Bordey, GMA News, 29 September 2022,<https://www.gmanetwork.com/news/topstories/nation/846419/gatchalian-flags-inconsistent-statements-of-psdbm-execs-on-legal-basis-of-deped-laptop-procurement/story/>
36“‘Overpriced’: Drilon urges DOH to review PhilHealth’s P8,150 COVID-19 testing package,” Dona Magsino,
GMA News, 19 May 2020, <https://www.gmanetwork.com/news/topstories/nation/738872/overpriced-drilonurges-doh-to-review-philhealth-s-p8-150-covid-19-testing-package/story/>
37“Duterte wants probe on PhilHealth’s COVID-19 test price issue,” Krissy Aguilar, Inquirer, 22 May 2020,<https://newsinfo.inquirer.net/1279348/duterte-wants-probe-on-philhealths-covid-19-test-price-issue>
38“3 PhilHealth officials resign over alleged widespread corruption in agency,” BAP/KBK, GMA News,
Published and updated on 24 July 2020, <https://www.gmanetwork.com/news/topstories/nation/748272/3philhealth-officials-resign-over-alleged-widespread-corruption-in-agency/story/>
39
The Interim Reimbursement Mechanism or IRM is an emergency cash advance measure applied by PhilHealthto provide hospitals with an emergency fund to respond to unanticipated events like natural disaster and calamities.
Found in “Philhealth issues official statement on Interim Reimbursement Mechanism (IRM),” By BMPLUS,
Business Mirror, 26 May 2020, <https://businessmirror.com.ph/2020/05/26/philhealth-issues-official-statementon-interim-reimbursement-mechanism-irm/>
33
34- 122 - 122 -PHILIPPINES
While PhilHealth disavowed the purportedly false and/or baseless accusations against it
and its executives, 40 the various agencies looking into the myriad corruption issues PhilHealthwas embroiled in came out with findings to the contrary. The Philippine Anti-Corruption
Commission (PACC) 41 had already uncovered loopholes and systemic flaws in PhilHealth’ssystem 42 and correspondingly submitted its report 43 to the President. 44 Both the Senate andHouse of Representatives came out with findings adverse to PhilHealth as a result of theirrespective investigations. 45 A special task force ordered by then President Duterte toinvestigate the PhilHealth anomalies recommended the filing of charges against top officialsof the agency, which the President duly approved. 46 But while the agency remains mired incorruption controversies that are subject of ongoing investigations and/or formal complaints, it
decided to “add insult to injury” when it went ahead with the imposition of the increase in its
premium collection rate just this year. 47 While the increase in contribution rate was supposed
to be implemented long before, the corruption issues that had been uncovered (and continue tobe uncovered) in relation to the agency certainly make the imposition of rate increase at thispoint in time an even greater burden to bear, as if the paying PhilHealth members are being
made to shoulder the responsibility for the iniquities of the corrupt.
Although it hasn’t been slapped with as many (or as severe or as major) corruption issues
as the previously mentioned agencies, the Department of Social Welfare and Development(DSWD), being the primary implementing agency for the distribution of assistance to thesectors of society hardest hit by the pandemic, cannot escape the “spotlight” of corruption
entirely. Issues stem, however, mainly from DSWD’s “partner” in the distribution of assistance,
the various Local Government Units (LGUs). The DSWD had explained that it would be theLGUs, particularly the barangay leaders (Barangay Captain / Punong Barangay), who would
identify the target beneficiaries. The LGUs were also tasked with the door-to-door distributionof the Social Amelioration Card (SAC), limited to one card per household, to be filled up by
the household head. The list of beneficiaries comes from the LGUs, subject to validation by
the DSWD. As with previous and similar cash assistance distribution programmes of theDSWD, such as the Emergency Shelter Assistance (ESA) for the victims of super typhoon“OFFICIAL STATEMENT ON ALLEGATIONS OF IRREGULARITIES AND CORRUPTION,” From
PhilHealth News Archives, 31 July 2020, <https://www.philhealth.gov.ph/news/2020/on_allegations.php>“PhilHealthbucks
corruption
issue,”SunStar/Baguio,6August2020,<https://www.sunstar.com.ph/article/1866140/Baguio/Local-News/PhilHealth-bucks-corruption-issue>
41
Now abolished by virtue of Executive Order No. 1, Series of 2022, signed by President Ferdinand R. Marcos,
Jr. on 30 June 2022.
42“PACC uncovers loopholes, systemic flaws in PhilHealth system,” Leila B. Salaverria, Inquirer,<https://newsinfo.inquirer.net/1315424/pacc-uncovers-loopholes-systemic-flaws-in-philhealth-system>
43“PACC initial report: Fire or charge 36 PhilHealth officials over corruption,” Cathrine Gonzales, Inquirer, 5August 2020, <https://newsinfo.inquirer.net/1317111/pacc-initial-report-fire-or-charge-36-philhealth-officialsover-corruption>
44
Then President Rodrigo Roa Duterte
45“Senate recommends criminal, admin cases vs PhilHealth execs,” Bella Perez-Rubio, The Philippine Star, 1
September 2020, <https://www.philstar.com/headlines/2020/09/01/2039382/senate-recommends-criminaladmin-cases-vs-philhealth-execs>“House panels recommend charges vs. Duque, Morales over PhilHealth mess,” Erwin Colcol, GMA News,
Published and updated on 27 October 2020,<https://www.gmanetwork.com/news/topstories/nation/761593/house-panels-recommend-charges-vs-duquemorales-over-philhealth-mess/story/>
46“Duterte approves corruption charges vs PhilHealth officials,” Gillian M. Cortez, Business World, 15
September 2020, <https://www.bworldonline.com/the-nation/2020/09/15/316769/duterte-approves-corruptioncharges-vs-philhealth-officials/>
47“PhilHealth hike amid corruption,” Philippine Daily Inquirer Editorial, 19 May 2022,<https://opinion.inquirer.net/153095/philhealth-hike-amid-corruption>
40

123 --- 123

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Yolanda, 48 issues and questions abound with the “SAP” (as the financial assistance in relation
to the Covid-19 pandemic is commonly called), particularly the delay in the distribution ofassistance, allegedly selective (and even politicized) distribution of not just the assistance itself
but even the forms for application for assistance (the SAC), and the questionable selection oftarget beneficiaries, wherein lists either excluded otherwise qualified beneficiaries or included
unqualified persons as beneficiaries. DSWD had explained the process of distribution of SAP 49
and also undertook to discuss issues on the distribution (such as delay) with the LGUs. 50
DSWD even set up a grievance mechanism which would allow it to address such issues. 51
Guidelines were also issued for those who received more than one form of Covid-19 financial
assistance or were otherwise ineligible to receive such assistance to refund such amounts. 52
The refunding of such amounts, of course, banks on the “honesty and adherence to the law” of
the recipients thereof. Despite all these, anomalies in the distribution of financial assistancestill could not be quelled, such that the Criminal Investigation and Detection Group (CIDG) of
the Philippine National Police was tapped to investigate the irregularities in the SAP
distribution. 53
Another issue that was brought up against DSWD, however, concerned its distribution of
SAP through digital / electronic channels. Particular attention was called to the inclusion of“Starpay Corporation” in the Financial Service Providers (FSPs) tapped to administer theelectronic payment and distribution of SAP to beneficiaries. An investigation was sought on
the matter in both the Senate 54 and the House of Representatives. 55 Both Starpay and DSWD
denied the allegation of “missing funds” resulting from the failure to distribute to beneficiaries
the funds downloaded by DSWD to the FSP for that purpose. 56 The Bangko Sentral ng
Pilipinas (BSP), which had accredited Starpay as an Electric Money Issuer (EMI) only in 2018,nevertheless stated that it would look into the issue. 57
The above-discussed matters are merely just the tip of the iceberg. These are just some of
the most publicized corruption-related matters that came up from the time the country wasplaced under a state of national emergency. These barely scratch the surface, yet are alreadyalarming in and of themselves, given the billions of government funds involved. It is no wonder
then that corruption in the time of the Covid-19 pandemic has been characterized as another
International name: Haiyan.
“DSWD clarifies issues, updates progress on cash aid,” Christopher Cudis, Philippine News Agency, 9 April
2020, <https://www.pna.gov.ph/articles/1099315>
50“DSWD vows to discuss social aid distribution issues with LGUs,” Gabriel Pabico Lalu, Inquirer, 29 April
2020, <https://newsinfo.inquirer.net/1266906/dswd-vows-to-discuss-social-aid-distribution-issues-with-lgus>
51“DSWD sets up mechanism for grievances and appeal on SAP,” by Social Marketing, DSWD, 24 April 2020,<https://www.dswd.gov.ph/dswd-sets-up-mechanism-for-grievances-and-appeal-on-sap/>
52“DSWD explains SAP refund process,” by Social Marketing, DSWD, 8 June 2020,<https://www.dswd.gov.ph/dswd-explains-sap-refund-process/>
53“CIDG to probe irregularities in SAP distribution,” Christopher Lloyd Caliwan, Philippine News Agency, 5
May 2020, <https://www.pna.gov.ph/articles/1101896>
54“Pacquiao seeks probe of missing P10.4-B aid,” Kyle Aristophere T. Atienza, Business World, 15 July 2021,<https://www.bworldonline.com/the-nation/2021/07/15/382972/pacquiao-seeks-probe-of-missing-p10-4-b-aid/>
55“House probe sought over SAP funds flagged by COA,” RG Cruz, ABS-CBN News, Posted on 19 August 2021,<https://news.abs-cbn.com/news/08/19/21/house-probe-sought-over-sap-funds-flagged-by-coa>
56“Statement of Starpay Corporation on the Issue of Ayuda Distribution,” Journal Online, 5 July 2021,<https://journal.com.ph/starpay-issue-ayuda-distribution/>“DSWD wants to see data on 1.3 million SAP unserved beneficiaries due to use of Starpay app,” Charissa LuciAtienza, Manila Bulletin, 5 July 2021, <https://mb.com.ph/2021/07/05/dswd-wants-to-see-data-on-1-3-millionsap-unserved-beneficiaries-due-to-use-of-starpay-app/>
57“Bangko Sentral to probe complaint on e-wallet Starpay: Diokno,” ABS-CBN News, Posted on 18 October
2021, <https://news.abs-cbn.com/business/10/18/21/bangko-sentral-to-probe-complaint-on-starpay>
48
49- 124 - 124 -PHILIPPINES
pandemic. Prevalent in the myriad corruption issues are problems with procurement,
management and/or accounting (e.g., internal controls) of Covid-19 funds, and irregularities in
the giving of financial and even non-monetary assistance. These forms of corruption do notappear to be anything new. So rather than call the various forms of corruption that appeared
during the Covid-19 pandemic as “new and emerging” forms of corruption, it would, perhaps,
be more appropriate to say that the Covid-19 pandemic brought new (and grander)
opportunities for corruption, as well as a fresh new excuse for it.
One “new” form of corruption unique to or which emerged during the Covid-19 pandemic,
however, was the alleged selling of Covid-19 vaccines and even vaccination slots andvaccination cards. Linked to the LGUs, who were responsible for implementing theGovernment’s Covid vaccination programme in their jurisdictions, there were reports that
persons were selling the Covid-19 vaccines, which were either donated to or purchased by theGovernment and supposed to be administered to the citizens free of charge under the
programme. As the vaccine rollout was scheduled based on a classification or grouping system,some took advantage of this to sell vaccination “slots” to those who wanted to avail of thevaccination earlier than their supposed schedule based on their classification / grouping. The
police were deployed to crackdown on the perpetrators of these scams. 58 As the transactions
were conducted mostly online, the crackdown involved not just the CIDG of the PNP, but also
the Cybercrime Division of the National Bureau of Investigation (NBI). 59 “Fixers” 60 involvedin such illegal operations were also investigated by the CIDG. 61
IV. CORRUPTION IN THE TIME OF COVID: THE “LOCAL” EXPERIENCE
In the Office of the Ombudsman – Visayas (OMB-Visayas, for brevity), the corruption
cases dealt with cover three Regions in the country: Region VI, Region VII and Region VIII.
While the OMB-Visayas covers the fewest regions out of all the Ombudsman offices, it is also
the only one that has a “Regional” office in each of its covered regions, stemming mainly fromthe fact that the 3 Regions under its territorial jurisdiction are separated land masses. Travel toeach of the three regions would entail travel by sea or air. The main office of OMB-Visayas islocated in Cebu City, part of Region VII, which was one of the hardest-hit by super typhoon
Odette 62 last December 2021. Before the typhoon wreaked havoc in Cebu City, the Covid-19
response of the LGU had already been assailed for various irregularities and anomalies.
Flagged by the COA in its Annual Audit Report on the City of Cebu for the Year Ended 31
December 2020 were the following Covid-related matters: (i) Distribution of SAP which
included persons ineligible for such financial assistance; (ii) The award of several purchases ofrice for Covid-19 relief operations to unqualified suppliers; (iii) Irregularities in the
procurement process for the Quarantine Building constructed at Block 27, North Reclamation
Area, Cebu City; (iv) Procurement of KN95 masks at a price in excess of the maximum retailprice set by the DOH; (v) Non-compliance with various documentary requirements andprocedures in the procurement of rapid anti-body test kits; (vi) Non-submission of the“Eleazar orders crackdown on people selling vaccine, vaccination slot,” Aaron Recuenco, Manila Bulletin, 22
May 2021, <https://mb.com.ph/2021/05/22/eleazar-orders-crackdown-on-people-selling-vaccine-vaccinationslot/>
59“CIDG, NBI go after online sellers of jab slots,” Dexter Cabalza, Philippine Daily Inquirer, 23 May 2021,<https://newsinfo.inquirer.net/1435371/cidg-nbi-go-after-online-sellers-of-jab-slots>60“A person who intervenes to enable someone to circumvent the law or obtain a political favor,”<https://www.merriam-webster.com/dictionary/fixer>
61“CIDG probes fixers behind sale of vaccine slots,” Christopher Lloyd Caliwan, Philippine News Agency, 29
June 2021, <https://www.pna.gov.ph/articles/1145286>
62
International name: Rai.
58

125 --- 125

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Summary / List of Donations Received, Distributed and Balance, and its supporting documents,
as well as the required one-time report for cash and in-kind donations; and (vii) Grant of Special
Risk Allowance (SRA) to non-public health workers.
What the Annual Audit Report did not reveal, however, were other issues in relation to theCity’s Covid-19 response in 2020, such as the controversial “sardines” procurement (among
other items) which was priced at PhP22.00 per 155g can, when the price freeze imposed by the
DTI at the time pegged the price of a can of sardines of the same weight at PhP13.25 (for the
least expensive brand in the market) to PhP17.00 (for the most expensive brand in themarket). 63 Another issue that the audit could not reveal was the allegedly politicized
distribution of aid (such as the questionably procured rice) from the City. Even with the
distribution of “quarantine passes”, 64 there were already arguments regarding the interferenceof the “MILO” 65 when the Barangay LGUs were supposed to take charge of it. 66 Considering
the fact that the number of quarantine passes issued by the City could not suffice for the numberof households in the City, these MILO personnel taking a portion of that already limited
number of passes for their own “distribution” activities resulted in even more households notgetting any quarantine pass and some households having more than one. With the MILO also
taking charge of distributing the rice assistance from the City, reportedly in Barangays
belonging to the “opposition party”, 67 the issue of politicizing aid became all the more
prominent. While then Mayor Labella ordered a probe into the matter of distribution of riceassistance, which he claimed he had instructed particularly to be coursed through the elected
Barangay officials and not the MILO, 68 one of his allies in the City Council was quick to pass
the bucket to the Department of Social Welfare and Services (DSWS) 69 in relation to the
MILO’s involvement in the distribution of rice. 70
The COA was able to note, in its 2020 Annual Audit Report, the failure of the City tosubmit the required documents pertaining to cash and in-kind donations. Even afterManagement commented on the finding, COA still found that, due to the lack of required
documents submitted, it would be hard to prove total donations and that they were used for theplaces and/or persons they were intended. A clear demonstration of this is the “missing
chickens” case, wherein chickens donated by a private company for the City’s Covid relief
operations went “missing” but turned out to be (allegedly) sold off by unscrupulous persons,purportedly linked to the MILO, instead of being given, free of charge, to the qualified andintended beneficiaries thereof. While the City Council member in charge of said donation for
the South district of the City “explained” regarding the chickens and how they were not“At P22 per can: CH sardines overpriced?”, Mary Ruth R. Malinao, The Freeman, 8 May 2020,<https://www.philstar.com/the-freeman/cebu-news/2020/05/08/2012601/p22-can-ch-sardines-overpriced>
64
A document that allows the holder to leave his / her residence for allowed purposes during the implementationof the Enhanced Community Quarantine.
65
Mayor’s Information and Liaison Office, an office created by then Cebu City Mayor Edgardo Labella to serveas his “liaison” office within each of the 80 Barangays of Cebu City.
66“Barangays complain vs. passes distribution by Milo,” JJL, SunStar / Cebu, 2 April 2020,<https://www.sunstar.com.ph/article/1851040/Cebu/Local-News/Barangays-complain-vs-passes-distributionby-Milo>67
Not allied with then Cebu City Mayor Labella’s party, Barug-PDP Laban.
68“Labella orders probe on rice distribution in Inayawan,” Delta Dyrecka Letigio, Cebu Daily News, 2 July 2020,<https://cebudailynews.inquirer.net/323636/labella-orders-probe-on-rice-distribution-in-inayawan>
69
The local government unit’s version of the DSWD; a department of the local government unit, and not a part of
the DSWD, which is a national government office.
70“Barangay vs MILO, who holds the turf in the barangays?”, Delta Dyrecka Letigio, Cebu Daily News, 1 April
2020, <https://cebudailynews.inquirer.net/299145/barangay-vs-milo-who-holds-the-turf-in-the-barangays>63- 126 - 126 -PHILIPPINES“missing” 71, some city residents still lodged a complaint with the City Mayor, having reason
not to believe the proffered “explanation”. 72 Now, rather than the chickens, the outcome ofthat complaint may be what is truly “missing”.
In addition to the foregoing, the corruption issues plaguing the previously discussed
national government offices also trickled down to the local level. Officials from the PhilHealthRegion VII office, together with officials and employees of some hospitals in the City, werecharged by the NBI – Central Visayas, over anomalous or fake Covid-19 claims (forpayment). 73 The matter of selling of vaccines and vaccine slots was also encountered. While
there was no mention of which specific LGU or LGUs was or were involved in the reported
incidents, the CIDG was also asked to investigate the matter. 74 The issues in the distributionof financial assistance by the DSWD coursed through the Local Government Units, were alsopresent in Cebu City, as well as throughout Regions 6, 7 and 8. Even while the distribution ofaid was ongoing, the number of complaints received by the CIDG from these 3 Regions alreadyranked in the top 5 most number of cases received, among all the Regions in the country. 75
The onslaught of super typhoon Odette brought a fresh wave of problems to the City, as
well as new opportunities for corruption. Financial aid came from the national government for
the victims of the typhoon, while the City also allocated an amount from its own funds intended
as financial assistance for every house damaged by the typhoon (basically, for repairs). 76 While
the funds from the national government were distributed by the City, under the supervision of
the Department of Interior and Local Government (DILG), the list of recipients still came fromthe DSWS, which purportedly validated the list that was prepared and forwarded by the“barangay officials”. 77 In the end, whether it be the financial assistance from the national
government or from the city’s coffers, the same problem of who made it into the list ofrecipients (and how they made it into the list) attended the distribution of both. While an

“Case
of
‘missing
chickens’solved,”JJL,SunStar,
24
June
2020,
<https://www.sunstar.com.ph/ampArticle/1861342>
72“Residents file formal complaint over ‘sale’ of donated chicken,” Gregg M. Rubio, The Freeman, 24 July 2020,<https://www.philstar.com/the-freeman/cebu-news/2020/07/24/2030244/residents-file-formal-complaint-oversale-donated-chicken>
73“Philhealth 7, hospital officers charged for 'false' Covid-19 claim,” JOB with ANV, Yahoo! News, 9 February
2021, <https://ph.news.yahoo.com/philhealth-7-hospital-officers-charged-152100306.html>“PhilHealth, PSH employees charged for ‘anomalous’ Covid-19 claims,” Wenilyn Sabalo, Yahoo! News, 29
October 2020, <https://ph.news.yahoo.com/cases-filed-vs-8-philhealth-073600943.html>
74“Cebu City to CIDG: Investigate selling of vaccines,” Dyrecka Letigio, Cebu Daily News, 13 August 2021,<https://cebudailynews.inquirer.net/394134/cebu-city-to-cidg-investigate-selling-of-vaccines>“CIDG-7 asks public to report selling of vaccination slots and cards,” Pegeen Maisie M. Sararaña, Cebu Daily
News, 16 August 2021, <https://cebudailynews.inquirer.net/394655/cidg-7-asks-public-to-report-selling-ofvaccination-slots-and-cards>
75“Cases handled by CIDG on cash aid anomalies reaches 300,” Anna Felicia Bajo, GMA News, 13 July 2020,<https://www.gmanetwork.com/news/topstories/nation/746656/cases-handled-by-cidg-on-cash-aid-anomaliesreaches-300/story/>76“CH disburses P179 million for Odette victims,” Caecent No-ot Magsumbol, The Freeman, 14 February 2022,<https://www.philstar.com/the-freeman/cebu-news/bottom-article-list/2022/02/14/2160744/ch-disburses-p179million-odette-victims>“EXPLAINER: P5,000 per-house/household for Cebu City's typhoon victims, 'rich or poor.' What we know about
Mayor Rama's plan, the kinks to watch out for.”, Pachico A. Seares, SunStar / Cebu, 7 January 2022,<https://www.sunstar.com.ph/article/1917434/cebu/local-news/explainer-p5000-per-househousehold-for-cebucitys-typhoon-victims-rich-or-poor-what-we-know-about-mayor-ramas-plan-the-kinks-to-watch-out-for>77“‘Odette’ victims in Cebu City get P22-M cash aid,” John Rey Saavedra, Philippine News Agency, 3 February2022, <https://www.pna.gov.ph/articles/1166974>
71

127 --- 127

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

investigation 78 was ordered by then Mayor Michael Rama, 79 the controversy has obviously
died down with no clear resolution of the matter as there are still qualified beneficiaries andactual victims of the typhoon who have not received any financial assistance up to the present.
One can only hope that investigations by other bodies (e.g., NBI, CIDG) on the issue yield
actual results.
V. BATTLING THE CORRUPTION PANDEMIC: CHALLENGES AND BESTPRACTICESThe Philippines is not short of anti-corruption legislative measures. Even during the
pandemic, the various agencies of Government involved in some measure with pandemic
response and recovery efforts had various guidelines, rules and regulations that included someform of assurance of transparency. Even as efforts were made to streamline processes andrequirements, as time was of the essence in such an emergency situation, there was still somemeasure of documentation and reportorial requirements imposed, penalties provided forviolations, and even a review mechanism in place. But none of these seemed to deter the
proliferation of various corrupt schemes during the height of the (Covid) pandemic.
Perhaps the greatest challenge in the implementation of the various anti-corruption
measures in place before and during the pandemic was time. The urgency of the situation
brought about by Covid-19, given that lives were at stake with every passing second, coupledwith the fact that no part of the country remained unaffected by the crisis situation, posed a
massive challenge for all the agencies of government at the forefront of the country’s Covid19 response, but at the same time provided the greatest opportunity for the unscrupulous andcorrupt to take advantage of. Despite the attempts to streamline the usual processes andpractices, it is noticeable from the audit reports of various agencies (e.g., DOH, PhilHealth,
DSWD, DepEd, PS-DBM) for 2020 that a number of findings concerned the failure to submit
various documentary requirements for transactions, resulting not just in a failure to properly
account for the funds involved in such transactions but also to questionable legitimacy of andinadequate transparency in the same. Due to the nationwide extent of the situation, the sheer
volume of transactions involved and the massive amount of funds being expended,documentary and reportorial requirements, even if streamlined, took a backseat to the mostpressing and immediate concern of life and death. With the constant influx of policy issuancesfrom key agencies, and the limitations in communication (e.g. slow and inconsistent internet
connectivity) prevalent in the country and varying travel restrictions imposed based on the
differing quarantine statuses of different parts of the country, the rules and requirements to befollowed by the various local offices or operating units of national government agencies, andeven local government units, would change either significantly or minimally at a speed that far
outpaced the actual implementation thereof. If anything, the pandemic highlighted the various
defects and weaknesses in the internal controls and management, or systemic flaws, of several
agencies. With such plausible “excuses” in place, any system of checks and balances would
be hard-pressed to keep up with, much less detect and/or prevent in a timely fashion, corruption
wherever and whenever it struck. While investigations abound, actual results (and actions on
the results, if any) are far and few between. Investigative work itself is hampered by the same
“Mayor orders probe into ‘bogus’ Odette aid beneficiaries,” by PIO/jsb/rhm, Cebu City News and Information,
9 June 2022, <https://cebucity.news/2022/06/09/mayor-orders-probe-into-bogus-odette-aid-beneficiaries/>
79
Although Michael Rama is the Mayor of Cebu City at present, the period of time being referred to pertains to
the time when Michael Rama became Mayor by succession, serving the remaining term of deceased Mayor
Edgardo Labella; hence, the use of the term “then”, to distinguish that period from his incumbency now by virtueof being elected to the office.
78- 128 - 128 -PHILIPPINES
limitations that have allowed corruption to be rooted more firmly during the pandemic. Even
reporting or filing complaints with concerned offices has also been made difficult by the
restrictions brought about by the pandemic. While various government agencies have websites
and social media pages containing information on how to contact them, how many people
actually avail of these or actually persist in their grievances when they remain unresolved
remains to be seen. Further, while a survey / study result showed that internet usage and“obsession” with social media surged during the pandemic, it seemed that people utilized
digital platforms more for activities meant to assuage the social distancing and “stay at home”
measures imposed on them during the period. 80 As quarantine restrictions and the risingnumber of Covid cases also hampered the work of non-frontline (or not Covid-related)government offices (e.g. Office of the Ombudsman) involved in anti-corruption efforts, thechallenge for a timely response to the “second pandemic” mounted, as there was only so muchone could do in a work-from-home situation. Field work (such as in fact-finding investigations)
was brought to a virtual standstill for around two years due to travel restrictions and officesafety protocols.
As most of the corruption issues that arose during the pandemic were similar in nature,
though greater in scale or magnitude, to previous or already existing corruption issues, such as
irregularities in the procurement process and questionable distribution of aid, investigation,
adjudication and prosecution practices that have garnered positive and/or successful results
find worth in the pending and upcoming investigations and possible prosecution of cases
arising from pandemic-related complaints.
For instance, in the Office of the Ombudsman-Visayas, the input from our Fact-Finding
Investigators was that corruption schemes at the local level were not committed throughparticularly sophisticated or novel means, albeit there was more creativity in the execution. In
previous investigations on anomalous distribution of aid, it was found that the identification of
beneficiaries and distribution of aid was done through the LGUs, particularly through the
LGU’s own social welfare and services office, which in turn devolved the task to the barangay.
The same system of aid distribution has been utilized during the pandemic, in which case thesame types of cases are expected to be (or have been) filed, the same or similar “excuses” from
respondents are expected to be raised, and the same types of evidence are expected to either
make (if present) or break (if absent) the cases thus filed before the Office.
From investigators of our Office who have dealt with previous similar cases (e.g., thetyphoon Yolanda-related cases) for preliminary investigation and/or administrative
adjudication, the favourite “scapegoat” of accused local government officials / employees was
the DSWD. Because DSWD supposedly “validated” the list of beneficiaries prepared andsubmitted by the local government unit, the local government officials and employees accusedof manipulating the list they submitted, that resulted in ineligible persons receiving government
aid while qualified beneficiaries did not, usually pointed out that the list they prepared was still
subject to and (supposedly) in fact validated by the DSWD. It is, thus, important forcomplainants to implead or include in their complaint the validation team involved so as to laybare the entire process and determine at which point corruption possibly occurred, and whoshould be indicted for what offence (or administratively penalized), if any.

“Internet: Overcoming pandemic lockdowns,” Cristina Eloisa Baclig, Inquirer, 21 June 2021,<https://newsinfo.inquirer.net/1448837/internet-overcoming-pandemic-lockdowns>

80

129 --- 129

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Another favourite excuse in cases where complainants, supposedly qualified beneficiaries,
did not receive any financial aid, was that “the funds were not enough for the number ofbeneficiaries”. In such situation, documentation plays an important role. Not only would it beimportant to know the amount of funds available for that particular distribution of financial
assistance, and the intended number of beneficiaries thereof, proof of ineligibility of those who
received the financial aid in lieu of the rightful qualified beneficiaries is also just as, if not more,
important.
A unique form of “corruption” in the matter of distribution of financial assistance that was
brought out in previous similar cases was how some local government officials, in charge ofidentifying the beneficiaries and preparing the corresponding list, would promise to include
persons in the list (whether or not eligible to be beneficiaries) in exchange for a promise of
payment from them of a certain portion or amount from the financial assistance they would
receive. Testimonial evidence, by way of sworn statement or affidavit, of witnesses andvictims would certainly form a crucial part of case evidence in such a situation.
Given the onslaught of typhoon Odette in various areas under the territorial jurisdiction of
the OMB-Visayas, there is now a fresh new excuse (on top of Covid) that may be employedby respondents (or would-be respondents, as the case may be). With super typhoon Odette
causing extensive property damage, it presents a convenient excuse for parties, where the caseinvolves failure to submit or present certain documents or requirements, in establishing theircause of action or their defence. In fact, even with cases that were already pending before
typhoon Odette struck, some respondents have already utilized the excuse of “lost due totyphoon Odette” for their failure to present controverting evidence in the cases filed against
them. As there may indeed be cases where such excuse is tenable, the Office will have tocarefully scrutinize the particular circumstances attending each case where such an excuse may
be employed by the parties.
On the national front, Ombudsman Samuel R. Martires had ordered probes on some of thecorruption issues with far-reaching effects and great significance to the country’s Covid
response and recovery efforts. While the Ombudsman had expressed the desire of the Office
to work quietly and away from the limelight, 81 it was also revealed that the Office had been
conducting its own investigations on some of the more prominent issues, such as thegovernment’s deals with Pharmally. 82 As the Office of the Ombudsman is the central
corruption prevention arm of the government, its own (corruption-targeted) investigation(which complements the investigation of other government agencies) into such matters ofnational concern can only serve to benefit the country’s anti-corruption efforts. The
Ombudsman also did not hesitate to impose preventive suspensions on officials and employeesof various agencies, who may have been involved in the anomalous and irregular Covid-relatedtransactions, so that they would not be able to impede the investigations thereon. 83 In these
Office of the Ombudsman Press Release: “PRESS RELEASE/STATEMENT,” 20 August 2021,<https://www.ombudsman.gov.ph/press-releasestatement/>
82“Ombudsman Martires reveals probe on Pharmally transactions for COVID-19,” Jel Santos, Manila Bulletin,
26
October
2021,<https://mb.com.ph/2021/10/26/ombudsman-martires-reveals-probe-on-pharmallytransactions-for-covid-19/>
83“Ombudsman suspends 8 PhilHealth, 5 DOH execs over fund issues,” Rio N. Araja, Manila Standard, 29
October 2020, <https://manilastandard.net/news/top-stories/338102/ombudsman-suspends-8-philhealth-5-dohexecs-over-fund-issues.html>“Ombudsman suspends DOH, BI officials,” Rhodina Villanueva, The Philippine Star, 28 October 2020,<https://www.philstar.com/headlines/2020/10/28/2052796/ombudsman-suspends-doh-bi-officials>
81- 130 - 130 -PHILIPPINES
investigations where documentary evidence would be crucial to case build-up, theOmbudsman’s exercise of the power of preventive suspension in order to safeguard evidence
needs to be both swift and timely. Indeed, the preventive suspension of 89 Barangay Captains(or Punong Barangays), in relation to the anomalies in the SAP distribution, 84 was a welcome
move to prevent these officials from possibly prejudicing the investigation of the cases against
them. As the second tranche of SAP distribution was still ongoing at the time, abuse of power
was a very real possibility to discourage witnesses to and/or victims of the anomalies to pursue
and/or persist with their complaints.
The Office of the Ombudsman has also been implementing, for years now, various anticorruption programmes geared towards educating different sectors about corruption and public
accountability, fostering integrity and social responsibility, and promoting good morals andethical conduct. Of the different anti-corruption programmes of the Office, three programmes
have been rolled out to and implemented by the OMB-Visayas to date, namely: (i) Integrity,
Transparency, Accountability in Public Service (ITAPS) Programme; 85 (ii) Anti-Corruption
Laws Lecture Series (ACLS); 86 and (iii) Training and Leadership for Campus Integrity
Crusaders (TLC) 87 Programme. 88 Even with the restrictions imposed by the Covid pandemic,
these programmes had been adapted to an online / digital format so that the Public Assistanceand Corruption Prevention Bureau (PACPB) of the OMB-Visayas could continue to implement
them, whether from their homes or from the office, when face-to-face implementation was notpossible or allowed. In the national Office, there are some programmes that are in their pilot
stages / initial roll out, such as the Values Education Campaign that has been implemented insome pilot areas. 89 Hopefully, the Office would be able to implement / roll out these otherprogrammes nationwide, to better strengthen the Office’s corruption prevention campaign.
After all, “an ounce of prevention is worth a pound of cure”, 90 and this applies not only to
Covid but to corruption as well.
“Ombudsman orders suspension of 13 PhilHealth officials,” Daniel Manalastas, PTV News, 19 August 2020,<https://ptvnews.ph/ombudsman-orders-suspension-of-13-philhealth-officials/>
84“89 barangay chairpersons suspended over SAP anomalies,” Third Anne Peralta – Malonzo, SunStar / Manila,
13 September 2020, <https://www.sunstar.com.ph/article/1870052/manila/local-news/89-barangay-chairpersonssuspended-over-sap-anomalies>
85
The ITAPS is a corruption prevention programme of the Office of the Ombudsman wherein seminars are held
for various government officials and employees, with the aim of providing “a venue whereby public service values
are internalized and to enhance a deeper understanding of the role of public servants and the accountability
attached to the positions in the government.” <https://www.ombudsman.gov.ph/transparency-ingovernment/programs-projects/education-anti-corruption-promotion/integrity-transparency-and-accountabilityin-public-serviceitaps/#:~:text=Integrity%2C%20Transparency%20and%20Accountability%20in%20Public%20Service%20%28
ITAPS%29,accountability%20attached%20to%20the%20positions%20in%20the%20government.>86
A corruption prevention programme of the Office of the Ombudsman for government officials and employees,
which aims to educate and raise awareness on the anti-corruption laws, as well as the consequences for theirviolations
87
Formerly, the Campus Integrity Crusaders Programme.
88
Campus Integrity Crusaders (CIC) refers to any non-partisan school-based youth organization recognized by asecondary or tertiary educational institution and duly accredited by the Office of the Ombudsman. Found in Sec.
3, Office of the Ombudsman Memorandum Circular No. 04, Series of 2012.
Under the programme, the Office of the Ombudsman and a CIC may jointly undertake activities that aim to: (a)Cultivate the virtues of uprightness, responsibility, honesty, respect for authority, and love of country; (b) Instilla sense of good citizenship and responsible leadership; (c) Inculcate the basic principles of human rights and civic
duties; and (d) Promote the integration of corruption prevention education (CPE) teaching modules in the school
curricula.
89
Office of the Ombudsman Press Release: “OMB rolls out values education campaign in pilot areas,” 28 June
2021, <https://www.ombudsman.gov.ph/omb-rolls-out-values-education-campaign-in-pilot-areas/>90
By Benjamin Franklin.

131 --- 131

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

VI. CONCLUSION AND RECOMMENDATIONSThe Philippines is not the only country battling corruption. Corruption is global. Thishighlights the need of establishing effective and enduring linkages with other countries toeffectively combat corruption worldwide. Too often have persons subject of corruption cases
either fled to other countries or, at the very least, transferred away to other countries the effectsof their corrupt practices. Inter-country activities, such as the present Seminar on Good
Governance, will aid vastly in coming up with new and/or enhancing existing inter-country
mechanisms of anti-corruption cooperation / participation, through the exchange of ideas andexperiences.
But in order for the Philippines to be an effective global partner / participant in the war on
corruption, it must first improve or enhance its internal mechanisms of anti-corruption
cooperation / participation. As the nation struggles to adapt to a “new normal” and pick up thepieces left in the wake of the Covid-19 pandemic (which isn’t even entirely over yet), it is vitalfor us to learn, and learn well, the lessons brought by this experience and similar ones before
it, in order to prepare a better response to future emergency situations and in order to keep atbay, if not totally eradicate, the other pandemic that has plagued us alongside the coronavirus.
In this regard, cooperation is vital between the various agencies involved in the implementationof anti-corruption measures. Communication and mutual respect for the roles each one playsin the fight against corruption are crucial if we are to succeed in some measure. Everyone
needs to be on the same page when it comes to battling this second “pandemic”, rather thanbeing focused on saving face and covering up the ugly flaws being uncovered. The
commitment to cooperate in investigations to expose and put an end to corrupt practices needs
to be more than just mere lip service. Each and every public official or employee plays acritical role in the fight against corruption. No role is too small or unimportant. While thepublic accountability / transparency measures imposed by existing laws, rules and regulations
may seem tedious / time-consuming to comply with in such an emergency situation, one must
always keep in mind that putting in the extra work to comply with these measures may savemore lives, even one’s own.
The fight against corruption is a battle that belongs not just to the different agencies ofgovernment, but also to each and every citizen of the nation. In this case, education is key.
The public must know not just their rights, but also how they can safeguard or vindicate themwhen trampled upon by others. They need to learn how to avail of the grievance mechanisms
in place, as well as how to report (and what is needed to support a report of) incidents ofcorruption that either victimize them or those around them. In order to accomplish this,government must find a viable method to make the citizens actively involved in the anticorruption response. Programmes and measures that increase and improve the relationshipbetween government and citizens are vital, in order to enhance the people’s trust in thegovernment and gain their sincere cooperation in the seemingly never-ending battle against
corruption. Existing programmes and measures need to be periodically reviewed andcorrespondingly enhanced and improved, in order for their implementation to be both
appropriate and adapted to ever-changing and/or sudden situations, such as the Covid-19
pandemic. The citizens must know and understand the importance of their roles in this battle,
to help them feel invested in not just their present but also in their future, by playing their partin the fight against corruption, hand-in-hand with the Government.

- 132 - 132 -SINGAPORENEW AND EMERGING FORMS OF CORRUPTION AND EFFECTIVE
COUNTERMEASURES: A SINGAPORE PERSPECTIVE
Eric Hu *I. INTRODUCTION
During the Covid-19 pandemic in 2020, Singapore had to grapple with a plunge in services
exports which came on the back of border closures imposed by countries globally to preventthe spread of the virus. 1 Despite this, Singapore still ranks top in the world as the best place toconduct business. 2 Singapore is consistently considered as one of the most globally connected
countries in the world. 3
With Singapore’s reputation as an international financial hub, there remains risk thatcriminals would seek to commit offences and launder their ill-gotten gains through Singapore.
It is thus imperative for Singapore to act swiftly to address new and emerging areas of concern
in criminal activities, including corruption. Singapore regularly reviews its system, policies,
and legislation to ensure that it remains effective in investigating and prosecuting errant
offenders.
In the recent few years, Singapore has not observed any new and emerging trends ofcorruption. However, for the purposes of this Seminar, it is useful for Singapore to share
emerging areas of concern for corruption offences it has observed, and the countermeasurestaken to address them. This paper aims to provide a broad overview of Singapore’s legislative
framework before delving into three emerging areas of concerns and some measures taken by
our agencies thus far.
II. THE LEGISLATIVE FRAMEWORK IN SINGAPORE
A. Overview
Singapore has taken a zero-tolerance approach towards corruption as our development andsuccess depends strongly on the country being clean and corruption-free. The founding leadersand successive governments have put in place a robust legislative framework.
The primary governing legislation for corruption offences is the Prevention of Corruption
Act 1960 (“PCA”). The objective of the PCA is to provide for the more effectual prevention ofcorruption. It also provides for extra-territorial jurisdiction so that the corrupt actions ofSingaporean citizens overseas are treated the same as actions committed in Singapore. Under
Deputy Public Prosecutor, Attorney-General’s Chambers, Singapore.
Ministry of Trade and Industry Singapore (25 May 2022), Impact of the COVID-19 Pandemic on Singapore’sServices Export, available online at: https://www.mti.gov.sg/Resources/feature-articles/2022/Impact-of-theCOVID-19-Pandemic-on-Singapore-Services-Export
2
Economist Intelligence (27 October 2022), Singapore retains its lead in business environment rankings,
available online at: https://www.eiu.com/n/singapore-retains-its-lead-in-business-environment-rankings/
3
Deutsche Post DHL Group, DHL Global Connectedness Index 2020, available online at:https://www.dhl.com/content/dam/dhl/global/dhl-spotlight/documents/pdf/spotlight-g04-dhl-gci-2020country-book.pdf*
1

133 --- 133

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

the PCA, any person found guilty of receiving a bribe may also be ordered to pay a penalty
equal to the amount of the bribe itself. Our anti-corruption agency, the Corrupt Practices
Investigation Bureau (“CPIB”), is well resourced and empowered to investigate any persons,
including political office holders and public service officers. When individuals commit
corruption offences, they will be severely dealt with in accordance with our laws.
Apart from the PCA, the Corruption, Drug Trafficking, and other Serious Crimes(Confiscation of Benefits) Act 1992 (“CDSA”) is a key piece of legislation criminalizing
money-laundering. The CDSA criminalizes the laundering of criminal benefits of corruption
and other serious offences in and beyond Singapore. Persons convicted of such offences maya face jail term of up to 10 years and a fine of up to S$500,000. In addition, the CDSA allows
for the restraining and confiscation of benefits derived from corruption and serious offences.
Today, Singapore is consistently considered as one of the least corrupt countries globally,ranking fourth out of 180 countries on the latest Transparency International Corruption
Perception Index 2021. 4 Although Singapore has achieved some success eradicating corruption,
we recognize and harbour no illusions that we have completely eradicated the problem. It isthus important to continually be alert to emerging areas of concerns and address them in atimely fashion.
We highlight three areas and elaborate below.
III. EMERGING AREAS OF CONCERN AND COUNTERMEASURES
A. Corruption in E-Sports and Involving Young Adults
An emerging area of concern pertains to corruption within the e-sports industry and the
involvement of young adults.
Recently, Singapore hosted an annual multi-million-dollar world championship e-sports
tournament “Dota 2: The International 11”, which was one of the world’s biggest e-sports
competitions. 5 It took place across 23 days in October 2022. Competitors came from all over
the world, from Western Europe to Southeast Asia and to South America. 6 Since its inception
in 2011, the tournament had attracted large cash prizes. This year, the total prize pool stood atover USD 18 million. 7
Singapore has consistently taken a zero-tolerance approach towards corruption. That
extends to match-fixing of any form. Match-fixing is defined as dishonestly determining the

Corrupt Practices Investigation Bureau (5 May 2022), Corruption Situation in Singapore Firmly Under
Control, available online at: https://www.cpib.gov.sg/press-room/press-releases/050522-corruption
5
Kurt Lozano (3 September 2022), Dota 2’s The International 11 in Singapore: Everything you need to know,
available online at: https://sg.news.yahoo.com/dota-2-s-the-international-11-singapore-everything-you-needto-know-035008119.html/.
6
Ibid.
7
Cale Michael (2 November 2022), How much is Dota 2’s The International 2022’s prize pool?, available online
at:https://dotesports.com/dota-2/news/how-much-is-dota-2s-the-international-2022s-prize-pool-t11-prizepool-tracker
4- 134 - 134 -SINGAPORE
outcome of a match before it is played. 8 This can either be a consequence of players betting onthemselves or players being pressured by syndicates to lose on purpose. 9
In past years, persons found guilty of match-fixing for football games had been sentenced
to lengthy custodial sentences. For example, in September 2015, Singaporean Rajendran S/O
K Kurusamy was sentenced to 48 months’ imprisonment for offences related to football matchfixing activities at the 28th Southeast Asia Games. He was found guilty of engaging in aconspiracy with other persons to give bribes to players of a football team and a director of afootball association to induce that team to lose a football match.
As e-sports tournaments attract record-breaking viewership numbers and staggering cash
prize pools, 10 there is no doubt that unscrupulous individuals may be tempted to get involvedin match-fixing of such e-sports games, which is a young but rapidly growing industry. Matchfixing undermines the reason people watch competitive games in the first place 11 and has thepotential of tarnishing the image of Singapore, if left unchecked. 12
Many players in prominent e-sports teams are young adults and might not beknowledgeable about the risks or implications posed by match-fixing and corruption. 13
Recently, in August 2022, two young men (aged 20 and 24) were charged in the State
Courts for being allegedly involved in e-sports match-fixing. 14 One of the men had allegedly
given gratification to the other in the form of winnings from bets placed through an illegal
online gambling site. The gratification was to induce the latter to fix an online e-sports matchfor the first-person shooter video game “Valorant” between two teams in the Epulze RoyalSoutheast Asia Cup Tournament. The case is ongoing in the courts.
This case presents an emerging area of concern, both with corruption in the e-sports
industry as well as the involvement of young adults in such offences. E-sports regulators havestated they are constantly on the lookout for irregular player patterns and are continuously
looking for new ways to detect cheating attempts. 15 CPIB also recently issued a press releasewarning against match-fixing of any form. 16
However, beyond taking stern and swift action, Singapore enforcement agencies recognize
the need to take proactive steps to educate and engage young adults.
CPIB has observed that there was a lack of awareness of corruption among young adults.
A survey polling 1,000 youth showed that about 72 per cent were not aware of the existence ofEsports Insider (18 January 2022), Abios: Combatting match-fixing and cheating in esports is crucial,available online at: https://esportsinsider.com/2022/01/abios-combatting-match-fixing-and-cheating-inesports-is-crucial?amp
9
Ibid.
10
Ibid.
11
Ibid.
12
Kannan s/o Kunjiraman and another v Public Prosecutor [1995] 3 SLR(R) 294 at [24].
13
Supra note 8.
14
Samuel Devaraj (5 August 2022), Two men charged over match-fixing in e-sports tournament, The Straits
Times.
15
Supra note 8.
16
Corrupt Practices Investigation Bureau (5 August 2022), Two esports players charged for alleged corruption
and gambling offences, Press Release, available online at: https://www.cpib.gov.sg/press-room/pressreleases/05082022-two-esports.
8

135 --- 135

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

the CPIB. 17 The CPIB published an electronic book titled “Corruption Casebook – Stories
From Under The Table”, available for download on its website. 18 The book is catered towards
youth. It showcases 16 curated cases involving different forms of bribes across areas such as
national security and public health, as well as the consequences that may follow from
corruption. For example, bribes paid towards inspectors to be lenient when checking formosquito breeding sites can be especially insidious in a year which has seen the dengue death
toll hit a record high of 29 amid Singapore’s largest break in 2020. 19
In its outreach efforts, the CPIB rolled out an Anti-Corruption Badge Programme with the
National Police Cadet Corps. 20 Through the programme, the CPIB has already reached out tomore than 400 secondary students across 36 schools. A notable case which was shared with thestudents was that of the forklift operators at a container depot who took $1 bribes from truck
drivers. The case made headlines because of what appeared to be an insignificant bribe.
However, when the students discovered that the bribes went on for several years and began to
add the sums up, they realized that even the smallest of bribes could snowball if corruption
went undetected.
CPIB also collaborated with students to co-create corruption prevention solutions. For
example, the CPIB had collaborated with lecturers and students of Nanyang Polytechnic tocreate a web game, Corruzione, which tapped on the students’ expertise in gamification
technology and digital media. 21 This rides on a gaming environment to enhance learning andto raise awareness of corruption issues in a fun way to the youth.
B. Corruption and Covid-19
The past three years have seen all countries around the globe grapple with the Covid-19
pandemic and the economic struggles that ensued. A Resolution adopted by the Conference of
the States Parties to UNCAC had recognized that corruption is one of the factors thatjeopardizes concerted multilateral efforts to overcome the Covid-19 pandemic. 22
At the height of the Covid-19 pandemic, Singapore adopted differentiated measures for
persons who were vaccinated and those who were not. The unvaccinated persons would be
subjected to more strict rules and frequent testing. 23 These in turn encouraged most of the
population to be vaccinated and proved to be a key strategy in allowing the country toeventually open up to the rest of the world. As of October 2022, 92 per cent of the population
had completed the recommended vaccination regimen against Covid-19. 24
Jean Tan (28 December 2020), CPIB launches e-book to educate teenagers on corruption and its pitfalls,
available online at: https://www.straitstimes.com/singapore/courts-crime/cpib-launches-e-book-to-educateteenagers-on-corruption-and-its-pitfalls/
18
Ibid.
19
Ibid.
20
David Sun (8 May 2020), CPIB engages NPCC cadets in new anti-corruption badge programme, available
online at:https://www.cpib.gov.sg/files/news/2020.05.08.TNP_CPIB%20engages%20NPCC%20cadets%20in%20new%20anti-corruption%20badge%20programme.pdf
21
Supra note 4.
22
Resolution 9/1 Sharm el-Sheikh Declaration on Strengthening International Cooperation in the Prevention ofand Fight against Corruption during Times of Emergencies and Crisis Response and Recovery.
23
Abigail Ng (16 July 2021), Singapore announces separate Covid rules for people who are vaccinated,available online at: https://www.cnbc.com/2021/07/16/covid-singapore-to-introduce-different-rules-forvaccinated-people.html.
24
Statista, COVID-19 vaccination rate Singapore 2022, available online at:https://www.statista.com/statistics/1223524/singapore-covid-19-vaccines-administered/.
17- 136 - 136 -SINGAPORE

Singapore has been fortunate that it has not observed any trend of corruption impinging on
its efforts to contain the pandemic, although there were instances of persons attempting to bribe
public officers in the course of their duties.
In May 2020, the CPIB received information that a foreign worker in Singapore had
attempted to bribe a Police officer after he was detained for committing an offence under the
Covid-19 (Temporary Measures) Act 2020. 25 He did not wear his mask properly. Despite awarning, he persisted in not complying with directions. When he was eventually questioned by
a Police officer, he offered a S$50 bribe to the said officer to let him go. The officer rejected
the offer and reported it to the CPIB. The offender was convicted and sentenced to four weeks’imprisonment.
In January 2022, a male Singaporean was charged in Court for allegedly attempting to bribea vaccination nurse at Healthway Medical Group in October 2021. 26 He allegedly offered thenurse a bribe of S$50 and asked her to reflect in the healthcare system that he had received his
second dose of the vaccination when it was not administered. The nurse rejected his offer andreported the matter to the Duty Health Services Manager. Although the bribe amount in thiscase was small, his actions can potentially undermine the Government’s efforts against the
pandemic. The case is ongoing in the courts.
However, the above cases appear to be isolated incidents, rather than a trend.
This is not surprising as Singapore has painstakingly established a robust andcomprehensive anti-corruption framework over the years. The Government has maintained azero-tolerance approach towards corruption and the CPIB have acted swiftly and effectively.
A fair and independent judiciary has built up public confidence and inspired trust in the rule oflaw. The effective enforcement of laws and the consequence of the imposition of harsh
penalties have allowed Singapore to stamp out corruption through deterring would-be offenders.
A domestic survey polling Singaporeans in 2020 showed that 94 per cent of the respondents
felt that the corruption control efforts in Singapore were effective. 27 The level of public trustin the CPIB and its work was high, with 80 per cent of respondents trusting the CPIB as aneffective agency in the fight against corruption. 28
In addition, the CPIB had put in place a strong system for anonymous reporting ofcorruption, including visits to the CPIB, calls or emails. The PCA protects the identity ofwhistle-blowers from being revealed in court. 29 This has proven effective in allowing CPIB to
identify and investigate cases, which it may not otherwise be alerted to. Of the cases registeredfor investigation in 2021, close to one-fifth of them were from anonymous sources. 30

Corrupt Practices Investigation Bureau (22 April 2021), Corruption Situation in Singapore, available online
at: https://www.cpib.gov.sg/press-room/press-releases/corruption-situation-singapore/.
26
Supra note 4.
27
Supra note 25.
28
Ibid.
29
Section 36 of the PCA.
30
Supra note 4.
25

137 --- 137

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

C. Corruption and Cryptocurrency
Cryptocurrency and blockchain technology received popular attention in the recent few
years. The IMF has estimated cryptocurrencies’ market capitalization to be at a staggering USD
2.5 trillion, reflecting its significant economic value. 31
With the recent crashes in cryptocurrencies such as Terra and Luna as well as the collapseof the crypto exchange FTX, many investors saw their investments vanish in a matter of days. 32
Regulators in many parts of the world also expressed concerns over the potential of
cryptocurrencies being exploited for fraudulent activities and money-laundering. Criminals
may move illicit funds through thousands of wallets before depositing the funds and cashingout the funds at a crypto exchange. 33 Unlike bank accounts, thousands of wallets may be
opened without proof of identity within seconds. 34
While there are no reported cases concerning crypto assets linked to corruption presently,
Singapore’s enforcement and regulatory authorities recognize the importance of getting aheadof criminal syndicates and equipping its officers with the technical knowledge of
cryptocurrency transactions. For example, CPIB regularly conducts trainings for its officers to
help them understand the evolving nature of assets and how to seize and manage such crypto
assets. Its Computer Forensic Branch conducts in-house simulations of transaction flows ofcrypto assets to allow officers to gain a better understanding of a particular asset’s mechanisms.
Authorities also have in their arsenal investigative powers drawn from the Criminal
Procedure Code 2010 (“CPC”). Investigators can utilize production orders to banks, financial
institutions, and even crypto exchanges to obtain information for investigations. A failure tocomply with such orders can constitute a criminal offence. Singapore has also recently
amended Section 39 of the CPC. It now empowers investigators to access computers, eventhose located outside of Singapore under certain circumstances. 35 This allows investigators to
be able to compel suspects to transfer cryptocurrency to wallets held by the law enforcement
agency while investigations are ongoing. This prevents dissipation of such assets, which could
easily be transferred out within seconds.
Prosecutors in the Attorney-General’s Chambers (“AGC”) also undergo regular trainings
and attend conferences to keep abreast of developments in technology. Within AGC, a
Commercial and Technological Crimes Cluster is formed, where the prosecutors therein
specialize and handle more complex technological crimes. Across the Government, aTechnology Law Cluster is also formed in February 2019 to allow for a community ofpractitioners across all public agencies to learn and share with each other their experiences andexpertise in technology law.
Further, Singapore courts have also become more attuned to issues concerning blockchain
technology. A recent blockchain innovation which has gained traction is the non-fungible token
Thomson Reuters, Cryptos on the rise 2022, available online at:https://www.thomasreuters.com/en/reports/cryptos-on-the-rise-2022.html
32Alex Gailey & Ryan Haar, The Future of Cryptocurrency: 8 Experts Share Predictions for the Second Half of2022, available online at: https://time.com/nextadvisor/investing/cryptocurrency/future-of-cryptocurrency/
33
Katherine A. Lemire (26 September 2022), Cryptocurrency and anti-money laundering enforcement,
available online at: https://www.reuters.com/legal/transactional/cryptocurrency-anti-money-launderingenforcement-2022-09-26/
34
Ibid.
35
For example, if the computer’s owner consents, or if the investigator has managed to seize documents
containing the login credentials to the account.
31- 138 - 138 -SINGAPORE
or NFT, which often refers to unique digital collectibles. Given the rapid pace at which
technology develops, legal issues arising out of the application and deployment of suchtechnologies will become more common.
In recent court decisions in CLM v CLN [2022] SGHC 46 and Janesh s/o Rajkumar v
Unknown person (CHEFPIERRE) [2022] SGHC 264 (“Janesh”), the Singapore High Court
has had the opportunity to decide whether stolen cryptocurrency assets were capable of giving
rise to proprietary rights (i.e., be considered as property), which could be protected by aproprietary injunction. In both cases, the Court granted an injunction as sought by the claimant
and provided a provisional view that cryptocurrency assets were capable of giving rise toproprietary rights. In the Janesh case, the asset in question was a Bored Ape NFT, which wasa “very unique” artwork and the only one in existence. The Court considered that what is truly
unique and irreplaceable was the string of code that represents the Bored Ape NFT on theblockchain.
Recently, the definition of “property” has been amended in the Penal Code 1871 toexpressly include virtual currency. 36 It is perhaps not too far in the distant future that theprosecution and law enforcement agencies must tussle with the various legal issues that
accompany these virtual assets.
Indeed, the Financial Action Task Force (FATF) has stated in a recent update thatdifferences in NFT definitions and functions across jurisdictions can present challenges indetermining how to apply anti-money-laundering and counter-terrorism financing (AML/CFT)in practice. 37 Agencies must thus closely monitor this issue and implement any changes
through new or amended legislation, if necessary.
IV. CONCLUSION
Modern corruption often takes shape in different forms. Corrupt offenders and syndicatesare evolving and adapting their modus operandi to evade detection. Singapore’s experience isthat it is necessary for enforcement and regulatory authorities to continually upskill theirofficers to be familiar with evolving modes of criminality. The fact that more youth arebecoming emboldened to conduct illicit activities must also be addressed in an early andincisive manner. In that regard, agencies have expanded their pool of strategic partners toleverage their networks and expertise to strengthen prevention and outreach initiatives.
Singapore remains resolutely committed to the ongoing fight against corruption.

36
37

Section 22 of the Penal Code 1871.
Financial Action Task Force, Targeted Update on Implementation of the FATF Standards on Virtual Assets
and Virtual Asset Service Providers, June 2022 at page 20.

139 --- 139

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE- 140 - 140 -THAILAND

PROBLEMS AND OBSTACLES OF INTERNATIONAL
COOPERATION IN CASES INVOLVING NEW FORMS OF
CORRUPTION
Yongyoot Srisattayachon *I. INTRODUCTION
Currently, the problem of corruption is regarded as a major problem that occurs incountries around the world, whether it is developed countries or underdeveloped countries.
Corruption has become one of the most important problems in many countries. By thisproblem, there is no sign that it will go away. It’s also getting more intense and complicated.
Even though many countries have stepped into modernization, there is a modern public
administration system. There are campaigns from state or independent organizations such as
the United Nations, World Bank and the people's sector that all agree that corruption is aproblem that leads to poverty and is a real barrier to development. The case becomes more
complex because it touches upon the components of international character or involves thematters of a state’s jurisdiction. Nowadays, a new form of corruption is a crime that has beencommitted in one country and the criminal has transferred money from the proceeds of thecrime into overseas bank accounts, and there are numerous practical and political factors that
can impede cooperation. Also, if the investigation or prosecution is carried out in one country
but the essential evidence or witnesses exist in another country, how we can obtain such
evidence or statements of such witnesses? There still exist many problems, the difficulties ofwhich are beyond the capacity of a single state to deal with, especially under the current
situation. Every state must internationally cooperate with each other in prevention andsuppression. Assistance and coordination between states to combat the crime can take many
forms and is collectively known as “international cooperation.” In this report, I will address
the facts of a corruption case based on a true story, mutual legal assistance in criminal matters,
problems and obstacles of international cooperation along with solutions.
II. FORMS OF CORRUPTION IN THAILAND
For Thailand, it is widely known that the problem of corruption is one of the top problems
that greatly affects the development of the country. Corruption in Thailand can be roughly
divided into three eras as follows:
During the first era (before 1980), the form of corruption was an ancient form of budget
fraud, which was to approve budgets for personal gain and opening up opportunities forbusinesses to become more involved in politics.
During the second era (between 1981-1990), the beginning of the era was not as corrupt
as other eras. The reason is probably due to the fact that the economy was not doing well.
There was not much money injected from the government to invest in large projects.
However, after the economic expansion began and political parties became more active, many
Executive Director, Executive Director’s Office of International Affairs (Division 3), International Affairs
Department, Office of the Attorney General, Thailand.

*

141 --- 141

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

large projects were invested in by the government. There was so much corruption that the
government of that era was called the "Buffet Cabinet".
During the third era (between 1991-2022), the form of corruption in this period was highly
concentrated on procurement. The abuse of power by politicians has led to the transition from"project corruption" to "systematic corruption" as well as severe "political corruption". The
structural problem of this era is strong cooperation between politicians and bureaucrats withbusinessmen behind them. Although corruption has decreased somewhat, it is ready to rise in
the next period owing to the fact that the political structure is heavily dependent on finances.
It has given rise to the idea in society that money can buy everything, and money can deal
with the crackdown by anti-corruption agencies. 1
Corruption in the aforementioned forms, money or assets mostly obtained from corruption
will remain in Thailand. Nowadays, new forms of corruption, especially receiving large
bribes, are often transferred to overseas bank accounts or traded in real estate in the names ofother people abroad.
III. MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
Thailand adopted the Act on Mutual Assistance in Criminal Matters B.E. 2535 in 1992.
This Act is the main legislation to be applied to all processes of providing and seeking
assistance upon receiving requests from foreign states or Thai agencies; however, if it isinconsistent with the terms or provisions used by the treaties concluded between Thailand andsuch foreign countries, the treaty shall prevail. Assistance in Thailand may be granted even ifno treaty exists between Thailand and the requesting State, provided that such state commits
to assist Thailand in a reciprocal manner when requested.
A. Agencies and Organizations Responsible for These Matters
In ordinary dealing, the request for assistance shall be submitted through diplomaticchannels. However, if a mutual assistance treaty between Thailand and the requesting State isin force, commitments of reciprocity and submission through diplomatic channels will be
waived. The request for assistance in such a case as well as other communications shall bemade directly to the Attorney General, who is the Central Authority of mutual legal assistanceas prescribed by the law.
B. Conditions and Requirements to Request MLA
1. Forms of AssistanceIn Thailand, forms of assistance are basically understood to include certain forms of theprocesses of criminal case handling, as well as other indefinite conduct under the scope of the
stipulated indefinite description. According to section 4 of the Act on Mutual Assistance in
Criminal Matters B.E. 2535, “assistance” means assistance regarding investigation, inquiry,prosecution, forfeiture of property, and other proceedings relating to criminal matters.
Categorization of the forms of assistance can be further enlightened by the provision ofSection 12 of the same Act to cover the following:(a) Taking statements of persons, providing documents, articles and evidence out of Court,
serving documents, searches, seizure of documents or articles, locating persons;
Pasuk Phongpaichit, Sangsit Piriyarangsan, Nualnoi Treerat, Research on Corruption and Thai Democracy
Outlaw Economy and Public Policy in the Thai Bureaucracy, Center for the Study of Political Economy, Facultyof Economics, Chulalongkorn University.

1- 142 - 142 -THAILAND(b) Taking the testimony of persons and witnesses or adducing documents and evidence
in court, and requesting forfeiture or seizure of property;(c) Transferring persons in custody for testimonial purposes;(d) Initiating criminal proceedings.
It is quite clear from the above provision that the term “other proceeding”, stipulated in
Section 4, is capable of accompanying other forms of assistance in the treaties with othercountries.
2. Authorities and Officials
In Thailand, according, to the Act on Mutual Assistance in Criminal Matters B.E. 2535 as
well as treaties concluded with various countries, the “Central Authority” is the “Attorney
General or, the person designated by him.” The Central Authority is the official who takes themost predominant role in requesting assistance. Apart from the general function as thecoordinator to receive the request for assistance from the requesting State and transmitting itto the Competent Authorities concerned, as well as to receive the request seeking assistancepresented by the agency of Thai Government and deliver it to the requested State, anotherequal or more significant task entrusted to the Central Authority is to determine the legality
and eligibility of all requests and processes. In this context the Central Authority is also
authorized to interpret the rule or announcement for the implementation of the whole process.
Determination of the Central Authority in all matters regarding the grading and seeking ofassistance will be final except in two situations: firstly, if it is overruled by the Prime Minister,and secondly, if a request relates to the issues of national sovereignty or security, crucial public
interest, international relations, political offences or military offences, and where the Advisory
Board has a dissenting view and the Prime Minister agrees with such dissenting view. 2
3. Competent Authority
The Competent Authority includes those officials who actually carry out the function
conforming to the request for assistance as notified by the Central Authority. In Thailand, theCompetent Authority includes the following:(1) The Commissioner General of the Royal Thai Police, the Director General of the
Department of Special Investigation, the Secretary General of the Public Sector AntiCorruption Commission or the Secretary General of the National Anti-Corruption
Commission: to deal with the request for taking statements of persons, providing
documents or items of evidence which is an out of Court procedure, serving
documents, locating persons and freezing or seizure of documents or articles for the
purpose of gathering of evidence;(2) Public Prosecutor: to deal with the request for questioning of witnesses, documentary
evidence or physical evidence which is conducted in court; freezing or seizure ofproperty for the purpose of forfeiture of property or demand for payment in lieu of
forfeiture of property against any person; and a request for freezing, seizure or
forfeiture of property or demand for payment in lieu of forfeiture of property as per a
judgment or an order of courts in a foreign state;2

Poonpol Ngearndee, “MUTUAL LEGAL ASSISTANCE AND EXTRADITION IN THAILAND” 148.

143 --- 143

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE(3) The Director General of the Correction Department: to deal with the request fortransfer or receipt of transfer of a person in custody to assist proceedings at the stage
concerning the authorities or at the trial stage;(4) Public Prosecutor, the Commissioner General of the Royal Thai Police, the Director
General of the Department of Special Investigation: to deal with the request for
initiating criminal proceedings. 3
4. Double Criminality
The principle of double criminality requires that the conduct underlying the assistancerequested must also be a criminal offence punishable under the law of the requested State,otherwise such request must be refused. This position in Thailand seems to be a compromise
between the concept of protecting the innocent’s rights and liberty by the principle of double
criminality on one hand, and the spirit of cooperation between and among states to support
and control crime on the other hand.
While the Act on MLA places the principle of “Double Criminality as a prerequisite for
granting assistance, there are many treaties concluded with foreign states such as the UnitedStates, Canada, the United Kingdom, of which the principle of double criminality is not
required.” On the contrary, all said treaties impose obligations on each Contracting Party toprovide assistance to the other Contracting Party even if the underlying conduct so requested
does not constitute a criminal offence in the requested State.
5. Refusal of Requests
In Thailand the grounds for refusal are stipulated both in the Act on MLA as well as
various treaties concluded with foreign states. Article 9 of the Act on MLA stipulates thatassistance to a foreign state shall be subject to the following conditions:(1) Assistance may be provided even if no mutual assistance treaty exists between
Thailand and the requesting State, provided that such State commits to assist Thailand
in a similar manner when requested;(2) The act on which the request is based must be an offence punishable under Thai laws
unless Thailand and the requesting State have a mutual assistance treaty between them,and the treaty specifies otherwise, provided, however, that assistance must be
conformed to the provisions of the Act;
(3) A request may be refused if it affects national sovereignty or security, or other crucial
public interest of Thailand, or is related to a political offence;(4) Assistance shall not be related to a military offence. As regards mutual legal assistancetreaties, the clause related to the refusal of a request is usually prescribed similarly, forexample, the requested State may refuse to execute a request to the extent that(a) the request would prejudice the sovereignty, security, or other essential public
interest to the requested State: or(b) the request is related to a political offence.

3

The Act on Mutual Assistance in Criminal Matters B.E. 2535 section12.

- 144 - 144 -THAILAND
IV. CASE STUDYAt the Federal Court in Los Angeles, on 11 September 2009, Mr. A and Mrs. B, American
entrepreneurs, were unanimously found guilty of violation of the Foreign Corrupt Practices Act,
money-laundering laws and taxation law of the United States in relation to bribe payments to
the Governor of Tourism Authority of Thailand (TAT).
The National Anti-Corruption Commission of Thailand (NACC) investigated anallegation against Mrs. C, former Governor of TAT, for receiving bribes in exchange for the
TAT contracts awarded to Mr. A and Mrs. B to run the Bangkok International Film Festival(BKKIFF) and other projects from 2003 to 2007. The investigation found that Mrs. C
committed the acts of corruption in the course of her duties and abused her position as she helped Mr.
A and Mrs. B to enter into several contracts with TAT including the organizing of the Bangkok
International Film Festival (BKKIFF) during the period from 2003 to 2007. In return for TAT
contracts and sub-contracts, Mr. A had paid bribes, both directly and indirectly, to Ms. D, thedaughter of Mrs. C, and accomplices. There is evidence that 59 payments were made in totalof USD 1,822,494.
Mr. A and Mrs. B operated eight companies – all of which had the same office address –and entered into contracts with the Tourism Authority of Thailand (TAT) and gave assets to
Mrs. C for the performance of duties or exercise of powers in the performance of such duties,
in connection with 11 projects in total. Ms. D, daughter of Mrs. C and Mr. E, who had beenacquainted with Mrs. C before becoming the holder of assets improperly acquired in lieu ofMrs. C. Regarding such payment of remuneration from companies owned by Mr. A and Mrs.
B to Mrs. C, there were three patterns thereof, i.e. 1) wire transfer; 2) cheques payable to cash;
and 3) cashier's cheques. Money had been transferred into the overseas bank accounts of Ms.
D and Mr. E. According to the evidence, it appeared that Ms. D, daughter of Mrs. C, was therecipient and occupier of such assets improperly acquired in lieu of Mrs. C. Details thereof
were as per the bank accounts, as follows:(1) money in a deposit account opened with HSBC Bank PLC, Coventry Branch, United
Kingdom; Account Name: Ms. D; Amount: USD 463,084;(2) money in a deposit account opened with HSBC International Limited, Isle of Jersey
Branch; Account Name: Ms. D; Amount: USD 366,434;(3) money in a deposit account opened with Standard Chartered Bank in Singapore;
Account Name: Ms. D; Amount: USD 327,300;(4) money in a deposit account opened with Citibank, Singapore; Account Name: Ms. D;
Amount: USD 572,456.79
The NACC concluded that such acts of Mrs. C constitute criminal offences, namely:
1. An official unlawfully soliciting, accepting or promising to accept any property or
benefit in exchange for the performance of, or refraining from, any official duty under

145 --- 145

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

section 6 of the Act on offence Committed by Officials of State Organizations or
Agencies, B.E. 2502 (1959) 4;
2. An official unlawfully performing or refraining to perform the official duty so as toimpair another, or dishonestly performing or refraining from performing the official
duty under section 11 of the Act on Offences Committed by Officials of State Organizations
or Agencies, B.E. 2502 (1959)5;
3. An official committing any act with aims to create unfair competition for pricing, toencourage any specific proposer or bidder with privilege or advantage for establishmentof a contract with relevant government agencies under section 12 of the Act on Offenceson Bidding towards the Government Agencies, B.E. 2542. 6
In addition, it reached the conclusion that Ms. D’s conduct is considered as supporting thefirst two offences.
On 25 August 2015, having considered the inquiry report submitted by the NACC, theAttorney General consequently prosecuted Mrs. C and Ms. D, the first and second defendants,
respectively, for the above-mentioned offences to the Central Criminal Court for Corruption
and Misconduct Cases in a criminal corruption case.
On 23 March 2017, in addition to the above-mentioned criminal corruption case, the NACC
reached a resolution, that Mrs. C, the Alleged Person, while assuming the office of TAT
Governor, had unusual wealth 7 and received assets which were unreasonably acquired
resulting from the performance of duties or exercise of powers in the performance of duties
relating to the purchasing and procurement of the private enterprises to become a party tocontracts with the Tourism Authority of Thailand (TAT) and Thailand Privilege Card Co., Ltd.,in connection with the Bangkok International Film Festival (BKKIFF) and other projects
during 2003-2007, In total, the 11 projects amounted to 1,822,494 USD (approximately
65,609,784 Baht), which was the amount of money that Mrs. C, the Alleged Person, hadreceived from Mr. A and Mrs. B directly or indirectly, a total of 59 times. According to theevidence, it appeared that Ms. D, the daughter of Mrs. C, received and occupied assets
improperly acquired in lieu of Mrs. C. The matter was subsequently submitted to the AttorneyGeneral.
Section 6: “Any person who is an official and, either for his own sake or for the sake of a third person, unlawfully,
solicits, accepts or promises to accept in any property or benefit in exchange for the performance of or refrainfrom any act in his official capacity shall, whether such act is in breach of his official duty, be liable toimprisonment from five years to twenty years or for life and a fine from two thousand to forty thousand baht, orto death.”
5
Section 11: “Any person who is an official and unlawfully performs or refrains from his official duty so as toimpair another, or dishonestly performs or refrains from his official duty, shall be liable to imprisonment fromone year to ten years, or a fine from two thousand baht to twenty thousand baht or to both.”6
Section 12: “Any official of a State agency who commits an offence under this Act, or commits any act with the
purpose of preventing fair competition by favoring any bidder as the entitled to enter into a contract with a Stateagency, shall have committed the offence misfeasance in office and shall be liable to imprisonment for a termfrom five years to twenty years or Life imprisonment and a fine from one hundred thousand baht to four hundred
thousand baht.”
7
The Organic Act on Counter Corruption B.E. 2542 (1999), Section 4: "Unusual wealth" means having an
unusually large quantity of assets, having an unusual increase of assets, having an unusual decrease of liabilities
or having illegitimate acquisition of assets in a consequence of the performance of duties or the exercise of power
in office or in the course of duty.”
4- 146 - 146 -THAILAND

On 29 March 2017, the Central Criminal Court for Corruption and Misconduct cases ruledthat Mrs. C contravened section 6 and 11 of the Act on Offences Committed by Official ofState Organizations or Agencies, B.E. 2502 (1959), and section 12 of the Act on the Offences
Relating to the Submission of Bids to Government Agencies, B.E. 2542 (1999), whereas, Ms.
D, as a supporter, contravened sections 6 and 11 of the Act on Offences Committed by Officialsof State Organizations or Agencies, B.E. 2502 (1959) and section 86 of the Criminal Code.
Hence, the Court sentenced Mrs. C to 66 years’ imprisonment and Ms. D to 44 years’
imprisonment, respectively, as well as ordered the forfeiture of USD 1,822,494 in ill-gotten
gains.
On 19 July 2017, the Attorney-General filed a petition to the Central Criminal Court for
Corruption and Misconduct Cases to forfeit the amount of USD 1,822,494 in unusual wealthto the Thai State involving a civil claim in connection with an offence.
In the criminal corruption case, the defendants submitted their appeals on 17 October 2017.
On 8 February 2018, in the criminal corruption case, the Thai Central Authority submitted arequest for mutual legal assistance in criminal matters, requesting the Central Authorities ofSingapore, the United Kingdom, Ireland, Jersey and Switzerland to assist in the restraint ofassets kept in banks in Singapore, the United Kingdom, Ireland, Jersey and Switzerland.
The NACC, the Office of the Attorney-General of Thailand, and the United States
Department of Justice, specifically the Office of International Affairs, Fraud Section, and the
Money Laundering and Asset Recovery Section of the Criminal Division, have beencoordinating closely on related proceedings in the United States and Thailand since 2009,
resulting in successful criminal convictions of the individuals involved in both countries.
Thailand is of the understanding that the funds that we are requesting the authorities in
Singapore, the United Kingdom, Ireland, Jersey and Switzerland to restrain are the same funds
currently being restrained based on a prior US MLA request.
It should also be noted that the above-mentioned funds are among other direct proceeds ofcrime and must be restrained for further confiscation. Moreover, apart from these proceeds ofcrime, there are insufficient property and assets of the defendants elsewhere to satisfy the
Court's forfeiture order.
On 8 May 2019, the Appeal Court adjudicated that Mrs. C contravened section 6 of the Act
on Offences Committed by Officials of State Organizations or Agencies, B.E. 2502 (1959),
and section 12 of the Act on Offences Relating to the Submission of Bids to Government
Agencies, B.E. 2542 (1999). Whereas, Ms. D, as a supporter, contravened section 6 of the Act
on the Offences Committed by Officials of State Organizations or Agencies, B.E. 2502 (1959)
and section 86 of the Criminal Code. The Court sentenced Mrs. C to 66 years’ imprisonment
but decided to lower Ms. D’s jail term from 44 years to 40 years. The Court of Appeal, however,decided to overturn the lower court’s order to forfeit USD 1,822,494 on procedural grounds.
On 20 August 2020, the Supreme Court rendered a final judgment in line with the decisionof the Appeal Court by affirming the jail sentences and dismissing the Court of First Instance’sorder to forfeit USD 1,822,494 of ill-gotten gains on procedural grounds. The case is final. 8
Judgment of the Central Criminal Court for Corruption and Misconduct Cases (Black Case
No.Or.Tor.46/2559, Red Case No.Or.Tor.17/2560).

8147 --- 147

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

On 8 January 2021, the Thai Central Authority submitted a Request for Mutual Assistancein Criminal Matters based on the unusual wealth proceeding, requesting the Singapore to
restrain the relevant accounts in Singapore pending the outcome of such proceeding in a Thai
court.
On 29 January 2021, Singapore’s Central Authority informed the Thai Central Authoritythat pursuant to the request for Mutual Assistance in Criminal Matter restraint of assets (dated
8 January 2021) requesting the Central Authority of the Republic of Singapore to freeze assets
in the unusual wealth case, the Singapore Central Authority could not render assistance on thebasis of the unusual wealth proceeding as the dual criminality requirement is not met.
Therefore, on 18 June 2021, the Thai Central Authority submitted a Request for Mutual
Assistance in Criminal Matters based on money-laundering proceeding, requesting theSingapore authority to restrain dealing in property or freezing of property derived from thecommission of an offence and providing information and documents in the money-launderingcase of Mrs. C and Miss D.
On 31 August 2021, a Public Prosecutor filed a complaint requesting the Civil Court toorder that the assets connected with the commission of the offence of Mrs. C and associates,
i.e. a deposit in a bank account in an amount of USD 500,000, plus accrued interest, bedevolved on the state under Section 51 of the Anti-Money Laundering Act B.E. 2542 (1999).
On 29 October 2021, officers from the United States Department of Justice, the Office of
the Attorney General of Thailand, the Anti-Money Laundering Office of Thailand and the
National Anti-Corruption Commission of Thailand attended an online meeting and came to thefollowing conclusions:
1. The United States Central Authority explained that an offence committed by the
defendant before 2006 may be partially terminated, not all money can be forfeited, but
only a small part of the money can be forfeited which the law of the United Statesallows for negotiations by allowing the accused to transfer the money back to avoid
prosecution, but Thai law has no law to do so.
2. Requesting the distribution of money obtained from the forfeiture of Mrs. C and Miss
D in various countries, the United States Central Authority explained that theproceedings in Thailand and the United States are separate, and separate proceedings
may result in the inability to divide the confiscated property.
3. Global settlement means agreement to settle all cases involving Mrs. C and Miss D’s
assets located both in Thailand and abroad. In terms of the United States, that means acivil forfeiture case and in terms of Thailand, it means an unusual wealth case and civil
confiscation cases for money-laundering.
4. The global settlement agreement will have three parties: 1. The United States
Department of Justice. 2. An authorized agency of Thailand. 3. Mrs. C and Miss D.
5. In the event that the parties agree to enter into a global settlement agreement, Mrs. C
and Miss D can inform the bank to transfer the money back to Thailand directly without
the United States forfeiture judgment as agreed in the global settlement agreement. But- 148 - 148 -THAILAND
if there is no global settlement agreement, the United States may continue civil
forfeiture proceedings. Once the verdict has been given to forfeit the property andassets, the money will be returned to the United States, and then other competent
officials will consider returning the money to or sharing it with Thailand.
The United States Department of Justice has asked Thai authorities to provide information
on which agency has the power to withdraw lawsuits against unusual wealth cases and civil
confiscation cases for money-laundering. In addition, the United States has asked Thaiauthorities to estimate the value of the money they want to receive back from Mrs. C and Miss
D, which may be a value range, so that the United States can compare it with the proposal of
Mrs. C and Miss D.
Finally, the Thai Central Authority informed the United States Department of Justice thatthe domestic laws of Thailand do not allow Thai authorities to enter into a global settlementagreement.
On 17 January 2022, the Civil Court ordered that the money in an amount of USD 500,000
in UOB Bullion & Futures Ltd. account, account No…., account name (previously known as
account No…., account name Miss D and account No…., account name….. ) in the Republicof Singapore of Miss D, plus accrued interest, listed in document No… of the assets listed
submitted to the public prosecutor to file a complaint to the court requesting that the assets bedevolved on the state in accordance with Section 51 Paragraph One of the Anti-Money
Laundering Act B.E. 2542 (1999). 9On 16 March 2022, the Thai Central Authority submitted a Request for Mutual Assistancein a Criminal Matter Informing of Supreme Court’s Judgement and restraint of assets based on
the unusual wealth proceeding, requesting the authorities of the United Kingdom, Ireland andJersey to restrain the assets kept in banks in their respective jurisdictions, pending the outcomeof such proceeding in Thai court.
On 25 April 2022, the Central Criminal Court for Corruption and Misconduct Cases
adjudicated that (1) the money in a deposit account opened with HSBC Bank PLC, Coventry
Branch, United Kingdom; Account Name: Ms. D; Amount: USD 463,084; (2) Money in adeposit account opened with HSBC International Limited, Isle of Jersey Branch; AccountName: Ms. D; Amount: USD 366,434; (3) Money in a deposit account opened with Standard
Chartered Bank in Singapore; Account Name: Ms. D; Amount: USD 327,300; and (4) Moneyin a deposit account opened with Citibank, Singapore; Account Name: Ms. D; Amount: USD
572,456.79 and other assets of the alleged Person – in total, USD 1,822,494 (equivalent toapproximately 65,609,784 Baht) – together with accrued interest, shall be vested in the State.
If no legal execution could be made against the whole or part of such assets of the Alleged
Person, then, it shall be made against other assets of the Alleged Person but not exceeding thevalue of such assets. In case the Alleged Person shall settle payment thereof in Thai Baht orThai Baht shall be applicable to other assets of the Alleged Person, it shall be calculated withthe average rate thereof of a commercial bank at the place and time of spending of money. If
there was no exchange rate thereof on such date, the last date that such exchange rate wasapplied before the date of spending of money shall be considered. Other applicants shall bedismissed. 10
Judgment of the Civil Court (Black Case No.For.120/2564, Red Case No.For.92/2564)
Judgment of the Central Criminal Court for Corruption and Misconduct Cases (Black Case No.Or.Ror.3/2560,
Red Case No.Or.Ror.1/2560)

910149 --- 149

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Although the account in Ireland was not specifically mentioned in the Unusual WealthJudgment dated 25 April 2022 (because it did not directly receive the bribe payments from Mr.
A and Mrs. B), it appears from the investigation, as explained above, that, after the bribe money
was transferred from the Mr. A and Mrs. B to Ms. D in the HSBC Coventry UK Account, Ms.
D subsequently transferred an amount of GBP 200,000 from the HSBC Coventry UK accountto HSBC Life (Europe) in Ireland held in the name of Ms. D. (Currently, the funds, in theapproximate sum of €250,000 are held in a bank account under the control of the Criminal
Assets Bureau Receiver).
Since Ms. D was convicted by the Thai Supreme Court in the criminal corruption case as asupporter of the crimes committed by Mrs. C and the Central Criminal Court for Corruption
and Misconduct Cases in the unusual wealth case has also adjudicated that the assets in theamount of USD 1,822,494 were improperly acquired and received and controlled by Ms. D inlieu of the Alleged Person (Mrs. C), it is, therefore, believed that the funds in the abovementioned account in Ireland are also illegitimately acquired and held by Ms. D on behalf of
Mrs. C.
In this connection, the funds in Ireland are deemed to be the illegal assets involved with thebribery scheme committed by Mr. A and Mrs. B and Mrs. C and Ms. D and are also considered
to be "other assets" of the Alleged Person (Mrs. C) in the unusual wealth case, which could beexecuted according to the judgment in the unusual wealth case dated 25 April 2022. Therefore,such assets shall be vested in the Thai State.
On 12 July 2022, the Thai Central Authority submitted an MLA request to the authoritiesof the United Kingdom, Ireland and Jersey, informing them of the judgment and confiscation
order in the unusual wealth case against Mrs. C, requesting those authorities to confiscate assets
and return them to Thailand in order to fulfil the judgment.
The unusual wealth case is not yet final because the attorney general has appealed thejudgment of the Court of First Instance on the grounds that the court has not ordered theforfeiture of interest according to the prosecutor’s request.
V. PROBLEMS OF AND OBSTACLES TO INTERNATIONAL COOPERATION
After the Attorney General, the Central Authority of Thailand, submitted the request to theCentral Authorities of Singapore, the United Kingdom, Ireland, Jersey and Switzerland to assist
in restraining of dealings in property or the freezing of property derived from the commission of an
offence that may be recovered, forfeited or confiscated, there have been problems and obstacles
related to international cooperation. For easy understanding, in this report, I would like toaddress these problems and obstacles separately by country, as follows:
A. Singapore
On 29 January 2021, Singapore’s Central Authority informed the Thai Central Authorityof its decision, as follows:
1. Pursuant to the request for Mutual Assistance in Criminal Matters (dated 8 January2021) requesting the Central Authority of the Republic of Singapore to freeze assets inthe unusual wealth case, the Singapore Central Authority cannot render assistance on
the basis of unusual wealth proceedings as the dual criminality requirement is not met.

- 150 - 150 -THAILAND
2. In the event that the Central Authority of Thailand will submit a new request for mutual
assistance in criminal matters in the cases of Mrs. C and Ms. D, they must be prosecutedfor money-laundering offences in both criminal and civil cases relating to moneylaundering offences at the same time, if the Thai authority prosecuted for moneylaundering and the Singapore court orders the UOB account was frozen for that reason.
The order to freeze the account will be for a period of three months from the date of thecourt's decision order. The Singapore Central Authority requires a confirmation letterfrom the Kingdom of Thailand that the proceedings have commenced in the Thai courts
within a period of three months.
B. The United Kingdom
The Central Authority of the United Kingdom informed the Central Authority of Thailandthat assets are kept in HSBC Bank PLC, Coventry Branch, United Kingdom; Account Name:
Ms. D; Account No……….; Amount: USD 463,084 are already subject to a freezing ordermade on behalf of the US authorities. Therefore, the Crown Prosecution Service are unable totake any further action on the request to freeze given that the assets are already subject to an
existing court order. It is noted that under the United Kingdom system, cases for asset recovery
founded completely on an offence of unexplained wealth are very difficult to execute. This isbecause the United Kingdom has no equivalent criminal offence to an unexplained wealthoffence.
C. Ireland
On 8 April 2012, the Central Authority of Ireland informed the Central Authority ofThailand that:
1. Request For Mutual Assistance in Criminal Matter Informing of Supreme Court’s
Judgement and restraint of assets based on the unusual wealth case dated 16 March2022 must be considered under the United Nations Convention Against Corruption(UNCAC), which both Ireland and the Kingdom of Thailand have ratified, with therequest of the Kingdom of Thailand not referring to the Convention and when therequest for assistance made under the UNCAC can be sent directly to the requesting
country. It was transferred under the Proceeds of Crime Act 2006 in 2015 from an
HSBC bank account to an account controlled by the Criminal Assets Bureau,
International Affairs Department.
2. For a request to share the forfeited money in the case between the Republic of Ireland,
the United States of America and the Kingdom of Thailand. The Central Authority of
Ireland informed that in accordance with the relevant laws of the Republic of Ireland,
the sharing of property forfeited in lawsuits can only be made in the member states of
the European Union, other countries which are not a member of the European Union
such as the Kingdom of Thailand or the United States cannot ask for sharing theforfeited money.
D. Jersey
The Central Authority of the Bailiwick of Jersey informed the Central Authority ofThailand that
1. The amount of around £249,000 of Miss D’s assets were requested to be restrained by
the US authorities in April 2008, but the said money is no longer in HSBC International

151 --- 151

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Limited bank, account number……. The funds have been moved to preserve them onbehalf of the Jersey authorities.
2. As a result of the Supreme Court’s final judgment in line with the decision of the Appeal
Court by affirming the jail sentences and dismissing the Court of First Instance's orderto forfeit USD 1,822,494 of ill-gotten gains in the criminal corruption case, the assets
cannot be seized by the Jersey authorities. Therefore, the Kingdom of Thailand must
confirm that the Request for Mutual Assistance in Criminal Matters in the case of Mrs.
C and Miss D has been withdrawn because the request for restraint of assets is related
to criminal proceedings which are not related to a request for restraint of assets in an
unusual wealth case.
3. Jersey laws contain provisions relating to civil forfeiture. When considering Jersey
Laws relating to a request for freezing assets according to the Civil Asset Recovery(International Co-operation) (Jersey) Law 2007 Article 6(5), it is their opinion that in
the case of unusual wealth cases which are currently in the process of Court proceedingsin Thailand, another request for restraining of assets must be submitted to allow the
Jersey authorities to freeze the money of Mrs. C and Miss D.
4. In the event that the Central Authority of Thailand has submitted a request for Mutual
Assistance in restraining of assets and if the Thai court enters a judgment in the unusual
wealth case, the Thai Central Authority can submit another Request for Mutual
Assistance to the Jersey authorities asking for asset sharing. The money will betransferred to the Jersey Government funds and the attached funds will be shared with
the Jersey Government.
E. Switzerland
The Central Authority of Switzerland informed the Central Authority of Thailand that theRequest for Mutual Assistance in Criminal Matters based on the criminal corruption case dated
8 February 2018 must be made in French, German or Italian.
Currently, the Thai Central Authority has not been notified by the five above-mentioned
Central Authorities whether the requested assets have been restrained because the unusual
wealth cases of Mrs. C and Miss D in Thailand are not yet final.
VI. CONCLUSION AND SOLUTIONS
Although the Thai Central Authority has sent the Request for Mutual Legal Assistance in
Criminal Matters (international cooperation) to the five above-mentioned central authorities,
we have encountered problems and obstacles. These problems and obstacles are summarized
below, and solutions are offered.
A. Dual Criminality
Singapore’s Central Authority informed the Thai Central Authority that Singapore cannot
render assistance on the basis of unusual wealth proceedings as the dual criminality
requirement is not met.
The United Kingdom Central Authority informed the Thai Central Authority that, under
the system of the United Kingdom, cases for asset recovery founded completely on an offence- 152 - 152 -THAILAND
of unexplained wealth are very difficult to execute. This is because the United Kingdom has
no equivalent criminal offence to an unexplained wealth offence.
1. Solution
According to the United Nations Convention against Corruption:
Article 1
Statement of purpose
The purposes of this Convention are:(a) To promote and strengthen measures to prevent and combat corruption more
efficiently and effectively;(b) To promote, facilitate and support international cooperation and technicalassistance in the prevention of and fight against corruption, including in asset
recovery;(c) To promote integrity, accountability and proper management of public affairs andpublic property.
Article 46
Mutual legal assistance
1. States Parties shall afford one another the widest measure of mutual legal assistancein investigations, prosecutions and judicial proceedings in relation to the offences
covered by this Convention.
2……………………………………………………………
9. (a) A requested State Party, in responding to a request for assistance pursuant tothis article in the absence of dual criminality, shall take into account the purposes ofthis Convention, as set forth in article 1;(b) States Parties may decline to render assistance pursuant to this article on the
ground of absence of dual criminality. However, a requested State Party shall, whereconsistent with the basic concepts of its legal system, render assistance that does not
involve coercive action. Such assistance may be refused when requests involve mattersof a de minimis nature or matters for which the cooperation or assistance sought isavailable under other provisions of this Convention.
(c) Each State Party may consider adopting such measures as may be necessary toenable it to provide a wider scope of assistance pursuant to this article in the absenceof dual criminality.
2. Suggestion
Therefore, a requested State shall take into account the purposes of this Convention bycomplying with article 1 and 46.
B. Language to Be Used in Requests for Mutual Legal Assistance
Swiss Central Authority informed Thai Central Authority that the Request for Mutual Legal
Assistance in Criminal Matters must be made in the French language, German language or
Italian language (English language is not applicable).
1. Solution
According to the United Nations Convention against Corruption:

153 --- 153

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Article 46
Mutual legal assistance
14. Requests shall be made in writing or, where possible, by any means capable ofproducing a written record, in a language acceptable to the requested State Party,
underconditions
allowing
that
State
Party
to
establish
authenticity…………………………..
2. Suggestion
The English language is the main language for communicating all over the world.
Therefore, this convention should provide that English language can be applied to a request formutual legal assistance.
C. Priority of Filing a Request for Mutual Legal Assistance
The United Kingdom’s Central Authority informed the Thai Central Authority that theUnited Kingdom Central Authority are unable to take any further action on the request to freeze
given that the assets are already subject to an existing court order because the US has filed an
MLA request before Thailand
1. Solution
According to the United Nations Convention against Corruption:
Article 59. (Bilateral and multilateral agreements and arrangements)
States Parties shall consider concluding bilateral or multilateral agreements or
arrangements to enhance the effectiveness of international cooperation undertaken
pursuant to this chapter of the Convention.
In this case, Mrs. C and Miss D's actions were against the law of the United States andThailand, but the United States filed a request for mutual legal assistance first. As a result,
Thailand is unable to file a request. The laws of both countries stipulate that each country has
the right to file a request for returning of property acquired through an offence.
2. Suggestion
Both parties should agree to a contract to share the property by conducting bilateral or
multilateral agreements, or the United Nations Convention against Corruption should prescribe
rules for asset sharing.
D. Global Settlement
The US Central Authority proposed the Thai Central Authority enter into a global
settlement, which was allowed by US Law, but the domestic laws of Thailand do not allow theThai authority to enter into a global settlement agreement.
1. Solution
Thai domestic law should prescribe rules to permit the Thai Central Authority to enter into
a global settlement.
E. Asset Sharing
If the Thai court has a judgment in the unusual wealth case, the Thai Central Authority can
submit another Request for Mutual Assistance to the Jersey authorities asking for asset sharing.

- 154 - 154 -THAILAND
In accordance with the relevant laws of the Republic of Ireland, the sharing of property forfeitedin lawsuits can only be made in the member states of the European Union, and other countries
which are not members of the European Union, such as the Kingdom of Thailand or the UnitedStates, cannot ask to share the forfeited money.
1. Solution
In the United Nations Convention against Corruption should prescribe rules for asset
sharing.

155 --- 155

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE- 156 - 156 -THAILANDTHAILAND’S CURRENT CHALLENGE: POLICY CORRUPTION
Panyakorn Amonpapyapakomol *Thailand has suffered from corruption for such a long time. In the past, corruption has beenendemic among state officers. However, Thailand has experienced a significant change in theform of corruption in recent decades. As of now, it is evident that Thailand is suffering froma new form of corruption which has proliferated not only among state officers but politicians,bureaucrats, as well as those from the business sector.
This article will discuss the current forms of corruption that took place through policy andwill present some case studies on the issue. Additionally, it proposes anti-corruption efforts led
by some inspection agencies designed to enhance measures and mechanisms to prevent policy
corruption.
I. CURRENT FORM OF CORRUPTION: LEGITIMACY AND COMPLEXITY
In the past, corruption in Thailand was profoundly witnessed among state officers at alllevels, mostly centred among low-ranking state officers. 1 Bribery and embezzlement werecommon forms of corruption. State officers sought illicit gains by looking for loopholes in theirwork process. Therefore, corruption was not complicated and only a limited number of people
were concerned. Simply put, corruption in the past was an illegal act of those who seek benefits
on the existence of policy and law. There were no attempts to legalize the act by creating oraltering policy or law. 2
In this day and age, corruption in Thailand has become more complex as well as broader
than bribery and asset misappropriation. Those who engage in this recent form of corruption
are no longer confined to embezzlers and bribe takers. They include politicians, seniorbureaucrats, cabinet ministers, and some businessman and multi-national corporations.
Academics have defined the current form of corruption that took place through policy as“Policy Corruption 3.”
The National Anti-Corruption Commission identifies that policy corruption often has thefollowing characteristics 4:

Corruption Prevention Officer, Professional Level, Proactive Measures and Innovation, National AntiCorruption Commission, Thailand.
1
BertesmannStiftung, (2020) BTI 2022 Country Report: Thailand. Available at https://btiproject.org/fileadmin/api/content/en/downloads/reports/country_report_2022_THA.pdf. Accessed 15 October
2022.
2
Sangrungruang, Y. (1983) The suitable model of the office of the commission of counter corruption in Thailand,
Chulalongkorn University, Bangkok.
3
Rathamarit, U. (2016) Policy Corruption Project: Legal Measures to Control and Prevent Policy Corruption in
Thailand, The Thailand Research Fund (TRF), Bangkok.
4
The National Anti-Corruption Commission, What’s Policy Corruption?, Available at
http://baanbangmoung.go.th/public/list_upload/backend/list_2281/files_default_7589_1.pdf. Accessed 15
October 2022.
*

157 --- 157

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE(1) Government agencies, cabinet ministers or politicians determine any particular policies
or projects with a claim of national interests or the people’s well-being.
(2) Policy corruption is generated by amending the law, enacting new law, changing policy
or creating new policy to legalize certain policies or projects. For this reason, the public
will recognize the policy or project as being legal.
(3) New policy or project implementation contributes to unreasonable benefits to anindividual, a group of people, friends or relatives of the policymakers whether in theform of money, property or any benefits.
By doing so, the political sector raises certain social issues for the public’s considerationand pushes these issues as a part of an urgent agenda, even when those social issues are not thereal problem of society. The study found that an essential prerequisite for policy corruption islegitimacy building. Therefore, policy corruption is concerned with the use of political power
or political conditions with the mechanism of both legislative power and executive power tomake certain policies or projects possible. Finally, these policies or projects benefit a certain
limited group of people.
This essay will discuss the first example of policy corruption in Thailand: the cancellationof the price ceiling price on medicine. The case has been recognized as the first case ofcorruption for which a former politician was convicted and served a jail term for corruption.
Another case that this essay will elaborate is the rice pledging scheme, which is the most recent
mega-scandal in Thailand. The two cases obviously show how corruption works throughpolicymaking.
II. THE MEDICINE AND MEDICAL SUPPLIES PRICE SCANDAL: THE
DISCONTINUATION OF THE CENTRAL PRICING SYSTEM
Since 1988, the Ministry of Public Health announced the central price of medicine andother medical supplies aimed at controlling the prices at a reasonable level. Thus, hospitals
nationwide could purchase medicine and medical supplies at the median price. There is no needto pay more for medicine than the price ceiling.
The central pricing system, through which the prices were announced and controlled by theministry, came to an end during the administration of the new minister who held a political
position. In 1997, he issued an announcement of the Ministry dated 15 December 1997 tocancel the price ceilings for medicine. To legitimate the act, the Ministry claimed that thiswould lead to price competition according to market mechanisms. Therefore, the community
as a whole will benefit from the dropping medical price. Also, the minister claimed that due tothe economic situation and an increase of the value added tax (VAT) from 7 to 10 per centaffected the prices of medicine and medical supplies. As a result, the central pricing system
must be discontinued. The cancellation of the central pricing system provided channels forpeople to seek benefits. 5

Roengtam, S. (2007) Understanding Corruption through Policy: Case Study of the Corruption in Medicine andMedical Supplies of Ministry of Public Health, 1998, JOURNAL OF POPULATION AND SOCIAL STUDIES
Volume 15 Number 2 January 2007.

5- 158 - 158 -THAILAND
Simultaneously, in 1998, the Cabinet approved the proposal of the Budget Office to allocate
additional budget to the Ministry of Public Health in the amount of 1.4 billion baht. The
Ministry of Public Health then allocated it to provincial and community hospitals.
Without the central pricing system, each hospital is authorized to make procurement freely
through negotiated prices. As a result, the drug companies sell drugs and medical supplies tohospitals more expensive than usual by 300-600 percent. Concerning the procurement, theinvestigation identified that some politicians and civil servants of the Ministry of Public Healthintervened by various methods from asking, persuading, forcing, negotiating, or recommending
provincial and community hospitals to order medicine, medical supplies, tools and evenunnecessary materials from certain drug companies. 6
If hospitals denied making procurement with the drug company directly, there is analternative method for making purchases from the Government Pharmaceutical Organization(GPO). The GPO, which has capability to manufacture some medicines, preferred purchasing
them from drug companies listed by high-ranking politicians and state officers, at very highprices. Also, during the same period, the GPO has charged hospitals various prices for the same
medicines. This contributed to the same result as the public health agencies having purchased
medicine and supplies at an unreasonable price, higher than the market price. 7
From the investigation led by an inspection agency, the Public Health Minister’s advisor
received a 5 million-baht bribe from the deputy managing director of a specific drug company
in exchange for the cancellation of the price ceiling and being proposed as a medicine trade
partner.
In this case, an inspection was triggered after reports by those who work in the ministrythat there was massive corruption in the purchasing of medicine and supplies causing a lot of
financial damage. Firstly, an internal investigation committee of the ministry was appointed.
After that, the Public Health Commission led by the House of Representatives and the National
Anti-Corruption Commission conducted the investigation. There was reliable and sufficientevidence that the procurement of medicines and medical supplies were by far more expensive
than they should have been in 34 provinces nationwide. The fraudulent behaviour involved
administrators of the ministry who abused their power and position to seek benefits, relevant
officials who failed to perform duties required by the law and the pharmaceutical company thatoffered a bribe and sought benefits from the cancellation of the price ceiling. The offenders
were punished with disciplinary and criminal actions. 8
Considering the case, the discontinuation of the central pricing system scandal is the firstcase in Thailand which triggers recognition among the Thai people concerning the adverse
effects of policy corruption. A group of people with political power could exercise power toextort policy to facilitate the business sector, the pharmaceutical companies, with the supportof the executive mechanism led by high-ranking civil servants. However, it is also a renowned

Tangkitvanich, S. (2014) Corruption Menu And Benefit Seeking, Thailand Development Research Institute,Bangkok
7
Roengtam, S. (2007) Understanding Corruption through Policy: Case Study of the Corruption in Medicine andMedical Supplies of Ministry of Public Health, 1998, JOURNAL OF POPULATION AND SOCIAL STUDIES
Volume 15 Number 2 January 2007
8
Ibid.
6

159 --- 159

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

case since the investigation of inspection agencies led to the successful prosecution of theoffenders. 9
III. THE RICE PLEDGING SCHEME: A SYSTEMIC COUNTERFIETThe rice pledging scheme is a project initiated by the government in 2011. The government
at the time promoted the legitimacy of the policy by claiming that 1) It would support the priceof rice in the market that would finally lift the well-being of farmers; 2) It could promote thecountry’s economic growth with the expansion of domestic consumption when farmers havebetter income; 3) The scheme would result in a higher price of rice compared to the market
price. The Pheu Thai party proposed the policy during the national election campaign. Whenthe party won the election, the rice pledging scheme was implemented in 2011. 10 The scheme
was a so-called populist policy since it was formulated to maintain the party’s popularity tosatisfy people who cast a vote for the Pheu Thai party.
However, before launching the scheme, many scholars as well as the National AntiCorruption Commission raised concerns that the policy is prone to corruption and could leadto massive devastation due to its size in terms of the amount of budget, the number of people
involved and the area or operation. 11 As a result, they urged for a reconsideration andtermination of the policy. Turning a blind eye and a deaf ear to warnings, the government
initiated the project.
In operation, to begin with, farmers were required to register with the Agricultural Officein their district. They have to provide information regarding the amount of rice planted (by landarea) so that the government could predict the amount of the yield. Meanwhile, the local mill
had to apply to the State and the State will select which mill to participate in the programme.
After the harvest, farmers bring the harvested rice to the registered mill. The mill will record
quantity and quality in terms of moisture, purity and weight. At this stage, a warrant certificate
was issued to farmers. This document made them eligible receive money from the Bank for
Agriculture and Agricultural Cooperatives.
The mill, then, started threshing harvested rice crop into rice before delivering them to thecentral warehouse established in each area. The central warehouse was also required to registerand be selected by the State.
The final procedure was to distribute rice through various methods including exporting
through Government to Government (G2G) deals, packing for domestic sales at cheap price toreduce the people’s cost of living. Also, the government donated some of them to those affectedby natural disasters both in the country and abroad. 12
The corrupt behaviour has been identified in each stage of the rice pledging scheme
operation. Firstly, some farmers provided false information regarding the amount of plantedarea that turned out to be too excessive. The excessive amount of planted area would makeRathamarit, U. (2016) Policy Corruption Project: Legal Measures to Control and Prevent Policy Corruption in
Thailand, The Thailand Research Fund (TRF), Bangkok.
10
Ibid.
11
Mahakun, V. (2018) Lesson learned in fighting corruption in the rice-pledging scheme, ANTI CORRUPTION FOUNDATION, Bangkok.
12
Dechgitvigrom, W. (2014) An epic of Cheating: Rice, Lips Publishing, Bangkok.
9- 160 - 160 -THAILAND
them eligible to bring more harvested rice to join the programme. Some farmers or the millfraudulently imported rice from neighbouring countries at cheaper prices to sell them in the
programme at higher prices so that they could gain the surplus. 13 For instance, the pledge priceof jasmine rice (moisture content not exceeding 15.00 per cent) was 15,000-20,000 baht/ton,while the market price was 8,000-9,000 baht/ton.
Next, it was found that some unqualified mills and the central warehouses offered bribes tothe state offices in exchange for being selected by the State to join the programme. The mills
played a key role in the corruption process. They distorted the moisture, purity and weight of
the rice. Consequently, the amount of money that farmers participating in the project received
was less than it should be. The mill distorted the overall weight so that they could bring morerice into the programme. The investigation also found that some mills brought the harvested
rice (with higher quality) received from the farmers and sold them itself. The mills then takeharvested rice from other sources (with inferior quality) and delivered them to the central
warehouse. Meanwhile, the central warehouse also failed to secure the rice as a large amountof rice was lost from the warehouse. They also distorted the moisture, purity and weight of therice in exchange for benefits paid from the mills.
To distribute rice, the government committed a deal “Government to Government (G2G)”.
However, it turned out that there was not trade between states as planned. Some influential
persons in the rice industry had connections with people in the government and set up fakecompanies aboard to buy rice from the government at cheap prices.
From the investigation, the damages were about 136 billion baht. The Supreme Court's
Criminal Division for People Holding Political Positions sentenced a jail term withoutsuspension against the Prime Minster and the Commerce Minister at the time.
The criminal charge against the Prime Minister at the time she violated Section 157 of the
Criminal Code on malfeasance. Section 157 concerns wrongful exercise of duties, and it
stipulates that whoever, being an official, does not exercise any of functions to the injury of
any person, or dishonestly omits to exercise any of his functions, shall be punished. The Court
points out that she failed to scrap the policy in spite of knowing the scheme was plagued bycorruption.
Meanwhile, from the investigation, the former Commerce Minister found guilty offalsifying G2G deal between Thailand and China. The ministry insisted that rice was sold toChinese firms, acting on behalf of the Chinese government. Actually, there was no rice
exported through G2G deals but locally sold. The firms claimed to be Chinese were fraudulent
set up by Thais. The fabricated deals with the Chinese firms caused huge losses to Thailand.
The rice pledging scheme is a new policy that the government initiated without
precautionary measures against possible corruption. The government hastily kicked off the
project in spite of arguments from various actors. Moreover, there are no studies conducted to
identify the possibility of success and failure, pros and cons and other risks of the project. That
is why the scheme is called a populist policy, operating to satisfy those who cast a ballot forthe party. The scheme created opportunities for all parties to seek advantages, and it seemed as
though the process was lawful.

13

Ibid.

161 --- 161

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

IV. POLICY CORRUPTION RISK INDICATOR
Apart from seriously cracking down on corruption and motivating all stakeholders in fraud
prevention, one of the attempts that the National Anti-Corruption Commission initiated toprevent policy corruption is by designing a tool named the “Policy Corruption Risk Indicator”,
or PRI. The cabinet has approved the National Anti-Corruption Commission’s proposal on theissue in 2019.
PRI is a declaration form that all political parties have to submit to the Office of the Election
Commission of Thailand, and it is a prerequisite before elections. PRI aims at providing
information for people to help them decide which political party to vote for. Political partiesare required to select at least one important policy or project to assess. The selected policy or
project must be one that political party prioritizes and which the party intends to implement
after being elected.
With PRI, political parties must identify the origins of the policy or project, including
whether it has cascaded from the national strategy; assess whether their own project or policy
is at risk of policy corruption as well as to provide adequate measures to prevent corrupt
practices; and analyse impacts, worthiness and feasibility. PRI also pushes the political parties
to conduct reliable research attached to the assessment.
The reason why PRI is so important as it would directly help promote transparency andaccountability by making political parties’ data available to all. However, in 2019, after the
PRI assessment was implemented, there were only 24 political parties (from 103 parties) that
submitted the form. It reflects that the PRI itself still lacks enforcement. Currently, in order toprepare for the next general election, which could take place by the end of 2023, the National
Anti-Corruption Commission in cooperation with the Office of the Election Commission ofThailand are redesigning the PRI with the intention to prevent policy corruption at the
beginning of the new government term.

- 162 - 162 -TIMOR-LESTEFORMS OF CORRUPTION IN TIMOR-LESTE AND ITSCOUNTERMEASURES
Matias Soares *Corruption is a pernicious phenomenon that subverts the fundamental values of life insociety. Corruption undermines the foundations of the democratic rule of law, distorting thefair distribution of national wealth, fostering divisions and friction in society. In a word,
corruption attacks justice and social harmony. Fundamental principles of the Constitution suchas the university of laws, equality and legality are emptied of content in favour of the particularinterests of some unscrupulous people. As it is today a global phenomenon of increasingly
difficult persecution and combat, it is imperative that the Timorese State adopt exceptional
measures to ensure greater effectiveness in the fight against this crime.
The fight against passive corruption, therefore, must be assumed by everyone and provided
with legal mechanisms that allow facing its hidden nature because, although it offends thefoundations of the State, it ends up not having anyone, in particular, as a victim. The Timorese
legal framework already has legal instruments to prevent and combat corruption and associatedcrimes, such as the Penal Code and the legal regime for preventing and combating moneylaundering and the financing of terrorism. In the current context, it is important, in coherencewith the existing legal framework, to establish new measures to prevent and fight corruption.
Therefore, it was understood that this law should contain, as it does, provisions of a preventive
and not just criminal nature. And, in this context, it was also considered convenient to havealready provided here about the regime for the declaration of income, assets and interests.
Regarding criminal matters, it was decided to concentrate all corruption crimes in a single
legal diploma, which resulted in the expurgation of those provided for in the Penal Code andtheir inclusion in this law, together with the new types that it enshrines.
Timor-Leste is one of the world's youngest and Asia’s poorest countries, and the country isunder development in various aspects of the country. The weakness of the regulatory andinstitutional framework in Timor-Leste is exposed to being targeted as a layering country inglobal money-laundering schemes, as well as losing public money through corruption,embezzlement and tax evasion and other crimes that are committed by public servants relating
to the projects and public tenders. According to World Bank estimates, countries lose around
2 per cent of GDP annually due to corruption: in other words, approximately 60 million USD.
The regulation and legal framework, especially penal code, entered into force in 2009, and thatsame the Anti-Corruption Commission (CAC) was established with the main task of theprevention of corruption.
Ten years later in year of 2020, the Timor-Leste National Parliament approved and thePresident of Republic promulgated a new law that defines the new measures to prevent andfight against corruption. The law was published and came into force in February 2021.

*

Prosecutor of the Republic, General Prosecution Office, Timor-Leste.

163 --- 163

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

The objective of the new law is the necessary mechanisms for an effective fight against
corruption in order to meet the Constitution’s fundamental principles, such as the universalityof rights, equality and legality. The new law describes the general measures to prevent
corruption and the income, assets and interests declaring regime. The corruption crimes, theapplicable penalties and the special means of obtaining and retaining evidence are also defined.
This law also changes other pieces of legislation related to preventing and combating
corruption, namely the Penal Code, highlighting the creation of the new categories of illegal
acts and the concentration of all corruption crimes in a single legal diploma.
With regard to the public sector, the Law 7/2020 provides guidelines that emphasize theneed to observe appropriate procedures for the selection and training of people for public office,the turnover of these people in these positions and, finally, the need of implementing a regulartraining programme for them. The law also proposed a set of rules to be developed in guiding
and regulating the conduct of public officials, in order to promote the personal behaviour
standards of integrity, honesty, responsibility and impartiality. In order to facilitate thereporting of corrupt acts, it is foreseen that police and judicial authorities may accept
anonymous complaints and protect the identity of whistle-blowers protection and protection
against reprisals.
This law also emphasizes the promotion of publicity and transparency in procurement andpublic procurement procedures. It is also stressed the need for procurement procedures forgoods and services acquisition to be carried out based on economic criteria and based on theprinciple of optimizing the cost and benefit relationship. Further, in addition to facilitating the
public access to the competent authorities, it is expected that the administrative procedures may
be simplified, thereby mitigating corruption opportunities.
Another innovation implemented through the law in question concerns the obligation for
all individuals in public service and their household members to declare income, assets andinterests, thus enabling the State to discover and prevent conflicts of interest and monitor more
efficiently the wealth variations, in order to identify significant and unjustified increases in the
declarant’s wealth. These statements may be completed in an electronic form, to be preparedand provided by the relevant authorities.
It is also defined that public institutions disclose their activity, operation and decisionmaking processes to the public, through regular publication of activity reports and their broad
dissemination through electronic media.
This law also recognizes the existence of more appropriate mechanisms to control
corruption, such as the accountability of legal persons. Thus, commercial companies thatengage in illegal practices such as bribery, influence peddling or other practices that result in
the removal of competitors in procurement procedures or money-laundering, for example, will
be held criminally liable.
This law also forbids public officials, for a two-year period after the end of his term, fromengaging in any activity in the private sector, whenever the service to be rendered or theemployment is directly related with the roles performed by him or under his supervision when
he was in office holding a public position.
Law 7/2020 defines corruption crimes as those committed while exercising public roles,
passive corruption of public official for an illegal act, passive corruption of a public official for- 164 - 164 -TIMOR-LESTE
a legal act, active corruption of a public official, embezzlement, embezzlement of public
property, violation of the participation right and equal candidacy in procurement, sale orconcession tenders, abuse of power, profiting from economic interest in business and conflictof interest. Whoever is convicted of a crime enshrined in this Law, punishable by imprisonment
for more than 5 years, is prohibited from taking or being in public offices for a period of 5 to
10 years.
Through the enactment and entry into force of this important law, Timor-Leste marked afundamental stage of the national cause to fight against corruption. However, the determining
factor of this effort goes beyond the enactment, which will be the institutional and social
preparations to rigorously implement the law, always maintaining the momentum and thepolitical will to fulfil the purposes of this law.
Responding to the new law, the Anti-Corruption Commission (CAC) of Timor-Leste,
assisted by UNODC has developed manuals on asset declaration and investigations for theCommission, and the manuals are used in the context of operationalizing the new AntiCorruption Law (2020), which introduces new criminalization of corruption elements. The law
also mandates the CAC to administer the new system for the declaration of income, assets andinterests, with a view to preventing conflicts of interest and facilitating the detection of sudden,
unjustified changes in wealth.
As part of the manual on asset declarations, assisted by the UNODC, the CAC has prepareda declaration form that is currently under review and being considered for approval by TimorLeste’s Supreme Court of Justice. The manual includes technical instructions on the form’s
effective use, in order to support verification, collation and analysis efforts within the country’s
legal framework. Another key element of the manual is a compendium detailing practical ways
to respond to borderline cases, such as wealth in crypto currencies, how to consider former
spouses and requirements for re-elected Members of Parliament.
Meanwhile, the manual on investigations looks comprehensively at all stages ofpreliminary and formal anti-corruption investigations, within the legal context of Timor-Leste.
Sections include the legal authority of the Commission, whistle-blowing, responding tocomplaints, financial and digital investigations, managing information, interviewing witnesses,
developing cases and asset recovery.
Multiple studies in different countries and sectors have shown the value of whistle-blowing
to detect fraud, corruption and other misconduct and its importance is often rated equally highas internal audits or due diligence checks. At the same time, challenges in reporting are very
high and acts of corruption remain largely under-reported, both by direct witnesses and bywhistle-blowers who come across alleged wrong doing in the workplace. Studies show that
potential whistle-blowers do not believe in appropriate follow-up to their report; they are afraidof retaliation ranging from negative consequences for their career to physical threats; they areafraid of civil or criminal liability; and they would not know where to receive advice.
Timor-Leste currently has no whistle-blowers' protection legal framework. A witness
protection law was enacted in 2009, but the operating procedures and institutionalarrangements to operationalize the law are still missing. The event resulted in a series ofrecommendations on how to develop these arrangements; Timorese authorities requested
follow-up support from the UNODC to establish the needed systems at the national level.

165 --- 165

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Approved on 29 June 2009 by the National Parliament, the law that creates the AntiCorruption Commission aims to give the competence to the independent State specialized
criminal police that in its action will be based only on the criteria of legality and objectivity inarticulation with the competent authorities, as it is important for its credibility as a mechanism
to combat corruption.
Corruption is a phenomenon with negative consequences for society and the economy that
affects the principle of democracy and the rule of law and, given that fact, the IV Constitutional
Government wrote and proposed to the National Parliament a legal framework for the CAC.
This is a clear example of ethics, responsibility and transparency in governance according to
the principles set out in the Constitution and reflecting the spirit of the United Nations
Convention against Corruption.
The CAC reports to the Parliament but is otherwise fully independent. It has the power tobegin and conduct criminal investigations related to corruption cases, according to the criminal
code. Besides that, it also has the role of education and public awareness, by identifying andpromoting the measures that prevent corruption.
Corruption cases are also connected with transnational organized crime, which ischaracterized by having high profits and involving more than one person and one country as
its main scope, violates human rights, causes damage and undermines the socio-economic
development of countries. The advent of communication technologies, the interconnection of
the world economy and the greater circulation of people, goods and services, created favourable
conditions for organized crime to globalize its activities, becoming a stateless organization,
which stopped being contained within the limits of physical borders of a country, having similar
characteristics in the different countries, and that makes the use of the most modern technology
one of the mechanisms of it global strategy.
Faced with a criminal phenomenon with similar characteristics, responses focused only on
the internal mechanisms of each country will be doomed to failure. Therefore, the response totransnational organized crime will have to be coordinated, and by international legislative
systems in which the main focus should be on cooperation between the different organs of thedifferent States, with responsibility for the prevention and repression of crime. Therefore, it isnecessary to strengthen the rule of law and the institutions responsible for the investigation,prosecution and adjudication of transnational organized crime at the level of each affected State
and, at the same time, to strengthen the State’s mechanisms for international legal and judicial
cooperation. In this context, States are faced with the challenge of ratifying and adopting theirdomestic legal systems, the most important international conventions whose main purpose is
to combat organized crime, and which encourage cooperation and mutual international legal
assistance.
The Timor-Leste Parliament also adopted the United Nations Convention against
Transnational Organized Crime (Palermo, 2000) and the United Nations Convention against
Corruption (Mérida, 2003). The adoption of these conventions that encourage international
legal and judicial cooperation mean that Timor-Leste is able to ensure not only due legal
processes, but above all that the borders of countries do not impede the fight against crime.
These conventions ensure that criminals who commit cross-border crime can be pursued, triedand held criminally responsible.

- 166 - 166 -TIMOR-LESTE
By generating transnational organized crime with high profits, its fight also will only beeffective insofar as the assets and advantages generated by it are effectively reverted to theState, through mechanisms of widespread loss, of assets and advantages of the crime that once
reverted in favour of the States should preferably be used to strengthen the rule of law and theinstitutions of the States responsible for fighting crime.
Aware of the damage that transnational organized crime is capable of causing and,
convinced that acting in isolation, it will not be possible to effectively fight these criminal
phenomena, Timor-Leste not only ratified the most important United Nations Conventions
mentioned above, but also approved specific legislation on the preventing and fighting moneylaundering and terrorist financing, which establishes special measures to collect evidence,
breach of confidentiality and loss of assets in favour of the State not only in relation to moneylaundering and terrorist financing, but also to a wide range of serious crimes. Timor-Leste also
approved specific legislation that regulates international legal and judicial cooperation incriminal matters, to favour and encourage cooperation and mutual assistance.
International, bilateral and multilateral conventions, ratified by Timor-Leste, under theterms of domestic law, are the main sources of international judicial cooperation and prevailover the legislation, with the exception of the Constitution of the Republic. In addition to theConventions, agreements and treaties, there are two other main sources that regulateinternational judicial cooperation: the Constitution of the Republic and Law No. 15/2011, of26 October.
Due to lack of understanding about the laws and regulations regarding the public
administration service, many public servants and high-level government officials are involvedin maladministration and corruption. The impact is that public projects lack sufficient quality,
so the public prosecutors have to investigate many cases such as embezzlement, tax fraud,falsification of public documents, harmful administration, economic participation in businessand many more.
Internally, the Public Prosecution of Timor-Leste can utilize a new law that entered into
force on 17 August 2022 that regulates the Central Office for Combating Corruption andOrganized Crime, which was already established in 2015. During this year from January to
July, the Central Office for Combating Corruption and Organized Crime was handlinginvestigations of about 48 cases and most cases about embezzlement, tax fraud, falsification of
public document, harmful administration, economic participation in business, abuse of power
and others.
These were the ideas and information that I would like to share with the distinguishedcolleagues in this forum and my sincere thanks to the UNAFEI for inviting me to thisconference.

167 --- 167

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE- 168 - 168 -TIMOR-LESTE

PROMOTING CITIZENS’ PARTICIPATION AND ENGAGEMENT AS
A POWERFUL COLLECTIVE APPROACH TO ANTI-CORRUPTIONEFFORTS
Luis De Oliveira Sampaio *I. INTRODUCTION
Corruption has been considered as a very serious global phenomenon today, because
corruption has a destructive impact that no longer only hinders national development, slows
economic growth, widens inequality and poverty gaps, but has further and massive implications
for climate change and the environment. Various entities at regional, national and international
levels have been attempting to tackle corruption. However, it remains well entrenched and iseven on the rise in some countries, particularly among those in the developing world. Of course,
corruption also occurs in developed countries, but they generally have stronger legal
frameworks and mechanisms in place to tackle it. By contrast, many developing countries, suchas Timor-Leste, lack effective institutional capacity to deter corrupt practices. 1 Therefore, theefforts to eradicate corruption requires a more comprehensive, consistent, long-term approachand above all to build and increase awareness of citizens to be actively involved in, participate
in and synergize the efforts to eradicate corruption in a consistent and organized, measurable
manner. This concept is reflected in article 5 of UNCAC regarding preventive anti-corruption
policies and practices, which states that:…Each State Party shall, in accordance with the fundamental principles of its legal
system, develop and implement or maintain effective, coordinated anti-corruption
policies that promote the participation of society and reflect the principles of the ruleof law, proper management of public affairs and public property, integrity,transparency and accountability.
Internally, CAC has stipulated in its general objective to prevent corruption by putting
forward the mandate that “an active participation of citizens, through associations or groups ofassociations, the formal and informal education sector, youth and student groups are the key
element in efforts and movements to eradicate corruption.” In addition, CAC’s strategic planalso reaffirms the importance of increasing public knowledge and awareness in the movement
to prevent and eradicate corruption. 2
Basically, the discourse of citizens’ involvement in various aspects of the state is not a newconcept, and the movement to eradicate corruption has already gained attention in the last few
decades. As the National Democratic Institute (a civil-society organization (CSO) based in the
United States) emphasizes that the citizens have “the right to participate in decisions that affect
Deputy Commissioner for Prevention and Public Awareness Raising, Anti-Corruption Commission (CAC),
Timor-Leste.
1
Aderito de Jesus Soares, Former First Timor-Leste Anti-Corruption Commissioner; Social Movement as an
Antidote to Corruption.
2
Planu Estratejiku CAC 2021-2025: http://cac.tl/wp-content/uploads/2021/03/Planu-Estratejiku-Comissao-AntiCorrupcao-PECAC-tinan-2021-2025.pdf*

169 --- 169

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

the public welfare” and “participation is an instrumental driver of democratic and socioeconomic change, and a fundamental means of empowering citizens.” 3
The people of Timor-Leste have a unique history of the national liberation movement which
was closely linked to the involvement of its citizens. Considering that the phenomenon ofcorruption has been seen as a serious social issue and it has a broad impact on all aspects of thelife of the nation and state, the efforts to involve citizens' participation must be seen as
mandatory.
In the context of Timor-Leste, the involvement of citizens in the issue of eradicating
corruption so far has already shown a positive trend, as one of those concrete examples is theinvolvement of citizens to prevent corruption during the Covid-19 pandemic. However, there
are still structural and cultural barriers because it seems that the citizens’ involvement infighting against corruption is still at the individual level, spontaneous, unorganized andunsystematic, inconsistent and, most concerning, is politicized. In particular, reactions andprotests against anti-corruption issues begin to show up when their interests are notaccommodated, then they will speak up – but on the other hand, if their interests areaccommodated, even though there are clear indications of corrupt practices, their voices
disappear.
II. LEGAL FRAMEWORKAs discussed above, article 5 of UNCAC has emphasized the importance of public
participation which reflected the principles of the rule of law, integrity, transparency andaccountability of each participating country or State party.
However, long before Timor-Leste ratified UNCAC, the Constitution of Timor-Leste,
particularly in article 6 (b) on the objective of the State, expressed guaranteed active
participation of all citizens, including guarantees of the right to fundamental freedoms andrespect for the basic principles of democracy. This implies that the fight against corruption isa moral obligation from all elements of the state.
As part of efforts to integrate citizen involvement in the policy of preventing anderadicating corruption, Law No. 7/2020 concerning “Measures for Prevention and Eradicationof Corruption”, in its article 2 (2) stipulates that in order to formulate a national anti-corruption
strategy, it guarantees a broad scope of public participation, especially through CSOs, theprivate sector, the media and other social elements.
Furthermore, article 24 especially in paragraphs (1) and (2) of the above-mentioned law,
specifically requires public participation in decision-making, especially in the formulation ofanti-corruption prevention strategies, and its revision or reformulation relies on theparticipation of all representative sectors of the organized civil society, including, among others,
non-governmental organizations (NGOs), the media and religious organizations in which allelements of society are encouraged to take an active role so that their voices and interests areaccommodated.
UNODC Module 10: Citizen participation in Anti-Corruption Efforts https://www.unodc.org/e4j/en/anticorruption/module-10/key-issues/the-role-of-citizens-in-fighting-corruption.html
3- 170 - 170 -TIMOR-LESTE
III. EXAMPLES OF TRENDS IN CITIZENS’ PARTICIPATION IN PUBLIC
POLICY AND OVERSIGHT OF STATE BUDGET EXPENDITURE
The tradition of citizens’ participation in Timor-Leste is not a new issue, as the implicationsof a democratic state, especially in terms of the state to encourage the citizens to take an activerole in the public policy process has been showing a positive trend.
The following discussion will provide some real examples of the communities’ or citizens’
involvement, both individually or collectively, in an organized and systematic manner.
Especially related to the efforts in influencing public policy through the legislative process inregard to state efforts and commitments in terms of policies for preventing and eradicating
corruption and controlling the state budget expenditure during the Covid-19 pandemic.
There are some legislative policies on public interest which were discussed and approvedin the National Parliament as a result of the movement and advocacy efforts of the citizens, as
follows:
1. Law No.7/2020 of 26 August: Measures to Prevent and Combat Corruption: Oneof the examples of a great and historical achievement is Law No.7/2020 concerning
Measures to Prevent and Combat Corruption. It was legally enacted on 22 February
2021. The law was finally discussed, passed and approved in the National Parliament
and then promulgated by the President because of the result of movements, efforts andvoices involving various components of society ranging from civil society, massorganizations, the youth organization of university students, academics and religiousbased organizations. Advocacy and public engagement movements have been carriedout consistently for approximately a decade immediately after the establishment of
CAC. This law generally focuses on prevention efforts in which there are two mostimportant components in the area of prevention, such as the national anti-corruption
strategy and the regime of declaration of income, assets, and interest from the highranking of public officials. 4
2. Cancellation of the draft defamation law: Another important issue that is consideredas the biggest contribution of public engagement through citizen participation and mass
media and social media is the cancellation of the government's initiative to enact a
special law on criminal defamation which was initiated by the Ministry of Justice’s
legislation department in around 2020. This initiative, of course, is strongly against thevalues of Timor-Leste’s Constitution which guarantees freedom of opinion andfreedom of the press as guaranteed in articles 40 and 41 of the Constitution. Above all,if the defamation law would have been enacted it would not only disturb the freedomof expression and media freedom, but it possesses a strong effect and serious threat toanti-corruption efforts. The defamation law would silence the voices and speech ofNGOs and journalists, academics and youth/student movements and hinder citizens
from fully participating in a critical way to contribute to national development,
including being afraid to report the corrupt behaviour of government officials in the
public sector because they would be criminalized through the Defamation Law.

LEI N.o 7 /2020 de 26 de Agosto- MEDIDAS DE PREVENÇÃO E COMBATE À CORRUPÇÃO:http://cac.tl/wp-content/uploads/2021/03/Medidas-de-Prevencao-e-Combate-a-Corrupcao-Lei-No.7.2020.pdf

4

171 --- 171

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Considering that freedom of opinion and the press are constitutional rights of all citizens,
almost all elements of societies are actively involved, both through conventional media
and social media, and submission of letters to sovereign institutions of the country
which all are actively against this draft law which resulted in the draft of the law being
withdrawn from the government’s legislative agenda.
3. Oversight of the Covid-19 budget: Almost all countries around the world areexperiencing a serious shock regarding the threat of the Covid-19 virus, and the impact
is still being felt today. This forces all countries to take strategic steps to respond to themassive impact of Covid-19. However, it must be realized that the emergency responseto the Covid-19 pandemic does not give serious attention to the potential risks ofcorruption. In an analysis report from the U4 Anti-Corruption Resource Center, it was
concluded that the policies related to the response to Covid-19 have paid very little
attention to good governance and corruption. 5
In response to the threat of the Covid-19 virus, the Government of Timor-Leste issued
Resolution No. 28/2020, 19 August – as a short-term measure to minimize and mitigate
the impact of the economic crisis and introduce the new Economic Recovery Plan 6 forthe country. One of the government's responses through the programme called “social
assistance and economic rescue for people who were affected by Covid-19” was a
subsidy provided to those families whose income is below $500 USD. This subsidy
programme cost approximately USD 67 million, which covered the period of April to
December 2020, and the budget covered 334,008 households as beneficiaries. 7
In relation to this subsidy, what I want to discuss in this paper is the involvement of thecitizens or community to oversee how the relevant institutions carry out their duties
with integrity in a transparent and responsible manner. Considering the weaknesses of
the internal control system, CAC mobilizes important elements such as civil society,youth groups, students, the media and other oversight institutions such as the Civil
Service Commission, the State of General Inspector and Ombudsmen office to control
how the institutions in charge expend the funds allocated. From the close collaborationand effective oversight from various levels of civil society, media and other groups as
above mentioned, in the end, funds amounting to US$4,211,776 were successfully
returned to the state treasury fund from the total allocated budget.
The three cases described above illustrated how to promote citizens’ involvement andengagement as a powerful collective approach to anti-corruption efforts. The last caseshowed the real and concrete result from the citizens’ participation.
IV. STEPS TO STRENGTHEN CITIZENS’ PARTICIPATION
Since its inception in 2010, the CAC has been very active in raising awareness about thecauses and consequences of corruption in public life. The CAC’s vision was to “create a strong
culture of rejecting corruption” in Timorese society. Awareness-raising was central to achieve
https://www.u4.no/publications/anti-corruption-in-covid-19-preparedness-and-response
Government approves short term measures to mitigate the COVID-19 impact on the national economy
http://timor-leste.gov.tl/?p=25275&lang=en&n=1
7
RELATÓRIO E PARECER SOBRE A CONTA GERAL DO ESTADO: https://www.tribunais.tl/wpcontent/uploads/2022/02/RPCGE-2020-1.pdf
56- 172 - 172 -TIMOR-LESTE
this objective, given the dark trajectory of corruption in modern Timorese society. During thefirst Commissioner of CAC inaugural ceremony, he strongly emphasized that “combating
corruption can only be successful if it becomes a widespread social movement involving all
segments of Timorese society” (Soares 2010).
As discussed in the examples above, the CAC is and will continue to encourage wider
participation in efforts to involve community participation in fighting and combating
corruption. However, as emphasized by Mr. Tony Kwok Man-wai, 8 we should realize that
there is no single solution to the problem of corruption. We need a comprehensive approach.
Various outreach activities, such as campaigns and seminars at local, regional and national
levels will continue to be the main agenda of CAC's work plan to increase public knowledge
and awareness about the negative impacts of corruption. This programme has beenstrengthened in article 25 (1) of Law No. 7/2020 regarding public information and education,
which requires CAC to conduct campaigns and publications through pamphlets and posters
and encourages government institutions to use internet services to facilitate public access toprogrammes and public service activities in a transparent and accessible manner.
The CAC annual report published every year shows that at least 7,500 9 people from various
levels of society have benefited from public-awareness efforts and information dissemination
about corruption and efforts to combat it which are carried out regularly every year by the
Integrity Values Promotion Unit.
In addition to activities designed and programmed in the annual work plan, the CAC also
develops various efforts through meetings with leaders of NGOs, conventional and social
media, political parties, students and university students. In particular, the CAC has also signed
MOUs with two or more NGOs to carry out knowledge and awareness-raising activities on theimpact of corruption. Further, the CAC also signs an MoU with NGOs to monitor the trial
process of corruption cases in court and help analyse the draft of a new law in the National
Parliament to provide input on articles that have the potential to give room/space for corruption
to occur or those articles that are contrary to state commitments to fight corruption.
V. CHALLENGES
As discussed above, there is a strong spirit and enthusiasm at all levels of society to fightcorruption. However, this enthusiasm and spirit are still faced various challenges and obstacles.
These challenges might as well be in the form of structural barriers, such as a lack ofadequate understanding of the negative impacts of corruption and a culture of tolerance andpermissiveness in the society which greatly affects the efforts to eradicate corruption in aconsistent and measurable manner.
In addition, the cultural and social factors in Timor-Leste’s society result in the fact that
almost everyone knows each other, especially in the public sector, which also contributes tothe difficulty of eradicating corruption. Such challenging factors that affect efforts to eradicate
corruption are seen to be very passive and stagnant. This requires new strategies and innovative
approaches.
Former Deputy Commissioner and Head of Operations, Independent Commission Against Corruption (ICAC),
Hong Kong. Paper: National Anti-Corruption Strategy: The Role of Government Ministries.
9
http://cac.tl/wp-content/uploads/2022/08/RELATORIO-ANNUAL-CAC-2021-2.pdf
8

173 --- 173

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

VI. CONCLUSION
Corruption is a complex social phenomenon which has a very massive destructive impact
on humans’ lives and the environment; therefore, it requires social solutions that involve allcomponents of society to tackle corruption. Everyone in society should take an active role topromote citizens' participation against corruption.
In particular, the history of Timor-Leste’s struggle for liberation essentially involved active
participation from citizens throughout the process. The most important thing is how the efforts
are able to build collective awareness of all citizens that corruption is a new form of colonialismthat has a destructive impact that threatens the existence of the state.
To ensure consistent, well-coordinated and well-organized public involvement, of course,
requires an integrated work plan. Timor-Leste's government is now at the stage of preparing anational anti-corruption strategy, as an obligation under Law No.7/2022, so the concept of
integrating citizens’ participation must be considered as a mandatory element.

- 174 - 174 -VIET NAM

ANTI-CORRUPTION IN VIET NAM NOWADAYS
Hoang Thi Thuy Hoa *I. ACTUAL SITUATION OF CORRUPTION IN VIET NAM
The situation of embezzlement, waste and corruption in Viet Nam has been going on formany decades, occurring in all areas of social life and at all branches and levels. Corruption
has greatly affected socio-economic development and reduced people's trust in the Communist
Party and the State of Viet Nam. According to Transparency International (TI), Viet Nam’s
CPI ranking in 2021 is 39/100 points, up 3 points from 36/100 points in 2020, ranking 87/180
countries and territories. This is also the highest CPI of Viet Nam in the period 2012-2021. In
the last 10 years, in general, Viet Nam’s CPI has improved from a low of 30 points in 2012 to
39 points in 2021. However, it is still lower than the regional average (42 points), and is among
the two-thirds (2/3) of countries in the world with serious corruption (under 50 points). Thisshows that corruption in the public sector is still considered very serious in Viet Nam.
The Summary Report on Communist Party Building and Charter Amendment at the 13th
Party Congress stated: “Corruption in a number of areas is still serious and complicated, withincreasingly sophisticated manifestations; The state of harassment of people and businesses isstill quite common, causing frustration in society. Corruption is still one of the threats menacing
the survival of the Party and the regime”. Every time people and businesses go to apply for acertificate of ownership of houses or land, go to a doctor, send their children to school, ortransfer schools, apply for investment capital, or build a construction project etc., they must
give some money as “lubrication” so that everything will run smoothly. This form of corruption
is “petty corruption”, causing frustration and discomfort for people and the whole society.
Corruption identification: From the current situation of the fight against corruption in ourcountry, the main types of corruption can be identified as follows:
A. Economic Corruption
This is a very common form of corruption that occurs in every corner of social life, fromhigh-ranking officials to low-level officials. But it’s easy to see that they use their assigned
positions and powers to harass and make it difficult to get money and material things. This
form can range from petty corruption, such as receiving envelopes filled with modest amountsof money, to large-scale corruption, such as taking bribes with the value of tens of billions ofdong, villas, land, cars etc.
B. Corruption in PowerThis is a form of corruption in which people holding positions and powers take advantageof their positions to bring close friends, relatives and bribe-takers into holding important
positions in the apparatus of the Party, the State and socio-political organizations for selfseeking purposes. This type of corruption is very dangerous and difficult to detect. When theyplace people without ethics and professional competence into important positions, it affects not
LLM., Department of International Cooperation and Mutual Legal Assistance in Criminal Matter,
Supreme People’s Procuracy of S.R of Viet Nam.

*

175 --- 175

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

only the immediate but also the long-term development, affecting the whole generation, and it
is difficult to overcome the consequences.
C. Political Corruption
This is a form of corruption of powerful people who influence decisions on mechanisms,
policies, and major decisions of the Party and State in order to benefit themselves, their families,
or a group of people. They may collude with people with the same power to change guidelines
and policies of the Party and State in order to seek benefits for their sector, locality, unit orgroup of people with the same interests, such as making regulations on tax policy, salary,appointment criteria, retirement or making investment decisions in big projects: building
airports, seaports, urban areas, etc.
II. POLICY OF THE COMMUNIST PARTY AND STATE OF VIET NAM IN THE
FIGHT AGAINST CORRUPTION
Anti-corruption in Viet Nam is identified as the responsibility of the whole political system
and an important, urgent and long-term task throughout the process of socio-economic
development and promoting the rule of law in Viet Nam. The Party’s viewpoints on anticorruption are clearly reflected in the Party's Resolutions, Directives and Conclusions over time,
specifically: Resolution No. 04-NQ/TW, dated 21 August 2006, of the third meeting of the10th Party Central Committee on strengthening the Party's leadership in the fight against
corruption and waste (Resolution No. 04), determined to continue to improve the state
institution and strengthen the inspection, examination, audit, investigation, prosecution andadjudication of corruption cases to improve the effectiveness of the fight against corruption
and waste; Enhance publicity and transparency in operations and ensure integrity among
officials of inspection, examination, audit, investigation, prosecution and adjudication
agencies; Resolutely and promptly handle corrupt acts in anti-corruption agencies and units
and those who cover up corrupt acts and prevent the fight against corruption.
In recent years, the Communist Party of Viet Nam has continued to set out guidelines andviewpoints to further improve the quality and effectiveness of anti-corruption work, especiallythe detection and handling of corruption cases in the current period, specifically: Conclusion
No. 21-KL/TW, dated 25 May 2012, of the 5th Plenum of the XI Central Committee on
continuing to implement the Resolution No. 04 on strengthening the Party's leadership for theprevention and fight against corruption and waste, Directive No. 33-CT/TW, dated 3 January
2014, of the Politburo on strengthening the Party’s leadership in the declaration and control ofthe declaration of assets; Directive No. 50-CT/TW, dated 7 December 2015, of the Politburo
on strengthening the Party leadership in detecting and handling corruption cases, which
requires the implementation of many solutions to prevent and fight against corruption,
Directive No. 27-CT/TW, dated 10 January 2019, of the Politburo on strengthening the Party
leadership in the protection of whistle-blowers and those fighting against corruption.
At the Resolution of the 13th Party Congress, anti-corruption continued to receive theParty's attention and drastic action. Accordingly, the fight against corruption must be persistentand continuous, considered as a particularly important task and carried out with the motto “noforbidden zones, no exceptions”, implementing synchronous measures in “political, ideological,
organizational, administrative, economic and criminal” fields in the fight against corruption;
promote “control of power” to prevent corruption; promptly handle, transfer and replaceleading and managerial cadres when having negative manifestations, corruption, low- 176 - 176 -VIET NAM
reputation; strictly handle officials who are corrupt, extortionate, causing trouble to people andbusinesses; and gradually expand the scope of anti-corruption to the non-state sector to prevent
collusion between degenerate state officials, civil servants and those operating in the non-state
sector.
As the leading force of the state and society, the Communist Party of Viet Nam is also theleading and most resolute force in the fight against corruption. In February 2013, the Party
established the Central Steering Committee on anti-corruption under the Politburo, led by theGeneral Secretary of the Steering Committee. In 2014, the first National Conference on anticorruption was held. After that, the Party has had many policies and carried out a series ofactions to strengthen the detection and handling of corruption cases.
As a result, from 2014 up to now, the National Assembly of Viet Nam has developed,
supplemented, amended and passed about 100 laws and ordinances, including laws aimed atbuilding and perfecting the state institution on socio-economic and anti-corruption, step-bystep perfection of the mechanism of prevention such as: the Law on management and use of
public property; Law on property auction; Law on Denunciation (amended); Enterprise Law;
Law on Bidding; Law on management and use of state capital invested in production andbusiness in enterprises etc., or laws to strengthen the fight against violations and crimes related
to corruption such as: the 2015 Law amending and supplementing a number of articles of thePenal Code; the 2015 Criminal Procedure Code; the 2018 Law on Anti-corruption etc. Recently,
law enforcement agencies have detected a series of violations and crimes, and strictly handle
them according to the provisions of the law.
Up to now, anti-corruption efforts have made a strong step forward, achieving many
comprehensive, positive and clear results. Corruption is gradually being curbed, prevented,
repelled and is tending to decrease, contributing to maintaining political stability, strengthening
people's confidence, creating a healthy business environment, becoming an important factor
promoting socio-economic development in Viet Nam in recent years.
III. REGULATIONS OF VIETNAMESE LAW ON ANTI-CORRUPTION
A. The Penal Code 2015
Corruption and position-related crimes are specified in Chapter XXIII of the Penal Code2015, from Articles 352 to Article 366. In general, the provisions on crimes related to positionin the Penal Code 2015 inherit the previous provisions of the Penal Code 1999. In addition, thefollowing new content has been added:-

Expanding the scope of crimes related to positions and persons holding positions.
According to Article 352 of the Penal Code 2015, crimes related to position are not
only committed while performing “public duties”, a person holding a position is not
only a person who has certain powers while performing “public duty” (as stipulated in
the old Penal Code 1999), but also when performing “duty”. By that provision, thePenal Code 2015 has expanded the scope of crimes related to positions not only in the
public sector, but also in the private sector; acts of corruption arising in state agencies
and organizations as well as in non-state organizations, units and enterprises. (Forexample, the responsibility of managing assets of a limited liability company withcapital contributions from individuals, of a 100 per cent foreign-owned enterprise may
be considered and handled.)

177 --- 177

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE-

The concept of “bribery” and benefits given or received in some position-related crimes
has been extended to non-material benefits. Specifically, the crime of receiving bribes(Article 354), Abuse of power or position to influence another person for personal gain
(Article 358), giving bribes (Article 364), brokering bribes (Article 365), Abuse of
influence over an office holder for personal gain (Article 366), “bribery” or benefits
given or received include not only material benefits such as money, property, othermaterial benefits but also include non-material benefits, meaning the benefits that are
not tangible or have a monetary value but have the ability to bring satisfaction to therecipient.

-

Provisions on third party beneficiaries in bribery crimes. Specifically, Article 354 on
the crime of receiving bribes and Article 364 on the crime of giving bribes both stipulatethat “bribery” can be enjoyed by the person holding a position or power or for anotherperson or organization. The specific regulation of the above-mentioned signs creates afull and direct legal basis for dealing with bribery in cases where the bribe is not enjoyedby the person holding the position or power but by the other person or organization withthe approval of the person holding the position and power.

-

Additional regulations on bribery of foreign civil servants. Specifically, the act ofbribing foreign civil servants has been officially recognized as a case of bribery under
Article 364, paragraph 6.

B. Law on Anti-Corruption 2018
Institutionalizing the Party's Resolution on anti-corruption and the 2013 Constitution, theLaw on Anti-corruption 2018, which was approved by the 14th National Assembly at its 6th
session on 20 November 2018 on the basis of revising the Law on Anti-corruption 2005,
amended and supplemented in 2007 and 2012, includes 10 chapters with 96 articles. This is
one of the important steps in the process of perfecting the law on anti-corruption, not only
overcoming the limitations and shortcomings of the Law on Anti-corruption 2005, but also
playing an important role in synchronizing with new provisions of relevant legal documents,
contributing to improving compatibility with the United Nations Convention against
Corruption. In that spirit, the Anti-Corruption Law 2018 supplements and provides new
regulations on corrupt acts; objects and types of assets to be declared; on disclosure of assets
and income; regulations on what cadres and leaders are not allowed to do, and responsibilitiesof leaders and related persons.
C. Criminal Procedure Code 2015
In order to enhance the effectiveness of detecting and handling crimes in general andcorruption in particular, the Criminal Procedure Code 2015 has some new regulations asfollows:
1. Electronic Data
For crimes in the fields of economy, corruption and positions, the very important source ofevidence and documents to prove and clarify criminal acts is electronic data. This is a newsource of evidence specified in the Criminal Procedure Code, as provided in Article 99 of the
Code: (1) Electronic data is a symbol, writing, numeral, image, sound or similar form generated,
stored, transmitted or received by electronic means. (2) Electronic data is collected fromelectronic means, computer networks, telecommunications networks, transmission lines andother electronic sources. (3) The evidential value of electronic data is determined based on theway in which the electronic data is generated, stored or transmitted; measured to ensure and- 178 - 178 -VIET NAM
maintain the integrity of electronic data; and how the originator and other relevant factors are
determined.
Regulations on the collection of electronic media and electronic data (Articles 107, 196 of
the Criminal Procedure Code 2015) are as follows: Electronic means must be seized in a timely
and complete manner, accurately describing the actual situation and sealed immediately after
seizing. The seizure of electronic means and electronic data as evidence shall be carried out bycompetent criminal justice officials and may invite persons with relevant expertise toparticipate. When seizing electronic media, authorities may collect attached peripherals andrelated documents. In case the electronic data storage medium cannot be seized, the competentcriminal justice agency shall back up such electronic data to the electronic medium andpreserve it as evidence, and at the same time request the related agencies, organizations andindividuals to store and preserve the integrity of electronic data backed up by competentcriminal justice agencies, and these agencies, organizations and individuals must be held
responsible before the law. The recovery, search and assessment of electronic data can only bedone on the copies, and the results of recovery, search and assessment must be converted into
a form that can be read, heard or seen.
2. Special Investigative Measures
In order to meet the need to legislate special investigative measures for corruption, thePenal Code 2015 provides for the first time these measures in Chapter XVI, from Articles 223
to 228. Accordingly, only after cases are instituted may competent persons apply special
investigative measures, including: (1) secret audio and video recording; (2) wiretapping; and(3) confidential collection of electronic data. These measures can also only be applied to certain
types of crimes: (1) Crimes infringing upon national security, drug-related crimes, corruptionrelated crimes, terrorism crimes, and money-laundering crimes; and (2) other particularly
serious crimes.
Along with that, in order to ensure that the application of these measures is prudent,
avoiding violations of human rights and ensuring the evidence-based value of the data obtained,
the Penal Code 2015 also strictly stipulates the jurisdiction, order, procedure, as well as control
mechanism. Regarding the jurisdiction to decide on application, only heads of provincial-level
investigating bodies, heads of military investigating agencies of military zones or higher, bythemselves or at the request of the Chief Prosecutor of the provincial-level People’s Procuracies,
and the Chief Prosecutor of the Military procuracies of military zones have the power to issue
decisions to apply special investigation measures. The decision to apply special investigation
measures must be approved by the Chief Prosecutor of the same level before being executed.
The time limit for application of special investigation measures shall not exceed two months
from the date of approval by the Chief Prosecutor; complicated cases may be extended but notbeyond the investigation time limit. Information and documents collected by special
investigation measures shall only be used for the institution, investigation, prosecution andadjudication of criminal cases, and information and documents not related to the case must be
promptly destroyed.
IV. INTERNATIONAL COOPERATION IN ANTI-CORRUPTION EFFORTS OF
THE PEOPLE’S PROCURACY
Globalization and international integration have had a great impact on the economic,
cultural and social development of countries including Viet Nam. In parallel with development,
globalization and international integration also require cooperation between countries to

179 --- 179

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

prevent, detect and handle violations of the law including corruption beyond the borders ofeach country.
Strengthening international cooperation has been a major policy in anti-corruption of Viet
Nam in recent years. Resolution No. 04 of the Third Conference of the 10th Party Central
Committee on strengthening the Party's leadership in anti-corruption has specifically identified
tasks on international cooperation on anti-corruption with the orientation: Actively participate
in anti-corruption international programmes, initiatives and forums suitable to Viet Nam'sconditions; implementing international commitments on anti-corruption, focusing oncommitments on building a transparent business and investment environment. Over the past
years, international cooperation in anti-corruption has brought Viet Nam many benefits, andViet Nam has gained a lot of experience and good practices from foreign countries on anticorruption, from which to research and apply appropriately into Viet Nam's anti-corruption
regime.
A. Implementing the United Nations Convention against Corruption (UNCAC)
Viet Nam, which officially became a member of UNCAC on 19 August 2009, is a country
that has been and is being evaluated in both assessment cycles of the Convention. Viet Nam
was recognized by the Convention Secretariat and foreign experts for its strict, straightforward
and responsible implementation, especially the preparation of self-assessment reports andorganization of field-assessment activities. In the first cycle, Viet Nam was one of the countries
that actively conducted the assessment of the implementation of the Convention early andcompleted the requirements set for the evaluation process on time. The second cycle focuseson assessing the provisions of the Convention in Chapter II (Preventive Measures) and Chapter
V (Recovery of Assets).
To fulfil its membership obligations after ratifying the Convention, the Prime Minister has
issued a Plan on the Implementation of the United Nations Convention against Corruption.
Accordingly, the Government Inspectorate is assigned to be the Permanent Agency toimplement the Convention. Other relevant ministries and sectors are assigned to assume theprime responsibility for, and coordinate in the implementation of the contents belonging totheir functions and tasks as prescribed by law. The Supreme People’s Procuracy (1) assumes
the prime responsibility for expanding bilateral and multilateral signing of the Agreement on
mutual legal assistance in criminal matters between Viet Nam and the Member States of theConvention, (2) receiving and implementing requests for mutual legal assistance in criminal
matters and requesting other Member States to provide legal assistance in accordance with the
Law on Mutual Legal Assistance 2007 and (3) coordinates with relevant agencies in
implementing contents related to the functions and tasks of the People’s Procuracy.
The Supreme People’s Procuracy has actively coordinated with the Government
Inspectorate and other relevant ministries, sectors to implement the Convention such as:
Joining the Inter-sectoral Working Group to implement the Convention and the Evaluation
Group on the implementation of the Convention; participate in the development and defenceof the National Report on implementation of UNCAC cycle 1 and cycle 2; participate in theevaluation of the country report on UNCAC implementation of China, Congo, Solomon Islands
and Austria as assigned by the Secretariat of the Convention.

- 180 - 180 -VIET NAM
B. Signing Treaties on Mutual Legal Assistance in Criminal Matters with Foreign
Countries
According to Article 64 of the Law on Mutual Legal Assistance 2007 and the provisions of
the Law on International Treaties, the Supreme People’s Procuracy is responsible for proposing
the signing of treaties on mutual legal assistance in criminal matters between Viet Nam andforeign countries. Since joining the Convention, the Supreme People’s Procuracy has presided,
coordinated with relevant ministries and sectors to successfully sign 12 treaties on mutual legal
assistance in criminal matters with other countries. including Algeria (2010), Indonesia (2013),
Australia (2014), Spain (2015), Hungary (2016), France (2016), Cambodia (2016), Kazakhstan(2017), Cuba (2018), Mozambique (2019), Laos (2020) and Japan (2021).
The signing of criminal legal assistance agreements with foreign countries contributes toperfecting the legal framework and promoting bilateral cooperation to improve theeffectiveness of mutual legal assistance in criminal matters in general as well as in corruption,
recovering corrupt assets, in particular affirming Viet Nam’s strict implementation ofinternational commitments in the prevention and fight of all kinds of crimes, including
corruption.
C. Mutual Legal Assistance on Corruption
1. Outgoing Requests for Mutual Legal Assistance
The Supreme People’s Procuracy has received 53 1 requests for legal assistance related tocorruption, positions from domestic proceeding-conducting agencies to send to the foreigncompetent authorities. Requests for assistance have included the following crimes:
Embezzlement of property; Deliberately violating the State’s regulations on economic
management, causing serious consequences; Abusing positions and powers while performing
public duties; Lack of responsibility, causing serious consequences; Abuse of positions andpowers to appropriate property; Money-laundering; Violation of regulations on management
and use of State assets, causing loss and waste; Fraud at work. Among the above requests, there
are eight requests relating to the recovery and return of assets to the State of Viet Nam. In
general, the implementation of mutual assistance requests of foreign countries has achieved
positive results. The countries have given support in terms of collecting documents andevidence, contributing to support the domestic criminal justice agencies to handle corruption
cases. Notably, the results of mutual assistance have successfully solved large and complicatedcorruption cases involving people holding high positions in the State apparatus such as: Thecase involving the East-West Highway Project Management Board (CPI Department); The caseinvolving the Vietnam Shipbuilding Industry Group (VinaShin case); The case involving theVietnam Maritime Corporation (Vinalines case); The case involving the Vietnam Railway
Corporation (JTC case); The case of property embezzlement and money-laundering by Giang
Kim Dat and his accomplices; The case of abusing positions and powers while performing
public duties, violating regulations on management and use of State property, causing loss andwaste, and violating regulations on land management committed by Phan Van Anh Vu and his
accomplices; The case of gambling and money-laundering by Phan Sao Nam and his
accomplices; The case of money-laundering and violations of regulations on banking activities
that was carried out by Tran Bac Ha and his accomplices, etc.
2. Incoming Requests for Mutual Legal AssistanceIn the same period, the Supreme People’s Procuracy received and implemented 24 requests
for mutual legal assistance in criminal matters related to corruption from other countries.
1

Statistics over the past 10 years.

181 --- 181

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Crimes related to requests for mutual assistance are embezzlement of property, taking bribes,
giving bribes, money-laundering, abuse of position and power, abuse of power, etc. The
Supreme People’s Procuracy has paid close attention to the exercise of public prosecution andsupervision of mutual legal assistance in criminal matters during the process of domestic
criminal justice agencies in fulfilling foreign requests for assistance. Therefore, theimplementation of the request basically meets the deadlines and procedures at the request offoreign parties, contributing to affirming Viet Nam’s efforts in international cooperation infighting corruption.
D. International Cooperation on Recovery of Corrupt Assets
According to the provisions of the Law on Anti-Corruption 2018 (Article 91), the distraint,
freeze, confiscation and return of corrupt assets are international cooperation activities. The
Supreme People’s Procuracy is the Central Agency for international cooperation in recovering
corrupt assets in criminal proceedings; receiving and processing foreign requests for criminal
legal assistance in recovery of corrupt assets and requesting foreign countries to comply with
Vietnamese requests for criminal legal assistance in recovery of corrupt assets. Accordingly,
the Supreme People’s Procuracy has submitted 12 requests for mutual legal assistance toSingapore, Laos and Cambodia for recovery and return of corrupt assets for the State of Viet
Nam.
E. Bilateral, Multilateral and Technical Cooperation
The Supreme People's Procuracy has participated in many bilateral, multilateral
cooperation efforts on anti-corruption, including the International Association of AntiCorruption Agencies (IAACA), the International Association of Prosecutors (IAP), the AsiaPacific Regional Asset Recovery Interagency Network (ARIN-AP), the Southeast Asia
Network of Judiciary Agencies (SEAJust); bilateral cooperation with the Prosecutor’s Officeand law enforcement agencies of other countries with strong prosecutorial bases and developed
judicial systems, especially South Korea, Japan, Australia, Hungary, Russia, China, the UnitedStates and Germany; and technical assistance cooperation with international agencies andorganizations, including the United Nations Asia and Far East Institute for the Prevention of
Crime and the Treatment of Offenders (UNAFEI).
V. SOME BREAKTHROUGHS IN THE RESULTS OF THE FIGHT AGAINSTCORRUPTION IN RECENT YEARSAlong with the development of the law, the determination to fight against corruption within
the Communist Party and State of Viet Nam is clearly demonstrated through the breakthroughresults in the fight against corruption in recent years. The Procuracy, according to Vietnameselaw, is the agency that exercises public prosecution and supervises judicial activities during theprocess of institution for criminal proceedings, arrest, custody, detention, investigation andprosecution, adjudication of criminal cases; taking many measures to improve the quality andefficiency of work, making an important contribution to the following results:
A. Decisive Direction to Accelerate the Investigation, Prosecution and Adjudication of
Corruption Cases in a Timely Manner with the Direction of “No Forbidden Zone, No
Exceptions, No Privileges, Whoever That Person Is”
In recent years, the Vietnamese State has shown a resolute attitude in detecting,investigating, prosecuting and adjudicating corruption cases. With the guiding viewpoint of theCommunist Party, the State of Viet Nam is “no restricted zone, no exception, no privilege,
whoever that person is”. Accordingly, some particularly serious cases which have long been

- 182 - 182 -VIET NAM
considered a “sensitive and forbidden zone”, and many cases which have lasted from previous
years, have been directed to be dealt with decisively and strictly. This is a bright spot in theanti-corruption struggle, showing the determination of the Communist Party and State of Viet
Nam. Corruption cases which were assessed as particularly serious were monitored anddirected by the Central Steering Committee for Anti-corruption and were tried by the Court
with strict sentences, thereby creating a breakthrough in anti-corruption.
The Communist Party and State of Viet Nam have resolutely and strictly handled a numberof senior incumbent and retired officials who were involved in particularly serious andcomplicated corruption and economic cases. These can be mentioned as the handling of Mr.
Dinh La Thang, former member of the Politburo, in two big cases: first, the case ofembezzlement of property and the intentional violation of state regulations on economic
management, causing serious consequences that occurred at Thai Binh 2 Thermal Power Plant
and Quang Trach Vung Ang Thermal Power Plant; and, second, the case of deliberately
violating state regulations on economic management, causing serious consequences and abuseof position and power to appropriate assets related to the capital contribution of 800 billion
VND (35 million USD) at Oceanbank. Through two court cases, Mr. Dinh La Thang wassentenced to 30 years in prison and was forced to pay more than 600 billion VND (27 million
USD) in compensation. In the above cases, in addition to Mr. Dinh La Thang, there are many
defendants who have held high positions, such as three accused persons who were members of
the National Assembly, four accused persons who held the position of Chairman of PVN, Vice
President of the province;
Corruption develops more sophisticatedly, not only in economic sectors but also in law
enforcement sectors; not only among low-level officials but also high-ranking officials.
Resolution of the 4th Central Committee (term XI) assessed: A large number of cadres andparty members, including those holding leadership and managerial positions, including somesenior cadres, have experienced recession of politics, ethics, lifestyle…, partial, corrupt,
wasteful, arbitrary, unprincipled. Therefore, the Party and State have directed the improvementof the efficiency of inspection, examination, audit, investigation, prosecution, adjudication andstrict handling of violators of corruption and waste. Especially since 2016, after the 12th Party
Congress, General Secretary Nguyen Phu Trong, Head of the Central Steering Committee for
Anti-corruption, launched a broad, comprehensive and drastic anti-corruption campaign withthe motto: “Whoever that person is, in any position, there is no forbidden zone, no exception
in fighting and dealing with corruption.” Since then, anti-corruption efforts have achieved very
positive results, and many corruption cases from the central to local levels have been strictly
adjudicated, including members of the Central Committee and members of the Politburo. As aresult, in the recent five years, the entire Party disciplined nearly 1,400 party organizations andmore than 74,000 party members at all levels.
Among the disciplined, there are 82 provincial commissioners and equivalent; more than
1,500 district commissioners and equivalent; nearly 3,000 party members were disciplined in
the form of dismissal; more than 8,700 were expelled from the Party and more than 4,300
cadres and party members had to be handled by law. Major General Nguyen Van Tin, General
Department of Politics of the People’s Army said that from 2013 to 2020, the whole country
had more than 1,900 corruption cases investigated and adjudicated, and 131,000 Party members
were disciplined, including more than 110 cadres under the management of the Central
Committee (27 members of the Party Central Committee, former members of the Party Central
Committee, 4 members of the Politburo and 30 general-level officers of the armed forces).
Particularly in the first 6 months of 2021, related to corruption, there were 266 cases / 646

183 --- 183

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

defendants prosecuted, 250 cases with 643 defendants prosecuted. The Central Steering
Committee on Anti-corruption has inspected and disciplined 12 party organizations and 20
party members under the management of the Politburo and the Secretariat (including 3
members, former member of the Central Committee, 2 deputy ministers, 1 former provincial
president, 1 former deputy secretary of the provincial Party Committee, 13 general-level
officers in the armed forces). A series of large corruption cases with high-ranking officials werebrought to trial. The Party and State have determined that it must continue to resolutely andpersistently fight against corruption both in state agencies, organizations and enterprises insideand outside the State.
B. Enhancing the Efficiency of Asset Recovery
In the process of solving corruption and economic cases, in addition to ensuring theinstitution, investigation, prosecution and adjudication in accordance with the law, in recent
years, Viet Nam’s criminal justice agencies in general and the People’s Procuracy of Viet Nam
in particular have been active, proactive and aggressive in the recovery of assets lost andappropriated in cases. In addition to ensuring that prosecution, investigation and adjudication
are performed in a prompt, strict, accurate, fair and lawful manner, the Procuracy has
proactively set out requirements for investigation, requests for inspection and verification ofassets; closely coordinated with the investigating agencies to apply measures to seize distrained
assets, frozen bank accounts of related persons right from the stage of dealing withdenunciations, information on crimes and petitions for charge; promptly applied measures toprevent them from transferring, dispersing, concealing or legalizing assets; encouraged
offenders to voluntarily hand over the appropriated property, and voluntarily remedy thedamage caused in order to thoroughly recover the property to the State. The results of asset
recovery in recent years has changed in both quantity and quality, clearly showing the role andresponsibilities of the Procuracy in asset recovery.
As a result, criminal justice agencies recovered an amount of 66,747,243 million
VND/149,616,130 million VND (30 billion USD/68 billion USD), reaching 44.6 per cent of
the amount (in which, the amount of assets recovered in corruption cases were 4,623,981
million VND/66,747,243 million VND (2.1 billion USD/30 billion USD), accounting for 8 percent of the total recovered assets; for corruption cases in judicial activities alone, 22,063 million
VND (100 million USD) were recovered, reaching 58 per cent appropriated assets recovered
in corruption cases in judicial activities. In addition to the recovered amount, criminal justiceagencies have seized, distrained, blocked and requested to suspend transactions of many
valuable assets such as: distraint of 108 parcels of real estate; 159,565 shares; 175 taels of SJC
gold, cars; recovery of 68 parcels of real estate; 393,115 square metres of land; 1,336,690 cubic
metres of timber; USD 50,000; frozen 32,110.71 USD; suspended transaction of 5 land use
ownership certificates; seizing 8 land use ownership certificates and 433,770 kg of copper
sulfide ore.
According to statistics, the recovery rate of corrupt assets has reached over 31 per cent, inwhich the recovery of assets in a number of serious corruption and economic cases is quitehigh.

- 184 - 184 -VIET NAM

NEW AND EMERGING FORMS OF CORRUPTION IN VIET NAM
Dr. Nguyen Trung Kien *The practice of solving corruption cases in recent years in Viet Nam shows that corruption
is the most complicated and difficult to prove as compared with other crimes. This crime iscommitted by individuals with powers, positions and professional qualifications in the field ofwork, having wide social relations, and the ability to influence other people under theirauthority, and they commit criminal acts in a sophisticated way and are capable of concealing
their criminal acts.
Among the types of corruption that have been detected and handled, emerging corruption
cases are related to state assets, finance and banking. Most of these cases are very serious orparticularly serious; the value of appropriated or damaged property is huge with a large numberof defendants, and each defendant/accused has a different role and position, performs a
different function, task or stage of work with close, well-organized connections. The criminal
acts take place for a long time, infringing upon many laws.
I. THE CHARACTERISTICS AND MODUS OPERANDI OF CORRUPTIONCASESCorruption cases generally have similar characteristics, such as the subject of the crime, theself-interested mental state of the accused and the criminal conduct.
A. The Characteristics of Corruption Cases
Regarding the subject of crime: Like other corruption cases, in the corruption cases related
to state assets, finance and banks, the subject of the crime is a person holding position of
authority, powers by appointment, election or assignment in an agency, organization or
economic unit. However, in these cases, there are many defendants/accused holding positions
and powers in many agencies, organizations and units inside and outside the State colluding tocommit crime. Position and authority are not only the specific personal characteristics of theoffender, but also a means used by the offender to perform self-seeking motives throughappropriating or causing damage or loss of property of agencies, organizations or economic
units. Common positions and powers of offenders in these cases are heads of ministries, sectors
and local authorities, chairpersons of the management board, directors, deputy directors,
accountants, treasurers and bank officials. For example, in case of offender Pham Cong Danh,he and his accomplices were convicted of the crimes of “Deliberately violating the State's
regulations on economic management, causing serious consequences” 1 and “Violating
regulations on lending in business activities". activities of credit institutions”, 2 “Lack of
responsibility causing serious consequences”, 3 the Procuracy prosecuted all 46 defendants,
including the accused who is the Deputy Governor of the State Bank, the Chairman of the StateBank of Viet Nam. Director General of Management Board of Dai Tin Commercial Joint Stock
Department of Exercise of Public Prosecution and Supervision over Investigation of Corruption Cases,
Supreme People’s Procuracy of the S.R. of Viet Nam.
1
Article 165 of the revised 2009 Penal Code.
2
Article 179 of the revised 2009 Penal Code (Article 206 of the revised 2017 Penal Code).
3
Article 360 of the revised 2017 Penal Code.
*

185 --- 185

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Bank (TrustBank) and many other companies. Or the case of offender Vu Huy Hoang and his
accomplices were convicted crime of “Violating regulations on the management and use ofstate assets, causing loss and waste” 4 and the crime of “Violating regulations on land
management”, 5 which occurred at the Ministry of Industry and Trade and in Ho Chi Minh City
in relation to the land No. 2-4-6 Hai Ba Trung, District 1, Ho Chi Minh City, the Procuracy hasprosecuted the accused, who are the Minister, Deputy Minister of Industry and Trade, Vice
Chairman of the People's Committee of Ho Chi Minh City and leaders of relevant departments.
For corruption related to state assets, finance, and banking, in the past 10 years, Viet Nam's
criminal justice agencies have prosecuted 6 ministers and former ministers, 13 general officers
in the armed forces, a number of deputy ministers, former deputy ministers, provincial
chairmen, provincial vice-chairmen; many leaders of banks and companies.
Regarding the subjective consciousness: the main purpose of the accused and defendants
is self-interest expressed in receiving material benefits (taking bribes, embezzlement ofproperty) or causing losses, damage of property of the State, the bank to benefit themselves orother defendants. For example, in the case of Phan Van Anh Vu committing the crime of“abusing positions and powers while performing official duties”, 6 the defendants took
advantage of their assigned positions and powers to transfer the ownership and the use of land
owned by the State to companies established and operated by the defendant at a cheap priceand then sold the land to third parties for profit and causing damage to State assets.
Regarding objective behaviour: in these cases, the accused and defendants performed manydifferent acts, not only infringing upon many relationships protected by law such as: the proper
functioning of state agencies, organizations and units; ownership relationship; order of
economic management and in some cases even infringed upon administrative management
order. For example, in the case of Pham Cong Danh, the defendants violated the administrative
management order (regulations on state management of economic management), infringed on
economic management relations (regulations on lending activities of credit institutions) tocause damage to the bank. Objective acts that the accused and defendants perform are often
interlaced and consecutive, in which there are acts performed with the nature of the preceding
acts, creating conditions for the performance of specific acts specified in the composition ofthat type of crime. In the case of offender Nguyen Bac Son, he and his accomplices wereconvicted of the crimes of “Violating regulations on management and use of public investment
capital, causing serious consequences”, 7 “Giving bribes”, 8 “Bribery”, 9 which occurred at
Mobifone Telecommunications Corporation, Global Audiovisual Joint Stock Company (AVG),
Ministry of Information and Communications, defendants Nguyen Bac Son, Truong Minh
Tuan, Le Nam Tra has taken bribes to decide and direct Mobiphone company to buy AVG
company at a price many times higher than the real value, causing loss of state property.
B. Modus Operandi
Corruption cases typically involve similar tactics. The accused and defendants establish
many legal entities to use as tools to commit crimes. In order to establish these legal entities,
the accused and defendants ask or direct their relatives and/or subordinates to provide
Article 219 of the revised 2017 Penal Code.
Article 229 of the revised 2017 Penal Code.
6
Article 356 of the revised 2017 Penal Code.
7
Article 220 of the revised 2017 Penal Code.
8
Article 364 of the revised 2017 Penal Code.
9
Article 354 of the revised 2017 Penal Code.
4
5- 186 - 186 -VIET NAM
identification documents to complete the dossier and act as their legal representative. In fact,
these companies have no business activities, are only used to sign their names in economic
contracts, open bank accounts, carry out procedures to legalize loans, act as intermediaries infinancial transactions, disbursing, receiving money from the bank and then transferring it backto the defendants or opening securities accounts in order to perform acts of manipulating thestock market and earning illicit profits.
1. False Identity Documents
In the case of offender Pham Cong Danh and his accomplices, Pham Cong Danh directed
his subordinates to use 12 legal entities belonging to Thien Thanh Group Company, owned byDanh, to sign fake lease contracts with his own companies; Prepare documents for purchaseand sale of building materials, develop a debt repayment plan to borrow money from VNCB
Construction Bank. After being disbursed, Danh continued to direct the transfer of more than
644 billion VND (29,272,000 USD) to personal accounts and then withdrew money to pay
debts for six companies of Thien Thanh Group with Danh as Chairman of the Management
Board in the name of customer care money but actually transferred money to Danh. Or the caseof stock market manipulation related to the FLC Group Joint Stock Company, which theVietnamese legal proceedings agencies are currently dealing with. According to the initialinvestigation results, it was determined that Trinh Van Quyet directed his younger sister Trinh
Thi Minh Hue to borrow the citizen identity cards of 26 individuals who are relatives of Quyet'sfamily to establish 20 enterprises, and she then opened 450 securities accounts at 41 securities
companies to perform acts of manipulating stock prices in order to create fake supply anddemand with six securities codes of companies established or directed by Quyet, to gain illicit
profits of initially estimated at VND 975 billion (44.3 million USD), causing especially great
losses to investors.
2. Using Established Legal Entities, Subordinates and Relatives to Sign Economic Contracts,
Buy and Sell a Property to Inflate the Value and Then Collude with the Bank to Mortgage
or Resell that Property to the Bank, Earning an Amount Many Times Higher Than the Real
Value of the Property
In the case of Hua Thi Phan and her accomplices, convicted of “Abusing trust to appropriate
property” and “Deliberately violating state regulations on economic management, causing
serious consequences”, after buying house No. 5 Pham Ngoc Thach, Ward 6, District 3, Ho
Chi Minh City, Hua Thi Phan instructed her subordinates to buy and resell many times toincrease the value of the house to 8 times higher and then sell the house to Dai Tin Joint Stock
Commercial Bank for 1,256 billion VND (57,000,000 USD), appropriated from the Bank 1,105
billion VND (50,200,000 USD).
3. Colluding with the Bank's Leaders, Using an Asset, Then Overstating its Value,
Mortgaging It at Different Banks to Borrow Money, and Then Legally Appropriating It,
Leading to the Inability to Repay the Debt, Causing Damage to the Bank
In the case of Pham Cong Danh who used some real estate in Ho Chi Minh City and Da
Nang City to mortgage at many banks to appropriate 2,095 billion VND (US$ 95,227,000).
4. Making False Documents, Validating the Investment, Payment to Withdraw Money fromEnterprises and Banks
For example, in the case of offender Ha Van Tham, he and his accomplice were convictedof “intentionally violating State regulations on economic management, causing serious
consequences”, “embezzlement of property”, “abuse of positions and powers to appropriate
assets”. Ha Van Tham, as Chairman of Ocean Commercial Joint Stock Bank (Ocean Bank),

187 --- 187

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

and his accomplices made 45 false contracts to withdraw money for personal use, causing
damage to the bank in the amount of 118 billion dong (US$ 5,336,000). In Dinh La Thang’scase, defendant Trinh Xuan Thanh, as Chairman of the Vietnam Oil and Gas Construction
Corporation (PVC), set out a policy and colluded with a number of other defendants by making
false documents to withdraw 13 billion dong (about US$ 59,000) from the Vung Ang - Quang
Trach Project Management Board for personal use.
5. Intentionally Violating the State's Regulations on Economic Management to Appropriate
Property or Cause Damage to the Bank or the Company in which the Offender Holds a
Leadership and Management Position
For example, in the case of offender Ha Van Tham, with the position of Chairman of
OceanBank, Ha Van Tham directed to pay bank deposit interest rates exceeding the ceiling rateprescribed by the State Bank, to pay extra interest, collect other fees in contravention ofregulations. In order to legalize and withdraw the differences of amount (interest rate exceeding
the ceiling rate and illegal fees) out of the bank, Tham and his accomplices required customers
who borrowed capital or bought foreign currency to sign a service contract with BSC Vietnam
Joint Stock Company (founded by Tham) and transferred the differences to this company. In
the case of offender Dinh La Thang, former Chairman of the Membership Board of the Vietnam
Oil and Gas Group (PVN), despite knowing that the Vietnam Oil and Gas Construction Joint
Stock Corporation (PVC) is incompetent and has a financial imbalance but still set out
guidelines and decided to appoint contractors, allowing PVC Corporation to perform many
bidding packages in the Construction Project of Thai Binh 2 Thermal Power Plant incontravention of regulations, and at the same time directed subordinates to advance more than
66.2 million USD for PVC, causing damage to the State of nearly 120 billion VND (5.4 million
USD).
6. The Consequences of Crime
The appropriated amount of money, the value of damaged property caused by the criminal
acts of the accused and defendants in these cases are very huge. In the case that happened at
Mobifone Telecommunications Corporation, Audiovisual Global Joint Stock Company (AVG),
the Ministry of Information and Communications, defendant Nguyen Bac Son received a bribeof 3 million USD, and the defendants caused damage to state property of 6,500 billion VND(more than 300 million USD). In the case of offenders Ha Van Tham and Nguyen Xuan Son,the defendants embezzled state assets with an amount of more than 2.5 million USD, and at thesame time caused damage to Ocean Bank of more than 1,300 billion VND (more than 72
million USD). In Vu Huy Hoang’s case related to the land at No. 2-4-6 Hai Ba Trung Street,the defendants caused damage to the State amounting to VND 2,700 billion (more than USD
130 million).
II. EXPERIENCES IN THE PROCESS OF EXERCISING THE PUBLICPROSECUTION AND SUPERVISING INSTITUTIONS: INVESTIGATION,PROSECUTION AND ADJUDICATION OF CORRUPTION CASES RELATED TO
STATE ASSETS, FINANCE AND BANKING
The Procuracy plays an important position and role in the process of solving criminal cases.
It is the agency that exercises the public prosecution and supervises judicial activities, and theProcuracy has taken many measures to ensure the resolution of criminal cases in general, andcorruption cases in particular, to which the offender shall be charged, investigated, prosecutedand adjudicated in a prompt, strict, accurate, fair and lawful manner. The Procuracy must

- 188 - 188 -VIET NAM
neither let injustice be done against the innocent nor omit offences and offenders. As discussed
further below, the Procuracy pursues the maximum recovery of corrupt assets.
The Procuracy has the following roles and responsibilities in handling criminal cases:
Supervising 100 per cent of crime information and denunciations, petitions for institution ofproceedings, ensuring that the institution of the case is grounded, and the case is handledaccording to its competence; strictly supervise the receipt and preparation of casefiles to handle
crime information; proactively set out requirements of inspection and verification to clarify thefacts, orient the inspection and verification by the investigating agency; resolutely request or
directly issue decisions to annul the unlawful decisions to open or refrain from opening
criminal cases by the investigating bodies; directly inspect and verify when detecting serious
violations of the law or signs of omission of crimes which the Procuracy has requested inwriting but the investigating agency does not correct accordingly etc; ensure 100 per cent ofcorruption-, position- and economics-related cases must be instituted and investigatedaccording to law as soon as there are sufficient grounds.
The Prosecutor General of the Procuracy at all levels directly directs the exercise of publicprosecution, supervision of the investigation, prosecution and adjudication of corruption andposition cases. Prosecutors firmly grasp the progress of the investigation of the case,proactively make investigation requirements to orient and support investigators in collecting
evidence and documents to clarify circumstances in the case, accurately identify the offenderand appropriated or lost properties; being cautious in considering and approving procedural
orders and decisions submitted by the investigating agencies; directly interrogate the defendant
before approval in cases where the arrested person, the defendant does not admit or has aconflict between documents and evidence; strictly and fully perform direct supervision wheninvestigators conduct investigative activities such as: search, confrontation, voice recognition
etc; implement and strictly supervise the interrogation of the accused, taking testimonies withaudio or video recording; strictly supervise the transfer of investigation documents; closely
supervise the decision to suspend the investigation, especially the suspension of exemption
from criminal liability or because of acts that do not constitute a crime; strictly manage the casefile and the defendant in temporarily suspension in order to request recovery of the case when
there are sufficient grounds, to avoid omitting criminals, offenders etc.
During the prosecution stage, the prosecutor carefully studies the case file, obtains thedefendants' testimony to examine and assess their prior statements, documents, incriminating
evidence and exculpatory evidence in a comprehensive and objective manner before deciding
to prosecute, ensuring that the prosecution is performed in an accurate, fair and lawful manner.
In the process of adjudicating corruption-, position- and economic-related cases, theProsecutor collects both incriminating and exculpatory evidence, fully anticipates issues to bequestioned, develops a plan for arguments and response at the trial, and drafts accusation rightfrom the trial preparation stage. At the trial, the Prosecutor actively interrogates and argues toclarify the circumstances of the case, present documentary evidence and arguments to fully
respond to the opinions of the accused, defence counsels and participants in the proceedings,
and closely supervises the adjudication activities of the Trial Panel.
Regarding recovery of corrupt assets, the Procuracy proactively sets out investigation
requirements, requests for inspection and verification of assets; closely coordinates with theinvestigating agency to apply measures to seize or distrain assets, freeze bank accounts of thosesuspected of crimes relating to corruption and position right from the stage of denunciation,

189 --- 189

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

crime information; promptly applies measures to prevent the suspected from transferring,
dispersing, concealing or legalizing assets; encourages offenders to voluntarily hand over theappropriated property, to voluntarily recover the damage caused. Prosecutors directly
participate in interrogation activities of the defendant, request agencies and organizations toprovide documents related to the assets of the defendant in the case in order to promptly detect
the assets coming from the criminal, assets owned by the defendant, assets of the defendant but
transferred to his/her relative's name with signs of property dispersal, and on that basis, request
the investigating agency to apply measures to distrain assets and freeze bank accounts.
III. DIFFICULTIES FACED BY VIETNAMESE CRIMINAL JUSTICE AGENCIESIN DEALING WITH CORRUPTION CASES
Viet Nam’s legal system is constantly being improved, creating a legal basis to detect andhandle corruption and abuse of position cases quickly and promptly. However, someregulations related to land, state property management, economy, finance and banking are still
unclear and unspecific. A number of regulations are still inconsistent with the provisions of the
Criminal Procedure Code, causing difficulties for criminal justice agencies in the process ofresolving corruption and abuse of position cases.
To determine the amount of appropriated money and the value of damaged property causedby the criminal acts of the accused or defendants in cases related to state property, finance,banks, criminal justice agencies must have the ability to assess and value cases like a
specialized agency. However, many cases happened many years ago in which books anddocuments were lost and destroyed; construction works were damaged or still in the process ofconstruction, leading to incomplete collection of documents, difficulties in assessment andvaluation, and even some cases could not be assessed and valued.
Corruption and position-related crimes are often accompanied with money-laundering andtransnational crimes. Therefore, to solve and clarify the whole case and ensure that no offenders
are omitted requires mutual legal assistance and international cooperation. However, thecooperation in the fight against crime between countries still does not meet the requirements.
In some cases, the defendant flees to other countries, and Viet Nam's investigative agency has
made an international arrest but to no avail.
Because the assets appropriated by defendants are typically quite large, especially in cases
related to state assets, bank and finance, the assets are often transferred abroad for dispersal or
money-laundering. Therefore, verification and recovery of these assets are often difficult,depending on the cooperation of the country where the assets are located:
https://lsvn.vn/tuong-tro-tu-phap-hinh-su-asean-va-thuc-tien-thuc-hien-cua-viet-nam.html
IV. NEW AND EMERGING TRENDS OF CORRUPTION IN VIET NAM
The recent practice of dealing with corruption and position cases related to State property,
finance and banks has shown that corruption and position-related crimes related to State assets,finance, and banks tend to be increasingly serious. A large number of defendants and theaccused participate in sophisticated schemes infringing upon many social relations and, at thesame time, appropriate property and its damage is serious and involves close collusion between
the defendants, the accused, holding positions and powers in State agencies. The defendants
and the accused also work in banks and private companies, and many cases involve foreign
elements. Along with the development of the economy and the policies promoting development,- 190 - 190 -VIET NAM
creating favourable conditions and business environment for enterprises, corrupt acts are
expected to increase in number and in the seriousness of their nature in the near future.
The speed of urbanization and the rapid development of the real estate and financial
markets is the driving force for economic and social development, but these markets also
become the targets of corruption. Besides new and innovative forms of investment and business
to optimize profits, increase quality and efficiency, corruption related to State assets, financeand banks are also planned. Corruption will appear in more forms, employing sophisticatedschemes. The stricter degree of collusion requires criminal justice agencies to continuously
update knowledge and information, have an accurate and appropriate approach to identify all
criminals, but not criminalize business relationships to ensure a stable business environment,
protect legitimate businessmen.
Corruption involving position-related crimes involving state property, finance, and banks
are not only limited to the territory of Viet Nam but are gradually expanding to many foreign
individuals and organizations.
The development of science and technology also creates conditions to commit corruption,
conceal their criminal acts, organize, connect with accomplices, launder money, disperse
corrupt assets and flee when discovered.
V. SOLUTIONS AND RECOMMENDATIONS
A. Legislative Activities
Amending and perfecting the law on state asset management, finance and banks, ensuring
to fill legal gaps in accordance with international treaties that Viet Nam has signed andinternational practices while minimizing violations and crimes; create a clear and transparent
legal corridor in the management and handling of crimes. Administrative reform, improving
the efficiency of public service performance, limiting and ending the "ask-give" mechanism ofadministrative agencies and state management.
B. International Cooperation
Strengthening the negotiation and signing of mutual legal assistance agreements;
strengthening cooperation between law enforcement agencies in different countries, first of allin the ASEAN region, regularly exchange practical experiences, closely coordinate in crime
prevention and control, especially in corruption, position-related crimes and moneylaundering; quickly and promptly providing mutual legal assistance, extradition and recovery
of criminal assets.
C. Activities of Exercising of Public Prosecution and Supervising Institutions:
Investigation, Prosecution and Adjudication of Corruption and Position-related
Cases
Leaders of procuracies at all levels must uphold their responsibilities, especially the heads;
regularly direct, guide and inspect the professional activities of the prosecutor, directing thesettlement of problems in the process of exercising public prosecution and supervising
investigation and adjudication. For cases of corruption and position-related crime, the Chief
Prosecutor must direct and assign experienced and capable prosecutors to perform the task of
exercising public prosecution, supervising investigation and adjudication; must directly
examine documents and evidence in order to promptly detect violations and shortcomings in
the process of handling crimes information and denunciations, petitions for institution and

191 --- 191

SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

investigation. Leaders need to promote collective wisdom through roundtable meetings among
members of the Procuracy Committee at the provincial level, internal meetings at the districtlevel to assess evidence for complicated cases and to discuss solutions; to establish expert
working groups to assist the Prosecutor in the process of settling the case.
Focusing on the evaluation, arrangement, use and appointment of Prosecutors in order toselect the prosecutors with sufficient qualities, capabilities and qualifications to meet therequirements of performing their assigned responsibilities and tasks on the basis of
responsibility, quantity and efficiency, sense of professional discipline; ability to research,grasp, propose and handle situations arising in practice.
D. Innovating and Improving Training
Training institutions of the Procuracy need to invest in building curriculum and invite
experienced and qualified lecturers to train in-depth skills in receiving and handling crimes
information, denunciation and proposing to institute cases of corruption and position-related
crimes; make investigation requirements, request collection of evidence and documents,
develop expertise in solicitation and interrogation of the accused; interrogation skills at court;
argumentative and debating skills. Focusing on summarizing practice, developing topics todraw experience to organize specialized training courses or in-depth training to equip
Prosecutors and legal officials with knowledge and skills; organize annual intensive training
courses to draw experience, exchange and update knowledge and skills in dealing withcorruption, positions, and economics related to position cases.

- 192 - 192 -APPENDIXSIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE
PARTICIPANTS’ LIST
Name
Mr. Md Khairol Faizal Rizal
PaijanTitle and Organization
Chief Special Investigator
Anti-Corruption Bureau
Brunei Darussalam

Mr. Md Qamarul Affyian Abdul
RahmanDeputy Public Prosecutor
Attorney General's Chambers
Brunei Darussalam

Mr. Soy Chanvicheth

Assistant to ACU
Anti-Corruption Unit (ACU)
Kingdom of Cambodia

Mr. Ros Saram

Prosecutor
Prosecution office of Koh Kong
Ministry of Justice
Kingdom of Cambodia

Mr. Suyanto Reksasumarta

Head of Regional Section II
Directorate of Investigation
Attorney General's Office
Republic of Indonesia

Mr. Titto Jaelani Agis

Head of the Prosecution
Task Force IX
Corruption Eradication Commission (Komisi Pemberantasan
Korupsi)
Republic of Indonesia

Ms. Kienthong Namkhalak

Senior Anti-Corruption and Investigation Officer
State Inspection Authority
Lao People's Democratic Republic

Mr. Yuhafiz Bin Mohd Salleh

Deputy Director of Investigation (Public Sector)
Department of Investigation
Malaysian Anti-Corruption Commission (MACC) Headquarters
Malaysia

Mr. Law Chin How

Deputy Public Prosecutor
Attorney General's Chambers
Malaysia

Ms. Luanne Ivy Montano
Cabatingan

Graft Investigation and Prosecution Officer
Office of the Ombudsman
Republic of the Philippines- 193 - 193 -SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

Mr. Hu Youda Eric

Deputy Public Prosecutor / State Counsel
Attorney General’s Chambers
Republic of Singapore

Mr. Yongyoot Srisattayachon

Executive Director
Office of the Attorney General
Kingdom of Thailand

Ms. Panyakorn
Amonpanyapakomol

Corruption Prevention Officer
Professional Level
Office of the National Anti-Corruption Commission
Kingdom of Thailand

Mr. Matias Soares

Prosecutor of the Republic
General Prosecution Office
Democratic Republic of Timor-Leste

Mr. Luis de Oliveira Sampaio

Deputy Commissioner for Prevention and Public AwarenessRaising
Anti-Corruption Commission
Democratic Republic of Timor-Leste

Ms. Hoang Thi Thuy Hoa

Head of Division
Department of International Cooperation and Mutual Legal
Assistance in Criminal Matters
Supreme People's Procuracy
Socialist Republic of Viet Nam

Mr. Nguyen Trung Kien

Prosecutor
Department of Practicing Public Prosecution and Supervisingover Investigation of Corruption Cases
Supreme People's Procuracy
Socialist Republic of Viet Nam- 194 - 194 -APPENDIX
Sixteenth Regional Seminar on Good Governance for Southeast Asian Countries– New and Emerging Forms of Corruption and the Effective Countermeasures –SEMINAR SCHEDULE
14-16 December 2022
Host
United Nations Asia and Far East Institutefor the Prevention of Crime and the Treatment of Offenders (UNAFEI)
Tuesday, 13 December
Registration
Wednesday, 14 December
9:30-9:40 Opening Ceremony
Opening Remarks by Mr. MORINAGA Taro, Director, UNAFEI
9:40-10:40 Presentation by Specialist Lecturer
10:40-11:00 Break
11:00-12:00 Presentation by Visiting Expert
12:00-13:30 Lunch Break
13:30-14:10 Country Presentation by Brunei
14:10-14:50 Country Presentation by Cambodia
14:50-15:10 Break
15:10-15:50 Country Presentation by Indonesia
15:50-16:10 Break
16:10-17:10 Presentation by Specialist Lecturer
18:00Welcome Reception co-hosted by ACPF and UNAFEI
Thursday, 15 December
9:30-10:10 Country Presentation by Lao PDR
10:10-10:50 Country Presentation by Malaysia
10:50-11:10 Break
11:10-11:50 Country Presentation by Philippines
12:00-13:30 Lunch Break
13:30-14:10 Country Presentation by Singapore
14:10-14:50 Country Presentation by Thailand
14:50-15:10 Break
15:10-15:50 Country Presentation by Timor-Leste
15:50-16:30 Country Presentation by Viet Nam
16:30-16:50 Break
16:50-17:30 Country Presentation by Japan
Friday, 16 December
9:50-10:20 Courtesy Visit to Vice Minister of Ministry of Justice
10:30-12:00 Study Trip to Tokyo District Court
12:00-13:00 Lunch Break at Ministry of Justice
13:00-14:30 Return UNAFEI
14:30-15:00 Photo Session- 195 - 195 -SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

15:00-15:40 Discussion & Chair’s Summary
15:40-16:00 Break
16:00-17:30 Closing Ceremony
Evaluation Session
Presentation of Certificates
Closing Remarks by Mr. MORINAGA Taro, Director, UNAFEI
18:00Farewell Dinner co-hosted by ACPF and UNAFEI
End of the Seminar
Saturday, 17 December
Leave from UNAFEI for the airport by bus- 196 - 196 -APPENDIXPHOTOGRAPHS Opening Remarks by Director Morinaga Lecture by Mr. Cheung- 197 - 197 -SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

 The Seminar (Presentation)

 Lecture by Mr. Gallo- 198 - 198 -APPENDIX

 The Seminar (Participants)

 Presentation by Participants- 199 - 199 -SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

 Visit to the Vice Minister of Justice Group Photo in Front of UNAFEI- 200 - 200 -APPENDIX

 Closing Ceremony- 201 - 201 -SIXTEENTH REGIONAL SEMINAR ON GOOD GOVERNANCE

GOOD
GOVERNANCE SEMINAR
GOOD
GOVERNANCESEMINARINDEX
INDEXSeminar
Theme
No. No. Seminar
Theme
Corruption Control in the Judiciary and Prosecutorial
1 Corruption Control in the Judiciary and Prosecutorial
Authorities
Authorities
2
Corruption Control in Public Procurement
2
Corruption Control in Public Procurement
Regional Strengthening of Domestic and International Co-operation
Regional Strengthening of Domestic and International Co-operation
Forum for Effective Investigation and Prosecution of Corruption
Forum for Effective
and Prosecution
Corruption
Measures Investigation
to Freeze, Confiscate
and RecoverofProceedsof
3 Measures to Freeze, Confiscate and Recover Proceeds ofCorruption,
Including
PreventionofMoney-Laundering
3
Corruption,of Money-Laundering
Securing Including
Protection Prevention
and Cooperationof Witnesses and
4 Securing Protection and Cooperation of Witnesses andWhistle-Blowers
4
Whistle-Blowers
Preventing Corruption: Effective Administration and5
CriminalCorruption:
Justice Measures
Preventing
Effective Administration and
5International
Criminal
Justice Cooperation:
Measures Mutual Legal Assistnace and6ExtraditionCooperation: Mutual Legal Assistnace andInternational
6
Enhancing Investigative Ability in Corruption Cases
7 Extradition
Current Investigative
Issues in the Investigation,
ProsecutionCases
andAbility in Corruption
7 8 Enhancing
AdjudicationofCorruption
Cases
Current Issues in the Investigation, Prosecution and
8
Current Challenges and Best Practices in the Investigation,
Adjudication of Corruption Cases
Prosecution and Prevention of Corruption Cases – Sharing
9
Current Challenges and Best Practices in the Investigation,
Experiences and Learning from Actual Cases
Prosecution
and Prevention
Corruption
Cases – Sharing
9
Contemporary
Measures forofEffective
International
10 Experiences and Learning from Actual Cases
Cooperation
Contemporary
Measuresfor Effective
International
Best Practices
in Anti-Corruption:
A Deceadeof Institutional
10 11
Cooperation
and Practical Development in Southeast Asia
BestThePracticesin Anti-Corruption:
A Deceade
Latest Regional
Trends in Corruption
and ofEffective
11 12
InstitutionalandPractical
Development
inSoutheast
Asia
Countermeasures by Criminal Justice Authorities
FinancialTrends
Investigation
and Anti-MoneyTheEffective
Latest Regionalin Corruption
and Effective
12
Laundering Measures
for Confiscation
and Asset Recovery
13 Countermeasures
by Criminal
Justice Authorities
to Counter
New and
Emerging Threats
Effective
Financial
Investigation
and Anti-MoneyIntegrity
andIndependenceof Judges, Prosecutors
and Law
13 14 Laundering Measures for Confiscation
and Asset Recovery
Enforcement
Officials
to Counter New and Emerging Threats
Effective International Cooperation for Combating
15 Integrity and Independence of Judges, Prosecutors and
14
Corruption
Law Enforcement Officials
New and Emerging Forms of Corruption and the Effective
16 Effective International Cooperation for Combating
Countermeasures
15
Corruption
New and Emerging Forms of Corruption and the Effective
16
Countermeasures1- 202 - 202 -

Venue
Venue

SeminarPublication
Seminar Publication
Date
Date
Date
Date

Bangkok,
Bangkok,Thailand
Thailand

DecDec2007
2007 Sep 2008
Sep 2008

Bangkok, Thailand
Bangkok, Thailand
Tokyo, JapanTokyo, Japan

Jul 2008
Dec 2008
Jul 2008
Dec 2008
Dec 2008
Dec 2009
Dec 2008
Dec 2009

Manila, Philippines
Manila, Philippines

Dec 2009
Oct 2010
Dec 2009
Oct 2010

Manila, Philippines
Manila, Philippines
Tokyo, JapanTokyo, JapanTokyo, JapanTokyo, Japan
Kuala Lumpur, Malaysia

Dec 2010
Nov 2011
Dec 2010
Nov 2011
Dec 2011
Aug 2012
Dec 2011
Aug 2012
Dec 2012
Nov 2013
Dec 2012
Nov 2013
Dec 2013
Nov 2014

KualaLumpur,
Lumpur,Malaysia
Malaysia NovDec2013 Jun Nov
Kuala
2014
2015 2014
Kuala Lumpur, Malaysia
Nov 2014
Jun 2015
Jakarta, Indonesia
Nov 2015
Mar 2016
Jakarta, Indonesia
Yogyajakarta, Indonesia

Nov 2015
Mar 2016
Jul 2016
Jan 2017

Yogyajakarta,
Indonesia
Hanoi, Viet Nam

2016 Mar 2018
Jan 2017
Oct Jul2017

Viet Nam
Nam
DaHanoi,Nang, Viet2017 Mar Mar
NovOct201820192018

Da Nang, Viet Nam
Tokyo, Japan

Nov 2018
Mar 2019
Dec 2019
Oct 2020

Tokyo,JapanJapan
Tokyo,

2019 Jul 2021
Oct 2020
MarDec2021

Tokyo, JapanTokyo, JapanDec 2021
Oct 2022
Mar 2021
Jul 2021

Tokyo, JapanTokyo, JapanDec 2022
Aug 2023
Dec 2021
Oct 2022

Tokyo, JapanDec 2022

Aug 2023