Draft 16thNovember 2015
T. Morinaga

Keynote Address
Ninth Regional Seminar on Good Governancefor Southeast Asian Countries(Jakarta, 24 - 26 November 2015)

Introduction
Before beginning with my remarks, I just would like to say that it is really a greathonour and privilege for me to be given an opportunity to deliver the keynote address inthe presence of such honourable guests, learned experts and distinguished participants
gathered here at this meaningful occasion. UNAFEI is truly grateful as to the efforts
made by all those who have been involved in the planning, preparation andimplementation of this Ninth Regional Seminar on Good Governance here in Jakarta. I
would like to express special thanks to the people of the Attorney General’s Office of
the Republic of Indonesia and the Corruption Eradication Commission for theirtremendous job of co-hosting, as well as for their kindness and hospitality.
Each year, the purpose of this seminar is to discuss and share with each otherexperiences, information and insights about investigation, prosecution and prevention ofcorruption cases. This year, the focus will be on the two topics we have chosen inadvance and which were approved by our co-hosts.
The idea of choosing the first topic of this year’s seminar, “mutual legal assistance andasset recovery”, stems from our perception that, although fighting against corruption has
already become quite an international issue, law enforcement and the judiciary have so
far been unable to keep up with the rapid pace of internationalization of corruption
crimes. In order to outpace this trend, investigators, prosecutors and also the courts need
to be backed up with effective systems, equipped with practical knowledge, skills andhandy tools, and provided with information and support which enable them to do theirjobs effectively and efficiently, even if the cases before them involve international
elements and require cross-border activities — just as though they’re just dealing withany other domestic case.
The second topic “public-private partnership in the prevention and detection ofcorruption” reflects our view that today it is no longer possible for any law enforcement
agency or officer to take effective action towards the detection and prosecution ofcrimes of corruption without the strong support and cooperation of the general public.
This is true not only for the detection, investigation and prosecution of alreadycommitted crimes, but also for prevention. The issue of public-private partnership also
extends to the area of raising awareness among the general public as to the perilous anddamaging nature of corruption with respect to which school education, as well as social
activities for the promotion of good governance and integrity in the private business1

sector, are especially important.
Since the scope of the two topics is very broad, one may imagine a huge variety of
discussions spotlighting the relevant issues from many different angles. However, what
we have in common in this forum is that most of us are practitioners, not policymakers
or academics. So, naturally, our discussion will be, and ought to be, anchored in our
individual or institutional experiences in the field. Our express or implied message that
could be reflected in the results of our discussion during the next two days might bear
the characteristics of a shared opinion from a practitioner’s point of view. That message
is something we can all bring back home and hopefully utilize for the improvement of
our individual or institutional capacity to tackle crimes of corruption. But at the sametime, it is also my hope that our message will serve as a catalyst for the improvement of
our anti-corruption systems and legal frameworks. And I would be more than delighted
if that message eventually leads to the raising of awareness and enhancing of thecommitment of policymakers and the general public to fight against corruption in eachof our jurisdictions, resulting in enlarged allocation of human and financial resources tothe efforts being made towards the eradication of corruption.

Mutual Legal AssistanceIn our last seminar in Kuala Lumpur, I mentioned the psychological barriers that makeinvestigators and prosecutors reluctant to pursue activities involving international
matters including the use of mutual legal assistance. Although I still believe that such
psychological hindrances are one of the biggest obstacles which must be overcome bypractitioners, it is true that sometimes the difference in the systems and practices
between countries can be an obstacle when trying to obtain evidence from abroad or tohave a suspect extradited. In spite of that, we have heard of many examples of cases
which were prosecuted successfully, cases in which investigators and prosecutors
equipped with adequate practical knowledge and skills have overcome obstacles bymaking use of every possible tool and channel available to them. I believe that, behindsuch success, there must have been a good understanding and sufficient knowledge
among the investigators and prosecutors of the systems and practices of their respective
counterparts and a shared idea about what it is like to be involved in a corruption
investigation. And if you would like to understand and make use of systems andpractices of a foreign country or jurisdiction, you will be required to be very flexible inyour way of thinking. There may be systems and practices which you have never heardof before, and you may be puzzled by those, but if you study those systems or practices
carefully with an open mind, you will find out that every system or practice has its own
rationale and background, and there is a way to connect the foreign system or practice toyour system or practice. Figuratively, every system or practice can “interface” withanother system or practice. All you have to do is to find, with the help of your flexible
thought, the interface.
Now, let me tell you about an example of how my mind was inflexible when I
encountered international assistance for the first time in my career as a Japaneseprosecutor — a small experience which was very much eye-opening for me.
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As far as I recall, it was in my fourth year as a public prosecutor when I was ordered tojoin an investigation team of prosecutors at the Tokyo District Public Prosecutors Officehandling a fraud case that had quite an international feature. An international businesslawyer, in conspiracy with an executive of an international courier company, defraudeda corporation in Tokyo of 3 million US Dollars. The corporation filed a criminal
complaint with the Tokyo District Public Prosecutors Office, and the investigation was
carried out by its prosecutors without any involvement of the police force. The lawyer
and his accomplice recommended the victimized corporation to purchase a quite
sophisticated, high-tech industrial garbage disposal machine invented and produced by acompany in Switzerland. The victim was persuaded to enter into a contract to purchaseof one of those machines at the wholesale price of 3 million US Dollars, but the actual
wholesale price offered by the Swiss company was only 1 million US Dollars. The
suspects forged the relevant documents and received 3 million Dollars from the victim
by wire transfer to a bank account which the suspect had opened in Switzerland. As theinvestigation proceeded, we found clues indicating that a substantial part of the moneyin that bank account may have been subsequently transferred to several bank accounts
in Switzerland, England, Canada, the United States and the Commonwealth of the
Bahamas. So, we went on trying to obtain the records of these bank accounts, and forthat purpose we requested, via the proper channels, assistance in investigation fromthese countries. Since our lead prosecutor, having had some diplomatic experience,knew that only sending papers to these countries may not be very effective, he decided
to visit the relevant authorities of these countries, and asked me to help him with that.
He went to Switzerland, England and Canada, and I went to the US and the Bahamas.
Now, all of our requests for assistance to these states, except the Bahamas, were very
quickly responded to and good results were achieved in due time. Actually, I was verymuch surprised that the first substantial response came from the US within two weeks,
from an US assistant district attorney of the Southern District of California. But therelevant authority in the Bahamas withheld its response for some reason and said that it
would wait until I arrive and give them a detailed explanation. So, after finishing mytask in Washington and Chicago, I flew to Nassau and visited the Department of Legal
Affairs.
There, I was welcomed by a rather high-ranking officer in charge, the Director ofInternational Affairs, who bothered to have a thorough discussion with me. In addition
to the explanation about the whole case and the necessity to obtain the bank accountrecords, he asked me to explain the Japanese prosecution system and the role of publicprosecutors. After carefully listening to my explanation with some crucial questions andanswers in between, he told me, that, with regret, he had no other choice than to turndown our request. According to his explanation, in order to obtain a bank accountrecord in the Bahamas, where protecting bank secrecy is a national policy, a court orderis needed, and for a court in the Bahamas to issue an order to that effect based on arequest from a foreign country, it needs to have a request from the “judiciary” or an“equivalent authority” of the requesting country. And the reason why the Ministry of
Legal Affairs withheld its response was that they were not sure whether the Japanese
authority which made the request — the Japanese prosecution — can be regarded as
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being, in the context of applicable laws of the Bahamas, an “equivalent authority” if notconsidered a part of the “judiciary”, and had needed further information on this point. I
once again tried to persuade him that the Japanese prosecution is to be understood as
being a “quasi-judicial organ” and should be qualified to make the request to a
Bahamian court. But the Director cited a precedent in which the High Court of the
Bahamas refused the assistance request from a US Federal Grand Jury for the reason
that the it does not qualify as a “judiciary or an equivalent authority” and concluded that,given the characteristics of the Japanese prosecution as compared to the US Grand Jury,it is difficult to regard it as fulfilling this procedural requirement.
I was indeed disappointed, but what struck me was the sincere attitude of the Ministryof Legal Affairs of the Bahamas. From the conversation I had with the Director andfrom his very persuasive explanation, I felt that he, and maybe his staff members, too,
had already done thorough, exhaustive legal research before my arrival at Nassau about
whether there was any way they could positively respond to our request underBahamian law, although the result was negative. I think that my guess is partly provenby the advice the Director gave me after telling me about the refusal of our request.
Maybe he felt a bit sympathetic about the poor, inexperienced, young prosecutor fromJapan who had come all the way from the other side of the globe just to be informed
about a negative outcome. He told me that, although the threshold was very high, andthe Ministry of Legal Affairs as a part of the Bahamian government could not in any
way assist, there was another possibility for the Japanese government to obtain the bankrecords — to file a civil lawsuit against the bank. His explanation was that, if thegovernment of Japan or the victim of the fraud is willing to be a civil plaintiff, then it
can hire a Bahamian private lawyer and file a motion with a Bahamian court seeking
disclosure of evidence which is to be used in subsequent civil litigation seeking therecovery of the defrauded money. Of course there was no guarantee that the court would
grant the disclosure, he said, but if the Japanese prosecution was desperate to get thebank records, it would be worth trying.
Our investigation team did not take further action as to the bank account in the Bahamas,
because it seemed quite difficult and also costly for the Japanese government, as well as
the victim, to act as a plaintiff in a Bahamian court of law. Besides, judging from theresults of other investigation activities, we came to the conclusion that the money
stashed in the Bahamian bank account seemed to be an insignificant amount, and we
could just ignore it. But the experience in Nassau had a significant meaning to me
personally. At that time, I must confess, I was really ignorant about what we need to dowhen seeking international assistance. It should have been done by us, but it was theofficers of the Bahamian Ministry of Legal Affairs that did the research to find theinterface needed for international cooperation between the Bahamas and Japan. And, thepossibility of pursuing the civil procedure, I must confess, had never come to my mind
until I had the conversation in Nassau; I simply had lacked the flexibility in my legal
mind. As to that, I really felt ashamed as a government lawyer. Keep your mind flexible,
do the research well, and be eager to know your counterpart. That is the key to success.

4Asset Recovery
Some 15 years later, when I started working at UNAFEI and the issue of asset recovery
in corruption cases began to pop up as a quite popular topic in our training courses, itmade me recall the advice of the Bahamian Director who suggested that we could
initiate a civil proceeding. The concept of asset recovery, especially the
non-conviction-based forfeiture as a remedy, has very similar aspects to what the
Director told me. In fact, in the United States, non-conviction-based forfeiture seems tohave been conceived as a civil remedy.
Although UNCAC recommends its member countries to establish a certain system for
asset recovery, the differences among legal systems are naturally due to the differencesin their respective laws and practices. When asset recovery becomes a cross-borderissue, these differences have to be studied very carefully, since they directly affect theability to recover the proceeds of crime. A well-established system in one country may
not be known to the other. A good investigation strategy developed in one jurisdiction
may not always be fit for use in another. For a quick example, the system of civil
litigation against an asset, which seems to be commonly used in some Anglo-American
jurisdictions as a means of asset recovery, does not exist in Japan. In this seminar, I lookforward to hearing precious examples of successful operations and information on goodpractices that we may share among each other, about how the investigators andprosecutors have overcome the challenges they have faced.
Successful international asset recovery requires a thorough study on the systems andpractices of the concerned countries, starting from the basics of international legal
assistance, such as reciprocity, dual criminality and so on, and going all the way to theadvanced issues of whether the wanted procedure really exists in your counterpart
country or not, or what can be substituted for a non-existing system or practice. If you
resort to civil proceedings, even the laws on the conflict of laws may come into question.
Viewed the other way around, it is a matter of what measures you can offer orrecommend to your counterpart authorities when they would like to pursue their goalsof retrieving money or property, be it stolen assets or proceeds from bribery, from yourcountry. During this seminar, we have an opportunity to share information about ourown systems and practices, think together about what can and what cannot be done, andbuild the necessary interfaces for cross-border assistance. If you are requested by aforeign authority to assist with asset recovery, or any international investigation activity,
please do not simply say, “Oh, we’re sorry, we don’t have that system”, but be ready tooffer your friend an alternative way to reach the target.

Public-Private Partnership
I doubt that anyone here will dispute the importance of private-sector involvement inanti-corruption movements and initiatives. Also, there is common understanding that, inthe process of investigating corruption cases, the importance of cooperation andassistance from the private sector and the general public has become more vital thanever. In other words, the investigators, the prosecutors and the judiciary cannot do their5jobs by themselves. They need help from the people. Once they lose public confidence
and become isolated, they will be paralyzed.
Indeed, pubic trust is what counts. Just recently, Mr. Sai Chiu Wong, a former Deputy
Commissioner of the Independent Commission Against Corruption (ICAC) of Hong
Kong was kind to come to our training course on anti-corruption issues conducted at
UNAFEI and to tell us about the establishment and development of ICAC, which weregard as one of the most successful anti-corruption agencies in the region. I was verymuch impressed with efforts made by ICAC to gain public trust, which eventuallyenabled them to mobilize resources in the community by way of a carefully planned
strategy implemented since its founding. In this seminar, Mr. Tony Kwok, our visiting
expert with extensive experience at ICAC, can tell you about the keys to successful
public participation from ICAC’s point of view. Learning from him will definitely be
one of the most important parts of this seminar, and I would like to thank Mr. Kwok in
advance.
On the premise of public confidence, investigators become able to utilize various tools
for obtaining crucial information leading to prosecution and punishment of theperpetrators. Here, I look forward to proactive discussion about, among other things, theproper use of whistleblower and witness protection systems, plea bargaining etc., which
directly benefit investigation and prosecution. Also, I would like to learn how the
information acquired from the citizens by the investigators is treated and further
processed. I would imagine that, normally, such information is recorded in the form of
an interview protocol (or, recently, an audio-visual recording) or a police officer’s report,
and after examining the truthfulness or reliability, it becomes an affidavit or the like, orif that is not admissible in court, the person who gave the story will be summoned to thecourt as a witness. If this kind of process is used, how do you secure the trustworthinessof such information? What do you do when a witness suddenly changes his/her story or
becomes suddenly uncooperative? How is it done in your jurisdiction? Or, some of theinformation may be too sensitive to treat it as evidence in court, or it may be necessary
to conceal the source. What measures can be taken in such situations in yourjurisdiction? I suppose that in every country, there must be certain practical measures tocope with such situations. Please share them with us.
When it comes to prevention in general, there seems to be a wide variation of activities
that can be conducted or promoted. The precious articles that were kindly submitted to
UNAFEI from the participants tell me that we can expect information sharing as to theanti-corruption campaigns and activities conducted in various countries of the Southeast
Asian region. An impressive example for me was what had been done by our
co-organizer of last year’s seminar in Kuala Lumpur, the Malaysian Anti-Corruption
Commission, MACC, in collaboration with Petronas, the world famous petroleum
company of Malaysia. The alliance between the Petronas officers and the MACC
officers seemed to have gained tremendous progress under the “Zero-Tolerance Policy”
in terms of spreading the notion of integrity, good corporate governance and compliancewith laws and rules. Although the incumbent officer told me that they are still facing
challenges, this effort made by Petronas and the MACC looked very promising —something you can really call a “good practice”. I would be very glad if our Malaysian
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friends here can, even if very briefly, give us an update about Petronas’ anti-corruption
campaign and programme.

Conclusion
As you may already be aware, matters pertaining to investigation including international
assistance and the issues of public participation are interrelated to each other. Good
investigation needs help from the people, and the people will be more cooperative when
there is good investigation. That also applies to international investigation. If an
investigation or prosecution agency, or the judiciary of one country, engages in effective,
fair and successful investigation and adjudication, then the general public and theprivate business sector, especially multi-national businesses, will not only seek to avoid
being investigated or prosecuted, but will also cooperate with anti-corruption
investigations, knowing that, after all, good investigation and prosecution ultimately
preserves a clean business environment for international trade and industry. Moreover,some major international corporations have taken significant steps towards integrity andproper corporate governance, as well as the eradication of corruption. Just as an
example, it is now quite common in international transactions to insert anti-corruption
provisions in contracts. Again, I may be criticized for being too optimistic, but I believethat the big businesses know how much being free of corruption and wrongdoing
contributes to their reputations, and at the end of the day, to their own prosperity. And
once a company is truly committed to being corruption-free, it surely will try tomaintain good relationships in a true sense (instead of in corrupt ways) with theauthorities by strict compliance with laws and rules and will, in general and inindividual cases, cooperate with the law enforcement and the judiciary. Then, the law
enforcement and the judiciary become able to engage in efficient and effective
investigation and prosecution, which will lead to greater public trust. This favourable,
not vicious, cycle is what we would like to see, isn’t it?
This seminar may only be one small effort towards such goal. Still, experts from 11
countries being together at one venue sharing insights and valuable information issurely something. And that something makes a difference, one step again towards theelimination and eventual eradication of corruption. Let us take firm steps, one by one,but not too slowly. Praying for the realization of a truly corruption-free Asia, I would
like to conclude my keynote speech and have our distinguished participants proceed to
the next stage, the core part of this seminar.
Thank you for your kind attention.

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