TENTH REGIONAL SEMINAR ON GOOD
GOVERNANCE FOR SOUTHEAST ASIAN COUNTRIES

Hosted by UNAFEI
With the support of the Corruption Eradication Commission and the Attorney
General’s Office of Indonesia
26-28 July 2016, Yogyakarta, Indonesia

January 2017TOKYO, JAPAN-1-

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.

Keisuke Senta
Director
United Nations
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
1-26 Harumi-cho, Fuchu, Tokyo 183-0057, Japan

http://www.unafei.or.jp
unafei@i.moj.go.jp-2-

FOREWORD
It is my great pleasure and privilege to present this report of the Tenth Regional Seminaron Good Governance for Southeast Asian Countries, which was held in Yogyakarta,
Indonesia from 26–28 July 2016. The Good Governance Seminar was held in Indonesia forthe second time, and, once again, we were deeply impressed and touched by the warm
hospitality afforded to us by our Indonesian hosts.
The main theme of the Seminar was Contemporary Measures for Effective International
Cooperation. The Seminar was attended by one visiting expert from Korea and 21 criminal

justice practitioners from the countries of Brunei, Cambodia, Indonesia, Lao PDR, Malaysia,
Myanmar, the Philippines, Singapore, Thailand and Viet Nam. The Seminar was co-hosted by
UNAFEI, the Attorney General’s Office of the Republic of Indonesia and the Corruption
Eradication Commission (KPK).

As with other regions in the world, the fight against corruption in Southeast Asian
countries has taken on an international dimension. The necessity of cooperating withinvestigative and prosecutorial agencies of other countries by providing mutual legal
assistance is increasing. However, it has become more difficult for investigative andprosecutorial agencies to detect and punish corruption because the modus operandi ofcorruption is becoming more complicated and sophisticated. Those agencies must cooperate
further in order to prevent and detect corruption effectively, and they must introduce modern
forms of cooperation to combat corruption crimes.
The Seminar explored the legal frameworks and techniques for anti-corruption
enforcement in the participating countries, particularly in reference to international
cooperation in the detection and investigation of corruption, the trial of corruption cases, andasset recovery. Through discussion of the issues, participants exchanged knowledge,
experiences, effective strategies, and best practices in the field of anti-corruption. In addition,
the Seminar enabled the participants to develop personal and professional contacts between
anti-corruption authorities and investigators in Southeast Asia.
The discussions during the Seminar emphasized the importance of: (1) informal
information sharing among anti-corruption authorities, (2) close cooperation between
investigators and prosecutors, domestically and internationally, in order to properly preserve
evidence and achieve success at trial, and (3) enhancing specialized financial knowledge
among investigators and prosecutors to increase the effectiveness of asset recovery. The
Chair’s Summary, published in this report, details the key findings and conclusions of the
Seminar.
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 justice policy. Finally, on behalf of UNAFEI, I would like to express my sincere
appreciation to the Attorney General’s Office of the Republic of Indonesia and the KPK for
their tremendous support in co-hosting the Tenth Regional Seminar.

Keisuke Senta
Director, UNAFEI
January 2017-3-

INDEXCONTEMPORARY MEASURES FOR EFFECTIVE INTERNATIONAL
COOPERATION
Introduction……………………………………………………………………………………… 5
Opening Remarks by Mr. Keisuke Senta, Director, UNAFEI……………..………………… 6
Opening Remarks by Mr. Bambang Waluyo, Acting Vice Attorney General of the Republicof Indonesia..............……………………………………………………….………….... 7
Opening Remarks by Mr. Laode M. Syarif, Commissioner of the Corruption
Eradication Commission of the Republic of Indonesia………………….………….… 10
Keynote Address by Mr. Keisuke Senta, Deputy Director, UNAFEI……………………… 13
Chair’s Summary…………………………………………………………………………….… 29
Papers and Contributions……………………………………………………………...………. 39
Visiting Expert, Dr. Kim Han-Kyun, Research Fellow at the Korean Instituteof Criminology……...………………………………………………………………… 40
Brunei Darussalam…………………...……………………………………………………… 65
Cambodia……………………………………………………………………………………. 70
Indonesia…………………………………………………………………………………….. 81
Lao PDR…………………………………………………………………………………….. 96
Malaysia……………………………………………………………………………………. 100
Myanmar…………………………………………………………………………………… 106
Philippines………………………………………………………………………………….. 112
Singapore..…………………………………………………………………………………. 131
Thailand……………………………………………………………………………………. 137
Viet Nam………...…………………………………………………………………………. 147
List of Participants, Speakers and Organizers………………………………………………… 152
Seminar Schedule………………………………………………………………………...…… 155
Appendix……………………………………………………………………………………… 157
Photographs………….…………………………………………………………………... 158-4-

INTRODUCTION

Opening Remarks by
Mr. Keisuke Senta
Director of UNAFEI***
Mr. H.M. Prasetyo*
Attorney General
Republic of Indonesia***
Mr. Laode M. Syarif
Commissioner
Corruption Eradication Commission
Republic of Indonesia***
Keynote Address by
Mr. Keisuke Senta
Director, UNAFEI*

Remarks delivered by Mr. Bambang Waluyo, Acting Vice Attorney General of Indonesia.

-5-OPENING REMARKS
Keisuke Senta*
Honourable guests, distinguished experts and participants, ladies and gentlemen,
It is a great pleasure and privilege for me to announce the opening of the Tenth Regional
Seminar on Good Governance for Southeast Asian Countries. I would like to extend myheartfelt welcome to our honourable guests, distinguished experts and participants who havecome to join this significant forum.
I would like to take this opportunity to express my deepest appreciation to the governmentof Indonesia, especially to the Attorney General’s Office of the Republic of Indonesia and the
Corruption Eradication Commission (KPK), for their great contribution and assistance in cohosting this seminar.
I attended the first and the second Seminars on Good Governance held in 2007 and 2008
in Thailand, when I was working in the UNODC Asia Pacific Regional Office. At those times,
the UNODC was also the co-organizer, and I presented at these seminars. I am also personallyvery glad to attend this tenth seminar as the Director of UNAFEI, in the belief that this seminarhas surely promoted cooperation among Southeast Asian countries for the purpose ofdeveloping effective countermeasures against corruption.
This time, the main theme of the seminar is “Contemporary Measures for Effective
International Cooperation”. In my keynote speech, I will speak in detail about this, but here
I would like to note that, nowadays, international cooperation is of great importance to the fightagainst corruption. Not only legal systems but also actual practices are important when
considering the criminal justice response to corruption. Sharing actual cases is the mosteffective way for practitioners to learn the current situations and challenges in each country.
I hope this seminar will strengthen international cooperation and help each participant
clear higher hurdles in the investigation of corruption cases in the future.
Thank you very much for your attention.

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

*-6-

WELCOME REMARKS AND KEYNOTE SPEECH
H.M. Prasetyo*

Assalaamu’alaikum warahmatullaahi
wabarakaatuh,
Good Morning, Peace be Upon Us All,
. Director and Staff of UNAFEI;. Commissioner of the Corruption Eradication Commission;. Expert Speakers;. The Head of Legal and International Bureau of the Attorney General’s Office of
the Republic of Indonesia, or the Respective Representative;. Head of the Yogyakarta High Public Prosecution Office;. Distinguished participants,. Ladies and Gentlemen,
Let us praise God Almighty, for only by His grace that today we can gather here toattend the "10th Regional Seminar on Good Governance for Southeast Asian Countries"
co-organized by the UNAFEI, the Attorney General’s Office of the Republic of Indonesia
and the Corruption Eradication Commission.
Allow me to convey warm regards from His Excellency H.M. Prasetyo, theAttorney General of the Republic of Indonesia. Due to his duties, he has appointed me todeliver the speech on this important occasion.
I would like to take this opportunity to deliver my upmost gratitude to the Director
and Staff of UNAFEI for your trust and your confidence in the Attorney General’s Officeof the Republic of Indonesia to serve as the main host of this seminar. In that regard, myhighest appreciation also goes to the Corruption Eradication Commission for the excellent
cooperation which allowed this Seminar to take place.
Furthermore, I would like to welcome the expert speaker and all the participantsfrom the Southeast Asia countries to this great city of Yogyakarta Special Region. Indeed,by sharing experiences and practices in our respective countries, we will be enriched with
Attorney General of the Republic of Indonesia delivered by Mr. Bambang Waluyo, Acting Vice Attorney
General of the Republicof Indonesia.

*-7-new insights and ideas to explore various effective strategies in the field of law
enforcement.
Ladies and Gentlemen,
In line with the theme of this seminar, contemporary measures for effective
international cooperation are very essential, especially today when our region is walking
together into the ASEAN Economic Community. The potential development oftransnational crimes as well as the impact of globalization and the free market need to beanswered by new breakthroughs in the field of law enforcement cooperation based on theprinciples of speedy process and mutual respect of our respective countries.
The need for new breakthroughs is imperative to face the rapid development ofcrimes which never stop evolving. The advance of information technology, banking
methods and modes of transportation has given the criminals and proceeds of crime moreadvantages in conducting the crimes and requires our special attention.
Meanwhile, we have to admit that our effort in combating crimes still faces classic
problems such as the limit of jurisdiction, the differences of legal systems, bureaucratic
procedures and many other factors that make law enforcement seem always one stepbehind the criminals.
Therefore, law enforcement cooperation must be built based on the understandingthat wherever crimes occur and whoever the victims, they are always a serious threat forevery country and, thus, it is a responsibility of the law enforcement community to facethem together as our common problems.
Ladies and Gentlemen,
On the other hand, many success stories in various countries show that the effort ofcombating crimes cannot lean solely on repressive measures, but also needs to bebalanced with effective preventive and educative strategies.
In that regard, it is necessary to build government culture based on principles ofgood governance such as legal certainty, transparency, accountability, public service etc.
in improving public trust that leads to the conducive environment for ensuring sustainable
development.
Ladies and Gentlemen,
Based on the conditions mentioned above, the Prosecution Service of the Republicof Indonesia continues to develop new strategies to strengthen ongoing cooperation with
its partners in various parts of the world. To implement our mandate in the field ofprosecution, execution of court decisions and other authorities under the law, we knowthat we cannot work alone if we want to succeed in fulfilling our duties.
Through active participation in law enforcement forums such as the International-8-

Association of Prosecutors (IAP), the International Association of Anti-Corruption
Authorities (IAACA), the Conference of China-ASEAN Prosecutor Generals, as well as
the participation in various international seminars as it is today, we hope to raise ourapparatus’ awareness on their existence as an integral part of the international community,
especially in the field of law enforcement.
In that regard, prosecutors must not only be equipped with technical expertise of
their national law, but also need to have extensive knowledge about international
cooperation instruments and how to apply them in real cases.
Besides formal cooperation frameworks such as Extradition and Mutual Legal
Assistance, the office continues to tailor effective direct cooperation with our counterpartsin various countries, as an alternative solution for the procedural limitations which often
arise in formal cooperation.
It is clear that although it can be distinguished, in practice both formal cooperationand direct cooperation are closely linked. Given the chain of bureaucracy, the directcommunication and coordination can be used to prepare cooperation through formal
channels. On the contrary, given the differences of legal systems in every country, direct
cooperation often leads to the need for formal cooperation between governments, either
in the form of extradition or mutual legal assistance in criminal matters.
Ladies and Gentlemen,
To conclude, I hope that this important forum will contribute new formulas toenhance the effectiveness of law enforcement cooperation to strengthen our commitment
to bringing our society towards prosperity.
I also would like to recommend all the participants and guests from foreigncountries to enjoy the beautiful city of Yogyakarta which is known for its traditional
values, culture and hospitality. Please enjoy the city tour to Borobudur and Prambanan
Temple, which are well known as the world's cultural heritage.
Finally, I wish you all a successful deliberation and may God the Almighty always
bless us all with the strength and health so we can complete the entire discussion in thisseminar until the end on 28th July.
Thank you for your kind attention,
Wabillahi taufik walhidayah,
Wassalamualaikum warahmatullahwabarakatu-9-OPENING REMARKS
Laode M Syarief *The Honorable,
Mr Kozo Honsei, Deputy Chief of Mission at the Embassy of Japan,
Mr Keisuke Senta, Director of the United Nations Asia and Far East Institute (UNAFEI),Mr Bambang Waluyo, Acting Vice Attorney General/Deputy Attorney General for
Advancement,
Our visiting expert Mr Kim Han-Kyun, Director of the Center for International Cooperation in
Criminal Justice, Korean Institute of Criminology,
Distinguished participants from ASEAN countries,
And colleagues from the Indonesia National Police, FIU (PPATK), Financial Services
Authority (OJK), Ministry of Foreign Affairs and Ministry of Law and Human Rights.
Assalamu’alaikum wa rahmatullahi wa barakatuh and Good Morning to all of you,First and foremost, all worship and praise to God Almighty, as it is by His will that we
can gather here in this very prestigious Tenth Regional Seminar on Good Governance forSoutheast Asian Countries with the main theme of Contemporary Measures in International
Cooperation.
At present, corruption is no longer a mere crime, but has morphed into a threat that
tremendously impacts the social system and structure in our community. In fact, corruption not
only causes harm to state financial losses, it is also one of the main causes of poverty.
International Cooperation is needed to make effective and efficient Law Enforcement in order
to trace proceeds of corruption across the country, especially in the ASEAN region. At thistime, MLA is one of the best ways to recover proceeds of corruption across nations besides“good bilateral relationships”.
The study of corruption explains two things: First, the fact that poverty affects the Human
Development Index (HDI). In 2012, Indonesia ranked 124th from 145 countries where HDI
was measured. Second, in countries categorized as “Corrupt” based on global corruption survey
results, the quality of human development, such as health and education, is adversely impacted.
Corruption also leads to increased infant mortality and school drop-out rates, and it reduces life
expectancy and literacy. These numbers lead to the conclusion that there is a very strong, direct
correlation between the Human Development Index and the Corruption Perception Index.
Corruption by state authorities delegitimizes the government, causes distrust in thepolitical system and democracy, undermines the credibility of law enforcement, further*

Commissioner, Corruption Eradication Commission of the Republic of Indonesia.

- 10 -

damages the environment, stunting economic growth and eventually leading to a collapse of
the entire economy.
This seminar, held by UNAFEI in cooperation with KPK and AGO, is very interesting,and should be appreciated, for at least 2 (two) reasons. First, corruption these days isincreasingly internationalized, so it is often referred to as “transnational crime”. Cross-bordercorruption has intensified, involving international networks supported by professionals known
as “gate keepers”. In the Global Corruption Report, Transparency International has invited
experts and activists from all over the world to discuss specific themes and examine cases thatare seen as corruption trends in particular sectors. TI’s Corruption Perception Index and Bribe
Payer Index are used as empirical indicators of corruption. In light of the above, this seminaris very timely and important.
Second, a discussion that addresses the multiple aspects of corruption is of high relevanceto the dynamics and impacts of corruption on development. Corruption has widened,penetrating deeper into the fabric of society and infecting the various building blocks of thesocial structure. Corruption eradication requires a comprehensive perspective and anintervention strategy that sides with the interests of those who suffer from the impact of
corruption. Thus, innovative and applicable solutions are a must to keep abreast of the criminals,
including campaigns designed to inspire an awareness to act and push for a more massive social
movement against corruption.
Indonesia is a State Party to the United Nations Convention against Corruption (UNCAC)(ratified by Law No. 7 of 2006), which places obligations on State Parties to provide
cooperation on extradition and/or MLA in corruption cases. Indonesia has signed the Southeast
Asian MLAT. Enacted on March 3, 2006, the LMLACM (Law on Mutual Legal Assistance in
Criminal Matters) contains detailed provisions on the grounds for extending and refusing
requests for MLA, the procedure for executing requests, and the types of assistance available,
including search and seizure and production orders but not taking of the evidence by videoconference. The LMLACM contains provisions on MLA regarding proceeds of crime which
include the requirements and procedure for executing foreign requests to restrain or confiscateproceeds. Furthermore, the Law on Extradition contains detailed provisions on the procedureand requirements for extradition.
Regarding incoming and outgoing requests for extradition, they should be made inwriting and sent through the diplomatic channel unless a treaty provides otherwise. All MLA
requests to Indonesia may be submitted through the diplomatic channel or sent directly to the
Minister for Law and Human Rights. The Minister also prepares and sends outgoing MLA
requests. All MLA requests to Indonesia must be in the language of the requesting state and/or
in English with a translation in the Indonesian language as well.
With regard to Indonesia, the KPK needs a smart, solution-oriented, and assertive wayof thinking to make corruption eradication more effective and efficient. In many countries anticorruption agencies are already mandated by the constitution, much like national human rights
commissions and general election commissions.
We also see interesting developments in criminal law, where crimes of corruption are
increasingly tried with multiple indictments, not only with money laundering charges, but also
tax crime. If KPK is given the authority to handle tax crimes that involve corruption elements,
the fight against corruption would accelerate and be strengthened exponentially. In fact, apotential legal basis for this is already provided by Article 43A paragraph (3) of Law 28/2007- 11 -

on General Provisions and Tax Procedures, which states “in the case that an element ofcorruption is found based on initial evidence, the implicated employee of the Directorate
General of Taxation shall be processed pursuant to the provisions of the Law on Corruption”.
Third, the corruption case has grown more sophisticated and complex, supported by what
seems to be unlimited resources, an increasingly solid political network, bolstered by experts
and professionals. There are some indications of strategic positions in state institutions which
are dominated by certain groups with questionable anti-corruption credentials. The corruptors
and their cronies now employ a more sophisticated defense strategy, utilizing mass media tosafeguard their own interests. Their defense is no longer confined to the courtroom, but they
fight back on talk shows and discussions, using mass communication consultants to wage the“opinions war”. Already we see media’s independence and objectivity being questioned by the
public in situations when media owners find themselves at odds with the anti-corruption drive.
KPK has dedicated 13 years to combating corruption. Since it was established, KPK has
recovered state losses totalling 248.89 trillion rupiah from enforcement efforts, and prevented
the loss of 197.39 trillion rupiah through its prevention efforts. There are also ongoingprogrammes to prevent potential state losses of 51.5 trillion rupiah. This much money can fundthe building of 2.5 million homes for the poor for free; or provide 22.6 billion litres of free milkfor children at risk of malnutrition; or provide one year of free elementary education to 429
million children; or give 29.3 billion kilograms of rice to people facing hunger; or build 1.9
million elementary school classrooms; or 1.8 million junior high school classrooms; or supply
49 million computers for schools; or provide seed capital to 25 million fresh university
graduates; or seed money to establish 4.9 million community-based cooperatives.
Despite these seemingly impressive numbers, frankly, we feel that we are still someways off from delivering the outcome that we desire. KPK needs all the support it can get fromall parties. KPK will not remain idle, and we have faith that we will prevail. There is not asingle day that goes by without fighting corruption, no second or minute passes in leisure whileletting corruptors run rampant. Attending this seminar, here in Yogyakarta, is akin to a caravan
heading towards an oasis. It serves not only to quench our thirst for your valuable input, butalso to strengthen KPK’s determination to remain firm and whole, to have unfailing belief that
we will triumph over corruption for the sake of our people and the motherland.
Before I conclude this speech, let me pose a question for us to ponder. Today, one of the
major challenges in corruption eradication is: what can we do, what corruption eradication
strategy, what programmes can we employ to produce outcomes that can benefit and be felt by
the people directly, rather than just feed the media circus and add more “noise” in the news.
We want to encourage the anti-corruption social movement to become more massive andenergetic, to make improvements to the system in order to minimize corruption and stem the
problem at its roots, We want to untangle the intricate web of corruption that has become
systemic and ingrained.
Finally, I wish all the best for the Seminar. May The Almighty bless all the sessions
where ideas and thoughts will be exchanged and discussed in order to find the best programmes,
strategies and formulations to conquer corruption. From Yogyakarta, for a Corruption-Free
Indonesia and ASEAN region, together with UNAFEI, AGO and KPK.
Thank you, wassalamu’alaikum wa rahmatullahi wa barakatuh.

- 12 -

KEYNOTE ADDRESSTENTH REGIONAL SEMINAR ON GOOD GOVERNANCE FOR SOUTHEASTASIAN COUNTRIES
Keisuke Senta*I.

INTRODUCTION

At the outset, I would like to say that it is really a great honour and privilege for me
to be given an opportunity to deliver the keynote address in the presence of suchhonourable guests, learned experts and distinguished participants gathered here in
Yogyakarta for 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 Tenth Regional Seminar on Good Governance. I would like toexpress special thanks to the staff members of the Attorney General’s Office of the
Republic of Indonesia and the Corruption Eradication Commission, KPK, for theirtremendous job of co-hosting, as well as their kindness and hospitality. I am really
happy to be here in this peaceful, cultural city.
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, under the umbrella theme “Contemporary Measures for Effective
International Cooperation”, we are focusing on four discussion topics:
1.

International cooperation in generating leads;

2.

Best practices for international cooperation in investigating corruption cases;

3.

International cooperation in the trial of corruption cases; and4.

International cooperation relating to asset recovery.

Thus the discussion is expected to cover various stages in the investigation ofcorruption cases, from a very early stage of investigation where officials start working
based on leads they obtain, through the more advanced stage of collecting evidence thatwill be admissible in court and relevant and credible enough to obtain a conviction withproper punishment, to the possible final stage where you try to repatriate the proceeds ofcorruption that are located overseas.

* Director, United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of

Offenders.

- 13 -

This morning, as one of the keynote speakers, I would like to share my thoughts
and experience on the investigation, prosecution and trial of crimes involving
transnational elements. As I am already approaching sixty, and therefore not very
familiar with the leading edge technology, I will focus more on how to effectively utilize
the conventional system of international cooperation, especially mutual legal assistance,
But before going into the main part of my presentation, I would like to talk briefly
about my professional background, so that you can better understand my perspective oninternational cooperation this morning.
My background is prosecution. I started my career as a public prosecutor in 1987,
starting in the Tokyo District Public Prosecutors Office. In 1990, I went to Vienna tojoin the Crime Prevention and Criminal Justice Branch of the United Nations Office at
Vienna, the predecessor of the United Nations Office on Drugs and Crime (UNODC).
My work in Vienna included assisting in the intergovernmental negotiation to establish
the Commission on Crime Prevention and Criminal Justice, which presently meets every
year in spring in Vienna. I went back to Japan in 1992 and worked in the Chiba District
Public Prosecutors Office. In 1995, I was dispatched to Brussels, Belgium, to work as
the legal attaché in the Japanese Mission to the European Union. My main task was tofollow the then developing EU scheme on international cooperation in criminal matters.
In 1997, I went back to Tokyo to work in the International Affairs Division, Criminal
Affairs Bureau of the Ministry of Justice. My job included processing various mutual
legal assistance and extradition requests, both incoming and outgoing, and the negotiationof several international instruments, such as the United Nations Convention against
Transnational Organized Crime, and the mutual legal assistance treaty between Japan andthe United States. In 2000, I went back to prosecution and worked in Tokyo and Oita, anice region on Kyushu Island. In 2003, I was transferred to the United Nations Asia andFar East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI),
and worked first as professor and then as deputy director. In 2007, I joined the UNODC
as a senior legal expert of the Terrorism Prevention Branch and worked in its regional
office in Bangkok, Thailand. I went back to Japan in 2009 and became a professor at
the University of Tokyo, and taught its law school students practical criminal procedure.
In 2013, I again joined the prosecution and worked as a prosecutor at the Tokyo High
Public Prosecutors Office, as director of the Trial Department of the Tokyo District Public
Prosecutors Office, as a prosecutor at the Supreme Public Prosecutors office, and as theChief Prosecutor of the Saga District Public Prosecutors Office, which is located on
Kyushu Island. In April of this year, I came back to UNAFEI as its Director.
So in short, I have been going to, from and between actual prosecution business andinternational cooperation matters. Now I would like to proceed to the main part of mypresentation: international cooperation.
II.

PURPOSE OF INTERNATIONAL COOPERATIONThe notion of “international cooperation” is very broad. Meetings and courtesy
or study visits of anti-corruption agencies, and international seminars such as the present- 14 -

one are also forms of international cooperation. However, this morning, I would like tofocus on one aspect of international cooperation, i.e., cooperation among national
agencies to collect, or to assist in collecting, information or evidence useful for theinvestigation of specific cases, or to recover, or to assist in recovering, the assets orproceeds of crime. Here I said “information or evidence”, deliberately omitting theword “perpetrator”. My intention is to set aside the question of extradition, which
involves many different issues, and to concentrate on the issues of mutual legal assistanceand, to some extent, asset recovery. However, most of the points I am making thismorning will also be applicable to extradition procedure.
Thus, when I say“international cooperation” in my remarks this morning, I am using this term in thisnarrow sense.
Finding in the course of investigation something which smacks of transnational
elements is always a discouraging moment for investigators or prosecutors. In theirview, which is not always wrong, obtaining evidence from beyond national boarders issomething which requires a lot of paperwork and advanced knowledge of internationallaw and foreign language, at least English, and takes a very long time; all the efforts andtime consumed are likely to be worth nothing, getting no positive result at all. Manyotherwise competent investigators just stop thinking once they know that evidence islocated outside their country.
In order to cope with crimes in this internationalized world, we have to change thismindset. At the same time, we should not be too naïve to believe that goodwill and hard
work will solve all difficulties. We have to face the challenges arising from thedifference of national laws and customs, and sometimes complex diplomatic issues.
In order to effectively investigate crimes with transnational elements, it is always agood idea to go back to the very basis and ask ourselves why and what we need fromoverseas.
In short, investigators and prosecutors try to obtain any of the following three:evidence; information; and/or assets.
We need evidence to prove specific crimes in the courtroom, and obtain punishment
corresponding to the gravity of such crimes. It must be admissible in our courts under
our national evidence law, and it must have material value to convince the court that eachspecific element of the crime required by our penal law exists beyond a reasonable doubt.
We need information that may lead us to start investigating some offences, or that
may help us decide the course of the investigation. In many cases information is alsoessential in preventing future crimes.
As for the assets, I do not think any explanation is needed. However, repatriating
the asset is the most difficult part.
Before taking steps to ask for international cooperation, we should be sure what weneed: evidence, information or assets.

- 15 -

III. INFORMATION AND EVIDENCE
As I have just said, prosecutors need evidence to establish their cases. It should
be admissible according to the evidence law, and it should have material value andcredibility to prove the essential elements of the crime. In any country, prosecutors andinvestigators are working under natural instinct to collect as many items of evidence aspossible. They have a big appetite for evidence. Those of you who are investigators
but not prosecutors must have experienced some difficult times to meet the prosecutors’
endless demands for more and more evidence to make your case.
However, when it comes to evidence outside your borders, it is sometimes
necessary to follow the teaching of Zen: “I am content with what I have1 ”, slightly
revised as “I am content with what I can get”. Or you may wish to follow a Latin
proverb; “Si non adsunt carnes, taricho contentos esse oportet: If you do not have meat,be satisfied with dried fish”. In developing strategies to prove the case in the courtroom,
prosecutors should carefully study and evaluate all evidence they have, and logicallyconstruct an argument based on the evidence that is persuasive enough to convince thejudges to render a conviction.
For example, in bribery cases, investigators and prosecutors interview both bribetakers and bribe givers. If a policeman brings an active bribery case (offering of a bribe)
to a prosecutor without interviewing a bribe taker, the prosecutor will definitely ask thepolice to interview the bribe taker. In domestic investigation, it is unimaginable that theinvestigators bring charges against bribe givers without interviewing bribe takers.
However, in cases involving bribery of foreign public officials, i.e., the bribe takers,“foreign” public officials, are usually residing in a foreign country. You have to resort
to mutual legal assistance procedure in order to conduct the interview of the bribe takers,
which is not always possible. Even in such cases, prosecutors might proceed toprosecute the bribe givers based on evidence they have obtained in their country, such as
statements of bribe givers (confessions), financial records showing the flow of money,
contract documents and statements of employees who engaged in the business transaction,and so on. However, prosecutors have to prove that the bribe takers were actually public
officials of the foreign country, and to do so they need to obtain some documents fromthat country establishing that the bribe takers were in fact its public officials. But I think
you can imagine that obtaining documents through mutual legal assistance is much easierthan obtaining statements of bribe takers. In the presentation of my colleague Mr.
Yamada tomorrow afternoon, you will see what Japanese prosecutors did in a similar
situation.
Now moving on to the issue of information, there are several types of informationin terms of how we make use of it. Some information lets us know something wrong isgoing on and there is a need for (sometimes urgent) action to prevent crime. Althoughobtaining and properly processing this kind of information is very important, we need
There is a famous stone washtub in Ryoan-ji temple (famous for its stone garden) on which this dictum
is engraved in Chinese characters.
1- 16 -

special techniques and organization similar to intelligence gathering to deal with this issue,
and I have to admit that I am not the best person to speak on this topic.
The second type of information tells us that we should consider starting an
investigation of an offence that has not yet been discovered by the criminal investigators.
Upon reading suspicious transaction reports furnished by the Financial Intelligence Unit
(FIU), an investigator might consider gathering more information on certain high ranking
officials for a possible bribery offence. After the initial investigation on this suspicious
case, the investigator may be able to step into a more advanced stage of investigation, and,with some luck, may be able to prosecute and obtain a conviction.
When you hear the word “information”, usually you imagine the situation like theone I just mentioned above, and in most cases international exchange of these types of
information is conducted outside the framework of mutual legal assistance.
However, during the course of the investigation of specific offences, when theinvestigators or prosecutors are focused on gathering evidence, they are also dealing withenormous amounts of information.
Here, let me introduce a hypothetical case, let’s call it the “Seasons Case”, toelaborate my point in a more illustrative manner.
The Seasons Case is a bribery case. Mr. Spring, a section manager of aconstruction company, Seasons Inc., offered USD 100,000 to Ms. Summer,
director of the Ministry of Construction of the Republic of Printemps2, inorder to obtain favourable treatment in an airport construction project.
Ms. Christie, a prosecutor in Printemps, started the investigation on this caseafter receiving an anonymous telephone call. Ms. Christie had a very
competent assistant officer, Mr. Poirot. A man who called himself R2D2 but
refused to reveal his identity stated the following: Ms. Summer and Mr.
Spring were meeting quite frequently in an Italian restaurant Il Risotto diPrimavera3 until May 2015; Seasons Inc. succeeded in obtaining a contract
with the Ministry of Construction worth USD 800,000,000; Ms Summerbought a nice villa (USD 80,000) in the Kingdom of Fruehling4.
After this phone call, Ms. Christie did a quick Internet search and found outthat Mr. Spring and Ms. Summer did exist and worked in the respective
company and ministry. Ms. Christie also learned that the webpage of the
Ministry of Construction offered information on past and future procurement
and bidding, and the investigator confirmed that Seasons Inc. actuallyobtained a contract as R2D2 had said.
Ms. Christie, after verifying also by Internet that Il Risotto di Primavera was
French word for spring, and there is a famous department store chain using this as its name.
Italian word for spring.
4
German word for spring.
2
3- 17 -

a very famous restaurant located in downtown Printemps City, sent Mr. Poirot
to the restaurant to have a look at the reservation book. The owner said that
he would let Mr. Poirot look at the reservation book but insisted that he could
not produce the book to the authority without a court order. Mr. Poirot foundthat every month Mr. Spring reserved a room for three persons. The owneragreed to check the billing record, and it turned out that every time they had
charged for three persons. Mr. Poirot, with the owner’s permission,interviewed the restaurant employee who actually serviced the guests in theroom. The employee clearly remembered that she served three guests, andupon seeing several photos, immediately identified Mr. Spring and Ms.
Summer as two of the three. The waitress said that the third guest was a
middle aged man, and from his behaviour she guessed that Mr. Spring was
his boss.
After further investigation, Ms. Christie found out that the third person was
Mr. Fall, who had been working for Mr. Spring at Seasons but had left thecompany three months ago, and presently resides somewhere in the Republicof Ilkbahar5.
Ms. Christie succeeded in finding the bank account of Ms. Spring. Afterobtaining its transaction records, she found out that USD 90,000 wastransmitted to Happyland Resort Inc., a real estate agency located in
Printemps. Happyland Resort is known for assisting customers to purchasereal estate and villas in Fruehling.
At this stage, you might guess that while Mr. Spring and Ms. Summer were meetingat Il Risotto di Primavera they discussed something about the construction contract andbribes might have been offered. Mr. Fall might know something about this deal.
Furthermore, Happyland Resort might have helped Ms. Summer to acquire a villa in
Fruehling, possibly by the bribe she had received from Mr. Spring.
Of course we all know that things do not go as smoothly as this in real life. But
even in this very simplified case, Ms. Christie and Mr. Poirot acquired a lot of information.
Some information guides them in new directions, where they found new clues on locating
Mr. Spring and Ms. Summer. All criminal investigators are engaging in these kinds ofactivities every day, inside their own countries.
IV.

COLLECTION OF INFORMATION AND EVIDENCE FROM SOURCESOTHER THAN THE AUTHORITIES AND OFFICIALS OF FOREIGN
GOVERNMENTS

In the Seasons case, there are several international elements. Ms. Spring might
have purchased a villa in the Kingdom of Fruehling, and Mr. Fall may be residing in the
Republic of Ilkbahar.
5

Turkish word for spring.

- 18 -

The time has come to send out the requests for mutual legal assistance. OK, but
request what? An interview of Mr. Fall and the confiscation and recovery of Ms.
Summer’s villa?
Of course, it is too early. Ms. Christie does not know Mr. Fall’s address inIlkbahar. She does not know whether Mr. Fall will cooperate with her or take sides with
Mr. Spring and Ms. Summer. She also does not know whether Ms. Summer actuallyowns a villa in the Kingdom of Fruehling. Does she first request the Ilkbahar
government to locate Mr. Fall or, the Fruehling government to initiate its own
investigation on the location of the villa?
There is a famous saying: “Charity begins at home”.
One of the important
maxims in the investigation of transnational crime is “Investigation begins at home”.
Before going beyond the border, we should do everything possible within our jurisdiction,
starting, as Ms. Christie did, with an extensive Internet search.
Since Mr. Fall worked at Seasons Inc. in Printemps, it is very likely that he hadfriends and colleagues there. The first thing you can try is to identify these persons andask them about Mr. Fall. Some of them might know his present address in Ilkbahar
and/or other information concerning his whereabouts. Of course you should be careful
in deciding whom to contact, as some person might tell Mr. Fall that the authorities aretracking him. But if you are lucky, you might find somebody who holds a grudge against
Mr. Fall and is willing to offer quite a lot of information. It might turn out that Mr. Falland Mr. Spring had some disputes and Mr. Fall would cooperate with investigators.
As for Ms. Summer’s villa in Fruehling, the first place to go is the office ofHappyland Resort in Printemps. Ms. Christie or Mr. Poirot can ask its manager or
employees about the USD 90,000 transferred from Ms. Spring to Happyland Resort, andperhaps they can obtain some information, or even documentary evidence, related to thepurchase of the villa and its whereabouts. If they are cooperative enough, they mightobtain necessary documents from their counterparts in Fruehling and produce them to
Ms. Christie.
After all, Ms. Christie may have to resort to a formal mutual assistance request.
But having various information and evidence in advance will be very helpful in making
a precise request to foreign authorities. Thus the maxim, charity begins at home.
V.

MEASURES NOT RESORTING TO MUTUAL LEGAL ASSISTANCE

Now it is time to obtain information and evidence from overseas. And again, I
would like to quote another maxim. This time it is not so prominent as the preceding
ones, because I coined this motto: “Do not use MLA unless you cannot dispense with it”.
This is especially true for gathering information, i.e., information that you do notintend to admit into evidence at trial. There are many channels for the inter-agency- 19 -

exchange of information already in existence. For example, if Ms. Christie is not solucky to find somebody in her country to provide the whereabouts of Mr. Fall in Ilkbahar,
she may wish to try the Interpol channel (since Ms. Christie is a prosecutor, she might
have to ask her police colleagues to contact Interpol). Information concerning thetransmission of the money from Printemps to Fruehling, and something about Happyland
Resort and the villa, may be obtained through the network of Financial Intelligence Units(FIUs).
Apart from these channels, you can consider using your personal network. If Ms.
Christie or Mr. Poirot know some policemen or prosecutors in Fruehling or Ilkbahar, they
can always ask for informal assistance by a phone call or e-mail correspondence, and theymight be happy to provide you with relevant information (but not evidence).
VI.

MUTUAL LEGAL ASSISTANCE

After utilizing all the measures mentioned above, at last Ms. Christie has to go
through the formal mutual legal assistance (MLA) process.
It is usually the prosecutor in charge of the case who drafts the request for MLA,in our hypothetical case, Ms. Christie.
However, MLA requests should be signed by
the chief of the agency (such as the chief prosecutor of a prosecutors’ office), processed
through the Central Authorities of the requesting and requested states, and forwarded tothe agency in the requested state who actually conducts the necessary activities to collectevidence. Therefore, after drafting the request, Ms. Christie has to take it to her bossand ask him/her to sign it.
Here, again, permit me to present another maxim:
request at the very last stage”.

“Let your boss sign the MLA

Notwithstanding Ms. Christie’s outstanding professional competence, it would be
impossible to draft a perfect request by herself. The request should meet all theconditions under national legislation of the requested state, and the investigation to collectevidence contained in the request should also follow their domestic laws. I repeat thissince it is a very important point when it comes to mutual legal assistance. The request
should meet all the conditions under the national legislation of the requested states, andthe investigation to collect evidence contained in the request should also follow theirdomestic laws. Perhaps you may not be happy about it, but this is the situation we haveto live with. Collection of evidence to answer the MLA request should follow thenational legislation of the requested state.
There will be a lot of other things, such as work practices of the requested states,
which might affect the actual execution of the request for mutual legal assistance. Evenin this Internet age, and with all the skills you may have on the language of the requested
states, just reading their legislation will not be enough to write a request that would be
one hundred percent acceptable to the Central Authority of the requested state.

- 20 -

Let’s go back to Ms. Christie’s hypothetical case.
If Ms. Christie asks her top boss to sign the request document after finalizing the
document by herself, the Central Authority of her country, Printemps, may find somelegal problems and send the document back for re-drafting. Or, if she was lucky and therequest reaches the requested state, Ilkbahar for example, it is very, I repeat, “very” likelythat its Central Authority will find problems and come back with an answer that theycannot accept the request as it is.
For example, Ilkbahar might say that they cannot conduct the interview of Mr. Fall,
which Ms. Christie had requested, because Mr. Fall is presently under the investigationof the Ilkbahar authority and contacting him might jeopardize their investigation.
However, they might be kind enough to inform Ms. Christie that they have obtained, fromsome other person, a note written by Mr. Fall which states that he was with Mr. Spring at
Il Risotto di Primavera when Mr. Spring handed cash to Ms. Summer, and might proposethat if Printemps asks for this note instead of the interview, they might be able to provide
a copy. Now Ms. Christie has to make a decision. Please remember the Latin dictum
on meat and dried fish. Should she be happy with the note (dried fish) instead of Mr.
Fall’s interview (meat), or should she wait until Ilkbahar officials’ investigation of Mr.
Fall reaches a certain stage and they are ready to honour her request for his interview?
It all depends on how much time and other relevant evidence Ms. Christie has. She has
to decide whether she needs the fish or the meat. After all, any investigator willdefinitely want to add the note to the request.
The Ilkbahar authority might otherwise find that the request lacks some legal
elements required by their domestic law and tell Printemps that they cannot provide
assistance unless the request is revised to add some more contents to meet the conditions.
In such case, Ms. Christie has to revise the request and ask her boss to sign it again.
And if she continues to work in this way, there is a good chance that she has to repeat thisexercise many times. I think you can imagine that, each time Ms. Christie enters theoffice of her top boss, she will be feeling more and more uneasy.
In order to avoid this unpleasant situation, we should do whatever we can to ensurethat the formal request goes as smoothly as possible. Therefore, informal consultation
with your Central Authority, and perhaps through this office, with the Central Authorityof the requested state is instrumental in writing a good request. After finishing her firstdraft, Ms. Christie should send the draft to the Central Authority of Printemps, which will
be asking her a lot of questions and proposing revisions of its texts. Then the Printemps
Central Authority will be sending a revised draft to the Ilkbahar Central Authority, which
will be doing the same thing. After a lot of work and a bit of luck, Ilkbahar would say
they are happy with the request and ready to accept it formally. This is when Ms.
Christie should go to her boss and get the letter signed. Hence my maxim: “Let yourboss sign the MLA request at the very last stage”.
Now, I would like to share the experience of my most successful MLA request.
This was a cocaine smuggling case and not bribery, but I believe the process I followed- 21 -

in this case may be helpful to show that, if things go well, MLA can be conducted quite
quickly. Please note that although this is a real case I dealt with, I am using pseudonyms
in my presentation.
(LA Case)
It was in 1993. I was thirty-five years old and working at the Chiba District Public
Prosecutors Office. Chiba is the region where Narita International Airport is located,and naturally, we were dealing with many drug trafficking cases through this airport.
On a hot summer day, 29 August 1993 to be specific, I received a phone call fromthe secretary of the Chief Prosecutor of our office to immediately report to his office.
Sitting there were the Chief Prosecutor, Deputy Chief Prosecutor, Director of the Criminal
Investigation Division, and a senior prosecutor. The Chief Prosecutor told me that hewanted me to travel to Los Angeles as soon as possible, and the senior prosecutor gaveme the following reason:- A Mr. East was arrested on 9 July 1993 when he arrived at Narita Airport from Los
Angeles, carrying with him about 80 grams of cocaine;- Mr. East, an employee of a famous Japanese publishing company West Shoten6 Co.
Ltd, was prosecuted on cocaine smuggling charges on 19 August 1993. He was astaff member of the photography section of West Shoten;- From the beginning of the investigation, Mr. East admitted that he tried to smuggle
the cocaine, but first he insisted that it was for his own use. However, at the laterstage, Mr. East told police investigators and the senior prosecutor in charge of thiscase the following story:
Actually, Mr. East tried to smuggle the cocaine for his employer, Mr. West,
president of West Shoten, who was also a famous film producer and haiku7
poet;
Mr. East had been smuggling cocaine for Mr. West many times for many years(at least thirty times starting from 1987);
Each time, Mr. East was instructed by Mr. West himself to purchase cocaine
from Los Angeles.
Under Mr. West’s approval, Mr. East prepared thecompany’s internal papers for overseas travel and for advance payment ofapproximately USD 10,000. According to these papers, the purpose of thetrips was to meet a Mr. North, an entertainment industry consultant, to obtainthe latest information concerning the American film industry, and the money
was for the commission to Mr. North;
Actually, the purpose of Mr. East’s travel to Los Angeles was to see Mr. North
Shoten is a Japanese word for “bookstore”.
A Japanese poem of seventeen syllables, in three lines of five, seven, and five, traditionally evoking
images of the natural world (Oxford Dictionary of English, Second Edition, Revised)67- 22 -

and to buy cocaine from him. Mr. North had nothing to do with thecollection of information on the film industry;
Mr. East kept a diary, in which he entered when he met Mr. West in his Tokyo
office, or Mr. North in Los Angeles.
- Since Mr. East’s statement was corroborated by the entries in his diary, the Chiba
Prefectural Police informed the Chiba Prosecutors Office that they wanted to arrest
Mr. West;- Considering that the statement of Mr. East was credible, corroborated by the diary
entries and also by his travel records, the Prosecutors Office agreed to the arrest of
Mr. West, which was to take place on 29 August, the very day I was called into theChief Prosecutors Office. Since Mr. West was a celebrity figure in Japan, thisinformation had been kept only among key officers in the Police and Prosecution,and I, a rather junior prosecutor (six years of experience at that time), was kept
outside the circle.
- Considering the social and financial status of Mr. West, the Chief Prosecutor
expected that Mr. West, with the help of the best defence lawyers in Japan, would
deny the charge and do his utmost to challenge the credibility of Mr. East as awitness for the prosecution. Therefore, the Chief Prosecutor wanted additional
corroboration: the statement of Mr. North that corresponds to what Mr. East said.
Against this backdrop, my mission was to obtain a written statement, preferably anaffidavit, of Mr. North before the conclusion of the investigation against Mr. West. Ourreasonable guess was that the court would grant his pretrial detention until 19 September.
I was assigned this mission because I had been involved in a separate drug
smuggling case in the previous year and succeeded in obtaining several items of evidence
from Los Angeles, and by travelling there to consult with the LA authorities, I had
established good working relations with them.
After coming back from my Chief’s office, I immediately made a telephone call to
Inspector Suzuki of the Chiba Prefectural Police. In the previous year, Inspector Suzuki
and I travelled together to Los Angeles for the mission I just mentioned, and he also hadvery good working relations with the Los Angeles law enforcement officers.
Apparently Inspector Suzuki had received similar instructions from his boss, andour telephone conversation went quite smoothly. We agreed that while Inspector Suzuki
would contact our colleagues in Los Angeles, namely the Los Angeles Police Department(LAPD), the Los Angeles County Attorney’s Office and the Federal Bureau of
Investigation (FBI) Los Angeles Office, I would start drafting an MLA request andcontact our Central Authority, the International Affairs Division of the Criminal Affairs
Bureau of the Ministry of Justice.
I finished the first draft on the same day, and sent it to the Central Authority by- 23 -

facsimile (in those days e-mail services were not available in our offices). The officers
in the Central Authority were very cooperative. Prior to my contact, the Deputy Chief
Prosecutor of the Chiba Office had already talked with the Director of the Central
Authority, asking him to afford utmost assistance in urgently processing the request.
The officials in the Central Authority (they are selected from among competentprosecutors) asked me to provide additional information, and based on that, suggested
some changes to my draft. After revising the draft, they sent it (again by facsimile) to
our legal attaché in our embassy in Washington (who was also from the prosecution).
Our legal attaché in turn went to the US Central Authority in the Department ofJustice, and showed them the draft MLA request for comments. After some informal
consultation between Washington, Tokyo and Chiba, we managed to finalize the MLA
request which met all US concerns.
In the meantime, Inspector Suzuki talked with his counterparts in Los Angeles.
They were very quick to locate Mr. North. They suggested that they contact Mr. Northand see whether he is willing to provide a statement, and upon our agreement, they did
so. Mr. North at least agreed to see us, both American and Japanese officers in Los
Angeles, and our friends in Los Angeles told us that they would provide assistance once
the formal request reached them. Both the Central Authority in Washington and Los
Angeles authorities also agreed that Inspector Suzuki, my assistant officer and myself
would travel to Los Angeles and be present at the interview of Mr. North.
All of this was done in a few days. After finalizing the MLA request, the Chief
Prosecutor signed the document and we sent it to our Central Authority. The Central
Authority sent the document to the Ministry of Foreign Affairs, and at the same time asked
them to formally process this document as soon as possible. The Central Authority inWashington made a similar request to the State Department (at that time we had notconcluded a Mutual Legal Assistance Treaty with the US, and we had to go throughdiplomatic channels).
While my assistant officer and I were busy processing the MLA request, mycolleagues in the Chiba Office worked very hard to have our official passports and US
visas issued promptly, and to book a plane to Los Angeles.
Inspector Suzuki, my assistant officer Mr. Takaoka and I left Narita on 9 September,and arrived at Los Angeles International Airport on the same day. There we were met by
the officials from the LAPD, the FBI and the LA County Attorney’s Office andimmediately had a meeting, which turned out to be very encouraging. Mr. North agreed
to come to the LA County Attorney’s Office the next day and also agreed to speak about
his interaction with Mr. East. He agreed that we, the Japanese officers, could be present
there. The US officials agreed that the interview should be conducted in Japanese (Mr.
North was a Japanese national with permanent resident status in the US, and two of theAmerican officials were fluent in Japanese because they were second generation JapaneseAmericans). US officials also agreed that I could directly ask questions to Mr. North
with their permission and presence.

- 24 -

The next day, 10 September, Mr. North appeared at the LA County Attorney’s
Office on time. The interview went very smoothly. After being advised of his rightagainst self-incrimination, Mr. North quite frankly answered our questions, and his
answer basically matched what Mr. East had said. At the end of the interview Mr. Northagreed to sign an affidavit that reflected the contents of his oral statement. We called ina notary public and the affidavit was completed. All of this took less than five hours.
With the permission of the US side, I facsimiled the copy of the affidavit to the Chiba
Office (The original was to be processed through formal channels).
Thus my mission was completed on the second day of my stay in Los Angeles. I
was thinking that the Director of the Criminal Investigation Division should be very
happy to see the copy of the affidavit I facsimiled. However, the next day I received aphone call from him and he instructed me to ask several additional questions to Mr. North.
Prosecutors’ appetite for evidence never stops. Therefore, I asked our US colleagues foran additional favour, and made an argument that the new questions should be regarded ascovered by the original MLA request and thus no further request was needed. They werekind enough to agree to this (after consulting their Central Authority), and we met Mr.
North again two or three days later.
While we were in Los Angeles, we interviewed another person, Mr. South. Mr.
South was a film entertainment consultant who had had some business with West Shoten.
We wanted to make sure that he had nothing to do with the money Mr. East was carrying
to Los Angeles, and we succeeded in obtaining his written statement to that effect. We
did not need his affidavit because his statement was just for purposes of impeachment incase Mr. South suddenly appeared at trial as a witness for defence and testified that it was
actually Mr. South, not Mr. North, who had been receiving the commission from West
Shoten and what Mr. East had been saying was not true. Of course, we did not forget toinclude the interview of Mr. South in our original MLA request.
During the execution of our request, we knew that some of the money for cocaine
had been transmitted to Mr. North’s account in a certain bank in Los Angeles. We
wanted to confirm that the money was coming from West Shoten. But bank records
were not included in our original MLA request, and there was no way to read the wordingof the request to argue in good faith that it covered bank records. Then our Americancolleagues decided to use their own investigative authority (cocaine trafficking isnaturally also an offence in the US) to order the bank to produce related records by wayof subpoena. They said that they may be able to provide the bank records to us uponreceiving a new request which clearly asks for them.
Mr. Kadokawa was prosecuted on 19 September 1993.
Later at the trial of Mr. West, the prosecutors requested the court to admit theaffidavit as evidence against Mr. West. They argued that under Subparagraph 3,
Paragraph 1 of Article 321 of the Code of Criminal Procedure, the affidavit should be
admissible as evidence. The provision states that a person’s written statement is
admissible 1) if a person cannot testify before the court because, inter alia, he/she isresiding outside Japan, and 2) if the statement was made under circumstances which- 25 -

assure that the statement was especially credible. In practice, documents that are
deemed admissible under this provision are called “Subparagraph 3 documents8” by legal
practitioners, criminal law scholars and law school students. It is quite natural that thedefence attorneys vigorously argued against the prosecutors’ assertion that the affidavit
of Mr. North should be admitted as evidence under this provision.
Since Mr. North was living in the US with permanent resident status and had nointention to come back to Japan, there was a reasonable basis to meet the first condition.
However, the prosecutors had to prove the second condition. In order to do so, I went
to the courtroom as a witness for the prosecution and testified about all the steps we tookin Los Angeles and Mr. North’s attitude during the interview. This was to show that his
statement had been made under circumstances which assure that the statement was
especially credible.
The Chiba District Court admitted the affidavit as evidence, stating that it can be
regarded as a Subparagraph 3 document, and on 12 June 1996, sentenced Mr. West to four
years of imprisonment. However, please note that the most important incriminating
evidence was the testimony of Mr. East. The affidavit worked as corroborating evidence.
Naturally, Mr. West appealed, and his defence attorneys again argued, among others,
that the affidavit was not an admissible Subparagraph 3 document. On 1 March 1999,
the Tokyo High Court rendered a judgement dismissing the appeal. Mr. West appealed
again to the Supreme Court of Japan, which on 31 October 2000 rendered a decisiondismissing the appeal. In its decision, the Supreme Court explicitly endorsed the High
Court’s decision to admit the affidavit under the Code of Criminal Procedure.
As you have seen, I succeeded in obtaining the affidavit of Mr. North twelve days
after I was instructed to do so. Although there were a lot of lucky elements, I think myexperience serves as one example to show that things can sometimes go quite well evenin the twentieth century, without e-mails or an MLAT.
It is my view that the following factors, which are not exclusive, contributed to thesuccess of this operation:- Good working relationships had already been established between the officers of
Los Angeles and Chiba;- Central Authorities of both countries were very cooperative;- Japan had a legal attaché in Washington;- Informal consultation had been done before the finalization of the MLA request;
and last but not least,- US permitted our travel to Los Angeles and we could be present at the execution of
8

San-go shomen, in Japanese.

- 26 -

our request.
VII. INVOLVEMENT OF JUDGESOne of the reasons why I could get the affidavit of Mr. North so quickly was
without doubt because Mr. North agreed to speak. If he did not, and if we did not want
to give up on obtaining his statement, we would have had to find ways to compel him toappear before a judge.
In several cases, especially those relating to coercive measures, there is no way to
avoid the involvement of judges.
Here comes the last maxim in my address this morning: “Judges are
independent”. They do not take instructions from anybody, including administrative
agencies. They are bound only by their constitution and laws. This means that thespirit of cooperation and goodwill among officials of requesting and requested states has
limits in achieving the goals of international cooperation in criminal matters. The judges
in the requested state may make decisions not to afford assistance that is in their view
against their laws. The situation might not change even in cases where the head of stateof the requested state agrees to afford assistance. Judges do not take instructions frompresidents or prime ministers.
I hate to say this, but every time I speak about international cooperation I feel theneed to emphasize this point. I repeat again: cooperation and good will between
prosecutors and law enforcement officials have some limits. In some cases, in order tohave your request go through, you need persuasive arguments, under the law of therequested state, to convince judges. You may not like this situation, but it is a fact oflife we have to live with.
One of the most important jobs of prosecutors is to make convincing arguments
to persuade their judges to take decisions favourable to them. They should be
professionals in this skill. Therefore, if you want to ask for mutual legal assistancewhich inevitably involves judges, the first person to seek advice from is the prosecutors
in the requested state. They know all the conditions for taking certain coercive measures
under their national legislation, and will advise you on what kind of information and/or
evidence is needed to make a good argument before judges. Thus it is highly advisable
to post prosecutors in the central authority.
Before concluding my remarks on the involvement of judges, I want to invite yourattention to the fact that extradition and asset recovery are the fields where judges play anessential role. We should be well prepared to collect all necessary information andevidence and seek professional advice from the prosecutors of the requested state.

- 27 -

VIII.

LEGAL FRAMEWORK

I said judges are independent. But they are bound by the laws of their country.
Therefore, in order to effectively carry out a request for mutual legal assistance, you haveto have good legislation which clearly states what can and should be done. The wordingof the law should be clear and unambiguous enough to leave no room for judges to decide
otherwise.
Having a good legal framework is also important when you want to seek
assistance from foreign governments. If your legislation does not allow you to takecertain measures, you cannot ask foreign states to do the same thing. International
cooperation works in the spirit of reciprocity, and if your legislation prevents you fromreciprocating, you had better forget asking for the assistance from the beginning.
Charity begins at home.
IX.

CONCLUSION

This is all I wanted to say this morning. Notwithstanding my remarks on judges
and the legal framework, I would like to stress that the spirit of cooperation and human
networking that allows frank and prompt informal consultation is the most importantelement in successful international cooperation in criminal matters, including our fightagainst corruption.
I believe that this seminar will definitely contribute to the development of such a
network of experts, and I look forward to participating actively in all the programmes ofthis important meeting.
I thank you for your attention.

- 28 -

CHAIR’S SUMMARY- 29 -

CHAIR’S SUMMARY
Tenth Regional Seminar on Good Governancefor Southeast Asian Countries
Yogyakarta, Indonesia
26 – 28 July 2016

GENERAL
1. The Tenth Regional Seminar on Good Governance for Southeast Asian Countries, co-hosted
by the Corruption Eradication Commission (KPK) of Indonesia, the Attorney General’s Office(AGO) of Indonesia, and the United Nations Asia and Far East Institute for the Prevention of
Crime and the Treatment of Offenders (UNAFEI), was held at the Royal Ambarrukmo Hotelin Yogyakarta from 26 to 28 July 2016.
2. Officials and experts from the following jurisdictions attended the seminar: Brunei Darussalam,
the Kingdom of Cambodia, the Republic of Indonesia, Japan, the Lao People’s Democratic
Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Kingdom ofThailand and the Socialist Republic of Viet Nam.

OPENING CEREMONY
3. Mr. KEISUKE SENTA, Director of UNAFEI, Mr. BAMBANG WALUYO, Acting Vice Attorney
General of Indonesia, and Mr. LAODE M. SYARIF, Deputy Commissioner of the KPK, delivered
opening addresses, welcoming the participants to the Seminar, focused on the theme ofContemporary Measures for Effective International Cooperation, and emphasizing theimportance of sharing strategies, practices and case studies to develop stronger international
cooperation to combat corruption in the ASEAN region and beyond.
4. Mr. KOZO HONSEI, Minister (Deputy Chief of Mission), Embassy of Japan in Indonesia,delivered a special address welcoming the participants, stating that corruption is an obstacle togood governance and democracy in all countries and stressing the need to counter corruption
by engaging the support of the public. Mr. HONSEI noted Japan’s decades-long partnership with
ASEAN countries and stressed that the government of Japan stands ready to provide support
to the region in its fight against corruption.

KEYNOTE ADDRESS
5. MR. SENTA delivered his keynote address, recalling the theme of this year’s Seminar and thefour key discussion topics: (1) international cooperation in generating leads; (2) best practices
for international cooperation in investigating corruption cases; (3) international cooperation in
the trial of corruption cases; and (4) international cooperation relating to asset recovery.

- 30 -

PURPOSE OF INTERNATIONAL COOPERATION
To combat corruption in the modern era, investigators and prosecutors must engage in thecollection of evidence, information and assets from foreign jurisdictions. Evidence collected
through this process must be admissible and material; information in the form of leads orsuspicious transaction reports can lead to increased enforcement and, in the long run,prevention of corruption; assets, the proceeds of corruption, must be repatriated to the country
from which the proceeds were taken. Although common experience suggests that the processof obtaining evidence, information and assets from foreign jurisdictions is often a time
consuming and discouraging process, this mindset needs to change.
HYPOTHETICAL CASE
MR. SENTA presented a hypothetical case demonstrating the complexity of conducting
investigations in other jurisdictions, but the case also showed that evidence and information
can be obtained through means of informal assistance, which can result in the collection ofleads and evidence that will lead to successful prosecution. Thus, pursuing informal assistance
before resorting to a formal MLA request is generally a best practice. The hypothetical casedemonstrated a number of important concepts: (1) investigators should be content with thelevel of assistance they can realistically obtain from foreign counterparts, (2) investigators
should undertake all possible efforts to prove the case within their own jurisdiction before
seeking international assistance, (3) mutual legal assistance (MLA) should only be resorted to
if it is indispensable to the case, and (4) before sending a formal request, investigators should
engage in open dialogue with the requested authority to make sure that the request has a highprobability of being acted upon by the requested state.
THE LOS ANGELES CASE
MR. SENTA also presented a particularly successful drug-smuggling case involving
international cooperation that he had worked on as a Japanese public prosecutor. MR. SENTA
succeeded in his mission to obtain written statements from witnesses in the United States, andsome of the keys to success were: (1) a good working relationship had already been establishedbetween the officers in Los Angeles and the investigators in Japan; (2) the central authorities
of both countries were very cooperative; (3) Japan had a legal attaché in Washington D.C.; (4)informal consultation had taken place prior to the submission of the formal MLA request; andlast but not least, (5) the US permitted the Japanese investigators to be present during theexecution of the request in Los Angeles (i.e., the recording of the witnesses’ statements.
UNDERSTANDING THE JUDICIARY
Finally, it is important to remember that judges act independently and do not take orders fromany other authority. Thus, to draft formal MLA requests that are likely to be enforced by judges
in foreign jurisdictions, it is important to cooperate with prosecutors in the requested
jurisdiction so that expert advice can be obtained on drafting requests that comply with thejurisdiction’s laws in order to increase the likelihood that they will be granted.

VISITING EXPERT’S LECTURE
6. DR. KIM HAN-KYUN, Research Fellow at the Korean Institute of Criminology, delivered his
lecture on the topic of Contemporary Measures for Effective International Cooperation in theFight Against Corruption—International Cooperation for Anti-Corruption: South Korean- 31 -

Practices. With ratification of UNCAC by 178 states parties (as of December 2015), theConvention has established opposition to corruption as a global norm and made the eliminationof corruption a global aspiration. UNCAC focuses on four key areas: prevention,
criminalization, international cooperation, and asset recovery. To achieve UNCAC’s anticorruption goals, the UNODC has released a guide titled The United Nations Convention
against Corruption National Anti-Corruption Strategies: A Practical Guide for Development
and Implementation (2015). The guide lays out specific strategies such as fighting corruption
within the political, social, economic and cultural context of each state; generating sufficient
political will; the involvement of civil society and so on. Accordingly, the guide recommends
that each country should develop an action plan with clearly identified responsibilities andtimelines for implementation of the national strategy. Moreover, the guide identifies a generalprocess for asset recovery, which includes the steps of asset tracking, securing the assets,
engaging in the court process, enforcing orders and repatriation of the assets to the requesting
country. To develop procedures and practices for asset recovery, the Stolen Asset Recovery(StAR) Initiative focuses on training, technical assistance and building partnerships with andbetween jurisdictions. Other resources include the UNODC Digest of Asset Recovery Cases,
the StAR Initiative’s Asset Recovery Handbook, and the UNODC’s Mutual Legal Assistance
Request Writer Tool.1
REGIONAL COOPERATIONAt the regional level, the Asset Recovery Network-Asia Pacific (ARIN-AP) has beendeveloped, with South Korea serving as the network’s secretariat. ARIN-AP is an informal
network to overcome the challenge of cross-border cooperation to combat money laundering.
Because ARIN-AP is not a formal institution with legally binding obligations, members cancooperate quickly and informally in asset recovery cases, whether or not they have ratified
bilateral or multilateral MLA treaties. The network is intended as a developmental step toward
the establishment of an AsiaJust programme.
INTERNATIONAL COOPERATION IN KOREA
In Korea, the Anti-Corruption Department of the Supreme Prosecutors’ Office is primarily
responsible for international cooperation in the fields of corruption and asset recovery, and has
specialized teams dedicated to accounting analysis, money tracking, asset forfeiture, andfinancial intelligence. The government of Korea has entered into MLA treaties with 27
jurisdictions and extradition treaties with 30 jurisdictions. International cooperation typicallytakes the form of information exchange, joint investigation and deportation of criminals. MR.
KIM concluded his presentation by reviewing a case of asset recovery in which criminal
proceeds, for the first time, were successfully recovered from the United States under the
Korea-US MLAT, which has been in force since 1997.

COUNTRY PRESENTATIONS
7. VIET NAM: A number of institutions are involved in the fight against corruption, such as theCentral Steering Committee on Anti-Corruption, which makes strategies, policies and plans,
the Supreme People’s Procuracy, which prosecutes corruption, the Ministry of Public Security,
which conducts criminal investigations, and the State Bank of Viet Nam, which serves as theanti-money-laundering agency. Regarding international cooperation, Viet Nam ratified
1

Available at <http://www.unodc. org/unodc/access_request.html>.

- 32 -

UNCAC in 2009 and grants MLA requests pursuant to MLA treaties or based on reciprocity;
dual criminality is required. Regarding extradition, the Ministry of Public Security serves as
the Central Authority, and Vietnamese nationals cannot be extradited; in the case of extradition
requests, dual criminality is an optional ground for refusal. The participants also presented twocases studies. In a successful case involving Viet Nam and Japan, both sides exchanged
documents that established the bribery of Vietnamese officials by a Japanese company, andpersons in both countries were successfully prosecuted. The second case was the Bio-Rad
Laboratories case in which company officials were accused of making improper payments toVietnamese government officials. The case was discovered in Viet Nam through public
documents obtained from the United States Securities and Exchange Commission, but the
documents did not contain information on the individuals in Viet Nam who were involved in
the improper payment scheme. Viet Nam submitted a formal MLA request to the US seeking
additional documents and evidence. After a face-to-face meeting with the US legal attaché, theVietnamese were told that they had not complied with certain requirements listed on the MLA
request form, including the initiation of a formal investigation before submitting the request.
Although the US officials had resolved their case against Bio-Rad by imposing a monetary
penalty of 55 million USD, no Bio-Rad officials were prosecuted. This case demonstrates thatdifferences in legal systems and lack of coordination between authorities may reduce theeffectiveness of requests for assistance. The participants from Viet Nam stressed theimportance of overcoming differences among legal systems through frequent consultations
among practitioners, developing friendships and goodwill, and enhancing the willingness tocooperate in order to successfully deal with criminal matters.
8. THAILAND: Formal and informal assistance, as well as technical assistance and capacitybuilding, are fundamental forms of international cooperation. Regarding formal assistance, thegovernment of Thailand ratified UNCAC in 2011 and has entered into bilateral and multilateral MLATs and extradition treaties. Thailand had previously criminalized bribery, bid
rigging, other fraudulent acts and money laundering predicated on corruption. In addition,
Thailand had established the National Anti-Corruption Commission and the Public Sector
Anti-Corruption Commission as government agencies to investigate corruption among
politicians, executive officials and other public officials. Furthermore, good governance in theprivate sector is regulated by the Public Company Limited Act and the Securities and ExchangeAct. When territorial and jurisdictional limitations prevent direct investigation of corruption by
Thai authorities, they are empowered by law to seek and render mutual legal assistance by way
of formal requests sent through Thailand’s Attorney General as its Central Authority. The Act
on International Mutual Assistance in Criminal Matters authorizes Thai authorities to seek andprovide formal assistance including, inter alia, locating persons, conducting searches andseizures, and taking witness statements and testimony. Extradition is also permitted by law if
the penalty in the requesting jurisdiction is more than one year, dual criminality is satisfied,
and the offence is not political or military in nature. Cases presented during the presentation
demonstrate that Thailand faces the challenges of pursuing corrupt officials beyond national
borders, the length of time required to secure the extradition of officials back to Thailand, andthe difficulty of repatriating proceeds and allocating costs of anti-corruption enforcement.
9. SINGAPORE: Corruption investigations are becoming more complex and time consuming due
to the growing trend of criminals who abscond to other countries and hide bribery proceeds
overseas. Accordingly, there is great need for cooperation between law enforcement agencies
to fight transnational bribery and other crimes. Regarding formal cooperation, the Attorney
General’s Chambers is designated as Singapore’s Central Authority based on the Mutual
Assistance in Criminal Matters Act (MACMA) while the CPIB investigates corruption cases- 33 -

and provides assistance to foreign agencies as they prepare their formal MLA requests.
Singapore has extradition agreements with the USA, Germany, Hong Kong SAR, as well as
the 40 declared Commonwealth countries. The CBIP also engages in informal cooperation to
generate leads and provide informal assistance prior to the receipt of formal requests. Informalcooperation is facilitated through regular communication with the investigative agencies inother jurisdictions, as well as through participation in SEA-PAC and other bilateral working
groups. The CPIB also shares financial intelligence among FIUs in the form of suspicioustransaction reports and utilizes INTERPOL for information sharing of intelligence, theidentification of crime trends and for training in investigation. Joint operations are a key
practice employed by the CPIB. Although joint operations can only be used for intelligencegathering and investigation, they allow quick and efficient sharing of information and facilitate
the drafting of formal MLA requests, ensuring that necessary evidence is preserved throughproper chain-of-custody procedures and so on. Singapore presented two case studies on joint
operations, which demonstrated the importance of information sharing and collaboration
among authorities, inter alia, to synchronize searches and seizures in both jurisdictions toprevent dissipation of evidence and to maintain close cooperation and timely exchange of
information, which may allow cases to proceed in both countries without the need for theexchange of formal MLA requests.
10. PHILIPPINES: The participants from the Philippines focused on the legislative framework to
combat money laundering and explained the development of the law through amendments toclose loopholes in the Anti-Money Laundering Act (AMLA). Money laundering was
criminalized in the Philippines in 2001, and the AMLA authorizes the investigation of
suspicious transactions, the institution of civil forfeiture, rendering assistance to foreign
governments seeking assistance to combat money laundering and so on. Despite these powers,
the Philippines was non-compliant with FATF standards; in response, the Philippines
undertook a series of remedial amendments. These amendments strengthened legal provisions
on freeze orders and bank inquiries, and they also expanded the definition of “covered
institutions” to natural and juridical persons and clarified the authority of the Anti-Money
Laundering Council to freeze money or property through ex parte proceedings. Despite these
efforts, the $81 million Bangladesh cyberheist demonstrates that loopholes still remain, andlaw enforcement authorities still face challenges in supressing money laundering, particularly
in reference to the regulation of casinos. A comprehensive and effective AMLA including
provisions that regulate the flow of money through casinos, together with timely
implementation and effective enforcement, will certainly reduce the profitable aspects ofcriminal activity and, ultimately, discourage criminals from pursuing their illicit trade.
11. MYANMAR: The government of Myanmar is fighting corruption through strategies to enhance
prevention, investigation and prosecution, and international cooperation. Regarding theprevention of corruption, the new government elected in 2016 has issued a directive limiting
the value of gifts to public officials to about 25 USD, and the government recognizes the needfor public-private partnership to combat corruption, as demonstrated through its efforts to raise
public awareness of anti-corruption policies during major public festivals. When corrupt actsare detected, investigation and prosecution proceed under Myanmar’s new anti-corruption
legislation. In August 2013, Myanmar adopted its second anti-corruption law and repealed thePrevention of Corruption Act, 1948. The new law established the 15-member Anti-Corruption
Commission, which is appointed by the President with the approval of the Parliament andwhich is responsible to the President of the Union. The Commission is responsible for
conducting investigations into allegations of corruption and illicit enrichment. When- 34 -

allegations are received, the Commission forms investigation boards, which are chaired by amember of the Commission and are also composed of appointed citizens. Preliminary scrutiny
boards are formed on a case-by-case basis. These investigating bodies are empowered to ordersearches and seizures of money and property, inspect and copy relevant documents and conduct
suspect and witness interviews. If the suspect can explain the legality of his or her conduct, thesuspect may be excused. Where grounds exist, the Commission can order the investigative
board to file suit against the suspect in the appropriate court. From 2014 to 2016, a total of
2,108 complaints were received by the Commission; 8 were acted on by the Commission, 8
were acted on under the Civil Servants Regulation, and 482 cases were transferred to therelevant ministry. Myanmar continues to face the challenge of suspects and witnesses
absconding after they are brought before the investigation board, and Myanmar is considering
appropriate amendments to its laws and rules. Myanmar also engages in international
cooperation through a variety of frameworks. Myanmar’s domestic law on international
cooperation is the Mutual Legal Assistance in Criminal Matters Law (2004), which was draftedwith the help of the UNODC and the FATF. The Ministry of Home Affairs serves as the Central
Authority for MLA requests related to corruption cases. Myanmar has ratified UNCAC and theASEAN Mutual Legal Assistance Treaty and participates in SEA-PAC and other internationalorganizations.
12. MALAYSIA: The legal bases for MLA in Malaysia are the Mutual Assistance in Criminal
Matters Act 2002 (MACMA), bilateral and multilateral treaties, and Special Direction of the
Minister of Law under section 18 of MACMA. MACMA establishes the Attorney General as
the Central Authority for MLA, and authorizes assistance such as providing and obtaining
evidence, conducting searches and seizures, identification and tracing of proceeds of crime orproperty and so on. Malaysia also provides informal assistance, which should always be thefirst step in the MLA process. Examples of informal assistance include, arranging witness
statements, location and identification of witnesses or suspects, and service of process. A
common challenge in the field of MLA and extradition is the timing and urgency of the MLA
request. The requested state requires time to process the request and to seek approval andexecution of the request by the court. Another challenge is the requesting state’s understandingof the laws and procedures of the requested state and the submission of requests withinsufficient or incomplete information. These challenges might be overcome throughprofessional networking between officers and agencies, consultation on laws and proceduresof the requested state and pursuing informal requests for assistance. Furthermore, theeffectiveness of MLA can be enhanced by implementing the following best practices:
reviewing relevant guidance from the requested authority on its website, the identification ofcontact persons for handling requests, consultation between the requesting and requested
authority, establishing monitoring systems on the progress of requests, and internal networking
between central and executing authorities.
13. LAOS: The participants from Laos provided an overview of the country’s strategy to combat
corruption. In 1999, the Lao government saw a large increase of corruption, especially in the
public sector. In response, the government issued an anti-corruption decree that expanded
auditing of state budgets. In 2001, the State Inspection and Anti-Corruption Authority wasestablished, and that agency answers directly to the prime minister. Laos signed UNCAC in2003 and ratified it in 2009; since then, Laos has engaged in the UNCAC implementation
review process. Laos has criminalized (1) acceptance of bribes by government officials, (2) theact of bribing foreign officials and officials of international organizations, (3) trading in
influence, (4) private-sector bribery and (5) money laundering. To strengthen enforcement,- 35 -

Laos has criminalized obstruction of justice, enacted measures for witness protection, andengages in the practice of asset seizure and confiscation. Despite these measures, Laos still has
many needs to strengthen enforcement, such as technical assistance and training, capacitybuilding to develop qualified human resources, and modern technology and equipment. It is
important for Laos to continue working closely with international organizations and countries
that have been garnering experience and knowledge on these matters for years. Thus, inaddition to working through fora such as SEA-PAC, Laos has participated in the United
Nations Implementation Review Programme to ensure that its legislation and practices
continue to improve.
14. INDONESIA: The participant from the Attorney General’s Office stressed the importance of
informal cooperation to the fight against crime and corruption, and noted that knowledge andflexibility are important characteristics for the success of anti-corruption officials. With regard
to formal cooperation, Indonesia has signed extradition treaties with 10 countries. Indonesia
can extradite to treaty and non-treaty partners, though the procedures are somewhat different.
Pursuant to law, Indonesia offers mutual legal assistance, such as identifying and locating
persons, conducting searches and seizures, freezing and confiscating property and so on. MLA
treaties have been entered into with a number of countries in the region, and Indonesia is aparty to the ASEAN MLAT. Cooperation between a country’s prosecutors and its Central
Authority is very important because prosecutors are skilled practitioners in the country’s
judicial system. This is necessary, for example, to address issues of admissibility of evidence
obtained from foreign jurisdictions. In addition to formal assistance, informal assistance canbe rendered in the form of informal evidence gathering and in the form of deportation or
expulsion from the country as an alternative to extradition. The participant from the KPK
introduced the agency’s broad role in combating corruption, which includes investigating
corruption cases, freezing bank accounts, conducting undercover operations, conducting joint
investigations, processing MLA and extradition requests, training and capacity-building and soon. The participant from the KPK also presented two case studies demonstrating theeffectiveness of informal agency-to-agency communication in order to obtain speedy andsuccessful assistance.
15. CAMBODIA: The participant from Cambodia explained the country’s anti-corruption
enforcement mechanism and MLA procedures. The Anti-Corruption Institution comprises two
sections: the National Council Against Corruption (NCAC) and the Anti-Corruption Unit
(ACU). The NCAC develops anti-corruption strategies in five areas, namely education,
prevention and obstruction, law enforcement, national and international cooperation, and good
governance and internal control; the ACU has the exclusive power to investigate corruption.
Cambodia engages in bilateral and multilateral cooperation through UNCAC, MLATs, andMOUs. Regarding MLA, the Ministry of Justice is currently drafting the Law on Mutual Legal
Assistance. Despite the lack of specific legislation, Cambodia received 42 requests for MLA
in criminal matters and 36 requests in civil cases between 2012 and 2014 from countries
including the US, the UK and EU member states; between 2012 and 2013, Cambodia sent 27
requests in criminal cases and 34 in civil cases. Successful cases of informal assistance wereintroduced. For example, the ACU collaborated with the Corruption Eradication Commissionof Indonesia (KPK) and the Corrupt Practices Investigation Bureau (CPIB) of Singapore to
exchange information through focal persons nominated by each agency. As a result of
collaboration between the ACU and the KPK, the suspect was arrested and sent back toIndonesia. In addition, the ACU and the CPIB have cooperated in the exchange of informationand support related to court procedures, information gathering and evidence collection, and- 36 -

obtaining interviews and recorded statements so that the CPIB could use the evidence legallyin court. Cambodia reported facing a number of challenges in the fight against corruption,
including the need to develop technical expertise in the fields of investigation, forensic science,
law, accounting and procurement, as well as the need for technical equipment.
16. BRUNEI: The Anti-Corruption Bureau (ACB) of Brunei presented a case study demonstrating
its close cooperation with the Malaysia Anti-Corruption Commission, which has existed since
2002, through a bilateral cooperation Working Group for the purposes of cooperation andinformation sharing in the fields of intelligence and investigation. The Working Group acts asa focal point for mutual legal assistance. In the course of the investigation of a criminal who
gave smugglers tips to reduce customs duties on cigarettes, the ACB was able to use theWorking Group to obtain necessary information from Malaysia, such as bank accountinformation that identified a Malaysian national’s involvement in the cheating scheme. As aresult of further cooperation from the MACC, including obtaining a witness statement from the
Malaysian national, the ACB was able to build its case against the criminal in Brunei, who wasconvicted and imprisoned as a result. Thus, the bilateral agreement proved the effectiveness of
exchanging information and gathering evidence involving cross-border and transnational crime.
CONCLUSIONS AND RECOMMENDATIONSIn the modern era, technology facilitates the rapid transfer of communications, funds andpeople all around the world. This technology allows criminals engaged in corruption to quickly
and effectively hide their criminal proceeds and abscond to foreign jurisdictions. As a result,corruption investigations are becoming more complex and time consuming. Anti-corruption
practitioners increasingly need specialized skills and technology in order to track criminals,
and they rely on goodwill and professional relationships to pursue criminals in foreign
jurisdictions. In light of the time-consuming nature of formal MLA requests, informalcooperation between anti-corruption agencies and practitioners of different countries enhances
the speed of information sharing, as well as the chances of successful prosecution.
A. INTERNATIONAL COOPERATION IN GENERATING LEADSInformal information sharing between investigators in different jurisdictions is the dominant
practice for generating leads on corruption cases. In addition to discovering the identities andmodi operandi of individuals engaged in corrupt acts, financial intelligence—throughsuspicious transaction reports—can identify money laundering and help connect illicit
proceeds with the criminals who attempt to launder them. Thus, anti-corruption investigators
should actively pursue stronger contacts with their counterparts in other jurisdictions with theaim of generating leads and increasing anti-corruption enforcement.
B. BEST PRACTICES FOR INTERNATIONAL COOPERATION IN INVESTIGATING CORRUPTION CASES
Formal requests for assistance have their limits. Throughout the seminar, there was substantial
agreement that formal requests should only be resorted to if they are absolutely indispensable
to the case, and before submitting a formal request, investigators should engage in open
dialogue with the authorities of the requested state to ensure that the request has a highprobability of being granted. With these concepts in mind, all participating countries stressed
the importance of informal cooperation, which is particularly useful for obtaining speedy andsuccessful assistance. Though it takes many forms, informal cooperation includes joint- 37 -

operations or investigations, and a number of countries reported success in the use of this model.
Benefits of joint operations include enhanced exchanges of information, synchronized searches
and seizures in both jurisdictions to prevent dissipation of evidence, and the timely exchange
of information, allowing cases to proceed in both jurisdictions without the need to exchange
formal MLA requests. Finally, all countries reported engagement in regional MLA treaties orfora, such as the ASEAN MLAT and SEA-PAC. Accordingly, all countries are encouraged toconsider using these practices to comprehensively enhance anti-corruption investigation.
C. INTERNATIONAL COOPERATION IN THE TRIAL OF CORRUPTION CASES
Corruption trials can only be successful if the evidence submitted is admissible in court.
Evidence collected and testimony secured through international cooperation must comply withthe rules of evidence in the jurisdiction in which the trial takes place. Thus, the steps taken
during the investigation stage to preserve the admissibility of evidence by establishing a proper
chain of custody or to ensure that witness statements or testimony are procedurally sound can
win or lose the case at trial. Likewise, prosecutors seeking execution of MLA and extradition
requests cannot prevail at court hearings if they lack the information, evidence or arguments
necessary to persuade the judge to grant the request. Thus, close cooperation between
investigators and prosecutors, domestically and internationally, is critically important toachieve success at court hearings and trials.
D. INTERNATIONAL COOPERATION RELATING TO ASSET RECOVERY
If money laundering is successful and the proceeds of corruption cannot be traced, asset
recovery becomes impossible. The process of asset recovery includes the technical and timeconsuming steps of asset tracking, securing the assets, engaging in the court process, enforcing
court orders and repatriation of the proceeds to the requesting country. The exchange offinancial intelligence is crucial to the first step of asset tracing, and a combination of informal
and formal assistance is often necessary to successfully recover illicit assets. However, casessuch as the Bangladesh cyberheist demonstrate that loopholes in domestic anti-moneylaundering legislation can thwart or reduce the ability to recover assets. In addition, due to thetechnical nature of financial analysis and banking practices, investigators and prosecutors
involved in asset recovery should enhance their specialized knowledge and skills by making
use of training, technical assistance and the development of professional networks throughprogrammes such as the StAR Initiative, as well as other forms of cooperation such as ARINAP.
28 JULY 2016
YOGYAKARTA, INDONESIA- 38 -VISITING EXPERT’S CONTRIBUTION

Mr. Han-Kyun Kim
Research Fellow
Korean Institute of Criminology- 39 -

CONTEMPORARY MEASURES FOR EFFECTIVE INTERNATIONAL
COOPERATION IN THE FIGHT AGAINST CORRUPTION– International Cooperation for Anti-Corruption: South Korean Practices –Han-Kyun KIM *– Contents –I. Introduction: UNCAC and UNODC’s Action Against Corruption
II. Legal Measures for International Cooperation
III. Anti-Corruption Investigation System & Practice in Korea
IV. Asset Recovery Law & System in Korea
V. Cooperation in Anti-Corruption Investigation: Korean Cases

Corruption is a complex social, political and economic phenomenon that affects all
countries. Corruption undermines democratic institutions, slows economic
development and contributes to governmental instability. Corruption attacks thefoundation of democratic institutions by distorting electoral processes, perverting therule of law and creating bureaucratic quagmires whose only reason for existing is thesoliciting of bribes. Economic development is stunted because foreign direct
investment is discouraged and small businesses within the country often find it
impossible to overcome the "start-up costs" required because of corruption.1
Global attitudes towards corruption have changed dramatically. Where once bribery,corruption and illicit financial flows were often considered part of the cost of doing
business, today corruption is widely — and rightly — understood as criminal andcorrosive. … The United Nations Convention against Corruption provides acomprehensive platform for governments, non-governmental organizations, civilsociety, and individual citizens. Through prevention, criminalization, international
cooperation and assets recovery, the Convention advances global progress toward
ending corruption.2

I.

INTRODUCTION: UNCAC & UNODC’S ACTION AGAINST CORRUPTIONThe UN Office on Drugs and Crime (hereinafter referred to as UNODC) promotesinternational cooperation in crime prevention and criminal justice, as the convergence of drugs,
crime, corruption and terrorism is ever more threatening global security. As for the issue of
corruption, the UNODC works directly with governments, international organizations, other
United Nations entities and civil society to develop and implement programmes for countering
corruption.3
Research Fellow, Korean Institute of Criminology.
http://www.unodc.org/unodc/en/corruption/index.html?ref=menuside
2
Message from UN Secretary-General, Ban Ki-moon on International Anti-Corruption Day (9 December 2015).
3
UNODC, UNODC Annual Report 2014 (2014) pp.10-11.
*
1- 40 -

A.

Open-ended Intergovernmental Working Group on Prevention
In November 2009, the Conference of the States Parties to the United Nations Convention
against Corruption4 (hereinafter referred to as UNCAC) stressed the importance of implementing
articles 5-14 of the UNCAC to prevent and fight corruption. So the Conference decided to establish
an interim open-ended intergovernmental working group5, to advise and assist the Conference in
the implementation of its mandate on the prevention of corruption.6 The working group should
perform the following functions:(a)Assist the Conference in developing and accumulating knowledge in the area of
prevention of corruption;(b)

Facilitate the exchange of information and experience among States on preventive
measures and practices;(c)

Facilitate the collection, dissemination and promotion of best practices in theprevention of corruption;(d)Assist the Conference in encouraging cooperation among all stakeholders and sectorsof society in order to prevent corruption.

At its meeting in August 2011, the Working Group recommended that, at its future meetings,
it should continue to focus on the following topics:(a)

Implementation of article 12 [Private Sector] of the UNCAC, including the use of
public-private partnerships;(b)

Conflicts of interest, reporting acts of corruption and asset declarations, particularly inthe context of articles 7 [Public Sector], 8 [Codes of Conduct for Public Officials], 9[Public procurement and management of public finances] of the UNCAC.

It was also decided that, in advance of each meeting of the Working Group, States parties
should be invited to share their experiences in implementing the provisions under consideration,
preferably by using the self-assessment checklist and including, where possible, successes,
In its resolution 55/61 of 4 December 2000, the General Assembly recognized that an effective international legal
instrument against corruption, independent of the United Nations Convention against Transnational Organized
Crime was desirable and decided to establish an ad hoc committee for the negotiation of such an instrument in
Vienna at the headquarters of the United Nations Office on Drugs and Crime. The Convention approved by the Ad
Hoc Committee was adopted by the General Assembly by resolution 58/4 of 31 October 2003. In accordance witharticle 68 (1) of resolution 58/4, the United Nations Convention against Corruption entered into force on 14
December 2005. A Conference of the States Parties is established to review implementation and facilitate activities
required by the Convention. (http://www.unodc.org/unodc/en/treaties/CAC/index.html)
5
United Nations Convention against Corruption, Art.63 para.7.
6
Conference of the States Parties to the United Nations Convention against Corruption, “Preventive measures”,
Resolution 3/2 (2009)4- 41 -

challenges, technical assistance needs, and lessons learned in implementation.7 In response to this,the UNODC Secretariat prepared a note,8 which was circulated for comments by State parties tothe UNCAC. Following receipt of comments, the Secretariat confirmed that the topics fordiscussion at the meetings of the Working Group would continue to be the implementation ofarticle 12 of the Convention, including the use of public-private partnerships, and the conflicts ofinterest, reporting acts of corruption and asset declarations, particularly in the context of articles 7- 9 of the Convention.
In October 2011, the Conference decided that the Working Group should continue its work
to advise and assist the Conference in the implementation of its mandate.9 In its resolution 4/3, theConference noted that many States parties had shared information on their initiatives and goodpractices on the topics considered by the Working Group at its meeting in August 2011, and urgedStates parties to continue to share with the Secretariat and other States parties new as well as
updated information on such initiatives and good practices.
B.

Open-ended Intergovernmental Expert Meetings to Enhance International
Cooperation
In October 2011, the Conference of the States Parties to the UNCAC decided to convene
open-ended intergovernmental expert meetings on international cooperation to advise and assist it
with respect to extradition and mutual legal assistance, and to convene one such meeting during
its fifth session and, prior to that, within existing resources, at least one intersessional meeting.10
In the same resolution, the Conference also decided that the expert meetings shall perform thefollowing functions:(a)assist it in developing cumulative knowledge in the area of international cooperation;(b)

assist it in encouraging cooperation among relevant existing bilateral, regional andmultilateral initiatives and contribute to the implementation of the related provisionsof the Convention under the guidance of the Conference;(c)facilitate the exchange of experiences among States by identifying challenges anddisseminating information on good practices to be followed in order to strengthen
capacities at the national level;(d)build confidence and encourage cooperation between requesting and requested Statesby bringing together relevant competent authorities, anti-corruption bodies andpractitioners involved in mutual legal assistance and extradition;

Open-ended Intergovernmental Working Group on the Prevention of Corruption, Provisional agenda andannotations, CAC/COSP/WG.4/2012/1
8
Proposal for a possible multi-year work plan for the Open-Ended Intergovernmental Working Group on Prevention
for the period up to 2015 (CAC/COSP/2011/CRP.4)
9
Conference of the States Parties to the United Nations Convention against Corruption, Marrakech declaration on
the prevention of corruption, Resolution 4/3 (2011)10
Convening of open-ended intergovernmental expert meetings to enhance international cooperation, Resolution 4/2(2011)
7- 42 -

(e)assist the Conference in identifying the capacity-building needs of States.

The Conference further called upon States parties and signatory States to designate a central
authority and, as appropriate, local authorities and other governmental experts, to participate in theexpert meetings.
C.

National Anti-Corruption Strategies
According to the article 5 of UNCAC, it is important to adopt “effective, coordinated anticorruption 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 andaccountability. Responding to a request by the Conference of the States parties to identify anddisseminate good practices on the development of national anti-corruption strategies, and inaccordance with its responsibility to provide technical assistance to States parties to help themmeet their obligations under the UNCAC11, UNODC has developed “National Anti-Corruption
Strategies – A Practical Guide for Development and Implementation”.12
The Guide offers specific recommendations for countries considering drafting or revising anational anti-corruption strategy, drawing on practical experiences of UNCAC States parties andfocusing on how to engage all stakeholders in a meaningful and productive drafting process which
would culminate in a realistic, measurable and implementable strategy. Many of therecommendations contained in the Guide may also be relevant to countries that plan to meet their
obligations under article 5 without adopting a formal strategy document.
(a) Anti-corruption strategy development process•

POLITICAL, SOCIAL, ECONOMIC AND CULTURAL CONTEXT: States musttake into account their particular political, social, economic and cultural context when
designing anti-corruption strategies.

•

POLITICAL WILL: Committed political leadership, ideally from the highest levels of
the State, and broader political support to steer the overall process and mobilize
necessary resources, are necessary conditions of an effective anti-corruption strategy
development process.

•STAKEHOLDER INVOLVEMENT (INCLUSIVE PROCESS) AND OWNERSHIP:
Broad engagement of stakeholders builds ownership and helps to ensure acceptability
and effectiveness of strategies adopted. State institutions (executive, legislative andjudiciary) at the national and subnational levels, civil society organizations, private
sector, media, professional societies, trade and industry associations and labour unions,

Resolution 5/4 (2012)
UNODC, The United Nations Convention against Corruption National Anti-Corruption Strategies: A Practical
Guide for Development and Implementation (2015)1112- 43 -

academic institutions, youth and cultural organizations, can serve as important allies
and partners in the development of anti-corruption strategies and can reduce thevulnerability of the reform efforts to changes in political leadership.
•

CLEAR AND TRANSPARENT PROCESS: The process of developing strategies
needs to be clear and transparent from the outset.

•

COMMON VISION: A consensus should be built around a common vision andintended objectives of strategies.

•

STRENGTHENING COORDINATION: Anti-corruption strategies should focus on
enhancing inter- and intra-agency coordination during the development process as wellas the implementation and monitoring phases.

•

SOUND KNOWLEDGE BASE: Development, implementation and monitoring ofstrategies should be informed by sound diagnostics, needs and evidence of risk andvulnerability areas and gaps in anti-corruption policies and institutions.

•

SUSTAINABILITY AND INSTITUTIONALIZATION OF THE PROCESS:
Development of strategies should be institutionalized to ensure continued relevanceand timely modification of the anti-corruption strategies.

•

ALLOCATING AND MOBILIZING RESOURCES: Necessary resources should be
mobilized at the time of development of strategies to ensure effective implementationand monitoring of strategies.

•

PUBLIC COMMUNICATION AND ENGAGEMENT: Anti-corruption and national
planning authorities shall communicate and engage with the public regularly in orderto ensure public confidence and channel feedback for the effective implementation ofanti-corruption strategies.

(b) Anti-corruption strategy design and content•

RATIONALE CORE OBJECTIVES AND REALISTIC GOALS: Core objectives andgoals, and rationale for interventions should be defined based on national priorities,
and identified gaps and needs.

•

NATIONAL DEVELOPMENT STRATEGY/PRIORITIES AND BROADERCONTEXT: Anti-corruption strategies should be incorporated within broader national
development initiatives currently in focus and should take into accountinternational/regional obligations.

•

INTEGRATION WITH OTHER RELEVANT NATIONAL PROGRAMMES/REFORM AGENDAS: Anti-corruption strategies should take into account andestablish links with other relevant national strategies (e.g., judicial sector, public- 44 -

administration reform, open government, etc.) and should seek to form synergies withother agencies.
•

COMPREHENSIVE AND COORDINATED APPROACH: Anti-corruption
strategies should be organized under an overarching/holistic approach while taking
into account sector-specific needs.

•

CLEAR AND UNDERSTANDABLE DOCUMENT: Strategies have to be clear,concise and easily understood.

•

STRUCTURE AND DESIGN: While there is no simple formula for the proper design,
content or implementation of anti-corruption strategies, the UNCAC can be used as aframework for anti-corruption strategies, taking into account relevant data, particularneeds and national capacities.

•

PRIORITIZATION AND SEQUENCING: Strategies need to be realistic on what isachievable in the short, medium and long term, set clear priorities and sequence actions
based on priorities. Strategies could be designed with the aim of enhancing thecredibility of leadership and ensuring quick tangible results to strengthen the national
commitment to reform.

•

IMPLEMENTATION MECHANISM: It is imperative that strategies provide for an
implementation mechanism in the form of an action plan with clearly identified
responsibilities and timelines for implementation with focus on results. The agency
designated to coordinate implementation of strategies should be within high-levelgovernment agencies.

•

SUBNATIONAL IMPLEMENTATION: Where applicable, particular attention
should be paid to strategies’ implementation at the subnational and local levels.

•

INSTITUTIONAL AND FINANCIAL SUSTAINABILITY (NEEDS andCAPACITIES): Strategies should provide for their institutional and financial
sustainability and should take into account capacity for implementation.

(c) Anti-corruption strategy monitoring and evaluation•

INTEGRAL PART OF STRATEGY DESIGN: Monitoring and evaluation
mechanisms are an integral part of national anti-corruption strategies. Elements ofevaluation and data-collection systems should be built into strategies from the designphase.

•

INDICATORS WITH CLEAR BASELINES AND TARGETS: Measurable indicators,
with established baselines and tracking mechanisms, are needed to determine whether
targets are being achieved.

- 45 -

•

NEED FOR DATA-GENERATION TOOLS: Effective monitoring and evaluation
require reliable data that are generated based on multiple sources.

•

REGULAR REPORTING: Regular monitoring and reporting allow authorities togauge progress in implementation and achieving results in curbing corruption.

•

EVALUATION VS. PROGRAMME MANAGEMENT: It is important to distinguishbetween programme management monitoring (activities/outputs) as opposed toevaluation (outcomes/impact) and between implementation responsibilities as opposed
to monitoring and oversight responsibilities.

•RESPONSIBLE AUTHORITY: National body/bodies should be entrusted with the
responsibility for monitoring, implementation and regular reporting and be provided
with sustainable institutional and financial support. An independent evaluation should
ensure accurate monitoring and reporting at regular intervals.

D.

Stolen Asset Recovery Assistance
The Stolen Asset Recovery Initiative (hereinafter referred to as StAR) is a partnership
between the World Bank Group and the UNODC that supports international efforts to end safe
havens for corrupt funds. StAR works with developing countries and financial centers to preventthe laundering of the proceeds of corruption and to facilitate more systematic and timely return ofstolen assets.13 StAR's work is built on four key pillars of empowerment, partnership, innovationand international standards.14
Firstly, StAR helps countries establish the legal tools and institutions required to recover theproceeds of corruption. It helps them develop the specific skills needed to pursue asset recovery
cases, through sharing knowledge and information, and providing hands-on training in asset
tracing and international cooperation on legal matters. StAR helps countries apply these tools andskills by facilitating contacts between jurisdictions in support of asset recovery cases.
Secondly, StAR works with and helps bring together governments, regulatory authorities,
donor agencies, financial institutions, and civil society organizations from both financial centersand developing countries, fostering collective responsibility and action for the deterrence,
detection and recovery of stolen assets.
Thirdly, StAR generates knowledge on the legal and technical tools used to recover theproceeds of corruption, promoting the sharing of global best practices.
Lastly, StAR advocates for the strengthening and effective implementation of Chapter 5 of
the UNCAC and other international standards to detect, deter and recover the proceeds ofcorruption. Working with global forums such as the Conference of States Parties to the UNCAC
13
14

http://star.worldbank.org/star
http://www.unodc.org/unodc/en/corruption/StAR.html- 46 -

and its asset recovery working group, the Financial Action Task Force, and other multinational
bodies, StAR fosters collective global public action and helps countries implement agreed
standards.
II. LEGAL MEASURES FOR INTERNATIONAL COOPERATIONThe United Nations Convention against Corruption (UNCAC) is the only legally binding
universal anti-corruption instrument. The Convention's far-reaching approach and the mandatory
character of many of its provisions make it a unique tool for developing a comprehensive response
to a global problem.15
With ratification by 178 States parties (as of December 2015) 16 , the Convention has
established opposition to corruption as a global norm and made the elimination of corruption a
global aspiration. States parties to the Convention must undertake effective measures to prevent
corruption17 , criminalize corrupt acts and ensure effective law enforcement18, cooperate with other
http://www.unodc.org/unodc/en/corruption/index.html?ref=menuside
http://www.unodc.org/unodc/en/treaties/CAC/signatories.html
17Article 7. Public sector
Article 8. Codes of conduct for public officials
Article 9. Public procurement and management of public finances
Article 10. Public reporting
Article 11. Measures relating to the judiciary and prosecution services
Article 12. Private sector
Article 13. Participation of society
Article 14. Measures to prevent money-laundering
18
Article 15. Bribery of national public officials
Article 16. Bribery of foreign public officials and officials of public international organizations
Article 17. Embezzlement, misappropriation or other diversion of property by a public official
Article 18. Trading in influence
Article 19. Abuse of functions
Article 20. Illicit enrichment
Article 21. Bribery in the private sector
Article 22. Embezzlement of property in the private sector
Article 23. Laundering of proceeds of crime
Article 24. Concealment
Article 25. Obstruction of justice
Article 26. Liability of legal persons
Article 27. Participation and attempt
Article 28. Knowledge, intent and purpose
Article 29. Statute of limitations
Article 30. Prosecution, adjudication and sanctions
Article 31. Freezing, seizure and confiscation
Article 32. Protection of witnesses, experts and victims
Article 33. Protection of reporting persons
Article 34. Consequences of acts of corruption
Article 35. Compensation for damage
Article 36. Specialized authorities
Article 37. Cooperation with law enforcement authorities
Article 38. Cooperation between national authorities15
16- 47 -

States parties in enforcing anti-corruption laws19 and assist one another in the return of assets
obtained through corruption.20
Moreover, in addition to calling for effective action in each of these specific areas, article 5
imposes the more general requirements that each State party: (a) develop and implement ormaintain effective, coordinated anti-corruption policies; (b) establish and promote effective
practices aimed at the prevention of corruption; and (c) periodically evaluate relevant legal
instruments and administrative measures with a view to determining their adequacy to prevent andfight corruption. Furthermore, under article 6, each State party is required to ensure the existenceof a body or bodies, as appropriate, that prevent corruption by implementing the policies referred
to in article 5 and, where appropriate, overseeing and coordinating the implementation of thosepolicies. Thus, one of the most important obligations of States parties under the Convention, andto which they are to be held accountable under the Mechanism for the Review of Implementationof the Convention established under article 63, is ensuring that their anti-corruption policies are
effective, coordinated and regularly assessed.21
The UNCAC covers five main areas: prevention, criminalization and law enforcement
measures, international cooperation, asset recovery, and technical assistance and informationexchange. The UNCAC covers many different forms of corruption, such as trading in influence,
abuse of power, and various acts of corruption in the private sector. A further significant
development was the inclusion of a specific chapter of the Convention dealing with the recovery
of assets, a major concern for countries that pursue the assets of former leaders and other officials
accused or found to have engaged in corruption. The rapidly growing number of States that havebecome parties to the Convention is further proof of its universal nature and reach.

Article 39. Cooperation between national authorities and the private sector
Article 40. Bank secrecy
Article 41. Criminal record
Article 42. Jurisdiction
19
Article 43. International cooperation
Article 44. Extradition
Article 45. Transfer of sentenced persons
Article 46. Mutual legal assistance
Article 47. Transfer of criminal proceedings
Article 48. Law enforcement cooperation
Article 49. Joint investigations
Article 50. Special investigative techniques
20
Article 51. General provision
Article 52. Prevention and detection of transfers
Article 53. Measures for direct recovery of property
Article 54. Mechanisms for recovery of property through international cooperation in confiscation
Article 55. International cooperation for purposes of confiscation
Article 56. Special cooperation
Article 57. Return and disposal of assets
Article 58. Financial intelligence unit
21
UNODC, The United Nations Convention against Corruption National Anti-Corruption Strategies: A Practical
Guide for Development and Implementation (2015), p.1.

- 48 -

A.

Prevention
Corruption can be prosecuted after the fact, but first and foremost, it requires prevention. An
entire chapter of the Convention is dedicated to prevention, with measures directed at both the
public and private sectors. These include model preventive policies, such as the establishment of
anticorruption bodies and enhanced transparency in the financing of election campaigns andpolitical 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
servants should be subject to codes of conduct, requirements for financial and other disclosures,
and appropriate disciplinary measures. Transparency and accountability in matters of publicfinance must also be promoted, and specific requirements are established for the prevention ofcorruption, in the particularly critical areas of the public sector, such as the judiciary and public
procurement. Those who use public services must expect a high standard of conduct from their
public servants. Preventing public corruption also requires an effort from all members of society
at large. For these reasons, the Convention calls on countries to promote actively the involvementof non-governmental and community-based organizations, as well as other elements of civilsociety, and to raise public awareness of corruption and what can be done about it. Article 5 of theConvention enjoins each State Party to establish and promote effective practices aimed at theprevention of corruption.22
B.

Criminalization
The Convention requires countries to establish criminal and other offences to cover a wide
range of acts of corruption, if these are not already crimes under domestic law. In some cases,
States are legally obliged to establish offences; in other cases, in order to take into accountdifferences in domestic law, they are required to consider doing so. The Convention goes beyond
previous instruments of this kind, criminalizing not only basic forms of corruption such as bribery
and the embezzlement of public funds, but also trading in influence and the concealment andlaundering of the proceeds of corruption. Offences committed in support of corruption, including
money-laundering and obstructing justice, are also dealt with. Convention offences also deal withthe problematic area of private-sector corruption.23
C.

International Cooperation
Countries agreed to cooperate with one another in every aspect of the fight against
corruption, including prevention, investigation, and the prosecution of offenders. Countries arebound by the Convention to render specific forms of mutual legal assistance in gathering andtransferring evidence for use in court, to extradite offenders. Countries are also required toundertake measures which will support the tracing, freezing, seizure and confiscation of theproceeds of corruption.24

UNODC, Legislative guide for the implementation of the United Nations Convention against Corruption, Second
Revised Edition (2012) p.2.
23
UNODC, Legislative guide for the implementation of the United Nations Convention against Corruption, Second
Revised Edition (2012) p.2.
24
UNODC, Legislative guide for the implementation of the United Nations Convention against Corruption, Second
Revised Edition (2012) p.2.
22

- 49 -

D.

Asset Recovery
In a major breakthrough, countries agreed on asset-recovery, which is stated explicitly as afundamental principle of the Convention. This is a particularly important issue for many
developing countries where high-level corruption has plundered the national wealth, and where
resources are badly needed for reconstruction and the rehabilitation of societies under new
governments. Reaching agreement on this chapter has involved intensive negotiations, as the needsof countries seeking the illicit assets had to be reconciled with the legal and procedural safeguardsof the countries whose assistance is sought.25
Several provisions specify how cooperation and assistance will be rendered. In particular, inthe case of embezzlement of public funds, the confiscated property would be returned to the state
requesting it; in the case of proceeds of any other offence covered by the Convention, the property
would be returned providing the proof of ownership or recognition of the damage caused to arequesting state; in all other cases, priority consideration would be given to the return ofconfiscated property to the requesting state, to the return of such property to the prior legitimate
owners or to compensation of the victims. Effective asset-recovery provisions will support theefforts of countries to redress the worst effects of corruption while sending at the same time, amessage to corrupt officials that there will be no place to hide their illicit assets. Accordingly,
article 51 provides for the return of assets to countries of origin as a fundamental principle of thisConvention. Article 43 obliges State parties to extend the widest possible cooperation to each otherin the investigation and prosecution of offences defined in the Convention. With regard to asset
recovery in particular, the article provides, inter alia, that "In matters of international cooperation,
whenever dual criminality is considered a requirement, it shall be deemed fulfilled irrespective ofwhether 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 bothStates Parties".26
E.

Mechanism for the Review of Implementation of the UNCACThe Conference recalled article 63 of the UNCAC, especially paragraph 7, according towhich the Conference should establish, if it deemed it necessary, any appropriate mechanism orbody to assist in the effective implementation of the Convention.27 In the same resolution, theConference adopted, subject to the provisions of the present resolution, the terms of reference ofthe Mechanism for the Review of Implementation of the UNCAC28, and the draft guidelines forgovernmental experts and the secretariat in the conduct of country reviews and the draft blueprint
for country review reports, contained in the appendix to the annex, which will be finalized by the
Implementation Review Group.29

UNODC, Legislative guide for the implementation of the United Nations Convention against Corruption, Second
Revised Edition (2012) p. 3.
26
http://www.unodc.org/unodc/en/treaties/CAC/convention-highlights.html#Asset_recovery
27“Review mechanism”, Resolution 3/1 (2009)28
Annex, Resolution 3/1 (2009)29
http://www.unodc.org/unodc/en/treaties/CAC/IRG.html
25- 50 -

The Conference recalled its decision30 by which the Group was charged with following up
and continuing the work undertaken previously by the Open-ended Intergovernmental Working
Group on Technical Assistance, and taking into account the fact that one of the goals of the
Mechanism is to help States parties to identify and substantiate specific needs for technicalassistance and to promote and facilitate the provision of technical assistance. 31 In the same
resolution, the Conference recalled in particular its endorsement 32 of country-led and countrybased, integrated and coordinated technical assistance programme delivery and its encouragement
to donors to accord high priority to technical assistance to implement the UNCAC. The Conference
also endorsed the guidelines for governmental experts and the secretariat in the conduct of country
reviews and the blueprint for country review reports as finalized by the Group at its first session
and the practice followed by the Group with regard to the procedural issues arising from thedrawing of lots.33
III. ANTI-CORRUPTION INVESTIGATION SYSTEM & PRACTICE IN KOREA
A.

Anti-Corruption Department of the Prosecutors’ Office in Korea
In 2013, the Central Investigation Department was replaced by the Anti-Corruption
Department to control and support special investigation, directed by the Prosecutor General at theSupreme Prosecutors' Office.34 (hereinafter referred to as SPO)The SPO consists of the Planning & Coordination Department, Office of Future Strategy &Vision, Judicial Policy Center, International Cooperation Center, Criminal Department, Violent
Crime Investigation Department, Narcotics & Organized Crime Investigation Department, Crime
Victim Rights Division, Public Security Department, Criminal Trial & Civil Litigation Department,
Forensic Science Investigation Department, Inspection Headquarters and Anti-Corruption
Department.
The Anti-Corruption Department finds the focal investigation areas and designates
investigation targets on the basis of structural corruption and causes of crimes discovered during
in-depth research and analysis on criminal phenomena which have been taking new dimensions
following the economic growth and social development. The Anti-Corruption Department
performs various tasks including direction, supervision, and coordination of special investigations
conducted by District Prosecutors' Offices, dealing with and management of cases transferred fromother agencies, support for special investigations such as accounting analysis and tracing funds,
Resolution 3/1 (2009)"Mechanism for the Review of Implementation of the United Nations Convention against Corruption",
Resolution 4/1(2011)32“Technical assistance to implement the United Nations Convention against Corruption” Resolution 3/4 (2009)33
http://www.unodc.org/unodc/en/treaties/CAC/IRG.html
34
The Prosecutors’ Office of Korea consists of the Supreme Prosecutor's Office, High Prosecutors’ Offices, District
and Branch Prosecutors’ Offices. The Supreme Prosecutor's Office stands at the top of organizational hierarchy, andits duties include directing and supervising investigation and operations of all other Prosecutors’ Offices across thecountry. The Supreme Prosecutor's Office directs and supervises investigation and operations of all other
Prosecutors’ Offices across the country. The Prosecutor General handles all affairs and directs all staff members of
the Prosecutors’ Offices.
30
31- 51 -

asset recovery, research on investigation techniques, international cooperation on investigation,and collaboration with relevant institutions.35
The Narcotics & Organized Crime Investigation Department aims to protect the people fromhideous crimes ranging from gang-related violence to narcotics offenses, which greatly threaten
the lives and property of the public. In particular, this department proactively responds to changes
in the criminal environment, where narcotics-related crimes involve trespass of nationalboundaries, and methods of smuggling are increasingly diversifying. As part of these efforts, thedepartment is strengthening global partnership in investigation by holding a regular Anti-Drug
Liaison Officials’ Meeting for International Cooperation (ADLOMICO)36. This department also
supports projects for the elimination of drugs in ASEAN countries with the help from the ASEAN
Secretariat, and is leading the effort to adopt advanced investigative techniques, such as
information systems for investigation of narcotics crimes and Drug Signature Analysis
technique.37
B.

International and Regional Cooperation in Anti-Corruption Investigation
In Asia and around the world, criminals use increasingly more complex money laundering
methods to hide the origins of illegally obtained funds generated by their activities. Moneylaundering poses serious challenges to the economies and national security of nations. National
investigation and prosecution authorities understand that "following the money" — mapping theflow of illicit funds in order to recover them — is the most effective way to combat money
laundering. Doing so leads back to the money's source, potentially allowing it to be confiscatedand the illicit cash flows stopped. It is, however, an extremely difficult task: Less than 1% of illicit
financial flows around the globe are seized and frozen, according to a recent UNODC study.38
Law enforcement officials are often constrained by national borders and lack of cross-bordercooperation, unlike criminals who are not bound by jurisdictions or borders, and can move illegallyobtained money from country to country. To overcome this, Towards AsiaJust Programme39, a
http://www.spo.go.kr/eng/about/departments.jsp
The purpose of the ADOLOMICO is to share information about international drug trafficking organizations andtheir illicit trafficking activities and to establish the mechanism for regional cooperation to tackle drug crimes. Since
April 1989, the Supreme Prosecutors' Office has organized quarterly meetings of drug-related officials of several
embassies in Seoul with the purpose of strengthening international cooperation and facilitating exchange of
information on international drug crimes. The ADLOMICO has been excellent forum for sub-regional cooperation,in areas such as exchange of information on new trends of drug crimes and mutual legal assistance among themember countries. ADLOMICO has been highly praised for a model sub-regional cooperation mechanism by theUnited Nations. And Executive Director of the UNDCP has sent his encouraging message for the participants of
ADLOMICO each year. (http://www.spo.go.kr/eng/division/adlomico/about/adlomico.jsp)37
http://www.spo.go.kr/eng/about/departments.jsp
38
UNODC, Estimating illicit financial flows resulting from drug trafficking and other transnational organizedcrimes (2011) (http://www.unodc.org/documents/data-and-analysis/Studies/Illicit_financial_flows_2011_web.pdf)
39
Towards AsiaJust programme aims at establishing a cooperative legal network in Southeast Asian region toeffectively fight against international crime. Korean Institute of Criminology (KIC) has signed an MOU with the35
36

UNODC Regional Centre for East Asia and the Pacific for the development of the 『Towards AsiaJust』programme
in July 2009. As part of this project, KIC has conducted research on crime trends and criminal justice systems in thisregion and has provided financial assistance. More specifically, KIC’s research aimed at enhancing the level ofmutual legal assistance, achieving transnational organized justice. For more efficient and comprehensive research,- 52 -

sub-programme of the UNODC Regional Centre in East Asia and the Pacific, has worked to form
an Asset Recovery Inter-Agency Network for Asia and the Pacific (hereinafter referred to as
ARIN-AP), a regional network of prosecutors and law enforcement to promote the comprehensive
cross-border cooperation and Mutual Legal Assistance (hereinafter MLA) necessary to effectively
combat money laundering.
(a)Development of the ARIN-AP
The organizing meeting in 2012, organized by the UNODC, with support from the SPO of
the Republic of Korea and UNODC Vienna's Global Programme against Money Laundering,
Proceeds of Crime and the Financing of Terrorism (GPML), the meeting drew practitioners andscholars from Australia, China, Indonesia, Japan, New Zealand, the Republic of Korea, Singapore
and Thailand, as well as representatives from UNODC GPML and from the ARIN Secretariats
currently established in Europe (CARIN), South Africa (ARINSA) and South America (RRAG).
The Korean SPO offered to house the Secretariat of the future ARIN-AP and provide criticalsupport. An inter-agency regional network is essential to successfully forfeit assets from criminals.
That is why the Korean SPO would like to facilitate the creation of an ARIN-AP Secretariat.40 In
January 2013, the SPO set up an ARIN-AP webpage.41At the conclusion of the 2012 conference,
attendees were presented with Conclusions of the Expert meeting to develop Asset Recovery InterAgency Network in Asia and the Pacific. The report contains prerequisites, requirements,
expectations, suggestions and views raised by participants throughout the meetings in regards tothe establishment of ARIN-AP.42
In November 2013, the Inaugural General Meeting of the ARIN-AP was held at the SPO.
The Meeting attracted 21 countries from the Asia-Pacific region as well as 6 internationalorganizations including UNODC, World Bank, and CARIN. The SPO took the role of Secretariatof the ARIN-AP.
(b)

Overview of the ARIN-AP
The aim of ARIN-AP is to increase the effectiveness of members’ efforts in depriving
criminals of their illicit profits on a multi-agency basis by establishing itself as the center ofprofessionals’ network in tackling the proceeds of crime.

KIC periodically sent researchers to the UNODC Regional Centre for East Asia and the Pacific. Moreover, KIC has
participated in various workshops and meetings as part of the programme. As prosecutorial capacity building (PCB)
is one of the foremost priorities for the Towards AsiaJust programme, the SPO of the Republic of Korea and
UNODC hosted a high level prosecutors’ meeting in 2010, with the theme of the Role of Prosecutors Against
Proceeds of Crime and Financing of Terrorism, and KIC also participated in the meeting. Another prominent
workshop that KIC participated in was the UNODC-ITU’s Asia-Pacific Regional Workshop on Asset Recovery andFighting Cyber Crime in 2011.
(https://eng.kic.re.kr/modedg/contentsView.do?ucont_id=CTX001018&srch_menu_nix=74C47Qr4&srch_mu_site=
CDIDX00002&srch_mu_lang=CDIDX00023)
40
UNODC, “UNODC promotes Asia Pacific asset recovery inter-agency network”(https://www.unodc.org/southeastasiaandpacific/en/2012/12/arin-meeting/story.html)
41
http://www.arin-ap.org/main.do42
https://www.unodc.org/documents/southeastasiaandpacific//2012/12/arin/Conclusions.pdf- 53 -

Seeking to meet its aims ARIN-AP focuses on the proceeds of all crimes, within theframework of international obligations, establishes itself as the center of expertise in all aspects oftackling the proceeds of crime, promotes the exchange of information and best practice, establishes
a network of contact points, forms a solid international network with other related organizations
such as UNODC and CARIN, researches and develops practices and systems of asset recovery,
facilitates and promotes training in all aspects of tackling the proceeds of crime, acts as an advisorygroup to other appropriate authorities, and cooperates with the private sector in achieving its
aims.43
IV. ASSET RECOVERY LAW & SYSTEM IN KOREAThe Republic of Korea regulates the act of disguising criminal proceeds as legitimately
acquired or concealing such proceeds (i.e. money laundering), and recovers assets based upon
relevant laws including the ‘Act on Regulation of Punishment on Criminal Proceeds Concealment’.
Korea also prevents criminals from concealing or disposing properties with a ‘preservation orderfor the purpose of confiscation’ allowing freezing of assets prior to conviction or indictment.
Korea has traced and confiscated criminal proceeds and exchanged relevant information withforeign countries pursuant to the ‘Act on International Mutual Legal Assistance in Criminal
Matters’. Currently, it has bilateral MLA treaties with 23 countries and acceded to the Council ofEurope Convention on Mutual Legal Assistance in Criminal Matters thereby forming a mutual
legal assistance network with 72 countries. In addition, Korea has enhanced international
cooperation in retrieving criminal proceeds by joining the United Nations Convention against
Corruption, OECD Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions, Egmont Group and APG (Asia-Pacific Group on Money Laundering), andkept its efforts to adopt good models from other countries.
In Korea, many government authorities are taking part in the efforts of asset recovery. For
example, the SPO established ‘The Task Force on Money Laundering Investigation and Asset
Forfeiture’ for effective asset tracing and recovery in 2006, and expanded the TF into the ‘Criminal
Proceeds Confiscation Center’ in 2010. The SPO also created a criminal proceeds confiscation
unit in major prosecutors’ offices nationwide. Meanwhile, the International Criminal Affairs
Division of the Ministry of Justice manages laws related to asset recovery and supports
investigative authorities in mutual legal assistance with their counterparts in other countries. The
Korea Finance Intelligence Unit (KoFIU) provides investigators with specific financial records
such as STR and CTR and engages in international mutual legal assistance.
In general, Korea uses a formal assistance channel for mutual legal assistance. As to informal
assistance, the adequacy of a request is carefully reviewed case by case.
A.
(a)Act on Regulation and Punishment of Criminal Proceeds Concealment of 2014
The Purpose of the 2014 Act
The purpose of the 2014 Act is to contribute to the maintenance of a sound social order byregulating activities that disguise the acquisition of criminal proceeds related to specific crimes,
43

http://www.arin-ap.org/about/mission- 54 -

conceal criminal proceeds for the purpose of encouraging specific crimes, or disguise such assets
as legitimately acquired, and by fundamentally eliminating economic factors that encourage
specific crimes through prescribing special cases regarding confiscation and collection ofequivalent value with regard to criminal proceeds related with specific crimes.
(b)

Criminal Proceeds
A person who disguises the acquisition or disposition of criminal proceeds44, disguises theorigin of criminal proceeds, or conceals criminal proceeds for the purpose of encouraging specificcrimes or disguising criminal proceeds as legitimately acquired shall be punished by imprisonment
with labour for not more than five years or by a fine not exceeding 30 million won. (Art.3)
A person who knowingly accepts the criminal proceeds, etc 45 shall be punished by
imprisonment with labour for not more than three years or a fine not exceeding 20 million won:
Provided, That this shall not apply to any person who accepted the criminal proceeds, etc.
presented as a performance of an obligations under statutes or any person who received thecriminal proceeds, etc. presented as a performance of an obligations under a contract (only limited
to a contract under which a creditor is to offer substantial property interest) not knowing that theperformance of such obligations would be performed with the criminal proceeds, etc. at the timeof signing the contract. (Art.4.)
When the representative of a corporation, or an agent or employee of, or any other person
employed by, a corporation or an individual commits an offence under Articles 3 through 5 inconnection with the business affairs of the corporation or individual, not only shall such offenderbe punished, but also the corporation or individual shall be punished by a fine under the relevant
provisions: Provided, That this shall not apply where such corporation or the individual has notbeen negligent in giving due attention and supervision concerning the relevant business affairs inorder to prevent such offense. (Art.7)(c)Confiscation of Criminal Proceeds
Criminal proceeds, any property derived from criminal proceeds46, criminal proceeds related
to the criminal acts prescribed in Article 3 or 4, and any property generated by the criminal acts
prescribed in Article 3 or 4, any property acquired in return for such criminal act, and any property
acquired as a fruit of or in compensation for any property prescribed in subparagraph 3 or 4, any
property acquired as compensation for these properties, or any other property acquired by thepossession or disposition of the property may be confiscated. (Art.8. para.1.)
Where the property that is subject to confiscation as prescribed in paragraph (1) (hereinafterreferred to as property subject to confiscation) is mixed with properties other than the property
Criminal proceed means property generated by committing serious crimes or acquired in return for such crimes orfunds or properties concerning any of the crimes prescribed in the 2014 Act. (Art.2.)
45
Criminal proceeds, etc. means criminal proceeds, property derived from criminal proceeds, and any other property
in which either one of the above properties is indistinguishably mixed with other kinds of property. (Art.2.)
46
Property derived from criminal proceeds means any property acquired as the fruit of criminal proceeds, property
acquired as compensation for criminal proceed, property acquired as compensation for the two above types ofproperty, and property acquired from the possession or disposition of criminal proceeds. (Art.2.)
44- 55 -

subject to confiscation and the said property should be confiscated, the equivalent of the value orquantity of the property subject to confiscation (within the limits of the part related to the mixture)from among the property generated by the mixture (hereinafter referred to as mixed property) may
be confiscated. (Art.8. para.2.)
The confiscation prescribed in Article 8 (1) shall be limited to cases where the property
subject to confiscation or mixed property does not belong to any person other than a criminal:
Provided, That where a person other than a criminal knowingly acquires the mentioned property
subject to confiscation or mixed property (excluding cases in which the acquisition of thementioned property subject to confiscation or mixed property falls under the proviso to Article 4)
after such crime has been committed, the mentioned property subject to confiscation or mixed
property may be confiscated even though it belongs to a person other than a criminal. (Art.9.
para.1.)
Where it is impracticable to confiscate the property under the provisions of Article 8 (1) or
where it is deemed inappropriate to confiscate the property in light of the nature of such property,
the conditions of its use, the existence of a right of any person other than the parties to the offense
to such property, or other circumstances, the monetary equivalent to the value of such property
may be collected from any of the parties to the offense. Where the property prescribed in Article
8 (1) is crime victim property, such collection shall not be made. (Art.10)
The collection of property subject to confiscation under the 2014 Act, which belongs to anindividual, corporation, or those with actual control over the corporation through management
control, financial relations, or participation in decision making, who have criminal responsibilities
for an accident causing a loss of multiple human lives, may be executed against the property
subject to confiscation that any person other than a criminal has knowingly acquired as well as theproperty which has been derived therefrom. (Article 10-2.)(d)

Disposition by Prosecutors for Execution of Confiscation and Collection
Where it is deemed necessary for the execution of confiscation and collection under this Act,
prosecutors may take any of the following dispositions within the necessary minimum range:
Provided, That in cases of the dispositions prescribed in subparagraphs 4 and 5 on any person otherthan a criminal, a warrant referred to in paragraph (3) shall be required demand for attendance ofinterested persons and hearing of their opinions; demand for a person who owns, possesses, or
retains documents or other articles to submit them; request for the provision of certain information
on financial transactions provided for in Article 7 (1) of the Act on Reporting and Using Specified
Financial Transaction Information; request for the provision of taxation information provided forin Article 81-13 of the Framework Act on National Taxes; request for the provision of informationor materials related to the details of financial transactions under Article 4 (1) of the Act on Real
Name Financial Transactions and Confidentiality; demand for public institutions or organizations
to reply to an inquiry of facts or to report on necessary matters. (Article 10-3. Para.1.)
In receipt of a request for the provision of information pursuant to paragraph (1), no
institution shall refuse to comply with such request on the basis of other Acts, except in cases- 56 -

having significant impacts on the security of the nation, such as military, diplomacy, and interKorean relations. (Article 10-3. Para.2.)
Where it is necessary for the execution of confiscation or collection pursuant to paragraph(1), prosecutors may conduct seizure, search, or verification in accordance with a warrant issued
by a judge of a district court at their request. (Article 10-3. Para.3.)(e)Implementation of Mutual Cooperation
When a foreign country has requested cooperation in relation to a foreign criminal caseagainst an act falling under specific crimes and the crimes referred to in Articles 3 and 4 of thisAct in the execution of a finally-binding adjudication of confiscation or collection of equivalentvalue or in the preservation of property for the purpose of confiscation or collection of equivalentvalue, mutual assistance may be provided except in any of the following cases (Art.11.)① Where activities related to the crimes that require mutual cooperation take place in the
Republic of Korea and such activities are not regarded as specific crimes or the crimes
referred to in Articles 3 and 4 of the statutes of the Republic of Korea;② Where there is no assurance of the requesting country providing assistance for similar
requests made by the Republic of Korea;③ Where it falls under any of the subparagraphs of Article 64 (1) of the Act on Special
Cases concerning the Prevention of Illegal Trafficking in Narcotics, etc.
B.

The Process of Seeking Restraint, Seizure and Confiscation
In order to seek the restraint, seizure and forfeiture/confiscation of criminal proceeds from
Korea, the following steps should be followed.
(a)Identification of the Asset
In order to recover the proceeds of corruption held within Korea, first identify whether therequest is formal or informal. It will be necessary to identify the relevant information explained in
the paragraph of Mutual Legal Assistance. In addition, a country requesting to take informal
procedures should specify reasons for such request. Then Korea will review the need for therequest carefully. In order to assist identifying assets in Korea, the following mechanisms areavailable:(b)Mutual Legal Assistance Request
A country may request mutual legal assistance in criminal matters based on the principle ofreciprocity even without a bilateral or multilateral treaty in force pursuant to the Act on
International Mutual Legal Assistance in Criminal Matters of Korea.
The mutual legal assistance that Korea can provide may differ by requesting state, but
generally speaking, Korea offers assistance for investigation into persons or objects, provision of
documents or records, collection of evidence, seizure/search or verification, transfer of objects (e.g.

- 57 -

evidence), hearing of statements, or taking measures to have witnesses testify in the requestingstate or cooperate on investigation.
The terms of each treaty and relevant laws such as the Act on International Mutual Legal
Assistance in Criminal Matters and the Act on Regulation of Punishment on Criminal Proceeds
Concealment provide the required information in a mutual legal assistance request. Generally, thefollowing information must be provided in a request seeking assistance from Korea.
① Government authorities in charge of investigation and legal proceedings related to therequest② Facts of crime for which assistance is requested③ Objectives and contents of the request④ Other matters required for mutual legal assistance
Korea receives letters of mutual legal assistance through diplomatic channels or by direct
mail. Once the request is received, the Ministry of Justice reviews the case, mainly with regard to
the requirement of dual criminality or necessity to assist. After that, the Ministry of Justice orders
the District Prosecutors' Office to proceed with mutual legal assistance, unless any supplementary
documents are required. The District Prosecutors' Office proceeds with mutual legal assistance andsends the results to the Ministry of Justice. The Ministry of Justice then reviews the results andsends a reply to the requesting country, unless any additional requests are made.
As the primary contact for mutual legal assistance from Korea, the International Criminal
Affairs Division in the Ministry of Justice works with the competent authority of the requestingstate as well as Korean prosecutors or law enforcement officials to successfully execute the request
for mutual legal assistance.
(c)Access to Database of the Property Registry System Managed by the Court
The Office of Court Administration operates the registry of real estate and vessels held in
Korea. The registry information is computerized so that anybody around the world can search andread the information online. Please refer to www.iros.go.kr. The registry provides informationsuch as stakeholders (e.g. owner, security holders, etc.) of real estate and vessels so as to help
identify and trace relevant properties.
(d)Egmont Requests
As a member of the Egmont Group47, Korea can exchange information with foreign FIUs
for criminal investigations. Korea also laid the foundation for information exchange between
KoFIU and foreign FIUs by enacting the ‘Financial Transaction Reports Act’. In response to the
Egmont requests by foreign FIUs, KoFIU can provide specific financial transaction records suchas STR and CTR and other relevant information, provided that the following requirements are met:47

http://www.egmontgroup.org/- 58 -

① Specific financial transaction records provided to foreign FIUs shall not be used for otherpurpose than the one specified on the request;② The fact that specific financial transaction records have been provided shall be kept
confidential;③ Specific financial transaction records provided to foreign FIUs shall not be used for
criminal investigation or legal proceedings of foreign countries without prior consent of
the Commissioner of KoFIU.
C.

Confiscation of Property relating to Foreign Offences
When assets have been identified, Korea offers the following means of assistance to recover
the assets:(a)

Restraining, Freezing or Seizing Assets
The requesting state may request mutual legal assistance for seizure or preservation ofproperties for confiscation. The court orders seizure or preservation of properties in case the court
determines there are reasonable grounds to believe that the properties may be confiscated and suchorder is necessary to confiscate the properties, either upon request from the prosecutor or byauthority of the court, even before indictment. The seizure/preservation order for confiscation can
prevent disposal of such properties until the court decision on confiscation is rendered.
Therefore, seizure and preservation of properties for confiscation can be based on foreignarrest or charge, a suspicion/belief that a person has committed a foreign serious offense and holds
assets, or foreign orders and judgements. As for the enforcement of foreign orders and judgements,
various forms of orders and judgements (e.g. pecuniary, substitute value, etc.) may be executed;
however, the enforcement of orders or judgements not compatible with the Korean legal system
may be restricted. Generally final orders and judgements are considered appropriate.
The request for mutual legal assistance in seizure and preservation of properties forconfiscation should include the name of the suspect, charges, facts of crime, relevant laws
supporting confiscation, properties of which disposal is banned, rights, the name of the owner ofthe properties/rights, date of issuance, etc.
(b)

Confiscating Assets, Proceeds and/or Instrumentalities
To confiscate the proceeds and/or instrumentalities of a foreign offense through theenforcement of foreign orders and judgements, mutual legal assistance in criminal matters may besought.
The request for mutual legal assistance in confiscation should include the similar informationas specified in the previous paragraph. Upon request of the prosecutor based on foreign orders andjudgements, the Korean court decides on the execution and then the enforcement authorities(Penalty Enforcement Division of Prosecutors’ Offices) may execute the confiscation request for
the asset.

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(c)Limitation
In accordance with Article 11 of the ‘Act on Regulation of Punishment on Criminal Proceeds
Concealment,’ mutual legal assistance for restraining, freezing, seizing or confiscating assets froma requesting state may be limited in any of the following cases:
Where activities related to the crimes that require mutual legal assistance take place in Korea
and such activities are not regarded as specific crimes subject to asset recovery, money launderingor receiving criminal proceeds according to the Korean laws:① Where there is no assurance of the requesting state providing assistance for similar
requests made by Korea;② Where the offense that requires mutual legal assistance is not punishable pursuant to the
Korean laws;③ Where the offense that requires mutual legal assistance is still in trial or has a final verdict
rendered, or the property for which mutual legal assistance is requested has been alreadyordered to be preserved for the purpose of confiscation or collection;④ Where the property relevant to the request for assistance in executing the final judgementon confiscation/collection or in preserving the property for confiscation/collection may
not be subject to the legal proceedings or preservation for confiscation/collection;⑤ Where a third party with reasons to be believed to have the ownership of the property
that requires mutual legal assistance for the execution of the final judgement on
confiscation or have the superficies, hypothec, or any other right on the property was notable to claim for his/her rights during the court proceedings for the reasons not
attributable to him/her;⑥ Where the court determines that confiscation/collection is not required.
D.

Disposal/Return of Assets
When a foreign country requests disposal or return of assets, the assets may be returned
based upon the Act on International Mutual Legal Assistance in Criminal Matters or the bilateraltreaty on international mutual legal assistance. The properties shall be disposed or returned in theways specified in the request or the agreement made between Korea and the requesting state.
However, mutual legal assistance in corruption crimes specified by the ‘Act on Special Cases
concerning the Confiscation and Return of Property Acquired through Corrupt Practices’ may not
be provided in any of the following cases.
① Where an act involved in the offence for which cooperation is requested was committed
in the territories of Korea and it is held that the act does not constitute a corruption
offense under the relevant acts of Korea;- 60 -

② Where the requesting state has not made a guaranty to the extent that it will accept andrespond to a request for cooperation of the same kind if Korea makes such a request;③ Where the requesting state has not made a guaranty that the property subject to execution,etc. will be conveyed to the original owner of the property subject to execution, etc., thevictim of the offense or any other person who has a legitimate right;④ Other cases where the request for execution of the final judgement on confiscation/collection, or for preservation of property for the purpose of confiscation/collection may
not be made in accordance with Article 64(1) of the Act on Special Cases concerning thePrevention of Illegal Trafficking in Narcotics, etc.
The Act on Special Cases concerning the Confiscation and Return of Property Acquired
through Corrupt Practices prescribes that if it is the property of the victim of an offense but it isdeemed exceedingly difficult for the victim to recover damages because he/she is not able toexercise his/her right against the offender seeking return of the property or compensation for
his/her damages on the property, such property may be confiscated or an equivalent value thereof
may be collected. If the prosecutor keeps the property to be returned to the victim after
confiscation/collection, the prosecutor shall notify the victim thereof immediately, and the victim
shall request the return of the property. Then, the prosecutor shall decide on whether to return theproperty as early as possible and return the property upon decision without delay.
E.

Special Investigation Support Division of the SPO
In 2001, the Special Investigation Support Division was established to support tax, financeand computer-related investigation at the SPO. To respond to increasingly high-tech crimes, theDivision has Asset Tracing Team and Accounting Analysis Team, Criminal Assets Recovery
Team, Special Financial Transactions/Technology Leakage Team, and Coordination & External
Affairs Team.
(a)

Accounting analysis support system
The accounting analysis team supports accounting analysis investigation and finds chargesof embezzlement and breach of trust. In the pre-investigation stage, the team provides pre-analysis
of public data, press reports, and intelligence. It also assists the search and seizure process, andanalyses account data in the stage of investigation. At trial, special investigators of the teamprovide testimony and evidentiary reports.
(b)

Asset Tracing Support TeamThe asset tracing support team provides pre-analysis of financial transaction and supports
the creation of search and seizure warrants for special investigations of prosecutors. In the stageof executing search and seizure warrants, the team analyses transactions, extracts suspicious funds
and confirms the source of suspicious funds.

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(c)Asset Recovery Center
In 2010, Korea joined the Financial Action Task Force on Money Laundering (FATF).48 The
asset recovery center is performing its tasks of detecting suspicious transactions and transactionsof large amounts of cash informed by the FIU, tracking money laundering, finding concealed crime
proceeds, requesting and executing preservation measures for forfeiture and collection, andtraining asset recovery experts.
V.

COOPERATION IN ANTI-CORRUPTION INVESTIGATION: KOREAN CASESOn Monday, November 9, 2015, Korean Minister of Justice Kim Hyun-Woong met with
U.S. Attorney General Loretta E. Lynch to finalize the return transfer of US $1.1 million of
forfeited assets to the Republic of Korea. The assets, forfeited in two U.S. civil forfeiture actions
settled in 2015, were linked to a corruption scheme organized by former Korean President Chun
Doo Hwan. As reported in the March 2015 Red Notice, a criminal court in Korea convicted Chunin 1997 of taking more than US $200 million in bribes during his presidency.49
According to the US Department of Justice (DOJ), the former president’s family members
and associates laundered profits from his public corruption scheme into the United States. The
forfeited assets recovered by the DOJ are just a fraction of the approximately US $212 million
Chun was ordered to pay in restitution. In 2013, the Anti-Corruption Division of the Korean SPO
and prosecutors from the DOJ’s Kleptocracy Asset Recovery Initiative launched investigations
into the potential laundering of bribery proceeds into the United States by Chun and his associates.
Kleptocracy prosecutors worked across federal agencies and with Korean law enforcement
The Financial Action Task Force (FATF) is an inter-governmental body established in 1989 by the Ministers of its
Member jurisdictions. The objectives of the FATF are to set standards and promote effective implementation of legal,
regulatory and operational measures for combating money laundering, terrorist financing and other related threats tothe integrity of the international financial system. The FATF is therefore a “policy-making body” which works togenerate the necessary political will to bring about national legislative and regulatory reforms in these areas. The
FATF has developed a series of Recommendations that are recognised as the international standard for combating ofmoney laundering and the financing of terrorism and proliferation of weapons of mass destruction. They form thebasis for a co-ordinated response to these threats to the integrity of the financial system and help ensure a level playing
field. First issued in 1990, the FATF Recommendations were revised in 1996, 2001, 2003 and most recently in 2012
to ensure that they remain up to date and relevant, and they are intended to be of universal application. The FATF
monitors the progress of its members in implementing necessary measures, reviews money laundering and terrorist
financing techniques and counter-measures, and promotes the adoption and implementation of appropriate measures
globally. In collaboration with other international stakeholders, the FATF works to identify national-levelvulnerabilities with the aim of protecting the international financial system from misuse.(http://www.fatf-gafi.org/)
49
Former South Korean President Chun Doo-hwan held office from 1980 to 1988. During that time, he had allegedly
amassed more than $200 million in bribes from large corporations such as Samsung, Hyundai and LG. Over time,
traces of the funds started to expose themselves following deeper investigations including boxes filled with cash, andmost recently, a house and other assets under his son’s name. That same son, Chun Jae-yong, admitted that he hadreceived large sums of money from his father. The former president was ordered in 1996 by South Korean courts topay back the $229 million he received illegally, but he had spread the money around so much in others’ bank accounts
and fake companies, that records showed he only had $300 to his name. The latest seized sum only represents a small
percentage of Chun’s bribe money, but South Korean prosecutors are still very actively pursuing the fund more than
30 years after the fact. (http://www.koreatimesus.com/us-returns-1-2-million-of-seized-assets-from-former-presidentto-s-korea/)48- 62 -

agencies on the investigation. This marks the first instance of the United States returning laundered
money to South Korea since their Treaty on Mutual Legal Assistance in Criminal Matters cameinto force in 1997, as well as the first successful case in which the Korean Ministry of Justicerecovered assets of a high-profile public official hidden overseas.50
The new 2030 Agenda for Sustainable Development, our plan to end poverty andensure lives of dignity for all, recognizes the need to fight corruption in all its aspects
and calls for significant reductions in illicit financial flows as well as for the recovery
of stolen assets …. I call for united efforts to deliver a clear message around the worldthat firmly rejects corruption and embraces instead the principles of transparency,
accountability and good governance. This will benefit communities and countries,
helping to usher in a better future for all.51

50
51

http://www.lexology.com/library/detail.aspx?g=267a9284-b983-4320-aefb-c1ff3889060b
Message from UN Secretary-General, Ban Ki-moon on International Anti-Corruption Day (9 December 2015).

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COUNTRY PRESENTATION PAPERS

Ms. Norfarisah Mohd Harris & Ms. Rabi’atul Khairunnisa Binti Zofri, Brunei Darussalam***
Mr. Ku Khemlin & Mr. Srin Sovann, Cambodia***
Ms. Mahayu Dian Suryandari, Ms. Ipat Fatmawati, & Ms. Irene Putrie, Indonesia***
Mr. Vilavong Phomkong & Mr. Souphanvong Vanthanouvong, Lao PDR***
Mr. Kamal Baharin Bin Omar & Mr. Amir Bin Nasruddin, Malaysia***
Ms. Lwin Lwin Than & Mr. Win Nyunt, Myanmar***
Mr. Dennis Ladia Garcia & Ms. Olivia Laroza Torrevillas, The Philippines***
Mr. Yoh Yoon Min & Mr. Lee Choon Khiang, Singapore***
Ms. Pattraporn Pommanuchatip & Mr. Pakorn Kunsara, Thailand***
Ms. Vu Thi Hai Yen & Mr. Nguyen Hoanh Dat, Viet Nam- 64 -

CONTEMPORARY MEASURES FOR EFFECTIVE INTERNATIONAL
COOPERATION
Rabi’atul Khairunnisa Zofri*I.

INTRODUCTION

The significance and urgency of International Cooperation was greatly highlighted andemphasized to all State Parties in the United Nations Convention against Corruption 1 .
Coherently, the modus operandi in corruption is becoming even more challenging and diverse,
hence both enforcement agencies and prosecution agencies should engage in close cooperation
with their counterparts and possess the same stance in terms of exchanging information relating
to investigation and prosecution of corruption cases as well as to recover illicit proceeds ofcorruption from overseas.
In order to work effectively and efficiently to curb the ever-changing operations andforms of corruption, anti-corruption agencies from every country should emphasize a higher
level of understanding and collaboration, working hand in hand without any prejudice towards
the common goal of eradicating and wiping out corruption on a global scale. Cooperation andmutual work ethic should not be limited to formal means but should also be open to informalmeans; hence in order to enhance international or regional cooperation between law
enforcement agencies, State Parties are encouraged to enter into bilateral or multilateralagreements or have arrangements for direct cooperation between law enforcement agencies2.
International cooperation is important.
II. ANTI-CORRUPTION BUREAU (ACB) BRUNEI DARUSSALAM AND
MALAYSIAN ANTI-CORRUPTION COMMISION (MACC) MALAYSIA—BILATERAL COOPERATION NETWORK AND WORKING GROUP
A.

Bilateral Cooperation Network
The two anti-corruption agencies of Brunei Darussalam and Malaysia have formed abilateral cooperation network to resolve resistance and obstacles that occurred between the twostates during the course of work, especially when there is an issue of jurisdiction and power ofinvestigation. From 22 to 24 July 2002, the ACB Brunei Darussalam and the Anti-Corruption
Agency (ACA) Malaysia3 held the 1st Annual Bilateral Meeting in Brunei Darussalam, andduring the meeting the two agencies agreed to collaborate in the area of investigation,
intelligence, law, prevention, inspection, and consultancy and training.

* Assistant Special Investigator, Anti-Corruption Bureau, Brunei Darussalam.

Article 43-50, United Nations Convention against Corruption.
Article 48, United Nations Convention against Corruption.
3
The ACA is known as the Malaysian Anti-Corruption Commission (MACC) since 1 January 2009.
1
2- 65 -

B.

Working Group
From 24 to 25 June 2003, the first meeting of the ‘Working Group’ (WG) was held in
Penang, Malaysia, and Terms of Reference for Mutual Assistance were developed between
MACC, Malaysia and ACB, Brunei.
The functions of the Working Group are as follows:i.

To act as a focal point ina. Receiving and coordinating requests for Mutual Assistanceb. Providing feedback on Mutual Assistanceii.

To organize discussion on mutual assistance when required, andiii.

To present an annual report for Bilateral Cooperation meeting between MACC
and ACB

The types of assistance that can be rendered through the Working Group cover thefollowing scope:i.

Intelligence: Exchange of intelligence information, assistance on intelligencework, and tracking witnesses or subjects

ii.

Investigation: To keep a record of any person who has given a statement orassisted an investigation, recording a statement of a witness or subject,collection and delivery of documents or case exhibits, seizure, freezing andforfeiture of assets, delivery and execution of any orders in relation to any
offences issued by authorities of both states, handing over of criminals, joint
operations and other cooperation agreed upon by both agencies.

III. BRUNEI DARUSSALAM – PARTY TO THE TREATY ON MUTUAL LEGALASSISTANCE IN CRIMINAL MATTERS
Brunei Darussalam is a party to the Treaty on Mutual Legal Assistance in Criminal
Matters. The legal framework for Mutual Legal Assistance (MLA) in Brunei Darussalam isprimarily provided for in the Mutual Assistance in Criminal Matters Order 2005 (MACMO
2005). Under the MACMO 2005, Brunei can make and comply with requests for assistance toobtain evidence, make arrangements for persons to give evidence or assist in investigations,confiscation of property, service of documents, identification and location of persons, searchand seizure, provision of documents or any other types of assistance not contrary to ourdomestic laws.
IV. CASE STUDY
A.

Case Overview
Information was received by the Anti-Corruption Bureau (ACB) sometime in 2010
stating that one male had demanded money from a person caught by the Brunei Royal Customs
and Excise Department for illegally smuggling 86 cartons of contraband cigarettes from Miri,- 66 -

Sarawak, Malaysia through the Sungai Tujoh Immigration Control Post. The said money was
an inducement to reduce the number of cartons smuggled by a smuggler, hence lowering theamount of the compound duty.
B.

Investigation Findingsi.

Investigations by the ACB established that the subject of this case was Kharol Azmi
Bin Hj Kula, a male of Bruneian nationality who was unemployed during thealleged period. He was a former Examining Officer under the Royal Customs andExcise Department, and his service was terminated in 2007. In 2010, Kharol Azmi
was involved in several alleged fraud cases.

ii.

Investigation revealed that Kharol Azmi had contacted a smuggler on the pretext
that Kharol Azmi wanted to purchase cartons of cigarettes. Kharol Azmi and thesmuggler then arranged for meet ups; however, Kharol Azmi then tipped off theRoyal Customs and Excise Department which led to the arrest of the smuggler.

iii.

After the smuggler was arrested by the Royal Customs and Excise Department,
investigation by the ACB revealed that Kharol Azmi had used several different
lines to contact the smuggler and to impersonate a Customs Officer, a Prosecuting
Officer and an anonymous person who knew a Customs Officer could help tofalsify the number of cigarettes confiscated in order to get a lower compound duty
imposed by the court. Kharol Azmi then asked the smuggler to remit BND 2000
through a remittance service ‘Western Union’ addressed to a named individual.

iv.

On 10 March 2011, following the instruction of Kharol Azmi, the smuggler
remitted BND 2,000 via Western Union to the name mentioned by Kharol Azmi.
With the assistance from the Malaysian Anti-Corruption Commission, MACC
(Miri Branch), through the ACB and MACC Working Group, it was revealed thatthe money had been withdrawn on the same day.

v.

Investigation by the ACB then revealed that the recipient of the BND 2,000
remitted by the smuggler is of Malaysian nationality.

vi.

Since Kharol Azmi was known to have dealt with a Malaysian and the evidence
showed that the money had been withdrawn from a bank account in Malaysia which
MACC has jurisdiction over, ACB sought assistance from MACC in order to obtain
information and evidence.

vii.

Collecting intelligence information and evidence gathering: Assistance from the
Malaysian Anti-Corruption Commission (MACC), Malaysia
 MACC conducted an investigation under Section 16 of the Malaysian AntiCorruption Act 20094.
 As a result of the investigation conducted by MACC, investigators were able:

Section 16 of the Malaysian Anti-Corruption Act 2009, “Accepting gratification as an inducement or reward for
doing or forbearing to do any act in relation to his principal affairs”.

4- 67 -

i. To establish the identity and locate the recipient of money from Western
Union.
ii. To obtain a statement from the witness and obtain confirmation that thewitness had communicated with Kharol Azmi, which was supportedwith evidence such as text messages that showed instructions from
Kharol Azmi to withdraw the money and the details relating to it, as well
as evidence to show the instruction from Kharol Azmi for the witness todeposit the money into Kharol Azmi’s bank account in CIMB, Malaysia.
iii. To assist the ACB to arrange and call several witnesses for taking
statements by ACB officers in MACC, Malaysia for the purpose of trial.
C.

Conviction in Court
Kharol Azmi was charged with one count under section 420 of the Penal Code forcheating by falsely representing himself as a customs prosecuting officer who had the power
to reduce the number of cigarettes that the smuggler would be charged for possession of
unexcisable goods and to hand over the customs investigation papers to the smuggler to dispose,and thereby dishonestly induced the said smuggler, so deceived, to deliver BND 2,000 byWestern Union money transfer to the Malaysian man.
Kharol Azmi pleaded guilty to the charge and a sentence of 18 months’ imprisonment
was imposed by the court. The court did not order Kharol Azmi to return the money since
Kharol Azmi had no means to pay. On 24 August 2013, when the sentencing was read, Kharol
Azmi was serving a 56-month prison sentence for another case for 4 offences under section
420 of the Penal Code, which were all committed in 2010. The 56-month sentence took effectfrom 26 March 2012.
V. CONCLUSION
The bilateral agreement and cooperation between the agencies has strengthened theirrelationship, and it has produced fruitful and productive outcomes. The international
cooperation via the working group not only proved to be successful but beneficial to bothcountries. The success of this case may not have been achieved wholly if not for the cooperationand support contributed through this mutual agreement given by the Malaysian AntiCorruption Commission (MACC), without which the defendant would not have been brought
before the court. Hence the importance of close and resilient relationships, and understandingis imperative in producing such success and prominent results of two-way cooperation infighting and eradicating corruption for both countries.
It is to be noted that international cooperation is very important among agencies in order
to combat corruption, and one of the tools is having bilateral cooperation as shown in the actual
case ACB shared during this seminar. Due to the long-standing relationship between ACB and
MACC, ACB is able to pursue seeking international cooperation through both formal andinformal means. This is made possible through the working group coalition and agreement incarrying out the best interests of both countries. It enables investigation officers involved tocommunicate and correspond with each other by simple phone calls, text messages, e-mail andeventually meeting in person. The flexibility and convenience of such means of working andcontacting, more importantly the assistance and commitment which is a means of international- 68 -

cooperation efforts, has contributed to the success of this case. It is hoped the joint harmony
will be extended further to achieve a greater working inspiration that benefits both countries in
the objective and aim of zero corruption in the region.

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CONTEMPORARY MEASURES FOR EFFECTIVE INTERNATIONAL
COOPERATION
H.E. Mr. Srin Sovann*

I. OVERVIEWA.

Legal Aspects
The Royal Government of Cambodia (RGC) has a strong commitment to combating
corruption. Prioritized policies and programmes on anti-corruption are clearly specified in the
Rectangular Strategy Phase I, Phase II and Phase III1 considering good governance as a core angle,
and anti-corruption is one of the priorities set. The RGC has supported and endeavoured to havethe Anti-Corruption Law adopted along with other relevant laws and regulations for curbing
corruption in Cambodia.
On 17th April 2010, the Anti-Corruption Law (ACL) was promulgated, and the law is basedon the Code of Criminal Procedure 2007 and the Criminal Code 2009. The ACL has the purpose
to promote the effectiveness of all forms of service delivery and to strengthen good governanceand the rule of law as well as to maintain integrity and justice which is fundamental to social
development and poverty reduction. However, fighting against corruption really needs theparticipation and support from all stakeholders both from the private and public sectors as well asinternational cooperation.
To be a truly independent institution, the Anti-Corruption Law was amended andpromulgated on 1st August 2011, allowing the Anti-Corruption Institution (ACI) 2 to have an
independent budget separated from the budget of the Office of Council of Ministers, aiming toensure that the institution can carry out its mandate effectively. It also provides the President of
the National Council Against Corruption (NCAC) the right to structure and nominate officials
from the deputy director of the department down upon the request made by the President of the
ACU.
In 2012, the Public Procurement Law was promulgated, clearly stating some corruption
offences as well as to give absolute competency to the ACU to investigate and file corruption
related cases in court.

Assistant, Anti-Corruption Unit (ACU), Cambodia.
The Rectangular Strategy (RS) is a dynamic document that lays out the political commitment to a socioeconomic
development process in the coming five years (2013-2018). The RS has undergone three changes in the last decade tokeep up with the times.
2
The Anti-Corruption Institution (ACI) was established by the Anti-Corruption Law, which was promulgated on the
17th April 2010.
*1- 70 -

B.

Institutional Framework and Strategy
The Anti-Corruption Institution (ACI) was established by the Anti-Corruption Law, which
was promulgated on the 17th April 2010. 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 fighting corruption, while the AntiCorruption Unit (ACU) plays the role of an implementing body to independently undertake its
duties.
In order to succeed in curbing corruption, the NCAC set out a roadmap for the ACU in
fulfilling its mission to bring more crucial achievements in the five identified areas, namely
education, prevention and obstruction, law enforcement, national and international cooperation,and good governance and internal control.
Based on the strategic plan of the 2nd mandate of the NCAC (2015-2020), the ACU has set
out its action plan to focus on the three intertwined approaches: Education, Prevention and
Obstruction, and Law Enforcement, which have been supported and encouraged by thegovernment with the participation from the concerned authorities at all levels, the private sector,
media, academia and civil society.
II. MEASURES FOR COMBATING CORRUPTION
Combating corruption in Cambodia has been undertaken through education, prevention andlaw enforcement with participation and support from the public and international cooperation.3
Samdech Akka Moha Sena Padei Techo HUN SEN, Prime Minister of the Royal Government of
Cambodia, said that “Combating corruption is to make people not to wish to corrupt, cannot
corrupt and dare not to corrupt”.
A.

Education
The Anti-Corruption Unit (ACU) has spent many of its resources, budget, time and ideas toprovide education and to disseminate the anti-corruption law to civil servants, the private sector,
civil society, as well as the general public across the country in order to raise awareness about thelaw, about what corruption is, and the negative impacts of corruption, aiming to make sure that thewhole society begins to accept the new mind-set and perspective in order that they all will jointly
fight against corruption, which is a common enemy for all of us.
The education and dissemination tasks have been conducted through various means such as
the dissemination of the Anti-Corruption Law directly at the workplace, stipulating the 9th ofDecember as National Anti-Corruption Day, and setting out policies and anti-corruption education
programmes aiming to instil younger generations with the consciousness, clean mind-set, and the
feeling of disgust for corruption, love of justice, integrity, abiding by laws, respecting themselves
and others as they are the bamboo shoots and the future leaders of Cambodia.

3

Anti-corruption law, 17 April 2010, art. 2.

- 71 -

B.

Prevention and Obstruction
Prevention and obstruction refer to the eradication of opportunities and possibilities that leadto corruption. Various regulations and mechanisms have been established to prevent corruption
from being committed.
Prevention and obstruction of corruption have been conducted through many forms such as(i) declaration of assets and liabilities (ii) direct observation at bidding, public procurement, andfee bargaining at ministries and institutions as well as joining in the observation at the recruitment
examination of a new cadre of officials at public institutions and high school national examination(iii) signing Memorandums of Understanding (MOU) on anti-corruption cooperation between the
ACU and private national and international companies as well as compiling and publishing a"Guidebook on Anti-Corruption Program for Business in Cambodia", which is available for theprivate sector to be widely used as a supporting document and guidance and (iv) revising thestandard of public services fees.
The ACU has also focused on the support, promotion for the exchanges of views and ideas
as well as to strengthen career development aiming to work even closer with the private sector
through the joint commitment and agreement under a form of signing Memoranda ofUnderstanding (MOU) on anti-corruption cooperation between the ACU and private national andinternational companies. As a result, so far the ACU has signed 23 MoUs with private national
and international companies. This has been used as an example in an effort to jointly fight against
corruption and encourage the practice of clean business in Cambodia.
In order to maintain the integrity, ethical behaviour and legal compliance of the leaders andofficials of the ACU as a whole, two internal bodies were established: the Disciplinary and Internal
Control Council and the Internal Investigation Body. The Disciplinary and Internal Control
Council is mandated to ensure that each official had strictly complied with discipline, integrity,transparency and having to avoid all forms of conflicts of interest set in the guidelines. In theprocess of the preparation of the internal regulations, disciplinary standards and internal control,
the council has set out principle guidelines on the prevention of conflicts of interest, gift receiving,
hospitality, and dining out with all concerned parties. In addition, the Internal Investigation Body
is directly governed by the president of the ACU, and its duty is to observe and investigate theperformance of officials of the ACU.
C.

Law Enforcement Measures: Powers and Privileges of the Anti-corruption Unit
(ACU)
In the framework of law enforcement, the ACU holds a meeting every morning to study,
analyse, and take action against all complaints filed with the Unit. The complainant is allowed toattend the meeting, and defend their individual complaint. The mechanism has tremendous won
the support from stakeholders, especially the complainant, due to the efficiency and effectivenessof service delivery. Simultaneously, the meeting has been used as a venue and as an opportunity
to train the officials of the ACU, aiming to enhance their skills of complaint analysis, informationcollection and investigation techniques.

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1.

Investigative Power of the Anti-Corruption Unit
The ACU has exclusive power to investigate corruption offences.4 Officials of the AntiCorruption Unit who are accredited as judicial police officials take charge of investigating
corruption offences. If, during the course of a corruption offence investigation, different offences
are found whose facts are related to the offence being investigated by the Anti-Corruption Unit,
officials of the Anti-Corruption Unit may continue the investigation of the offences to the final
stage. The Anti-Corruption Unit cannot investigate offences other than corruption unless the Unit
is ordered by the court to do so.5 In the framework of these investigations, the President of theAnti-Corruption Unit or the officially assigned representative has the duty to lead, coordinate andcontrol the mission of those officials playing the role on behalf of the prosecutor until reaching thepoint of arresting a suspect. After the arrest, the prosecutor exercises his power as stated in the
Code of Criminal Procedure.
At the end of each investigation, the Anti-Corruption Unit shall submit all facts and relevant
documents about the case to the prosecutor for further action in conformity with the provisions of
the Code of Criminal Procedure.
2.

Special Privileges of the Anti-Corruption Unit
The President of the Anti-Corruption Unit can ask the concerned authority to suspend allfunctions of any individual who is substantially proven to be involved in a corruption offence. If
the suspect flees to a foreign country, the President of the Anti-Corruption Unit can ask thecompetent authority to seek extradition in accordance with the provisions in force.
3.

Privileges of the Anti-Corruption Unit Related to Investigation6
If there is a clear hint of a corruption offence, the ACU is empowered to:(i)

Check and put under observation the bank accounts or other accounts which aredescribed to be the same bank accounts.

(ii)

Check and order the provision or copying of authentic documents or individual
documents, or all banking, financial and commercial related documents.

(iii)

Monitor, oversee, eavesdrop, record sound and take photos, and engage inwiretapping.

(iv)

Check documents and documents stored in the electronic system.

(v)

Conduct operations aimed at collecting real evidence.

The above measures will not be considered as violations of professional secrets. Bank
secrecy is not sufficient justification for failing to provide evidence related to corruption offencesin the provisions of the Law on Anti-Corruption.
Anti-Corruption Law, 17 April 2010, art. 22 and Public Procurement Law, 14 January 2012, art. 73.
Anti-Corruption Law, 17 April 2010, art. 22.
6Anti-Corruption Law, 17 April 2010, art. 27.
45- 73 -

4.

Privileges of the Anti-Corruption Unit Related to Freezing an Individual’s Assets
Upon the request by the President of the Anti-Corruption Unit, the Royal Government mayorder the General Prosecutor attached to the Appeals Court or Prosecutor attached to the Municipal
or Provincial Court of First Instance to freeze the assets of individuals who commit corruption
offences. Those above-mentioned assets include the funds received or any form of assets belonging
to the offender.7

5.

Privileges of the Anti-Corruption Unit in Cooperation with Public Authority
The President of the Anti-Corruption Unit may order public authorities, government officials,
citizens who hold public office through election, as well as units concerned in the private sector,
namely financial institutions, to cooperate with officials of the Anti-Corruption Unit in the workof investigation. The President of the Anti-Corruption Unit may also ask the national andinternational institutions to cooperate in forensic examinations linked to the work of investigation.

6.

Protection of the Complainant, Witness and Relevant Persons
Complainants, witnesses and relevant persons who provide information related to corruption
are protected by law and by the Anti-Corruption Unit. The Department of Security is in charge ofproviding all kinds of protection to the above-mentioned persons when necessary and inaccordance with the order made by the management of the ACU. The office of intervention andwitness protection under the Department of Security is in charge of protecting the witnesses,
complainants and any persons providing information related to corruption, and this office cancooperate with the other relevant armed forces if necessary, when carrying out their mission toprotect witnesses and complainants.
D.
1.

Regulation Relating to Forfeiture and Repatriation of Proceeds of Corruption
Forfeiture
When a person is found guilty of corruption, the court will confiscate all his/her corruption
proceeds including property, material, instruments derived from corrupt acts, and the proceeds willbe transformed into state property. If the above seized asset is transferred or changed into a formof property different from the original asset nature, this transformed asset will become the subjectof seizure at the place where it is located. If the corruption proceeds increase in value or result in
more benefits or other advantages, all of these benefits and advantages will be seized as well. If
the corruption proceeds disappear or lose value, the court may order the payment of the value
equivalent to the original cost of those proceeds of corruption.8
2.

Repatriation of the Proceeds of Corruption
If assets and corruption proceeds are found to have been kept in foreign states, the competentauthority of the Kingdom of Cambodia shall take measures to claim those assets and proceeds andrepatriate them to Cambodia through means of international cooperation. The Kingdom of
Cambodia shall cooperate with other countries who request the repatriation of corruption proceedsthat are kept in Cambodia.

78Anti-Corruption Law, 17 April 2010, art. 28.
Anti-Corruption Law, 17 April 2010, art. 48.

- 74 -

III.

INTERNATIONAL COOPERATIONA.

Bilateral and Multilateral Cooperation
Public participation and support and international cooperation are crucial to succeed infighting against corruption. In order to perform its duty, the ACU can cooperate with national,
regional and international organizations in order to combat trans-border corruption offences.9
1.

Multilateral Cooperation
In order to raise up and strengthen the efforts of prevention and obstruction, and investigation,
as well as the facilitation and support of international cooperation, capacity building and Mutual
Legal Assistance (MLA) in prevention and combating corruption, the ACU has been a full memberof institutions or international instruments concerning anti-corruption as follows:(i)

The ADB/OECD Anti-Corruption Initiative on 5 March 2003

(ii)

United Nations Convention Against Transnational Organized Crime (UNTOC) on
12 December 2005

(iii)

International Association of Anti-Corruption Authorities (IAACA) since 2006(iv)

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 Assistance in Criminal Matters on 26 January 2010(vii)

International Anti-Corruption Academy (IACA) on 14 December 2013

In 2014, the ACU also organized two major international conferences in Phnom Penh andSiem Reap in collaboration with the Asian Development Bank, the Organization for Economic
Cooperation and Development (ADB/OECD) and the United Nations Office on Drugs and Crime(UNODC), with the participation of hundreds of experts and practitioners from around the world.
2.

Bilateral Cooperation
The ACU signed Memoranda of Understanding on anti-corruption with the State
Inspectorate and Anti-Corruption Agencies of the Lao People’s Democratic Republic (15November 2013) and the National Anti-Corruption Commission of the Kingdom of Thailand (3September 2014). The MoUs focus on promoting and developing international cooperation in theprevention of and fight against corruption through the efficient and effective sharing and exchange
of information, intelligence, experience, knowledge, and best practices. In addition, the ACU
collaborated with the CPIB, Singapore to organize two important trainings for its officials of the
ACU on the topic of financial investigation and computer forensics.

9

Anti-Corruption Law, 17 April 2010, art. 2 and art. 13.

- 75 -

The ACU also signed a Memorandum of Understanding on the exchange of financial
information with the Cambodian Financial Intelligence Unit (CAFIU) of the National Bank of
Cambodia (26 December 2014).
B.

Mutual Legal Assistance (MLA)
Regarding MLA in the case of corruption offences, the court authority of the Kingdom of
Cambodia may delegate power to the competent court authority of any foreign state and may also
obtain power from a court authority of any foreign state, in order to:















Collect evidence/proof or answer/respond through court means,
Provide information about court documents,
Search, arrest and confiscate,Examine objects and the crime scene,
Provide information and exhibits,
Issue original process-verbal or its authentic copies and dossier, including bankstatements, cash transactions, records of concerned institutions, records of concerned
companies and business activity records, as well as authentic and private documents;
Identify or provide expert witnesses and others, including detainees who agree toassist in the investigation or participate in the legal proceedings;
Identify or seek resources, property, equipment, and materials that derive from theoffence;
Place under temporary hold the products and properties obtained from corruption
offences as well as equipment, materials being used or kept for committing offences;
Enforce orders of confiscation, seizure or repatriation of products, properties,
equipment, material derived from an offence;
Order confiscation of all objects as stated above;
Inform about criminal charges;
Interrogate the accused based on criminal procedure;
Identify witnesses and suspects.10

In addition, reciprocity is also used in practice in MLA proceedings in case of the absenceof international treaties.
Cambodian domestic law does not clearly provide for the transmission of information
relating to criminal matters without prior request. However, the exchange of information isfrequently practiced in relations between the Financial Intelligence Unit and the police and theirforeign counterparts. Mutual Legal Assistance will not be refused solely on the grounds of banksecrecy or on the grounds that the offence is also considered to involve fiscal matters.
In implementing Mutual Legal Assistance, the Cambodian Ministry of Justice has
communicated with five countries so far: Belgium, Peru, France, Germany and Sweden. In practice,if the case is related to corruption, then it is under the competence of the Anti-Corruption Unit
only.
10

Anti-Corruption Law, 17 April 2010, art. 51-53.

- 76 -

Between 2012 and 2014, Cambodia received 42 requests for MLA in criminal matters and
36 requests in civil cases from countries including the US, the UK and EU member states. Between
2012 and 2013, Cambodia sent 27 requests in criminal cases and 34 in civil cases.11
1.

Formal Channels for MLA
The formal procedure and mechanism for MLA is clearly stated in bilateral or multilateraltreaties or agreements as well as Cambodian domestic regulations currently in force. Up to now,
Cambodia is a state party to the ASEAN Mutual Legal Assistance Treaty in Criminal Matters(AMLAT) and South East Asia Parties Against Corruption (SEA-PAC). Furthermore, the Ministryof Justice of Cambodia is currently drafting the Mutual Legal Assistance Law.

Regarding the regulations in place, the procedure of MLA in Cambodia, the written requests
and related documents from foreign states have to be submitted to the Ministry of Foreign Affairs
and International Cooperation (MFA) in Khmer or in English. The Cambodian MFA will forward
the request to the Ministry of Justice (MOJ) playing the role as the central authority. The MOJ
then will send the request and related documents to the Court of Appeal to decide on further action.
This similar legal process would also apply to the case of a request for repatriation of the assets or
the arrest of suspects.
2.

Informal Channels of MLA
Informal procedure of MLA is particularly applied based on SEA-PAC and the MOU
between the ACU and State Inspectorate and Anti-Corruption Authority (SIAA) of Lao PDR (15November 2013) and the MOU between the ACU and the National Anti-Corruption Commission(NACC) of the Kingdom of Thailand (3 September 2014).

In practice, when MLA is needed, the anti-corruption agency of a foreign state can directly
send informal requests to the ACU. Upon receiving the request, the ACU will undertake measures
based on the actual case. Where there is a request for MLA, the ACU provides the following
assistance:Prior to a formal request for MLA, once receiving a request from any party the ACU
assists to provide intelligence in the investigation.
The ACU then helps gather information and puts the suspects under surveillance.
Once the formal request for MLA is made, the ACU will help facilitate the formal
request.

Regarding informal MLA, the ACU collaborated with the Corruption Eradication
Commission of Indonesia (KPK) and the Corrupt Practices Investigation Bureau (CPIB) of
Singapore to exchange information through focal persons nominated by each agency. As a resultof collaboration between the ACU and the KPK, the suspect was arrested and sent back toIndonesia. In addition, the ACU and the CPIB have cooperated for the exchange of informationand support for the court procedure, information gathering and evidence collection, and obtaining
interviews and recorded statements so that the CPIB could use the evidence legally in the court
proceeding.
11

Draft country report on UNCAC review implementation in Cambodia, 2 December 2015, p. 176.

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C.

Extradition
The extradition conditions and procedures are stipulated in the Code of Criminal Procedure
2009 (article 566-595), Law on Anti-Corruption (article 50), extradition treaties with five countries(China, Lao People’s Democratic Republic, Republic of Korea, Thailand and Viet Nam) and theprinciple of reciprocity. At the present time, Cambodia is in the process of negotiating extradition
treaties with Malaysia, Indonesia, France and Russia. In corruption cases, if the suspect flees to aforeign country, the President of the Anti-Corruption Unit may request the competent authority toundertake extradition in accordance with the provisions in force.12

In extradition matters, Cambodia generally requires some conditions such as dual criminality,
a two-year minimum penalty, that the extradition request is not connected with a political offence,etc. The extradition treaties of Cambodia stipulate as mandatory grounds for refusal of extradition
the institution of criminal proceedings against a person sought on account of sex, race, religion,
nationality or political opinion, a political offence, a Cambodian national, etc.13
The extradition procedure is a mixed judicial-executive procedure. A decision on extradition
is made by the Investigation Chamber of the Phnom Penh Court of Appeal.14 If the Investigation
Chamber grants the extradition request, the Minister of Justice shall propose that the Royal
Government issues a sub-decree ordering the extradition of the wanted person.15
Cambodia has handled 12 extradition cases since 2009 involving, inter alia, Russia, Germany
and Israel. None of these requests were related to corruption offences. All extradition requests
were granted except one where the person sought by another country also had Cambodian (dual)
citizenship.16
IV.

UNCAC INPLEMENTATIONA.

UNCAC Review
Within the international framework, the ACU is a state party to the United Nations
Convention Against Corruption (UNCAC), setting the significant international standards on anticorruption work and setting up a mechanism to review the implementation of UNCAC for all stateparties. Under this mechanism, Cambodia having the ACU as the key institution, prepared a selfassessment checklist which is very detailed and comprehensive about the implementation of
UNCAC review in Cambodia, with the participation from all stakeholders including the legislative,
executive and legal and judicial bodies, the private sector, civil society organizations, development
partners and academia. Cambodia shall be reviewed by the UN together with two other state parties(Myanmar and Togo). According to the request of the UNODC, the ACU nominated its
representative to present and share experience in preparing the UNCAC review and selfassessment checklist completion to Myanmar.

Anti-Corruption Law, 17 April 2010, art. 26.2.
Code of Criminal Procedure 10 August 2007, art. 569-577.
14
Code of Criminal Procedure, 10 August 2007, art. 586.
15
Code of Criminal Procedure, 10 August 2007, art. 586-589.
16
Draft country report on UNCAC review implementation in Cambodia, 2 December 2015, p. 153.
12
13

- 78 -

Cambodia also assigned its experts to review the implementation of the Convention of three
countries including Malta (Europe), Palau (Asia) and Saudi Arabia (Middle East).
B.

Drafting of the Witness Protection and Whistle Blower Protection Law
The ACU is drafting the Law on Witness Protection and the Law on Whistle Blower
Protection. It is very important to consult with the existing legal framework, policy, programme,
best practices and technical assistance. In the process of drafting the laws, the ACU has
enthusiastically and openly cooperated with stakeholders including the Office of the HighCommissioner for Human Rights (OHCHR Cambodia), Transparency International Cambodia (TI
Cambodia) and Samrith Law firm from the first stage to gather input.
In addition, the content of the draft laws will cover relocation to a foreign country, which
requires international cooperation for the successful enforcement of the laws. Thus, international
cooperation is very crucial to achieve the draft as well as implement the laws especially forcapacity building and relocation in a foreign country.
V.

CHALLENGES

It has been more than five years since the establishment of the Anti-Corruption Unit. The
ACU has tried its best to implement the Anti-Corruption Law and related regulations in the fightagainst corruption. However, on the way to building its fundamental ground, there are many
challenges, as follows:

Deep expertise in each area is limited while corruption is becoming much more
complicated and sophisticated. So capacity building in the field of legal, forensic,
investigation, etc. is really important in fighting against corruption.
The limitation of technical equipment is a big challenge in evidence collection andinvestigation.
Most defence lawyers do not use their professionalism appropriately in their defence
before the court. Often, they violate the law, abuse the power, divert an issue into
making compensation, and destroy the case files and facts.
There is social support to help facilitate the work of fighting against corruption.
However, there are some other groups who try to take advantage of this, and they
are still reluctant and continue to obstruct the anti-corruption movement by all means.
VI.

CONCLUTION

Although the Anti-Corruption Law provides the Anti-Corruption Unit with the power andprivilege to investigate corruption offences and the independence to execute its duties, there aremany obstacles along the way. Curbing corruption is a very difficult task as people who are
involved in corruption are intelligent, knowledgeable and powerful. Therefore, professional staff
are required to deal with these cases. Expertise in the field of investigation, forensic science, law,accounting, procurement, education, etc. are required for the officials to work in certain posts. It
is also required to formulate a system of integrity that applies to all staff.

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Moreover, in the context of globalization, international cooperation is very crucial and a key
to succeed in curbing corruption, which is complicated, trying to ensure that there is no haven for
corrupt offenders. International cooperation has been used as a means for creating networks forlaw enforcement authorities to work closely, particularly in the field of sharing experiences,knowledge, intelligence information, identifying offenders, MLA, extradition and prosecution.
In this regard, the Anti-Corruption Unit requires adequate resources and budget from thegovernment to implement its five-year Strategic Plan (2015-2020) and five-year Action Plan
(2015-2020) effectively. It also requires the participation of the public, development partners andcivil society. The ACU is still willing to open international cooperation to all stakeholders
regionally and internally.

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THE INDONESIAN PERSPECTIVE ON CONTEMPORARY
MEASURES FOR EFFECTIVE INTERNATIONAL COOPERATION
Ms. Mahayu Dian Suryandari*
Ms. Ipat Fatmawati†

I.

INTRODUCTION

Cooperation among law enforcement officials in handling and settlement of crimes is
extremely essential, particularly for cases which involve foreign jurisdictions. It has been
globally recognized that international cooperation is the tool to address the scourge of crime
as a global problem. 1 However, issues regarding legal traditions that influence lawyers,
including justice sectors and those who are involved in creating national legislation, havebecome challenges to build effective international cooperation among countries.
The Indonesian government has recognized the need of using international cooperationin fighting crime since the 1970s. Treaties on extradition were made by the Indonesian
Government in the era based on the Koninklijk Besluit (Staatsblad 1883 -188) – legislationthat was enacted during the Dutch colonization of Indonesia. Then in 1979, Indonesia issued
its National legislation on Extradition (Law No.1/1979) as the legal framework for requests
and treaties of extradition.
After ratifying UNCAC, which, among others, encourages countries to apply
mechanisms of mutual legal assistance as a formal model of legal cooperation in criminal
matters to obtain overseas evidence, the Indonesian government issued the Law on Mutual
Legal Assistance in Criminal Matters (Law No.1/2006). Both pieces of legislation are now inthe process of being amended to better accommodate the complexity of cooperation between
Indonesia and the relevant foreign jurisdictions.
Apart from Government to Government or formal mechanisms of cooperation,
Indonesian law enforcement has also been employed non-formal or agency to agency
cooperation in handling criminal cases. There have been a number of practices of such nonformal cooperation that have been fruitfully applied, both for general crimes (read: noncorruption crimes) and for corruption offences. However, in any event of legal cooperation incriminal matters, law enforcement must keep in mind that successful prosecution and/or
affected justice order is the main objective. Thus, building a competent analysis andconsideration of both parties’ domestic laws must have become the initial step taken.
Besides describing the measures of formal international cooperation applied inIndonesia, this paper will discuss the legal consideration given by prosecutors as the
Coordinator of Prosecutors at the High Public Prosecution Office of Bali Province, Indonesia.
Prosecutor for the Anti Corruption Task Force of the Attorney General’s Office, Indonesia.
1
Secretary General Kofi Annan, foreword to United Nations Convention against Transnational Organized
Crime and the Protocols Thereto (New York, United Nations, 2004 from the Manual on Mutual Legal
Assistance and Extradition, UNODC, 2012, p. 1)*†- 81 -

‘guardians’ of the nation’s law, which should have built confidence for enforcement agents totake alternative measures of foreign cooperation. Thus, prosecutors’ roles should beprescribed in the earliest process of international cooperation.
II.

NATIONAL MEASURES ON INTERNATIONAL COOPERATION:MECHANISM AND PROCEDURESA.

Law on Extradition
As mentioned above, the first formal mechanism of international cooperation incriminal matters that will be discussed is extradition. Its mechanism and procedures areprovided by the Indonesian Law number 1 year 1979 (Law 1/1979) on Extradition. Article 2of the Law 1/1979 underlines the Indonesian government commitment to process extradition
requests from countries which either have a bilateral extradition treaty with Indonesia (treaty
countries) or from those without a bilateral extradition treaty with Indonesia (non-treaty
countries). Requests from the later country shall be followed up based on a positive bilateralrelationship with reciprocity and the Government’s concern principle. This dualism (offacilitating treaty and non-treaty countries) has encouraged more extradition requests toIndonesia.
Any request of extradition must be submitted in writing directly to the Ministry ofJustice or through diplomatic channels. There are several principles that serve as grounds forrefusal, which shall be pre-examined at the first stage of submission, i.e., political and/or
military crimes of Indonesian nationals, offences that occur in Indonesia’s jurisdiction, theperson sought is needed for Indonesian court, double jeopardy, lapse of time, death sentence,ethnicity, religion, race related offences/allegations, the person sought is subject toIndonesian prosecution for other offences. Requests for extradition shall also be refused if therequested fugitive is to be given up to a third country for crimes committed before therequest.2
As for the dual criminality principle, Indonesia requires that any of the offences belisted on the supplementary sheet of the Law 1/1979 as extraditable offences. The list consistsof 32 offences. Among others, it includes corruption, fraud, burglary, false documents, andembezzlement. These extraditable offences can also be expanded to other offences outside
the list, as long as such offences have been criminalized in Indonesia (Article 4:2). The ‘open
clause’ maintained by this provision has become very positive to catch up with crime
development from time to time. This ‘opportunity’, however, leaves the law enforcement andjustice sectors to scrutinize whether the principles of dual criminality are satisfied.
B.

Law on Mutual Legal Assistance
Secondly, mutual legal assistance in criminal matters (MLA) is the other formal
mechanism of international cooperation provided by the Indonesian Law number 1 year 2006
(Law 1/2006) to enable law enforcement to obtain evidence from the relevant jurisdiction forthe purpose of investigation or prosecution. Assistance such as identifying and locating
persons, taking evidence or statements from persons, effecting service of judicial documents
or court order, or executing searches and seizures of items or assets related to crime are thosethat can be facilitated by the Indonesian government according to the Law 1/2006.

2

Article 4 to Article 17 of the Law No. 1/ 1979 concerning Extradition.

- 82 -

Similar to the commitment shared for extradition, the Indonesian government will not
only facilitate requests from countries with MLA bilateral treaties, but also from countries
without binding treaties with Indonesia. However, an MLA request shall be refused when theassistance requested is related to political or military offences, national/public interest
concern, double jeopardy, non-prosecutable offences, failure to give assurance to prosecute,
as well as failure to assure the return of requested evidence.
III.

NATIONAL MEASURES SUPPORTING UNCAC IMPLEMENTATIONThe Indonesian government ratified the United Nations Convention Against Corruption(UNCAC) on 18 April 2006. It soon entered into force by the stipulation of the Law
No.7/2006 on Ratification of the UNCAC. Accordingly, there are some distinguishedapproaches adopted in line with the Convention, such as joint investigation (Article 49 of theConvention), special investigative techniques (Article 50 of the Convention), and measureson asset recovery (Article 51 of the Convention).
With regard to the spirit of compliance with the Convention, the Indonesian Asset
Recovery Centre (ARC) was initiated in the Indonesian Attorney General’s Office. This
centre aims to work together with law enforcement, as early as the investigation process until
a criminal proceeding is initiated concerning the tracing, securing, forfeiting, maintaining andrecovery of the proceeds of crime. In its operation, the ARC also develops cooperation withinternational networks, such as the Asset Recovery Inter-agency Network Asia Pacific(ARIN-AP), CARIN, and the Stolen Asset Recovery Network (StAR).
IV.

INTERNATIONAL COOPERATION PRACTICES IN CORRUPTION CASES

Corruption is classified as one of the major criminal cases in Indonesia. The corrupt
conduct based on the Indonesian Anti-Corruption law may include fraud, abuse of public
office and/or bribery. 3 Thus, in fighting corruption, the Attorney General’s Office of the
Republic of Indonesia (the AGO) and the Corruption Eradication Commission (KPK), which
both have authority to conduct investigation and prosecution, engage in significant efforts tobattle the crime. Such efforts have included some extraordinary approaches such as
maintaining legal cooperation with the international community.
Based on Law No.16/2004 on the Indonesian Attorney General, the office has its duties
and authorities from conducting pre-investigation and investigation of certain crimes as
governed by law, such as corruption, money laundering (in which corruption is a predicate
crime), or crimes against humanity, prosecution of all crimes, as well as execution to thecourt orders. It also conducts judicial intelligence activities and provides intelligence service
for the state in coordination with the primary intelligence agency—the Indonesian StateIntelligence Agency.

3

Corruption in the Law number 31/1999 as amended by the Law no.20/2001 defines as: “…an act to enrichhimself or another person or a corporation which may cause loss to the state finance or state
economy…”(Article 2), or “…intentionally earning profit for himself or another person or a corporation,
abuses the authority, opportunity, or facilities given to him on account of his post or position which may cause
loss to the state finance or state economy…”(Article 3), also “giving presents or promises to a Government
employee in relation to the power or authority vested in the post or position or by giving gifts or promises
considered as vested in the post or position…”(Article 13).

- 83 -Meanwhile, the Corruption Eradication Commission (KPK) was established toinvestigate and prosecute4 certain types of corruption crime, i.e., those which involve law
enforcement, public officials, and other persons related to crimes of corruption committed bylaw enforcement or public officials; cases of corruption which attract and disturb the public;
and/or cases in which corruption involves a minimum of a Rp.1 billion (approx.
US$ 100,000) state loss.
For the AGO, besides handling its own investigation and prosecution derived from anationwide scope of cases by the Special Task Force of Anti Corruption of the AGO, thisoffice administers 31 provincial-level prosecution offices, 419 district public prosecution
offices and 65 branches of district public prosecution offices all over the Indonesianarchipelago. Data shows that for the past 3 years, the office has been dealing with not lessthan 1,500 investigations and 2,000 prosecutions of corruption cases per-year.
In international fora, the AGO Indonesia has become a member of various types ofprosecutors’ international organizations, such as the International Association of Prosecutors(IAP) and the forum of China-ASEAN Prosecutor Generals. Also, it actively contributes tothe International Association of Anti-Corruption Authorities (IAACA) as an international
forum aiming specifically to share commitments among member states to fight corruption. As
for the prosecutor to prosecutor cooperation framework, the AGO Indonesia has signed
memoranda of understanding in legal cooperation with the Supreme Prosecution Offices or
Departments of Justice of many neighboring countries, such as: the AGC of Malaysia, theAGO of Thailand, the SPP of Korea, the SPP of China, the AGO of the Russian Federation,
the Department of Justice of the United States, as well as the AGO of the Netherlands. But, tosustain the Government commitment in bringing corruption perpetrators to justice,cooperation with foreign jurisdictions, as well as cooperation with all domestic relevant
stakeholders, should always be seen as a way of thinking and working.
In this sense, any tools of cooperation that offer efficiency and effectiveness in terms of
the least time spent and reasonable execution costs would be much preferable. For thatreason, there have been many practices in Indonesia where speed is of the utmost
consideration to decide what mechanism to choose. This has almost always been the case, inparticular with regard to returning criminals from overseas.
A.

International Cooperation in Surrendering Fugitives of Corruption: Extradition
and Non-Extradition Schemes
The only example of surrender by extradition is the Kiky Adrian Ariawan case. He wasa convict of the Indonesia Bank liquidity support (BLBI) case who was found guilty andsentenced by the Central Jakarta Court in absentia in November 2002. He was sought by theAGO Indonesia since 2005. On 28 November 2008, the Indonesian Government made aformal request of extradition to the Australian Government after finding out that the soughtafter person was residing in Perth. After the appeals process exhausted, Kiky Adrian Ariawan
was finally extradited to Indonesia in January 2014.

4

The Law does not allow KPK to recruit an independent prosecutor, and thus Prosecutors who work for KPK
are those that are seconded from the AGO.

- 84 -

On the other hand, there were many instances of alternative exercises in surrendering of
fugitives for corruption cases by the AGO Indonesia, i.e., Sherny Kojongian5, Totok Ary
Prabowo 6 and Samadikun Hartono 7 . The main reason was mostly because of legislative
impediments. In the above examples, the legal issue was that each requested country, i.e., theUnited States, Cambodia and Singapore, are treaty-based countries, 8 which meant it was
impracticable for Indonesia who has no extradition treaty with any of those requested
countries to apply the extradition scheme. Then, based on good relationships andunderstanding between countries involved and excellent national inter-agency cooperation, an
informal mechanism was finally agreed to be executed, of course, because it was legallyadmissible for both parties.
The other exercise of informal channels to achieve the return of suspects of corruption
crime is by using police to police cooperation. Some examples of the said exercise were thearrest of Nazaruddin 9 from Columbia, Nunun Nurbaeti 10 from Thailand, and La Nyalla
Mattalitti11 from Singapore. Diffusion from Interpol was sent for the three suspects. In thesecases, the non-formal mechanism of surrender was immediately taken for each suspect, once
information received by the Indonesian law enforcement authority from each country where
they resided. Again, such an exercise saved time. However, pre-consultation with prosecutors
who were in charge of the cases prior to the execution date, had apparently become asignificant step taken.
B.

International Practices in Obtaining Evidence
In exercising MLA, where overseas evidence is the subject of requests for legal
assistance to carry out either investigation or prosecution of corruption cases, the AGO andKPK have also applied formal and informal mechanisms of obtaining evidence. Last year, theKPK was also moving forward to use the MLA scheme to identify, freeze, seize andconfiscate the proceeds of corruption.
From the practices either in extradition or MLA, we learned that understanding theforeign legal traditions and systems is basic knowledge for the country’s decision makers
before making any requests. Law enforcement must also bear in mind that although theSherny Kojongian is an AGO defendant of corruption at the Indonesia Bank liquidity support (BLBI) case. She
ran away from the court proceeding in 2002. In March 2002, the Central Jakarta Court found her guilty andput her into 20 years of imprisonment with in absentia hearing. The corrupt conduct caused Rp.1.95 trillion(US$190 million). She was deported by the United States’ immigration authority to Indonesia in June 2012.
6
Totok Ary Prabowo is an AGO convict of two corruption cases in public sector: mis-use of local government
budget worth Rp.1,8 billion and fraud in general election worth Rp.2,3 billion. He was sought by the executor
from the AGO since 2010, then was apprehended on 8 December 2015, in Cambodia by luring mechanism.
7
Samadikun Hartono is an AGO convict of corruption at the Indonesia Bank liquidity support (BLBI) caseworth Rp.2.5 trillion (US$ 250 million). He was sentenced by the court of cassation (the Indonesian Supreme
Court) in 2003, but this court verdict was unable to be executed for he ran away. Samadikun Hartono was
finally detained in April 2016 in Shanghai, China, and returned to Indonesia through deportation scheme.
8
Treaty based country means country that can only cooperate with any country which sign affected extradition
treaty with it.
9
Nazaruddin, a KPK suspect of corruption cases for bribery at the Ministry of Youth and Sport, had been sought
since May 2011 and was apprehended in August 2011 in Cartagena, Columbia. He was deported by the
Columbian Police.
10
Nunun Nurbaeti is a KPK suspect of corruption case for fraud/bribery at the election of Deputy of IndonesianCentral Bank, fugitive since February 2011. She was apprehended in December 2011 by KPK using luring
mechanism in Bangkok, Thailand.
11
La Nyala Mattalitti is an AGO suspect of corruption cases who was sought since March 17, 2016 and deported
from Singapore on 31 May 2016.
5- 85 -

requests were sent at the stage of investigation, the ultimate goal of the whole process is toascertain the guilt or innocence of the accused person.
In other transnational crime cases, such as terrorism, people smuggling, or trafficking inpersons, the AGO Indonesia has also applied successful informal cooperation with its
counterparts. For instance, in UMAR PATEK case—one of the major perpetrators of the Bali
Bombing who was prosecuted in 2013, prosecutors of the AGO Indonesia managed toconvince the panel Judges in admitting the voluntary presence of 3 (three) foreign victims
who arrived from Australia and the United States to deliver their testimony before the court.
In the trial proceeding, prosecutors also presented a factual witness from the United States
who testified to his knowledge of the defendant’s involvement in Camp Moro in thePhilippines. Those witnesses appeared before the court without formal MLA requests.
Another example of informal cooperation in obtaining evidence for court proceedings
was conducted at a session of prosecution in a people smuggling case by the AGO. At thattime, in cooperation with the Australian authorities, victims of people smuggling from theAustralian detention centre for illegal migrants on Christmas Island were brought before theIndonesian panel of judges to deliver their testimony against the defendant.
Both cases of terrorism and people smuggling have become models of successful
practices by the AGO Indonesia in maintaining good legal cooperation in criminal matterswith its foreign counterparts. At the same time, such models of cooperation confirm thatprosecutors’ recommendations for cooperation taken at the initial step are worth all theefforts put in by both countries.
V.

CONCLUSION

Finally, in striving for effective legal cooperation in criminal matters, satisfaction of thedomestic legal requirements should be placed as the top priority. An alternative mechanism
could have been anticipated earlier, when we wish to save time, if the government attorneys,i.e., the prosecutors responsible to uphold the domestic law, are involved at the earliest pointin the decision-making process. They should give initial legal input, which at least consists of
the admissibility of evidence in court, on the alternative mechanisms to be taken, theprinciple of dual criminality, as well as other expected legal questions regarding the request.
In the end, flexibility in engaging in foreign cooperation would be the expected solution
to achieve efficient country to country cooperation. But decisions on when or whether toexercise alternative mechanisms must be made on a case-by-case basis, and in light of thefact that such actions might have been ruled as illegal in some jurisdiction and, thus, theyshould be scrutinized with great prudence. For this reason, after maintaining goodcommunication with foreign counterparts to understand their legal traditions, the next
important step in the process is to make a competent decision about the technicalities. Here,legal advice from prosecutors as the Government attorneys must be relied on because of theircompetent skills and experience in court.
REFERENCES:
 The Law Number 1/1979 on Extradition; The Law Number 1/2006 on Mutual Legal Assistance in Criminal Matters;
 UNODC, Manual on Mutual Legal Assistance and Extradition, 2012.

- 86 -

KPK EXPERIENCE:

INTERNATIONAL COOPERATION

Presented by:

Irene Putrie

KPK’s Anti-Corruption Mechanism(Law no 30/2002)

To coordinate
Article 7

To supervise
Article 8

Mandates
Article 6

To pre-investigate,
to investigate,
to prosecute

1. Attorney General
2. Police
3. Supreme Audit
4. FIU
5. others
1. Attorney General
2. Police
3. Supreme Audit
4. All Inspectorate Generals
5. Others
 Agencies which render public
services

Article 11•

All powers granted toother LEA by the Law ofProcedures•

Certain powers which are
not granted to other LEA

To prevent
Article 13

To review systems
Article 14- 87 -Power= Investigation +Prosecution + Prevention+ Supervision +Monitoring

To check government
official’s wealth report

To issue travel ban
Investigator + prosecutor
under one institution
Sting operation
Computer forensics
Intercept andwiretapping
Controlled delivery
Asset confiscation andrepatriation

To request tax information

To check and freeze bankaccount

Physical surveillance &undercover operation
3

Int’l Cooperation Key Areas Law enforcement co-operation
 Joint investigations

 Special investigation techniques
 Special provisions for witnesses

 Anti-money laundering measures
 Mutual Legal Assistance (MLA)
 Extradition

 Training and capacity building- 88 -

Case Study (1):Indonesia and the United States in the
Tarahan Project Investigation
AN EXAMPLE OF SUCCESSFUL INTERNATIONAL
COOPERATIONTHE SCHEME
Tarahan Power Plant Project2004 - 2008

Marubeni Corp

Alstom Inc
Consultation
contract and fee

Company A
Coal Mine BusinessContract

Company B- Bogus Company- Cash deposit to
IEM’s Bank Acc

IEM
Accepted approximately$420,000 USD in bribes- 89 -INDONESIA - JAPANFormal Mechanism
Government to Government Channel (MLA)
Indonesian Embassy

Investigator

4

4Japan’s Central Authority

2

2

Japan’s MOFA

3

2

Japan Embassy

1

4

Indonesia’s MOFA
2

KPK
(Investigator &Prosecutor assisted
by International
Cooperation Unit)

4

1

Indonesia’s Central Authority

2
4
1

Informal communication2

Formal Request

3

Execution

4

Delivery of products

INDONESIA - UNITED STATES of
AMERICA
Informal Mechanism
Agency to Agency Channel
IndonesianEmbassy

US DoJ, Criminal Division
FBI & US Attorney
2

3

4
1

KPK
(Investigator &Attorney assisted
by International
Cooperation Unit)

US Embassy- 90 -

1

Informal communication2

Formal Request

3

Execution

4

Delivery of products

Case Study 1• Multi-jurisdiction cooperation: Indonesia, Japan andUnited States• Cooperation with Japan (MLA Process)Witness Statement, Deposition, Affidavit, Access to Attend

the Witness Interview, Documents, Other Valuable Evidence• Cooperation with US (Reciprocal Assistance) Acces to conduct witness interview
 Written Witness Statement Documents and Other Valuable Evidence

Izedrik Emir Moeis
was sentenced to 3
years’ imprisonment
on 14 April 2014

 4 of Alstom’s Executives Pleaded Guilty in the U.S Marubeni Corp Pleaded Guilty in the U.S
10- 91 -

Case Study 2• Multi-jurisdiction cooperation: Indonesia, United
Kingdom (UK) and Singapore• Scheme:
 UK company (Innospec) suppliers TEL for
Indonesian State Owned Oil Company(Pertamina)
 Soeroso Atmo Martoyo, Director of Refinery
accepted approximately USD190,000 throughInnospec Agent in Indonesia
 SAM prosecuted by KPK Executives of Innospec and Innospec
prosecuted by SFO, UK

Case Study 2• Cooperation with UK (MLA Process)Witness Statement, Deposition, Access to Attend
the Witness Interview,
Documents, Other Valuable Evidence Cooperation with Singapore (MLA

Process)Affidavit,
Documents, Other Valuable Evidence- 92 -

Success to Date SAM was imprisoned for 7 years
 4 former executives of Innospec pleaded

guilty in UK Innospec pleaded guilty in UK

Key Success Factors
International Cooperation is a MUST;
2. Good relationship, Communication,
Trust;
3. Case work meeting with Central
Authority and Competent Authority
Requesting Country;
4. Effective mechanisms for inter-agency
coordination;
5. Adequacy of resources (financial,
infrastructure and human resources);1.

- 93 -

International Cooperation
Indonesia actively participates in fora:
APEC Anti-Corruption Working Group(member)
United Nation Convention on AntiCorruption (member)
G20 Anti-Corruption Working Group(member), andOECD Working Group on Bribery(observer),Benefits
 NETWORKS in combating corruption
 New IDEAS on Corruption Prevention and

Enforcement
 KNOWLEDGE on: Whistle blower protection
 Typology on Mutual Legal Assistance Foreign Bribery
 Recovery of proceeds of crime Ethics and Integrity
 Private-Public Partnership Legal Person Liability- 94 -

Corruption cases handled(as of May 2016)•

112 Members of Parliament•

24 Ministers/Heads of Ministerial Level•

17 Provincial Governors•

50 Mayors and Head of District/Regency•

7 Commissioners of General Election; Judicial; Anti-Monopoly Commissions•

4 Ambassadors (incl. former Chief of National Police) and 4 Counsels General•

1 Governor of Central Bank & 4 Deputy Governors•

14 Judges, 6 Prosecutors and Defense Counsels, incl. KPK’s investigator•

129 High rank Govt. Officias, echelon I & II (Director General, Secretary
General, Deputy, Director, etc)•

116 CEOS of state owned companies and the private sector involved in public
corruption•

14 Money Laundering
17

THANK YOU

- 95 -ANTI-CORRUPTION EFFORTS IN THE LAO PDR:
THE LEGISLATIVE AND PRACTICAL MEASURES FOR
INTERNATIONAL COOPERATION
Souphavong VanThaNouVong*
Vilavong Phomkong†

The Lao government maintains an open policy on international cooperation. Specifically,anti-corruption measures have been embedded in the nation’s governance policies and strategies.
These include practical and legislative measures. The goal is to strengthen mutual cooperation andassistance in this field to the degree that sovereign countries and international organizations canshare relevant information and exchange experience in the most effective manner to limit andprevent corruption in the world.
In 1999, the Lao government saw a huge increase of corruption in society, especially in the
public sector. Hence, an anti-corruption decree was issued. State budgetary auditing and inspection
were expanded, more so in the government employee salary calculation and distribution. In 2001,
the State Inspection and Anti-Corruption Authority was established. The agency answers directly
to the nation’s prime minister.
In 2003, the Lao PDR began to receive support and assistance from the United Nations
Convention against Corruption (UNCAC). Since then, the anti-corruption decree had beendeveloped into a law, which was officially enacted in May of 2005. Currently, the government isvigorously promoting the use of this law’s manual, hoping to create public awareness andunderstanding of the law. The State Inspection and Anti-Corruption Authority, as well as
provincial inspection bodies, is actively and responsibly enforcing the anti-corruption law.
The government emphasizes the importance of public employee interaction on an ethicalbasis. The Decree on Public Employees has been developed into a law with the aim to effectively
govern public employees by law, guiding them to stay honest and transparent. The law prohibits
activities deemed as conflicts of interests and/or abuse of power by some government individuals
for personal gain, or to favour their loved ones. It also contains provisions to safeguard stateadministrative bodies and officials overseeing pubic employee ethical principle enforcement.
The Lao government views corruption as a parasite that continues to bore holes in society,harmfully damaging and delaying our communal development progress, while creating wealth forsome powerful opportunists and their minions. Understanding this situation, the government cameup with measures to limit and prevent corruption in the country. The body directly in charge is the*†State Inspection and Anti-Corruption Authority, Lao PDR.
Prosecutor, Lao PDR.

- 96 -

State Inspection and Anti-Corruption Authority. Despite all the efforts, however, we still lackexperienced human resources, modern technical devices, and budget.
Starting from 2009, the Lao government opened itself to cooperation with countries within
the region and afar. We became a member of SEA-PAC and joined the United Nations Review
Programme. In 2011, the Lao PDR and Montenegro were assigned to conduct a review in the
Republic of Croatia. In 2012, Laos was reviewed by Mongolia and Luxembourg. During thereview process, we emphasized the need for technical assistance.
I would like to take this opportunity to inform you that the Lao PDR signed UNCAC in
October 2003. The Convention entered into force in December 2005. The Lao PDR ratified theConvention in September 2009 following approval by our National Assembly. Since then,concerned government agencies have been performing their duties in the Implementation Review,
namely taking prevention measures, criminalizing offences and enforcing the law, repossessing
criminal properties, and cooperating with international organizations and other nations byexchanging information and sharing experiences.
I would like to present some activities we define as criminal and actions we take to enforce
the law:
1.

Government officials taking bribes;

2.

The act of bribing foreign officials and officials of international organizations;3.

The use of government position and power to intervene in something;

4.

Bribery within the private sector;

5.

The act of laundering money derived from criminal actions;6.

The seizure, retention, and/or confiscation of goods/properties;

7.

Obstruction of justice; and8.

Witness protection.

Anti-corruption is a complicated job. The road to its success is filled with obstacles.
Opportunists, power-abusers as well as business people seeking favouritism all despise anticorruption agencies and officials. They will try every possible way to buy themselves out of trouble.
This resistance poses challenges to concerned officials in their implementation duties. It is criticalthat the inspectors stay true to their professional values. If a crime has been committed, it must be
found; and the criminal(s) must be brought to justice. One more important step – the inspection
process – must be transparent. The public must be informed via media. Only by following thesesteps will anti-corruption officials gain trust, support and cooperation from the public.

- 97 -

Having said that, in the Lao PDR we still lack many components required to succeed in anticorruption efforts. Currently we still need qualified human resources, modern technology andequipment. This is why we work closely with international organizations and countries who havebeen for years garnering experience and knowledge in these matters. We learn not only from thesecountries’ practices, but also from their effective legislative tools.
We recognize that corruption cases are unique, depending on business practices, cultures andenvironments of each country and region. While learning from others’ experiences, we have toadjust the lessons to our own conditions and environments.
Corruption never stands still. Criminals continuously improve and develop their tactics sothey do not get caught. Therefore, we too have to keep improving ourselves, so we can catch themin the act. Corruption must be stopped and prevented!
I note more about the monitoring of administration and the prevention and combating ofcorruption of Laos. General and specific inspection is conducted and monitored by the government
in ways such as routine inspection, inspection order and check request – the request oforganizations and citizens. The government also conducts key monitoring practices of the roles,
rights and responsibilities of organizations, monitors implementation of laws and implementationof the budget, to build oil union infrastructure, management and use of resources such as land,
mining and wood businesses, and surveying mineral resources.
For prevention and anti-corruption, government is one job which shows that we have toimprove legislation on this task in accordance with the actual situation. We have to disseminate
information to employees, government, military, police and other people to allow them tounderstand this legislation broadly. Together we run this property and income levels of workers
can actually find the law and practice in administrative proceedings and to a statement filed to thecourt condemned.
Abuses of power and abuses of position have negative impacts on society. The problem iscaused by a mechanical system, regulating and managing the mechanical system, theadministrative oversight is not strong, functional coordination is also good, lack modern work also
overlaps and discursive quality of some officials is still high. Government the economy social law
is not strict also use and abuse the law, sole inequality occurred delayed. The action role, rights
and responsibilities at the central and local levels are also good, some also use excessive powerand corruption such as building infrastructure, the project used enormous investment, but the law
quality promoting products that the state is less, some also have a project plan the revenue target
mostly still thrives on exploitation of natural resources such as wood, fossil fuels, silver, and gold.
Also, budget regulations are not strict, taxes and other duties are collected incorrectly due toa lack of transparency in the sector. Commercial sales are planned to circumvent the rules. Realestate transactions are also structured to benefit the employees related to people through bribery,stealth custom-taxes, counterfeit standard construction techniques, design, click charges, bidding,
procurement-employment, exploitation, and so on. Thus, inspection by the Lao government has
resulted in a summary report to the government identifying many inconsistencies.

- 98 -

Lessons learned from foreign experience have been very helpful, so the government has sent
officials to attend meetings and seminars on preventing and combating corruption in order to train
staff and learn from invited experts from international organizations like the UNODC to discuss
investigation and take lessons from abroad that are applied in developed nations. In 2020 Laos
plans to develop a stratagem to make the country enhance development with the hope that
corruption will decline and disappear from the country.
I have presented anti-corruption efforts in the Lao PDR to you. Please forgive me, if you
find the presentation not adequately informative. Our country’s experience in this field of work israther green. Our main goal at this meeting is to learn from other’s experience. Thank you forgiving me the opportunity to speak in front of you today.

- 99 -

“Contemporary Measures For Effective
International Cooperation –Malaysia’s Experience”
Kamal Baharin bin Omar
Deputy Director I
Legal and Prosecution Division
Malaysian Anti Corruption Commission
Anda Boleh Lakukan Perubahan,
PERANGI Rasuah

1. Governing Laws
2. Central Authority
3. Types of Request
4. Formal v Informal Request
5. Challenges
6. Best Practices

Anda Boleh Lakukan Perubahan,
PERANGI Rasuah- 100 -Governing Laws
1.
2.
3.

Mutual Assistance in Criminal Matters
Act 2002 [Act 621]
Treaties (bilateral or multilateral)Special Direction of Minister under s.
18 of MACMA

Anda Boleh Lakukan Perubahan,
PERANGI RasuahCentral Authority
 Ss 7 and 19 MACMA – Attorney Generals. 7 – Request to be made by or through Attorney
Generals. 19 – Request to be made to Attorney General

Anda Boleh Lakukan Perubahan,
PERANGI Rasuah- 101 -

Types of Request (s. 3 MACMA)
1.
2.
3.
4.
5.
6.
7.

Providing and obtaining evidence;
Making arrangements for person to give
evidence;
Recovery, forfeiture or confiscation of property;
Search and seizure;
Location and identification of witnesses andsuspects;
Service of process;
Identification or tracing of proceeds of crime orproperty.
Anda Boleh Lakukan Perubahan,
PERANGI Rasuah

Formal v Informal Request
 Formal Request

Request made under s. 7 and 19 of MACMA Informal Request

Request made by virtue of bilateral cooperation
between the investigating agencies
TEST: Are we able to legally obtain the matter forthe particular purpose?
Anda Boleh Lakukan Perubahan,
PERANGI Rasuah- 102 -Example: Making arrangements for person to give
evidence Location and identification of witnesses orsuspects, proceeds of crimes
 Service of process
Summonses and Warrants (Special Provision)
Act
Anda Boleh Lakukan Perubahan,
PERANGI Rasuah

Challenges
 Timing / Urgency

Transmission; process of approval; execution(application to court) Understanding the laws and procedures

Mandatory / discretionary grounds of refusal;
undertaking; languages to be used;
Anda Boleh Lakukan Perubahan,
PERANGI Rasuah- 103 -

 Defective request

Central authority; insufficient / incomplete
information

Anda Boleh Lakukan Perubahan,
PERANGI Rasuah

Solutions Networking – knowing officer in charge of thematter Consultation on laws and procedures, andparticulars of the request

 Alternative (informal request)

Anda Boleh Lakukan Perubahan,
PERANGI Rasuah- 104 -

Best Practices
 Available information on website – reference /guidance
 Contact persons
 Consultation
 Monitoring systems on the progress of therequest Internal networking between central authority
and executing authorities.
Anda Boleh Lakukan Perubahan,
PERANGI Rasuah

THANK YOU

Anda Boleh Lakukan Perubahan,
PERANGI Rasuah- 105 -

‐1‐

CONTEMPORARY MEASURES FOR EFFECTIVE
INTERNATIONAL COOPERATION
Ms. Lwin Lwin Than*
Mr. Win Nyunt†

I. INTRODUCTION
Corruption may be defined as the abuse of public position for personal gain or for the
benefit of an individual or group to whom one owes allegiance. Corruption is a paradigm ofthe destructive side of human nature. Corruption is a form of dishonest or unethical conduct by
a person entrusted with a position of authority, often to acquire personal benefit. Corruption
may include many activities including bribery and embezzlement, though it may also involvepractices that are legal in many countries. Corruption is a two-ways process, involving
members of both the public and private sectors, or a “giver” and a “taker”, who are engaged inillegal, illegitimate and unethical action. Corruption poses a serious problem and affects eachand every one of us. Corruption is no longer a local matter. To prevent, to control and toeradicate corruption is a responsibility of all of us. International cooperation is very important
to combat corruption.
II. SITUATION OF COMBATING CORRUPTION IN MYANMAR
A.

Period of 1948-2010
Since Myanmar had gained independence on 4 January 1948, the Prevention of
Corruption Act was enacted in that year. Since regaining her own sovereignty, Myanmar has
fought against corruption, even before the United Nations Convention Against Corruption
entered into force.
B.

Period of 2010-2016
Myanmar’s political and economic system changed variously from 1948 to 2010.
Throughout this period, the Government governed predominantly under two state constitutions:the 1947 Constitution of the Union of Myanmar and the 1974 Constitution of the Socialist
Republic of Myanmar. In 2008, the new constitution of the Republic of the Union of Myanmar
entered into force based on the will of the people.
The first democratic Government governed from 1 April 2011 to March 2016. That
previous Government (2011-2016) established the Anti-Corruption Action Committee, which
was led by the vice president. They had taken action upon 362 persons, 69 persons weretransferred from their posts, 18 persons were retired under the Section 53 of The Civil Service
Law and one person who breached the Prevention of Corruption Act of 1948 was convicted.
That is, the Anti-Corruption Action Committee took action against 450 persons in total.

*†

Director of Research and Training Department, Union Attorney General’s Office, Myanmar.
Director of Administration Department, Bureau of Special Investigation, Myanmar.

- 106 -

In February 2013, the Committee formed the Assessment Group capacity of people
services. This Group established the Complaint Mechanism to see whether there was a smoothprocess for addressing the people’s concerns. Moreover, it was composed of the Delivery Unit,
which is led by deputy ministers to fulfil the people’s requirements.
Working with the UNDP, the Committee also observed activities of public servants inthe education and health sectors to ensure that they were serving the people and to identify any
abuses of public position for personal gain or for the benefit of any individual or group. Theyobserved the state of governance throughout the whole country. Another function of theCommittee was conducting educational talks among the various ministries from 12 December
2014 to 29 February 2015.
C.

In 2016
On 1 April 2016, the democratically elected government which had been led by President
Mr. Htin Kyaw and Daw Aung San Suu Kyi, the chairperson of the National League for
Democracy Party which won the election by a landslide, brandishing the slogan “Time tochange”, was handed over the duties of governing. The new government is promoting theeradication of corruption in the short term between the civil servants and the people andgovernment by the rule of law. There was an announcement by the President’s Office of a new
directive on the reception of gifts by all government departments as part of the effort toeliminate the practice of corruption and bribery. The Anti-Corruption directive set the limit fora single gift at K 25,000 (about 25US$), with a maximum of K 100,000 (about 100US$) as
yearly gifts from organizations or individuals. That announcement aims to prevent corruption
among government servants.
The government of Myanmar promotes anti-corruption by conducting public awarenessand educational activities. These activities have started recently, and they take priority during
Myanmar’s New Year Festival as well as the water festival usually held in April. New Year’s
gifts are traditionally given in Myanmar. A large media company invited high-ranking cabinet
officials to its Myanmar New Year Thingyan water festival pavilion, adding that a personal
assistant to a very important person was among the dignitaries. A New Year’s gift waspresented to the personal assistant, without the officer knowing it contained K 5 million(US$ 4,237) in cash. No action was taken against the company, even though the value of thegift exceeded the limit. The government considered this to be the first incident of bribery during
the grace period. The government’s best policy to root out corruption and bribery is “not togive” and “not to take” bribes. The K 5 million in cash was handed over to the Ministry ofSocial Welfare, Relief and Resettlement to be used in its effort to build water facilities in waterscarce areas. The President’s Office has called for active public participation in the fight against
corruption and bribery.
III. A MEMBER OF UNCAC
Myanmar signed the United Nations Convention Against Corruption (UNCAC) on 2
December 2005 and ratified it on 20 December 2012. After ratifying UNCAC, Myanmar
respects the rights and duties of the signatories of that Convention. At first, the Union Attorney
General’s Office had responded to the implementation of UNCAC until the Anti-Corruption
Commission was formed.

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IV. PROMULGATION OF THE ANTI-CORRUPTION LAW IN 2013
The democratic Government of Myanmar promulgated the Anti-Corruption Law on
August 2013, repealing the Prevention of Corruption Act of 1948. This law complies with
UNCAC and is appropriate for Myanmar’s political, social and economic situation.
Accordingly, Myanmar can declare that combating corruption is a national responsibility.
The Objectives of the Anti-Corruption Law are as follows:1
1. to carry out the anti-bribery policy as a national responsibility;
2. to benefit from clean government and good governance;
3. to enhance dignity and accountability in public governance;
4. to protect state-owned property, humanity and rights and interests of the citizens
that are harmed by bribery;
5. to take action effectively against persons who commit bribery;
6. to be more transparent in the rule of law and governance sector and to develop the
economy and domestic and foreign investment.
V. FORMATION OF THE ANTI-CORRUPTION COMMISSION, DUTIES AND
POWERS 2
In February 2014, the President of Myanmar appointed the Anti-Corruption Commission,
which is composed of one Chairperson and one Secretary among the fifteen members with theapproval of the Parliament to combat corrupt acts under the said law. The Commission is
responsible to the President of the Union.3
The Commission enquires into bribery and illicit enrichment of suspects and investigatesthem. For enquiry and investigation, the Commission forms the investigation board, which isled by any member of the Commission, by selecting appropriate citizens. The Commission also
forms the Preliminary Scrutiny board by selecting appropriate persons on a case-by-case basis.4
When the commission receives information from the President of the Union and two
Speakers of Parliament and complaints by aggrieved persons, it directs the Investigation Board
to question the suspect about his actions and the illicit enrichment. But at first instance, thesuspect has the right to explain his actions and to contest the allegations. If the suspect can
provide strong evidence on his behalf, he will be excused. In doing so, the practice ofconducting investigations of suspects under the new law is said to be good at protecting humanrights and ensuring the rights of the suspect.
VI. INVESTIGATIONThe Commission may form investigation bodies, which are led by any member of theCommission, by selecting appropriate citizens and may assign their functions and duties. If
necessary, the investigation board has the right of search and seizure of the relevant currency
and property related to the matter of investigation of the relevant banks and financial
The Anti-Corruption Law, section 4.
The Anti-Corruption Law, chapter III.
3
The Anti-Corruption Law, section 7(b).
4The Anti-Corruption Law, section 16(a).
1
2- 108 -

institutions, the right of inspecting and copying relevant financial records, and issuing orders
to the responsible persons from the banks and financial institutions that authorize the searchand seizure.
The Commission may conduct the investigation or order that the investigation be
conducted in respect of the following matters, taking action in accordance with the law:5

assigning the duty to investigate and submit by the President;
Assigning the duty to investigate and submit in respect of submitting the
proposal according to law by the Parliament representatives to take action
against any person who possess a political post under sub-section (b) of section
43 by the relevant parliament Speaker;
To take action against an offender who commits bribery according to law, theaggrieved person;-complaining to the Commission;-complaining to any working committee, working group, Preliminary Scrutiny
Board and Investigation Board formed by this Law;-transferring such complaint to any relevant governmental department or
governmental organization.

The investigation body shall determine a period and inform the accused person to explainor submit evidence relating to the change in carrying out the investigation. The investigation
board shall submit the report of investigated findings to the chairman of the commission after
the investigation.
VII. PROSECUTION
According to the report of investigation or other credible information, the commission
shall instruct the head of the investigation board or the Inspector General to sue any
governmental agency or official who commits bribery. The suit is filed in the High Court of
the Region or the High Court of the State. Any other person except the governmental agency
or official who commits bribery is sued in the relevant court.
VIII. PREVENTION
The Rule of Law is essential and fundamental for the prevention of crimes that consist of
the corruption offences and can produce Good Governance. This can be done with thecooperation of three pillars of justice mainly the Prosecution Body, the Union Attorney
General’s Office and its subordinate offices and the Courts. The Prosecuting Body collects thefacts or investigates the case, the Union Attorney General’s Office prosecutes the case todetermine whether the accused is guilty or not and the court gives a deterrent, effective
judgement.
Our Departmental Head warned against and prohibited all officials from taking any gifts
or demanding any offer of corruption. Our offices declare on notice boards that people can5

The Anti-Corruption Law, section 21.

- 109 -

complain any time to the head of the office. If we receive any complaints, we will form an
inquiry board urgently and take action promptly.
IX. CHALLENGES
The first challenge in investigation is that while some facts are collected by theInvestigation Board, some accused are absconding. It is difficult to file cases in court. Our newlaw complies with UNCAC, and it is good at safeguarding human rights and ensuring the rightsof the suspect. We are considering to address the issue of suspects who abscond by
promulgation of related rules and amendments of the law. The second challenge in prosecution
is the absence or disappearance of important witnesses before the court or fraudulent statements
by witnesses during depositions.
X. INTERNATIONAL COOPERATIONA.

Mutual Legal Assistance in Criminal Matters Law
Myanmar promulgated the Mutual Legal Assistance in Criminal Matters Law in 2004 to
be in line with international standards. This law was drafted with the help of the UNODC and
was approved by the Financial Action Task Force (FATF). FATF comprises 36 member statesand its headquarters is in Paris, France. Myanmar ratified the ASEAN Mutual Legal Assistance
Treaties (AMLAT) in 2004 and also checked whether our law is in conformity with the
AMLAT or not. Every letter of the treaties and the spirit of the treaties are in conformity withthe law.
B.

Participating in International Conferences
The Myanmar delegation of the Anti-Corruption Commission attended the 8th AsiaPacific Anti-Corruption Conference in Cambodia from 2-3 September 2014 and the Regional
Seminar on Reduction of External Corruption in the ASEAN Social Community in Cambodia
from 2-3 October 2014. The chairperson of the Commission attended the 10th SEA-PAC
meeting in Malaysia from 1-3 December 2014.
C.

Holding Regional Meetings as the Host Country
Myanmar held the ASEAN Integrity Community-The Regional Meeting on an ASEAN
Framework for Collaboration on Accountable Governance and Anti-Corruption in Myanmarfrom 16-17 December 2014. It was sponsored by Transparency International (TI) and 53
participants from among international and internal departmental officials and non-governmentorganizations attended. The regional Seminar’s objectives were to lay down the framework forcollaboration on accountable governance and anti-corruption within the ASEAN Integrity
Community.
Myanmar also became a member of SEA-PAC in December and a member of theASEAN Integrity Community-AIC. Previously, Myanmar’s corruption status was 172 on the
global CPI index of Transparency International (TI). Myanmar suffered the most corruption
among all nations. At the beginning of 2014, Myanmar was one of the 45 members of theExtractive Industries Transparency Initiative-EITI as well as the 3rd member of ASEAN.
Nowadays Myanmar’s corruption status ranks 156th.

- 110 -

D.

Review Mechanism of UNCAC
As a member of UNCAC, Myanmar has the obligation to comply with UNCAC. We haveto implement the review mechanism based on the resolution of (3/1) in 2009. There are tworeview cycles: the first cycle is from 2010 to 2015, and the second cycle is from 2016 to 2020.
The first cycle, Criminalization & Law Enforcement, was completed. Now International
Cooperation is also being implemented.
The second cycle, Preventive Measures and Asset Recovery, is an ongoing process. We
are cooperating with the UNODC as a part of the Review Mechanism. Myanmar will be underreview by Thailand and Burundi, and Myanmar is reviewing the state of Cambodia with Togo.
E.

Taking Action upon Receiving Complaints
The Commission’s work started on 10 March 2014 and received 2,108 complaints till 31
May 2016. We took action upon eight complaints under the Anti-Corruption Law, section
56/57. The accused, who were not government officials but possessed political posts,
committed bribery. The eight complaints were taken action upon under the Civil Servants
Regulations by the Anti-Corruption Law section 30(b). In these cases, the Heads of the Service
Personnel were informed to take action against the accused only under The Civil Services
Regulations according to the investigation. The remaining 482 complaints were transferred toconcerned ministries, and they replied on how to take action. 1,680 complaints were recorded,
but they do not concern the Commission.
F.

A Sample Case in Myanmar
A Township Judge who was involved in a criminal corruption case was sentenced by theHigh Court of Region with imprisonment for a term of 10 years with labour. The case arose
due to information from the representative of the Homalin constituency. When the AntiCorruption Commission receives a complaint, it forms an investigation board including one
member of the Commission to investigate the offence. During investigation and prosecution,
the prosecuting body and the Union Attorney General’s Office need to cooperate. It is a bestpractice that the prosecuting body and the UAGO work cooperatively, and then the commission
requests the UAGO to give legal advice to obtain a binding judgement against the accused.
XI. CONCLUSION
This paper has presented best practices for suppression of corruption and contemporary
measures for effective international cooperation. The government alone cannot apply bestpractices without the active participation of the public as well as international cooperation.
When the rule of law is in place, we have “Good Governance and Clean Government”. It needs
Public Private Partnership. To achieve this, the public must be “Good People, Clean People”.
Myanmar has come a long way in its legal system since belonging to the English common law
family. The judge is responsible for the judiciary, the law officer for tendering legal advice andprosecuting the case before the court and the prosecuting body such as the Myanmar Police
Force and the Bureau of Special Investigation for efficient evidence collection andinvestigation. Cooperation among these three institutions is necessary as a step in both law andpractice in enhancing the fight against corruption. Although Myanmar faces many challenges,
Myanmar is trying its best to overcome any challenges with the rule of law.

- 111 -SCHEME BEYOND BORDERS: PHILIPPINES’ FIGHT AGAINSTMONEY LAUNDERING
Dennis L. Garcia*

I.

INTRODUCTION

Money laundering is a massive and evolving challenge around the world, and theincreasing sophistication of technology only worsens detection and deterrence of the crime.
In place of guns and masks, the crime may now be committed by computer experts
operating in the shadowy world of hacking and manipulating information; and may be carriedout with just a few keystrokes.
Millions of funds may now be transferred from a particular system to a far-flungnetwork, moving swiftly as data over the Internet. This is exactly how the most brazen bankheist in the 21st century was realized—with the Philippines serving as cashing crew for highprofile anonymous thieves.
The International Monetary Fund states that “money laundering refers to activities
intended to disguise the origins of the proceeds of the crime through processes that transform
illegal inputs into apparently legitimate sources.”1
In the Philippines, money laundering was criminalized by Section 4 of Republic Act
9160, or the Anti-Money Laundering Act (AMLA) of 2001. It is committed by any person who,
knowing that any monetary instrument or property relates to the proceeds of an unlawful
activity, does the following:
i.
ii.
iii.
iv.
v.
vi.

transacts said monetary instrument or property;
converts, transfers, disposes of, moves, acquires, possesses, or uses saidmonetary instruments or property;
conceals or disguises the true nature, source, location, disposition, movement,
ownership of rights with respect to said monetary instrument or property;
attempts or conspires to commit money laundering offences;aids, abets, assists in or counsels the commission of money laundering offences;andperforms or fails to perform any act as a result of which he facilitates theoffence.2

But while the law is already in place, and amendments to it are being constantly updated,
there are still some loopholes which clever criminals use to their advantage.

Director, Office of the Ombudsman, Republic of the Philippines.
SOCTA Philippines. (2013). Serious and Organize Crime Threat Assessment: Money Laundering, p. 168.
2
Ibid.
*
1

- 112 -

This paper seeks to present the vulnerabilities of current financial regulations in thePhilippines, particularly the AMLA, amidst the complexities of cyberspace and the online
remittance system worldwide. It postulates the need for further amendment of the AMLA to
include casinos and other related transactions within the coverage of the law.
II. EVOLUTION OF THE ANTI-MONEY LAUNDERING ACT IN THE
PHILIPPINES
Money laundering, simply put, is literally sanitizing the money trail to legitimize
criminally acquired assets or cash—thus, the term “laundering.”
As such, proceeds of the crime appear in public like legitimate income; and withoutmeans to actually check the origin of the funds, criminals are given incentives to continue theirillegal activities. In the long run, money laundering has the effect of destabilizing thegovernment and weakening the state’s financial system—making it altogether a threat tonational security.3
It is for this reason that the Philippines, on 18 September 2001, enacted RA 9160, whichputs into effect the policy of the State “to protect and preserve the integrity and confidentialityof bank accounts and to ensure that the Philippines shall not be used as a money launderingsite for the proceeds of any unlawful activity.”4The law created the Anti-Money Laundering Council (AMLC)—the government agency
primarily tasked with implementing the AMLA. Among the functions of the AMLC are as
follows:
i.
ii.
iii.
iv.
v.
vi.

Implementation of necessary measures to counteract money laundering;
Investigation of suspicious transactions and covered transactions deemedsuspicious;
Filing of complaints with the Department of Justice or Office of the
Ombudsman for prosecution;
Institution of civil forfeiture and all other remedial proceedings through the
Office of the Solicitor General;
To receive and take action in respect of any request from foreign states forassistance in their own anti-money laundering operations; andInvestigation of financing terrorism and any property or funds relating to theoffence.5

Under the law, transactions in cash or other equivalent monetary instruments involving
a total amount of P500,000 and above within one business day must be reported to the AMLC.
These are referred to as “Covered Transactions.”“Suspicious transactions,” which are also required under the law to be under thecognizance of the AMLC, are those transactions, regardless of the amount involved, that havethe following circumstances:
Bangko Sentral ng Pilipinas. (2012, February 21). BSP briefer on the Anti-Money Laundering Act of 2001.
Retrieved <http://www.gov.ph/2012/02/21/bsp-briefer-on-anti-money-laundering-act-of-2001/>.
4
Republic Act 9160
5
Bautista, C.C.P. (2014). Getting the Deal Through – Anti-Money Laundering. pp. 116-117.
3- 113 -

i.
ii.
iii.
iv.
v.
vi.

There is no underlying legal or trade obligation, purpose, or economic justification;
Client is not properly identified;Amount involved is not commensurate with the financial capacity of the client;Transaction is structured in order to avoid being subject to reporting requirements;
Any circumstance which deviates from the profile of the client or his pasttransactions;
The transaction is in any way related to unlawful activity that is about to be, is being,or has been committed.

Reports to the AMLC of such transactions shall be made within 5 working days from theoccurrence thereof, unless the Bangko Sentral ng Pilipinas, Securities and Exchange
Commission, or the Insurance Commission prescribes a longer period not exceeding 10
working days.
Failure to report such covered and/or suspicious transactions will be subject to a penalty
of 6 months’ to 4 years’ imprisonment or a fine of not less than P100,000 but not more thanP500,000.
The reportorial requirement of such covered and/or suspicious transactions under the
AMLA provides for confidentiality restrictions. Officers and employees of the AMLC areprohibited in any manner from communicating to any person about the fact that a report was
made. Contents thereof shall remain confidential, and must not be published or aired in any
manner. For this offence, the penalty is 3 to 8 years’ imprisonment and a fine of not less thanP500,000.00 but not more than P1 million.6
A.

First Amendment: Republic Act No. 9194
Before the enactment of the AMLA, the Philippines lacked a basic set of anti-money
laundering regulations, and system of reporting suspicious transactions. The country was also
listed as among the Non-Cooperative Countries and Territories (NCCT) in the Paris-based
Financial Action Task Force (FATF)—an organization which sets the international standards
for combating money laundering and terrorist financing.
But even with the enactment of RA 9160, the Philippines remained on the NCCT list
based on the FATF’s findings that additional countermeasures must be taken to address theidentified deficiencies in its anti-money laundering legislation. 7 Thus, on 5 March 2003,
President Gloria Macapagal-Arroyo signed into law RA 9194, amending RA 9160.
On 11 February 2005, the Philippines was taken off the NCCT list after the FATF’s AsiaPacific Group’s (APG) review confirmed that the country was effectively implementing antimoney laundering measures.
From 22 September to 6 October 2008, the Philippines underwent an evaluation
conducted jointly by the World Bank and the APG on Money Laundering. By February 2010,
the Philippines was placed on the “grey list,” which signifies that it was “making sufficient

Bangko Sentral ng Pilipinas. (2012, February 21). BSP briefer on the Anti-Money Laundering Act of 2001.
Retrieved <http://www.gov.ph/2012/02/21/bsp-briefer-on-anti-money-laundering-act-of-2001/>.
7
Bacay-Abad, J.C. The Anti-Money Laundering Act of 2001, as amended.
6- 114 -

progress in the global campaign against money launderers and terrorists.”8 The evaluators,
though, had set December 2011 as the deadline for the Philippines to address the identified
deficiencies in RA 9194.
However, in February 2012, the country was downgraded from the “grey list” to the “darkgrey list” for its failure to meet the deadline previously set by the APG. While the Philippines
persisted in battling for reforms to its anti-money laundering regulations, the government
continued to circle around the FATF’s “black list” area.
A black-listed nation is subjected to restrictions, more stringent inspections, andadditional reporting requirements by the FATF. In the long run, it could cause inconvenience
to remittances, which is something the Philippines could not afford, considering the thousandsof Overseas Filipino Workers detailed across the globe.
B.

Second Amendment: Republic Act No. 10167
Signed on 18 June 2012, RA 10167 was signed into law by President Benigno S. Aquino
III. This further amended RA 9194 and placed the Philippines back on the “grey list”. The
FATF thus recognized the significant steps the government has taken in its anti-money
laundering system; but it also noted in its statement made in Rome in June 2012 that “certain
deficiencies remain; and that the FATF encourages the Philippines to address its remaining
deficiencies and continue the process of implementing its action plan.”9C.

Third Amendment: Republic Act No. 10365
Based on the FATF’s assessment, the government once again amended the law andenacted RA 10365 on 15 February 2013. A week later, or on 22 February 2013, the FATF
noted the significant progress made, and decided to conduct an on-site visit to the Philippines.
However, the FATF still raised concerns on the non-inclusion of the casino sector in its existinganti-money laundering regulations.
On 17-21 June 2013, a plenary meeting was conducted in Oslo, Norway, wherein thePhilippines was officially removed from the FATF list of monitored jurisdictions. The
pronouncement reads:“The FATF welcomes the Philippines’ significant progress in
improving its AML/CFT regime and notes that the Philippines has
established the legal and regulatory framework to meet its
commitments in its Action Plan regarding the strategic deficiencies
that the FATF identified in October 2010. The Philippines istherefore no longer subject to FATF’s monitoring process under its
on-going global AML/CFT compliance process.”10D.

Significant Amendments
The subsequent amendments to the Anti-Money Laundering Act reaped the followingchanges:11

Chipongian, L.C. (2016, March 20). What is money Laundering. Manila Bulletin. Retrieved
http://www.mb.com.ph/what-is-money-laundering/
9
Bacay-Abad, J.C. The Anti-Money Laundering Act of 2001, As Amended.
10
Bacay-Abad, J.C. The Anti-Money Laundering Act of 2001, As Amended.
11
Ibid.
8

- 115 -

R.A. No. 9160 (2001)
R.A. No. 10167 (2012)
On Petition for Freeze OrderNo specific period within which the Court Amended Sec. 10, reads as follows:
should act on the ex parte petition“…In any case, the court
should act on the petition to freeze
within twenty-four (24) hours fromfiling of the petition…” –Sec. 1., par.
1.
No provision on the remedy available to a Amended Sec. 10, reads as follows:
person whose property has been frozen“…A person whose accounthas been frozen may file a motion tolift the freeze order and the court
must resolve this motion before theexpiration of the twenty (20)-dayoriginal freeze order...” –Sec. 1, par.
2
No provision against Temporary Restraining Amended Sec. 10, reads as follows:
Order, or Writ of Injunction"No court shall issue a
temporary restraining order or a writof injunction against any freeze
order, except the Supreme Court."—Sec. 1., par. 3
On Application for Bank Inquiry
No express provision on which Court has Amended Sec. 11, reads as follows:
jurisdiction; filed with the Regional Trial
Court"The Court of Appeals shall act
on the application to inquire into or
examine any deposit or investment
with any banking institution or nonbank financial institution withintwenty-four (24) hours from filing of
the application." – Sec. 2, par. 2
No express provision on procedure; but Amended Sec. 11, reads as follows:
notice and hearing required (pursuant to
Republic vs. Eugenio, G.R. No. 174629,“…the AMLC may inquire
February 14, 2008)
into or examine any particular deposit
or investment, including related“The necessary implication of
accounts, with any banking institution
the [the] finding that Section 11 ofor non-bank financial institution upon
the AMLA does not generallyorder of any competent court based on
authorize the issuance ex parte of thean ex parte application in cases ofbank inquiry order would be that
violations of this Act…” –Sec. 2, par.
such orders cannot be issued unless1
notice is given to the owners of theaccount, allowing them theopportunity to contest the issuanceof the order…”- 116 -Meanwhile, the following provisions were added to R.A. 10365:12
R.A. 9160 (2001)
R.A. No. 10365 (2013)
As to covered institutions/persons“Covered institutions” –Sec. 3 (a)“Covered persons, natural or juridical,…” –Sec. 1 (a)Refers only to:
Added new covered persons, to wit:a. Banks, non-banks, quasi-banks,
a. Jewelry dealers in precious metals,
trust entities, and all otherwho, as a business trade in precious
institutions, regulated by themetals in transactions in excess of P1
Bangko Sentral ng Pilipinas —million. – Sec. 1 (a), par. 4
Sec. 3(a), par. 1;
b. Jewelry dealers in precious stones,b. Insurance companies and allwho, as a business trade in precious
other institutions supervised orstones for transactions in excess ofregulated by the Insurance
P1 million. – Sec. 1 (a), par. 5
Commission -- Sec. 3(a), par. 2;
c. Company service providers. – Sec. 1
and(a), par. 6
c. Securities dealers, mutual funds
d. Persons who manage clients’ moneycompanies, foreign exchangeor bank accounts, organize
corporations, and other entities
contributions for operation of a
dealing with currency orcompany; and/or create, operate or
financial derivatives – Sec. 3(a),manage juridical persons orpar. 3.
arrangements. – Sec. 1 (a), par. 7
Definition of Money Laundering“SEC. 4. Money Laundering"SEC. 4. Money Laundering
Offence. – Money laundering is a
Offence. – Money laundering iscrime whereby the proceeds of ancommitted by any person who,
unlawful activity are transacted,
knowing that any monetary
thereby making them appear to
instrument or property represents,
have originated from legitimate
involves, or relates to the proceeds
sources. It is committed by theof any unlawful activity:
following:"(a) transacts said monetary(a) Any person knowing that
instrument or property;
any monetary instrument orproperty represents, involves,"(b) converts, transfers,
or relates to, the proceeds ofdisposes of, moves, acquires,
any unlawful activity,
possesses or uses said monetarytransacts or attempts toinstrument or property;
transact said monetary
instrument or property.
"(c) conceals or disguises thetrue nature, source, location,(b) Any person knowing that
disposition, movement or
any monetary instrument orownership of or rights withproperty involves therespect to said monetaryproceeds of any unlawful
instrument or property;
12

Bacay-Abad, J.C. The Anti-Money Laundering Act of 2001, as amended.

- 117 -

activity, performs or fails toperform any act as a result of
which he facilitates theoffence of money launderingreferred to in paragraph (a)above.

"(d) attempts or conspires tocommit money laundering
offences referred to inparagraphs (a), (b) or (c);"(e) aids, abets, assists in orcounsels the commission of themoney laundering offencesreferred to in paragraphs (a), (b)or (c) above; and(c) Any person knowing thatany monetary instrument orproperty is required under thisAct to be disclosed and filedwith the Anti-Money
Laundering Council (AMLC),
fails to do so.”"(f) performs or fails to perform
any act as a result of which hefacilitates the offence of money
laundering referred to inparagraphs (a), (b) or (c) above.

"Money laundering is also
committed by any covered person
who, knowing that a covered or
suspicious transaction is required
under this Act to be reported to theAnti-Money Laundering Council(AMLC), fails to do so."Unlawful Activities
Unlawful Activity refers to any act orSec. 2 of the amended law added theomission or series or combination
following unlawful activities:
thereof involving or having relation to
1. Financing of Terrorism;
the following:
2. Bribery;
1. Kidnapping for ransom;
3. Frauds and Illegal Exactions and
2. Violation of Dangerous Drugs
Transactions;
Act of 1972;
4. Malversation of Public Funds;
3. Violation of Anti-Graft and5. Forgeries and Counterfeiting;Corrupt Practices Act;
6. Violations of Anti-Trafficking in
4. Plunder;
Persons Act of 20013;
5. Robbery and Extortion;
7. Violations of Revised Forestry
6. Jueteng and Masiao punished as
Code;Illegal Gambling;
8. Violations of Philippine
7. Piracy on high seas;
Fisheries Code of 1998;
8. Qualified theft;
9. Violations of Philippine Mining
9. Swindling;
Act of 1995;
10. Smuggling;
10. Violations of Wildlife Resources
11. Violations of Electronic
Conservation and Protection Act;
Commerce Act;
11. Violations of National Caves and12. Hijacking, destructive arson,
Cave Resources Management
and murder, including thoseProtection Act;
perpetrated by terrorists against
12. Violations of Anti-Carnapping
non-combatant persons andAct of 2002;
similar targets;- 118 -

13. Fraudulent practices under the
Securities Regulation Code of
2000; and14. Felonies punishable under penal
laws of other countries. –Sec. 3(i)

13. Illegal/Unlawful Possession,
Manufacture, Dealing In,
Acquisition or Disposition ofFirearms, Ammunition or
Explosives;
14. Violation of the Anti-Fencing
Law;
15. Violation the Migrant Workers
and Overseas Filipinos Act of1995;
16. Violation of the Intellectual
Property Code of the Philippines;
17. Violation of the Anti-Photo andVideo Voyeurism Act of 2009;18. Violation of the Anti-Child
Pornography Act of 2009; and19. Violations of the Special
Protection of Children Against
Abuse, Exploitation andDiscrimination.
Powers of the AMLC
“Sec. 7. Creation of Anti-Money
Amended, as follows:
Laundering Council (AMLC)…
"(6) to apply before the Court of(6) to freeze any monetary
Appeals, ex parte, for the freezing of any
instrument or property alleged to bemonetary instrument or property alleged
proceeds of any unlawful activity;”
to be laundered, proceeds from, or
instrumentalities used in or intended foruse in any unlawful activity as definedin Section 3(i) hereof;” – Sec. 6, par. 2
No express provision on reporting real
Requires the Land Registration
estate transactions
Authority and all its Registries of Deeds
to submit to the AMLC, reports on all
real estate transactions involving anamount in excess of P500,000 within 15
days from the date of registration of thetransaction, in a form to be prescribed by
the AMLC. The AMLC may also
require the Land Registration Authority
and all its Registries of Deeds to submit
copies of relevant documents of all realestate transactions. – Sec. 6, par. 3.
III.

MONEY LAUNDERING TYPOLOGIES

Money laundering is deeply entrenched in terrorist financing and crime groups, and thethreats posed by it to the government and its people should not be discounted.

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According to FATF’s statistical data, there were about 288 money laundering and relatedcases filed in the Philippines from 2008 to 2013. Of the said number, 62 civil forfeiture cases
were filed before the Regional Trial Courts, and at least 73 applications for freeze orders werefiled before the Court of Appeals.
The following amounts were involved in numerous applications for freeze orders: 1.88billion PHP; 4.5-million USD, 7-thousand EURO, and 6.66-thousand GBP. Meanwhile, thefollowing were the amounts subject of petitions for civil forfeiture filed: 4.72-billion PHP; 6million USD; 7.29-thousand EURO; 3-thousand CNY; 6.65-thousand GBP; and 561-thousand
HKD.13
With the recent passage of RA 10365, the Philippines sees a strengthened mechanism tocombat money laundering. The law now gives the AMLC a broadened power to investigate
and prosecute more money laundering cases covering a wider range of unlawful activities.
However, money launderers are said to be always a step ahead of the financial investigators
tasked to stop them. It is thus imperative to get a grasp of the recent typologies used by money
launderers in cases investigated by the AMLC.
“Typologies” refer to the various techniques used to launder money or financeterrorism.14 The Mutual Evaluation Report of the FATF for 2009 notes that money launderingin the Philippines is usually perpetrated through crimes committed within the Philippines. The
same report, however, likewise underscores the fact that some foreign nationals launder into
the Philippines the proceeds of their criminal enterprise.
According to FATF, money laundering is conducted as follows:15
a. Collection, where money is gathered from unlawful activities;
b. Placement, where dirty money is integrated into the financial system as clean
money;c. Layering, where funds are transferred between various offshore/onshore banks orfinancial institution; andd. Integration, where such funds are being used to purchase assets, financial
investments, and other commercial/industrial enterprise.

SOCTA Philippines. (2013). Serious and Organize Crime Threat Assessment: Money Laundering, p. 173.
SOCTA Philippines. (2014). Serious and Organize Crime Threat Assessment: Money Laundering, p. 124.
15
Financial Action Task Force. (2009). Money Laundering and Terrorist Financing Typologies.
13
14- 120 -

A TYPICAL MONEY LAUNDERING SCHEME16

The FATF also identified in the same report17 other strategies which money launderers
exploit to complete the crime, to wit:a. Money launderers make use of the various services being offered by mainstream
retail banking with the aid of forged identities;b. The securities and insurance sectors are also exploited using fake identities;
c. Domestic and international fund transfers likewise facilitate money laundering;d. In a smaller scale, money changers and foreign currency dealers have also beenused to launder money from criminal enterprise; ande. Cash smuggling into and outside of the country is another usual practice of money
launderers.
IV. THE $81-M BANGLADESH CYBERHEIST“This money laundering controversy had put the Philippines in anegative light globally and heightened calls to repeal the banksecrecy law and give more teeth to the AMLC to directly freeze andinvestigate suspicious accounts as well as to include casinos
among entities covered by reporting obligations under the AMLA.”–Philippine Daily Inquirer, 29 March 2016
Dubbed as the biggest money laundering scandal to hit the Philippines, the recent issueof the $81-million Bangladesh cyberheist has placed the country’s financial industry the
spotlight—drawing attention to the urgency of putting more teeth into the Anti-Money
Laundering Act.
Renner. P. (2012) Retrieved <http://kycmap.com/wordpress/wp-content/uploads/2012/12/Paul-Renner-C6KYC-money-laundering-example.jpg>.
17
Ibid.
16

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The money, coming from the US Federal Reserve of New York account of the
Bangladesh Central Bank, is said to have reached the Philippine banking system sometime
between 4-5 February 2016.
As culled from the Philippine Senate Blue Ribbon Committee probe, the money was
initially wired into four Rizal Commercial Banking Corporation (RCBC) foreign currency
accounts in its Jupiter, Makati branch.
The accounts, which were later on found out to be under fictitious identities, had thefollowing account names and deposits each covering a divided share of the loot: (a) Jessie
Christopher Magno Lagrosas, $30-million; (b) Michael Francisco Cruz, $6-million; (c) Alfred
Santos Vergara, $20-million; and (d) Enrico Teodoro Vasquez, $25-million.18
According to RCBC officials, said accounts were opened as early as 15 May 2015, withinitial deposits of $500 each. These accounts remained untouched until 4 February 2016—thedate when the transfer from the US Federal Reserve Bank of New York was made.19
The funds were then transferred to a foreign exchange broker, Philrem Service
Corporation (Philrem), which converted part of the loot into Philippine pesos; then it was
returned to RCBC and consolidated in the account of a Chinese-Filipino businessman named
William Go.
Soon after, the money was sent to two big-time casino junket operators, namely, Weikang
Xu and Kim Wong, who then moved the proceeds to different casino high-rollers throughMidas Hotel and Casino, and Solaire Resort and Casino.
Maia Santos-Deguito, Manager of RCBC Jupiter, Makati Branch, allegedly processed
and facilitated the movement of said funds and is said to have worked in collusion with themastermind of the entire money-laundering operations.
A.

The Loot Onset“It is the digital version of the heist depicted in the movie “Ocean’s
Eleven.” The trend is moving from opportunistic crime to
Hollywood-scale attacks.” –Adrian Nish, Cyberthreat Intelligence
Team Head, BAE Systems

Hackers have successfully carried out the most brazen digital bank heist in the history ofcybercrime after siphoning millions of dollars by breaching the highly trusted internationalbank messaging system called SWIFT, or the Society for Worldwide Interbank Financial
Telecommunication.
SWIFT is billed as a secure system that banks use to authorize payments from one
account to another. What began in 1973 as a relatively small network of 240 banks has

Dumlao-Abadilla, D. (2016, March 29). Faces behind fictitious accounts known. Philippine Daily Inquirer,
pp. A1, A16
19
Ibid.
18

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expanded to 11,000 users around the world, which reflects an increasingly global andinterconnected financial system.20
Under the SWIFT system, each bank is identified by a set of codes; and it was the set ofcodes assigned to Bangladesh Central Bank that was recognized and authenticated on 4
February 2016, when it transferred a whopping amount of $81-million to the Philippines.21
According to FireEye’s Mandiant forensics, Bangladesh investigators of the cyberheist,
the hackers are believed to have installed some type of malware into the Central Bank’s
computer system, and observed how transfers are done. The malware is classified as a Remote
Access Trojan (RAT), a form of spyware that allowed hackers to gain access to the bank’s
credentials.22
The hackers’ timing was perfect. When officials from the US Federal Bank tried to reachBangladesh as regards the receipt of instruction to move funds, it was a weekend there and noone was working. By the time central bankers in Bangladesh discovered the fraud, it was also
a weekend in New York and the Federal offices were closed.23
On 5 February 2016, the RCBC Jupiter, Makati Branch saw the $81-million inward
remittance and applied the funds to the four beneficiary accounts.24
The Bangladesh Central Bank, on 8 February 2016, sent an urgent message to the RCBC,
which reads: “PLEASE be informed that this is a doubtful transaction. You are requested tostop the payment, and if you already made the payment then freeze the account of thebeneficiary for proper investigation. We think that the transaction is contradictory with theanti-money laundering law.”25
However, RCBC was closed that day in view of the Chinese New Year holiday.
On 9 February 2016, the same message was again sent by the Bangladesh Central Bank
to RCBC. By the time RCBC gained access to said messages, the $81-million had already been
withdrawn.26
On 11 February 2016, the Bangladesh Central Bank alerted the Philippine Central Bank
Governor who, in turn, informed the AMLC on what was later revealed to be the largest
laundering caper in Philippine history.
Corkery, M. (2016, April 30). Hackers’ $81 Million Attack on World Banking. Retrieved<http://www.nytimes.com/2016/05/01/business/dealbook/hackers-81-million-sneak-attack-on-worldbanking.html?_r=1>.
21
Ibid.
22
Quadir, S. (2016, March 11). Spelling mistake stops hackers stealing $1 billion in Bangladesh bank heist.
Retrieved <http://www.independent.co.uk/news/world/asia/spelling-mistake-stops-hackers-stealing-1-billion-inbangladesh-bank-heist-a6924971.html>.
23
Corkery, M. (2016, April 30). Hackers’ $81 Million Attack on World Banking. Retrieved<http://www.nytimes.com/2016/05/01/business/dealbook/hackers-81-million-sneak-attack-on-worldbanking.html?_r=1>.
24
Chempo. (2016, March 18). The Great Bangladesh Central Bank Heist. Retrieved<https://joeam.com/2016/03/18/the-great-bangladesh-central-bank-heist/>.
25
Lucas, D.L. (2016, April 13). Dhaka bank sent 3 urgent messages. Philippine Daily Inquirer, pp. A1, A17
26
Salaverria, L.B. (2016, April 13). $81M withdrawn when stop payment order came, says Deguito. Philippine
Daily Inquirer, p. A17.
20

- 123 -

The AMLC and the National Bureau of Investigation probe began on 19 February 2016.
On 29 February 2016, the Philippine Daily Inquirer, a newspaper of general circulation,broke the news to the public.
By 15 March 2016, the Philippine Senate began its hearing led by Senator Teofisto
Guingona III, head of the Blue Ribbon Committee and Congressional Oversight Committee on
the Anti-Money Laundering Act.
The sophistication of the scheme eased the movement of funds to various accounts in thePhilippine banking system, then later on into the gaming and amusement system (casinos)—an industry which is currently exempt from many of the country’s anti-money laundering
requirements.
B.

The Lead Characters“I am but a pawn in a high-stakes chess game played by giants ininternational banking and high finance. If this committee islooking for a ‘grandmaster,’ it’s not me.” –Maia Santos-Deguito,
sacked RCBC Branch Manager, on her alleged involvement in themoney laundering scandal.

Pinned down as the main mover in the laundering scheme, Maia Santos-Deguito testified
before the Senate hearing that “a crime of this magnitude could be possible only with theparticipation of people from the highest officialdom of RCBC, in cahoots with extremely
wealthy businessmen whose far-reaching powers and influence span several countries.”27
Deguito, who has been relieved from work since the scandal broke, said that officials of
RCBC allowed several transactions, involving the $81-million fund stolen from the Bangladesh
Central Bank to be credited and withdrawn despite her queries.
She detailed how the funds passed through several layers of control within the bank. She
testified that she was told by RCBC treasurer Raul Tan that it was not the bank’s problem thatmost of the stolen funds had been withdrawn when the request to hold them came.28
As to prior withdrawals, Deguito asserted that RCBC Regional Director Brigitte Capina
effectively said that there was no reason to hold the funds after they were flagged by the bankdays earlier. Deguito added that because of said instructions, which she asserted were duly
documented, she then processed the withdrawals.29
RCBC, for its part, denied the allegations adding that Deguito herself admitted that theaccounts were credited automatically without need of any approval. Bank records show that,at the end of the day on 5 February 2016, a hold order was initiated by the operations group. It

Salaverria, L.B. and Avendano, C.O. (2016, April 6). Conflicting testimonies noted. Philippine Daily
Inquirer, pp. A1, A4.
28
Salaverria, L.B. (2016, April 13). $81M withdrawn when stop payment order came, says Deguito. Philippine
Daily Inquirer, p. A17.
29
Ibid.
27

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was then lifted when Deguito explained that the amounts were expected and that the “knowyour-client” documents were in order.30
The Yuchengco family-led financial institution said that the bank was also a victim of
the money laundering scam; that it can validly invoke the defense that it exercised due diligencein the supervision of a ‘rouge employee;’ and that it did not contribute to the wrongdoing.31
Meanwhile, William Go, the Chinese-businessman whose name appears on the newly
created US dollar account, and which was the same account used to consolidate the proceedsof the loot, vehemently denied participation in the scandal. He denied owning the peso accountin the RCBC Jupiter, Makati branch, or authorizing any withdrawal of funds for that matter.
He asserted that Deguito even offered him P10 million to participate in the scheme and keep
quiet about it.32
On 19 March 2016, Go filed a criminal complaint before the Office of the City Prosecutorof Makati against Deguito and resigned RCBC senior customer relations officer Angela Ruth
Torres for falsification of documents relative to the Bangladesh Bank heist.33
Also identified as a ‘major player’ in the money laundering scam is junket operator Kim
Wong, who testified that he did not know that the funds were suspected to have come from theelectronic heist. He said that the local casino industry rarely asks its clients about the origin of
their funds, especially from high-rollers who regularly bring in and gamble billions of pesos.
Wong said that he assumes in good faith that the money is clean the moment it passess throughthe laundering safeguards of the banking system.34
As to how the money got into his hands, Wong said that his Beijing-based friend, Shuhua
Gao, and one of his Macau-based casino players, Ding Zhize, were responsible for bringing thefunds into the country. He said that all he was told was that they are going to invest and pay
their debts to him.35
On several occasions during the Senate hearing, Wong had turned over to the AMLC for
safekeeping and eventual return to Bangladesh, the following amounts: $4.63-million as thefirst tranche, PhP32.82-million as the second tranche, P200-million as the third tranche, andP250-million as the final tranche, all in cash.36
Meanwhile, Weikang Xu, another person indicted in the scam, is believed to havereceived P600 million and $18 million in cash, remains at large. The National Bureau ofLucas, D.L. (2016, April 22). Deguito: RCBC allowed transactions involving $81M. Philippine Daily
Inquirer, p. A6.
31
Lucas, D.L. (2016, April 4). RCBC lawyers say bank a ‘victim’ of money laundering scam. Philippine Daily
Inquirer, p. A20.
32
Dumlao-Abadilla, D. (2016, March 19). Businessman William Go sues bank manager. Retrieved<http://newsinfo.inquirer.net/775082/businessman-william-go-sues-bank-manager>.
33
Dela Paz, C. (2016, March 21). Deguito: William Go wanted 10% of $81-M dirty money. Retrieved<http://www.rappler.com/business/industries/209-banking-and-financial-services/126603-william-gobangladesh-bank-heist>.
34
Lucas, D.L. (2016, March 29). Kim Wong to name brains. Philippine Daily Inquirer, pp. A1, A16.
35
Ibid.
36
Lucas, D.L. (2016, May 5). Kim Wong hands over another P250M to AMLC. Philippine Daily Inquirer, pp.
A16.
30- 125 -

Investigation has been tasked to look for him. To date, the AMLC maintains that Xu is still inpossession of the stolen funds.37
As for Philrem, the foreign exchange trader that handled the conversion and deliveries ofthe stolen money from the bank branch to the casino beneficiaries, it asserted that it did notknow that the deal involved Wong. Its officials, Salud and Michael Bautista, said that since themoney came from RCBC, and that its branch manager Deguito was involved, Philrem trusted
the transaction.38
V.

NON-INCLUSION OF CASINOS IN THE AMENDED AMLA

What started out as a seemingly harmless amendment—excluding casinos from the listof covered persons in the revised AMLA—now wreaks havoc in the country’s fight againstmoney laundering.
Congressional records show that attempts to amend the AMLA through Senate Bill
3123—authored by Senators Sergio Osmena III and Teofisto Guingona III; and House Bill
6565—authored by Speaker Sonny Belmonte, Majority Leader Neptali Gonzales II, andMinority Leader Danilo Suarez, originally included casinos and internet casinos as additional
covered transactions.39 However, due to incessant lobbying of operators, through the House
Games and Amusement Committee (HGAC), exclusion from the list was carried out on 5
December 2012 via a final vote of 141 in favor, 7 against, and 1 abstention.
During the plenary deliberations on House Bill 6565, HGAC Chairman Amado
Bagatsing posited that it is impossible to comply with the AMLA “when anything beyond$10,000, we have to report.” He pointed out that said threshold is very inconsequential for bigtime rollers, especially tourists coming from Singapore, China, and Japan; adding that “to them
$10,000 is not even enough to pay for a Louis Vuitton bag.”40
Bagatsing also said that he had to look at the bigger picture due to the number of investors
coming in. He noted that inclusion of casinos on the list would negate the very purpose of anentertainment city—which is to promote tourism and generate employment. He thusemphasized that it would be more beneficial to exclude it from AMLA coverage.
It was, more or less, the same result at the plenary deliberations of Senate Bill 3123, on
30 January 2013, where Senate President Juan Ponce Enrile moved to exclude casinos “because
their inclusion would prejudice many people who have already invested huge amounts ofmoney.”41 He further pointed out that reporting such transactions would be very tedious andwould impede the competitiveness of the casino gaming market; and, as such, it is more
important to prioritize the country’s interest than to comply with FATF assessments.
Carvajal, N. (2016, March 29). $81M laundering: PH officials get hold of ‘suspect’ Weikang Xu’s passport.
Retrieved <http://globalnation.inquirer.net/138170/81m-launder-case-ph-officials-get-hold-of-suspect-weikangxus-passport#ixzz49c7atSgw>.
38
Salaverria, L.B. and Avendano, C.O. (2016, April 6). Conflicting testimonies noted. Philippine Daily
Inquirer, pp. A1, A4
39
Cruz, R. (2016, March 2). Casinos lobbied for exclusion from AMLA. Retrieved <http://news.abscbn.com/nation/03/02/16/casinos-lobbied-for-exclusion-from-amla>.
40
Ibid.
41
Ibid.
37

- 126 -

Enrile emphasized that casinos and internet gaming are not, after all, totally excluded
from the AMLA, as these businesses remain covered in the reporting requirements so long as
there is knowledge or suspicion of money laundering, consistent with the principle of “knowyour-customer.”
The Senate approved its version on 4 February 2013, with 15 voting in favor and no one
against the exclusion of casinos in the list.
A.

Lobby for Casinos’ Tight Monitoring
At present, debates are still rife as regards the inclusion of casinos in the list of covered
institutions in the AMLA. Proponents believe that the $81-million Bangladesh cyberheist
would have been prevented if not for Congress’ lack of foresight at the time when amendments
were introduced.
With the Philippines on the heels of slipping back to the FATF’s “gray-list,” variousorganizations have now called for urgent legal reforms.
The World Bank, for one, already expressed its support for the AMLA’s amendment
listing casinos among the covered institutions. In its Philippine Economic Update dated April
2016, the organization revealed that “global concerns over money laundering could affect thecost of sending remittances, if there is an increase in the closure of bank accounts of remittanceforwarding companies.”42
It further stated that while the AMLA brings the Philippines’ regulatory regime on money
laundering closer to international standards, better compliance with these standards, throughfurther legal and regulatory reform is needed. For instance, the coverage of the Act should be
expanded to include sectors such as casinos.43
The Securities and Exchange Commission, through Chairperson Teresita Herbosa, also
said that they are pushing for the inclusion of casinos. She said the Philippines has an“international commitment to do so,”44 adding that its addition to AMLA’s ambit will preventthe country from being black-listed by the FATF.
This was the same stance given by Insurance Commissioner Emmanuel Dooc, sayingthat inclusion of casinos and casino operators is necessary to put more teeth in the AMLA.45
He also said that other amendments included in the draft of the updated AMLA, currently being
prepared for the Senate, were intended to ease bank secrecy laws, and give AMLC wider
powers to freeze suspicious accounts without relying on court orders.
Despite believing that the inclusion of casinos in the AMLA will not guarantee protection
against money launderers, the Philippine Amusement and Gaming Corporation (PAGCOR)
also pledged its support to the legal reform.
42
Caraballo, M. U. (2016, April 11). WB backs anti-money laundering reform. Retrieved<http://www.manilatimes.net/wb-backs-anti-money-laundering-reform/255501/>.
43
World Bank. (2016). Moving Full Speed Ahead: Accelerating Reforms To Create More And Better Jobs.
Philippine Economic Update, p. 16.
44
Caraballo, M. U. (2016, April 11). WB backs anti-money laundering reform. Retrieved<http://www.manilatimes.net/wb-backs-anti-money-laundering-reform/255501/>.
45
Cabuenas, J.V. (2016, March 15). AMLC wants casinos within the purview of anti-money laundering law.
Retrieved <http://www.gmanetwork.com/news/story/559096/money/personalfinance/amlc-wants-casinoswithin-purview-of-anti-money-laundering-law#sthash.kZ0OZlE9.dpuf>.

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PAGCOR’s Chairman Cristino Naguiat, Jr. said: “Laundering money in casinos is highly
unlikely since converting illicit money into gaming chips would mean risking losses on the partof the perpetrator. Also, all the winnings in casinos are duly recorded by PAGCOR and caneasily be accessed by the government.”46
However, he said PAGCOR welcomes any move to include casinos within the law’s
coverage in the spirit of transparency; maintaining though that if legislation is to be passed,“the threshold amount for reporting must be consistent with the value of typical transaction
sizes in the casino industry." 47
B.

Congress Position
Even with the seemingly unanimous call and support for legal reform seeking to include
casinos in the coverage of the AMLA, Congress appears divided on the issue.
Senator Franklin Drilon, the Senate President at the time the AMLA was enacted in 2001,
said institutions which are extremely vulnerable to money laundering and other illegalmonetary transactions should be put under the close supervision of agencies tasked witheliminating money laundering. The lawmaker noted that recent reports of illegal monetaryactivities in the casinos only point out the need to include casinos in the list of institutions
covered by the AMLA.48
Senator Teofisto Guingona III, who authored Senate Bill 3123, renewed his bid forinclusion of casinos within the purview of the AMLA. While acknowledging that casinos
generate a substantial amount of revenue and employment for the country, Guingona noted that
it is "equally exposed to the raging threats of money laundering and financing of terrorism."
The same is true for Senator Miriam Defensor-Santiago, who said that the country risks
becoming the world’s money laundering capital if the casino sector remains outside thecoverage of the AMLA. She emphasized that the Philippines will suffer higher financialtransaction costs if it gets blacklisted by the FATF.49
Despite the clamor, however, the House of Representatives is not ready to concede thatthe exclusion of casinos may well be considered as a loophole that needs to be plugged. House
Speaker Feliciano Belmonte, Jr. said the casino business was just starting to gain its momentum
in the Philippines. He added: “there was no clear indication, even from the record of Las Vegas
and Macau that it could be a big loophole. And up to this time, it is still under investigation; so
we still don’t know if it is an established fact.”50

Leyco, C. (2016, March 16). Pagcor open to include casinos in AMLA. Retrieved<http://www.mb.com.ph/pagcor-open-to-include-casinos-in-amla/#YP9Rz1Rudfx1h2z2.99>.
47
Cruz, R. (2016, March 2). Casinos lobbied for exclusion from AMLA. Retrieved <http://news.abscbn.com/nation/03/02/16/casinos-lobbied-for-exclusion-from-amla>.
48
Manalo, C. (2016, March 2). Partylister to file graft charges vs Purisima for casino fund scam. Retrieved<http://www.tribune.net.ph/headlines/partylister-to-file-graft-charges-vs-purisima-for-casino-fund-scam>.
49
Viray, P.L. (2016, March 17). Senators want casinos covered by Anti-Money Laundering Act. Retrieved<http://www.philstar.com/headlines/2016/03/17/1563862/senators-want-casinos-covered-anti-moneylaundering-act>.
50
Cruz, R. (2016, March 2). Casinos lobbied for exclusion from AMLA. Retrieved <http://news.abscbn.com/nation/03/02/16/casinos-lobbied-for-exclusion-from-amla>.
46- 128 -

Representative Amado Bagatsing, taking a similar note, maintained that one isolated case,such as the $81-million Bangladesh cyberheist, is not enough to conclude that exclusion ofcasinos is a loophole to the AMLA. He again emphasized that, “we should look at the big
picture.”51
Bagatsing added: “the Philippines is now open because any tourist will have a wonderfultime in the Philippines, rather than in other countries. We have more to offer. It is up to theCentral Bank to apply the full force of the law.”52
VI.

CONCLUSION AND RECOMMENDATIONS

Money laundering produces negative effects that are too complex to detail with precision.
This illicit shadowy economy flows in and out of the country so fast that it only dampens theoverall economic development of a country. It starves the government of valuable resources by
diverting funds to less productive activity instead of subsidizing real and essential services,making developing nations more susceptible to bigger losses.
A reputation as a money laundering haven may also limit foreign financial transactions
and, in the long run, impede both local and foreign investment. It may also cause significant
distortions to a country’s trade and international capital flows through lessened imports andexports.
The massive amount of remittances sent by Overseas Filipino Workers into thePhilippines may also be adversely affected and, in time, gradually harm the soundness of thecountry’s financial system. It may also ruin the faith of ordinary citizens in duly establishedfinancial institutions.
Given that illicit capital flight drains scarce resources of developing economies,transnational money-laundering activity also impairs the growth of affected countries. Even
worse, criminal groups may convert established productive endeavours into sterile investments
by operating them for the primary purpose of laundering illegal proceeds, rather than as profitgenerating enterprises.
This is the same threat facing the Philippines’ amusement and gaming industry. The
Bangladesh heist shows all this in bold relief.
Casino operations have become a highly profitable sector of the economy in thePhilippines, generating employment and driving tourism. Moreover, the taxation of theindustry has become a significant source of revenue. But today, the Philippine casino industry
seems to be the only weak-link in the anti-money laundering/counter-terrorist financing (AMLCTF) regime.
It is high time that the government should further push for measures that will strengthen
the AMLA, starting with the inclusion of casinos and other similar industries as among thecovered institutions. A comprehensive and effective AMLA, together with timely
Cruz, R. (2016, March 2). Casinos lobbied for exclusion from AMLA. Retrieved http://news.abscbn.com/nation/03/02/16/casinos-lobbied-for-exclusion-from-amla
52
Ibid.
51

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implementation and effective enforcement, will certainly reduce the profitable aspects of thiscriminal activity and, ultimately, discourage criminals from pursuing their illicit trade.
The government may complement this by enhancing the structure of the AMLC with
sufficient investigators, budget, and other resources that will advance money laundering
investigations.
The financial sector may also develop its transaction analytics to include a verification
system that will effectively detect suspicious transactions and send red flags to its transacting
clients.
Indeed, the adverse implications of money laundering on the nation’s development are
difficult to quantify, just as the extent of money laundering itself is difficult to estimate.
Nonetheless, it is clear from available evidence that allowing money laundering activity toproceed unchallenged is never the most favourable development policy.
The present AMLA may have its own share of weaknesses and strengths, but with strong
determination, sustained cooperation, and proactive vigilance, the government can effectively
prevent the proliferation of the threat of money laundering.

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CONTEMPORARY MEASURES FOR EFFECTIVE INTERNATIONAL
COOPERATION
Loh Yoon Min*I.

INTRODUCTION

1.
There is a growing importance to build and maintain close working cooperation withforeign agencies as corruptors operate in a globalised world. In recent years, a rising trend
observed involves corrupt offenders committing their initial offences in one country, while
hiding and moving their corrupt proceeds overseas across jurisdictions to prevent detection.
Given the transnational feature of such offences, the evidence gathering process is indeed
challenging and time-consuming. Therefore, close international cooperation is necessary tocombat these transnational criminals.
2.
As a global financial centre, Singapore is vulnerable to such transnational crimes. The
effective prevention and elimination of such crimes, given their transnational nature, would
necessitate close and timely international cooperation between countries. Singapore takes its
international obligations to provide legal assistance and to combat trans-boundary crimes, inaccordance with our laws, very seriously. This is instrumental to detecting criminals and todisgorge their ill-gotten gains.
3.
To combat corruption, Singapore has put in place an effective anti-corruption
framework which is underpinned by resolute political will and leadership. Effective
enforcement of corruption is a key component of Singapore’s strategy against corruption. The
Corrupt Practices Investigation Bureau (“CPIB”) is the sole agency in Singapore thatindependently investigates bribery offences. CPIB has in place specialised units that investigate
public and private sector bribery. In addition, we have a Financial Investigations Branch (FIB)
staffed mainly by accounting professionals with vast experience in the private sector andauditing. The FIB investigates the money laundering offences attendant from bribery offences
and/or other predicate offences uncovered in the course of our bribery investigations. The FIB
also handles requests for mutual legal assistance (MLAs) from foreign jurisdictions vis-à-vis
bribery and the attendant money laundering offences.
4.
While CPIB’s FIB handles formal cooperation, the handling of informal assistance andother operational liaison matters are undertaken by the CPIB’s Intelligence Branch. A key
segment of the Branch is the Strategic Intelligence Section that handles all financial intelligenceemanating from the Suspicious Transaction Reporting Office (“STRO”) 1 — Singapore’s
Financial Intelligence Unit (FIU). The Strategic Intelligence Section analyses and studies
bribery-related suspicious transaction reports (STRs) from the STRO.
Senior Assistant Director (Financial Investigations), Corrupt Practices Investigation Bureau, Singapore.
STRO (Suspicious Transactions Reporting Office) - the central agency in Singapore for receiving, analysing anddisseminating reports of suspicious transactions, known as Suspicious Transaction Reports (STRs). STRO turns
raw data contained in STRs into financial intelligence that could be used to detect money laundering, terrorism
financing and other criminal offences. It also disseminates financial intelligence to relevant enforcement andregulatory agencies.
*
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5.
Through the efforts of its FIB and Intelligence Branch, CPIB plays its part in the global
fight against bribery and money laundering through active engagement and collaboration withforeign agencies and counterparts. Both formal and informal cooperation are the key tools at
CPIB’s disposal to conduct international cooperation. Given the transnational face of bribery
offences, these cooperation tools have been used concurrently, resulting in contemporary
investigations techniques such as joint operations among other things.
II.

USE OF FORMAL COOPERATION

6.
Formal cooperation comprises the use of MLA and extradition. All incoming andoutgoing requests for MLA and extradition are co-ordinated by the Attorney-General’sChambers (AGC), which is designated as Singapore’s Central Authority for international legal
co-operation. It provides a convenient point-of-access for sending and receiving requests forassistance. The range of assistance that can be provided via MLA is provided for in the Mutual
Assistance in Criminal Matters Act (MACMA). The law on extradition in Singapore can befound in the Extradition Act.
A.
Mutual Legal Assistance (MLA)
7.
As the Central Authority, the AGC processes all incoming and outgoing MLA requests
in accordance with the laws and processes as per the MACMA and works closely with theforeign authority.
8.
Together with informal cooperation between law enforcement agencies, MLA is criticalto the investigation of transnational bribery cases. For an outgoing MLA request, the AGC,
with input from the CPIB, will draft the request in accordance with the legal requirements ofthe foreign country. Where necessary, the case officer from the Central Authority will consult
with the foreign authorities to respond to questions or clarifications in order to facilitate theprocessing of the request. When dealing with complex cases containing foreign elements, CPIB
will engage the AGC at the early stages of our investigation to discuss the best available
avenues to engage foreign agencies to seek assistance or share evidence or information so thatthe offenders can be appropriately dealt with in Singapore or abroad.
9.
For bribery-related incoming requests for MLA received by the AGC from foreigncountries, these will be subsequently routed to CPIB’s FIB to conduct background checks andto evaluate the requests. Where an MLA request discloses that an offence has been committed
in Singapore, CPIB will conduct domestic investigations. For requests involving asset recovery,
the key priority is to prevent the dissipation of funds. Hence, upon receipt of such requests,
CPIB would act swiftly to prevent the dissipation of the funds and assets from Singapore.
10.
Gathering evidence for some cases may be more time-sensitive than others. This isespecially true for cases where it is critical to prevent the dissipation of funds and assets. In
this regard, the AGC leverages on technological tools to expedite MLA and extradition matters
via an electronic case management system known as the Enterprise Legal Management System(ELMS). It comprises standard operating procedures, time norm guidelines and monitoringmechanisms to prioritise and manage the processing of incoming and outgoing MLA andextradition requests. When the case is flagged as urgent in ELMS, it is marked and displayed
at the top of each officer’s ELMS desktop.

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11.
Being cognisant of the challenges that may arise from formal cooperation, the AGC
coordinates closely with the various domestic agencies (e.g., CPIB, among others) that deal
with international co-operation matters. Face-to-face meetings or meetings through video or
telephone conferencing with foreign authorities are also arranged to mitigate recurring process
issues, including those arising from issues relating to conflicts of jurisdiction, and clarifying
the facts/evidence, among others. CPIB also advises and assists to provide information to ourforeign counterpart agencies to assist them to draft their MLA requests. This has enabled ourcounterparts to acquire a better understanding of our MLA laws and requirements, which also
led to a considerable reduction in time taken to seek clarifications between the parties involved.
B.
Extradition
12.
Singapore has extradition arrangements with the USA, Germany, Hong Kong SAR, as
well as 40 declared Commonwealth Countries.
13.
There are also reciprocal arrangements in place for the “backing of warrants” between
Singapore, Malaysia and Brunei and these are legislated under the Criminal Procedure Code
(CPC). Under these arrangements, warrants or summonses authorising the arrest of persons or
requiring their attendance before any court in any one of these jurisdictions can be endorsed inanother where the person is believed to be. This allows for a simplified and swift procedure forthe surrender of fugitives. Requests under this scheme can be managed between the law
enforcement agencies and their foreign counterpart agencies without having to submit therequest through their respective Central Authorities.
14.
Singapore is also actively engaged in negotiations with the ASEAN Member States todevelop an ASEAN model extradition treaty, which upon its conclusion, would serve tofacilitate the negotiation of extradition treaties among ASEAN Member States.
15.
The AGC is able to respond to urgent extradition requests. Under the Extradition Act,urgent applications for provisional arrest may be made by the requesting country to facilitate
the arrest of a fugitive, pending the receipt of the formal extradition request. This has been
particularly useful where there is information that the fugitive is transiting through Singapore’s
airport or is in Singapore for only a short duration. When there is information that the case isurgent, the case will be flagged as such. As extradition matters can be time-sensitive, the case
officer(s) will, in appropriate cases, make an urgent application before a duty judicial officer
to obtain the warrant in accordance with the Extradition Act, so that a fugitive does not escapedetention even if his presence in Singapore is for only a short period. If necessary, arrangements
can be made for this to be done after office hours as well as over weekends and public holidays
if there is a risk that any delay may result in the fugitive leaving Singapore without being
apprehended.
III. USE OF INFORMAL COOPERATION
16.
CPIB routinely makes use of informal co-operation to pursue bribery cases, such as
when the facts of a case suggest cross-border elements and where our foreign counterparts may
be able to assist further investigations. Such co-operation can take place through working-levelcontact points on the basis of reciprocity as well as through joint investigations. As a matter ofpolicy and practice, agencies rely on such co-operation before turning to formal co-operation
under the MLA process. This provides an early indication of whether there is information thatwould yield useful leads on the cross-border element.

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17.
CPIB regularly cooperates with anti-corruption agencies in the region, such as the
Malaysian Anti-Corruption Commission, Anti-Corruption Bureau (Brunei), Corruption
Eradication Commission (Indonesia) and Independent Commission against Corruption (HKSAR), as well as other foreign law enforcement agencies, such as the Federal Bureau of
Investigations (FBI) and Naval Criminal Investigative Service (NCIS) (USA), AustralianFederal Police (Australia), Serious Fraud Office (UK), in the exchange of information,
intelligence and joint operations. CPIB signed a Memorandum of Understanding (MOU) on
Co-operation for Prevention and Combating Corruption with Southeast Asian anti-corruption
agencies. This MOU, also known as the South East Asia Parties against Corruption (SEA-PAC),
is a forum where CPIB shares operational information with its MOU partners. In addition,
CPIB has established a bilateral working group with the Malaysian Anti-Corruption
Commission for the purpose of intelligence-sharing and the conduct of joint operations
between the two agencies.
18.
Informal cooperation by CPIB can also take place via the FIU-to-FIU networks. The
network of FIUs that the STRO is a part of (e.g., Egmont Group of FIUs) is valuable as itallows CPIB to seek the STRO’s assistance to send a request for assistance (RFAs) to related
foreign FIUs that STRO has an arrangement with. Otherwise, RFAs can be sent once there isan undertaking by the foreign counterpart for such exchange on the basis of reciprocity andconfidentiality. STRO also facilitates exchange of information by sending the financial
intelligence using the FIU network while CPIB will inform our counterparts to pick up thefinancial intelligence from their respective FIU.
19.
The CPIB also leverages on the INTERPOL network to request or exchange
information. In 2010, CPIB joined the INTERPOL Match Fixing Task Force2 (IMFTF), which
is a network of foreign agencies tackling the rising trend of match fixing through the bribingof football players and officials and linking to organised crimes. This network has provided an
additional contact point to request assistance from other countries, as well as to share
intelligence and the trends and changes in modus operandi, which are instrumental to fighting
transnational bribery.
IV.

CONTEMPORARY METHODS OF INVESTIGATION RESULTING FROMINTERNATIONAL COOPERATION

20.
The growing trend of complex crimes comprising transnational elements have led law
enforcement agencies to resort to a range of international co-operation mechanisms toeffectively investigate such crimes using contemporary investigation techniques such as joint
operations. Joint operations have often led to the seeking and sharing of information so thatappropriate actions could be taken both by Singapore and foreign jurisdictions to deal with thecrimes.
21.
When transnational bribery cases arise, CPIB’s Intelligence Branch will immediately
alert our foreign counterparts of the impending request and clarify related issues in advance.
CPIB will state clearly the facts of the case and the assistance sought, and may propose to
conduct joint investigations/operations if the offences are committed in the requested
IMFTF-Interpol Match Fixing Task Force. It was established in 2011 to support member countries’ efforts tocombat match-fixing activities under the auspices of INTERPOL’s Crimes in Sport programme.

2- 134 -

jurisdiction. Further clarifications are often communicated through phone calls or e-mails, oreven face-to-face meetings/discussions.
22.
Requests received from the foreign counterparts are evaluated based on the nature of
the allegation and offences, whether the offences were committed in Singapore, the persons
involved and their nationality. If Singaporeans are involved, CPIB will also evaluate whether
they are only witnesses, or likely to be offenders (givers, receivers or others) and whether thecommission of the offence(s) involved the use of corporate vehicles and bank accounts, among
others.
23.
The types of assistance that CPIB has provided via joint investigations/operations
include the following (the list below is not exhaustive):a. Voluntary interviewing of persons in Singapore
b. Voluntary statement recording from persons in Singapore
c. Request for voluntary production of records and/or documents
d. Serving documents / subpoenas to witnesses
e. Provide business profiles of Singapore registered entities
f. Locating absconders / executing warrants of arrest24.
The use of the informal cooperation channels during joint operations allows ourcounterparts to obtain information quickly and more efficiently. This is especially important if
the investigations are at a critical stage and are time sensitive. Our counterparts may use theinformation to conduct parallel discovery as part of their evidence-gathering process. CPIB, at
the early stages of cooperation with its foreign counterparts, will advise our counterparts todraft an MLA request if they require the information to be obtained through an MLA request
for use in their court proceedings.
25.
The seeking and provision of international cooperation is not limited to investigation
matters only. CPIB has provided assistance in relation to court matters as well. In this regard,
assistance rendered has to adhere to due process to ensure that there is a proper chain ofevidence and is able to withstand scrutiny by the Courts. Some examples of the assistance wehave provided vis-à-vis court matters are as follow:
a. Subpoenas on behalf of counterparts to related persons to attend Court trials in therequesting country.
b. CPIB recording officers providing evidence in a foreign Court if assistance waspreviously rendered to record the statement from persons in Singapore on behalfof the foreign authorities.
c. CPIB officers giving evidence in Court vis-à-vis MLA requests pertaining to the
conduct of search and seizure resulting in material evidence being uncovered in
Singapore.

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V.

CONCLUSION26.
As economies become more globalised and borders become increasingly porous, it
becomes easier for criminals to offend. This has led to a greater propensity for bribery and/or
related offences to assume transnational dimensions, with ill-gotten proceeds easily flowing
through multiple jurisdictions. Hence, cross-border and international cooperation, andinvestigative methods that tap such cooperation are essential in effectively combating thescourge of transnational bribery.

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CONTEMPORARY MEASURES OF INTERNATIONAL COOPERATIONAGAINST CORRUTION IN THAILAND
Pattraporn Pommanuchatip*
Pakorn Kunsara†I.

INTRODUCTION

Corruption is the misconduct occurring when the person holding a position of authority
exploits or abuses the opportunity or one or more positions in office to acquire immoral benefits
unfaithfully. Corruption occurs in various forms such as bribery, embezzlement, extortion,
blackmail and abuse of discretion. Such misconduct not merely causes damage to the individualor the private sector, such as companies, the organization related to the corruption transaction
and those the perpetrators belong to, the shareholders, taxpayers and the beneficial interests,
but also leads to adverse effects for the nation as a whole due to the cost of corruption to theeconomy. People have to bear superfluous expenses without their consent. Certainly,
corruption is an important obstacle to development and living quality.
Moreover, in many cases corruption relates to or supports other crimes. In the public
sector, corruption dilutes the quality of services and the benefits that the officers andgovernment can render to the people, the community and the country. The fact that a numberof perpetrators can escape from penalties results in the lack of remedies and decreases investor
confidence and that of the people in the relevant businesses and organizations including law
enforcement agencies and has grave effects on society.
The prevention and suppression of corruption, therefore, are essential to protect oursocieties and the people from the threatening danger of corruption, to provide them withremedies, to limit the opportunity to repeat the crimes of the perpetrators, to deteriorate thewrongdoing, to give the opportunity for rehabilitation to the perpetrators, to confirm the norms
and morals of the society and to maintain organizational, national and global integrity andsecurity.
Like other crimes, perpetrators endeavour to run away from penalties. Various techniques
including hiding of evidence and witnesses, concealing the proceeds and changing their placeof residence in order to enjoy the unjustifiable enrichment without liabilities. Such techniques
include utilizing the limitations of territorial jurisdiction of the authorities by entering thescheme or the transaction abroad, transferring or keeping the proceeds in other countries,changing their place of residence and laundering of money. There is a limitation on law
enforcement authorities beyond their judicial territory, especially in the other country which is
subject to the sovereignty of the other state that must be respected and recognized. To avoid
the violation of the jurisdiction of the other state and to ensure the legitimacy of procedures, itis necessary for the competent officers to engage in international cooperation to achieve
efficient and successful means of combating corruption.

Provincial Chief Public Prosecutor Attached to the Office of the Attorney General, Office of Civil Rights
Protection, Legal Aid and Execution, Srakeaw Province.
†
Public Prosecutor, Department of Economic Crime, Office of the Attorney General.
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This essay aims to study the measures of international cooperation applicable forcombating corruption and the legislation in Thailand that is an important tool to deal withinternational cooperation to combat corruption.
II.

INTERNATIONAL COOPERATIONInternational cooperation in criminal matters is requested and rendered between statesand sometimes by international organizations. The assistance that may be acquired throughinternational cooperation, including investigation, prosecution and other stages or proceduresin criminal law such as the exchange of information, locating of people, service of documents,
search, seizure and freezing of property, conducting interrogation, obtaining evidence,
testimony and statements, arrest and extraditing fugitives, etc. International cooperation
possibly can be divided into three categories, namely formal cooperation, informal cooperationand cooperation in technical assistance and training.
First, the formal international cooperation in criminal matters is usually acquired throughmeasures provided by the domestic law in accordance with the binding international treaties
such as treaties on mutual legal assistance in criminal matters and extradition treaties. If it isallowed by the domestic law, when there is no binding treaty, international cooperation can bearranged and obtained through diplomatic channels. The international cooperation by formal
channels includes mutual legal assistance (MLA), extradition, letters rogatory (letter from thecourt requesting the court in another country to carry out judicial acts) and transfer of prisoners.
It should be noted that formal cooperation is usually based on the principle of dual
criminality, reciprocity and the respect of sovereignty and jurisdiction of related states. In
addition, extradition is usually subject to conditions such as being non-military and nonpolitical offences and the requesting state must assure the principle of non-severability. In
many countries, the extradition of nationals is prohibited.
Informal international cooperation is usually acquired by communication throughperson-to-person channels, liaisons, legal attachés and Interpol or the like. This means ofcooperation is dependent upon personal trust of the requesting and requested official. The levelof assistance is limited, and it is difficult to prove the legality and admissibility of the obtained
information and evidence.
International cooperation in technical support and training often has fewer conditions.
Usually, it does not have to be mutual. It is not based on the principle of reciprocity and is notbased on legally binding treaties or domestic law. However, this type of assistance is not justimportant in combating corruption by raising the awareness of officials and the public on
corruption and the prevention and suppression thereof, but also deepens the understanding of
the official of their own laws and regulations and their understating of the law and process ofthe other country. Particularly, the official can learn how to get and provide assistance by meansof cooperation to fight the corruption.
Consequently, it leads to the effective combating and suppression of corruption by welltrained officers. Moreover, meetings and interactions during the training can simply set up a
network of officers, including those utilizing person-to-person channels, for the exchange of
information, that is, informal international cooperation.

- 138 -III.

LEGAL MEASURES AGAINST CORRUPTION IN THAILAND

To combat corruption, it is vital to have substantive law, procedural law and the law oninternational cooperation. Thailand has introduced a number of laws in three categories asdetailed below.
A.

Substantive Laws Criminalizing Corruption
The substantive laws that prescribe corruption as criminal offences and impose penalties
on those who commit it in Thailand are the Penal Code, which criminalizes bribery,
misconduct, the abuse of power, fraud, embezzlement, and other forms of corruption; theOrganic Act on Corruption B.E. 2542 (1999), the Act of Administrative Measures against
Corruption Act and the Anti-Money Laundering Act B.E. 2542 (2000), 1 which specifies
corruption as a predicate offence of money laundering.2
The traditional offences under the Penal Code are fraud, embezzlement, cheating,deception, malfeasance in office (including judicial office).
In addition, there is the Regulation of the Office of the Prime Minister on Procurementthat applies to the procurement proceedings to provide transparency in purchasing of goods
and services of the governmental organization at all levels. In line with it, the Act on the
Offense Relating to Submission of Bids or Tender Offers criminalizes conspiracies for illegal
bidding and government procurement. The Organic Act on Corruption imposes duties on
persons holding political positions to comply with transparency regulations and criminalizing
violations. In the private sector, the Act on Undertaking of Financial Business and Credit
Financier Business and the Securities and Exchange Acts similarly put duties and penalties on
professionals and business executives.
1.

The Procedure Law
The procedure laws set forth the regulation for supervision activities and empower theauthorities to take relevant measures to combat corruption crimes.
Apart from the traditional competent officers under the Code of Criminal Procedure, theOrganic Act on Corruption B.E. 2542 (2000) (the Prevention and Suppression of AntiCorruption)3sets up the National Anti Corruption Commission (NACC) with the mission tofight corruption by politicians, executives of local governmental bodies and other high level
officials. The Act on Administrative Measures in Combating Corruption established the Officeof Public Sector Anti-Corruption Commission (PACC).
The Organic Act requires the politicians and senior officials to report their assets, while
it also provides the two commissions with procedures for investigation and bringing cases
against officials. The authorities of the two Commissions are categorized by the level of thesuspect. The NACC deals with the offences committed by politicians and executives. Other
suspects falling under the authority of the NACC are subject to the authority of the PACC.

Amended by the 2nd Anti-Money Laundering Act B.E. 2546 (2003) and the 3rd Anti-Money Laundering Act
B.E. 2556 (2014).
2
Section 3 stipulates that the offence in this Act includes: …(4) offenses related to cheating and fraud to the
public under the Penal Code or offenses pursuant to the Fraudulent Loans and Swindles Act….(5) malfeasancesin the office …
3
Amended by the 2nd Organic Act on Corruption B.E. 2550 (2008).
1- 139 -

The Constitution law of B.E. 2540 as confirmed by the Constitution B.E. 2550
established the Supreme Court’s Criminal Division for Person5 Holding Political Positions withthe power to adjudicate national and local politicians who commit corruption and fail to comply
with the law, such as by failing to declare the property to the competent officer andmisrepresenting or falsifying documents and government procurement biding offers in relation
to their duties.
In the private sector, the Public Company Limited Act and the Securities and Exchange
Act imposed measures to ensure that the corporations will operate with good governance andaccountability under the supervision of the Securities and Exchange Commission.
B.
1.

The Laws on Mutual Legal Assistance and Extradition
Mutual Legal Assistance
The Act of Mutual Legal Assistance in Criminal Matters B.E. 2535 (1992) and theExtradition Act B.E. 2551 (2008) are mainly tools for formal international cooperation. The
first law entitled the authority to execute the assistance requested and to place requests toother countries.
In practice, the relation between domestic law and international law including treaties oninternational cooperation may be different. Many countries apply international law in theirterritory automatically. On the contrary, other states, for example Thailand, requires theaccession by enacting domestic law to implement the treaty. Thai law by the Act on
International Cooperation in Criminal Matters entrusts the duty of the Central Authority ininternational cooperation in criminal matters (MLAT) to the Attorney General.
The available assistance under the Act on International Mutual Assistance in Criminal
Matters B.E. 2535 includes4
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)

Taking statements of persons,
Providing documents, articles and evidence out of Court,
Serving documents,
Searches,
Seizure of documents or articles,
Locating persons
Taking the testimony of persons and witnesses or adducing documents andevidence in court, and requesting forfeiture or seizure of property
Transferring persons in custody for testimonial purposes
Initiating criminal proceedings

The following chart shows the process of international mutual legal assistance incriminal matters.

4

Amended by the 2nd Act of International Mutual Legal Assistance in Criminal Matters B.E. 2559 (2016).

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The requesting authority
Requesting official

International affairs

Central Authority of Requesting State
Ministry of Foreign Affairs

Designated Central Authority

Central Authority of Requsted State
Ministry of Foreign Affairs

Central Authority

Competent Official
Competent Official

International Affairs

EXECUTION OF REQUEST
Competent Officer
Execution Officer

International Affairs

Central Authority of the Requested State
Central Authority

Ministry of Foreign Affairs

Central Authority of the Requesting State
Ministry of Foreign Affairs

Central Authority

Requesting OfficeInternational Affairs Requesting official

2.

Extradition
The Extradition Act B.E. 2522 empowers the Thai government to extradite fugitives who
are alleged or accused of having committed criminal offences or the defendants for whom thecourt has reached a verdict to punish them under treaties, and in cases without treaties, throughdiplomatic channels.

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However, extraditable offences must be prescribed in the law namely having a penalty
of not less than 1-year imprisonment and must be a criminal offence in both the requesting state
and the requested state. The assistance is given on the basis of reciprocity and comity and thecharge against the targeted fugitive must not be a military or political offence. The extradition
shall be on the basis of reciprocity and with regard to the jurisdiction of Thailand over the crime
as well as the availability of evidence to prove probable cause that the crime was committed.
3.

Forms of Cooperation
As for formal cooperation, Thailand became a signatory state to the United Nations
Convention Against Corruption (CAC) in 2003 and ratified the CAC in 20115. Thailand has
also ratified the United Nations Convention against Transnational Organized Crime andentered into extradition treaties and bilateral and multilateral treaties on mutual legal
assistance.6 Thailand has requested and rendered both extradition and MLA through formal
forms of international cooperation under the existing treaty and through diplomatic channels
in order to combat corruption.
Regarding informal cooperation, the Thailand Anti-Corruption Agreements
Coordination Center (TACC) was set up in the NACC as a national focal point for compliancewith the United Nations Convention against Corruption. The TACC has entered into
cooperative agreements with foreign counterparts on an informal basis for corruption
investigation and intelligence exchange as empowered by the Organic Act on Corruption and
the Act on Transnational Organized Crime.7
As for cooperation in training and technical assistance, Thai officials have been trained
and have contributed their knowledge and experience on many occasions to develop the law
and efficiency in combating corruption such as at meetings of the CAC forum and the UNODC
expert meeting on corruption.
IV.

PROBLEMS AND CHALLENGES

A.

Problems
In the past, Thailand faced difficulties in relation to combating corruption in the private
and public sectors. The problems in combating corruption can be illustrated in two major cases.
The first sample case is against Rakesh Saxena, the advisor of the Bangkok Bank ofCommerce Public Company Limited (BBC) and the Managing Director. The advisor was
alleged to have committed embezzlement as he set up a number of companies through whichloans from the BBC were secured by the properties with inflated prices in a very large scale. It
was also alleged that he violated the securities regulations of the Bank of Thailand andexceeded his authority of granting loans, since they were approved by the managing directorof the bank unfaithfully. The loan scheme led to the loss of more than a billion Baht and ended
United Nations Office of Drugs and Crime. United Nations Convention Against Corruption Signatories Status
December 2015. thttps://www.unodc.org/unodc/en/treaties/CAC/signatories.htm
6
For example, Extradition Treaties with the Great Britain, the USA, Cambodia, Bangladesh, Indonesia, Lao
PDR, and Viet Nam, the ASEAN Treaty on Mutual Legal Assistance, Mutual Legal Assistance in Criminal
Matters Treaties with the USA, Australia, and Viet Nam.
7
Such as the Memorandum of Understanding on Cooperation in Prevention of and Fighting Against Corruption
between the National Anti-Corruption Commission of the Kingdom of Thailand and the Office of the
Ombudsman of the Philippines
5- 142 -

in the collapse of the BBC. The accused flew to Canada and transferred the money to anothercountry.
The process of his extradition to Thailand took years even though there was an
extradition treaty between Thailand and Great Britain, which has been acceded to by Canada.
The proceeds of crime were transferred to a third country and were seized under international
cooperation or mutual legal assistance in criminal matters. However, like the law of Thailand,
the law of the requested state prescribed that the proceeds of crime seized are to be forfeitedand become public domain. As a result, Thai officials had to withdraw the seizure and pursue
repatriation of the assets under the civil procedure of the requested country.
The second case is the case of Mr. Taksin Shinawatra who was the former Prime
Minister. The Supreme Court’s Criminal Division of Persons Holding Political Positions
imposed the penalty of 2 years’ imprisonment. However, before the court read the judgement,
he absconded to other countries. Thai officials have sought his extradition by formallyrequesting his extradition to a state party to the extradition treaty. However, the requested staterefused his extradition on the basis that it was a political offence.
From the two cases and the aforementioned charts, it is clear that formal international
cooperation takes a very long time.
Both extradition and MLA are conducted on the basis of dual criminality, namely therequest must be for the commission of an act that constitutes crime in both the requesting andrequested state. Also, the offence must not be military or political in nature. In the meantime,
there is no explicit definition of political offence, which was the ground of refusal.
As for the investigators and the requesting official, the investigators of corruption in
Thailand are the police, the Department of Special Investigation (DSI), the NACC and the
PACC. In the past, the competent officers for executing requests were only the police. Hencewhen the investigators that conducted the investigation are the DSI or other agencies, there
were difficulties in practice because the Central Authority had to send the request to the police
and the police had to seek cooperation from the DSI, NACC or PACC.
Furthermore, there is no regulation dealing with expenses and costs arising from theexecution of the request and the sharing of assets or the proceeds of crime seized under legal
cooperation scheme. This resulted in the lack of remedies on the part on the injured person
including the organization as well as the government budget, which is derived from taxpayers.
Informal channels of international assistance or cooperation may also face problems inthat the competent officers especially in local areas have little knowledge of the applicable lawof their own jurisdiction, the other jurisdiction and available international cooperation
measures. In certain cases, the practitioners felt that they had not gained trust from their foreigncolleagues. Sometimes, their requests were even refused.
B.

Challenges
Corruption is multi-faceted in nature. Many factors influence crimes including corruptionthat are usually sophisticated and cover many layers. At the center of the factors are theindividual factors including the thoughts, personal values, beliefs and skills of the individuals.
The second layer is the family relationships. The factors influencing crimes are the family
values, norms and expectation, etc.

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Third, communities, including schools and organizations, can influence crime throughtheir policies, mentors, and availability and lack of supporting services. At the wider national
level, culture, media and economy are other factors that influence crime.
Last, at the global level, world politics, the global economy, etc. are factors influencing
the risk of crime.8 Consequently, to combat corruption, measures should cover all levels andextend to both preventive and suppression measures.
V.

PROGRESS IN INTERNATIONAL COOPERATION FOR
COMBATING CORRUPTION

After the ratification of the Convention against Transnational Organised Crime, the
new Act of Mutual Legal Assistance in Criminal Matters B.E. 2559 was published in theRoyal Gazette and entered into force in April 2016.The new Act brings about the remarkablechange in legal assistance as identified in the table below.
IssuesCompetent official

ACT B.E. 2535 (1999)
 Police, Prosecutor,
 Director Generalof the Correction
Department

Asset recovery
Asset sharing andcontribution
Transfer of criminal
proceedings
Informal cooperation by
agency-ACT B.E. 2559 (2016)
 Police, DSI,
 Prosecutor,
 Director Generalof the Correction
Department
 Others-

In July 2015, the Organic Act on Corruption B.E. 2558 (2015) was enacted. Itempowers the NACC to be the competent official under the new Act on Mutual Legal
Assistance in Criminal Matters. In addition, Section 3 inserts the provision to empower the
NACC to investigate corruption of foreign officials and officers of international organizations.
If a fugitive escapes during the process of investigation and trial, the time period of his escapewill be excluded from the prescription. The penalties are imposed by this Act against theperpetrators range from fine to capital punishment. On 7 July 2016, the 3rd Organic Act on
Corruption B.E. 2559 (2016) was published in the Royal Gazette and became a new law that
imposes capital punishment on corruption by officials.
In addition, there has been progress in the organizations. The PACC has become an
independent organization that is separate from the Ministry of Justice. The Office of the
Attorney General set up the Department of Anti-Corruption in October 2015. The Division ofUnited Nations Office of Drugs and Crime. 2010. Handbook on the United Nations Crime Prevention
Guidelines. Vienna, Austria.

8- 144 -

Corruption of Government Officials was set up in the Central Criminal Court to ensure theexpertise of the officials responsible for corruption cases.
VI.

CONCLUSION

In conclusion, Thailand has recently exercised significant efforts to combat corruption invarious aspects. However, there might be future problems which are obstacles to the effective
combating of crime. The obstacles may be the speed of formal cooperation which usually takes
a long time; the refusal to extradite the politician-fugitives in cases of corruption; and in thecase of corruption punishable by capital punishment, when Thailand seeks extradition, itsrequest may be refused if the offence for which extradition is being sought carries the death
penalty.
Therefore, future cooperation in regard of capacity-building and knowledge of competent
officers and organizations is needed, for example, to deal with the need of assurances that thedeath penalty will not be imposed to avoid refusal on the ground of death penalty.
International cooperation is an important tool for combating corruption. The mechanisms
or measures available should cover all layers of the society.
 Individual, family, school and local community education is needed to spreadawareness of the norms, thoughts, beliefs, values, and policies against corruption.
 At the national level, there should be strong political will to combat corruption. Then
there must be a strong legal mechanism criminalizing corruption and imposing serious
penalties. The enforcement of laws and regulations should be conducted widely,intensively and through expert professionals. The measures such as capacity-building
should be undertaken on a regular basis.
 At the international and global level, there should be a sincere and serious drive tofight corruption and render assistance. For example, corruption by politicians should
not be regarded as political offences. Otherwise, all the politicians will have immunityfrom liability arising from corruption and can simply escape from the liability, causing
grave damage to the society.
Furthermore, to ensure effective international cooperation, all prosecutors, police, thecourts, legal professionals, lawyers, and other government agencies should cooperate
nationally and internationally. Training and capacity-building in prevention and suppression ofcorruption and in acquiring and rendering assistance to other agencies, including colleagues ofother jurisdictions, should be promoted and supported by states and international organizations.

- 145 -

References
Office of the Attorney General. 2008. Law and Treaties Relating to International Cooperation
In Criminal Matters. 6 ed. Bangkok: International Affairs Department.
Ngearndee, P. Mutual Legal Assistance and Extradition in Thailand Available
from: <http://www.unafei.or.jp/english/pdf/PDF_GG6_Seminar/05-7_Thailand.pdf>.
[1 May 2016].
Tiyapan, S. Extradition and Mutual Legal Assistance in Thailand.114th International
Training Course Visiting Experts’ Papers. United Nations Asia and Far East Institutefor the Prevention of Crime and the Treatment of Offenders.pp.108-132. Available
from: <http://www.unafei.or.jp/english/pdf/PDF_rms/no57/57-10.pdf>. [1 May 2016].
The Supreme Court’s Criminal Division of Persons Holding Political Positions. Available
from: <http://www.supremecourt.or.th/file/criminal/1-50%20kumpiparksar.pdf>[1 May 2016].
United Nations Office of Drug and Crime. 2010. Handbook on the Crime Prevention
Guidelines. Vienna, Austria.

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CONTEMPORARY MEASURES FOR
EFFECTIVE INTERNATIONAL COOPERATION
Vu Thi Hai Yen*
Nguyen Hoanh Dat†I.

INTRODUCTION

Although tremendous efforts have been made and convincing results have been achieved inanti-corruption, Viet Nam is still struggling to deal with this plague. The Vietnamese Government
always reaffirms its commitment and determination to prevent and combat acts of corruption of
any kind, and it utilizes various approaches to seek success. As corrupt acts increasingly have thenature of borderless crime, the country has considered international cooperation as important andeffective activities, and it is now paying proper attention to this approach to not only bring theperpetrator to justice but also recover corruption-related assets. This paper will briefly discuss Viet
Nam’s international obligations, anti-corruption legal and institutional framework and its current
international cooperation channels in connection with the fight against corruption. After that, someactual cases are introduced and analyzed to show difficulties and challenges before suggestingsome solutions to better deal with the problem.
II.

VIET NAM’S INTERNATIONAL OBLIGATIONS

Viet Nam signed the United Nations Convention against Corruption (UNCAC) in 2003 andratified it in 2009. The position of UNCAC in the Vietnamese legal system is one level below theConstitution and one level above other sources of laws. UNCAC, like any international legal
instruments, can be applied directly, in whole or in part, or through incorporation into domestic
laws and regulations. In addition, Viet Nam partners with international stakeholders which
contribute to anti-corruption such as the Asia Pacific Group (APG), the Financial Action Task
Force (FATF), etc.
III. THE ANTI-CORRUPTION LEGAL AND INSTITUTIONAL FRAMEWORK IN
VIET NAM
The institutions most relevant to the fight against corruption in Vietnam are the Central
Steering Committee on Anti-Corruption, the Government Inspectorate, the Ministry of Public
Security, the Supreme People’s Procuracy, the Supreme Court, the State Bank of Vietnam, and the*Vice Director General of the Department for International Cooperation and Mutual Legal Assistance in Criminal
Matters, Supreme People’s Procuracy of Viet Nam.
†
Vice Head of MLA Division of the Department for International Cooperation and Mutual Legal Assistance in
Criminal Matters, Supreme People’s Procuracy of Viet Nam.

- 147 -

Vietnam Fatherland Front. Other relevant stakeholders include the National Assembly
representatives, the National Lawyer Association, civil society, etc.
In terms of legislation, there are various legal documents that constitute the anti-corruption
legal framework. The most important and relevant legislation is the Act on Anti-Corruption and
the Penal Code. The Act on Anti-Corruption sets out policies and measures to prevent, discoverand deal with corrupt conduct and stipulates the responsibility of governmental agencies,
organizations and individuals in anti-corruption. The Penal Code stipulates numerous corrupt
offences and punishments imposed on corruption-related acts and assets.
IV.

VIET NAM’S INTERNATIONAL COOPERATION CHANNELS IN THE FIGHT
AGAINST CORRUPTIONA.

Mutual Legal Assistance (MLA)
MLA is regulated by the MLA Act and partly by the Criminal Procedural Code. Viet Nam
has concluded several bilateral treaties on MLA with foreign countries, and it is also the memberof the ASEAN Treaty on MLA. In the absence of an MLA treaty, assistance may be granted under
the principle of reciprocity. The scope of assistance generally consists of things currently being
applied worldwide including the transfer of criminal proceedings. Both the MLA Act of Viet Nam
and MLA treaties stipulate adequately the purposes for which MLA may be granted and the content
that an MLA request should contain. MLA treaties often specify that MLA requests should beexecuted in accordance with the procedures set out in the request, provided that they do notcontradict Vietnamese laws. The spontaneous transmittal of information is allowed under
Vietnamese law and is regulated by several MLA treaties. According to Vietnamese law, whenrefusing an MLA request, the requesting State shall be informed of the reasons for refusal. A
detailed timeline for the execution of mutual legal assistance requests is set out in the MLA Act.
The Act also provides for the postponement of the execution of a request if such execution wouldinterfere with an ongoing investigation, prosecution or trial of an offence or the enforcement of ajudgment in Viet Nam. Viet Nam would generally consult with requesting States prior to refusing
a request, although consultations are not mandatory. The absence of dual criminality is amandatory ground for refusing MLA requests. Confidentiality of MLA requests is respected in amanner consistent with domestic law and MLA treaties. There are no provisions in the legislationof Viet Nam permitting the hearing of witnesses by video conference; however, this kind ofassistance can be granted on a case-by case basis. According to the MLA Act and MLA bilateraltreaties, the Supreme People’s Procuracy is designated as the Central Authority for MLA in
criminal matters. Most recently, it has been designated as the Central Authority for Asset Recovery
according to UNCAC. Any foreign MLA request made under an MLA treaty shall be directly sent
to the Central Authority while non-treaty MLA requests should be sent to both the Central
Authority and the Ministry of Foreign Affairs.
Viet Nam has executed a few MLA requests related to corruption crimes, and it has sent a
number MLA requests related to corruption crimes to foreign countries. Most of these requests areto collect evidence and confiscate corrupt assets.

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B.

Extradition
Extradition provisions are set out in the MLA Act. Extradition requests are handled inaccordance with Vietnamese law, bilateral treaties on extradition, and the principle of reciprocity.
Viet Nam has concluded numerous bilateral MLA treaties which also deal with extradition as well
as separate treaties that solely deal with extradition. The absence of dual criminality is an optional
ground for refusing extradition under Vietnamese legislation. Almost all treaties make extradition
conditional on the existence of dual criminality. No foreign extradition is executed in Viet Nam if
it seeks to extradite Vietnamese nationals. In such cases a domestic prosecution will be consideredby the Vietnamese authorities. Recent extradition treaties contain provisions on the mandatory
prosecution of non-extradited nationals at the request of the other party to the treaty. Viet Nam
would also consider the enforcement of a sentence imposed in a requesting State against a nationalof Vietnam whose extradition is refused. The MLA Act sets out in detail the procedure to befollowed and the deadlines to be met by competent authorities when deciding on extradition
requests. It also permits the person sought to be taken into custody while the extradition request is
considered. Moreover, the guarantees of fair treatment and respect of fundamental rights for all
persons subject to criminal proceedings provided for by Vietnamese law also apply to extradition
proceedings. Extraditable offences are those punishable by imprisonment of at least one year,
where the remaining imprisonment term is at least six months, or by the death penalty. Viet Nam
shall refuse extradition if it has reasonable grounds to believe that the person sought is being
prosecuted or punished on account of his or her race, religion, sex, nationality, social status, or
political opinions. The Central Authority for extradition is the Ministry of Public Security.
C.

Transfer of Sentenced Persons
The transfer of sentenced persons is regulated by the MLA Act. Viet Nam has concluded
several bilateral treaties in this field. These legal documents provide for conditions, procedures tosend, receive and execute requests for the transfer of the sentenced person.
Most recently, the Criminal Procedural Code amended in 2015 provides for international
cooperation in joint investigations and special investigative techniques. In practice, Vietnamese
law enforcement authorities cooperate regularly with their counterparts abroad in this matter.
D.

INTERPOL and ASEANAPOL
The cooperation channels of INTERPOL and ASEANAPOL are considered to beframeworks for quick and efficient exchange of information in preventing and combating crime.

V.

CASE STUDYA.

The Bio-Rad Case
In November 2014, domestic and international newspapers reported that the United States’
competent authorities were conducting an investigation against Bio-Rad Laboratories, Inc., whichis accused of making improper payments to some Vietnamese government officials during its
operation in Viet Nam. Reports from the media show that, during the period between 2005 and 2009,
the country manager of Bio-Rad’s sales representative office in Viet Nam authorized cash payments
to officials at government-owned hospitals and laboratories to obtain sales contracts for Bio-Rad- 149 -

products. This manager utilized a scheme that employs a middleman to make the payments toVietnamese officials. Specifically, Bio-Rad Singapore would sell Bio-Rad products to a Vietnamese
distributor at a deep discount, which the distributor would then sell to government-owned hospitals
and laboratories at full price, and pass through a portion of the profit as improper payments. During
the above-said period, Bio-Rad’s sales representative office in Viet Nam had made improper
payments of 2.2 million USD to the middleman or distributor, which was transferred to Vietnamese
officials, generating a turnover of 23.7 million USD to Bio-Rad Singapore.
Dealing with this allegation, the Supreme People’s Procuracy of Viet Nam (SPP) sent a letterto the US Department of Justice, asking it to share further information on the case. The US later
provided the Vietnamese authorities with a report that was available on the website of the US
Securities and Exchange Commission (SEC). The SEC has jurisdiction to deal with the case in the
US. As the information contained in the report was insufficient, the SPP again asked the US toprovide specific information on who made and received the improper payments and when/how the
improper payments were conducted. The US responded by asking the Vietnamese authorities tosubmit a formal MLA request to the US Department of Justice and the Department of State. Up tonow, there has been no response from the US side concerning this request. The SPP had several
meetings with a liaison officer of the US Department of Justice located in Bangkok to deal with therequest, and, in his position, he stated that it is difficult for the US to execute the request because
the US law considers the information sought as confidential and that the purpose of the Vietnameserequest is not clear enough as Viet Nam has not yet initiated a formal criminal investigation about
the allegation.
This case study, like other cases that Viet Nam has experienced, shows some common
challenges, specifically as follows:- Differences among legal systems: Some foreign countries ask that the content of MLA
requests follow their own domestic laws. It is practically and technically impossible to fulfill thisrequirement.
- Lack of coordination among relevant authorities: In Viet Nam, international cooperation
channels and fields are in charge of various authorities. While the Ministry of Public Security
handles extradition, the transfer of sentenced persons and police-to-police cooperation, the Supreme
People’s Procuracy deals with MLA in criminal matters and the Ministry of Justice deals with MLA
in civil matters. In this regard, these institutions work quite independently, which may cause overlap
or may undermine international cooperation.
- Lack of frequent meetings among law enforcement agencies of countries. Elements such as
international legal instruments and mechanisms cannot themselves bring about success ininternational cooperation. Goodwill, friendship and willingness must be built up before countries
can cooperate to deal with a criminal matter, and this is only improved through more frequentmeetings among judicial practitioners.

- 150 -

VI.

CONCLUSION

Although there have been numerous things to work on, international cooperation in anticorruption still has many opportunities to be successful, and it is strongly believed that the plagueof corruption is being curbed and eradicated by the international community.

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TENTH REGIONAL SEMINAR ON GOOD GOVERNANCE
PARTICIPANTS, VISITNG EXPERT & ORGANIZERS LIST

A. International Participants

Name
Ms. Norfarisah MOHD HARRIS

Title and Organization
Senior Special Investigator
Anti-Corruption Bureau
BruneiMs. Rabi'atul Khairunnisa Binti ZOFRI Assistant Special Investigator
Investigation Unit, Anti-Corruption Bureau
BruneiDeputy Director General of Judicial Development General Department
Mr. KU Khemlin
Ministry of JusticeCambodia
Assistant to Anti-Corruption Unit (Director General)
Mr. SRIN Sovann
Anti-Corruption Unit
Cambodia
Ms. Mahayu Dian SURYANDARI Coordinator at High Public Prosecution Office of Bali
Attorney General's Office
Indonesia
Public Prosecutor, Special Task Force of P3TPK Investigation Division
Ms. Ipat Fatmawati
Attorney General's Office
Indonesia
Ms. Irene Putrie
Team Head, Public Prosecutor
Corruption Eradication Commission
Indonesia
Mr. Vilavong PHOMKONG
Chief Inspection State and Anti Corruption DivisionInspection Party and State, Anti Corruption Department,
Office of the Supreme People's Prosecutor
Laos
Mr. Souphavong VANTHANOUVONG Acting Director General, Department of International Relations
State Inspection and Anti-Corruption Authority
Laos
Deputy Director 1 of Legal and Prosecution Division
Mr. Kamal Baharin Bin OMAR
Malaysian Anti-Corruption Commission
Malaysia
Deputy Public Prosecutor
Mr. Amir Bin Nasruddin
Legal and Prosecution Division, Malaysian Anti-Corruption
Commission
Malaysia
Ms. Lwin Lwin Than
Director of Training and Research Department
Union Attorney General's Office
MyanmarMr. Win Nyunt
Director of Administration Department
Bureau of Special Investigation
Myanmar- 152 -Name
Mr. Dennis Ladia GARCIA

Title and Organization

Director IV
Office of the Ombudsman
Philippines
Ms. Olivia Laroza TORREVILLAS Senior State Prosecutor
National Prosecution Service, Department of Justice
Philippines
Mr. Loh Yoon Min
Senior Assistant Director (Financial Investigations)
Corrupt Practices Investigation Bureau
Singapore
Mr. LEE Choon Khiang
Master Special Investigator
Corrupt Practices Investigation Bureau
Singapore
Provincial Chief Public Prosecutor Attached to the Office of the
Ms. Pattraporn POMMANUCHATIP
Attorney General
Office of Civil Rights Protection and Legal Aid, Srakeaw Province
ThailandPublic Prosecutor
Mr. Pakorn KUNSARA
Executive Director's Office of Economics Crime Litigation 5
Bangkok, Office of the Attorney General
Thailand
Ms. Vu Thi Hai Yen
Vice Director General
Department for International Cooperation and Mutual Legal
Assistance in Criminal Matters (Department 13)
Supreme People’s Procuracy
Viet Nam
Vice Head of Mutual Legal Assistance Division
Mr. Nguyen Hoanh Dat
Department for International Cooperation and Mutual Legal
Assistance in Criminal Matters (Department 13)
Supreme People’s Procuracy
Viet Nam

B. Visiting Expert
Name
Dr. KIM Han-Kyun

Title and Organization
Director
Center for International Cooperation in Criminal Justice
Korean Institute of Criminology
Korea- 153 -

C. Speakers and Organizers: Indonesia

Name
Dr. Bambang Waluyo
Mr. Laode M. Syarif
Mr. Sampe Tuah

Ms. Laksmi Indriyah R
Mr. Virgaliano Nahan

Mr. Nur Tjahyadi

Title and Organization
Acting Vice Attorney General
Attorney General's OfficeCommissioner
Corruption Eradication Commission
Acting Head of Yogyakarta High Public Prosecution Office
Attorney General's OfficeActing Head of Legal and International Relations Bureau
Attorney General's Office
Head Sub Division of International Organization andInternational Agreement
Attorney General's Office
Cooperation Specialist
Corruption Eradication Commission

D. Organizers: UNAFEI

Name
Mr. Keisuke SENTA

Mr. Tsuyoshi YUKAWA
Mr. Masahiro YAMADA
Mr. Thomas L. SCHMID

Title and Organization
Director
UNAFEI
Professor
UNAFEI
Professor
UNAFEI
Linguistic Adviser
UNAFEI- 154 -

Tenth Regional Seminar on Good Governance for Southeast Asian Countries“Contemporary Measures for Effective International Cooperation”

SCHEDULE
25-28 July 2016
Royal Ambarrukmo Yogyakarta
Hosts:
United Nations Asia and Far East Institutefor the Prevention of Crime and the Treatment of Offenders (UNAFEI),
Attorney General’s Office of the Republic of Indonesia (AGO),
Corruption Eradication Commission (KPK)
Monday, 25 JulyPM
Registration
Tuesday, 26 July
09.00-10.15:
Opening Ceremony – room “Kasultanan 1”
Opening Address by Mr. Keisuke SENTA, Director, UNAFEI
Opening Address by Dr. Bambang Waluyo, Acting Vice Attorney
General, AGO
Opening Address by Mr. Laode M. Syarif, Commissioner, KPK
Special Address by Mr. Kozo HONSEI, Minister (Deputy Chief ofMission), Embassy of Japan in Indonesia
Group Photo session
10.15-10.30:
Coffee/Tea Break
10.30-12.00:
Keynote Address by Mr. Keisuke SENTA , Director, UNAFEI
12.00-13.20:
Lunch – at the “Royal Restaurant”
13.20-14.30:
Special Presentation by Dr. KIM Han-Kyun, Director, Center forInternational Cooperation in Criminal Justice, Korean Institute of
Criminology
14.30-15.10:
Country Presentation (Viet Nam)
15.10-15.30:
Coffee/Tea Break
15.30-16.10:
Reception hosted by UNAFEI (the “Pendopo” room)
16.10-16.50:
Country Presentation (Thailand)
19.00-21:00:
Country Presentation (Singapore)1- 155 -

Wednesday, 27 July
09.00-09.40:
Country Presentation (Philippines)
09.40-10.20:
Country Presentation (Myanmar)
10.20-10.40:
Coffee/Tea Break
10.40-11.20:
Country Presentation (Malaysia)
11.20-12.00:
Country Presentation (Laos)
12.00-13.30:
Lunch - “Royal Restaurant”
13.30-14.10:
Country Presentation (Japan)
14.10-14.50:
Country Presentation (Indonesia)
14.50-15.10:
Coffee/Tea Break
15.10-15.50:
Country Presentation (Cambodia)
15.50-16:30:
Country Presentation (Brunei)
Thursday, 28 July
09.00-10.30:
Chairman’s Summary & Discussion
10.30-10.45:
Coffee/Tea Break
10.45-11.00:
Closing Ceremony
Closing Address by Ms. Irene Putrie, Team Head, Public Prosecutor,
KPK
Closing Address by Mr. Sampe Tuah, Acting Head of Yogyakarta High
Public Prosecution Office, AGO
Closing Address by Mr. Keisuke SENTA, Director, UNAFEI
Presentation of Certificates
11.00-12.00:
Lunch –“Royal Restaurant”
PM
Side event
17.00-19.30:
Farewell Reception hosted by AGO (at Prambanan Temple Area)
End of the Seminar2- 156 -

APPENDIX___________________________________________________________
PHOTOGRAPHS
Commemorative PhotographOpening Address by Dr. Bambang Waluyo, AGO
Opening Address by Mr. Laode M. Syarif, KPK
Opening Address by Mr. Keisuke Senta, UNAFEI
Visiting Expert’s Presentation by Mr. Han-Kyun Kim
Presentation by the Delegation from Viet Nam
Closing Remarks by Mr. Sampe Tuah, AGO (Yogyakarta)___________________________________________________________

UNAFEI- 157 -

- 158 -- 159 -- 160 -- 161 -