ELEVENTH REGIONAL SEMINAR ON GOOD
GOVERNANCE FOR SOUTHEAST ASIAN COUNTRIESBEST PRACTICES IN ANTI-CORRUPTION:
A DECADE OF INSTITUTIONAL AND
PRACTICAL DEVELOPMENT
IN SOUTHEAST ASIA
Hosted by UNAFEI
With the support of the Supreme People’s Procuracy of Viet Nam
17-19 October 2017, Hanoi, Viet Nam

UNAFEI
UNITED NATIONS ASIA AND FAR EAST INSTITUTE
FOR THE PREVENTION OF CRIME
AND THE TREATMENT OF OFFENDERS

Marc h 2018TOKYO, JAPANISBN 978-4-87033-322-2

ELEVENTH REGIONAL SEMINAR ON GOOD
GOVERNANCE FOR SOUTHEAST ASIAN COUNTRIES

Hosted by UNAFEI
With the support of the Supreme People’s Procuracy of Viet Nam
17-19 October 2017, Hanoi, Viet Nam

March 2018TOKYO, 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)
2-1-18 Mokuseinomori, Akishima-shi, Tokyo 196-8570, 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 Eleventh Regional Seminaron Good Governance for Southeast Asian Countries, which was held in Hanoi, Viet Nam from
17–19 October 2017. The Good Governance Seminar was held in Viet Nam for the first time,and, we were deeply impressed and touched by the warm hospitality afforded to us by ourVietnamese hosts.
The main theme of the Seminar was Best Practices in Anti-Corruption: A Decade of
Institutional and Practical Development in Southeast Asia. The Seminar was attended by two
visiting experts: one from the United Nations Office on Drugs and Crime (UNODC) and one
from Indonesia and 18 criminal justice practitioners from the countries of Cambodia, Indonesia,
Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Viet Nam. The
Seminar was co-hosted by UNAFEI and the Supreme People’s Procuracy of the Socialist
Republic of Viet Nam (SPP).
Corruption is a complex social, political and economic phenomenon that affects all
countries. Corruption undermines democratic institutions, slows economic development andcontributes to governmental instability. As with other regions in the world, the fight against
corruption in Southeast Asian countries has taken on an international dimension. On theoccasion of the 11th Seminar, the main theme focuses on reviewing and recognizing thedevelopments in the field of anti-corruption over the past decade and plotting a course for the
future.
The Seminar explored developments in the legal frameworks and techniques for anticorruption enforcement in the participating countries over the past decade, identified ongoingchallenges, and recommended strategies and practices to enhance enforcement efforts. Throughdiscussion of issues such as private-sector corruption and corporate criminal liability, witness
and whistle-blower protections, the legal presumption of disproportionate wealth, among
others, the participants exchanged knowledge, experiences, effective strategies, and bestpractices in the field of anti-corruption. The Chair’s Summary, published in this report, details
the key conclusions and recommendations of the Seminar. In addition, the Seminar enabled theparticipants to develop personal and professional contacts between anti-corruption authorities
and investigators in Southeast Asia.
It is a pleasure to publish this report of the Seminar as part of UNAFEI’s mission, entrusted
to it by the United Nations, to widely disseminate meaningful information on criminal justicepolicy. Finally, on behalf of UNAFEI, I would like to express my sincere appreciation to theSupreme People’s Procuracy of Viet Nam for their tremendous support in co-hosting the
Eleventh Regional Seminar.

Keisuke Senta
Director, UNAFEI
March 2018

－3－

INDEXBEST PRACTICES IN ANTI-CORRUPTION: A DECADE OF INSTITUTIONAL
AND PRACTICAL DEVELOPMENT IN SOUTHEAST ASIA
Introduction ................................................................................................................................... 5
Opening Remarks by Mr. Keisuke Senta, Director, UNAFEI ................................................. 6
Opening Address by Mr. Tran Cong Phan, Deputy Prosecutor General, Supreme
People’s Procuracy of Viet Nam ...................................................................................... 7
Keynote Address by Mr. Keisuke Senta, Director, UNAFEI ................................................. 19
Discussions and Statement
Chair’s Summary .................................................................................................................... 19
Papers and Contributions ............................................................................................................ 29
Visiting Expert, Ms. Candice Welsch, Chief, Implementation Support Section,
Corruption and Economic Crime Branch, United Nations Office on Drugs
and Crime (UNODC) ..................................................................................................... 29
Visiting Expert, Mr. Giri Suprapdiono, Director of Gratification, Corruption
Eradication Commission of Indonesia............................................................................ 42
Cambodia .............................................................................................................................. 109
Indonesia ............................................................................................................................... 120
Lao PDR ................................................................................................................................ 125
Malaysia ................................................................................................................................ 131
Myanmar ............................................................................................................................... 142
Philippines ............................................................................................................................. 152
Singapore............................................................................................................................... 182
Thailand................................................................................................................................. 196
Viet Nam ............................................................................................................................... 204
List of Participants, Speakers and Organizers ........................................................................... 213
Seminar Schedule ...................................................................................................................... 216
Appendix ................................................................................................................................... 218
Photographs ....................................................................................................................... 219－4－

INTRODUCTION

Opening Remarks by
Mr. Keisuke Senta
Director of UNAFEI***
Opening Address by
Dr. Tran Cong Phan
Deputy Prosecutor General
Supreme People’s Procuracy
Socialist Republic of Viet Nam***
Keynote Address by
Mr. Keisuke Senta
Director of UNAFEI－5－

OPENING REMARKS
Keisuke Senta*

Your Excellency, UMEDA Kunio, Ambassador of Japan to the Socialist Republic ofViet Nam, Mr. Tran Con Phan, honourable Deputy Prosecutor General of the Supreme
People’s Procuracy of Viet Nam, honourable guests, distinguished experts and participants,
ladies and gentlemen,
It is a great pleasure and privilege for me to announce the opening of the eleventh
Regional Seminar on Good Governance for Southeast Asian Countries. I would like to extend
my heartfelt welcome to our honourable guests, distinguished speakers and participants who
have come to join this significant forum.
I would like to take this opportunity to express my deepest appreciation to thegovernment of Viet Nam, especially to the Supreme People’s Procuracy of Viet Nam, fortheir great contribution and assistance in co-hosting this seminar.
I attended the first and the second Seminar 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
personally very glad to attend this eleventh seminar as the Director of UNAFEI, as well as
the tenth seminar in Indonesia last year, in the belief that this seminar has surely promotedcooperation among Southeast Asian countries for the purpose of developing effective
countermeasures against corruption.
This time, the main theme of the seminar is “Best Practices in Anti-Corruption: A
Decade of Institutional and Practical Development in Southeast Asia”. UNAFEI has hosted
the Regional Seminar on Good Governance for Southeast Asian Countries for 10 years toprevent and combat corruption in accordance with the United Nations Convention against
Corruption. I believe it is worth reviewing and recognizing the developments in the field ofanti-corruption over the past decade on the occasion of the 11th seminar.
I look forward to seeing this seminar provide a useful forum to exchange expertise andknowledge in our common endeavour against corruption, contributing further to thepromotion of good governance in Southeast Asia.
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－OPENING ADDRESS
Dr. Tran Cong Phan*

Good Morning,
Dear Mr. Keisuke Senta, Director of UNAFEI,Distinguished Guests and Delegates,
Ladies and Gentlemen,
On behalf of the Leaders of the Supreme People's Procuracy of Viet Nam, I warmly
welcome all of you to the 11th Regional Seminar on Good Governance for Southeast AsianCountries, which is held in Hanoi, the capital city of Viet Nam with over a thousand years ofhistory and the given title "City of Peace". I am very honoured to welcome all of you here to
discuss and share your views on the theme, "Best Practices in Anti-corruption: A Decade of
Institutional and Practical Development in Southeast Asia.”
I would also like to take this opportunity to express my sincere thanks to UNAFEI and its
Director for their trust and cooperation with the Supreme People's Procuracy to co-host thisSeminar.
As you know, UNAFEI has consistently companioned the Southeast Asian nations
through the regional seminar series for good governance over the past decade. It has created an
important legal forum where specialists, speakers and delegates from the ASEAN andinternational organizations are allowed to discuss and share their in-depth legal knowledge andskills in combating corruption, improving governance, and promoting integrity in governmental
systems in accordance with the rule of law.
Ladies and Gentlemen,
It came to my attention that delegates from other countries in the region have discussed
topics related to good governance over the past 10 seminars, including issues such as:strengthening the capacity to investigate, prosecute and adjudicate corruption cases; improveadministrative and criminal justice measures to prevent corruption crimes; protect witnesses andinformants of corruption crimes; international cooperation through criminal mutual legal
assistance and extradition in an effort to handle corruption; and difficulties and obstacles forinvestigation, prosecution, trial of corruption crimes. This 11th Regional Seminar will be an*

Deputy Procurator General, Supreme People’s Procuracy of Viet Nam.

－7－

opportunity for us to evaluate, share experience and best practices to combat corruption as theabove-mentioned theme of the workshop.
Ladies and gentlemen,
In Viet Nam, corruption prevention is a responsibility shared by the whole politicalsystem and it is an important, urgent and long-term task throughout the whole process ofaccelerating socio-economic development and building the state on the principal of the rule oflaw.
Over the past 10 years, the anti-corruption framework has been improved. Compared to
the 2009 Code, the 2015 Penal Code expanded the scope of criminal offences in the private
sector to criminalize the act of bribing foreign public officials and employees from internationalorganizations. The 2005 Law on Preventing and Combating Corruption was also amended in2012 with the additional regulations to encourage public disclosure and transparency in theactivities of agencies and organizations and government bidding and procurement. This law will
be further amended in the coming 4th Plenary Meeting of the 14th National Assembly thisOctober. In addition, the Judicial Department also promulgated many laws relating togovernance to prevent abuse of power and misuse of public property for personal gain, such as:
the Law on Thrift Practice and Waste Combat (Law No. 44/2013); the Bidding Law (Law No.
43/2013); the Urban Planning Law (Act No. 30/2009).
In order to fight corruption, in 2009, the Government of Viet Nam also issued the
National Strategy for Preventing and Fighting against Corruption by 2020, which introduced
solutions to promote public disclosure and transparency in policymaking, legal development andimplementation; to perfect the economic management mechanism; to increase the efficiency ininvestigating, prosecuting and adjudicating corruption offenders; to raise awareness and promote
the role of the whole society in the fight against corruption.
In the effort to curb corruption, the People’s Procuracy of Viet Nam has prosecuted many
serious corruption cases involving major corporations, government-owned and joint stockcompanies, which seriously caused economic damage and drew public attention. In some ofthese cases, the criminals tried to flee and transfer assets acquired through illegal acts, bribery
and embezzlement to other countries. Therefore, international cooperation and mutual legal
assistance in criminal matters are needed to deal with such crime. As the central authority formutual legal assistance in criminal matters, the Supreme People’s Procuracy of Viet Nam desires
to strengthen relations with judicial agencies in other countries to deal with crime, especiallycorruption, more effectively in the future.
For this reason, I am hopeful that the 11th Regional Seminar on Good Governance forSoutheast Asian Countries held in Hanoi will be a great success. Finally, I wish the Director of
UNAFEI and the distinguished guests and delegates good health, happiness and success. Thank
you.

－8－

KEYNOTE ADDRESSELEVENTH REGIONAL SEMINAR ON GOOD GOVERNANCE FOR
SOUTHEAST ASIAN COUNTRIES
Keisuke Senta*I.

INTRODUCTION

This Good Governance Seminar has entered a new decade. First and foremost, I would
like to express my heartfelt gratitude to all the representatives of all countries who have been
involved in the planning and implementation of the sessions since the inception in 2007,
without whom the continuation of this Seminar would have never been possible. And myspecial thanks this time goes, of course, to the members of the Supreme People’s Procuracy ofViet Nam for co-hosting this eleventh Seminar and also for their willingness to co-host the next
Seminar here in this dynamic and beautiful land.
While it is indeed a great honour and pleasure for me to deliver the keynote speech atthis quite important event, I am afraid that this time, I must start with rather sad news. We losta prominent gentleman who was greatly influential in making the GG Seminar a reality. Mr.
Keiichi Aizawa, who served as UNAFEI Director from 2006 to 2009 and whom we candescribe as the founder of this GG Seminar, suddenly passed away on the 21st of July this year.
Having retired from prosecution in 2013, he had been working as a notary public in Tokyo. He
was 63 years old and his untimely departure was really a shock to us. Maybe some of you
remember the first two GG Seminars held in Bangkok which Mr. Aizawa organized. I
remember well. At those times, I was working for the UNODC Regional Centre for East Asiaand the Pacific in Bangkok which was one of the co-hosts of those seminars and had thepleasure to attend the sessions and speak. The good planning and fruitful results of the GG
Seminars are truly attributable to Mr. Aizawa. We owe him so much. We pray that his soul may
rest in peace.
Now, this year, upon consultation with our partner, the Supreme People’s Procuracy ofViet Nam, we entitled the seminar “Best Practices in Anti-Corruption: A Decade of Institutionaland Practical Development in Southeast Asia”. Actually, ten years is not a short time, and wehave seen a lot of development in the field of anti-corruption in the Southeast Asian Region –for me personally, maybe the biggest event was the recent acceptance of the United Nations
Convention against Corruption (UNCAC) by Japan, together with the United Nations
Convention against Transnational Organized Crime (UNTOC), because I, myself, was involvedin the UNTOC negotiations at the UN–which we are eager to discuss over the next couple ofdays. But for the sake of streamlining this keynote address, I would like to start by briefly
revisiting the discussions we have had at this forum during the past decade, and then try to lay
down a rough overview on what has happened in the Southeast Asian region and Japan, in
terms of legislation and practice relating to the fight against corruption. And lastly, I would liketo make some brief personal comments on the future of anti-corruption in this region and on
the future of this GG Seminar.
Director, United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of
Offenders (UNAFEI).

*

－9－

II.

THE PAST DECADE OF THE GG SEMINAR

The commencement of the GG Seminar back in 2007 reflected the considerable needfor effective countermeasures against corruption, which has been plaguing many countries in
the Southeast Asian region. As cited by Mr. Akira Fujino, the then representative of the
UNODC Regional Centre for East Asia and the Pacific in his speech at the first GG Seminar in
Bangkok, Mr. Kofi Annan, the UN Secretary General at the time of the adoption of UNCAC in
2003, stated that corruption “….is found in all countries – big and small, rich and poor – but it
is in the developing world that its effects are most destructive. Corruption hurts the poor
disproportionately – by diverting funds intended for development, undermining a government’s
ability to provide basic services, feeding inequality and injustice, and discouraging foreign
investment and aid. Corruption is a key element in economic under-performance, and a major
obstacle to poverty alleviation and development.” Participants of the first GG Seminar and thesubsequent seminars have shared the same thought that corruption is not just immoral, butcauses serious and tangible damage to all countries and societies, especially to those striving
for sustainable development. And regrettably, after a decade, it still does.
A.

The First Seminar (Bangkok)
With a global consensus that something must be done, the GG Seminar, co-hosted by
UNAFEI, the Office of the Attorney General of the Kingdom of Thailand and the UNODC
Regional Centre for East Asia and the Pacific under the auspices of the Japan International
Cooperation Agency (JICA), started in December 2007. The topic was “Corruption Control in
the Judiciary and Prosecutorial Authorities” which was a serious issue, because, as late Mr.
Aizawa appropriately pointed out at that time in his introductory remarks , “the integrity andautonomy of the judiciary and the prosecutorial authorities is the cornerstone for securing therule of law and maintaining the confidence of the general public in the judiciary.” If the
judiciary and prosecutorial authorities which exercise decisive powers to check the legality andimpartiality of any action by the state and its people, and are therefore expected to be cleaner
than everyone else, are infected by corruption, the outcome will, of course, be devastating. Ruleof law will perish, and the people will lose faith in their last resort against corruption.
The participants of the first Seminar engaged in intensive discussions on every
conceivable issue with respect to this very challenging topic and came up with eighteen
recommendations aimed at building and improving a robust, integral and corruption free
judiciary and prosecution, all of which are relevant to all participating countries regardless ofthe differences in their systems and the significant variation of forms and manifestations ofcorruption in different jurisdictions.
B.

The Second Seminar (Bangkok)
We gathered again in July 2008 in Bangkok for the second Seminar, again co-hosted by
UNAFEI, OAG Thailand and the UNODC, to discuss another area-focused issue, which was“Corruption Control in Public Procurement”. It is well known that the area of public
procurement is especially vulnerable to corruption because the process is one in which bigmoney and discretionary power converge. Many of the notorious cases involving themisappropriation of huge amounts of state property, bribery, bid rigging, etc. are found in public
procurement.
While discussing the criminal justice response to corrupt acts and deeds of culprits－ 10 －

distorting public procurement, the participants also focused on the administrative scheme andpractices for prevention of wrongdoing in the procurement procedure. They recognized thatcomprehensive preventive measures such as clear regulations and transparent procedures arenecessary. The seventeen recommendations stressed, among others, the necessity of enhancing
cooperation between the criminal justice authorities and other governmental authorities suchas taxation, auditing and competition authorities as well as networking and cooperation withprivate sector specialists such as certified accountants and engineering experts. Also, the vital
importance of international cooperation was also underlined.
C.

The Third Seminar (Manila)
The GG Seminar moved its venue in September 2009 to Manila where the Departmentof Justice of the Republic of the Philippines kindly co-hosted the event together with UNAFEI
and the UNODC. There, the topic became much more specific and technical, namely“Measures to Freeze, Confiscate and Recover Proceeds of Corruption, including Prevention of
Money-Laundering”. This topic, which is still today attracting much attention throughout theworld, covered a wide range of systems, practices and techniques, all aimed at identifying,tracing and freezing proceeds of crime, depriving perpetrators thereof and returning the assets
to where they belong.
At this session, a presentation made by a visiting expert from the World Bank attracted
much attention. He explained the cutting-edge techniques and system promoted worldwide by
the Stolen Asset Recovery (StAR) Initiative, a framework launched by the World Bank and the
UNODC. The quite comprehensive recommendations included, among others, useful concepts,
systems and techniques for efficient asset recovery actions such as “politically exposed persons(PEPs)”, the integration of anti-money-laundering and the anticorruption agenda, nonconviction-based forfeiture and more. Since the discussion at this session was very much
focused on international aspects of asset hiding and money laundering, the participants again
stressed the importance of international cooperation among concerned authorities andstakeholders as well as the proper utilization of financial intelligence. The issue of asset
recovery and international cooperation has continued to attract attention of subsequent GG
Seminar participants, and they were repeatedly brought to the table during further Seminars.
D.

The Fourth Seminar (Manila)
The second GG Seminar in Manila, co-hosted by UNAFEI and the DOJ of thePhilippines and conducted in December 2010, also focused on the very specific subject of
witness and whistle-blower protection. Whatever the differences in their respective legal
systems may be, countries face difficulties in striking a balance between the due process of law
protecting the rights of suspects and defendants and the protection of witnesses and whistleblowers. While the protection of witnesses is more seriously considered and discussed in thecontext of organized crime and terrorism, it is equally crucial in the area of the criminal
response to corruption, especially systemic and grand corruption where powerful andinfluential politicians and high-ranking officials are involved. Some of these offenders may
even have connections with organized crime members or gangs. Whistle-blower protection is
also important for the detection of corrupt practices, especially in the business sector.
The participants intensively discussed what effective criminal procedures for witness
and whistle-blower protection should look like, and how they should be implemented. They
found out that the level of development of such procedures significantly varies fromjurisdiction to jurisdiction, depending on various factors including the fundamentals of theirsubstantive and procedural criminal law as well as the human and financial resources they are－ 11 －

able to mobilize. Still, the participants were able to agree on what should be promoted, andmade recommendations in areas such as protection by the police, procedural protection, witness
protection programmes and so on.
E.

The Fifth Seminar (Tokyo)
UNAFEI was truly honoured and delighted to host, with the support of the Ministry ofForeign Affairs of Japan, the fifth GG Seminar in Tokyo and to welcome participants to its
premises in December 2011. At this occasion, we broadened the scope of discussion to try toobtain a macroscopic view on the prevention of corruption. Under the title “Preventing
Corruption – Effective Administrative and Criminal Justice Measures” participants were asked
not to limit their explanations and opinions to the area of criminal investigation, prosecution
and adjudication, but to introduce their own good practices in the area of prevention whereadministrative and educational measures play important roles. Thus, there was much to talkabout. Besides discussing criminal justice measures, the exchange of information and opinions
went on to, for example, public education, administrative measures and systems for eliminationof risks of corruption, international and domestic anti-corruption policies and public-private
cooperation and partnership.
As a final result, participants shared common views on several points. They all agreed
that early ratification and full implementation of UNCAC is important. Further, there wascommon understanding that criminal justice alone cannot cope with corruption; it is just one
part of the overall efforts and endeavours to eradicate corruption – preventive measures andenforcement must go hand in hand. Strategies that can limit opportunities for corruption bypromoting efficiency, transparency and accountability of governmental business are important.
Still, the criminal justice response plays a major role in the deterrence of corrupt practices, and
we all should learn from international and foreign good practices.
F.

The Sixth Seminar (Tokyo)
In accordance with the customary practice of holding the GG Seminar in the same
country for two consecutive years, another seminar was held at the Ministry of Justice of Japanin December of the following year, 2012, again with the support of the Ministry of Foreign
Affairs of Japan. Since the GG Seminar is an international gathering, it was quite natural thatparticipants were interested in discussing international cooperation in the field of criminal
investigation, prosecution and adjudication, given the fact that crimes of corruption often havetransnational elements. Apprehending the culprits and securing evidence in foreign
jurisdictions are crucial matters, but it seems that, despite of the development of mutual legal
assistance and extradition, on which UNCAC places much importance, effective
implementation of MLA and extradition still remains as a bottleneck for every country in theregion. Therefore, the topic of this sixth Seminar was “International Cooperation: Mutual Legal
Assistance and Extradition”.
Each country explained its own system of MLA and extradition and shared practicalinformation that was ready for immediate use in the submission of MLA or extradition requests.
A good example is that the Malaysian participants kindly shared with us model forms which
could be used to request assistance or extradition from Malaysia. Some other participants
shared with us highly interesting case studies of MLA and extradition. Thus, the Seminarprovided the participants with practical knowledge and a very precise understanding of theprocedures for MLA and extradition requests.

－ 12 －G.

The Seventh Seminar (Kuala Lumpur)
In December 2013, the Malaysian Anti-Corruption Commission (MACC) and the
Malaysian Anti-Corruption Academy (MACA) generously co-hosted with UNAFEI theseventh GG Seminar in Kuala Lumpur. Upon consultation with our co-hosts, we chose the topic“Enhancing Investigative Ability in Corruption Cases”. Although we should never neglect theimportance of education or administrative measures to eliminate the opportunity for corruption,
the criminal justice response – bringing perpetrators to justice – is undoubtedly one of the mostpowerful measures to deter corruption, and towards that end, expedient and thoroughinvestigation is of course indispensable. And, since crimes of corruption are generally hiddenfrom public view and often hard to uncover, investigators have to be equipped with a high levelof knowledge, skills and practical techniques: finding leads, acquiring necessary informationand evidence through the proper and lawful use of modern techniques such as wiretapping,
sting and undercover operations, analysing bank records, accounting books and so on.

The participants learned a lot from the lectures delivered by visiting experts such as
experienced officers from two of the most successful independent anti-corruption agencies in
the Southeast Asian region: the Corrupt Practices Investigation Bureau (CPIB) of Singapore
and the Independent Commission Against Corruption (ICAC) of Hong Kong. They also weremuch inspired by an American expert who shared the U. S. perspective and explained various
investigative tactics including wiretapping and the pros and cons of “cooperation plea
agreements”. Based upon a proactive exchange of valuable information, the participants further
discussed which investigative measures would be useful in their respective jurisdictions.
Although an effective tool in one jurisdiction may not always be a fit for use in another, or may
even be regarded as unlawful, participants obtained useful knowledge from each other, andgained insight on how they might modify and adapt certain tools or techniques used in otherjurisdictions into their own systems.
H.

The Eighth Seminar (Kuala Lumpur)
Once again, MACC, MACA and UNAFEI co-hosted the GG Seminar in Kuala Lumpur,
in November 2014. The co-hosts were delighted that for the first time all 10 ASEAN members
were represented at this forum. This time, the seminar also focused on the criminal justiceresponse to corruption, but from a broader perspective including prosecutorial and judicial
matters. While a brief comparative study compared the anti-corruption approaches of countries
having independent or specialized anti-corruption agencies with countries that use
conventional investigation and prosecution forces, the participants also looked into rather
technical matters at the prosecution stage and trial process, such as the admissibility of certain
types of evidence, including digital evidence, as well as proper witness examination, etc.
Presentations by the learned experts from Korea and Hong Kong helped the participants to gaina better understanding as to these issues. The subject of international cooperation was also
revisited and intensively discussed.
The participants were asked to bring, insofar as was possible, actual cases they have
handled and explain what difficulties they had experienced and what might have been the key
to successful disposition and adjudication of such cases. Many interesting and inspiring casestudies were brought to the table and different views were shared. The participants were
reminded of the challenges that arise in proving a corruption case involving international
elements, and that in order to overcome these challenges, investigators and prosecutors mustbe fully equipped not only with investigative techniques, but also with a high level of legal
skills.

－ 13 －I.

The Ninth Seminar (Jakarta)
In November 2015, the venue of the GG Seminar went further down south, across theequator, to the capital city of the Republic of Indonesia, where we all were welcomed by our
co-hosts, the Corruption Eradication Commission (KPK) and the Attorney General’s Office(AGO) of Indonesia. The theme of discussion was “Current Challenges and Best Practices in
the Investigation, Prosecution and Prevention of Corruption Cases – Sharing Experiences andLearning from Actual Cases”. Since the GG Seminar mainly targets practitioners in this fieldrather than policymakers or legislators, it naturally focuses on practical issues and actual
experiences and tries to learn lessons therefrom. Although a wide range of issues could havebeen covered under this theme, the discussion circled around some the most contemporary
challenges in the anti-corruption area which all participants showed a strong interest in –international cooperation, asset recovery and public-private partnership.
After intensive discussions, the participants came to the conclusion that although allcountries have proper legal frameworks to implement international assistance, it is of vital
importance that related agencies actively exchange information not only though formal
channels, but also informally. In the area of asset recovery, the participants recognized the wide
gaps that exist between different systems and jurisdictions and recommended that domestic
legislation should be further improved and that anti-corruption practitioners should establish
closer relationships with counterparts in other jurisdictions. They also stressed the importanceof a good relationship with the private sector and agreed that further innovative efforts should
be done while duly taking into account the legitimate rights and interests of private businesses
and enterprises.
J.

The Tenth Seminar (Yogyakarta)
Our co-hosts, the AGO and the KPK of Indonesia were so kind to invite the GG Seminarin July 2016 to the beautiful, ancient city of Yogyakarta. There, the Seminar picked up the topic
of international cooperation again, entitling the session “Contemporary Measures for Effective
International Cooperation”. But it was of course not a repetition of the past seminars. This time,straightforwardly focusing on real challenges countries are facing in terms of international
cooperation including information sharing, mutual legal assistance and extradition, theproblems and solutions were explored in much greater depth. Interesting case studies werebrought to the floor from every participating country and good practices were shared.
Although bottlenecks still remain in the implementation of cooperative cross-borderactivities it seems that the situation is gradually improving. The numerous examples ofsuccessful cooperation introduced in the session by the participants were quite encouraging. At
the end of the seminar, the participants shared a common view that, in the modern era where
technology facilitates the rapid transfer of communications, funds and people all around theworld, corruption investigation becomes more and more complex and time consuming. In order
to cope with this situation, informal information sharing among investigators should be further
enhanced, and MLA should be utilized in a more skillful way. Effective cooperation is not only
needed between investigators. Cooperation and mutual understanding are needed between
prosecutors and investigators, domestically and internationally. The participants also agreed
that international asset recovery remains a major challenge, and relevant officers should further
enhance their skills and abilities by making use of trainings, technical assistance and thedevelopment of professional networks.

－ 14 －

III.

DEVELOPMENTS

In the past ten years, while the GG Seminar continued its active discussions anddialogue, noteworthy development in the area of legislation and practice was observed in theSoutheast Asian region, and many of these developments were reported and introduced by theparticipants of this Seminar. Let’s take a quick look.
First of all, I must say that the past decade can be described as the “UNCAC decade”
for Southeast Asia, because it was in this decade that UNCAC entered into force in all eleven
Southeast Asian countries, including Timor-Leste. Although many of these countries had
already signed UNCAC in 2003, it took more time for these countries to ratify it, and following
the relatively early ratification by the Philippines and Indonesia in 2006, shortly before thebeginning of the decade I am talking about right now, countries started to ratify, or accede to
the convention, one after another. Finally, with the ratification by the Union of Myanmar, allSoutheast Asian countries became members of UNCAC.
This of course led to accelerated legislative movements here and there. Some countries
established special anti-corruption units or institutions, while others came up with new piecesof legislation aimed at strengthening capabilities to investigate and prosecute crimes ofcorruption. Another important development is that in many countries in this region, theinvestigators, prosecutors and judges experienced large-scale investigation, prosecution andadjudication of corruption cases, including the tracing, seizing and forfeiting of stolen assets
and proceeds of crime, and thereby further accumulated experience and enhanced theirprofessional skills. Even by briefly going through the reports of our participants which werekindly sent to UNAFEI in advance to the commencement of this Seminar, I was almost
overwhelmed by the dynamic and powerful movement this region made in the past decade. I
delightfully expect that each of our learned participants will, in the next couple of days, sharewith us all the precious experiences his/her homeland has gained so that we can together discuss
what we can extract from such experiences.
A good example of having set up a new anti-corruption body in the last decade would
be Malaysia. The Malaysian Anti-Corruption Commission, known as MACC, was created bya new anti-corruption law in 2009, and since then, achieved remarkable results and, therefore,
is enjoying a very high level of prestige. Our Malaysian delegates will surely tell us about the
MACC’s success and experiences. Another example, Cambodia, about which we will hear verysoon from our Cambodian colleagues, has also something to be proud of, I’m sure. Based on
the new criminal procedure code and the criminal code enacted in 2007 and 2009, respectively,a rather powerful organization, the Anti-Corruption Institution with its two sub-organizations,
the National Council against Corruption and the Anti-Corruption Unit, was created in 2010 andseems to be in full gear now. Later, in 2014, the Union of Myanmar also formed an AntiCorruption Commission which is responsible for implementing the new 2013 Anti-Corruption
Law. We are eager to hear from our Myanmar delegates about its progress so far.
Legislative developments have been observed in many jurisdictions. In addition to
promulgation of and amendments of laws, attention should also be drawn to subordinate legal
normative documents such as decrees and orders which push anti-corruption activities forward,
not only in the area of the criminal justice response, but also in the administrative area and interms of public participation and awareness raising. Another important development, especiallyfor practitioners, is in the area of jurisprudence, where the judiciary adopted new ways tointerpret certain provisions of existing laws and regulations.

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Here, inspiring examples will be introduced by our fellow participants from various
countries. For example, Malaysia did not only enact the new Anti-Corruption Commission Law
in 2009, but in the same year and the following year, it seems to have promulgated the Witness
Protection Act and the Whistleblower Protection Act. The Philippines, seemingly encouraged
by UNCAC, is coping with various issues and challenges by issuing a number of Executive
Orders, which is a quite interesting measure for us all to learn about the details. Thailand also
seems to have undergone several amendments of laws related to anti-corruption, such as the2015 Organic Act on Corruption, which authorizes their anti-corruption body, the National
Anti-Corruption Commission (NACC), to engage in mutual legal assistance with othercountries. Singapore, despite being a country which is advanced farther than any country inthis region, is not standing still either. In order to make the country even cleaner and more
integral, they seem to have made use of the concept of “high-risk officials” and introduced
rules relating to public officers. Our participants from Singapore will also tell us about thesentencing policy of its apex court with respect to private sector corruption, which is extremelyinteresting and inspiring for practitioners. Our Indonesian delegates will explain to us the very
interesting action taken by the Supreme Court of Indonesia in 2016, which established a seriesof rules relating to corporate liability in cases of corruption.
In the area of practice, our co-host, Viet Nam, seems to have gained invaluable
experience by pursuing justice in a number of large-scale corruption cases over the past decade.
Among them, they will kindly share with us their experiences and information concerning
property misappropriation cases, where much has been done in mutual legal assistance andasset recovery practice, achieving good results. The Lao People’s Democratic Republic, with
its quite unique scheme of anti-corruption operations involving much administrative action andwith the 2012 amendment of its anti-corruption law, seems to be steadily moving forward by
experiencing a large number of actual cases in the area of infrastructure projects. We are eager
to hear the Laotian good practice for the suppression of corruption. It is a bit sad that, this year,
we do not have the opportunity to hear from our Bruneian friends, but we know from theirpresentations they gave us in the past sessions that Brunei is also making progress by
successfully implementing mutual legal assistance in corruption investigation, especially incollaboration with their Singaporean and Malaysian counterparts.
Of course, the developments I have just mentioned are just a small sample, and I am
sure we will hear much more from our learned participants during this Seminar, and mostimportantly, get to know each other better.
IV. CHALLENGES
In spite of the pious efforts made by each country gathered here today, challenges still
remain. Although all countries in this Southeast Asian region are members of UNCAC, full andproper implementation is not so easy. Some of your countries may already have experienced
its review process. And corruption does not seem to vanish. Grand corruption crimes are beingcommitted in more skillful ways than ever before, and with their transnational dimensions plus
the use of modern technology by the perpetrators, detection, investigation and prosecution
become even more difficult. Challenges and bottlenecks are everywhere. Setting aside thegeneral causes which hinder effective anti-corruption activities just like any other activities
aimed at social development, such as lack of political will and insufficient financial and humanresources, we, criminal justice practitioners, have to face our own problems in the criminal
justice area. These may include, among other things, insufficient investigation skills,
insufficient legal and physical tools to collect admissible evidence, poor interaction between－ 16 －

intelligence and criminal justice officials, differences in systems and practices in cases
involving international elements requiring mutual legal assistance, low level of public
understanding and uncooperative attitudes; the list may go on, and we will hear from ourparticipants numerous concrete problems and challenges they face in discharging their duties
as anti-corruption officers. Nevertheless, all of us share the common desire to find solutions tothese problems and challenges.
As the keynote speaker, I am not quite able to give you clear answers. It is the task of
all of us gathered here to place our collective knowledge, skills and wisdom on the table, tostreamline them, and to distill them to a state in which they are useful for each of theparticipants in their own contexts. The GG Seminar is designed to enable each participant toaccess information and knowledge of other countries and make full use of them.
V. CONCLUSION
Looking back at the decade of this GG Seminar and revisiting the discussions by going
through the records, I am quite confident that the past discussions were helpful for us all. I
would recommend that you read the UNAFEI reports again. You will find that, in those reports,
there are clues which may lead to solutions to the problems and obstacles you are, or will be,
facing in the course of your fight against corruption in your own jurisdiction. And I expect thatthe discussions this year will have the same function as an intellectual asset for each one ofyou. With the cooperation of nine participating countries, the discussion will be a rich one.
Indeed, the beauty is that so many countries come together and cooperate. No one is alone in
the fight against corruption. We are together.
Expressing my sincere hope and expectation for successful and fruitful discussions at
this GG Seminar and my heartfelt thanks to all of the participants for coming, and again mydeepest gratitude to the Supreme People’s Procuracy of Viet Nam for co-hosting this Seminar
here in this beautiful “City of the Rising Dragon”, I would like to conclude my keynote address.
Thank you for your kind attention.

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－ 18 －

CHAIR’S SUMMARY－ 19 －

CHAIR’S SUMMARY
Eleventh Regional Seminar on Good Governancefor Southeast Asian Countries
Hanoi, Viet Nam
17 – 19 October 2017

GENERAL
1. The Eleventh Regional Seminar on Good Governance for Southeast Asian Countries, co-hosted
by the Supreme People’s Procuracy of Viet Nam (SPP) and the United Nations Asia and Far
East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) was heldat the Melia Hotel in Hanoi, Viet Nam from 17 to 19 October 2017. Mr. Keisuke Senta, Directorof UNAFEI, served as the Chair of the Seminar.
2. Officials and experts from the following jurisdictions attended the seminar: 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 Republic of Singapore, theKingdom of Thailand and the Socialist Republic of Viet Nam.

OPENING CEREMONY
3. Mr. KEISUKE SENTA, Director of UNAFEI and Dr. TRAN CONG PHAN, Deputy Procurator
General delivered opening addresses, welcoming the participants to the Eleventh Good
Governance Seminar, focused on the theme of Best Practices in Anti-Corruption: A Decade of
Institutional and Practical Development in Southeast Asia, and emphasizing the importance ofreviewing and recognizing advancements in anti-corruption practices through the sharing of
knowledge, skills and strategies from the ASEAN region and beyond.
4. His Excellency, KUNIO UMEDA, Ambassador Extraordinary and Plenipotentiary of Japan to theSocialist Republic of Viet Nam, delivered a special address welcoming the participants andexpressing his gratitude to the SPP and UNAFEI for holding this important seminar, notingthat the rule of law and good governance contribute directly to the development, prosperity andstability of the ASEAN region. Ambassador Umeda concluded by observing that this Eleventh
Good Governance Seminar is an excellent opportunity to review developments in anticorruption practices over the past 10 years and to establish a roadmap for the future.

KEYNOTE ADDRESS
5. DIRECTOR SENTA delivered his keynote address, extending his thanks to all of the participantsand visiting experts who have contributed to the success of the Good Governance Seminarsince 2007 and to the SPP for their support in hosting this year’s Seminar. Director Senta also
reported the untimely passing of former UNAFEI director, Mr. Keiichi Aizawa, the founder of
the Good Governance Seminar and chair of the first Seminar in 2007, extending his
condolences to Mr. Aizawa’s family and all those who knew him. Yet Director Senta also had－ 20 －

some very positive news to report—Japan’s acceptance of the United Nations Convention
against Corruption and the United Nations Convention against Transnational Organized Crime
earlier this year. Since it was first held in Thailand in 2007, the Good Governance series has
reflected the issues and trends facing anti-corruption practitioners in Southeast Asia. Director
Senta summarized each seminar, noting the overall themes addressed: controlling corruption
in the judiciary and prosecution (first), public procurement (second), asset recovery (third),
witness and whistle-blower protection (fourth), prevention (fifth), mutual legal assistance andextradition (sixth), investigation (seventh), adjudication (eighth), anti-corruption case studies(ninth), and international cooperation (tenth). Describing the past ten years as the “UNCAC
decade”, Director Senta noted that this period has been particularly significant in Southeast
Asia, as all countries in the region became parties to UNCAC. In turn, the adoption of UNCAC
facilitated efforts to enact legislation criminalizing corruption and setting national strategies
and administrative mechanisms to counter corruption, such as the establishment of dedicatedanti-corruption agencies in many countries. Other developments include enhancements inmutual legal assistance, witness and whistle-blower protection, rules pertaining to public
officers, and private sector corruption and corporate liability, as well as the wealth of practicalexperience gained by all countries in combating corruption. Despite the tremendous efforts in
the region, much more work remains to be done. Grand corruption crimes are being committed
in more skillful ways than ever before. The transnational dimensions of corruption coupledwith the use of modern technology has made detection, investigation and prosecution evenmore difficult. Further challenges to combating corruption include insufficient investigation
skills, insufficient legal and physical tools to collect admissible evidence, poor interaction
between intelligence and criminal justice officials, differences in systems and practices in cases
involving international elements requiring mutual legal assistance, and low levels of public
understanding and uncooperative attitudes. As these and other challenges remain, the Good
Governance Seminar remains an important forum for anti-corruption practitioners to share bestpractices and explore solutions to the challenges that hinder anti-corruption efforts.

VISITING EXPERTS’ LECTURES
6. MS. CANDICE WELSCH, Chief, Implementation Support Section, Corruption and Economic
Crime Branch, United Nations Organization on Drugs and Crime, delivered her lecture on the
topic of the UNODC’s Anti-Corruption Work over the Last Decade, introducing the United
Nations Convention against Corruption, global efforts to implement the Convention, and the
UNODC’s anti-corruption activities. On the global level, the adoption of the Sustainable
Development Goals in 2016 is significant in that Goal 16 on “peace, justice and strong
institutions” recognizes that anti-corruption efforts are necessary to achieve sustainable
development, and Goal 16 firmly establishes anti-corruption as a global priority. UNCAC, with
183 States parties, remains the global standard in anti-corruption policy, and the Convention
establishes binding legal principles to prevent corruption, harmonize corruption crimes,
enhance international cooperation, and facilitate asset recovery. Among the many important
provisions of the Convention, Chapter V on Asset Recovery is particularly significant in thatit establishes the return of assets as a fundamental principle. UNCAC also establishes a numberof bodies, including the Conference of the States Parties and working groups, that focus on
implementation and overcoming challenges. Furthermore, the Implementation Review
Mechanism is an inter-governmental peer-monitoring process whereby the status of
implementation of the Convention in each member country is reviewed by two peers. Amongother purposes, this process enables countries to make legislative and other improvements andto identify technical assistance needs. Ms. Welsch reported that in the first cycle of－ 21 －

implementation review, 3,583 needs for technical assistance have been identified, with thehighest number of needs focusing on witness protection. Other key needs include mutual legal
assistance, extradition, law enforcement cooperation, advanced investigation techniques, andwhistle-blower protection. Seminars like the Good Governance Seminar are important
opportunities for practitioners to identify challenges and propose solutions (South-South
Cooperation). The UNDOC is pursuing a number of initiatives to facilitate good governance,
including the promotion of public-private partnership, combating wildlife crime, establishingintegrity in the criminal justice system, and sports integrity. Another key initiative of the
UNODC is to encourage appropriate anti-corruption education from primary school throughuniversity education to instil the understanding and adoption of values that promote a
corruption free society. Ms. Welsch encouraged practitioners to utilize the UNODC’s resources,
including the MLA Request Writer Tool to facilitate the drafting of mutual legal assistancerequests. The UNODC has partnered with the World Bank to establish the Stolen Asset
Recovery Initiative (StAR) to provide assistance and training for asset recovery, and offers
legal databases, e-learning tools, and publications which can be accessed at:
http://www.unodc.org/corruption and http://www.track.unodc.org.
7. MR. GIRI SUPRAPDIONO, Director of Gratification, Corruption Eradication Commission (KPK)
of Indonesia, delivered his lecture on the topic of the KPK Indonesia: Experience,
Achievements and Challenges in Combating Corruption for a Decade. Corruption in Indonesia
had been rampant for decades, and many problems persist as demonstrated by the prosecutionof high-level officials. In response, the KPK was established in 2002, and it operates under thethree-pronged approach of enforcement, prevention and public participation. The KPK’s duties
include coordination, supervision, monitoring, and prevention. Unlike the other anti-corruption
agencies that preceded it, the KPK is independent from the executive branch of government.
The KPK is authorized to conduct investigations into corruption crimes, but it also has theauthority to prosecute certain cases before the special anti-corruption court. Indonesia is ranked
90th on Transparency International’s Corruption Perception Index, but its score has increased
steadily over the past decade. As of 30 June 2017, the KPK boasts a 100% conviction rate
resulting in 670 convictions, including minister-level officials, members of parliament,
ambassadors, governors, mayors, and so on. The most common crime prosecuted by the KPK
is bribery, followed by crimes related to procurement and misappropriation of budget. In
bribery cases, the KPK emphasizes the importance of catching offenders red handed, often
using informants to generate leads. Pre-trial procedure in the criminal court, which is arguably
not intended to address the substance of a case, is a significant challenge for the KPK, as
enterprising defence lawyers have succeeded in persuading judges to dismiss some corruption
cases prior to referral to the special anti-corruption court. The KPK uses its unique powers toinvestigate corruption, including intelligence-based investigations and search and seizure
without the need for a court order, and suspects are obliged to provide information on theirassets. At the same time, the KPK is prohibited from stopping an investigation mid-stream. To
prevent corruption, the KPK is working on a number of initiatives, pursuing a holistic approach,which includes, among others, bureaucratic reforms and raising pay for government officials.
To prevent bribery, the KPK has adopted an approach to engage youth, women and netizens,
as well as promoting anti-bribery messaging through endorsements from pop stars. Mr.
Suprapdiono introduced a number of cases that demonstrate the fierce resistance from thoseengaged in corruption, including the fabrication of false allegations of corruption against the
KPK commissioner, faking hospitalization in order to avoid trial, and the threating and assault
of KPK investigators, including an acid attack which has left one investigator permanently
disabled and disfigured. Despite these and many other serious challenges to anti-corruption
enforcement in Indonesia, the KPK remains dedicated to leveraging its strengths with the goal

－ 22 －

of eradicating corruption.

COUNTRY PRESENTATIONS
8. CAMBODIA: The Rectangular Strategy, Phase 3, of the Royal Government of Cambodia
establishes good governance as a core national strategy, laying out Cambodia’s politicalcommitment to socio-economic development and to the fight against corruption. This strategy
is supported by general and specific laws that comprehensively establish an anti-corruption
framework through a series of laws such as the Code of Criminal Procedure 2007, the Criminal
Code 2009, the Law on Anti-Corruption 2010, the Law on the Amendment to the Law on AntiCorruption 2011 and the Law on Public Procurement 2012. The Law on Anti-Corruption
established Cambodia’s Anti-Corruption Institution (ACI), which has two bodies, the National
Council against Corruption (NCAC) and the Anti-Corruption Unit (ACU). The NCAC is anadvisory body that offers anti-corruption policies, recommendations and sets out strategies
against corruption. The ACU is an implementing body that has exclusive authority toinvestigate corruption, send corruption cases to the court of law and operates under the statebudget. Cambodia’s intertwined approaches to combating corruption include Education;
Prevention, Obstruction and Law Enforcement. The ACU has many enforcement tools whichenable it to legally conduct its operations, including the power to arrest corruption-related
suspects for investigation, obtain bank records, subpoena documents, conduct wiretapping, andfreeze assets, among others. On the international and regional level, Cambodia has been
involved in various forms of bilateral and multilateral cooperation. A Law on MLA is being
drafted by the Ministry of Justice, and Cambodia is a party to extradition treaties with several
countries. Cambodia is participating in the UNCAC Implementation Review Mechanism,
which has led to the drafting of a code of conduct for public officials and laws on witness andwhistle-blower protection. The presentation concluded with a factual corruption case study
demonstrating the efficient investigation techniques of the ACU and which successfully
resulted in the conviction of a public official for misappropriation of public funds. The official
extorted money from a company which the official knew was not due to be paid, knowingly
exceeding the amount due in order to provide a VAT exemption letter
9. INDONESIA: The presentation addressed the development of corporate criminal liability forcorruption. Although corporate liability existed for some time under Indonesia’s Corruption
Law, very few convictions had been obtained. However, due to the promulgation of Supreme
Court Regulation No. 13 in 2016, interest in corporate liability has been renewed. The
regulation applies to criminal acts done by any person based on an employment or otherrelationship and applies equally to both local and foreign corporations. A corporation may bepunished if it (1) obtains a benefit from the corruption offence, (2) allows the criminal offence
to occur, and (3) fails to take necessary steps to prevent criminal offences. Sanctions can be
imposed on the corporation, management or both, as well as the corrupt actors who directly
committed the corruption crime. If a corporation is found guilty, fines are imposed, and failure
to pay can result in confiscation and auctioning of corporate assets. When corporate assets are
auctioned, they cannot be bought by those involved with the crime, and the proceeds are
returned to the person who has the right to the property. Two case studies were introduced tohighlight an enforcement action brought by the Attorney General’s Office and an investigationby the KPK. The AGO case involved a company that deceived the government in adevelopment project, resulting in financial loss to the municipal government. This case was thefirst in which a corporation was found guilty of corruption. In the case investigated by the KPK,
an undercover operation resulted in the discovery that a bribe was paid by a corporation in－ 23 －

order to win a bid in the procurement of a development project.
10. JAPAN: The Japanese anti-corruption framework is somewhat different than the frameworks ofmany of the countries in Southeast Asia. Generally speaking, Japan has no special anticorruption laws or enforcement agencies, and there are no special measures for investigating
corruption cases, such as wiretapping and undercover operations. Corruption is investigatedand prosecuted by public prosecutors applying Japan’s general criminal laws and the Code of
Criminal Procedure. This is because Japanese criminal justice institutions enjoy a fair degreeof public trust, rendering special laws and agencies unnecessary. However, Japan has
developed a number of legal tools over the past decade which can be applied to cases ofcorruption, including legislation that addresses bid-rigging, the control of political funds, andwhistle-blower protection. Additionally, in 2018, public prosecutors will be able to enter into
“cooperation agreements” with suspects and witnesses (similar to plea bargaining) in order toobtain statements and testimony for use at trial against other participants in corruption schemes.
Leads on corruption cases are generated by Japan’s financial intelligence unit, digital evidence
and the statements of witnesses and suspects. Three case studies were introduced which
identified challenges in assessing the credibility of witness statements, including judicial
criticism of interrogation techniques and a case of evidence tampering by a public prosecutor.
In response, Japan has introduced the practice of mandatory audio-visual recording ofinterrogations in cases where suspects are detained in order to avoid disputes over thecredibility of witness statements. Moving forward, Japan will continue to enhance its practices
for obtaining testimonial evidence, collecting and analysing evidence, and tracing the proceedsof corruption crimes.
11. LAOS: The anti-corruption framework in Laos is structured in four tiers, with enforcement at
the national level through the State Inspection and Anti-Corruption Authority (SIAA), theministry and agency level, the provincial level, and the district level. Over the past decade, the
SIAA has coordinated corruption prevention and enforcement efforts, prioritizing prevention
and encouraging public participation to counter corruption. Measures for prevention include
incorporating anti-corruption education at all levels from kindergarten through university,
promoting anti-corruption through the mass media, and requiring the declaration of assets andincome by public officials. Regarding enforcement, after leads on corruption are received, the
SIAA has authority to order an investigation, and where solid evidence exists, the case issummarized and referred to public prosecutors for prosecution in court. Over the past five years,
over 734 targets were inspected, with some 1,800 civil servants found to have violated
corruption laws and regulations. Laos is a party to multilateral and bilateral anti-corruption
instruments and participates in a variety of international forums on anti-corruption. Regarding
challenges, the participants from Laos reported that the country has no strong prevention
campaign, lax law enforcement by competent authorities, a lack of modern equipment forrevenue collection, and limited financial resources and skilled personnel for anti-corruption
bodies. In addition to continued engagement on the international level, Laos will continue its
efforts to mainstream anti-corruption training into formal education.
12. MALAYSIA: Over the past decade, Malaysia has undergone a number of legislative
developments to criminalize specific corruption offences, introduce plea bargaining,
strengthening asset forfeiture and recovery, and witness and whistle-blower protection. Assetrecovery is important to do justice to the victimized parties, and the MACC is authorized tofreeze, seize and confiscate illicit proceeds. It was noted that legislation is an important tool tofight corruption in order to give teeth to anti-corruption enforcement through criminalizationof specific offences. In addition to these developments, the Malaysia Anti-Corruption－ 24 －

Commission has developed a number of best practices for anti-corruption investigation. One
important practice has been the adoption of the PEACE technique for conducting witness
interviews, and the establishment of the Malaysian Anti-Corruption Academy to provide
training in advanced investigation techniques. Other best practices include the use of video
technology during interviews and interrogations, the implementation of team-based
investigation, private-sector investigation, intelligence-based investigation, introduction of atechnology-based complaint management system, and enhancement of forensic-accounting
skills. A case study was introduced in which USD 28 million in illicit proceeds of corruption
were confiscated—the largest confiscation in Malaysian history. One of the MACC’s newest
initiatives is the Anti-Corruption Revolution Movement (GERAH) 2017, which promotes
public awareness of the dangers of corruption. This movement will engage roughly 2,000
MACC officers to meet with the public. To successfully combat corruption, cross-border andjoint investigations are important, and thus maintaining good relationships between Central
Authorities and law enforcement agencies is critical to overcoming the challenges of anticorruption enforcement and asset recovery.
13. MYANMAR: Noting that corruption poses serious threats to the rule of law and socio-economic
development in all countries, Myanmar has undertaken significant efforts over the past decade
to enhance anti-corruption enforcement. In 2005, Myanmar ratified UNCAC, and adopted theAnti-Corruption Law in 2013 and the Anti-Money Laundering Law in 2014, respectively.
Aggrieved persons may submit corruption complaints to the Anti-Corruption Commission,
which has broad power to examine financial records, order prosecutions, order confiscation ofmoney and property, and provide witness protection. The Commission has the power to
conduct investigations and to take action against offenders who commit corruption. The
commission vests investigation powers to an investigation board or an inspector, and theinspector or investigation board carries out the investigation under the law. The Commission
is required to send reports, which contain matter on deciding to take action upon the accused
person, to the President, respective Hluttaw Speaker, the complainant and also to the Union
Government Office so that it can continue to take action against the accused person under thearrangement of the Union Attorney-General's Office. The Union Attorney General’s Officeproceeds to tender legal advice on corruption cases and also the prosecution of the accused
before the relevant court. The commission received 4,135 complaints during the period from
10 March 2014 to 30 September 2017. One of the challenges faced by Myanmar includes thelack of a whistle-blower protection law. Myanmar remains dedicated to addressing key
challenges in anti-corruption enforcement, including improvement of the asset recovery
process, enhancing whistle-blower protection, addressing cross-border corruption, andstrengthening cooperation in the fight against corruption.
14. PHILIPPINES: The participants from the Philippines introduced the best practice of witness
protection as an important law enforcement measure for combating corruption. Before
introducing a corruption case that was discovered through key witnesses, the institutions
responsible for anti-corruption enforcement in the Philippines, as well as the legal framework,
were introduced, including the Sandiganbayan (a specialized anti-graft court), the Office of the
Ombudsman, which is established under the Constitution of the Philippines, and theDepartment of Justice. The Philippines ratified UNCAC in 2006, and pursuant to UNCAC’s
Implementation Review Mechanism, the Philippines is 59% compliant with UNCAC’s
provisions on criminalization and law enforcement (Article III). Witness protection is an
important tool for law enforcement. A witness protection law has been in place since 1991 toencourage those who have witnessed crime to testify in court by protecting such witnesses from
reprisals and economic dislocation. This programme operates under the authority of the－ 25 －

Department of Justice. The participants introduced the Congressional Pork Barrel Scam, inwhich legislators conspired with other government officials and private individuals to divert
public funds for their own use and benefit. This scheme operated for at least three years andwas only exposed due to the reports of witnesses who were former employees of one of theprincipal players in the scam. Thus, the protection of these witnesses was crucial to theprosecution of this corruption case, and the dynamics between the Office of the Ombudsman
and the Department of Justice, particularly in terms of providing for the safety and security of
witnesses, proved to be an effective means in ensuring the availability of the key witnesses.
Indeed, the collaboration of various government agencies and active cooperation of thewitnesses are indispensable in the Philippine government’s fight against corruption.
15. SINGAPORE: Singapore has transformed from a country rampant with corruption to one of theleast corrupt countries in the world. From 1995 to 2016, Singapore has consistently been ranked
as the least corrupt Asian country according to Transparency International’s Corruption
Perceptions Index, ranking 7th among 176 countries. The CPIB is a founding member of the
new International Anti-Corruption Coordination Centre (IACCC) launched in July 2017, which
serves to improve information sharing and coordinate law enforcement actions between law
enforcement officers from member countries. Given the reality that criminal proceeds are
difficult to trace and even harder to prove, Singapore’s anti-corruption laws establish thepresumption that “concealed property” held by the accused in an amount disproportionate to
his known sources of income was derived from criminal conduct, providing effective
deterrence against public sector corruption. When combined with a strict code of conduct anddisclosure requirements applicable to all public servants, public sector corruption cases
accounted for only 15% of all corruption cases investigated in Singapore in 2016. Accordingly,
private sector corruption is viewed as a greater problem, and, while lawyers have beenaccustomed to the imposition of fines for private sector corruption, custodial sentences are now
regularly sought and imposed in appropriate corruption cases. In terms of initiatives to address
corruption in the private sector, CPIB and SPRING Singapore recently co-launched theSingapore Standard (SS) of the ISO 37001 on Anti-Bribery Management Systems, which is
aimed at helping companies strengthen their anti-bribery systems and processes in reducing
risks and costs relating to bribery. CPIB also developed “PACT”, a practical guidebook forbusinesses in Singapore which sets out to guide business owners in Singapore in developing
and implementing anti-corruption systems within their companies. Singapore will continually
strive to uphold high standards of integrity in public administration as well as the marketplace.
Investigators and prosecutors must work more closely than ever to effectively identify,
investigate and prosecute corruption, and efforts at public outreach and community
engagement must be maintained to preserve the zero-tolerance societal attitude towards bothpublic and private sector corruption in Singapore.
16. THAILAND: Corruption is a serious problem in Thailand which occurs in both the public andprivate sectors. Among traditional forms of corruption, policy corruption was reported as a new
type of corruption that involves making illegal plans or management mechanisms for certain
beneficiaries. In response to the problem of corruption, the National Anti-Corruption
Commission was established under the Constitution of the Kingdom of Thailand in 1997. In
2003, the Public Sector Anti-Corruption Commission was established to investigate corruptionof lower-level officials. The Supreme Court has established a Criminal Division for Persons
Holding Political positions to hear cases involving high-level public officials such as ministers,
members of the House of Representatives, Senators, etc., and in 2016 another court wasestablished to hear cases involving other public officials. Thailand requires public officials todisclose their assets, which may be confiscated if acquired by malfeasance or determined to be－ 26 －

unexplained wealth. It was also reported that Thailand has no statute of limitations forcorruption offences and that conflict of interest rules are being implemented for public officials.
The participants from Thailand introduced four case studies, demonstrating the successes andchallenges faced in the increasingly complex field of anti-corruption enforcement. The cases
presented addressed a variety of issues, including unexplained wealth, confiscation ofcorruption proceeds, conflicts of interest, outright fraud, and complex transnational corruption
involving a scheme to defraud the government’s rice-subsidy programme.
17. VIET NAM: In recent years, the number of corruption cases has increased, resulting in themisappropriation of public funds and property at great cost to the public. Meanwhile, successful
asset recovery has been limited. In part, this may be due to inconsistent interpretations of theconcept of "corrupt proceeds" under the Anti-Corruption Law 2005 and the Criminal Code. To
date, Viet Nam has not adopted specific laws on confiscation and recovery of corruption
proceeds; however, the necessary measures include confiscating, freezing and distraining
corrupt proceeds and imposing fines in order to recover proceeds of corruption provided in thecriminal laws, and administrative and civil measures are provided in civil laws and are appliedin different stages of the proceedings (investigation, prosecution and trial). Under the Criminal
Code, the principal penalties for corruption should be the death penalty, life sentence or
imprisonment, and imposition of fines is only applied as additional punishment. Both moneyand objects are subject to confiscation if they are directly related to the commission of thecrime. In recent years, procurators have strictly supervised the investigation process for serious
corruption crimes starting from the receipt of tips and reports of the crime to the conclusion of
the investigation. From December 2012 to May 2016, 868 cases were prosecuted involving
1,868 accused persons. Nevertheless, shortcomings in the asset recovery process exist, as thetotal damages in corruption cases exceeds 5,335 billion VN dong, of which only 35.9% has
been recovered. To improve the efficiency of asset recovery, a number of solutions were
proposed including improvement of asset declaration requirements, enabling law enforcement
agencies to take swifter action to distrain property to prevent the dissipation of illicit assets,
and continuing the implementation of the provisions of UNCAC.
CONCLUSIONS AND RECOMMENDATIONS
18. DEVELOPMENTS
The past ten years encompass the appropriately named “UNCAC decade”, as the last remaining
Southeast Asian non-member countries became parties to UNCAC during that period. With
full regional participation in UNCAC, tremendous advances were made in the adoption of
implementing legislation, including laws on the criminalization of specific corruption crimes,
asset recovery, and mutual legal assistance and extradition. Furthermore, all countries havetaken great strides toward the adoption of national anti-corruption strategies, establishing anticorruption frameworks, and implementing robust anti-corruption enforcement. Almost all of
the participating Southeast Asian countries have established specialized anti-corruption
agencies to conduct investigation and prosecution, and all countries have gone to great lengths
to eradicate corruption. Other developments include enhancements in mutual legal assistance,
witness and whistle-blower protection, rules pertaining to public officers, and private sector
corruption and corporate liability, as well as the wealth of practical experience gained by all
countries in combating corruption.
19. CHALLENGES
Despite the tremendous improvement in anti-corruption legislation, practices and enforcement
over the past decade, the country presentations made it clear that many challenges remain, and－ 27 －

they are shared by many countries. These challenges include insufficient investigation skills,
insufficient legal and physical tools to collect admissible evidence, assessing the credibility of
witness statements, poor interaction between intelligence and criminal justice officials,
differences in systems and practices in cases involving international elements, low levels of
public understanding and uncooperative attitudes, fierce resistance from those engaged incorruption (including physical attacks on investigators), overcoming procedural challenges tocorruption prosecutions raised during pretrial procedures, the lack of adequate prevention
measures, lax law enforcement by competent authorities, the lack of modern equipment forrevenue collection, limited financial resources, the lack of a whistle-blower protection laws insome countries, the lack of legal frameworks for special investigation techniques, dealing with
underground banking systems, the dissipation of illicit assets prior to confiscation, and ongoing
efforts to fully comply with UNCAC.
20. RECOMMENDATIONS
During the Seminar, many valuable practices were introduced by all of the participating
countries. The following practices were among those that drew significant attention: pursuing
private-sector corruption and exploring the concept of corporate criminal liability,
implementing adequate witness and whistle-blower protections, establishing the legal
presumption that disproportionate wealth was obtained from illicit sources, implementing
codes of conduct for public employees and procedures requiring the declaration of assets,enhancing advanced investigation and interviewing techniques including forensic accounting
skills, video-recording of witness and suspect interviews, maintaining working relationships
with practitioners from other countries, engaging in joint investigations, raising or abrogating
statutes of limitation for corruption crimes, engaging public support for anti-corruption
including through anti-corruption education, and ensuring adequate pay for government
officials. Each country may wish to consider adopting these practices or tailoring them to its
unique legal and social circumstances. As described above, anti-corruption challenges abound,and all countries are encouraged to participate and learn from the UNCAC Implementation
Review Mechanism and to participate in international forums with anti-corruption practitioners
from other countries to exchange practices and ideas for overcoming challenges and breaking
down barriers to the investigation and prosecution of cross-border corruption.

19 OCTOBER 2017
HANOI, VIET NAM－ 28 －VISITING EXPERTS’ CONTRIBUTIONS

Ms. Candice Welsch
Chief, Implementation Support Section
Corruption and Economic Crime Branch
United Nations Office on Drugs and Crime* * *Mr. Giri Suprapdiono
Director of Gratification
Corruption Eradication Commission
Indonesia－ 29 －

UNODC’S ANTI-CORRUPTION WORK OVER THE LAST DECADE
Candice Welsch*

Until the 1990s, corruption was seen as a narrow national issue with limited impact.
Since then, however, it has been increasingly recognized as a transnational problem. Corrupt
officials hide their illicit proceeds of crime offshore; corrupt networks and organized crimegroups operate together to lower the effectiveness of law enforcement and to facilitate illicit
trade and contraband. In addition, corruption is always associated with inefficiency: it grows
where institutions are not effective and exacerbates ineffectiveness, thus hampering theimplementation of government policies, undermining sustainable development and weakening
security and law enforcement bodies.
In the last decade of the 20th century and beginning of the 21st century, an unprecedented
interest was developed in relation to good governance, effective government and public trust
in institutions. Corruption as both a cause and consequence of weak public institutions and thedeclining trust in government became the focus of this international discourse. The concernsof the international community brought to life the United Nations Convention against
Corruption: the sole global anti-corruption legal instrument to prevent and fight corruption.
Since that time, there has been increasing recognition that corruption hampers sustainable
development and can have serious consequences on the security of a country. This is reflectedin the adoption of Goal 16 of the Sustainable Development Goals which requires States to“promote peaceful and inclusive societies for sustainable development, provide access tojustice for all and build effective, accountable and inclusive institutions at all levels”, throughreducing illicit financial flows, strengthening the recovery and return of stolen assets,
substantially reducing bribery and corruption, and developing effective, accountable andtransparent institutions at all levels.
I. UNITED NATIONS CONVENTION AGAINST CORRUPTIONA.

UNCAC: The Global Anti-Corruption Legal Instrument
The importance of harmonizing the international efforts to prevent and fight corruption
was recognized more than a decade before the actual adoption of the Convention. The road to
the Convention was paved by the efforts of the United Nations Crime Prevention and Criminal
Justice Programme alongside the Centre for International Crime Prevention from 1989.
Important milestones in this process include the adoption of resolution 7 on action against
corruption by the Eighth United Nations Congress on the Prevention of Crime and theTreatment of Offenders; the development of the International Code of Conduct for Public
Officials, adopted by the General Assembly by its resolution 51/59 of 12 December 1996; andthe adoption of the United Nations Declaration against Corruption and Bribery in International
Commercial Transactions on 16 December 1996 by General Assembly resolution 51/191. A
key milestone in this process was the development and adoption of the Convention against
Transnational Organized Crime, which was adopted by the General Assembly in resolution
55/25 of 15 November 2000. The process of negotiation on UNTOC saw extensive debate on

Chief, Implementation Support Section, Corruption and Economic Crime Branch, United Nations Office on
Drugs and Crime (UNODC).
*－ 30 －

whether and how corruption should be included in the provisions of the Convention. Whilecertain elements of corruption (including the criminalization of active and passive bribery of
public officials, international public officials and foreign public officials) were included in the
Organized Crime Convention, the complexity and importance of the challenges associated withcorruption were seen as requiring the development and adoption of a new, comprehensive legal
instrument.
This international consensus was formalized in the General Assembly resolution 55/61,
which established the Ad Hoc Committee for Negotiation of a Convention against Corruption
and provided for a process to be followed ensuring widest possible participation andinvolvement of Governments.
The United Nations Office on Drugs and Crime provided input in and facilitated thework of the Ad Hoc Committee in negotiating the Convention. The UN Convention against
Corruption was adopted by the United Nations General Assembly in its resolution 58/4 of 31
October 2003. It was opened for signature on 9 December 2003 in Merida, Mexico (which was
subsequently declared as International Anti-Corruption Day) and entered into force on 14
December 2005, 90 days after the date of deposit of the thirtieth instrument of ratification.
At the present time, UNCAC has 182 States parties and is close to becoming a universal
instrument.
B.

UNCAC Structure and Contents
The United Nations Convention against Corruption has 71 articles, structured in eightchapters. The “substantive corpus” of the Convention consists of four chapters－Chapter II(Preventive measures), Chapter III (Criminalization and law enforcement), Chapter IV(International cooperation) and Chapter V (Asset recovery).
It is often said that an ounce of prevention is worth a pound of cure. Indeed, relying
only on ex post facto prosecution of corruption would be insufficient in environments where
corruption is prevalent and where engaging in corrupt practices may be seen as an undesirable
but unavoidable manner of conducting one’s business affairs. Even in societies with relatively
low levels of corruption, neglecting prevention would mean that corruption is only stopped
after it has already occurred－when the money has been stolen, the bribe has been given andaccepted or when the damage to the treasury, public trust and society has already occurred.
Recognizing this, UNCAC devotes the entirety of chapter II to the prevention ofcorruption. The Convention requires States parties to introduce effective and coordinated anticorruption policies and practices (art. 5); to designate or establish anti-corruption bodies withpreventive functions (art. 6); to strengthen the integrity of the public administration bypromoting measures such as merit-based career development (art. 7); and to adopt and enforce
codes of conduct and systems requiring public officials to disclose their assets and interests(art. 8).
The Convention pays special attention to the risks of corruption in public procurement
and management of public finances (art. 9). It recognizes that judicial and prosecutorial
integrity is indispensable for the fight against corruption (art. 11). It also recognizes theimportance of addressing corruption in the private sector (art. 12), promoting participation ofsociety (art.13) and preventing money-laundering (art. 14).

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In addition to prevention, UNCAC also pays due attention to the criminalization of
specific corruption offences and to effective law enforcement. The Convention recognizes that
corruption as a phenomenon has multiple societal and cultural dimensions which made itdifficult for State parties to agree on a single definition of corruption. Instead, Chapter III
formulates a number of specific offences which are to be criminalized, either on a mandatory
or optional basis, by States parties. The harmonization of the international anti-corruption
regime and of national criminal law definitions enables the Convention to act as a true legal
instrument, making international cooperation predictable and reliable.
Under the Convention, States parties are obliged to criminalize the active and passive
bribery of national public officials (art. 15); active bribery of foreign public officials andofficials of public international organizations (art. 16, para. 1); embezzlement,
misappropriation or other diversion by a public official (art. 17); laundering of proceeds ofcrime (art. 23); obstruction of justice (art. 25); and the participation in any capacity such as anaccomplice, assistant or instigator of an offence established in accordance with the Convention(art. 27, para. 1).
Optional offences, i.e. offences which the States parties shall consider criminalizing,
but are not obliged to actually to do so, include the passive bribery of foreign public officials
and officials of public international organizations (art. 16, para. 2); active and passive trading
in influence (art. 18); abuse of functions (art. 19); illicit enrichment (art. 20); active and passive
bribery in the private sector (art. 21); embezzlement of property in the private sector (art. 22);concealment (art. 24); and attempts to commit, or preparation for, an offence established inaccordance with the Convention (art. 27, paras. 2 and 3).
The Convention includes an array of criminal justice and law enforcement measures in
its Chapter III, which enable or facilitate the detection, investigation and prosecution ofcorruption, international cooperation in corruption cases, and recovery of stolen assets. These
provisions relate to the statute of limitations (art. 29), provisions relating to sanctions,prosecutions and adjudications (art. 30), freezing, seizing and confiscating assets (art. 31), andthe protection of witnesses (art. 32) and reporting persons (art. 33). Article 36 requires Statesto have specialized law enforcement bodies with the necessary independence, training andresources to carry out their functions. Provisions address the need for offenders (art. 37),
national authorities (art. 38) and the private sector (art. 39) to cooperate with law enforcement.
UNCAC contains, in its Chapter IV, extensive provisions on international cooperation,
including formal cooperation such as mutual legal assistance (art. 46) and extradition (art. 44),
as well as informal cooperation between law enforcement bodies (art. 48). In this, UNCAC iscompletely compatible with and follows the tradition of the Organized Crime Convention, witha couple of improvements. Under the detailed provisions of this Chapter, UNCAC may serveas the legal basis for mutual legal assistance and extradition even between countries which are
not a part of a bilateral or multilateral international cooperation or extradition agreement.
A new and truly ground-breaking feature of UNCAC is found in Chapter V which isdevoted to the recovery of stolen assets. UNCAC states that the return of assets is a“fundamental principle” of the Convention and that States Parties shall afford one another thewidest measure of cooperation and assistance in that regard (art. 51). The Convention includes
specific provisions on the measures and mechanisms for facilitating the repatriation of stolen
assets derived to their country of origin. Chapter V also provides for mechanisms for direct
recovery of property (art. 53) and a comprehensive framework for international cooperation(arts. 54-55) in confiscation matters.

－ 32 －

II. UNITED NATIONS OFFICE ON DRUGS AND CRIMEThe United Nations Office on Drugs and Crime is an office of the United Nations anda part of the UN Secretariat. The office was established in 1997 through the merger of the UN
Drug Control Programme and the Centre for International Crime Prevention and just celebrated
its 20th anniversary. Throughout its operation, UNODC has been on the forefront ofinternational efforts to address transnational crime, including drug trafficking, corruption,organized crime, and terrorism. Its headquarters is in Vienna but the UNODC also maintains a
network of field offices around the world including regional and country offices and two liaison
offices.
UNODC is the custodian of the United Nations Convention against Corruption and acts
as the Secretariat to the Conference of the States Parties to the Convention and to its Mechanism
for the Review of the Implementation of the Convention. UNODC also provides significant
technical assistance to States parties to support the effective implementation of the Convention.
UNODC anti-corruption activities focus on three main areas: research, normative work andtechnical assistance.
A.

Research Work
Research is a key element of the anti-corruption work. To be effective, policymaking
should be based on facts and extensive research is needed in order to accurately obtain thosefacts. It is of utmost importance to understand and resolve a problem to study its causes in
depth and suggest meaningful responses. In addition, evaluating and monitoring theimplementation of anti-corruption policies is only possible in the presence of clear baseline
data and information on the changes introduced by the government policies that have been
implemented.
Recognizing the importance of research, UNODC has developed, over the years, stateof-the-art methodologies for measuring bribery and corruption both in the general populationand in the business sector. This methodology has been applied in a number of countries by
national research institutions with active support by UNODC. UNODC works with otherinternational organizations to constantly update and improve its research methodology.
UNODC is currently working with UNDP to develop a guide on anti-corruption surveys. This
work becomes especially important in the context of the 2030 Sustainable Development
Agenda and in particular to measure the progress towards implementation of Goal 16 and its
targets.
B.
1.

Normative Work: UNODC as a Secretariat
Conference of the States Parties
The Conference of the States Parties to UNCAC was established, pursuant to article 63of the Convention, to improve the capacity of, and cooperation between, States Parties toachieve the objectives of the Convention, and to promote and review its implementation. It
meets every two years. Its first session was held in Amman, Jordan in December 2006; thesecond in Bali, Indonesia, in January 2008; the third in Doha, Qatar, in November 2009; andthe fourth session in Marrakech, Morocco, in October 2011. The fifth and the sixth sessions of
the Conference took place in Panama in 2013 and in the Russian Federation in 2015,
respectively. The seventh session of the Conference is scheduled for November 2017 in the
UN Headquarters in Vienna.

－ 33 －

2.

Working Group on Prevention
The Conference of the States Parties to the Convention decided, in its resolution 3/2, toestablish an open-ended intergovernmental working group to advise and assist it in theimplementation of its mandate on the prevention of corruption. The Conference also decided
that the Working Group should: (a) assist the Conference in developing and accumulatingknowledge in the area of prevention of corruption; (b) facilitate the exchange of informationand experience among States on preventive measures and practices; (c) facilitate the collection,dissemination and promotion of best practices in preventing corruption; and (d) assist theConference in encouraging cooperation among all stakeholders and sectors of society in orderto prevent corruption. In its resolution 4/3, entitled “Marrakech declaration on the preventionof corruption”, the Conference of the States Parties decided that the Working Group should
continue its work to advise and assist the Conference in the implementation of its mandate on
the prevention of corruption; and should further continue to perform the functions of aninternational observatory gathering existing information on good practices in preventing
corruption, as well as provide information on lessons learned, the adaptability of good practices
and related technical assistance activities.
Since its establishment in 2009, the Working Group on Prevention has held eight
meetings during which its participants exchanged information and experiences, presented
national actions against corruption, discussed specific substantive topics as well as theimplementation of resolutions dealing with the prevention of corruption, and formulated
recommendations to be presented to the Conference.
Through its workplans, the Working Group has sought to examine different topics
under chapter II of the Convention. In recent years, topics discussed include education inschools and universities on anti-corruption efforts, the integrity in criminal justice institutions(8th session), the use of information and communications technologies to implement UNCAC,
integrity in sports (7th session), measures to prevent money-laundering, integrity in public
procurement processes and transparency and accountability in the management of publicfinances (6th session), mandates of anti-corruption bodies and public sector legislative andadministrative measures － including measures to engage transparency in the funding ofcandidatures for elected public office and, where applicable, the funding of political parties (5thsession).
All of the submissions received by States, the reports prepared by the secretariat andpresentations made during the meeting are available online on the website of the meeting andin the thematic compilation1 of the Working Group.
3.

Working Group on Asset Recovery
In its resolution 1/4, the Conference of the States Parties established the Open-ended
Intergovernmental Working Group on Asset Recovery. The objective of the Working Group is
to advise and assist the Conference in the implementation of its mandate on the return ofproceeds of corruption. In the same resolution, the Conference defined the functions of theWorking Group, such as assisting the Conference in developing cumulative knowledge in thearea of asset recovery, particularly on the implementation of articles 52-58 of the United
Nations Convention against Corruption, through mechanisms for locating, freezing, seizing,
confiscating and returning the instruments and proceeds of corruption; identifying capacitybuilding needs and encouraging cooperation among relevant existing bilateral and multilateral1

http://www.unodc.org/unodc/en/corruption/WG-Prevention/thematic-compilation-prevention.html－ 34 －

initiatives; facilitating the exchange of information, good practices and ideas among States;and building confidence and encouraging cooperation between requesting and requested States.
The Working Group has held 11 meetings since it was established.
4.

Expert Meeting on International Cooperation
In resolution 4/2, entitled “Convening of open-ended intergovernmental expert
meetings to enhance international cooperation”, the Conference established the open-ended
intergovernmental expert meetings on international cooperation to advise and assist it withextradition and mutual legal assistance. In the same resolution, the Conference decided that theexpert meetings shall: (a) assist it in developing cumulative knowledge in the area ofinternational cooperation; (b) assist it in encouraging cooperation among relevant existing
bilateral, regional and multilateral initiatives and contribute to the implementation of the related
provisions of the Convention under the guidance of the Conference; (c) facilitate the exchangeof experiences among States by identifying challenges and disseminating information on goodpractices to be followed in order to strengthen capacities at the national level; (d) build
confidence and encourage cooperation between requesting and requested States by bringing
together relevant competent authorities, anti-corruption bodies and practitioners involved inmutual legal assistance and extradition; and (e) assist the Conference in identifying thecapacity-building needs of States. The sixth meeting will be held during the Conference of theStates Parties in November 2017.
5.

Implementation Review Group (IRG)
At its third session in Doha in November 2009, the Conference adopted resolution 3/1
on the review of the implementation of the Convention. In that resolution, the Conference also
adopted the terms of reference of the Mechanism for the Review of Implementation of theUnited Nations Convention against Corruption and established the Implementation Review
Group – a special body which monitors the review process, identifies challenges and goodpractices, and considers technical assistance requirements in order to ensure effective
implementation of the Convention.
The Implementation Review Mechanism (IRM) is a peer review process that assists
States parties to effectively implement the Convention. In accordance with the terms ofreference, each State party is reviewed by two randomly selected peers.
The Mechanism provides the Conference of the States Parties with information on
measures taken by States parties in implementing the Convention and the difficulties
encountered by them in doing so, thus promoting international cooperation, and helps States
parties identify the needs for technical assistance and promote and facilitate the provision ofsuch assistance.
Since its establishment, 162 States parties have completed their implementation review－
60 States Parties have completed their reviews under the first Implementation Review Cycle(on the implementation of Chapters III and IV of the Convention) and two States havecompleted their reviews under the second cycle of the Implementation Review. 162 executive
summaries were published on the UNODC’s IRG country profile website2 and 75 States parties
have agreed to also publish their full country reports.

2

http://www.unodc.org/unodc/en/treaties/CAC/country-profile/index.html－ 35 －

6.

Technical Assistance
Assisting States parties to effectively implement the Convention is a priority for
UNODC. The provision of technical assistance is based on the principles of national ownershipand builds on the outcomes of the UNCAC Implementation Review Mechanism. Technicalassistance is provided to enable countries to accede to the Convention; to prepare them toeffectively carry out their functions in the context of the implementation review; to support
them in implementing the recommendations stemming from the review and; to help them build
legislative and institutional capacity to address, prevent, detect, investigate and prosecutecorruption, as well as engage in international cooperation and in asset recovery.
In line with Conference resolutions 3/4 and 4/1, technical assistance delivered by
UNODC for the implementation of the Convention takes into account the importance ofcountry-based and country-led, integrated and coordinated technical assistance delivery, andfollows a three-tiered approach (global, regional and national) to ensure synergy and efficiency.
In its resolution 6/1, the Conference underscored the importance of addressing the technicalassistance priorities identified in the country reviews, and invited other technical assistanceproviders to consider those priorities when designing and implementing new technicalassistance programmes or to incorporate them into ongoing programmes.
In the last years, UNODC has continued to follow up with technical assistance needs
arising from the first review cycle covering chapters III (Criminalization and law enforcement)
and IV (International cooperation) of the Convention. Since the start of the second cycle ofreviews, a number of technical assistance needs have also been identified in relation to chapters
II (Preventive measures) and V (Asset recovery). UNODC has often been requested to provide
technical assistance before and during the review process in relation to both completing thereview and addressing the substantive gaps or needs that have become apparent during thereview process. In addition, UNODC responds to direct requests for technical assistance fromcountries.
UNODC strives to ensure a global presence that is able to effectively respond totechnical assistance requests. UNODC’s network of field-based anti-corruption advisers
provides technical assistance at the regional and country levels. The advisers provide rapidly
deployable professional expertise to States parties as well as at regional levels and aresupported in their work by the UNODC Headquarters staff. Anti-corruption advisers play animportant role in strengthening regional coordination, encouraging South-South cooperation,and facilitating the exchange of good practices.
Currently, regional advisers are based in Fiji (for the Pacific), Thailand (one advisor forSouth-East Asia and a second one for South Asia), Senegal (for West and Central Africa) andPanama (for Central America and the Caribbean). A senior global adviser is based in Vienna
and national advisers are based in El Salvador, Guyana and Qatar.
UNODC field offices, with support from headquarters, implement national anticorruption projects in Bolivia, Colombia, El Salvador, Egypt, Indonesia, Iran, Iraq, Kenya,
Panama, Paraguay and Timor-Leste.
UNODC supports countries which offer targeted awareness-raising and advocacy atboth the political and legislative levels through detailed briefings, workshops, sample
documentation and advice on the process of depositing the instruments of accession to theConvention as well as pre-ratification workshops to help with the process of UNCAC accession.

－ 36 －

Of the nine countries that ratified or acceded to the Convention since September 2013, fivewere assisted by UNODC with the pre-ratification process and/or immediately after
ratification3. Sample documentation and advice on the process of depositing their instrumentsof accession to the Convention were provided to Oman, Somalia, South Sudan and the Sudan.
The demand for technical assistance from states parties is increasing. UNODC has adopted aprioritized and strategic approach to address the different requests, seeking to coordinate andcooperate with other assistance providers and international organizations.
Assistance is provided to develop or amend national anti-corruption policies or
strategies, to develop new or amend legislation, to establish new anti-corruption bodies and tobuild the capacity for prevention, detection, investigation and prosecution of corruption. Issuesof particular interest for States parties include development of anti-corruption strategies,
development of laws which protect witnesses and reporting persons, capacity development of
law enforcement bodies and corruption risk assessment.
UNODC provided assistance to national institutions to strengthen their capacities totrace, seize, freeze, confiscate and return the proceeds of corruption, mainly through the joint
UNODC-World Bank Stolen Asset Recovery (StAR) Initiative. StAR supports asset recovery
efforts through a number of different measures including; country engagements, policy advice,
partnerships with States and other stakeholders, knowledge and innovation initiatives, andadvocacy. In an African country for example, StAR worked to support a strategy session forjudges and prosecutors on the effective application of non-conviction based forfeiturelegislation. Furthermore, over the past two years, StAR has provided a number of countries
with legal assistance in the development or amendment of asset forfeiture laws, including
several countries in Latin America, Africa and Asia.
Overall, from January 2016 to June 2017, UNODC provided assistance to 83 States
parties and trained over 6,000 practitioners.

Grenada, Kiribati, Oman, South Sudan and the State of Palestine. In the case of Kiribati, detailed briefings were
provided to a range of government stakeholders, and workshops were delivered for senior government officials
and for members of parliament.

3－ 37 －

UNODC supported a variety of different types of beneficiaries:

Number of activities

200
180
160
140
120
100
80
60
40
20
0

Government officials
AC authorities
Judiciary
Prosecution
Civil Society
Law enforcement
AC experts/practitioners
Investigation
Policy makers
Private sector
Academia
Financial intelligence
Parliamentarians
Wildlife/Environment
Customs
Sport integrity
Media
International…
Youth
Banking sector
Audit
UNCTs
Military
Human…
Counter Terrorism
Drug Trafficking

Beneficiaries

The types of activities carried out by UNODC are reflected here:

III. EMERGING TOPICS OF ANTI-CORRUPTION WORKA.

Education
UNODC continues to support anti-corruption education initiatives and theimplementation of article 13 (1) (c) of the Convention through two major education initiatives:
the Anti-Corruption Academic (ACAD) initiative and the Education for Justice (E4J) initiative.
ACAD is a UNODC-led collaborative academic initiative, which brings together academics,
international organizations and Governments to promote anti-corruption education in
universities worldwide. To date, ACAD has actively involved over 400 universities in its
activities and has produced a comprehensive anti-corruption educational tool, the ACAD Menu

－ 38 －

of Resources, containing over 1,800 articles, publications and research papers related tocorruption that can be used by universities in their existing programmes. A key resource
associated with ACAD is the model university course on the Convention which UNODC hasdeveloped and made available online for free in Arabic, Chinese, English, French and Spanish.4
The Russian language version will soon become available.
The second major education project launched by UNODC is the Education for Justice(E4J) initiative which is part of the Global Programme to Promote the Implementation of the
Doha Declaration. The E4J initiative is aimed at building a culture of lawfulness amongchildren and youth through the provision of age-appropriate educational materials on topics
related to criminal justice and crime prevention, including anti-corruption, and the integrationof those materials into the curricula of primary, secondary and tertiary education levels.
At the primary level, E4J focuses on promoting and teaching values such as acceptance,
integrity, respect and fairness. As part of activities at the secondary level, E4J is currently
supporting the upgrading of a mobile phone applications and works with civil society
organizations and research or academic institutes to develop non-electronic educational games,
including in the area of anti-corruption.
E4J addresses tertiary education by developing modules and materials that would
support academics in their teaching and research activities related to UNODC mandate areas,
including corruption, integrity and ethics.
B.

Corruption in the Private Sector
Since 2008 UNODC has been building the capacity of the private sector to engage inanti-corruption activities at both national and global level. UNODC is working to reduce
opportunities for corruption by enhancing public-private sector dialogue, improving
governmental anti-corruption frameworks and legislation, and creating a culture of integrity inthe private sector. UNODC worked closely with a number of private sector organizations andentities, including the Business-20 (B20), the G20’s dialogue with the private sector, and theWorld Economic ForumThe interactive e-learning tool for the private sector, entitled “The fight against
corruption” is now available in 24 languages. The tool was developed jointly by UNODC andthe United Nations Global Compact to enhance the understanding by the private sector of theConvention and the Global Compact’s tenth principle against corruption. To date, more than
225,000 users have taken the course and more than 40,000 users have successfully passed theend-of-course assessment and obtained the course certificate
C.

Wildlife
Wildlife and forest crime is a serious and growing problem, posing a significant threat
to the environment and negatively impacting economic and social development, security andgovernance. Illicit trade in poached wildlife enriches the organized crime groups and increases
the threat associated with them. Corruption is often used to facilitate poaching, smuggling andtrafficking and there are clear links between wildlife crime and fraud and money laundering.
This has stimulated governments and international organizations to seek ways to strengthen the
integrity in the wildlife law enforcement agencies, border guards, customs and all relevant

4

http://www.track.unodc.org/Education/Pages/ACAD.aspx－ 39 －

stakeholders and to ensure that, where corruption has been used to facilitate wildlife crime, it
is detected, investigated and prosecuted.
UNODC provides assistance to a number of countries in Latin America, Africa andSouth East Asia to identify and address corruption risks in wildlife agencies and in bordersecurity and to build capacity to investigate and prosecution corrupt acts linked to wildlife
crime.
This issue has also been addressed in a number of internal fora. The Conference of theParties to the Conference on International Trade of Endangered Species of Wild Fauna andFlora adopted resolution 17/6 on “Prohibiting, preventing, detecting and countering corruption,
which facilitates activities conducted in violation of the Convention”. The G20 under theGerman presidency adopted the G20 High Level Principles on Combatting Corruption Related
to Illegal Trade in Wildlife and Wildlife Products in June 2017. The General Assembly recently
adopted a resolution in its 71st session entitled “Tackling illicit trafficking in wildlife” whichcalls for specific action to be taken to prevent and counter corruption linked to wildlife
trafficking.
D.

Customs/Borders
Corruption in customs is a threat to both the economic development and for the securityof the affected countries. Inefficient and corrupt customs services are unable to ensure the equal
treatment of importers and exporters in paying excise and customs duties and are likely to failin stopping illicit contraband and trafficking in drugs, firearms and wildlife.
UNODC actively supports specific anti-corruption initiatives in customs and promotes
the use of targeted corruption risk assessments, by assisting States parties to identify actual
corruption risks and scenarios, develop plans for addressing these risks and consequently
implement these plans.
UNODC actively cooperates to promote integrity in customs also through programmessuch as the Container Control Programme, a joint initiative of UNODC and the World Customs
Organization. Some of these measures include the development, introduction andimplementation of conflict of interest regulations, measures to increase transparency of
customs services, strengthening whistle-blower protection, as well as developing andintroducing strong control environment with proper oversight and accountability measures.
E.

Sports
The world of sports has gone through dramatic evolution resulting in many challenges
and opportunities. Factors such as increasing professionalization and expansion of scope of the
sports industry, to include extensive development of online betting markets combined with adiverse and multifaceted approach to regulation and governance of sports organizations, hasresulted in many benefits and opportunities.
However, a major downside is that some of the associated risks of this evolution for
sports organizations and associated stakeholders have not been adequately assessed or
mitigated. As has been pointed out in the past and borne out by recent scandals, at a broader
institutional level, sports organizations are responding in a reactive manner to threats such as
corruption and involvement of complex international criminal activity. Added to this have been
concerns about the legacy of major sport events.

－ 40 －

Competition manipulation in particular has become an increasing area of concern given
the links with organized crime and illegal betting and the illicit profits that can be generated
for those engaged in this activity. The scale of illegal betting is estimated at being $500 billion
and is a growing international problem associated with the rise of online betting sites. The
attraction for organized crime is obvious, with one study in 2014 estimating that $140 billion
had been laundered via sports betting.
Corruption is a facilitator for those looking to organize and benefit from competition
manipulation in sport. However, many countries and sports organizations are generally illequipped to understand and adequately respond to these threats.
By combatting corruption in sport and competition manipulation, in particular by
supporting agencies tasked with overseeing and enforcing rules in sports, opportunities for
those seeking to benefit from corruption and manipulate sport competitions are reduced andresources are better used for the purposes intended.
Against this backdrop, the United Nations Office on Drugs and Crime (UNODC) andthe International Olympic Committee (IOC) signed a memorandum of understanding in 2011and has since developed an excellent working relationship. This productive partnership has led
to the development of two publications related to the manipulation of sports competitions,
namely the UNODC-IOC booklet and study on Model Criminal Law Provisions for theProsecution of Competition. UNODC and IOC further cooperated during the development of
the Resource Guide on Good Practices for the Investigation of Match-Fixing, the UK’s AntiCorruption Summit in April 2016 and the INTERPOL-IOC workshop on combatting crimes in
sport, held in Rio de Janeiro in June 2016. Further to this, UNODC and IOC helped to establish
and launch the International Partnership against Corruption in Sport in June 2017.
F.

Cities and Local Government
The rise in urbanization throughout the world brings unprecedented challenges
associated with corruption. The growth of the large cities, the provision of services, thebooming construction and associated issuance of permits and licenses, the insecurity andorganized crime often result in a rise of corruption.
Trust in local government is in decline, reflecting the overall trend of declining trust in
government in large parts of the world.
To address corruption in local government and in urban settings, UNODC actively
engages with partners such as UN Habitat to promote the anti-corruption work in sub-national
level. UNODC country offices are also paying close attention to the issue; a recent publication
on Municipal Transparency by the UNODC Office in Bolivia focuses on the corruption risks
and transparency and integrity frameworks in local government.
G.

Violent Extremism and Corruption
Just like corruption, radicalization is not any more a narrow national problem. Extremistgroups use anti-corruption rhetoric in their recruiting material; and extremists are increasingly
quoting their frustration with corruption as a driving force for radicalization. Terrorist groups
also employ corruption in order to facilitate their activities and to avoid detection. UNODC has
begun research and on the ground work to explore whether strengthened state responses toactual or perceived corruption at the community level can reduce the propensity of youth toradicalize and is also looking at corruption in the security sector.

－ 41 －

H.

Corruption Risk Assessments
Effective prevention of corruption is only possible where the organizations correctly
identify the relevant corruption risks and design and implement proper mitigation plans toaddress the risks identified. However, most corruption risk management methodologies
developed in the recent years require a level of sophistication which is often lacking in the
public administration of a country with systemic corruption problems.
To assist the States parties in identifying, prioritizing and addressing corruption risks
at the organizational level, UNODC has developed a methodology, which is simple, quick andinexpensive. This methodology has already been applied in a number of different governmental
institutions and countries and has brought about measurable results, identifying existingcorruption schemes and helping to reduce the annual procurement budget of organizations by
up to 50 per cent.
The last 10 years saw a dramatic increase in the interest of UN Member States towards
the prevention and fight against corruption. This unprecedented attention to the issue brought
the number of the UNCAC States parties to 182. The impact of corruption on sustainable
development has also been explicitly recognized in goal 16 of the Sustainable Development
Goals and one can further argue that preventing and fighting corruption is key to theachievement of the entire 2030 Agenda.
UNODC, in its normative, research and technical assistance work, actively supported
this process. The Office continues to assist States parties to effectively implement theConvention – and the ever growing number of technical assistance requests underscore thevalue that States parties assign to this support.
The second cycle of the Implementation Review Mechanism, focusing on the issues of
prevention of corruption and recovery of stolen assets will present both a challenge andopportunity. Technical assistance providers, donors and anti-corruption practitioners should
be prepared to meet the growing demand for practical, measurable responses to corruption atcountry and organizational level. In this, UNODC remains at the forefront of the anticorruption work worldwide.

－ 42 －

Mr. Giri Suprapdiono
Director of Gratification
Corruption Eradication Commission
Indonesia

Short Biography
Giri Suprapdiono, Director of Gratification of KPK, has an ample
experiences in global and domestic anti-corruption movement
since the establishment of KPK in 2005. Appointed as the
youngest Director in 2012, he has responsibility to strengthen
integrity in both government and private sector throughdeveloping gratification control program, law enforcement andimproving anti-corruption system. In 2015, he was running andshortlisted as KPK Commissioners candidates.
He was member of steering group Anti-Corruption &Transparency Initiative (ADB-OECD), initiator of APEC ACT-NET,delegation of APEC ACTWG, Chief of Secretariat Committee ofSouth East Asia Parties Against Corruption (SEA-PAC),
Delegation in COSP-UN Convention Against Corruption, memberof International Association of Anti-Corruption Authorities(IAACA), Chair of Session in developing Jakarta Principle on AntiCorruption Agency, delegation ACTWG of G20. Speakers ininternational and national events such as: OECD, ILEA, GOPAC,
C,,
IACF, private and public sector conferences/seminars, etc.

－ 43 －

“ARTS” IN COMBATING CORRUPTION

Giri Suprapdiono, Director of Gratification KPKKPK Indonesia:

Experience, Achievements and Challenges
in combating Corruption for a Decade－ 44 －

3URQJHG
ವ'HWHUUHQFH $OO&DVHV
ವ3UHYHQWLRQವ(GXFDWLRQ

 3URQJHG

ವ(QIRUFHPHQW %LJ)LVK /($
ವ3UHYHQWLRQ LQFO(GXFDWLRQ
ವ3XEOLF3DUWLFLSDWLRQThe KPK's Duties(Article 6 Law No.30 year 2002)

Coordination
Coordinatio
atio
tio
on
n
(Articlee 7)
7

Monitorin
Monitoring
orin
ng
n
g
(Articlee 14
4)Supervision
Supervisio
p isiosio
onn(Articlee 8)
8Duties of
KPK(Article 6)

Preventio
Prevention
ntio
on
o
n
(Articlee 13
3)－ 45 －

Prrre
Pre
e-in
investigation,nnvestig
gation,g
Investigation
Inv
ves ga ovesvestvestigatioon &Prosecution
Prosecuti
oseccut
cutition
ionn(Articlee 111)

Some features:• Independent from the Executive, Legislative, Judiciary and any other powers• Responsible to the Public• Financially, KPK is audited by the Indonesian Supreme Audit Board (BPK)• Established in Dec 29th, 2003
• Supervise & Coordinate Attorney General Office & National Police inhandling Corruption cases
Other features:• 5 Commissioners• 3 (4) Advisors• 1518 officers (less than 300 investigator and prosecutor)

2EMHFWLYHV• Change the public attitude• Enlist the public support• Encourage public report• Promote the deterrent effect• Promote a clean society• Promote the corporate image ofanti-corruption agency－ 46 －

CORRUPTION PERCEPTION INDEX

RANK

SCORE

90/176 37/100－ 47 －

Corruption Perception Index
Steady Increased Trend
5

5,1

5,2

5,1
4,5

3,6

3,3

2,4 2,3

3,5

3,4

4,4

5

4,9

3,8

3,7

3,6

3,5

4,3

3,5

3,4

3

2,6 2,8 2,8

3,7

3,5

3,8

3,2 3,2 3,4Indonesia
Thailand
Malaysia

RANK

SCORE

90/176 37/100

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Corruption Perception Index

6WHDG\,QFUHDVHG7UHQG

Philippines

ThailandIndonesia

Malaysia

87

86

84

85

84

49

50

52

50

49

32

32

34

36

37

37

35

38

38

35

34

36

38

35

35

2012

2013

2014

2015

2016

－ 48 －

SingaporeThere are various anti-corruption bodies formed to combat
corruption. Before the KPK, all these anti-corruption bodies havefailed to address corruption at all possible levels
The main reason for failure is corruption that has permeated national
systems –Corrupt acts have become
more sophisticated and systemic and categorized as extraordinary
crime
ERADICATE CORRUPTION must be done by
extraordinary means
Law No. 30 Year 2002 on
Corruption Eradication Commission (KPK)C
UNCAC ratified & G20 commitments
Strengthening anti-corruption bodies, Ensure the effectiveness, andsafeguarding its independence from undue influence

ENFORCEMENT－ 49 －

13

Judges, incl.
Chief OF JC
Prosecutors

Echelon I (DG)
Echelon II (Director)

25 100%

Minister Level
Min

Member of
Parliament

Ambasadors

Commissioners
missionerssConviction RateConve

Governor & Deputy
Gov. of Central Bank

Others incl.
Investigator,& Auditors

Mayors andHead of Regent
Pr
Provincial
GovernorGo

Private Sector

670

TOTAL

Procurement
Permit Source: acch.kpk.go.id
Statistic, 30th June 2017

Corruption
by type of
cases



Bribery
 0LVDSSURSULDWLRQRIEXGJHW－ 50 －

2TKXCVG'EJGNQP+/GODGTQH
5GEVQTU
+++++
2CTNKCOGPV



4GIGPVU
*GCFQH)QXGTPQTU/C[QTU+PUVKVWVKQPU,WFIGU%QOOKUKQPGTU#ODCUUCFQTU

1VJGTUConviction Rate

－ 51 －

Corruption
by type of
position

Minister of Energy....

7 Years
His Secretary General....

8 Years

Bitter Smile....
In the area of Extractive Industry

7 Years

12 Years
MP....

His Chief Oil & Gas Oversight Body....

KPK’s Detention Center－ 52 －

Achievements
Red Handed－ 53 －

78

Red

Handed－ 54 －

Assets Recovered
IDR 1.917.509.443.183
oe(USD 147,5 Million)

Rutan KPK

Kebebasan yang hilang...

－ 55 －

Corruption CJSPreInvestigation

Investigation

Prosecution

Court

Correctional

Criminal Justice System
KPK/CEC
Law 30/2002

POLICELaw 2/2002

AGO
Law 16/2004

Pre
Investigation

Investigation

Pre
Investigation

Investigation

Pre
Investigation

Investigation

Prosecution

Pre Trial

6SHFLDO$QWL&RUUXSWLRQ&RXUW )LUVW$SSHDO
6XSUHPH

Prosecution

The KPK is authorized to conduct pre-investigations, investigations, andprosecutions against corruption cases that:• Involving law enforcement and state officials, and other individuals
connected to corrupt acts perpetrated by law enforcement or state officials;• Have generated significant public concern; and/or• Have state lost at least IDR 1,000,000,000 (more than US$ 110,000).

－ 56 －3ULVRQ

Court System
Supreme
Court

Religious
Court / Islamic
Court

Govt.
Administrative
Court

Military Court

General Court

Tax Court

Criminal Court

Private Court

Corruption
Court

PRE-INVESTIGATION• Based on Public Complaint
analysis result and Proactive
Investigation• To obtain at least sufficient
preliminary evidence: 2 items ofevidences (including electronic
evidence)• KPK has authority to do lawfull
interception without any court
permission• Intelligent operation (mostly
required) conducted in this stage－ 57 －

INVESTIGATION/INDICTMENT• Could not stop investigations in
the mid-way• Seizure can be performed without
any Court Order• Suspect is obliged to provide
information of his/her assets,
along with those of his/her family
trees and organization/corporation• Coordinate/supervise other LEA
for corruption• Involving Prosecutor since earlyprocess of investigation

PROSECUTION• 14 days after a investigation file isreceived by prosecutor, it has to bedelivered to the Court• Prosecute in the Special Court ofCorruption,• Reversing evidentiary burden to
defendant for his/her asset• Court decisions (verdict) must be
made within maximum 90 days
• Possibility for appeals in high court
and supreme court• Ad hoc Judge (3 out of 5 are lay judge
or non career judge)• Court Recording for monitoring trial
process－ 58 －

ICACವ RIILFHUVವ !LQYHVWLJDWRUVವ SUHYHQWLRQವ FRPPXQLW\UHODWLRQವ )DFLOLW\GHWHQWLRQDGYDQFHGLQWHUYLHZURRPKHOLSDGVKRRWLQJUDQJHJXQV－ 59 －

Anti Corruption History...

－ 60 －LESSONS LEARNT

Anti Corruption Agencis in Asia
•CPIB Singapore – Corrupt Practices Investigation Bureau –1952•MACC Malaysia – Anti Corruption Agency –1967•ICAC Hong Kong–1974•ACB Brunei – Anti Corruption Bureau –1982•ICAC-CCC-CMC Australia - 1989
•NAB Pakistan – National Accountability Bureau –1999•NACC Thailand – National Anti Corruption Commission–1999•CCAC Macau – Commission Against Corruption –1999•ACRC/KICAC South Korea –2008/2002•CVC India – 2003
•KPK Indonesia – Corruption Eradication Commission –2003•ACC Bangladesh – Anti Corruption Commission –2004•IAAC Mongolia – Independent Authority Against Corruption–2006•NCPB China - National Corruption Prevention Bureau -2007•ACU Cambodia – 2010 (2006)•ACC/CAC Timor Leste – 2010, dst－ 61 －

CORRUPTORSS …FIGHT BACK !

－ 62 －

The extent of KPK’s reach thus far:a glimpse at KPK cases that rocked the boat

source: The Jakarta Post Newspaper, November 2, 2009,
p. 4

Heavy Test on KPK in 2009
The Chairman had to be terminatedfrom position
because of suspect of murder allegation

Bibit
bit-Chandra
a CaseAntasariri CaseWeakening of KPK
Dirty Designed Caseof 2 Commissioners－ 63 －

| Two Commissioners of KPK,
declared as a suspect by Police
in September 2009 and both
gentlemen were then detained
amidst growing public concerns,
especially about the lack ofevidence and shaky witness
testimonies. “…theirarrests were part of aplot to frame them andweaken the KPK.
| Constitutional Court held ahearing on Monday, Nov 2 2009
where the KPK provided morethan four hours of wiretapped
conversations between caseintermediary and the law
enforcement officers mafia
involved where many details

CIVIL SOCIETY & COMMUNITY
as a pressure group| NGOs consortium established CICAK(GECKO) movements all over the country(KPK supporters named themselves as‘Gecko’ againts CROCCODILE (refers to
Police Mafia/Corruptors). The groupstrongly support KPK during the heat.

| Protests support KPK happened almost
daily, including making ground camping
in front of KPK office in order to protect
KPK from Corruptors attack.
| CICAK phenomenon has been supported
on the online social website Facebook,with more than a 1,250,000 supporters for
KPK only within a week:

http://www.facebook.com/home.php?#/group.php?gid=169178211590&ref=ts| CICAK featured prominently in one The
Economist article “The Gecko Bites Back”:

http://www.economist.com/world/asia/displaystory.cfm?
story_id=14816720－ 64 －

CORRUPTORS FIGHT BACK: THE
PEOPLE’S VOICE| A Facebook petition is getting close to 1,500,000 followers
in only less than two weeks| Various largest people movement supporting KPK acrosscities, nationwide

PEOPLE MOVEMENTS IN SUPPORTING KPKEVERYDAY….ACROSS CITIES…NATION WIDEPEOPLE SUPPORT DURING KPK CRISIS－ 65 －

They said: “Safeguarding Reforms is a Full Time Job!”

Anti-corruption Camping
ground In KPK office by
students activists(Safeguarding KPK)

Various Civil society
and students
movements acrosscities during
International Anti
Corruption day is thelargest in many
years…

Safeguarding Reforms is a Full Time Job!

－ 66 －

Movement in Defending & Guarding of KPK from undue influenceand intervention‘WIN OF THE BATTLE’“The allegation against KPK commissioners was acquitted, its clearly showed that there wasfabricating cases for dirty purposes managed by the corruptors mafia to weaken KPK”

Judicial Court trial ‘LIVE’ Broadcasted by Media on Nov 2, 2009

－ 67 －

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Crocodile VS Grecko Volume 3－ 69 －

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IRUDOOHJHGLQYROYHPHQWLQDPXOWLPLOOLRQGROODUEULEHU\VFKHPHKPK investigator suffers burns in acid attack－ 70 －

Partnership• Government departments• Business community• Professional bodies• Civil society organizations• Educational institutions• Mass media• Public• International networking

3 Main Pillars
in preventing
corruption)QXGTPOGPV)QXGTPOGP
5GEVQTU

2TKXCVG
5GEVQTU

2WDNKE
5GEVQTU－ 71 －

Effective Prevention
in Eradicating Corruption
3UHVHQWHGE\*LUL6XSUDSGLRQR'LUHFWRURI*UDWLILFDWLRQ&(& 5,

•
•
•
•
•
•
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•
•
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%XUHDXFUDWLF5HIRUP +5DQG6DODU\$GMXVPHQWQW(QKDQFHSXEOLFVHUYLFHGHOLYHU\
Holistic(*RYHUQPHQWHSURFXUHPHQW
Aproachment
2SHQ*RYHUQDQFH 7UDQVSDUHQF\:KLVWOHEORZHUV\VWHP'HFODUDWLRQRIDVVHWVDQGFRQIOLFWRILQWHUHVW'HFODUDWLRQRI*UDWLILFDWLRQ LOOHJDOJLIW
3ROLF\DQG6\VWHP5HYLHZ,QWHJUDWHG/DZ(QIRUFHPHQWDQG3UHYHQWLRQ6WUDWHJ\(GXFDWLRQ&DPSDLJQDGQ&ROODERUDWLRQ
5HSOLFDWLRQRI%HVW3UDFWLFHV－ 72 －

Ethical Dillemas Develop
Ethical if underright circumstances

Unethical－ 73 －

Tone from The TOP－ 74 －

－ 75 －

－ 76 －

－ 77 －Gift Confiscate from Self Reporting USD 8,7 Million
Within 8 months

UDR 113.7 Billion

Gratification in Health Sector－ 78 －

Campaign & Public Education
Programs

Public Campaign
p g & Socialization
 Antinttiti-CorruptionpGimmics Multimedia Materials
 Organizinggg Events
 Public Campaign
p g events
 Mobile & Outreach Campaignp TV and Radio Campaign
 Artist of Integrity

Anti CorruptionpEducation
Developing module for Elementary school,
Junior High School,University, journalist, private
sector, public official, parliament, etc
Train the Trainers for the University Student
Conducting Seminars and Workshop

The

New Social－ 79 －EnginesNEW WAVE SUB CULTURE:

Youth, Women, and Netizen as New Social Engines－ 80 －

－ 81 －

E-Learning Gratifikasi
www.kpk.go.id/gratifikasi

Remote Outreach Services Vehicle－ 82 －

YOUTH EDUCATION

Youth Campaign

Artist of Integrity－ 83 －Powerful messages..
from the Artist－ 84 －

－ 85 －SENI Mengantarkan Nurani...

Women & Artist in Fighting Corruption－ 86 －

Get the Message out…

Remote Outreach
Services Vehicle
For campaign－ 87 －

Key Success Factors
Lessons learnt & Challenges

KPK Key Success Factors
Involvement of investigator and prosecutor since in the
beginning of pre-investigation► Dedicated Asset Tracing Unit in LEA► Immediate action handled by Rapid Movement Unit
► The strength and support of International Cooperation Team► Comprehensive technology support for intelligent andinvestigation operation (interception, forensic, database andtactical technology)► Certainty of time frame in the process of indictment,
prosecution and court process by law► Could not stop any investigation in the mid way► Put an extra efforts to gather evidence more than the required
threshold evidence► Admissible electronic evidence support during court
proceeding►－ 88 －

The KPKK’ Internal Success Factors (1)K’s(1• Independency;• Complete Law Enforcement authority (pre-investigation,
investigation, prosecution) against criminal acts ofcorruption;• Authority to tap and record conversations (lawfulinterception) without court permission• No need for clearance from any authority before initiating
a case against high profile public officials;• Authority to request data on the wealth, tax details,
financial data from banks/other financial institutions of asuspect or defendant from the relevant institutions

The KPK’s Internal Success Factors (2)• Order relevant institutions to block accounts of a suspect,defendant, or connected parties• Temporarily halt financial transactions, trade transactions,and other forms of contracts, or to temporarily annul
permits, licenses and concessions if there is indication ofconnection to corruption cases• Order relevant institutions to ban an individual(s) fromtravelling abroad• Request assistance from Interpol Indonesia or LEA of othernations• Comprehensive Information Technology support.

－ 89 －

The KPKK’ Internal Success Factors (HR)K’s
• Independent and open recruitment system• Performance measurement and evaluation• Career Path
• Better remuneration compared to other government
agencies• Allowance based on performance• Internal whistle blowing system among employees• Better compliance of ethical/code of conduct

Determinants of Success• Strong political support from the country leadership.
• Implementation of a comprehensive and clear legal
framework for anti-corruption work (adequate law);• Effective mechanisms for inter-agency coordination;• Adequacy resources (financial, infrastructure andhuman resources);• Effective and continuous communication & relation
with media, NGOs and citizens－ 90 －

Major Challenges
Judiciary and Police Corruption► Inconsistency in supporting of the anti-corruption
movement (political will) –willing to take part in corrupt
mechanisms so long as they benefit from them;► Low integrity of law enforcement and public officials► Corruptors fight back;► Internal oversight system is weak
► Government administrative system prone to corrupt► Low remuneration system and Lack of human resourcesmanagement of public officials►

Major Challenges (2)Low integrity : has allowed offers and solicitation ofbribes to continue;z Deligitimation of KPK: Investigating commisioners andkeypersons without prudent evidences to destroy
KPK’s reputations;z Corruption in Politics: Over Democratic System(Election Processes)z Dynamic Modus Operandi: i.e. White collar crimes
make use of legitimate financial and contractual
instruments to move stolen assets off-shore;z Poor performance of internal oversight bodies
z High Public Expectationz－ 91 －

WHY ACA FAIL?
1. Lack of political will
2. Lack of resources
3. Lack of independence
4. Wrong strategy
5. Inadequate law
6. Inadequate jurisdiction – private sector, election
7. Lack of public credibility & support
8. Lack of coalition
9. Corrupt judiciary
10. Lack of professional staff
11. Lack of internal control
Tony Kwok, 2008

Key Success Factors• Effective Enforcement-Prevention-Education• Start off with effective enforcement• Professional & high integrity staff• Adequate law• Adequate resources• Partnership & Cooperation• Equal emphasis – public & private sector• Public support• Independence• Top political will
Quote: Tony Kwok, 2008

－ 92 －

We areFilling the
GAP

Mouse

－ 93 －

I thank You

TERIMA KASIH

Q&A－ 94 －

CASE STUDIES:
forestry case

Condition of Kalimantan－ 95 －

2000

2003

2006

Rapid Changes Deforestation Record－ 96 －

Deforestation

Deforestation Proses－ 97 －

Case Background :• Provide unlawful recommendation for Palm
Oil Plantation, ( 1 Million Ha)• Temporary Right Approval in Forest
Plantation Business (temporary HPHTP) andTimber Utilization License (IPK) provided byGovernor. (should receive Permit of Release
Forest Area from Minister of Forestry.
• Provide Principal Approval for Land Clearing
and Timber Utilization, provide dispensationfor Bank Guarantee Submission Obligationof PSDH-DR IPK to companies of Surya
Dumai Group in 2008 as well.

KALIMANTAN CASE

Government
PolicyConspiration
Companies –Gov. App.

Unlawful
Recommendati
on andapproval

Dispensationof Bank
Guarantee

Logging

State Loss

－ 98 －KALIMANTAN CASE
Breaking of :a) Forestry and Plantation Technical Rules in Government Regulation No.
6/1999 on Forestry Business and Forestry Product Collection in Forest of
Production;b) Decree of Minister of Forestry and Plantation No: 538/Kpts-II/1999, 12 July
1999 on Timber Utilization License;c) Decree of Minister of Forestry and Plantation No : 107/Kpts-II/1999, 3 March
1999 on Plantation Business License;d) Joint Decree of Minister of Forestry, Minister of Agriculture, and Head of
National Land Affairs Office No: 364/Kpts-II/1999, 519/Kpts/HK. 050/7/90
23-VIII-1990, 23 July 1990 on Rules of Forest Area Disposal and Lease Rights
for Agriculture Business Development;e) Decree of Minister of Forestry and Plantation No: 376/Kpts-II/1998, 8 April
1998 on Criteria of Forest Procurement for Palm Oil Plantation Cultivation;f) Encyclic of Directorate General of Forest Production No: 1709/VI-PHH/1999,
27 July 1999 on Bank Guarantee Submission Obligation for Reforestation
Funds and Forest Resources Provision for the Holder of Timber Utilization
License.

LESSONS LEARNTPolitical commitment►Independent ACA►Public, NGO and Media support,incl. International support►Integrity and Profesionalism of
Personel►IT support►－ 99 －KALIMANTAN CASE
• Infringement of Article 2 section (1) Jo. Article 18 Corruption
Eradication Criminal Act Jo. Article 55 section (1) Number-1 Jo.
Article 64 section (1) Criminal Act.
• Infringement of Article 3 Jo. Article 18 Law of Corruption
Eradication Criminal Act Jo. Article 55 section (1) Number-1 Jo.
Article 64 section (1) Criminal Act.
• Total State Lost are Rp346.823.970.564,24• Court Verdict:Governor 4 year Imprisonment and Rp250.000.000 Fined.
Company Director 18 months Imprisonment and Rp.346,8 B
Fined.
Head Office of The Forestry Departement and Head of The
Regional Office Ministry of Forestry each 4 Years Imprisonment
and Rp. 200.000.000,- fined
Asset Recovered Rp346.8 B (USD 42 Million)

ASSET RECOVEREDYear
State Funds Lodged to
the Treasury(in IDR 000,000)

2005

2006

2007

2008

2009

2010

6,959 12,991

48,455

411,800

144,282

134,360+
2,540,000

Total USD 46 million in 2008
Total USD 16 million in 2009

Total USD 297 million in 2010

－ 100 －

SUMATERARIAU CASE (SUMATERA)
Background Case:The unlawful issue of timber utilization
license of forest plantation for several
companies which have already breakTechnical Rules in Decree of Ministry ofForestry No. 10.1/Kpts-II/2000, 6 November
2000 on Guidance of IUPHHKHT Issue andDecree of Ministry of Forestry No. 21/KptsII/2001, 31 January 2001 on Criteria andStandard for Production Forest.

－ 101 －

SUMATERA CASE
Planting

Government
PolicyEstablishedCompanies

Obtaining
License ofForest Timber
Utilization

8 Companies

Logging

Take Over
7 Companies

State Loss

SUMATERA CASE
• Infringement of Article 2 section (1) Jo. Article 18
Corruption Eradication Criminal Act Jo. Article 55
section (1) Number-1 Jo. Article 64 section (1)Criminal Act.
• Infringement of Article 3 Jo. Article 18 Law ofCorruption Eradication Criminal Act Jo. Article 55
section (1) Number-1 Jo. Article 64 section (1)Criminal Act.
• Total State Lost are Rp 1.208.625.819.554,22(USD 131 Million)• Court Verdict:11 Years Imprisonment and Rp 500.000.000,Fined and additional sentence to pay
compensation for Rp 12.367.780.000,-－ 102 －

－ 103 －－ 104 －－ 105 －Other Bribery Case on land andforestry
IBR (Jakarta High Administrative Court
judge)receive a bribe from DLS(Enterpreneur on Palm Oil) and ADS(Lawyer of DLS) with the aim of
persuading the Judge on winning aland dispute against the Jakarta City
Administration.

Judge @River－ 106 －

Thank You
Email:
giri.suprapdiono@kpk.go.id－ 107 －

－ 108 －COUNTRY PRESENTATION PAPERS

H.E. Mr. Im Oudom, Cambodia***
Mr. Yudi Kristiana & Ms. Surya Tarmiani, Indonesia***
Mr. Vilavong Phomkong & Mr. Thepphathai Phanka, Lao PDR***
Mr. Amir Bin Nasruddin & Mr. Mohd Anuar Bin Ismail, Malaysia***
Mr. Ngwe Zaw Aung & Mr. Aung Myo, Myanmar***
Ms. Cristina Belmonte Hernandez & Ms. Samina S. Macabando-Usman, Philippines***
Mr. Siong Leng Neo & Mr. Nicholas Lim Kah Hwee, Singapore***
Mr. Komkanae Hongthananan & Mr. Nat Nimitchaitham, Thailand***
Mr. Hoang Chi Kien & Mr. Nguyen Duc Bang, Viet Nam－ 109 －BEST PRACTICES IN ANTI-CORRUPTION IN THE KINGDOM OF
CAMBODIA
H.E. Mr. IM Oudom*

I. OVERVIEWA.

Institutional Framework
The Anti-Corruption Institution (ACI) was established by the Anti-Corruption Law,
which was promulgated on 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 the fight against corruption,
while the Anti-Corruption Unit (ACU) plays the role as an implementing body to
independently undertake its duties.
B.

Legal Framework and Anti-Corruption Strategy
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 coreangle and anti-corruption is one of the priorities set. The RGC has supported andendeavoured to have the Anti-Corruption Law adopted along with other relevant laws andregulations for curbing corruption in Cambodia.
On 17th April 2010, the Anti-Corruption Law (ACL) was promulgated, and the law
was based on 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 governance and the rule of law as well as to maintain integrity and justice which are
fundamental for social development and poverty reduction. However, fighting against
corruption really needs the participation and support from all stakeholders both from theprivate and public sectors as well as international 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 that is separate from the budget of the Office of the Council of Ministers,
aiming to ensure 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 andnominate officials from the deputy director at the department level down upon the request
made by the President of the ACU.
In 2012, the Public Procurement Law was promulgated, which establishes certain
corruption offences and gives absolute competency to the ACU to investigate and file
Assistant to the Anti-Corruption Unit (Director-General), Kingdom of Cambodia.
The Rectangular Strategy (RS) is a dynamic document that lays out the political commitment to asocioeconomic development process in the coming five years (2013-2018). RS has undergone three changes in
the last decade to keep up with the times.
2
The Anti-Corruption Institution (ACI) was established by the Anti-Corruption Law, which was promulgatedon 17th April 2010.
*1－ 110 －

corruption-related cases in court. 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 fiveidentified areas, namely education, prevention and obstruction, law enforcement, national andinternational 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 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. INTERTWINED MEASURES TO COMBAT CORRUPTION
Combating corruption in Cambodia has been undertaken through education, prevention
and law 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 tocorrupt, cannot corrupt and dare not to corrupt”.

A.

Education

The ACU has spent many of its resources, budget, time and ideas to provide educationand 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 the law, 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 so 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 of December as National Anti-Corruption Day, and setting out policies and anticorruption education programmes aiming to instil younger generations with the feeling of
disgust for corruption and to instil conscientiousness, clean mind-set, love of justice, integrity,
abiding by laws, respecting themselves and others as they are the bamboo shoots and thefuture leaders of Cambodia.

B.

Prevention and Obstruction

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, and fee bargaining at ministries and institutions as well as joining in theobservation at the recruitment examination of a new cadre of officials at public institutions
and the high school national examination (iii) signing Memorandums of Understanding(MOU) on anti-corruption cooperation between the ACU and private national andinternational companies as well as compiling and publishing a Guidebook on Anti-Corruption
Program for Business in Cambodia, which is available for the private sector to be widelyused as the supporting document and guidance and (iv) revising the standard of public
services fees.

3

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

－ 111 －

The ACU has also focused on the support, promotion for the exchange of views andideas 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 theMemorandum of Understanding (MOUs) on anti-corruption cooperation between the ACU
and private national and international companies. As a result, so far the ACU has signed 86
MOUs with private national and international companies. This has been used as an example
in an effort to jointly fight against corruption and to establish the practice of clean business inCambodia.
In order to maintain the integrity, ethical behaviour and legal compliance of the leadersand officials of the ACU as a whole, two internal bodies were established, namely, theDisciplinary 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 disciplinary, integrity, transparency and having to avoid all form of conflictsof interest set in the guidelines. In the process of the preparation of the internal regulations,disciplinary and internal control, the council has set out principle guidelines on the preventionof 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 the performance of officials of the ACU.

C.

Law Enforcement

Regarding law enforcement, the ACU has the powers and privileges as stated in thearticles below:
 Exclusive power to investigate corruption offences (Art. 25 ACL)
 Special Privileges of the Anti-Corruption Unit (Art. 26 ACL) Privileges of the Anti-Corruption Unit related to investigation (Art. 27 ACL) Privileges of the Anti-Corruption Unit related to freezing an individual’s assets (Art. 28
ACL) Privileges of the Anti-Corruption Unit in cooperation with public authorities (Art. 29
ACL) Protection of the Complainant, Witness and Relevant Persons
III. POWERS AND PRIVILEGES OF THE ACU
A.

Investigatory Power of the ACU
The ACU has exclusive power to investigate corruption offences.4 Officials of the ACU
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 theAnti-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 is4

Anti-Corruption Law, 17 April 2010, art. 22 and Public Procurement Law, 14 January 2012, art. 73.

－ 112 －

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
and control the mission of those officials playing the role on behalf of the prosecutor until
reaching the point of arresting the 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 andrelevant documents about the case to the prosecutor for further action in conformity with theprovisions of the Code of Criminal Procedure.
B.

Special Privileges of the Anti-Corruption Unit
The President of the Anti-Corruption Unit can ask the concerned authority to suspend
all functions 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 ACU can ask thecompetent authority to seek extradition in accordance with the provisions in force.

C.

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 in phone
tapping.
(iv) Check documents and documents stored in an 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
offences in the provisions of the Law on Anti-Corruption.
D.

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
may order the General Prosecutor attached to the Court of Appeal or the Prosecutor attachedto 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
E.

Privileges of the Anti-Corruption Unit in Cooperation with Public Authorities
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 theprivate sector, namely financial institutions, to cooperate with officials of the Anti-Corruption
Anti-Corruption Law, 17 April 2010, art. 25.
Anti-Corruption Law, 17 April 2010, art. 27.
7
Anti-Corruption Law, 17 April 2010, art. 28.
56－ 113 －

Unit in an investigation. The President of the Anti-Corruption Unit may also ask the national
and international institutions to cooperate in forensic examinations linked to an investigation.
F.

Protection of the Complainant, Witness and Relevant Persons
Complainants, witnesses and relevant persons who provide information related tocorruption are protected by law and by the Anti-Corruption Unit. The Department of Security
is in charge of providing all kinds of protection to the above persons when necessary and inaccordance with the order made by the management of the ACU. The office of intervention
and witness protection under the Department of Security is in charge of protecting thewitnesses, complainants and any persons providing information related to corruption, and thisoffice can cooperate with the other relevant armed forces if necessary, when carrying out
their mission to protect witnesses and complainants.
IV. INTERNATIONAL COOPERATIONA.

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 onanti-corruption work and setting up a mechanism to review the implementation of the
UNCAC for all state parties. Under this mechanism, Cambodia having the ACU as the key
institution, prepared a self-assessment checklist which is very detailed and comprehensive
about the implementation of the UNCAC review in Cambodia, with the participation from all
stakeholders including the legislative, executive and legal and judicial bodies, the private
sector, civil society, 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 precious experiencein preparing the UNCAC review and self-assessment checklist completion to Myanmar.
Cambodia also assigned its experts to review the implementation of the Convention inthree countries including Malta (Europe), Palau (Asia) and Saudi Arabia (Middle East).
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, theACU has enthusiastically and openly cooperated with stakeholders including the Office of theHigh Commissioner 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 in 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 for capacity building and relocation in a foreign country.
B.

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.88Anti-Corruption Law, 17 April 2010, art. 2 and art.13.

－ 114 －

1.

Bilateral Cooperation
The ACU signed MOUs on anti-corruption with the State Inspectorate and AntiCorruption Agencies of the Lao People’s Democratic Republic (15 November 2013) and the
National Anti-Corruption Commission of the Kingdom of Thailand (3 September 2014). The
MOUs focus on promoting and developing international cooperation in the prevention of andfight against corruption through the efficient and effective sharing and exchange of
information, intelligence, experience, knowledge, and best practices. In addition, the ACU
collaborated with Singapore’s CPIB, to organize two important trainings for its officials of
the ACU on the topic of financial investigation and computer forensics.
The ACU also signed an MOU on the exchange of financial information with theCambodian Financial Intelligence Unit (CAFIU) of the National Bank of Cambodia (26December 2014).
2.

Multilateral Cooperation
In order to strengthen and broaden the efforts of prevention and obstruction, andinvestigation as well as the facilitation and support of international cooperation, capacity
building and Mutual Legal Assistance (MLA) in the prevention and combating of corruption,
the ACU has been a full member of institutions or international instruments concerning anticorruption 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 Penhand Siem 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.
3.

Mutual Legal Assistance (MLA)
Regarding MLA in the case of corruption offences, the court authority of the Kingdomof Cambodia may delegate power to the competent court authority of any foreign state andmay also obtain power from the court authority of any foreign state, in order to: Collect evidence/proof or answer/respond through court means;－ 115 －

 Provide information about court documents;
 Search, arrest and confiscate; Examine objects and the crime scene; Provide information and exhibits;
 Issue original process-verbal or authentic copies and dossier, including bank statements,
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 to assist
in the investigation or to participate in the legal proceedings;
 Identify or seek resources, property, equipment, and materials derived from the offence; Place under temporary hold the products and properties obtained from corruption
offences as well as equipment and 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.9
In addition, reciprocity is also used in practice in MLA proceedings in case of theabsence of 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 andtheir foreign counterparts. Mutual Legal Assistance will not be refused solely on the groundsof bank secrecy 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 AntiCorruption Unit only.
Between 2012 and 2014, Cambodia received 42 requests for MLA in criminal mattersand 36 requests in civil cases from countries including the US, the UK and EU member
9Anti-Corruption Law, 17 April 2010, art. 51-53－ 116 －

States. Between 2012 and 2013, Cambodia sent 27 requests in criminal cases and 34 in civil
cases.10(a) Formal Channels for MLA
The formal procedure and mechanism for MLA is clearly stated in bilateral or
multilateral treaties or agreements as well as Cambodian domestic regulations currently inforce. Up to now, Cambodia is a state party to the ASEAN Mutual Legal Assistance Treaty in
Criminal Matters (AMLAT) and the South-East Asia Parties against Corruption (SEA-PAC).
Furthermore, the Ministry of Justice of Cambodia is currently drafting the Mutual Legal
Assistance Law.
Regarding the regulations in place, on the MLA procedure in Cambodia, the written
requests and related documents from foreign states have to be submitted to the Ministry ofForeign 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 roleas 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 tothe case of the request for repatriation of the assets or the arrests of the suspects.
(b) Informal Channels of MLA
Informal MLA procedure is particularly applied based on SEA-PAC and the MOU
between the ACU and the State Inspectorate and Anti-Corruption Authority (SIAA) of Lao
PDR (15 November 2013) and the MOUs between the ACU and the National AntiCorruption Commission (NACC) of the Kingdom of Thailand (3 September 2014).
In practice, when MLA is needed, the anti-corruption agency of a foreign state candirectly 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 by providing 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 aresult of collaboration between the ACU and the KPK, the suspect was arrested and sent backto Indonesia. In addition, the ACU and the CPIB have cooperated for the exchange of
information and support for the court procedure, the information gathering and evidencecollection, and obtaining interviews and recorded statements so that the CPIB could use theevidence legally in the court proceeding.

10

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

－ 117 －

(c) Extradition
The extradition conditions and procedures are stipulated in the Code of Criminal
Procedure 2009 (article 566-595), the Law on Anti-Corruption (article 50), extradition
treaties with four countries (China, Lao People’s Democratic Republic, Republic of Korea
and Thailand) and the principle of reciprocity. At the present time, Cambodia is in theprocess of negotiating extradition treaties with Viet Nam, Malaysia and Indonesia. In
corruption cases, if the suspect flees to a foreign country, the President of the Anti-Corruption
Unit may request the competent authority to extradite the suspect in accordance with theprovisions in force.11
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 apolitical offence, etc. The extradition treaties of Cambodia stipulate as mandatory grounds forrefusal of extradition the institution of criminal proceedings against a person sought on
account of sex, race, religion, nationality or political opinion, a political offence, aCambodian national, etc.12
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. 13 If
the Investigation Chamber grants the extradition request, the Minister of Justice shall proposethat the Royal Government issues a sub-decree ordering the extradition of the wanted
person.14
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.15
V. ACTUAL CORRUPTION CASE
A.

Fact Summary
On 13 July 2016, Mr. ECV, Chief of Bureau and Assistant to General Director, extorted
6,000 USD from KTS Company, which then reduced to 4,000 USD plus 100 USD (In total 4,100
USD) in order to obtain a VAT Exemption Letter for importing raw materials and chemical
substances for the production of the company. This illegal claim started on 26 February 2016.
At the same time, on 12 July 2016, Mr. ECV received an envelope from a customer with theamount of 800 USD and two other envelopes with the amount of 40 USD and 50 USD in
exchange for letters to export old water tanks without the obligation to pay tax. He wasdetained by the Anti-Corruption Unit (ACU) in a hotel on 13 July 2016.
B.

Investigatory Techniques

 Investigatory Process and the Red-Handed Offences
 ACU had traced his daily activities
Anti-Corruption Law, 17 April 2010, art. 26.2.
Code of Criminal Procedural, 10 August 2007, arts. 569-577.
13
Code of Criminal Procedural, 10 August 2007, art. 586.
14
Code of Criminal Procedure, 10 August 2007, arts. 586-589.
15
Draft country report on UNCAC review implementation in Cambodia, 2 December 2015, p. 153.
11
12

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 ACU had searched for his residential address, office address and his vehicle information
 ACU had launched a special operation to record his voice, video and activities,
especially while receiving the money.
C.

Court Judgements

 Mr. ECV was sentenced to 2 years in prison and 2,000 USD of monetary fines for
extortion committed in Phnom Penh on 13 July 2016 based on Art.-32 of Cambodia’s
Anti-Corruption Law and Art. 592, Art.-107, and Art.-108 of Cambodia’s Criminal
Code.
 Mr. ECV was ordered to pay back the amount of 72, 000 USD to the state All properties were seized as state property under Art. 62 and Art. 63 of the Criminal
Code as follows:- First envelop with the amount of 800 USD- Second envelop with the amount of 50 USD- Third envelop with the amount of 40 USD.
VI. CONCLUSION
Since the establishment of the Anti-Corruption Institution, the Anti-Corruption Unit hasgathered tremendous support from the public both nationally and internationally. Because of
the trust in the ACU, more and more private-sector entities have signed MOUs with the ACU
in order to participate in the fight against corruption and to conduct their businesses in a
corruption-free environment. In terms of building legal frameworks, the ACU has been in theprocess of drafting two important laws: first, the draft law on the protection of witnesses and,second, the draft law on the protection of reporting persons. In addition, the ACU has also
been in the process of drafting a code of conduct for public officials. As a result of thedissemination of the Anti-Corruption Law, public officials and ordinary citizens have a better
understanding of the impact of corruption and actively take part in the fight against thisuniversal social disease.
Even though there have been many remarkable achievements since the establishment of
the ACU, there are still many more challenges for the ACU to overcome in the coming years.
In this regard, the ACU is still looking forward to having more public support and public
participation from every stakeholder including the international support, both theoreticallyand technically, from regional and international partners.
“Together we can fight against corruption
And there is no safe haven for corrupt offenders”.

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THE DEVELOPMENT OF CORPORATE CRIMINAL LIABILITY IN
INDONESIA: CORRUPTION CASE
Yudi Kristiana* and Surya Tarmiani†

I. INTRODUCTION
Corruption is recognized as a world phenomenon where its existence follows the historyof human kind. 1 There is no primordial indigenous culture without corruption; there is no
system (from that of the USA to that of Japan) which is free from vast areas of corruption;
there is no center of government (from the prairies of America to the communist
collectivization) which has not been vitiated or distorted by corruption; there is no religion(eastern, Judeo-Christian or Islamic) which has not had to confront evils connected tocorruption; there is no empire (be it Persian, Roman, British or Soviet) which has notexperienced and has not been damaged by corruption.
Corruption is a serious phenomenon in Indonesia. Corruption used to be defined as “theuse of public power for private profit, in a way that constitutes a violation of the law. This
covers the case not only of an official who receives bribes either to act or not to act, but alsoof the one who takes none, but uses his offices to enrich himself illegally”. The term of private
is to be understood as not limited to the official, but also including a group or class with which
he identifies, while profit should be taken to cover all forms of advantage or benefit, not merely
financial.2
It is an undeniable fact that corruption has been widespread over all dimensions of lifein the nation. However, the most worrisome fact is that corruption does not originate frompeople at the lower social level, who may need more income to meet their living needs, but, on
the contrary, it originates at first from the elites.
Law enforcement frequently deals with corruption, and prosecutors routinely send theoffender to jail, but the assets which are the result of the crime or a predicate to crime, are not
identified and traced properly. Sending people to jail has become mainstream in the work of
the criminal justice system. Of course, the fact that the proceeds of the crime are often notrecovered is worrisome. So we need a paradigm shift.
In dealing with the effort to confiscate these assets, corporate criminal liability isimportant.

Head of Sub-Directorate of Other General Crime, Attorney General Office, Indonesia.
Investigator, Corruption Eradication Commission, Indonesia.
1
Adolfo Beria, “Global Strategies Against Corruption”, in Responding for Corruption: Social Defence,
Corruption, and the Protection of Public Administration and the Independence of Justice, updated documents on
the XIII International Congress on Social Defence, Lecce Italy, 1996, edited by Paolo Bernasconi, 2000, page 23.
2Leslie Palmer, The Control of Bureaucratic Corruption, Case Study in Asia, Allied Publishers Private Limited,
New Delhi Bombay Calcutta Madras Bangalore Hyderabad Ahmedabad, 1985, page 1.
*†－ 120 －

II. CORPORATE CRIMINAL LIABILITY UNDER THE ANTI-CORRUPTION
LAW
For a long time, Indonesia has had regulations establishing corporate criminal
responsibility, such as those founded on tax fraud, economic fraud, banking fraud, etc.,
including in corruption matters. However, implementation has not been done effectively.
Under Law No. 31 Year 1999 regarding the Eradication of the Criminal Act ofCorruption, as amended by Law No. 20 Year 2001 (the Anti-Corruption Law), a company
and/or individual directors may be exposed to potential criminal charges for corruption.
Articles 2, 3 and 5 through 16 of the Anti-Corruption Law delineate the perpetrator ofa criminal act of corruption with the phrase setiap orang (any person). Orang (person) itself isdefined under Article 1, point 3 of the Anti-Corruption Law to include a company. Pursuant to
Article 1, point 1 of the Anti-Corruption Law, a company is a group of persons and/or assetsorganized either as a legal entity or as a non-legal entity. Therefore, any person, which includes
a company committing a criminal act of corruption under one of the foregoing provisions of
the Corruption Law may be punished with criminal sanctions.
The liability of a company for criminal acts under The Anti-Corruption Law is
specifically enshrined in Article 20 of the law, which, in the relevant part, reads as follows:
1. If a criminal act of corruption is committed by or in the name of a company,
the criminal charges and verdict may be made against the company and/or
its officers.
2. Criminal acts of corruption are committed by the company if such criminal
acts are committed by persons based on an employment relationship or otherrelationship, acting in the corporate scope, whether alone or in concert.
Despite the clear language of the Anti-Corruption Law, there are very few cases inwhich the Indonesian courts have subjected a company to criminal liability for corruption.
Thus, while the anti-corruption law permits the bringing of charges against a company,
the fact remains that law enforcement agencies have been reluctant to invoke its provisions
against companies as opposed to individuals.
A.
1.

Strengthening Measures
Capacity Building
Prosecutors, investigators from the AGO, National Police and also investigators fromthe KPK have undergone a comprehensive training programme to enhance their knowledge
and capacities to address corporate corruption in Indonesia. The training came on the back ofa landmark legal development that strengthened legal mechanisms to investigate and prosecutecorporate corruption offences.
2.

Providing Guidelines
We realized that we already have regulations for corporate criminal liability based on
Law No. 31 Year 1999 regarding Eradication of the Criminal Act of Corruption, as amended
by Law No. 20 Year 2001, but the regulation lacks complete detail, which is why we needguidelines.

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In December 2016, the Supreme Court of Indonesia issued a set of regulations (theSupreme Court Regulations No. 13 Year 2016), which addressed legal ambiguities that wereimpeding prosecutors and investigators from pursuing corporations for committing criminal
offences, including corruption. Particularly this regulation makes criminal procedure incorruption cases more efficient, and guides prosecutors and law enforcement in the handlingof corruption cases.
The important provisions found in the SCR are:(a) Group and Successor Liability
The SCR apply to any type of corporation, whether it is the in the form ofa limited liability company or a partnership. The SCR do not differentiate
between local and foreign corporations. Given the board definition of
corporation and the non-differentiation of local and foreign corporation.
The SCR define the corporate criminal offence as a criminal act done by
any person who, based on an employment relationship or other relationship,acts whether alone or with others, for and on behalf of the corporation withinor outside the corporation business environment.
Criminal liability is not only limited to corporations, but can also be
applied to a group of corporations.
(b) The Requirement for Corporation Liability
There are 3 (three) requirements to hold a corporation liable for a criminal
offence: (1) the corporation might receive profit or benefit from the criminalact, or the criminal act was done on behalf of the corporation; (2) the
corporation let the criminal act be performed; (3) the corporation failed to takenecessary steps to prevent the criminal act, to prevent a greater impact, andfailed to ensure compliance with applicable laws in order to prevent a criminal
act; (4) during the investigation of a suspected corporation, the corporation will
be represented by a member of the Board of Directors. Summonses or
subpoenas will be addressed and delivered to the address of the corporation’sseat or where the corporation operates.
The SCR adopts a broad interpretation of management, as it is defined
not only to include people having the authority to manage or represent a
corporation, but also those that have control over or who can influence a
corporation’s policies or decisions. This means that management is not only
limited to members of the board of directors of the corporation being prosecuted.
(c) The Punishment for Corporations
The SCR also provide that sanctions can be imposed on the corporation,
management or both. The punishment could be basic and additional punishment.
The basic punishment imposed on a liable corporation is to fine the corporation.
Thus, the corporation is not sentenced to imprisonment or light imprisonment.
Additional punishment can include seizure of evidence or the corporation’s
assets or an order to pay compensation or restitution.
If a fine is sanctioned against a corporation and it fails to pay, theprosecutor’s office can confiscate the assets of the corporation to be auctioned
off. However, if a fine is sanctioned against a member of the management andhe or she fails to pay, he or she will be put in confinement.

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III. BEST PRACTICESA.

The First Corporation Corruption Case, PT GJW (AGO cases)
PT GJW entered into a contract with the Banjarmasin City Government for thedevelopment of Antasari Sentra Market for a period from 1998 to 2008. Under the contract,
the PT GJW is obliged to pay a replacement levy of IDR250,000,000 per annum, repay theAntasari Central Market Credit amounting to IDR3,750,000,000, and build Antasari Central
Market within a 24-month deadline. The development project included 3,459 kiosks / stalls
built over a 25,171 sqm area. On 15 August 2000, an addendum of the contract was made:a. The PT GJW paid IDR250,000,000 per year for the replacement levy subsidy;b. The number of units built was increased to 5,145 units over an area of 34,992.36
sqm;
c. Units would be sold to merchants under a 25-year lease, which for 25 years is alease-free period;d. For 25 years as a replacement subsidy, the PT GJW paid IDR2,500,000,000 incompensation, and if the department store is not rented, then the compensation is
only IDR2,000,000,000.
Until December 2002 the construction of Antasari Sentra Market had not been
completed so the Mayor of Banjarmasin extended the deadline until February 10, 2003. But by
August 2003 it was still not finished, so the Mayor of Banjarmasin revoked the legal orderappointment of the PT GJW as partners and canceled the contract. According to the addendum,PT GJW should build only 5,145 units but without the approval of Parliament Banjarmasin,
6,045 units were built by PT GJW, meaning that an additional 900 units were built. A total of
900 units were sold at IDR16,691,713,166, which was not deposited into the local treasury.
The PT GJW had the obligation to pay compensation amounting to IDR500.000.000, which
included paying rent of IDR2,500,000,000, and making the credit repayment of Inpres Pasar
Antasari in the amount of IDR3,750.000.000. The total amount to be paid was
IDR6,750.000.000, but PT GJW only paid IDR1,000,000,000, so there was a shortfall of
IDR5.750.000.000. The PT GJW gave false information by stating that the construction ofAntasari Sentra Market had not been completed yet. But according to the Project Manager ofMarket Building and the completion report as of September 2004, the development had been
100% completed and as of October 2004 there was a surplus of IDR64,579,000,000.
The PT GJW deliberately did not pay the money management of Antasari Sentra
Market and provided information that was not true as if the project was operating at a loss.
According to the financial statements of July 2004–December 2007 collected funds amounted
to IDR7,650,143,645. Based on the calculation of government auditor, PT GJW had failed to
pay the Banjarmasin City Government in an amount equal to IDR7,332,361,516,00.
The PT GJW used Banjarmasin municipal assets in the form of land and market
buildings to guarantee credit obtained from M Bank amounting to IDR100,000,000,000. In
accordance with the agreement, PT GJW had the obligation to deposit all proceeds of cash andcredit sales in an escrow account at M Bank, but PT GJW only deposited a portion of theproceeds of sale. As of February 19, 2010, related to the use of the working capital loan fromM Bank, PT GJW still had a principal liability of IDR83,429,070,000,00, interest payable of－ 123 －

IDR 63,732,298,096.66, and a penalty of IDR52,374,696,578.99 the total amount of
IDR199,536,064,675.65.
On May 23, 2011, the case of PT GJW was decided by the judge. PT GJW was foundguilty and was ordered to pay a fine of IDR1,300,000,000 and was temporarily closed for 6
months. This is the first case of corporate corruption in Indonesia in which a corporation was
found guilty by a judge.
B.

PT DGI (KPK Case)
In July 2017, the Corruption Eradication Commission of the Republic of Indonesia(KPK) opened an investigation of PT DGI under suspicion of corruption as a result of thedevelopment of a criminal corruption case investigation connected with the project work of theSpecial Education Hospital of Infectious Diseases and Tour Travel Universities Dayan in Fiscal
Year 2009-2010. The company allegedly lost the state IDR25 billion from the IDR138 billion
project budget. Currently PT DGI has changed its name to PT NKE. This is the first case of
the KPK in a criminal act of corruption with a corporation suspect.
In the previous stages, the corporate executives, the PT DGI executives were designatedas suspects several months before, and the former Director of PT DGI has also been made asuspect. In the previous case in the decision of the Marketing Manager of PT DGI, MEI,
mentioned that this company gave IDR4.34 billion to NZ for PT DGI to be the winner in the
procurement of development projects Wisma Atlet and Multipurpose Building of South
Sumatra. PT DGI first appeared when the KPK managed to uncover the alleged bribery casein the Wisma Atlet project. The case began from a KPK red-handed operation against MRM,
MEI, and WM.

－ 124 －REPORT ON PREVENTION AND ANTI-CORRUPTION EFFORTS IN
LAO P.D.R
Vilavong Phomkong* and Thepphathai Phanka†

Nowadays, the Government of Lao PDR is making efforts to play an important role inprevention and anti-corruption efforts, and to direct ministries and other agencies including local
government. Inspection is the main of role of leaders at each level: “No inspection means noleadership”. The prevention and fight against corruption is work that needs to be integrated withevery activity, done regularly and cannot be ignored, especially in terms of the impact of
corruption on the condition of the market economy that is led and controlled by the state.
Corruption is an issue facing all countries worldwide and international agencies, and activities toprevent and combat corruption can follow many models, methodologies and measures available inmany countries. The establishment of the United Nations Convention Against Corruption, whichaims to reduce corruption step by step, can control corruption cases that happen in different areas
within countries. Because corruption is one of the insidious plagues that has a wide range ofcorrosive effects on societies, it undermines democracy and the rule of law, leads to the erosion of
the quality of life and allows other threats to human security to flourish.
Sustainable development is the primary basis for socio-economic development. Although
Lao PDR is progressing in this regard, an insidious plague is being encountered, especiallycorruption that happens in other areas such as state governance, construction management, state
funds and property management, payroll, and abuse of position, power and duty to benefit oneself
at several levels. Corruption is wide ranging and cannot be easily resolved. Thus, it is importantthat the Government of Lao PDR has adopted several the principles on preventing and combating
corruption, as follows:
1. The main focus shall be on the prevention of corruption, while countering corruption
shall be regarded as important;
2. Inspection of corruption phenomena shall be conducted immediately, strictly,
independently, objectively, and accurately;
3. If there is an offence, the matter should be dealt with strictly, immediately, and withjustice;
4. It must be ensured that there is no interference, obstruction, or threat from any
individual or organization;
5. Individuals and organizations to be inspected shall cooperate and create conditions thatfacilitate the inspection;
6. The State shall create conditions for citizens, social organizations, and mass media toparticipate in the prevention and countering of corruption according to regulation.
This paper will consider a decade of combating and preventing corruption in Lao PDR,
highlighting the practical developments of the State Inspection and Anti-Corruption Authority and*†Head of Internal Inspection, Department of Inspection, Office of the Supreme People’s Prosecutor, Lao PDR.
Deputy Director General, Anti-Corruption Department, State Inspection Authority, Lao PDR.

－ 125 －

the State Inspection Agencies at each level in the prevention and fight against corruption.
I. PREVENTION OF CORRUPTION
Prevention of corruption refers to protecting against corruption and preventing corruption
from occurring in State organizations, political organizations, and social organizations byeducation campaigns, declaration of assets, inspection, implementation of policies and so on. The
State Inspection and Anti-Corruption Authority has provided many lessons learned that can beapplied to anti-corruption cases, such as to research and detail the content of the law to be therule, principle, and measures for the prevention and countering of corruption to ensure that theproperty of the State, Society and the rights and interests of citizens are not damaged, embezzled,or swindled, to subject offenders to legal proceedings and protect those who are innocent, withthe aims of strengthening State organizations, increasing transparency and the ability to conduct
inspections at all times, and achieving political stability, a stable and progressive economy,
public security, public order, and justice. These lessons include:
1. The resolution of the Central Party Committee No. 02 to supplement monitoring,inspection of prevention and anti-corruption efforts by new conditions on Government staff at alllevels, especially the leaders shall act as role models in the strict implementation of laws andregulations, shall lead in having transparent lifestyles and shall not engage in corruption. Theirmain responsibilities are to educate the public to respect and strictly comply with the laws andregulations and to promote awareness among citizens and social organizations that corruption isan insidious plague;
2. To adopt the Decree of the President of Lao PDR on the promulgation of the Law on
Anti-Corruption of 2005. The Government of Lao PDR agreed to improve the Anti-Corruption
Law and promulgated the new text in 2013. Chapter 2, article 11 defines 12 acts that canconstitute corruption;
3. To adopt the Strategy of Anti-Corruption for the years leading up to 2020. The strategyemphasizes and divided responsibility to prevent and combat corruption to each level of the State
Inspection Authorities, such as:- To educate the public to respect and strictly comply with the laws and regulation andunderstand the evils of corruption;- Incorporate legal texts deemed necessary into the educational curriculum fromkindergarten to the high school level, technical colleges, and universities. Now we havesucceeded in implementing educational curriculum from kindergarten to the high schoollevel, and continue to the university level;- To study, improve, and create legislation for the prevention and fight against corruption;- To improve governance mechanisms to ensure that they are good, effective andtransparent;- To promote the public, mass media, and social organizations to participate in theprevention and countering of corruption according to regulation such as direct calls,
mailboxes, promoting Anti-Corruption Day by printing of AC banners, pens, t-shirts,
stickers (UNODC, local business), advocate through radio programmes twice a week at
99.7 MHz, Anti- Corruption journals, etc.

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-To define and implement policies toward government staff at each level clearly and toensure proper living conditions.

4. To adopt the Decree on Declaration of Assets and Income. We also have to apply thesame rule of division of management, such as from the Central, ministerial, provincial anddistrict levels, and started for the first time in 2014. Generally, there is a two-year declaration
cycle in which officials are required to declare their assets and income before achieving a
position, when they submit an application for election, and before they retire.
5. The Resolution of the Central Party Committee No. 022 on dealing with excessive useof position, power, and duty, prevention and anti-corruption, and other methods to ensure that theGovernment staff at all levels, administrative staff, technical staff, the staff of state enterprises,
civil servants, soldiers, and police officers who have positions, power or duties in party
organizations, State organizations, the Lao Front for National Construction, mass organizations,
State-owned enterprises, State-mixed enterprises, State-partnerships, technical units,administrative units, and all forms of organization established by the state to engage in business,
including those who are officially authorized and assigned to exercise any right or duties, are notengaged in corruption.
To implement prevention and to combat corruption, the State Inspection and AntiCorruption Authority has divided responsibility to State Inspection Agencies at each level asfollows:• Central-level responsibility by the State Inspection and Anti-Corruption Authority;• Ministry-level responsibility by Inspection Departments;• Provincial-level responsibility by Provincial Inspection Departments; and• District-level responsibility by District Inspection Offices.
The main methods aforementioned are the important tools to implement prevention and tocombat corruption. The Anti-Corruption organizations at each level shall perform their duties
objectively, with transparency, and correctly according to its scope of rights and duties and theprocedures as stipulated in the laws, including being highly accountable for the conduct of its
responsibilities under the laws and being subject to inspection by the National Assembly. Besides
that, Party organizations, state organizations, Lao Front for National Construction, massorganizations, social organizations, mass media, and citizens all have the obligation to participate
in the prevention and countering of corruption by the timely provision of cooperation, facilitation,
information, and evidence to concerned organizations which have the rights and duties to deal
with corruption.
II. ANTI-CORRUPTION EFFORTSCountering corruption refers to eliminating, repressing, and suppressing all wrongful acts
constituting corruption by inspection, education, implementation of discipline, and punishment asprovided by the laws. So, the cases that result in conducting an inspection by the countercorruption organization are as follows:
1. When firm information and evidence that an act constituting corruption has beencommitted are found;－ 127 －

2. When there is a notification, submission, proposal, report, or claim regarding
corruption;
3. When any government staff member, or husband, wife or child under the charge of suchgovernment staff member, appears to be unusually rich.
Inspections in the aforementioned cases must be conducted according to the following
procedure:- Examine the notification, submission, proposal, report, or claim and, if deemednecessary, collect data in the field;- Prepare and establish a plan for the actual inspection in coordination with concerned
sectors and local administrations;- Inspect all documents and assets of concerned individuals or organizations, especiallyto inspect the financial situation and accounts, revenue, and expenses, and the use of
grants and loans;- Call and invite the representative of the organization or the individual concerned tocome to give explanations and clarification;- Summarize, evaluate, and decide on the result of the inspection.
A.

The Decision on the Result of Inspection
When the inspection procedure is completed, and firm evidence of corruption is found, theanti-corruption organization has the right to decide as follows:- Proposal to related organizations in the case of a minor offence not causing substantial
damage, as provided for in Articles 56 and 57 of the law, it shall submit the matter toconcerned organizations which have the rights and duties to educate, warn or impose
disciplinary measures on the offenders,- In the case of a serious offence as provided for in Articles 58 to 61 of the law, aninvestigation must be conducted, and- When there is firm or solid evidence, it should be summarized and sent to the publicprosecutor to consider prosecuting the offenders in court.
i. Case proceedings, after the inspection and investigation, these appear to be solid
information and evidence, the anti-corruption organization shall make a summary of
the inspection result, complete the file of the case and then send it to the publicprosecutor to consider bringing a prosecution in court.
ii. In the event that the public prosecutor fails, without reason, to prosecute the case incourt, the anti-corruption organization has the right to submit to the higher level of
public prosecutor to consider and deal with the issue.
Fighting corruption over a decade, the State Inspection and Anti-Corruption authorities at
each level make efforts to conduct monitoring and inspect any case of corruption. Any individual
who violates the anti-corruption law thereby causes damage to the interests of the State and society,and such persons are subject to education or disciplinary measures as provided by law or to penal－ 128 －

measures depending on the gravity of the offence, including having to pay compensation for thedamage caused by such person. The activities include:1) Education by Training-Anti-corruption 3 batches (46 graduates), short course 74
batches (4,157 participants), 5 batches in Viet Nam (77 participants);
2) Outreach Programme: Promoting Anti-Corruption Day by printing anti-corruption
banners, pens, t-shirts, stickers (UNODC, local business), advocating through radio
programmes twice a week at 99.7 MHz, Anti-Corruption journals, mailings, and directcalling;
3) Incorporate legal texts deemed necessary into the educational curriculum. Now wehave successfully implemented educational curriculum from kindergarten through thehigh school level, and continue to technical colleges and universities;4) Over 734 targets were inspected in the last 5 years, with some 1,800 civil servants
found to have violated regulations and laws and been sanctioned for their misconduct,
logging suspension in compliance with PM Order No. 15.
B.

Protection of Witnesses and Reporting Persons
Officials who conduct counter-corruption operations, as well as those who participate insuch operations such as: reporters, information providers, injured persons, witnesses, and experts,
shall be protected from revenge, or threats to their lives, health, freedom, honour, reputation, andproperty.
C.

International Cooperation
The State conducts relations and cooperates with foreign countries and internationalorganizations on the prevention and countering of corruption, based on the laws and regulationsof Lao PDR in compliance with international conventions and agreements that the Lao PDR
has signed and is a party to. So, other fundamental tools and channels we use to fight corruption
include the United Nations Convention Against Corruption (UNCAC) of which Laos is a party.
We are also a State Party to the South East Asia Parties Against Corruption, or SEA-PAC, where
we have regularly engaged in annual and secretarial-level meetings in order to share bestpractices, lessons and practical experiences from one another and apply locally as appropriate.
Other than that, we have bilateral cooperation with our neighbouring countries, like Viet Nam,
China, Cambodia and Thailand in the area of combating corruption.

Before I end my report, I would like to share with you some challenges we face andpossible solutions.
-First, the dissemination of information, policies, laws and legislation related to anticorruption solutions;-

Second, law enforcement against offences is not strong and decisive;-

Third, lack of knowledge, experience and financial resources. Also, the cooperation
mechanism between social organizations, citizens and Government on prevention andagainst corruption good practice is not effective and efficient.

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Since there are many challenges, we believe the solutions stated below should help
strengthen our work:• Strengthening the implementation of the laws and legislation related to fighting
corruption to subject offenders to legal proceedings;• Improving the existing laws so they are more comprehensive and transparent;• Continuing to forge cooperation, exchange information, knowledge and good practices
on prevention and anti-corruption enforcement with countries in the region and theworld.
Finally, I would like to once again express deep appreciation to UNAFEI for holding thisseminar which will contribute to the enhancement and collaboration between ASEAN member
countries in their anti-corruption work.

－ 130 －BEST PRACTICES IN ANTI-CORRUPTION: A DECADE OF
INSTITUTIONAL AND PRACTICAL DEVELOPMENT
IN SOUTHEAST ASIA
Amir bin Nasruddin*

I. INTRODUCTION
Corruption as we all know is a “crime without boundaries.” International cooperation plays
a vital role in combating corruption when the crime exceeds its boundaries. One of the tools incombating corruption is through legislation. The Malaysian anti-graft legislation has itself gone
through phases and changes. Malaysia’s first specific law on anti-graft was legislated in 1961,1
and was followed by another which was legislated in 1997.2 In 2009, Malaysia’s latest anti-graftlaw was legislated3, which came into effect on 1 January 2009.
II. CRIMINALIZATION OF SPECIFIC OFFENCES — MALAYSIAN ANTICORRUPTION COMMISSION ACT 2009 [ACT 694]
Criminalization of specific offences is stipulated under Part IV of the Malaysian AntiCorruption Commission Act 2009 [Act 694]. In Malaysia, the following conduct has been
criminalized:•

The offence of soliciting and receiving or giving and offering gratification by a person
himself, or by or in conjunction with any other person as an inducement to or reward
for, or otherwise on account of any person doing or forbearing to do in respect of any
matter or transaction, actual or proposed or likely to take place.4•

Any agent who corruptly accepts or obtains or gives or offers any gratification as an
inducement for doing or forbearing to do any act in relation to his principal’s affairs.5•

Any person who gives to an agent, or being an agent uses with intent to deceive his
principal, any receipt, account or other document which contains any statement which
is false in material particulars with intent to mislead the principal.6•

Any person who, with intent to obtain from any public body a contract for performing
any work, offers any gratification to any person who has made a tender for the contract

Deputy Public Prosecutor, Legal and Prosecution Division, Malaysian Anti-Corruption Commission.
Prevention of Corruption Act, 1961 [Act 57].
2
Anti-Corruption Act 1997 [Act 575].
3
Malaysian Anti-Corruption Commission Act 2009 [Act 694].
4
Offence of accepting gratification, section 16 Malaysian Anti-Corruption Commission Act 2009.
5
Offence of giving or accepting gratification by agent, section 17 Malaysian Anti-Corruption Commission Act 2009.
6
Offence of intending to deceive principal by agent, section 18 Malaysian Anti-Corruption Commission Act 2009.
*1－ 131 －

as an inducement for his withdrawing the tender or anyone who solicits or accepts any
gratification as an inducement for his withdrawing a tender made by him for suchcontract.7•

Any person who offers to an officer of the public body, or being an officer of the publicbody, solicits or accepts any gratification as a reward for:
- The officer voting or abstaining from voting at any meeting of the public body infavour or against any measure, resolution or question submitted to the public body;- The officer performing or abstaining from performing or aiding in procuring,
expediting, delaying, hindering or preventing the performance of any official act;
- The officer aiding in procuring or preventing the passing of any vote or the grantingof any contract or advantage in favour of any person; or- The officer showing or forbearing to show any favour or disfavour in his capacity
as such officer.8•

Any officer of the public body who uses his office or position for gratification when hemakes any decision or takes any action whether for himself, his relative or associate inrelation to any matter in which such officer or any relative or his associate, has interest
whether directly or indirectly.9•

Any person to whom gratification is given, promised or offered shall report such gift,promise or offer and any person who fails to report.10•

Any person who enters into any dealing (e.g. used, holds, receives or conceals) any
property of the corrupt person.11•

Any person making false statement which is intended to mislead the officer of theCommission or the Public Prosecutor.12

Criminalization of the foreign public officials has been incorporated into the MalaysianAnti-Corruption Commission Act 2009 [Act 694].13
Section 22 of Act 694 provides, any person who by himself, or by or in conjunction withany other person gives, promises or offers, or agrees to give or offer, to any foreign public official,or being a foreign public official, solicits, accepts or obtains, or agrees to accept or attempts toobtain, whether for the benefit of that foreign public official or of another person, any gratification
as an inducement or reward for, or otherwise on account of—
Corruptly procuring withdrawal of tender, section 20 Malaysian Anti-Corruption Commission Act 2009.
Bribery of officer of public body, section 21 Malaysian Anti-Corruption Commission Act 2009.
9
Offence of using office or position for gratification, section 23 Malaysian Anti-Corruption Commission Act 2009.
10
Duty to report bribery transaction, section 25 Malaysian Anti-Corruption Commission Act 2009.
11
Dealing with, using, holding, receiving or concealing gratification or advantage in relation to any offence, section
26 Malaysian Anti-Corruption Commission Act 2009.
12
Making of statement which is false or intended to mislead, etc., to an officer of the Commission or the Public
Prosecutor, section 27 of the Malaysian Anti-Corruption Commission Act 2009.
13
Bribery of foreign public officials, section 22 of the Malaysian Anti-Corruption Commission Act 2009.
7
8－ 132 －

(a) the foreign public official using his position to influence any act or decision of theforeign state or public international organization for which the official performs any
official duties;(b) the foreign public official performing, having done or forborne to do, or abstaining fromperforming or aiding in contribution to the international’s effort to criminalize the conduct.
procuring, expediting, delaying, hindering or preventing the performance of, any of his
official duties; or(c) the foreign public official aiding in procuring or preventing the granting of any contract
for the benefit of any person.
In addition, the Act also covers aiding and abetting in committing the offence, conspiring
to commit the offence or attempting to commit the offence.14
Section 3 of the Act interprets “prescribed offence” as an offence under the Act which
includes any offence under any written law as specified under the schedule, 15 an offence
punishable under section 137 of the Customs Act 1967 [Act 235] and an offence under Part III of
the Election Offences Act 1954 [Act 5]. It also covers attempt to commit16 or abetment of or acriminal conspiracy to commit17 the offences of the above mentioned (prescribed offence) as anadditional offence.
The Act provides that the evidence of Accomplices and Agent Provocateurs could be usedas admissible evidence in the prosecution of offences of bribery.18
This provision would be of invaluable assistance, as one is only too aware that corruption
is sometimes regarded as silent crime between consenting adults. Having said this, if there is othercompelling independent and corroborative evidence, the “giver and taker” of the bribe could beprosecuted, respectively. Plea-bargaining is being introduced into the Criminal Procedure Codewhich came into force on 1 June 201219. This facility would enable the cooperation of co-offenders
in the prosecution of bribery offences.

Attempts, preparations, abetments and criminal conspiracies punishable as offence, section 28 Malaysian AntiCorruption Commission Act 2009.
15
Offences punishable under sections 161, 162, 163, 164, 165, 213, 214, 215, 384, 385, 386, 387, 388, 389, 403,
404, 405, 406, 407, 408, 409, 417, 418, 419, 420, 465, 466, 467, 468, 469, 471, 472, 473, 474, 475, 476 and 477 A of
the Penal Code.
16
Section 3 Interpretation of ‘prescribed offence’ paragraph (d).
17Section 3 Interpretation of ‘prescribed offence’ paragraph (e).
18
Evidence of accomplice and agent provocateur, section 52 Malaysian Anti-Corruption Commission Act 2009.
19
Plea bargaining, section 172C of Criminal Procedure Code [Act 593].
14－ 133 －

III. ASSET RECOVERYThe MACC also within the Act has well-defined powers of freezing of assets and powers
of forfeiture. This is apart from the additional powers provided for in the Anti-Money Laundering
Legislation.20 Asset recovery is an important component of forfeiture of property. The field ofasset recovery encompasses all of the steps necessary for a successful asset recovery in order thatit be liable for forfeiture. Asset recovery would include asset tracing, freezing, confiscating andresolving competing claims from bona fide parties. Apart from provisions within the Act, invoking
Mutual Legal Assistance and Anti-Money Laundering provisions, would be inevitable, in thisregard.
In tandem with this Act, we have recourse to the Mutual Assistance in Criminal Matters
Act 200221 and various mutual legal assistance treaties and memoranda of understanding enteredinto by our country with foreign countries and counterparts, to assist in providing for mutual legal
assistance in criminal matters.
IV. POWERS OF FORFEITURE
Forfeiture is the permanent deprivation by an order of a court or other competentauthority. In this respect, the provisions of section 40 and 41 of the Act provides the power of
forfeiture.22 The term property under the Act means real or personal property of every
description, including money of property whether situated in Malaysia or elsewhere, whether
tangible or intangible and includes an interest in any such real or personal property.
Where the offence is proved against the accused but the property that is proved to be thesubject matter of the offence cannot be traced or is disposed, the court can order the accused to
pay a penalty that is equivalent to the amount of the gratification. This penalty is over and above
the punishments provided for under the Act.
V. MOHD KHIR TOYO’S CASE23 [CASE AGAINST A PUBLIC OFFICIAL AND
FORFEITURE OF PROPERTY WHICH IS THE SUBJECT OF THE OFFENCE]
The accused was the Chief Minister (Menteri Besar) of Selangor, also holding the post of
Chairman of Selangor State Development Cooperation (PKNS), at that material time and wascharged under section 165 of the Penal Code for, as a public servant, the offence of accepting avaluable thing for himself in exchange for consideration which he knew to be inadequate from SP2
whom he knew had connections with his official work.” Section 165 of the Penal Code is aprescribed offence under the Anti-Corruption Act 1997 by virtue of section 2 of the latter Act.
Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 [Act 613].
Mutual Assistance in Criminal Matters Act 2002 [Act 621].
22
Section 40 of MACC Act 2009 provides that in any prosecution under the MACC Act 2009, the court can make anyorder for the forfeiture of any property which is proved to be the subject matter of the offence. Section 41 of the Act
provides that where any property seized under the MACC Act and where there is no prosecution or convictions, thePublic Prosecutor may apply to a Sessions Court Judge an order of forfeiture if he is satisfied that the property had
been obtained in connection with an offence under the Act.
23
Mohd Khir Toyo v. PP [2015] 8 CLJ 769.
2021

－ 134 －

A.

Brief Facts of the Case
SP2 bought a property from SP1 for the price of RM6.5m. In 2004, the accused wanted tobuy a house from SP2. SP2 asked for the price between RM5m – RM5.5m. The accusedcounteroffered for RM3.5m, which was well below market price. The accused came to know thatthe property was well below market price as he wanted to renovate the house and appointed arenovation contractor even before he was registered as the owner.
SP2 had agreed to sell the said property at RM3.5m to the accused, out of apprehensionthat his (SP2) position in Selangor would otherwise be adversely affected if he were to insist on
RM5 - 5.5m.
SP2 had official business with the accused by the application of Roniaga that bore theendorsement of the accused. The relationship between SP2 and the accused in his capacity as
Chairman of PKNS was also proved by the joint-venture between PKNS and Roniaga dated
9.5.2002. Although the seller was Ditamas, SP2 was the director of Ditamas who sold the said
land to the accused. The trial court found that SP2, through his companies, had dealings with theaccused in his official capacity.
B.

Finding of the Trial Court (High Court)
The accused was found guilty and sentenced to 1-year’s imprisonment. The property was
also being ordered to be forfeited under section 36(1) which, read together with section 56 of the
ACA 1997, provided for forfeiture of the subject property. The conviction, sentence and theforfeiture order of the trial court was later affirmed by two other appellate courts (Court of Appeal
and Federal Court).
VI. PROTECTION OF WITNESSES/INFORMERSThere is within the Act, protection for informers and their identities.24 Equally, we have a
Whistle Blower’s Legislation 25 and Witness Protection Legislation 26 to enhance the protection
given to informants in relation to corruption or bribery offences.
VII.

LIABILITY FOR OFFENCES OUTSIDE MALAYSIA

Extraterritorial jurisdiction to prosecute bribery exists if there is sufficient basis forjurisdiction where there is a real and substantial risk between the offence and Malaysia. In making
this assessment, the court will consider all relevant facts that happened in Malaysia that gave
Malaysia an interest in prosecuting the offence.27

Protection of informers and information, section 65, Malaysian Anti-Corruption Commission Act 2009.
Whistleblower Protection Act 2010 [Act 711].
26
Witness Protection Act 2009 [Act 696].
27
Section 66 of the Malaysian Anti-Corruption Commission Act 2009.
24
25－ 135 －

VIII. POWERS OF INVESTIGATIONThe MACC’s tools of investigation for the offence of bribery are enshrined in Part V of
the Act.28 A glimpse of these powers would indicate that there are explicit provisions overridingbanking secrecy laws and professional legal privilege. Further, the Act provides that officers of
the Commission have the power to obtain information in the course of investigation for an offence
under the Act, about property that they reasonably have grounds to believe have been acquired
through proceeds of the bribery. This information may be secured from the suspect himself, his
relatives or associates, or any other person whom the officer has reasonable grounds to believe canassist in the investigations. Failure by any party to provide the information required is a criminal
offence.29 Interception of communications30 and surrender of travel documents of persons subject
to investigations31 are incorporated into the Act as tools of investigation.
IX. CONCLUSION
In combating “crime without boundaries”, international cooperation is imperative in any
country’s strategy towards it. International cooperation cannot be more forcefully required than in
the investigations into bribery. Cross–border investigations and joint investigations would be vitalin this area. Strengthening the ability of countries to recover assets that are regarded as proceedsof bribery and are concealed in foreign jurisdictions is now a key part of the worldwide campaign
against corruption. Many countries, Malaysia included, seem committed in taking important steps
to facilitate rightful recoveries.
The informal assistance of the international cooperation is at the law enforcement levelfrom counterparts in other countries to render assistance in obtaining publicly available
information, i.e. land title records, company registration, locating a person, premises, arrangement
to interview a person and verifying information if they have direct contact at the law enforcementlevel, which has been proven to hasten the process of investigation.32 However, these informal
measures cannot be done where compulsive measures are required or where a witness is reluctant
to cooperate, e.g. the issue of subpoenas to witnesses to record statements before a judicial
authority and production orders to financial institutions or companies.33 The challenges of formal
requests through Mutual Legal Assistance normally will be understanding the laws and procedures,knowing the mandatory or discretionary grounds of refusal and undertaking and languages to be
used.
Maintaining a good relationship between the person in charge of the Central Authorities or
between law enforcement agencies will nurture and ensure the success of international cooperation
either through formal or informal requests.
Section 29-49 Malaysian Anti-Corruption Commission Act 2009.
Section 36 Malaysian Anti-Corruption Commission Act 2009.
30
Section 43 Malaysian Anti-Corruption Commission Act 2009.
31
Section 44 Malaysian Anti-Corruption Commission Act 2009.
32
Dato’ Umar Saifuddin bin Jaafar, “Informal Measures In Mutual Legal Assistance – Success Stories; PublicPrivate Partnership To Prevent And Detect Corruption”.
http://www.unafei.or.jp/english/pdf/PDF_GG9_Seminar/19_GG9_IP_Malaysia2.pdf.
33
Baizura Kamal, “International Cooperation: Mutual Legal Assistance and Extradition”.
http://www.unafei.or.jp/english/pdf/PDF_GG6_Seminar/05-4_Malaysia.pdf.
28
29－ 136 －

To that end, unless countries are prepared to set aside the obstacles of differing legal
regimes, political chauvinism, suspicions and cultural differences and adopt a common stand on
the eradication of corruption, the offence of bribery will remain unabated and the recovery of assets
will be thwarted.

－ 137 －BEST PRACTICES IN ANTI-CORRUPTION: A DECADE OF
INSTITUTIONAL AND PRACTICAL DEVELOPMENT
IN SOUTHEST ASIA
Mohd Anuar bin Ismail*I. BACKGROUND
Over the past decade, the Malaysian Anti-Corruption Commission (MACC) has further
advanced its anti-corruption efforts by undertaking various initiatives and making changes
resulting in significant operational enhancements to continue improving its performance. The ongoing strategic efforts to establish effective practices aimed at the prevention of corruption can beseen across the various divisions within the MACC.
Since the introduction of the new anti-corruption law in 2009, the MACC has conducted
several strategic brainstorming sessions, internally and externally, in collecting useful information
for diagnostic purposes and assessing the current state in formulating the strategic direction. Road
Maps of Implementation have been put in place by MACC, which are scheduled to be carried out
over the medium and long-term time lines.
II. MACC’S KEY INITIATIVES FROM 2009–2017
Summarized below are some of the key implementations and initiatives taken by MACC
from 2009 – 2017.
A.

Interviewing Standards
The MACC has adopted the PEACE technique of interviewing witnesses/suspects. The
PEACE technique broadly consists of:
I.
II.
III.
IV.
V.

Planning and Preparation;
Engage and Explain;
Account, Clarification and Challenge;
Closure; andEvaluation.

In this respect, the MACC has put in place a project to train all investigating officers in the
PEACE technique. Most of the MACC investigating officers have been trained in PEACE courses
conducted at the Malaysia Anti-Corruption Academy (MACA) by the National Policing
Improvement Agency of the United Kingdom.

*

Senior Investigator, Malaysian Anti-Corruption, Malaysia.

－ 138 －

B.

Search & Seizure
Stricter standard operating procedures have been issued with regard to search and seizure
in situations with or without written authorization.
C.

Qualification and Training of MACC Officers
The entry qualification for a candidate into the MACC service is a diploma or tertiary
degree, and the basic training has been extended from 3 months to 12 months with effect from2013 for the new recruits.
D.

Malaysia Anti-Corruption Academy (MACA)
The courses conducted at MACA have also been improved to incorporate the changes thatsuit the current needs. The courses’ contents have been revamped to be more comprehensive andto cover a wider range of fields.

E.

Video Interview Rooms (VIR)
The MACC has introduced the use of video recording interviewing room where theinterview process is recorded visually with audio to ensure transparency and also to dispel
allegations of misuse of powers by MACC officers during any interview. All interviews are to be
conducted fully within the ground floors of the MACC offices.
F.

Treatment of Summoned Persons and Visitors
Specific instructions for tighter procedures have been issued on the handling/supervisionand monitoring of summoned persons and visitors to the MACC.

G.

Security Features in MACC Offices
All MACC offices have been equipped with CCTV. Security grilles (certain levels on anas needed basis) have been installed in all MACC offices nationwide for security and safety.
III. OTHER BEST PRACTICES/METHODOLOGIESA.

Team-Based Investigation
A team-based investigation (combining both operations and prevention, simultaneously) is
the key to an efficient methodology in investigations. In this respect, New Standard Operating
Procedures and Operational Toolkits are being implemented. A team-based investigation not only
shortens the time of completion of an investigation but also enables effective pooling of various
expertise needed in a complex investigation which would yield positive outcomes in every
investigation.
Another milestone initiative is the setting up of the Special Operations Room equippedwith advanced technology, networking and complete one-stop office facilities. It is especially
useful for larger team-based operations where the team can work efficiently and effectively in a
focused manner and environment.
MACC has also developed structured training modules to support the implementation ofthis methodology.

－ 139 －

B.

Private Sector Investigation
To enhance investigation of corruption in the private sector, a collaborative approach wastaken in building strategic alliances with various government agencies like Bank Negara Malaysia,
the Inland Revenue Board, the Companies Commission, Cyber Security, the Stock Exchange andthe Securities Commission Malaysia. These alliances through a collaborative multi-disciplinary
work approach have laid the foundation for a more solid, transparent and efficient sharing of
information, expertise, knowledge and skills. This should also enable MACC to probe othercorruption-related offences.

Leveraging on the collaboration with other agencies, they have been engaged to provide
considerable in-depth training for MACC officers to enhance the industry knowledge on private
sector investigation. MACC has also developed structured training modules to support theimplementation of this methodology.
C.

Legal and Prosecution
The MACC has identified weaknesses in the effectiveness of its prosecutions and a few
steps were undertaken to address and improve our success rate of prosecutions and convictions.
The MACC is now engaging with Deputy Public Prosecutors to identify gaps in the processes ofhandling cases pertaining to corruption, looking into the current Standard Operating Procedure(SOP) and/or any loopholes within the designated law. This immense effort is to study andstrategize to improve the rate of conviction of corruption cases in Malaysia. As a result of this,Legal Gap Analysis was prepared and recommendations on legal aspects were made including the
proposal to enhance SOPs and amend certain corruption law provisions. The applicability of Plea
Bargaining, Corporate Liability and Misconduct in Public Office are also being examined.
D.

Pro-Active Investigation
A foreign expert who is specialized in undercover training in some of the most reputable
enforcement agencies in Canada, the United States of America and Europe was engaged to train
several officers in specialized undercover operations and integrity testing. An updated SOP onundercover operations is already in place. With the need for speedy information, the MACC has
set up an Intel-Info Centre, where the terminals are linked to external agencies online for the data
retrieval process in facilitating intelligence work. Pro-active investigation is complemented byintelligence gathering work carried out by Zone Centralized offices instead of State Offices.
E.

Complaint Management
One of the project initiatives was to effectively manage the complaints received fromvarious sources through the Complaint Management System (CMS). Once a complaint has beenregistered, the identified complainant will be notified through emails, short messaging system andcomplaint management portal. The decision by the Information Evaluation Committee with regard
to the complaint made to the MACC CMS is also designed to update the complainant of the statusof the complaint from time to time.
Security access controls in all existing record rooms were enhanced with the introductionof biometric access to protect the confidentiality and secrecy of records and documents under thecustody of the MACC. This measure is vital to the MACC’s ability to protect the confidentiality－ 140 －

of the information and to allow the MACC to keep the highest commitment to serving the
Malaysian public.
F.

Forensic Accounting
Statistical data and detailed assessment indicate a wide gap in terms of capacity, capability,
expertise and skill in this field. Instead of organic growth of the department, which can be slow,
external recruits bring the competency to a higher level in a shorter period of time while grooming
the existing officers in this department. A Forensic Accounting expert was recruited to assist thecurrent investigators in the handling of forensics cases.
Starting with a team of five, the number of forensic accounting staff has now doubled andis on the increase. The valued contributions shown in the outcomes of finance-based investigations
have further confirmed the importance of forensic accounting in corruption investigations.
IV. CASE STUDY: PUBLIC UTILITY DEPARTMENT CORRUPTION PROBE
One of the local departments in a Malaysian corruption probe refers to a widespread
investigation by the MACC from 2016 to 2017 over the alleged abuse of power and corruption
inside the department resulting in the arrest of more than 20 senior officers in the department alongwith the confiscation of millions of ringgit along with foreign currencies which had been hidden
in several locations by the suspects.

The total confiscation came to hundreds of millions of ringgit, with the case being
considered as the largest ever confiscation by the MACC in the country’s corruption history.
Further investigation revealed a money trail leading to a few foreign countries. For over 10 years,
the suspects had taken some percentage of public funds channeled by the federal government that
had supposedly been used for public benefit. Responding to complaints over the unfair distributionof development project contracts in the department, the MACC spent less than a year investigating
the suspects. Following a series of investigation, three main suspects were charged under themoney laundering offence.
V. CONCLUSION
In conclusion, the MACC has indeed implemented a lot of measures to complement ourpunitive measures. What I have highlighted and shared here are some of the best practices
implemented by MACC. It is our hope that the anti-corruption methodologies that have beenshared here will encourage all of us to improve our capacity to handle all those corruption cases inthe safeguarding of our nations. Our journey towards achieving a society with “zero-tolerance
towards corruption” still continues with new challenges yet to come.

－ 141 －

DEVELOPMENT OF THE ANTI-CORRUPTION MECHANISM IN
MYANMARNgwe Zaw Aung*

I. INTRODUCTION
Corruption is a complex social, political and economic phenomenon that affects all
countries. Corruption undermines democratic institutions, slows economic development andcontributes to governmental instability. Corruption attacks the foundation of democratic
institutions and the rule of law.
II. HISTORICAL BACKGROUND
Myanmar promulgated a number of laws to fight against corruption. Before independence,
firstly the Civil Supplies Theft Prevention Committee was formed in 1947 for preventing theft andcorruption when the government supplies the public. Later the Public Property Protection
Committee and the Public Property Protection Police were assigned to do investigation for suchcrimes. After that the Myanmar Penal Code (1861) was promulgated to take action against bribery
and corruption. In 1948, the Suppression of Corruption Act was enacted and in 1951, the Bureauof Special Investigation Act was enacted and the Special Investigation Administrative Board wasformed under the supervision of the Prime Minister. The Special Investigation Administrative
Board was dissolved in 1963 and since then, the Bureau of Special Investigation has been formed
under the Ministry of Home Affairs.
III. DEVELOPMENT OF LEGAL FRAMEWORKThe United Nations Convention against Corruption (UNCAC) is the only legally binding
universal anti-corruption instrument in the World. Myanmar signed this UNCAC Convention in2005 and ratified it in 2012. The Myanmar Government drafted the new Anti-Corruption Law to
be in line with international standards and norms. With the aim to draft a law to be in line withinternational standards as prescribed in UNCAC, the Department of Special Investigation initiallydrafted the anti-corruption bill in 2005 and submitted to the Office of the Union Attorney-Generalthrough the Ministry of Home Affairs for legal Advice. The Anti-bribery Bill drafted by Hluttaw’s
Bill Committee was submitted to the Hluttaw and publicized in the daily newspapers. After the
Anti-bribery Law was discussed thoroughly at the Pyidaungsu Hluttaw, the Anti-Corruption Law
was enacted on 7-8-2013 as Pyidaungsu Hluttaw Law No. 23/2013 in line with UNCAC
convention. It was signed by the President on 17-9-2013. This Law came into force on 17
September 2013. After the promulgation of Anti-Corruption Law, 2013, the Suppression of
Corruption Act was repealed. In order to eliminate bribery, the Action-Committee against Bribery
was also formed under the President Office Order 9/2013 dated 8 January 2013. The committee*

Deputy Director, Legal Advice Department, Union Attorney General’s Office, Myanmar.

－ 142 －

had received many complaints and handed them over to the Ministry of Home Affair forinvestigation.
The Anti-Money Laundering Law also was enacted on 14 March 2014 in line withinternational standards including recommendations of the Financial Action Task Force (FATF)
and the old one, namely the Control of Money Laundering Law enacted in 2002, was repealed.
Section 5 of the Anti-Money Laundering Law provided 9 predicate offences including trading to
get illicit profit by a person. Moreover, by exercising the power conferred by sub-section (b) ofsection 69 of the Anti-Money Laundering Law, the Anti-Money Laundering Central Board listed
another 14 predicate offences including bribery and corruption. According to the Anti-Money
Laundering Law, every organization including banks and financial institutions shall report
Suspicious Transaction Reports (STR) to the Financial Intelligence Unit (FIU).
In accordance with the Anti-Corruption Law 2013, the Anti-corruption Commission wasformed in 2014 with 15 members including the chairman and the secretary. The Anti-Corruption
Rules were provided in 2015. According to Transparency International's Corruption Perception
Index (CPI), Myanmar ranked 180th in 2011, but in 2015, Myanmar's rank became 147th. But
now in 2017 according to the 2016 CPI Index, Myanmar’s rank is 136th. Since the government is
endeavouring to develop domestic businesses and also inviting foreign investments for thedevelopment of the national economy, it is also needed for further improvement of the CPI ranking.
IV. MECHANISM OF ANTI-CORRUPTION
The Anti-Corruption Law covers 11 Chapters and 73 Articles. According to the AntiCorruption Law, corruption means the misuse of one’s post by the competent authority to act or to
avoid the lawful act or to give the legal right to someone or to prohibit the legal right incorrectly,
or giving, accepting, obtaining, attempting to obtain, propose, promise or discuss by any means
corruption from the relevant person for him, or any other person, or organization directly or
indirectly.1 The Law also provided that the definition of corruption means accepting consideration
or appropriate value for the purpose of corruption without paying or giving the currencies,
properties, presents, service fees, entertainment, or other illegal benefits.
The aggrieved person due to the corruption may send information and complaints to theCommission or Office of the Commission or working committee, working group, Preliminary
Scrutiny Board and any Investigation Board formed by this Law or any relevant Government
department, organization in accordance with the stipulations in respect of corruption or any
competent authority that is enriched by corruption. 2 The Office of the Commission, working
committee, working group, Preliminary Scrutiny Board and Investigation Board or any
Government department, organization which obtained the information or complaint needs tosubmit to the Commission as soon as possible in accordance with the stipulations for enabling togive the necessary guidance to carry out effectively in respect of the said information orcomplaint.3 According to the Law, a political post person or authorized person or other person who
committed the corruption offence shall be punished with imprisonment. According to the report ofSection 3(a) of the Anti-Corruption Law, 2013.
Section 44 of the Anti-Corruption Law, 2013.
3
Section 45, Ibid.
1
2－ 143 －

investigation or other credible information, the Commission shall instruct the Head of corruption,
to the High Court of the Region or the State4 and to sue any other person except the Competent
Authority who commits the corruption, to the relevant Court.5
The Commission requires that the report be sent, which is a matter of deciding to takeaction upon the accused person, to the President, respective Hluttaw Speaker, the complainant andalso to the Union Government Office so that it can continue to take action against the accused
person under the arrangement of the Union Attorney-General's Office. 6 The Commission also
needs to inform the Head of the Service Personnel if action should be taken against the accused
person only by the Civil Services Regulations according to the investigation.7 The Commission
may carry out the investigation upon the accused person who has given up his position during theinvestigation so as to continue to take legal action, action under the Civil Services Regulations or
to seize the respective currencies and properties by the State.8
At this juncture, according to the Anti-Corruption Law, Anti-Corruption Rule and Union
Attorney General Law, the Union Attorney General’s Office has to tender legal advice for thecases and filing and also appear before the court on behalf of the Government for taking legal
action against the accused person.
V. THE STATUS OF TAKING ACTION ON THE COMPLAINTS
The commission received 4,135 complaints during the period from 10-3-2014 to 30-9-2017.
Among those cases, under investigation are 55 cases and transferring to the relevant States andRegions are also 1,025 cases. There are 3,042 cases filed, and 13 are under scrutiny. Some cases
have been taken action by civil service regulation.
VI.

THE CHALLENGE AND SOLUTION

Although the Government has taken measures to combat and prevent corruption,
corruption exists and some responsible officials disregard the dignity of the State and theirreputation by breaking the law. Thus, corruption becomes widened as a culture in the society.
Corruption includes abuse of authority, bribery and willful misconduct; therefore, it is of interest
to the general public. It has main effects on administration and human rights and also deteriorates
the economy, politics and moral ethics. Moreover, it can be an issue of concern by becoming
widespread internationally. As the global economy is rapidly developing nowdays, corruption has
grown in different characteristics as organized crime and also transnationally, as with the asset
recovery process mentioned in chapter 5 of the UNCAC convention.
Thus, corruption is committed not only within one country but also in connection withother countries; anti-corruption cannot be done by a single country alone. Thus, Myanmar would
be required to promote cooperation for fighting against corruption with other countries andSection 18(a), Ibid.
Section 18(b), Ibid.
6
Section 30(a), Ibid.
7
Section 30(b), Ibid.
8
Section 31, Ibid.
45－ 144 －

international organizations as well. The legal instruments are many, but it is the nations and thepeople that use them to combat these crimes. Political will of nations and the people is necessary,for it is in cooperation that achievements can be made through which that success will be attained
for the benefit of humanity.

－ 145 －BEST PRACTICES IN ANTI-CORRUPTION
Aung Myo*I. INTRODUCTION
1.
Corruption poses a serious problem and affects every country, and it impacts each andevery human being. It is a fact that there are links between corruption and other forms of crime,
including money laundering. Corruption is no longer a local matter. It is a transnational
phenomenon. To prevent, control and eradicate corruption is a responsibility of all of us. To
enforce the enacted laws and regulations of each country, it is required to develop a sound anticorruption mechanism and political will.
2.
In Myanmar, corruption is widespread, and it will be a great challenge to eliminate such
malpractice in the shortest time possible. Nevertheless, bribery and corruption disturb thesociety, economics, and the rule of law at all corners, and the problem needs to be handled
effectively.
II. HISTORICAL BACKGROUND
3.
The Penal Law (1861) and the Code of Criminal Procedure (1898) were the laws which
penalize the offence of bribery and corruption. The Special Investigation Administrative Board
was established and the Special Investigation Administrative Board and Bureau of Special
Investigation Act was promulgated in 1951. In line with this act, the Bureau of Special
Investigation (BSI) was founded on 1 September 1951. The Suppression of Corruption Act
was enacted in 1948. A new law for anti-bribery and corruption was enacted in August 2013,
and the 1948 law has been repealed.
4.
Section 4 of the Anti-Corruption Law stipulates the law’s objectives: to create clean
government and good governance, to protect state-owned properties, community and rights
and benefits of the citizens from corruption and to take effective action against offenders ofcorruption. This is a clear message to the world that Myanmar is dedicated to combating
corruption as its national duty.
5.
Besides the Anti-Corruption Law 2013, there are new laws in which provisions relevant
to bribery and corruption are stipulated. These laws include, but are not limited to, the Civil
Service Personnel Law, the Foreign Investment Law, the Myanmar Citizens Investment Law,
the Myanmar Special Economic Zones Law, the Competition Law, the Consumer Protection
Law, the Anti-money Laundering Law, the Electronic Transaction Law, the Electricity Law,etc. However, according to section 68 of the Anti-Corruption Law, any investigation or action
taken against money or property related to corruption or enrichment by bribery shall only betaken according to this law.

*

Director, Bureau of Special Investigation, Myanmar.

－ 146 －

6.
According to the Control of Money Laundering Law, if a person launders money andproperty obtained by corruption, he is punishable with imprisonment extending up to ten years
and may also be liable to pay a fine, and any proceeds of the crime will be confiscated. Theseare effective deterrents against the offenders of corruption cases.
III.
A.

RELEVANT AGENCIES AND INSTITUTIONS AND THEIR WORKINGMECHANISMS
Relevant Agencies and Departments

7.
According to the law, an anti-corruption commission has been formed and organizedconsisting of 15 members, of whom 5 persons are selected by the President, the Speaker ofPeople’s Parliament and the National Parliament. When the members of the commission are
assigned, they must report their money, property, liabilities and rights of their family if headedby them, including beneficial ownership, to the President.
8.
The duties and functions of the commission are forming of preliminary scrutiny bodies
and investigation bodies, forming the department by assigning the Chief Investigator,
specifying the authority, cooperating with the government departments and agencies and Stateowned enterprises in laying plans for programmes in order to dispel corruption andimplementing suitable programmes for public cooperation. The commission also has power toexamine the records of banks and financial institutions, issue an order to responsible personsof banks and financial institutions to allow the seizure of evidence if necessary, issuing orders
prohibiting the transfer, concealment, and disguise of accounts and money, issuing orders toprosecute, pass and order confiscation of money and property with the recommendation of apreliminary scrutiny body, and to give protection to and set rewards for witnesses.
9.
Other relevant agencies, such as the Ministry of Home Affairs, the Myanmar Police
Force, and the Financial Intelligence Unit also take action on corruption cases. Sometimes theagencies are combined as a team to enquire and investigate bribery and corruption.
B.

Working Mechanism

10.
Offences relating to corruption and bribery shall be investigated by the investigationbody formed by the Anti-Corruption Commission in line with the Anti-Corruption Law, 2013.
Moreover, officers of the Bureau of Special Investigation, who have been conferred the powerof Police Officer, also have power to investigate the offences relating to corruption and bribery
due to corruption offences, which are defined as cognizable offences by the Anti-Corruption
Law.
11.
Being a cognizable case, BSI Officers and Police Officers may file a case against theaccused at the respective police station, arrest the offender, examine the accused and witnesses,
seize evidence, construct the case, ask for expert opinions on the evidence if necessary, seek
and receive legal opinions from the legal section of the BSI or the Union Attorney General andtheir respective legal offices, request permission to prosecute the accused from the relevant
Ministry and file the case before a relevant Court. If the case is not strong enough for sending
up to the Court, and it is necessary to take some other action, such corruption cases are referredto the relevant Ministry for taking departmental action.

－ 147 －

12.
When such cases are sent up before the Courts, BSI prosecutors or Law Officers
prosecute those cases. Throughout the prosecution period, prosecutors consult with the relevant
Investigation Officers of the cases to build strong cases against the accused. If necessary, thelegal office concerned files appeals or revisions against the order and judgement of the originalor appellate court to enhance punishment so as to obtain effective and deterrent punishments.
The BSI may also request the relevant legal office to file amendments in those cases. If theaccused is acquitted by the Court, the officer from the Division or State Attorney General
Office may file an appeal against the acquittal order to the High Court of the Region or theHigh Court of the State. The BSI or the Myanmar Police Force may also file an appeal against
the acquittal order to the High Court of the Region or the High Court of the State through therelevant Division or State Attorney General Office.
IV.

CONFISCATION, FREEZING AND SEIZING OF PROCEEDS OF CRIME

13.
Generally, law enforcement bodies are authorized to conduct search and seizures
according to the Code of Criminal Procedure. In cases relating to the special laws, search andseizures must be in line with the provisions of those special laws. The proceeds of crime must
be confiscated by the court according to the Code of Criminal Procedure and other relevant
special laws.
14.

The following laws allow the confiscation of the proceeds of crime:(a)Section 53 of the Anti-Corruption Law assigns the confiscation power to theAnti-Corruption Commission relating to money and property obtained bybribery and corruption and proceeds of crime.
(b)
Relating to the cultivation, possession, transportation, and sale of narcotic drugs,
psychotropic substances or chemicals/plants, laundering the proceeds, accepting
bribes and conspiracy, section 24 of the Narcotic Drug and Psychotropic
Substances Law 1993 allows confiscation.
(c)Section 52(a) of the Anti-Money Laundering Law, 2014 allows the Courts topass an order confiscating money and property obtained by illegal means.
(d)
The Code of Criminal Procedure, 1889, Section 517 allows for the generalconfiscation of items of property, including money and other valuable property.
Although the provision is general in nature, it can be widely applied and usedin various corruption cases before the court as evidence and exhibits including
money and property.
(e)According to some cases in which money and property are supposed to beobtained from illegal sources but are not evidently related to any criminal cases,
pursuant to The Criminal Law Amending Act.
(f)
In addition to the Code of Criminal Procedure, the Criminal Law Amending Act
is a more effective procedural law to freeze and confiscate effectively the assets
of a person alleged to have committed corruption if there are grounds to believethat he committed corruption. The law empowers the district administration
officer, without seeking an order of a court, to issue a warrant to be attached tothe assets of the accused person. This speedy action may deter the accused fromtransferring the assets or enable the government to freeze the money or property
obtained by the accused in a timely manner.

15.
The BSI investigated 87 corruption cases from 2003 to 2013, and 273 offenders wereprosecuted and punished according to the law and 88 million US dollars were confiscated.

－ 148 －

16.
The Bureau also investigated 34 money laundering cases from 2014 to 2017, in which
3 offenders were punished, 12 million US dollars were seized and 18 million US dollars wereconfiscated.
V. THE PROCLAMATION OF THE PRESIDENT’S OFFICE OF THE UNION OF
MYANMAR REGARDING THE ACCEPTANCE OF GIFTS
17.
The Proclamation of the President’s Office of the Union of Myanmar regarding theacceptance of gifts was announced on 1 April 2017. It contains a definition of gifts, basicprinciple provisions relating to prohibited organizations/persons, exceptions, things and gifts
which are not allowed to be accepted, and gifts which are given by foreign governments. This
proclamation has already been distributed to all Government Departments and Organizations.
VI.

CHALLENGES

18.
Myanmar does not have a whistle-blower protection law and does not have a legal
framework for special investigation techniques, such as wiretapping and video conferencing.
To investigate public servants, we need approval from the applicable department. Thus, theaccused knows about the investigation, and they sometimes abscond or conceal the evidence.
Consequently, when we conduct searches, there may be no evidence, and the accused may havewithdrawn their money from the bank so there is nothing to confiscate. Because there is nowhistle-blower protection law, the witnesses often fail to appear before the court so it isdifficult to punish the offender effectively. These are weak points in the legal framework andthe procedures for the management of confiscated property. The Anti-Corruption Law is not
fully in compliance with UNCAC. Myanmar is still a developing country and is not able to use
online systems in public services. We have to conduct services in person, and there is often red
tape in the system so it is vulnerable to corruption. Most people pay in cash so it is hard toreport suspicious transactions. Now, government departments are conducting open tenders inpublic procurement and are reducing the red tape.
19.
The places that can cause corruption are the departments that can permit big projects,
those that deal with people, and the courts, which can punish offenders. We have enacted theLaw for the Protection of Personal Freedom and Safety, and it is difficult to trace, conduct
surveillance or wiretap a suspect. Many Myanmar nationals work abroad and use thehondy/hawala system to send money back to Myanmar so there are no suspicious transaction
reports, and it is hard to trace the money laundering and tax evasion. In addition, we are notable to use an e-procurement system.
VII.

PLANS OF ACTION

20.

Myanmar’s strategies for corruption prevention are as follows:(a)
To regard corruption and prevention as matters of international concern and toprevent corruption multilaterally.
(b)
To cooperate with regional governmental organizations and society to prevent
corruption.
(c)
To cooperate with regional anti-corruption agencies.

21.

Tactics for corruption prevention are as follows:－ 149 －

(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)

To reduce poverty, to achieve progress and give priority to the welfare of public
servants.
To reduce malpractice in order to create good governance and clean government.
To create transparency in the administrative sector and to reduce formalities inpublic administration.
To conduct corruption awareness programmes for the public sector and private
sector to create a corruption free environment.
To set up a complaint system for corruption and bribery.
To form a joint team consisting of central organizations and commissions at alllevels and departments.
To create a plan of action to ensure that the private sector is free from corruption.
The essential plan must be implemented and reviewed according to the law andprocedures.
To apply technology instead of human resources to reduce abuses of power.
To create independence in the administrative and judicial sectors.
To cooperate with the media to prevent and fight corruption.
To apply modern technology to fight corruption.
To modernize and amend the Anti-Corruption Law, Rules and Regulations,
Orders and Guidelines to fight corruption.
To apply a reward and punishment system to fight corruption.
To provide suitable opportunity and assurance to fight corruption.
To cooperate with international organizations to fight corruption.
VIII. CASE STUDIES

A.

Criminal Miscellaneous Case No. 7/ 2015, Bago Region High Court

22.
The offender U Shwe, who was a Deputy District Judge from Taungoo District Court,
was prosecuted under Section 56 of the Anti-Corruption Law and Section 512 of the Criminal
Procedure Code. Although he was dismissed from his job for taking a bribe from a client, theBago Region High Court took action against the offender with proclamation and attachment ofproperty in Criminal Miscellaneous Case No. 7/ 2015.
B.

Criminal Regular Trial No. 1/ 2014, Sagaing Region High Court

23.
U Tin Sein, Township Judge, Homemalinn Township, Sagaing Region, who wasconvicted by the Sagaing Region High Court, CRT No. 1/ 2014 under Section 56 of the AntiCorruption Law, was sentenced to 10 years’ imprisonment. In this case, U Thein Lwin, Bailiffof the Homemalinn Township Court, was referred as a principal witness in accordance with
Section 164 of the Code of Criminal Procedure, whose deposition led to the judge’s conviction.
C.

Criminal Regular Trial No. 563/ 2015, Meikhtila Township Court

24.
Lawyer U Aye Lwin and another were convicted by the Meikhtila Township Court,
CRT No. 563/ 2015 under Section 57/ 63 of the Anti-Corruption Law. In this case, U Aung Ko
Linn (a) Ko Aung Aung, the driver, was referred to, as a principal witness, in accordance with
Section 164 of Code of Criminal Procedure, whose deposition led to the conviction of the
defendants.

－ 150 －

D.

Criminal Miscellaneous Case No. 68/ 201425.
Yankin Additional Township Judge Daw Khin Lay Nge was prosecuted under the AntiCorruption Law Section 56/ Cr.P.C Section 512 in the High Court of the Yangon Region in
Criminal Miscellaneous case No. 68/ 2014. It was alleged that she was bribed in the amount ofKyats Three Hundred Thousand from the client and this case is still in progress.

－ 151 －PROTECTION OF WITNESSES OF THE“CONGRESSIONAL PORK BARREL SCAM”
Cristina Belmonte Hernandez*

I. OVERVIEW OF THE PORK-BARREL SCAM1
One of the highly publicized and most talked about controversies affecting thePhilippine government is the Priority Development Assistance Fund (PDAF) scam, commonly
known as the “Pork Barrel Scam”. The news about the scam broke in 2014, during theadministration of then President Benigno Simeon C. Aquino, III. The arrest of Ms. Janet Lim
Napoles as the alleged “Pork Barrel Queen” was a boost to the Aquino administration’s
principal advocacy of “Matuwid Na Daan”2.
The scam is basically about legislators conspiring with other government officials andprivate entities to divert public funds for their own use and benefit. Driven by greed, theprincipal players in the scam were able to devise a scheme where the fictitious transactions of
the concerned officials and agencies appeared to be as legitimate undertakings.
The wheel of deception starts from the negotiation between the legislator and Ms.
Napoles on the utilization of the former’s PDAF allocation. The two will agree on a list of
projects, the specific implementing agency through which the funds will be coursed, the project
cost and the commission or “kick-back” that the legislator will eventually receive. The amountof commission ranges between 40%-60% of the project cost or the amount stated in orderreleasing the fund. After negotiation, Ms. Napoles will now instruct her trusted employee toprepare the so-called project listing which will be adopted by the legislator in requesting theimmediate release of his PDAF allocation. The Appropriations Committee in the House ofRepresentative will endorse said request to the Budget Department who will soon issue thecorresponding allotment release order addressed to the chosen implementing agency. The Headof the latter, in exchange for a ten percent (10%) share in the project cost, will subsequently
release the check to the fake NGO and the proceeds will thereafter be immediately withdrawn.
Ultimately, only the Congressman, Ms. Napoles and their co-conspirators benefitted
from the disbursement drawn from the legislator’s Priority Development Assistance Fund
allocation. Not a single centavo was spent for the improvement of the legislative district of theCongressman.
II. PENDING CASES IN THE ANTI-GRAFT COURTThe Office of the Ombudsman, filed cases against three (3) senators of the Republic
and several other members of the House of Representatives, commonly known as a
Assistant Special Prosecutor II under the Office of the Special Prosecutor, Office of the Ombudsman, Philippines.
The narration of the scheme was culled from the Joint Resolution of the Office of the Ombudsman, dated 26
September 2014, finding probable cause for violation of Section 3 (e) & Section 4 (b) both of Republic Act No.
3019, Malversation, Direct Bribery and Corruption of Public Official under the Revised Penal Code2
Translated to mean “straight governance”*
1－ 152 －

Congressman. Charges were also filed against officials and employees of other government
agencies and private individuals who conspired with the named legislator. This paper will cite
the malversation, violation of the anti-graft law and bribery cases filed against a Congressmanfrom the lone district of Cagayan de Oro which is now pending trial with the anti-graft courtof the Philippines known as the Sandiganbayan. The writer is a member of the panel ofprosecutors handling the said case.
During his term as a Congressman of the lone district of Cagayan de Oro, a province
located in the northern part of the Mindanao region, the accused legislator continuously
endorsed the implementation of his PDAF-funded livelihood projects to the fake NGO
controlled by Ms. Napoles. In 2007, he consented to course his PDAF allocation, with a total
amount of Thirty Million Pesos (P30,000,000.00), through an implementing agency called theTechnology Resource Center 3 (TRC). He also endorsed to TRC, a non-governmentalorganization, owned and controlled by Ms. Napoles known as Countrywide Agri and Rural
Economic Development (CARED) Foundation, as the entity that would allegedly implement
the livelihood projects in his district. CARED was supposed to conduct trainings and deliverfarm implements and livelihood materials to identified beneficiaries. Unfortunately, nodeliveries were made and no trainings were ever conducted.
The Congressman received an accumulated sum of about Twenty Million Eight
Hundred Forty-Three Thousand Seven Hundred Fifty Pesos (P20,843,750.00) charged to his
PDAF allocation in the years 2004, 2005, 2006 and 2007.
The case is still in the trial stage. The prosecution already presented witnesses from the
Department of Budget and Management to confirm the release of the fund charged to the PDAF
allocation of the Congressman as well as witnesses from the Commission on Audit to attest to
the findings and result of the fraud audit conducted in the utilization of the PDAF. The witness
on deck is the former finance officer and trusted employee of the NGO who testified on thedetails of the fraudulent scheme.
III. THE WHISTLE-BLOWERS
By chance, the scam was exposed when an employee of the fake NGO sought help fromlaw enforcers as he was illegally detained by Ms. Napoles. The case is actually for illegal
detention but since the reason for the detention is the employee’s familiarity with the workingsof the NGO then a disclosure about the scam was inevitable. The individuals involved in the
PDAF scam would not have been brought to courts had it not for this employee who blew thewhistle against Ms. Janet Lim Napoles and her cohorts.
The detained employee is a close relative of Ms. Napoles herself and the former financeofficer of JLN Corporation, a company owned by Ms. Napoles. His liberty was restrained, andhe was detained for three (3) months on mere suspicion that he was already making his own
hidden transaction with the legislators. Ms. Napoles also feared that since he is a trusted
employee and knows almost everything about the workings of the NGO then he might alreadydisclose vital information prejudicial to the interest of Ms. Napoles.
Other whistle-blowers include former female employees of Ms. Napoles whose tasks
involved facilitating the registration of the fake NGOs and securing its government licenses
3

The agency is no longer functioning and was dissolved with the advent of the PDAF controversy.

－ 153 －

and permits, deposit and cashing of checks as well as fabricating needed documents to expedite
the release of the PDAF allocations.
The former finance officer categorically claimed that the Congressman from Cagayan
de Oro actually received money from Ms. Napoles representing his share of the fund as
previously agreed upon. Unlike the other legislators where the bribe money was coursed
through a middleman, the Congressman from Cagayan de Oro personally received in cash, atthe very office of JLN Corporation, his share of the loot.
IV. WITNESS PROTECTION
After going against the interest and giving damaging statements against their former
employer, naturally, the whistle-blowers were separated from their usual gainful employment.
Worst, there is now a continuing threat to their lives and those of their respective families.
Their sources of income became limited and their means would not suffice to secure their own
safety. Since the whistle-blowers will stand as material witnesses in the controversial PDAF
scam, then the Philippine government must carry the burden of ensuring their continued safety
and availability.
On 24 April 1991, the Philippine Congress approved the passage of Republic Act. No.
6981, otherwise known as the “Witness Protection, Security and Benefit Act”. The law assigned
the implementation of the witness protection, security and benefit programme to the
Department of Justice (herein referred to as the Department).
The Department’s Witness Protection Program (herein referred to as the Program)4
seeks to encourage a person who has witnessed or has knowledge of the commission of a crime
to testify before a court or quasi-judicial body, or before an investigating authority, byprotecting him from reprisals and from economic dislocation. The benefits given to thewitnesses who are admitted to the programme include the following:
•
•
•
•
•
•
•
•
•

4

Security protection and escort services
Immunity from criminal prosecution and not to be subjected to any
penalty or forfeiture for any transaction, matter or thing concerning hiscompelled testimony or books, documents or writings produced.
Secure housing
Assistance in obtaining a livelihood
Reasonable travelling expenses and subsistence allowance while acting
as a witness
Free medical treatment, hospitalization and medicine for any injury orillness incurred or suffered while acting as a witness.
Burial benefits of not less than Ten Thousand Pesos (P10,000.00) if thewitness is killed because of his participation in the Program
Free education from primary to college level for the minor or dependent
children of a witness who dies or is permanently incapacitated
Non-removal or demotion at work because of absences due to his being
a witness and payment of full salary or wage while as acting as witness.

Data about the programme is culled from the official website of the Department of Justice－ 154 －

In return, the witness will sign a Memorandum of Agreement setting forth his
responsibilities which include the following5:
•

•
•
•
•
•

To testify before and provide information to all appropriate law
enforcement officials concerning all appropriate proceedings inconnection with or arising from the activities involved in the offence
chargedTo avoid the commission of a crime
To take all necessary precautions to avoid detection by others of the fact
concerning the protection provided him under the law
To comply with legal obligations and civil judgements against him
To cooperate with respect to all reasonable requests of officers andemployees of the Government who are providing protection under thelaw
To regularly inform the appropriate programme official of his current
activities and address.

Given that the former employees of Ms. Napoles actually participated in thecommission of the scam and there is absolute necessity for their testimonies, the whistleblowers applied for and were actually admitted, as state witnesses, to the Witness Protection
Program of the Department of Justice.
V. INSTITUTIONAL ARRANGEMENT
The prosecution of the Malversation, Direct Bribery and Graft cases filed against theCongressman from Cagayan de Oro are being handled by the Office of the Special Prosecutor,
the prosecutorial arm of the Office of the Ombudsman. A five-man panel consisting of bothsenior and junior prosecutors was created immediately after the Information was filed in theanti-graft court on 5 February 2015. As previously mentioned, among the witnesses to bepresented at the trial of the case are the former employees, turned whistle-blowers, of JLN
Corporation who took an active part in facilitating the unlawful disbursement of the PDAF
allocation.
The Office of the Ombudsman has no concrete programme that extends assistance toits own witnesses comparable to that of the Department of Justice. Ironically, the safety andsecurity of the prosecution witnesses are provided for by another agency which is the
Department of Justice and not directly by the Office of the Ombudsman.
Whenever there is a need to call them to testify in court then a written request, throughthe issuance of a Subpoena Ad Testificandum, must first be addressed to the Program Directorof the Witness Protection Program. The same protocol applies when said witnesses are being
called even for just the conduct of case conferences prior to the scheduled appearances in court.
Fortunately, there has never been an instance where the Department of Justice failed to present
the whistle-blowers in their custody whenever requested by the special prosecutors from the
Office of the Ombudsman.

5

Republic Act No. 6981, Section 5－ 155 －

VI. THE VALUE OF COOPERATION
Witness protection may be a limiting factor in the successful prosecution of thecongressional “pork-barrel” scam. The prosecution panel is always faced with the challenge ofbringing the whistle-blowers to court, especially since their material witnesses are in thecustody of another agency of the government.
The dynamics between the Office of the Ombudsman and the Department of Justice,particularly on the safety and security of witnesses, proved to be an effective means in ensuring
the availability of the whistle-blowers. Proper coordination between the two agencies
facilitated the whistle-blower’s consistent attendance in the scheduled court hearings.
In taking the witness stand, the whistle-blowers were able to clearly narrate to themagistrates of the court and to the listening public in general how the grand conspiracy todefraud the government was executed. Their testimonies confirmed that only the privileged
few benefitted from the much-needed resources of the government. More importantly, thewhistle-blowers strengthen the probability of conviction of all those involved in the scam.
The Office of the Ombudsman may not have all the resources it needs to fulfill its
mandate to curb corruption in government. This may also be true for the Department of Justice.
Nevertheless, the support given by one agency to the other helps to address the lingering
problem of the scarcity of each agency’s resources. Indeed, the collaboration of various
government agencies and active cooperation of the witnesses are indispensable in thegovernment’s fight against corruption.
VII.

CONCLUDING STATEMENT

The prosecution of the Priority Development Assistance Fund scam can be likened tothe biblical battle of David and Goliath. To testify against the highly influential and powerfulindividuals is like David throwing a stone at the mighty Goliath. The whistle-blowers may
appear to be small like David but with the protection given by the government then they canstand taller than Goliath.

－ 156 －

PHILIPPINE COMPLIANCE WITH THE UNITED NATIONSCONVENTION AGAINST CORRUPTION (UNCAC) ON
CRIMINALIZATION AND LAW ENFORCEMENT
Samina S. Macabando-Usman, Ll.M*
The worst disease in the world today iscorruption. And there is a cure: transparency.
– BonoCorruption is not novel in this time. In fact, many great empires and superpower
governments have fallen because of corruption in their ranks. Corruption is akin to cancer thatis slowly creeping into the government’s system, stage by stage. When it reaches a certain stage,
everything will crumble, including the good men and women in public service as well as theinstitutions these men and women built. Most importantly, the general public whom thegovernment serves, will suffer the most. That is how deadly corruption is to our governments.
Corruption does not only destroy government, it disrespects and delegitimizes legal institutions
like democracy and rule of law, which men of law have been consciously protecting.
As a state, the Philippines is not immune from the disease of corruption. It has, indeed,a history of corruption cases and has taken various courses of action to fight the same. It is
continuously fighting corruption. Perhaps, the United Nations Convention against Corruption(UNCAC) is the antidote to the sick governments of our time. Governments should assessthemselves and allow transparency in order to diagnose corruption. As it is not immune, thePhilippines has taken a step further in fighting corruption by signing the UNCAC. Therefore,
it must comply with the UNCAC.
For the purpose of this paper, I will discuss the Philippines and its compliance with
UNCAC. To do this, I will first deal with the Philippine history of corruption and legal system.
To have a perspective of its standing within the framework of UNCAC, there will be a
discussion on the First Review Cycle, its results, and how the Philippine Government has
progressed with its UNCAC compliance since then. During the discourse, this paper shallidentify the challenges and best practices of the Philippine Government in combating
corruption.
It should be emphasized, however, that this paper focuses on UNCAC’s Chapter on
Criminalization and Law Enforcement.
I. PHILIPPINE LEGAL SYSTEM
The legal system in the Philippines has features both from civil and common law. The
Philippine public law is substantially patterned after common law doctrines, while its private
law follows the civil tradition of Spain. Public law, notably, constitutional law, administrative
law and the law of public offices, is based on American law. Private law refers to laws on
persons and family relations, obligations and contracts, and succession, which is patterned after*

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

－ 157 －

the Civil Code of Spain.1
The present 1987 Constitution is the fourth constitution of the Philippines after
proclaiming its independence in 1898. As enshrined in its 1987 Constitution, it is a democratic
and republican State. 2 It stresses that sovereignty resides in the people and all government
authority emanates from them.3 Governmental powers are distributed to the three branches:
Legislative Department, Executive Department and Judicial Department.
The Legislative Department, which holds the legislative power, is a bicameral body
called the Congress of the Philippines, which consists of the Senate (as the upper house) andthe House of the Representatives (as the lower house).4 The Legislative Department has thepower to make, frame and enact laws. Modification and repeal of said laws is also necessarily
included in the legislative power, while the President of the Philippines, who heads the
Executive Department, on the other hand, holds the executive power.5 As such, the President
is in charge of implementing and enforcing the laws enacted by the Legislative Department.
Lastly, the judicial power is vested with the Judiciary, which is composed of the Supreme Court
and in such lower courts as may be established by law. Judicial power includes the duty of thecourts of justice to settle actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of theGovernment.6
Transparency and anti-corruption provisions are enshrined in the 1987 Constitution. As
part of its state policies, the Philippines adheres “to maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruption”7 and “to adopt
and implement a policy of full public disclosure of all its transactions involving public
interest.” 8 An article, composed of eighteen (18) sections, is also dedicated for the“accountability of public officers” to address, among others, corruption in the government.
In the context of criminalization and law enforcement, the Office of the Ombudsman,
Office of the Special Prosecutor, Department of Justice, Supreme Court, Philippine National
Police, Anti-Money Laundering Council and Civil Service Commission are the government
instrumentalities concerned with anti-corruption. The Sandiganbayan, a specialized court,
under the Supreme Court is also an instrumentality against corruption.
As mentioned, the Philippines has its fair share of corruption cases. Historical accounts
show that the Philippine Government was plagued with corruption as early as theadministration of President Ferdinand Marcos and, unfortunately, up to this date. By statistics,
the Philippines ranked 101 of the 176 States in the 2016 Corruption Perceptions Index9 of
UNCAC Country Review Report of the Philippines, Item No. 75, Page 15.
1987 Constitution, Article II, Section 1.
3
Ibid.
4
Id., Article VI, Section 1.
5
Id., Article VII, Section 1.
6
Id., Article VIII, Section 1.
7
Id., Article II, Section 27.
8Id., Section 28.
9
The CPI scores and ranks countries/territories based on how corrupt a country’s public sector is perceived to be.
It is a composite index, a combination of surveys and assessments of corruption, collected by a variety of reputable
institutions. The CPI is the most widely used indicator of corruption worldwide, viewed fromhttps://www.transparency.org/news/feature/corruption_perceptions_index_2016 on 10 September 2017.
1
2－ 158 －

Transparency International.10 With an average score11 of 35.6 12 (from years 2012 to 2016),
such score still falls short of the global average score of 43. Many corruption cases in thePhilippines hit the international media due to their magnitude and impact. These cases include:(1) the Government Service Insurance System–the MERALCO bribery case of 2008; (2) the
Philippine National Broadband Network controversy involving allegations of corruption in theawarding of a US$329 million construction contract to Chinese telecommunications firm ZTE
for the proposed government-managed National Broadband Network (NBN) in 2008; (3) theEuro Generals Scandal involving former PNP General Eliseo de la Paz and several Philippine
National Police officials who went to Russia in October 2008 to attend the Interpol conference
and were detained for carrying a large sum of undeclared money; (4) the Priority Development
Assistance Fund (PDAF) scam13 in 2013 involving businesswoman Janet Lim-Napoles andother several politicians from both houses of Congress; and (5) the Bangladesh Bank
Cyberheist14 in 2016 where US$101 million was stolen from the Bangladesh Central Bank,
US$81 million was traced to the Philippines. But this does not mean that the government
merely sat and watched as its system crumbles. Various anti-corruption measures and/or
courses of action were adopted particularly in the sphere of criminalization and law
enforcement. Among these measures was the Philippines’ ratification of UNCAC in 2006.
II. PHILIPPINES AS A UNCAC STATE SIGNATORYUNCAC is the only legally binding universal anti-corruption instrument,15 and its farreaching approach and the mandatory character of many of its provisions make it a unique toolfor developing a comprehensive response to a global problem. 16 UNCAC covers five mainareas: preventive measures, criminalization and law enforcement, international cooperation,asset recovery, and technical assistance and information exchange. UNCAC covers manydifferent forms of corruption, such as bribery, trading in influence, abuse of functions, andvarious acts of corruption in the private sector. A highlight of UNCAC is the inclusion of a
specific chapter on asset recovery, aimed at returning assets to their rightful owners, including
countries from which they had been taken illicitly. 17 UNCAC was adopted by the General
Assembly of the UN on 31 October 2003 at the UN Headquarters in New York and was open
for signature from 9 to 11 December 2003 in Merida, Mexico, and thereafter at the UN
Headquarters until 9 December 2005.18 It entered into force on 14 December 2004 with 140
Signatories and now has 183 State Parties.19
In sum, UNCAC provides for four (4) main Chapters, to wit:
www.transparency.org
A country/territory’s score indicates the perceived level of public sector corruption on a scale of 0-100, where
0 means that a country is perceived as highly corrupt and a 100 means that a country is perceived as very clean.
A country's rank indicates its position relative to the other countries/territories included in the index. Ranks canchange merely if the number of countries included in the index changes.
12
The writer averaged the sum of global score of Philippines from 2012 to 2016.
13
Presented by Atty. Rowena Del Rosario-Vidad of the Office of the Ombudsman (Philippines) during the 9 thRegional Seminar on Good Governance for the Southeast Asian Countries.
14
Presented by Director Dennis Garcia of the Office of the Ombudsman (Philippines) during the 10 th Regional
Seminar on Good Governance for the Southeast Asian Countries.
15
http://www.unodc.org/unodc/en/corruption/index.html
16
Ibid.
17
As
definedintheUnitedNations
Office
on
Drugs
and
Crime
website(https://www.unodc.org/unodc/en/treaties/CAC/) on 10 September 2017.
18
https://www.unodc.org/unodc/en/corruption/ratification-status.html, viewed on 11 October 2017.
19https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-14&chapter=18&clang=_en,viewed on 11 October 2017.
1011－ 159 －

1.
2.
3.
4.

Chapter II on Preventive Measures;
Chapter III on Criminalization and Law Enforcement;
Chapter IV on International Cooperation; andChapter V on Asset Recovery.

In ASEAN, all Member States are State Parties to UNCAC, as shown below:
State

Date of Signature

Brunei Darussalam
Cambodia

11 December 2003

Indonesia
Lao PDR
Malaysia
MyanmarPhilippines
Singapore
Thailand
Viet Nam

18 December 2003
10 December 2003
9 December 2003
2 December 2005
9 December 2003
11 November 2005
9 December 2003
10 December 2003

Date of Approval,
Acceptance, Accession,
Succession or Ratification
2 December 2008
5 September 2007
(Accession)
19 September 2006
25 September 200924 September 2008
20 December 2012
8 November 2006
6 November 2009
1 March 201119 August 2009*per checking in the United Nations Treaty Section website (www.treaties.un.org) on 10 September 2017.

The Philippines signed UNCAC on 9 December 2003 and ratified it on 8 November
2006. As a State Party to UNCAC, pursuant to pacta sunt servanda, the Philippines is obliged
to criminalize certain forms of private and public corruption; institute or strengthen corruptionprevention measures; establish procedures that improve international cooperation; and set up
systems for the recovery of forfeited assets.
UNCAC readily shows that it is not only an international legal basis for cooperation,
but also a political tool for dialogue between countries and between governments and theircitizens. While it shows universally agreed concepts of corruption and ways to fight it, themechanism for country review can foster international exchange of expertise, good practices
and lessons learned.
III. FIRST REVIEW CYCLE (2010-2015)
Pursuant to Article 63, Chapter VII of UNCAC, the Conference of the States Parties(CoSP) was established to improve the capacity of and cooperation between States Parties toachieve the objectives set forth in UNCAC and to promote and review its implementation.
The CoSP, as the main policymaking body of UNCAC, supports States Parties in theirimplementation of UNCAC, and gives policy guidance to the United Nations Office on Drugs
and Crime (UNODC) to develop and implement anti-corruption activities. The CoSP later
adopted resolution 3/1, or the Implementation Review Mechanism (IRM), aimed at reviewing
each State Party’s compliance with the UNCAC provisions. There are two (2) review cycles
envisioned in the IRM: the first review cycle (2010-2015) examines each State Party’s
compliance with the provisions of Chapters III and IV, and second review cycle (2016-2021)
examines compliance with Chapters II and V.

－ 160 －

On 8 February 2012, the Philippines completed a comprehensive self-assessment
checklist, which was reviewed by peer reviewers from Egypt and Bangladesh. After conducting
desk review along with phone conferences, electronic mail exchanges and country visits, peer
reviewers cited certain successes and good practices but noted a total of thirty-four (34)challenges in the Philippines’ implementation of UNCAC Chapters III and IV.
In the implementation of UNCAC’s Chapter III on Criminalization and Law
Enforcement, the first review cycle points to a number of successes and good practices by thePhilippines, to wit:
1. The Witness Protection, Security and Benefit Programme
is considered a good practice, both in law and in operation,and the extended inclusion of other witnesses andadditional benefits is welcomed;
2. The incentives and rewards system under the Rules
Implementing Republic Act (R.A.) No. 6713 is considered
a good practice;
3. The Sandiganbayan has jurisdiction to hear matters
involving high ranking public officials so as not to
overburden the judicial system; and4. Philippine authorities have fully cooperated and exchanged
information with other States, when it came to theirattention that similar proceedings were ongoing overseas.
As to challenges, the first review cycle yielded two categories for the challenges: (i)challenges in the implementation and (ii) technical assistance needed to improve
implementation. For the challenges in the implementation, the following are identified which
could further strengthen existing anti-corruption measures:
1. Consider adopting a unified definition of public officials inline with UNCAC article 2, as well as expanding thisdefinition to include foreign public officials and officialsof public international organizations, notwithstanding any
existing privileges;
2. Consider, in the context of ongoing legal reforms, a standalone corruption-related law, which would include an
offence of active bribery of national public officials, ensure
consistency in its application, and extend the bribery
offence to transactions other than those listed insubsections 3(b) and (c) of RA 3019;
3. Inter-agency coordination and limited resources werenoted as challenges in the pursuit of bribery andembezzlement cases;
4. Consider legislative or other measures to enact active andpassive trading in influence provisions in line with theConvention;
5. A reported challenge is that asset and income disclosures
are not reviewed unless a complaint is received;
6. Consider enacting the offence of bribery in the private
sector;－ 161 －

7. Enact amendments to AMLA to cover the requirements of
UNCAC article 23, in particular the conduct described insubparagraphs (1)(a) and (1)(b)(i), and to include all
UNCAC-related offences as predicate crimes;
8. Furnish copies of the anti-money laundering laws to theUnited Nations;
9. Consider whether the criminal or non-criminal sanctions
for legal persons are effective, proportionate anddissuasive;
10. Criminalize the preparation of corruption-related offences;
11. Ensure that grants of executive clemency do not create asituation of impunity;
12. Consider entering into agreements or arrangements withother States for the relocation of witnesses and experts whogive testimony;
13. Provide sufficient resources for the effective
implementation of Senate Bill 2860, once adopted into law;
14. Extend the mandate of OMB to enter and inspect private
property;
15. Limited capacity and resources for law enforcement
agencies (such as the absence of any OMB regional offices)were noted as a challenge, including to address theconsequences of corruption;
16. Authorize OMB to have access to all relevant data andinformation, including tax, customs, financial and bankrecords;
17. Adopt proposed amendments to RA 1379 eliminating the
restriction that a matter cannot be filed before court one
year prior to a general election;
18. Broadly define conflicts of interest for purposes of the rules
implementing RA 6713;
19. To overcome challenges of inter-agency coordination,
grant competent anti-corruption bodies the necessary law
enforcement and prosecutorial powers to carry out theirfunctions effectively and without undue influence in theprivate and public sectors, with a clear legislative mandate
and appropriate resources and training to carry out theirfunctions nationally;
20. Consider enhancing law enforcement cooperation, inparticular to ensure that public officials and authorities
cooperate sufficiently in criminal investigations andprosecutions; limited financial incentives were noted as achallenge in this context;
21. Consider extending the direct privilege to request a Court
order for access to bank/financial records to other anticorruption authorities where appropriate;
22. Provide for the active and passive jurisdictional personality
principles; the application of jurisdiction in extradition
cases abroad is a reported challenge.

－ 162 －

For the technical assistance needed to improve implementation, the following forms oftechnical assistance could assist the Philippines in more fully implementing the Convention:
1. With respect to proposed revisions to the RPC, a summaryof international best practices, norms and expertise;
2. Article 15: Good practices/lessons learned; legislative
drafting; legal advice; on-site assistance by an anticorruption expert; development of an implementation
action plan; inter-agency coordination and investigative
training;
3. Article 16: Good practices/lessons learned; model
legislation; legislative drafting; legal advice;
4. Articles 21 and 41: Legislative drafting;
5. Article 23: Good practices/lessons learned; legal advice;
6. Article 25: Good practices/lessons learned; on-site
assistance by an anti-corruption;
7. Article 30: Capacity-building;
8. Article 31: Good practices/lessons learned;
9. Article 33: Legal advice; capacity-building; financial
resource;
10. Article 34: Good practices/lessons learned; development of
an implementation action plan; and
11. Article 36: Good practices/lessons learned; training on
investigative techniques; development of a central casemanagement system, data collection and training.
To ensure compliance with the above-cited challenges, the Philippines developed the21-Point UNCAC Agenda.
IV. 21-POINT UNCAC AGENDA
The 21-Point UNCAC Agenda was framed in December 2012. It is a multi-sectoral“Declaration of Commitments” for full institutional cooperation to ensure that the Philippines
adequately addresses these challenges, thus:
1. Enactment of a law or the amendment of existing law/s
defining “public officer” to conform to the UNCAC
definition;
2. Criminalization, through legislation, of active and passive
bribery of foreign public officials and officials of public
international organizations;
3. Imposition of stiffer and higher penalties and fines to an
offending corporation whose directors, officers, employees
or other officials or persons are adjudged criminally liableof an offense committed in relation to their duties,
responsibilities and functions, and incorporation ofcorruption-related offenses as a ground for dissolution of acorporation;－ 163 －

4. Passage of a law or amendment of any existing law/s toestablish as a criminal offense active and passive trading in
influence;
5. Amendment of Republic Act (RA) No. 6713 known as the“Code of Conduct and Ethical Standards for Public
Officials and Employees;”
6. Amendment of Act No. 3815, otherwise known as the “The
Revised Penal Code” (RPC), in order to harmonize thedefinition of “person‟ found in Articles 315(Swindling/Estafa) and 316 (Other forms of swindling)
thereof, and Presidential Decree (PD) No. 1689, otherwise
known as the Decree “Increasing the Penalty for Certain
Forms of Swindling or Estafa” to conform with Article 22of the UNCAC;
7. Amendment of PD No. 1069, otherwise known as the“Philippine Extradition Law” to grant extradition on thebasis of reciprocity;
8. Amendment of Section 9 (a) and Section 11 of RA No.
3019, otherwise known as the “Anti-Graft And Corrupt
Practices Act” to increase the period of prescription forgraft and corrupt practices to thirty (30) years;
9. Passage of a law on Freedom of Information;
10. Passage of a law requiring public officials and employees
to submit written permission or a waiver of their rights to
privacy in favour of the Ombudsman to look into all
deposits of whatever nature with banks or banking
institutions both within and outside the Philippines,
including investment bonds issued by the Government of
the Philippines, its political subdivisions andinstrumentalities, and providing penalties for failure tocomply herewith;
11. Passage of amendment to RA No. 3019, otherwise known
as the “Anti-Graft and Corrupt Practices Act,” tocriminalize graft and corrupt practices in the private sector;
12. Passage of further amendments to RA No. 9160, otherwise
known as the “Anti-Money Laundering Act of 2001,” toinclude the following:a. concealment or disguise as an unlawful activity; andb. expansion of the definition of money laundering andinclusion of designated non-financial businesses andprofessions among the list of covered institutions;13. Passage of the Whistleblowers’ Protection Act;
14. Passage of amendment to RA No. 6770, otherwise known
as “The Ombudsman Act of 1989,” to expand the authorityof the Ombudsman to inquire into bank deposits evenduring the investigation stage;
15. Promulgation of Rules of Procedure governing extradition
cases;－ 164 －

16. Submission to the United Nations of a revised declaration
allowing the Philippines to extradite persons on the basisof UNCAC;
17. Creation of fora among concerned agencies, as well as
Dialogues among legislators, the Department of Foreign
Affairs and their foreign counterparts, to identify countries
where extradition treaties may be needed;
18. Enactment of a law on mutual legal assistance in criminal
matters, as well as a law on transfer of detained persons
from the requested State to the requesting State;
19. Definition of terms of the Mutual Legal Assistance
Treaties;
20. Conduct of regular inter-agency consultations and increasein participation of the House of Representatives in theratification of treaties and the negotiation of effective
Transfer of Sentenced Persons Agreement; and21. Conduct massive information and localization campaign
on UNCAC and to ensure the integration of the UNCAC
framework and objectives in the Bangsamoro organic law
drafting.
V. PHILIPPINES’ BEST PRACTICESAs reported in the first review cycle, Philippines has a number of best practices in termsof implementation of UNCAC provisions related to criminalization and law enforcement, towit:A.

Witness Protection, Security and Benefit Programme
The programme is created under RA No. 6981, otherwise known as "The Witness
Protection, Security and Benefit Act." It is designed to encourage a person who has witnessedor has knowledge of the commission of a crime to testify before a court or quasi-judicial body,or before an investigating authority, by protecting him from reprisals and from economic
dislocation.
Any person who has witnessed or has knowledge or information on the commission ofa crime and has testified or is testifying or about to testify before any judicial or quasi-judicial
body, or before any investigating authority, may be admitted into the Program provided that:
a)
b)
c)

the offense in which his testimony will be used is a grave
felony as defined under the Revised Penal Code, or its
equivalent under special laws;
his testimony can be substantially corroborated in its
material points;
he or any member of his family within the second civil
degree of consanguinity or affinity is subjected to threats
to his life or bodily injury or there is a likelihood that hewill be killed, forced, intimidated, harassed or corrupted toprevent him from testifying, or to testify falsely, or
evasively, because or on account of his testimony; and－ 165 －

d)he is not a law enforcement officer, even if he would betestifying against the other law enforcement officers. In
such a case, only the immediate members of his family may
avail themselves of the protection provided for under said
programme.20

The benefits include the following: (i) security protection and escort services; (ii)immunity from criminal prosecution and not to being subjected to any penalty or forfeiture forany transaction, matter or thing concerning his compelled testimony or books, documents orwritings produced; (iii) secure housing facility; (iv) assistance in obtaining a means of
livelihood; (v) reasonable travelling expenses and subsistence allowance while acting as awitness; (vi) free medical treatment, hospitalization and medicine for any injury or illness
incurred or suffered while acting as a witness; (vii) burial benefits of not less than Ten
Thousand Pesos (P10,000.00) if the witness is killed because of his participation in the
Program; (viii) free primary to college education for the minor or dependent children of awitness who dies or is permanently incapacitated; and (ix) non-removal or demotion at work
because of absences due to his being a witness and payment of full salary or wage while acting
as a witness.21
B.

Incentives and Rewards System under the Rules Implementing (IRR) of R.A. No.
6713
Under Rule V of the IRR of RA No. 6713, incentives and rewards shall be granted to
officials and employees who have demonstrated exemplary service and conduct on the basis of
their observance of the norms of conduct laid down in Section 4 of the law such as but notlimited to commitment to public interest, professionalism and simple living. 22 Incentives andrewards to government officials and employees of the year may take the form of any of thefollowing: (i) Bonuses; (ii) Citations; (iii) Directorships in government-owned or controlled
corporations; (iv) Local and foreign scholarship grants; (v) Paid vacations; and/or (vi)Automatic promotion to the next higher positions suitable to his qualifications and withcommensurate salary.23
C.

The Sandiganbayan
The Sandigabayan is a special anti-graft court created under PD No. 1486 pursuant to
the mandate of Section 5,24 Article XIII of the 1973 Constitution of the Philippines. The 1987
Constitution mandated the continuation of the Sandiganbayan. Several amendments have been
introduced to the original law creating it, such as RA Nos. 7975 and 8249, with the objectiveof strengthening both its organizational and functional structures. Under these new laws, thejurisdiction of the Sandiganbayan now includes cases involving public officials occupying
positions classified as salary grade (SG) 27 and higher. As provided under Section 4 of RA No.
8249, the Sandiganbayan shall have original exclusive jurisdiction over:
1. Violations of RA No. 3019 (Anti-graft and Corrupt Practices Law);

RA No. 6981, Section 3.
Ibid, Section 8.
22
IRR of RA No. 6713, Rule V, Section 1.
23
Id., Rule V, Section 3.
24
SECTION. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shallhave jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses
committed by public officers and employees, including those in government-owned or controlled corporations, in
relation to their office as may be determined by law.
20
21

－ 166 －

2. RA No. 1379 (Forfeiture of Illegally Acquired Wealth);
3. Crimes by public officers or employees embraced in Chapter II, Section 2, Title
VII, Book II of the RPC (Crimes committed by Public Officers), namely:
A. Direct Bribery under Article 210, as amended;
B. Indirect Bribery under Article 211, as amended;
C. Qualified Bribery under Article 211-A, as amended;
D. Corruption of public officials under Article 212 where one or more of theaccused are officials occupying the following positions in the government
whether in a permanent, acting or interim capacity, at the time of thecommission of the offense:a. Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as SG 27 and higher, of theCompensation and Position Classification Act of 1989 (RA No. 6758)
specifically including:a.1. Provincial governors, vice-governors, members of thesangguniang panlalawigan, provincial treasurers, assessors,
engineers and other provincial department heads;
a.2. City mayors, vice-mayors, members of the sangguniang
panglungsod, city treasurers, assessors, engineers and otherdepartment heads;
a.3. Officials of the diplomatic service occupying the position of
consul and higher;
a.4. Philippine Army and Air force colonels, naval captains and all
officers of higher rank;
a.5. Officers of the PNP while occupying the position of Provincial
Director and those holding the rank of Senior Superintendent or
higher;a.6. City and provincial prosecutors and their assistants; officials andthe prosecutors in the Office of the Ombudsman and special
prosecutor;
a.7. President, directors or trustees or managers of government
owned or controlled corporations, state universities or educational
institutions or foundations;b. Members of Congress and Officials thereof classified as SG 27
and up under the Compensation and Classification Act of 1989;
c. Members of the Judiciary without prejudice to the provision of theConstitution;
d. Chairmen and members of Constitutional Commissions, without
prejudice to the provision of the Constitution; ande. All other national and local officials classified as SG 27 and higher
under the Compensation and Position Classification Act of 1989.
4. Other offenses or felonies, whether simple or complicated by the commissionof other crimes, in relation to their office by the public officials and employees
mentioned above;
5. Civil and criminal cases filed pursuant to and in connection with Executive
Order (EO) Nos. 1, 2, 14 & 14-A issued in 1986;
6. Petitions for issuance of Writ of mandamus, prohibition, certiorari, habeas
corpus, injunction and other ancillary writs and processes in aid of its appellate
jurisdiction; Provided, jurisdiction is not exclusive of the Supreme Court;－ 167 －

7. Petitions Quo Warranto arising or that may arise in cases filed or that may be
filed under EO Nos. 1, 2, 14 & 14- A;
8. OTHERS provided the accused belongs to SG 27 or higher:
A. Violation of RA No. 6713 – Code of Conduct and Ethical Standards;
B. Violation of RA No. 7080 – The Plunder Law;
C. Violation of RA No. 7659 – The Heinous Crime Law;
D. RA No. 9160 – Violation of The Anti-Money Laundering Law when committed
by a public officer;
E. PD No. 46, referred to as the gift-giving decree, makes it punishable for any
official or employee to receive directly or indirectly and for a private person to
give or offer to give any gift, present or other valuable thing on any occasion
including Christmas, when such gift, present or valuable thing is given byreason of his official position, regardless of whether or not the same is for pastfavours or the giver hopes or expects to receive a favour or better treatment in
the future from the public official or employee concerned in the discharge of his
official functions. Included within the prohibition is the throwing of parties orentertainment in honour of the official or employee or his immediate relatives;
F. PD No. 749 grants immunity from prosecution to any person who voluntarily
gives information about any violation of Articles 210, 211 or 212 of the RPC,
RA No. 3019, Section 345 of the National Internal Revenue Code, Section 3604
of the Customs and Tariff Code and other provisions of the said Codes
penalizing abuse or dishonesty on the part of the public officials concerned andother laws, rules and regulations penalizing graft, corruption and other forms ofofficial abuse and who willingly testifies against the public official or employee
subject to certain conditions.
While the above apparently encompass public officers only, private individuals can besued in cases before the Sandiganbayan if they are alleged to be in conspiracy with the public
officer.
Presently, there are a total 35,368 cases filed as of 31 July 2017, with 33,306 cases
disposed of.25 Thus, only 5,232 cases are pending as of 31 July 2017. For years 2007 to 2017,
the breakdown of cases is as follows:
Year
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017

25

Filed
93
433
211
297
482
395
969
452
357
1311
1535

Disposed
308
641
357
247
430
363
480
277
276
371
532

www.sb.judiciary.gov.ph－ 168 －

Pending
2319
2164
2062
2158
2228
2299
2862
3093
3206
4214
5232

D.

Legislation
Being an international obligation to align national/domestic laws with UNCAC and in
response to the challenges during the first review cycle, the following have been enacted by
the Legislative Department:
1. RA No. 10589, otherwise known as the "Anti-Corruption Month Act,” declaring
December of every year as "Anti-Corruption Month" throughout the entire country.
2. RA No. 10660, or an act strengthening further the functional and structuralorganization of the Sandiganbayan, further amending PD No. 1606.
3. RA No. 10910, an Act Increasing the Prescriptive Period for Violations of RA No.
3019, otherwise known as the “Anti-Graft and Corrupt Practices Act” from fifteen(15) years to twenty (20) years.
4. RA No. 10365,26 an Act Further Strengthening the Anti-Money Laundering Law,
amending for the purpose RA No. 9160, otherwise known as the "Anti-Money
Laundering Act of 2001.”
E.

Executive Issuances and Practices
As for executive issuances, the following are presidential acts in order to comply with
UNCAC, to wit:
1. Presidential Proclamation No. 506, series of 2012
Recognizing that corruption poses serious problems and threats to thestability and security of societies, undermining the institutions and valuesof democracy, ethical values and justice, and jeopardizing sustainable
development and the rule of law, the President declares December 9 as
National Anti-Corruption Day, which coincides with the designation of
December 9 as international Anti-Corruption Day of the General Assemblyof the UNCAC.
2. EO No. 171, series of 2014
On 5 September 2014, the President issued EO No. 171 creating thePresidential UNCAC Inter-Agency Committee (Committee) to oversee theimplementation, coordination, monitoring and review of Philippine
compliance with the UNCAC. It is composed27 of the Executive Secretary,
who shall serve as the Chairperson of the Committee with the following
members:
a.
b.
c.
d.
e.

The Secretary of Justice as Vice-Chairperson;
The Secretary of Foreign Affairs as Co-Vice-Chairperson;
The Secretary of Budget and Management;
The Secretary of Socioeconomic Planning; andThe Secretary of Interior and Local Government.

Presented by Director Dennis Garcia of the Office of the Ombudsman (Philippines) during the 10 th Regional
Seminar on Good Governance for the Southeast Asian Countries.
27
EO No. 171, Section 2.
26－ 169 －

The Committee shall have the following functions:28
a. Assess, evaluate and review all the provisions of the UNCAC anddetermine its applicability and its compatibility with the existing legal
framework and laws;b. Formulate and develop plans, policies and response strategies related tothe implementation, monitoring and review of compliance with theState’s treaty obligations under UNCAC;
c. Undertake and coordinate the implementation of integrity development
and anti-corruption measures with appropriate branches of governmentthat will ensure its adoption and implementation;
d. Assess and monitor good governance and anti-corruption initiatives in
the country, collating all necessary data and information on corruptionrelated offenses for the comprehensive review of the implementation of
the UNCAC;
e. Set up and implement a communication plan to ensure transparency andaccountability in the assessment of the good governance and anticorruption initiatives in the country and conduct of awareness-raisingand advocacy, particularly those contributing to the non-tolerance ofcorruption;
f. Ensure compliance by the government with all its obligations under the
UNCAC, including the timely submission of treaty implementation
reports, replies and comments on cases filed with the United Nations
Office on Drugs and Crime;
g. Direct and ensure the creation of internal working groups (IWGs) fromamong the concerned government entities as well as the designation of
focal points, and institution of an effective system for multi-sector
arrangements in the implementation, coordination and monitoring of all
related endeavours under UNCAC;
h. Create technical working groups (TWGs) to conduct relevant studies andresearch on relevant legal instruments, administrative measures andeffective practices aimed at preventing corruption with a view todetermining their adequacy to prevent and reduce corruption;i. Ensure adherence to the objectives of UNCAC of all anti-corruption
programmes and good governance initiatives in the territorial andpolitical subdivisions of the country; andj. Report to the President every semester and recommend policy advice
and/or measures to ensure compliance with UNCAC;
k. Perform such other functions as may be directed by the President or as
may be necessary, consistent with the basic functions of the Committee.
3. EO No. 176, series of 2015
On 01 December 2014, the President issued EO No. 176, entitled,“Institutionalizing the Integrity Management Program as the National
Corruption Prevention Program in all Government Departments, Bureaus,
Offices, Agencies, including Government-owned and Controlled
Corporations, Government Financial Institutions, State Universities andColleges, and Local Government Units through the Establishment ofIntegrity Management Systems (IMS),” which institutionalizes the Integrity
28

Id., Section 3.

－ 170 －

Management Program (IMP) as the National Corruption Prevention
Program, through the establishment of the Integrity Management Systems(IMS).
The IMP covers dimensions or management systems linked to enhance bothindividual and systems integrity. Its objectives consist of reducing the levelof corruption vulnerabilities at the level of the public-sector institution toensure the attainment of its mandate and to improve the public’s trust andconfidence in the government.
The said Executive Order created a Program Management Committee(PMC) as the programme overseer of the IMP. The PMC is chaired and cochaired by the Office of the President and the Office of the Ombudsman.
Memorandum Circular No. 76 dated 15 April 2015 was issued urging all
public-sector institutions to initiate the establishment of IMS in theirrespective offices and adopt the IMP Handbook as the guide in
implementing the IMP.
Institutions implementing the IMP shall create an Integrity Management
Committee (IMC) to manage and guide the development and enforcementof integrity measures, as well as to encourage participation in IMP
implementation at the institution level. The IMP adopts as its framework theinternational standards and practices on anti-corruption measures under
UNCAC.
The IMP was initially piloted in five agencies, namely: the Department ofSocial Welfare and Development, the Department of Justice, the Bureau ofInternal Revenue, the Department of Public Works and Highways and theDepartment of Health. After the successful run of the pilot agencies, theIMP PMC extended the IMP implementation to another batch of agencies,
specifically, the Department of Environment and Natural Resources, theDepartment of Transportation and Communications, the Department of theInterior and Local Government, the Department of National Defense, andthe Department of Education. A number of agencies then officiallycommunicated their requests and volunteered to undergo the IMP
implementation process. To date, thirty (30) public sector institutions haveundergone the initial stages of IMP implementation.
4. 2016 IRR of RA No. 9184 (Government Procurement Reform Act)
The provisions of IRR are in line with the commitment of the Philippines
to promote good governance and its effort to adhere to the principles oftransparency, accountability, equity, efficiency, and economy in its
procurement process. It is the policy of the government that procurement ofgoods, infrastructure projects and consulting services shall be competitive
and transparent, and therefore shall undergo competitive bidding. The
governing principles on government procurement are transparency ingovernment procurement, competitiveness, streamlined procurement
process, system of accountability and public monitoring process.

－ 171 －

5. EO No. 1, series of 2016
EO No. 1, entitled, “Reengineering the Office of the President towards
Greater Responsiveness to the Attainment of Development Goals,” aims toattain national development goals, which requires the efficient, responsive,
and just allocation of resources by eliminating duplication or overlappingof common functions, maximizing research utilization with minimum
disruption to operations, coordinating efforts more closely, sharing
information, and consistently working in a collaborative manner to advancedevelopment goals and uplift the quality of life of all Filipinos through aholistic, convergent, and participatory approach to leadership andgovernance.
6. EO No. 2, series of 2016
Consistent with Article 28, Article II of the 1987 Constitution, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest, subject to reasonable conditionsprescribed by law, and Section 7, Article III of the Constitution guarantees
the right of the people to information on matters of public concern, thePresident issued EO No. 2 operationalizing in the Executive Branch thePeople’s constitutional right to information and the state policies to full
public disclosure and transparency in the public service.
7. EO No. 6, series of 2016
The President issued EO No. 6 institutionalizing 8888 Citizen’s Complaint
Hotline and establishing 8888 Citizen’s Complaint Center. The 8888
Citizen’s Complaint Hotline shall serve as a mechanism where citizens mayreport their complaints and grievances on acts of red tape and/or corruptionof any national government agency, government-owned-and-controlled
corporations, government financial institutions and other instrumentalities
in the government.
8. Administrative Order (AO) No. 79, series of 1999
Initially established by a Memorandum of Agreement executed on 11 June 1997,
AO No. 79 officially recognized the Inter-Agency Anti-Graft Coordinating
Council (IAAGCC), which is a voluntary alliance of government agencies
engaged in enforcing integrity and public accountability, namely, the Office of
the Ombudsman, Office of the President, Commission on Audit, Civil Service
Commission, Department of Justice, and National Bureau of Investigation.
These agencies formulate and develop concerted techniques and strategies in
the prevention, detection, investigation and prosecution of graft cases.
The IAAGCC developed the Guidelines of Cooperation that will strengthen
working relationships among themselves and establish the criteria and operatingprocedures in: (a) creating Inter-Agency task forces that will investigate
collective cases; (b) providing training programmes for their personnel; and (c)establishing a communication and coordination center to facilitate informationexchange and monitoring of relevant cases.
The IAAGCC has recently adopted a Strategic Plan for 2015-2018. A few ofthe major plans are the roll-out of Revised Guidelines on Cooperation;－ 172 －

publication of an Integrated Anti-Graft Investigation and Prosecution Manual;and development of an Integrated Case Management System for Graft and
Corruption Cases.
9. Memorandum Circular No. 03 enjoining all government official and employees
to strictly observe and comply with the required work hours.
10. Memorandum Circular No. 06 enjoining all official and employees to comply
with the prohibition against going to casinos.
As for practices adopted in the Executive Department, the following are practices
adopted by the President, to wit:
1. Annual UNCAC State Conference
The Philippines holds the UNCAC State Conference annually every
December, which started 2013. It is convened to gather all stakeholders in
the Philippines’ anti-corruption efforts. The UNCAC State Conference isattended by heads of all branches of the government, constitutional
commissions, officials from other government agencies, development
partners and the private sector, who come together to share information on
the initiatives and reform measures of their respective offices andorganizations, as part of its efforts to validate compliance with UNCAC. It is
the only event pertaining to anti-corruption that is attended by the highest
political level of the Philippine Government. Cited by the UNODC as one of
the UNCAC best practices, this annual Philippine State Conference has
gained international acclaim.
2. Advance Preparation for the second review cycle
In 2014, while awaiting the results of the drawing of lots for the Second
Review Cycle, the Office of the President and the Office of the Ombudsman
initiated a preliminary assessment of the Philippines’ implementation of theprovisions of UNCAC Chapters II (Preventive measures) and V (Assetrecovery). This is also consistent with the “going beyond the minimum”
approach espoused by the United Nations Development Programme (UNDP).
The Philippines commenced its preparations by organizing a number of interagency cluster meetings composed of internal working groups from thepublic and private sector. Through joint efforts, the Philippines accomplisheda preliminary assessment report that will serve as basis for the UNCAC
Comprehensive Self-Assessment Checklist in the Second Review Cycle. The
Philippines also aims to enact legislative reforms even before undergoing
review, which shall commence in 2018.
3. International and national conventions
In view of the Philippines’ multi-sectoral approach in fighting corruption, theGovernment encourages the involvement of various stakeholders such as thecivil society and the private sector to reinforce the conviction that we are allpartners for change. Pursuant to this thrust, the Philippines regularlyorganizes multi-sector dialogues and conferences involving the public sector,
the private sector, and development partners like the World Bank and UNDP

－ 173 －

to enhance cooperation with respect to anti-corruption initiatives of theGovernment, under the auspices of UNCAC. These events pave the way forknowledge sharing, give an opportunity for capacity building, and assist in
the prioritization of technical assistance needs of the Philippines. The
Philippines also regularly sends delegates to international conferences inorder to share experiences and good practices with other States.
The major activities of the Philippines relative to the UNCAC IRM include
the following:
1. Capacity assessment of the Philippines’ anti-corruption
infrastructure led by the UNODC and the United Nations
Development Programme Bangkok Regional Hub held from 24
November to 1 December 2014 in Manila, Philippines;
2. Country visit of officials from the Government Inspectorate ofVietnam in July 2015, and representatives from the Governmentof Zambia in August 2015 in Manila, Philippines;
3. 6th Session of the CoSP held from 2-6 November 2015 in St.
Petersburg, Russian Federation. The Philippine delegation washeaded by Ombudsman Conchita Carpio Morales and co-headed
by Commission on Audit Chairperson Michael G. Aguinaldo.
The Philippine Ambassador to the Russian Federation, and highranking officials of the Department of Justice, Anti-Money
Laundering Council Executive Director and Presidential
Commission on Good Governance also formed part of thePhilippine delegation;
4. 7th session of the UNCAC Implementation Review Group (IRG)
held from 20-24 June 2016 in Vienna, Austria;
5. 10th session of the Intergovernmental Working Group (IWG) on
Asset Recovery held from 25-26 August 2016 in Vienna, Austria;
6. 7th session of the IWG on Prevention held from 22-24 August
2016 in Vienna, Austria;
7. 5th session of the open-ended Intergovernmental Expert Meetingon International Cooperation held from 17-18 November 2016 in
Vienna, Austria;
8. Resumed 7th session of the IRG held from 14-16 November 2016
in Vienna, Austria;
9. Synchronized Consultation Meeting on UNCAC Implementation
and Review held on 18 November 2016 in Mabini Hall,
Malacañang, Manila;
10. Training for focal points or governmental experts participating in
the Second Review Cycle of the UNCAC IRM held from 14-16
June 2017 in Vienna, Austria;
11. 8th session of the IRG held from 19-23 June 2017 in Vienna,
Austria;
12. 8th Meeting of the IWG on the Prevention of Corruption heldfrom 21-23 August 2017 in Vienna, Austria; and13. 11th Meeting of the IWG on Asset Recovery held from 24-25
August 2017 in Vienna, Austria.

－ 174 －

VI. PHILIPPINE RESPONSE TO THE CHALLENGESIt should be emphasized that per the first review cycle, the results note that Philippines
is fifty-four percent (54%) compliant, twenty-nine percent (29%) partially compliant andseventeen percent (17%) non-compliant with the UNCAC provisions on criminalization andlaw enforcement.29
Based on data from the Good Governance Cluster of the Philippines, the followingshows the Philippines’ response to the Generalized System of Preference Plus (GSP+)
Monitoring Scorecard relative to its compliance with the challenges identified during the First
Review Cycle:
Issues –Description• Consider•
adoptingaunifieddefinition of
publicofficials, as
wellasexpandingthis definition
toincludeforeign public
officials.

•

Concrete Developments/Achievements on Implementation
In the 16th Congress, bills were filed in both Houses of Congress(House Bill No. 04783 and Senate Bill No. 2311) both entitled“An Act Strengthening the Code of Conduct and EthicalStandards for Public Servants” which define "Public Servant" as
including “any person holding or performing a public function in
the legislative, executive, administrative or judicial office in thegovernment, regardless of status of employment or engagement,
and whether or not they receive compensation . . .” The proposed
definition is in line with Article 2 of UNCAC.
Said bills (Enhanced Code of Conduct for Public Servants) havebeen refiled in the 17th Congress as SBN 870 and as HBN 418.
A proposed bill entitled “An Act Penalizing Bribery of Foreign
Public Officials and for Other Purposes” to expand the definitionof public officials to include foreign public officials has beendrafted but not yet filed in Congress.

On bribery:
Improvelegislation on• The provisions of the Revised Penal Code, particularly on Direct
bribery,
trading
inBribery (Article 201), Indirect Bribery (Article 211), Corruption
influence,of Public Officers (Article 212) and Qualified Bribery (Article
211-A) comply with the requirements of UNCAC.
money
launderingandconcealment.
Considerastand-alone
corruption
related law.
On trading in influence:•In the 16th Congress, the following bills were filed:29
From the Monitoring Report of the OP-OMB Joint Technical Working Group, which was done after the CRR,
after conducting a series of inter-agency meetings pursuant to the 21-Point Agenda.

－ 175 －

HBN 04821 (An Act Penalizing Influence Peddling) defines“influence peddling” as the “act of representing oneself, either
orally or in writing, as being able, whether real or imagined, toinfluence, facilitate or assist another person having somebusiness, transaction, application, request or contract with thegovernment in which the public official or employee has tointervene, in consideration of any present, gift or material or
pecuniary advantage.”
SBN 118 (An Act Penalizing Influence Peddling and for Other
Purposes) defines “influence peddling” as the “act of representing
oneself, either orally or in writing, as being able, whether real or
imagined, to influence, facilitate or assist another person havingsome business, transaction, application, request or contract withthe government in which a public official or employee has tointervene.”
However, said bills were not enacted into law because while theHouse version has passed third reading and has been transmitted
to the Senate for its concurrence, the Senate version remained at
the Committee level.
The Office of the Ombudsman and/or the Presidential UNCAC
Implementation Committee actively endeavours to urge Congress
to consider adopting the definition of active and passive trading
influence as contained in Article 18 of UNCAC.
On having a stand-alone corruption-related law:••

RA No. 10910, “An Act Increasing the Prescriptive Period for
Violations of RA 3019, Otherwise known as the “Anti-Graft and
Corrupt Practices Act, from 15 years to 20 years, amending
Section 11 thereof,” lapsed into law on July 31, 2016 without thesignature of the President in accordance with Article VI, Section
27(1) of the Constitution. The law amended Section 11 of RA No.
3019, so that “all offenses punishable under the Act shallprescribe in 20 years.” The new prescriptive period would ensurethat those who violate the existing Graft Law can still be held
accountable for up to 20 years after the discovery of their act. The
new law is in compliance with the provisions of UNCAC.
In the 16th Congress, HBN 2300, which covers Book 1 on General
Provisions of the new Criminal Code, was approved at theCommittee level. However, no counterpart bill of the Criminal
Code was filed in the Senate. The draft Criminal Code,particularly Sections 39-42 of Chapter 2 (b), defines crimes
involving graft and corruption.The draft bill is being considered
to be refiled this 17th Congress.

－ 176 －

•Considerwhethercriminal andnon-criminal
sanctions forlegal persons
are effective,
proportionate
anddissuasive.

Amendments to BP Blg. 68 (Corporation Code of thePhilippines):
•
•

•

•

•

•

In the 16th Congress, the following bills were filed:
HBN 4409/SBN 2194 both entitled “An Act Amending Batas
Pambansa Blg. 68, ‘The Corporation Code of the Philippines’”.
The Corporation Code Amendments include several provisions
recognizing corporate criminal liability for graft and corrupt
practices and have provided for the imposition of stiff fines not
only for acting as intermediaries for graft and corrupt practices
but for engaging intermediaries for said purposes. In bothinstances, the failure of a corporation to show that is has installed
company policies and procedures against graft and corruption
shall be prima facie evidence of its liability.
The creation of a corporation for graft and corruption as well as
the commission by a corporation of graft and corrupt practices
have been made grounds for the dissolution of the said corporate
entity.
The fight against graft and corruption has also been brought to anindividual level by the amendments as directors, trustees orofficers of a corporation who tolerate graft and corrupt practices
committed by other individuals involved in the corporate
operations are punished for their failure to report said incidents.
To greatly ensure that corporate graft and corrupt practices arereported and may be substantiated by those who have first-handknowledge of the violations, one of the proposed amendments
provides for the protection of whistleblowers and the impositionof a hefty penalty on any person who shall retaliate against awhistleblower.
As to all other offenses or violations of the Corporation Code, thefine has been increased from One Thousand Pesos (Php1,000.00)
but not more than Ten Thousand Pesos (Php10,000.00) or byimprisonment for not less than thirty (30) days but not more than
five (5) years, or both, at the discretion of the court, to a fine of
not less than fifty thousand (Php50,000.00) pesos but not morethan One Million Pesos (Php1,000,000.00) and/or byimprisonment [for] OF not less than thirty (30) days but not morethan five (5) years, or both, at the discretion of the court. Further,
the corporation may also be dissolved in appropriate proceedings.
However, said bills were not enacted into law because while there
was already a Senate Committee Report, the counterpart bill in
the Lower House was not passed in the Committee Level. The
draft bills are being considered to be refiled in this 17th Congress.

Amendments to RA No. 8799 (Securities Regulation Code):•

Amendments to the Securities Regulation Code (SRC) have beendrafted and are being finalized in preparation for the filing of abill in the Congress. The administrative, civil and criminal－ 177 －

•

•

•

•

•

•

•

Ensure that
grantsofexecutive
clemency do
not create asituationofimpunity.

sanctions for securities violations under the SRC have been
updated and expanded.
Not only has the administrative penalty cap been increased from
One Million Pesos (Php1,000,000.00) to Five Million Pesos(Php5,000,000.00) to serve as a deterrent to violations but
disgorgement, thus far a novel concept in Philippine securities
regulation, has been introduced to ensure that the offending
corporation will not unjustly profit from unlawful securities
schemes.
The amount of damages to be awarded in relation to civil
enforcement actions instituted by the Securities and Exchange
Commission (SEC) has been raised to not less than One Hundred
Thousand Pesos and shall be double the amount of the transaction
plus damage and a daily fine until full payment of the penalty ismade. The amount of the penalty may be treble or even quadruple
the transaction amount if the violation involved fraud, deceit andother aggravating circumstances.
A provision on the award to be granted whistleblowers as well as
the parameters for such an award has also been introduced toencourage transparency in corporate dealings as well as to provide
an incentive to those who shall report violations of the SRC.
As to the criminal penalty imposable against violators of the SRC
and the rules and regulations promulgated by the SEC, the same
have been raised from not less than Fifty Thousand Pesos(Php50,000.00) nor more than Five Million Pesos(Php5,000,000.00) to not less than Two Hundred Thousand Pesos(Php200,000.00) not more than Ten Million Pesos(Php10,000,000.00).
The SEC has already made available an updated scale of fines andpenalties to be imposed on violations of particular rules,
regulations and other issuances of the SEC for comment ofinterested parties through the submission of position papers andhas held a public consultation on the same. The updated scale istargeted to be issued within 2015.
In the 16th Congress, HBN 4407 and its counterpart bill, SBN 2465
were filed which bat for strong anti-graft and corrupt practicemeasures within a corporation and its dealings with government.
The draft bills are being considered to be refiled in this 17th
Congress.

The table below shows the number of executive clemencies granted
by past and present Presidents of the Philippines. This is based on thedata (as of 17 August 2015) provided by the Malacañang Records
Office.
Executive
Clemency

PCCA(198292)

PFVR(19921998)－ 178 －PJPEE
(19982001)

PGMA(20012010)

PBSA
III
(20102015)

Absolute
PardonCommutationof Sentence
Conditional
PardonConditional
Pardon with
Voluntary
Deportation
Conditional
Pardon with
ParoleCondition
Reprieve
Total
•

•

293

158

24

20

2

8399

10998

2497

1158

22

4272

3271

880

985

7

0

0

0

47

15

0

0

0

44

10

0
12964

0
14427

0
3401

478
2732

0
56

The decrease in the number of executive clemencies grantedshows that while the grant of executive clemency is discretionary
on the part of the President of the Philippines, the same has notbeen exercised indiscriminately.

Grant• In the 16th Congress, HBN 3739 and its counterpart bill, SBN 184
competent
were filed to require all public officials and employees, except thoseantiwho serve in an honorary capacity, to submit a written permission
corruption
or waiver in favour of the Ombudsman to look into all deposits ofbodieswhatever nature with banks or banking institutions, both within andnecessary law
outside the Philippines, including investment bonds issued by theenforcement
government of the Philippines, its political subdivisions andandinstrumentalities.
prosecutorial
powerstocarry out theirfunctionseffectively.
• More than a dozen bills were also filed to strengthen theinstitutional capacity of the Office of the Ombudsman, such as
HBN 5044 and SBN 605.
• HBN 5044 and SBN 1148 would allow the Office of the
Ombudsman to deputize private lawyers to act as investigators orprosecutors to act under the direct control and supervision of the
Ombudsman in certain special and meritorious circumstances.
• On the other hand, SBN 605 intends to augment the financial
resources of the Ombudsman by giving it a share in any property
forfeited in favour of the State under R.A. No. 1379, otherwise
known as the Forfeiture Law and thus increase its funding. The
bill provides a mechanism wherein 30% of the value of forfeitedassets shall be used as funding for the Ombudsman which willassist the continued progress of cases. The method therefore－ 179 －

•

•

•

•

•

Consider•enhancing law •enforcement
cooperation inensures additional funding to the Ombudsman, and eliminates theneed to reallocate funding from a stretched national budget.
HBN 5046 and SBN 1162 both seek to strengthen the forfeiture
powers of the State by amending R.A. No. 1379, otherwise known
as “An Act Declaring Forfeiture in favor of the State any Property
Found to have been Unlawfully Acquired by any Public Officer
or Employee and Providing for the Proceeding Therefor”.
SBN 2485 intends to grant additional investigative andprosecutorial powers to the Office of the Ombudsman, which
includes the leeway to employ wiretapping in especially
meritorious cases, the power to issue subpoenas and subpoenas
duces tecum to compel the compulsory attendance of any witness
or the production of evidence, the authority to inquire into bankand non-bank accounts, records and transactions, and the power
to punish for contempt. This bill is pending with the Senate
Committee on Justice and Human Rights.
HBN 4783 and SBN 2311 both contain a provision that empowers
the Ombudsman, Civil Service Commission, and the Commission
on Audit to obtain, at any time, all documents that may show apublic officer’s assets, liabilities, net worth, and business interestsand financial connections, commencing from the time thedeclarant was employed or engaged by the government, from allagencies, banks, and financial institutions, whether private or
public. If passed, this will be an exception to the Bank Secrecy
Law.
HBN 145, according to its sponsor, "seeks to support the effortsof the Government to rid itself of corruption by setting up a systemof rewards and protection for informants and their families. (The)bill will set up such a (system) specifically by (1) establishing amonetary-based rewards system for the benefit of the informers,(2) protecting informants against reprisals and against civil or
criminal liability when they make public interest disclosures, (3)ensuring that public disclosures are made to the proper public
entity and not the media, (4) ensuring that the inappropriate
publication of unsubstantiated disclosures does not damage thereputation of those accused, and (5) ensuring that proper records
on disclosures are kept.” On the other hand, SBN 1614 provides
for immunity in favour of the informant or whistleblower against
any action or proceedings taken against him by any person subjectof a disclosure; protection against disciplinary action or reprisals;
and financial rewards for whistleblowers. The latter bill also seeks
the establishment of a Whistleblower Benefits and Protection
Council, which will be composed of the Overall Deputy
Ombudsman, as Chairperson, and eight members. Said draft bills
are being considered to be refiled this 17th Congress.
AO No. 79, s. 1999 established the IAAGCC.
Last 01-03 June 2016, the IAAGCC conducted the Cross-Agency
Training for IAAGCC Specialists to enable the participants to－ 180 －

criminal
investigations
andprosecutions.

•demonstrate the technical and professional competencies on factfinding investigation and preliminary investigation.
The IAAGCC is presently chaired by the Chairman of theCommission on Audit (COA). On 2 May 2016, the COA
Chairman and the Ombudsman entered into a Memorandum of
Agreement.
VII.

CONCLUSION

While compliance comes as a natural consequence, in fact an obligation, of the consent
given by a state upon signing an international agreement, giving full effect and/or fullcompliance does not. Any compliance with international obligations will not come easy to any
state, especially if the same would entail heavy legislative enactments and executive structure
realignment. The same is true with signing UNCAC.
Based on the foregoing, UNCAC is not a blueprint for anti-corruption reform, but rather
a tool for a country, through the help of country and peer review and other mechanisms, todetect and identify the flaws and weaknesses in its institutional arrangements and procedures.
As a state party to UNCAC, it can be gainsaid that the Philippines is aggressive in complying
with its international obligations under UNCAC. Being fifty-four (54%) percent UNCACcompliant and twenty-nine percent (29%) partially compliant after the first review cycle,
Philippines, through its Executive Department, shows many indications of transparency andgood governance. The remaining seventeen percent (17%) non-compliant mainly points toenactment, amendment and/or repeal of laws in the country, which power obviously belongs
to the Legislative Department. Obviously, responses to these challenges would entail concerted
efforts from the different branches of government and agencies. It is a daunting task but it isdoable.

－ 181 －

INSTITUTIONAL FRAMEWORK AND PRACTICAL DEVELOPMENTS IN
ANTI-CORRUPTION: PERSPECTIVES FROM SINGAPORE’S EXPERIENCE IN
COMBATING CORRUPTION
Siong Leng Neo*I. INTRODUCTION
Singapore is well regarded globally as one of the few countries in the world with a low
incidence of corruption. In 2016, Transparency International’s Corruption Perceptions Index(TI-CPI) ranked Singapore as the 7th least corrupt country in the world and the least corrupt
Asian country with a score of 84 out of 1001. The Political and Economic Risk Consultancy(PERC) also ranked Singapore as the least corrupt country in Asia in 2016 2 , a position
Singapore held since 1995. The results of a recent Public Perception Survey conducted from
May to June 2016 to measure the general public’s perception on the level of corruption in
Singapore, understanding of corruption and awareness of the Corrupt Practices Investigation
Bureau’s (CPIB) work showed that fewer respondents perceived corruption as common in
Singapore as well as in the public and private sectors in 2016 (24%) compared to 2013 (34%).
Almost 90% of the respondents rated Singapore positively on its efforts in controlling thecorruption situation in the country in 20163.
II.

AN INSTITUTIONAL PERSPECTIVE – SINGAPORE’S CORRUPTIONCONTROL FRAMEWORKOver the years, Singapore has established an effective anti-corruption framework,
which has seen it transform from a country rampant with corruption to one of the least corrupt
countries in the world. Singapore’s strategy on anti-corruption can be illustrated through thefollowing diagram, which consists of four pillars of corruption control, underpinned by strong
political will.

Diagram: Singapore’s corruption control framework
Senior Assistant Director, General Investigations Branch 2, Corrupt Practices Investigation Bureau, Singapore.
Refer to: https://www.transparency.org/news/feature/corruption_perceptions_index_20162
Refer to: https://www.cpib.gov.sg/research-room/political-economic-risk-consultancy
3
Refer to: https://www.cpib.gov.sg/sites/cpibv2/files/CPIB_Annual%20Report_2016.pdf*
1－ 182 －

A.

Political Will
The political will to eradicate corruption was established by Singapore’s founding
Prime Minister, Mr Lee Kuan Yew, when the People’s Action Party (PAP) was elected into
government in 1959. The PAP was determined to build an incorruptible and meritocratic
government and took decisive and comprehensive action to stamp out corruption from all levelsof Singapore’s society. As a result of the government’s unwavering commitment andleadership, a culture of zero tolerance against corruption became ingrained in the Singaporean
psyche and way of life.
B.

Effective Laws
Singapore relies on two key legislations to fight corruption; the Prevention of
Corruption Act (PCA), and the Corruption, Drug Trafficking and Other Serious Crimes(Confiscation of Benefits) Act (CDSA). The PCA has a wide scope which applies to persons
who give or receive bribes in both the public and private sector. The CDSA, when invoked,
confiscates ill-gotten gains from corrupt offenders. Together, the two laws ensure that
corruption remains a high-risk low-rewards activity. Upon the conclusion of investigations by
the CPIB, all alleged corruption cases will be handed over to the Attorney-General’s Chambers(AGC), which is responsible for prosecuting criminal offences in Singapore, for legal
assessment of the available evidence before deciding whether to charge the accused person(s)formally in Court. Any direction to charge an accused person under the PCA or CDSA mustbe accompanied with a consent in writing from the Public Prosecutor.
C.

Independent Judiciary
In Singapore, an independent judiciary provides insulation from political interference.
The Chief Justice is appointed by the President on advice from the Prime Minister and theCouncil of Presidential Advisers. District judges and magistrates are appointed by the President
with advice from the Chief Justice. Various provisions of the Constitution also guarantee theindependence of the Supreme Court judiciary. Transparent and objective in its administrationof the rule of law, the judiciary recognises the seriousness of corruption and adopts a stance ofdeterrence by meting out stiff fines and imprisonment towards corrupt offenders.
D.

Effective Enforcement
The CPIB is the only agency authorised to investigate corruption offences under thePrevention of Corruption Act (Chapter 241) and other related offences. It is a government
agency under the Prime Minister’s Office, operating with functional independence and ishelmed by a director who reports to the Prime Minister. The CPIB acts swiftly and vigorously
to enforce the tough anti-corruption laws impartially for both public and private sector
corruption. During the investigation process, the CPIB will work with various government
agencies and private organisations to gather evidence and obtain information.
E.

Responsive Public Service
The Singapore Public Service is guided by a Code of Conduct, which sets out the highstandards of behaviour expected of public officers based on principles of integrity,
incorruptibility and transparency. The practice of meritocracy in the Public Service, together
with regular reviews of administrative rules and processes to improve efficiency also reduce
the opportunities for corruption. The CPIB is mandated to conduct procedural reviews forgovernment agencies which may have work procedures that can be exploited for corrupt
practices.

－ 183 －

III. PRACTICAL DEVELOPMENTS – NEW INITIATIVES AND MEASURES
While Singapore’s corruption control framework provides a solid foundation for
combatting corruption, this framework is continually being complemented by new initiatives
and measures to adapt to the changing risks posed by corruption.
A.
1.

Public Sector Measures
Enhanced Rules on Local Casino Visits
From 1 October 2013, all public officers who have visited local casinos or purchased
an annual pass are required to make a declaration within seven working days. Public officers
who are exposed to higher risks of being bribed (i.e. police officers, senior public officers
whose misconduct will have significant reputational risks to the public service) are required todeclare every casino visit.
2.

Mandatory Job Rotation and Mandatory Block Leave
From 1 January 2014, public officers who are exposed to a higher risks of being bribed(i.e. those handling procurement or market sensitive information) are not allowed to serve inthe same position for more than five years. These officers are subjected to mandatory job
rotation and mandatory block leave.4
3.

CPIB’s Investigation Policy Unit (IPU)
In 2014, CPIB formed the Investigation Policy Unit (IPU) to enhance the investigation
policy framework of CPIB. The unit is responsible for upholding the integrity of CPIB’s
corruption database, crafting investigation policies to address deficiencies uncovered inorganisations during investigations as well as analysing data to detect any emerging corruption
trends associated with any specific industry so that CPIB can intervene with enforcement or
prevention measures to nip corruption in the bud.5 A deeper dive into the statistics analysed by
IPU in 2016 revealed that there were two particular areas for CPIB to strengthen our anticorruption efforts, namely, that of private sector employees prosecuted in court for corruption
related offences emanating from maintenance work as well as the wholesale and retailbusiness.6
4.

CPIB’s Point of Contact Initiative
As part of CPIB’s efforts to strengthen the civil service governance and reporting
framework, CPIB launched the Point of Contact (POC) Initiative in 2016 to establish andenhance links with government agencies and statutory boards. Each CPIB officer served as acontact point with a government agency and/or statutory board in terms of offering advice orassistance on corruption prevention matters and serving a feedback channel to CPIB. Somefunctions of the POC include the arrangement for anti-corruption activities, such as prevention
talks and ethics day, assisting in the development of integrity management programmes andreceiving referrals on corruption offences within these agencies/statutory boards.

Refer to https://www.psd.gov.sg/press-room/speeches/speech-by-deputy-prime-minister-teo-chee-hean-atcommittee-of-supply-2014
5
Refer to: https://www.cpib.gov.sg/about-us/our-work/organisational-structure
6
Refer to: https://www.cpib.gov.sg/sites/cpibv2/files/CPIB_Annual%20Report_2016.pdf
4－ 184 －

B.
1.

Private Sector Measures
Launch of the Singapore Standard (SS) ISO 37001 on Anti-Bribery Management
Systems
In April 2017, CPIB and SPRING Singapore7 co-launched the Singapore Standard (SS)ISO 37001 on Anti-bribery Management Systems8 aimed at helping companies strengthen theiranti-bribery systems and processes in reducing risk and costs relating to bribery as well as
ensuring compliance with anti-bribery laws. The SS ISO 37001 specifies requirements for top
management leadership and commitment, anti-bribery policies and procedures, risk
assessments, reporting, monitoring and investigation procedures, among several otherrequirements. SPRING Singapore and the Singapore Accreditation Council9 are also working
on an accreditation scheme for certification bodies to provide SS ISO 37001 certification
services by the end-2017. It is hoped that the SS ISO 37001 certification will provide
Singapore companies a competitive edge over foreign firms in assuring customers andsuppliers that their companies have good anti-bribery practices that were in line with global
best practices.
2.

PACT: A Practical Anti-Corruption Guide for Businesses in Singapore
CPIB developed an easy to comprehend guidebook titled PACT: “A Practical AntiCorruption Guide for Businesses in Singapore” to assist business owners to implement an anticorruption system within their companies. PACT’s four-step framework is as follows:10(i)Pledge - Companies are encouraged to implement their own anti-corruption
policy and to create a code of conduct that employees can refer to in orderto safeguard themselves from falling foul of the law;(ii)
Assess - Companies are encouraged to identify areas of high corruption risks
and to conduct periodical risk assessments focusing on vulnerable job
functions and processes;(iii) Control & Communicate - Companies are encouraged to keep accurate
records and having clear operating procedures, with audit checks carried out
periodically as well as a robust reporting or whistle-blowing systems.
Companies should communicate the anti-corruption policy, code of conduct,
internal control and reporting system to all its employees, business partners
and other stakeholders, if any;(iv)
Track – Companies are encourage to review their company’s anti-corruption
systems in a timely manner following company re-organisation, expansion
in operations, new legal/national/international anti-bribery standards, andshifts in the business operating environment.

SPRING Singapore is an agency under the Ministry of Trade and Industry responsible for helping Singapore
enterprises grow and building trust in Singapore products and services. As the enterprise development agency,
SPRING works with partners to help enterprises in financing, capability and management development,
technology and innovation, and access to markets. As the national standards and accreditation body, SPRING
develops and promotes an internationally-recognised standards and quality assurance infrastructure.
8
The (SS) ISO 37001 was Singapore’s adaptation of ISO 37001 Anti-Bribery Management Systems that was
launched on 15 October 2016. CPIB had led the working group from Singapore in the negotiation of the ISO
37001.
9
The Singapore Accreditation council (SAC) is the national authority for the independent accreditation ofconformity assessments services, such as testing, calibration, certification and inspections. The industry-led SAC
is manage under the aegis of SPRING Singapore.
10
Refer to: https://www.cpib.gov.sg/sites/cpibv2/files/PACT%20A%20Practical%20AntiCorruption%20Guide%20For%20Businesses%20in%20Singapore.pdf
7－ 185 －

C.

Public Education and Community Outreach Efforts
As part of the CPIB’s public education and community outreach efforts to spread its
anti-corruption message, CPIB initiated the following initiatives in recent years:
1.

CPIB Open House in conjunction with International Anti-Corruption Day
On 9 December 2012, CPIB held its first open house, which coincided with theInternational Anti-Corruption Day. Members of the public had the opportunity to tour CPIB’s
premises, attend educational talks and guided heritage tours promulgating corruption issues
and the pitfalls of corruption.11
2.

“Unite Against Corruption: You are the Solution” Road Show
On 13 December 2014, CPIB held an annual road show titled “Unite Against
Corruption, You are the Solution” at the Toa Payoh Hub Mall Atrium. A wide range ofactivities, including a skit, games and quizzes were organized to educate the public on the topic
of corruption. There was also an exhibition giving the public a glimpse of CPIB’s history as
well as significant cases that CPIB had dealt with.12 At the roadshow, CPIB also took presented
awards to 35 winners from secondary and tertiary institutions, who participated in CPIB “Unite
Against Corruption” video competition.

3.

Roving Exhibition and Mobile Application
On 7 April 2016, Prime Minister Lee Hsien Loong launched CPIB’s first ever roving
exhibition and mobile heritage trail application titled “Declassified: Corruption Matters” and“The Graftbusters Trail” respectively, at the National Library. The exhibition featured CPIB’s
declassified case archives and illustrated the transformation of corruption-ridden Singapore in
the early days to its current status of being one of the least corrupt countries in the world. The
exhibition subsequently roved to other regional libraries as well as to tertiary institutions. “The
Graftbusters Trail” mobile application featured seven prominent landmarks that had witnessed
the development and establishment of key legislative and operational measures in the fightagainst corruption. Users can unlock a quiz while visiting each landmark to learn about
Singapore’s experience in combatting corruption.13
4.

Corruption Reporting and Heritage Centre
The CPIB’s Corruption Reporting and Heritage Centre (CRHC) was officially opened
by Prime Minister Lee Hsien Loong on 6 June 2017. Located close to the city, the CRHC
allows members of public to report corruption complaints in a more convenient and discreet
manner. The CHRC also houses a heritage gallery, where members of the public can learn
about corruption matters through interactive multimedia gallery tours, featuring oral interviewsof past and present CPIB officers and preserved case exhibits and artefacts.14
D.

International Engagement
The CPIB is a founding member of the new international Anti-Corruption Coordination
Centre (IACCC) launched in July 2017 alongside other law enforcement agencies from
Australia, Canada, New Zealand, the UK and the US. The IACCC serves to improveinformation sharing and coordinate law enforcement actions between law enforcement officers
from respective countries by gathering together in a single location to combat grand corruption.
Participation in the IACCC strengthened Singapore’s existing framework for international

Refer to: https://www.cpib.gov.sg/press-room/events/cpib-open-house
Refer to: https://www.cpib.gov.sg/press-room/press-releases/unite-against-corruption-you-are-solution
13
Refer to: https://www.cpib.gov.sg/trailapp
14
Refer to: https://www.cpib.gov.sg/press-room/events/corruption-reporting-heritage-centre
11
12－ 186 －

cooperation with foreign law enforcement agencies, given that corruption has become
increasingly transnational in nature, which severely affects national interests.15
III.

CASE STUDIESSingapore’s corruption control framework and cross-cutting anti-corruption initiatives
aim to make the environment for committing a corrupt act in Singapore one of high risk andlow reward. Despite these measures, however, there are some who opportunistically seek totest the system. The following case studies demonstrate the robustness of Singapore’s anticorruption system against those who seek to test the system:
A.

Rejection of Bribes by Public Officers
In 2013, two police officers interviewed the occupants of a lodging house in the
Geylang vicinity as part of Singapore Police Force (SPF) efforts to detect vice activity. During
the interview, one of the occupants, a female Chinese National, offered a S$50 note to one
police officer, and subsequently offered the rest of her monies in her handbag to another police
officer so that both officers would not arrest her for immigration related offences. However,both officers rejected the bribes and the case was subsequently referred to CPIB for
investigations. The accused was shortly charged and sentenced to 10 weeks’ imprisonment.16
This case was a positive demonstration of the value of integrity and incorruptibility among
Singapore public officers.
B.

Inter-agency Cooperation on GST Tourist Refund Scheme Fraud
In 2013, the Inland Revenue Authority of Singapore (IRAS), using its data analytics
tool, detected several suspicious GST refund claims via its electronic Tourist Refund Scheme,(“eTRS”)17. Subsequent investigations by IRAS, Singapore Customs and CPIB uncovered thaton various occasions between January 2013 and January 2014, four Indian National tourists
made fraudulent claims amounting to $493,858.67 in GST refunds with the assistance of a
Customs officer, who received bribes amounting to $11,400 for approving these GST refund
claims.18

During the period of offence, the four Indian nationals bought receipts from genuine
shoppers who had purchased jewellery and obtained eTRS tickets from the jewellery retailers.
Thereafter, they approached the Customs officer who was on-duty at the airport’s inspection
counter and presented the jewellery as well as the eTRS tickets to him to support their GST
refund claims. The Customs officer went on to approve the GST refund claims despite the factthat the jewellery did not match the goods description shown on the eTRS tickets. The fourIndian nationals presented the eTRS notification slips at the Central Refund Counter, locatedin the airport’s departure transit lounge. After receiving the GST refunds in cash, the four
Refer to: https://www.cpib.gov.sg/press-room/press-releases/cpib-and-international-authorities-launchmultinational-centre-fight16
Refer to: https://www.cpib.gov.sg/case-studies/stories-integrity/zero-tolerance-bribery>
17
Tourists can claim GST refund on goods they have purchased and brought out of Singapore. A person who did
not purchase the goods and yet sought or obtained a GST refund under the tourist refund scheme would havecommitted an offence under the GST Act. Under eTRS, a tourist receives a receipt of goods purchased and an
eTRS ticket when he buys goods from a GST-registered retailer participating in eTRS. The tourist then uses theeTRS ticket or the credit card with which he purchased the goods to make a GST refund claim via the eTRS selfhelp kiosk at the Changi airport. As a control measure, physical inspection of the goods may be carried out at the
GST refund counter by Singapore Customs officers before a GST refund claim is approved.
18
Refer to: https://www.iras.gov.sg/irashome/News-and-Events/Newsroom/Tax-Crime/2014/Four-Men-Finedand-Sentenced-to-Jail-for-Fraudulent-GST-Tourist-Refund-Claims/
15－ 187 －

Indian nationals spent a portion of the criminal proceeds on duty-free items, before departing
Singapore for India on the same day with the remaining proceeds.19
Although the usage of data analytics tools by IRAS helped to uncover suspicioustransactions, the accused persons would not have been successfully apprehended without theclose collaboration between government agencies. The Singapore Customs provided CPIB
with the background information, which CPIB leveraged on to gather the evidence ofcorruption during investigations. Additionally, the Immigration & Checkpoints Authority ofSingapore provide valuable information on the travel patterns of the four Indian Nationals.
V. GOING FORWARD
Over the past decade, we have observed changes in the modus operandi of corrupt
offenders moving away from the conventional manual records to easily concealed data storage
devices, thereby hampering investigators’ efforts to trace and prevent the dissipation of corrupt
proceeds. The increasing ease of performing financial transactions, known as FAST fundtransfers20, and the possibility of overseas FAST fund transfers being available in the near
future as banks compete with one another provide seamless services using the latest financial
technologies available to them 21 , could also inadvertently facilitate the ease of laundering
corrupt proceeds across borders.
At the same time, with the population becoming better educated, we are anticipating
higher expectations and demands of faster turn-around times for the completion of corruption
investigations. Law enforcement agencies including CPIB will need to find ways to expedite
our investigation processes without compromising on the quality of the investigations, throughleveraging on new technologies and tools, as well as amending relevant legislations on
corruption to make sure they stay relevant.
While the institutional and practical developments above have resulted in a lower
incidence of corruption in Singapore over the past decade, the CPIB cannot rest on its laurels
and is constantly on the lookout for new developments and game-changers that will affect its
ability to carry out its mandate effectively. The CPIB will continue to adopt a multi-stakeholder
approach in preventing, investigating and reducing corruption both domestically and globally.

Refer to: https://www.cpib.gov.sg/case-studies/public-sector/corruption-and-abetting-gst-tourist-refund-fraud
FAST (Fast And Secure Transfers) was launched in March 2014 - an electronic funds transfer service thatenables customers of 19 participating banks to transfer Singapore Dollar funds from one bank to another almost
instantly. The customer enters the recipient’s bank account number and the amount, and the funds are credited.
21
Regulatory Sandbox for Innovative Fintech Experimentation. Refer to:https://www.smartnation.sg/initiatives/Services/regulatory-sandbox-for-innovative-fintech-experimentation
19
20－ 188 －

SINGAPORE’S EXPERIENCE IN THE FIGHT AGAINSTCORRUPTION
Nicholas Lim Kah Hwee*

I.

INTRODUCTION

1.
From 1995 to 2016, Singapore has consistently been ranked as the least corrupt Asian
country according to Transparency International’s Corruption Perceptions Index (CPI).
Singapore was ranked 7th among 176 countries / economies with a score of 84 on the 2016 CPI.
This ranking gives credence to the widespread perception that Singapore is one of the mostcorruption-free countries / economies in the world.
2.
However, the path to where Singapore is today was certainly not easy, and by no means
taken for granted. Prior to self-government in 1959, corruption was rampant in Singapore
because of a myriad of factors, including inadequate laws, insufficient manpower in the anticorruption agency, great disparity in pay between the public and private sectors, lack ofcommitment amongst enforcement officers etc. Essentially, the entire socio-economic climate
made it ripe for corruption to take root, and it took a feat of political will to exterminate thescourge of corruption.
3.
Thus, the four pillars to Singapore’s anti-corruption strategy rose from the strong
foundation of the political will to weed out corruption wherever it may occur – effective laws,
independent judiciary, effective enforcement and responsive public service.
4.
Drawing from Singapore’s experience in fighting corruption, this paper will reflect onthree distinctive features of the key legislation in Singapore, before discussing the recent
challenge in private-sector corruption and how it has been largely overcome.
5.
The fight against corruption in Singapore is governed by two pieces of legislation – thePrevention of Corruption Act (“PCA”) and the Corruption, Drug Trafficking and Other Serious
Crimes (Confiscation of Benefits) Act (“CDSA”).
6.
The PCA is the primary legislation that established the Corrupt Practices Investigation
Bureau (“CPIB”), empowers CPIB investigators, criminalises corruption and provides for thepunishment and penalties for corruption offences.
7.
Beyond the predicate offence of corruption, the CDSA complements the PCA in termsof criminalizing the secondary aspect of corruption offences – the acquisition or use of thebenefits of corruption, assisting another person to do so, and tipping-off and disclosing
information that is likely to prejudice an investigation conducted under the CDSA to any person.
The CDSA also serves the function of disgorging the benefits of corruption in providing forthe pre-conviction restraint and post-conviction confiscation of such benefits.

*

Deputy Public Prosecutor, Attorney General’s Chamber, Singapore.

－ 189 －

A.

Presumption of Benefits of Criminal Conduct

8.
Giving due recognition to the reality that benefits of criminal conduct are generally
difficult to trace to the source and even harder to prove as such, both the CDSA and the PCA
provide for a presumption that any property or pecuniary resources held by the accused which
is disproportionate to his known sources of income (hereinafter referred to as “concealed
property”) is presumed to be benefits derived from criminal conduct.
9.
This presumption has different implications when applied under the two statutes. Under
the PCA, this presumption operates to buttress a finding of guilt for an offence of corruptly
receiving gratification. It allows evidence of concealed property to be admitted and taken into
consideration by the Court as corroborating a witness’ testimony that the accused accepted or
obtained gratification, and as showing that the gratification was accepted or obtained corruptly
as an inducement or reward1. The PCA goes further in providing that the concealed property
need not even be held in the accused’s own name – the accused shall be deemed to be inpossession of the concealed property if it were obtained by a person whom, having regard tothat person’s relationship with the accused, there is reason to believe to be holding theconcealed property on behalf of the accused or as a gift from the accused2.
10.
The former UK Prime Minister David Cameron highlighted this aspect of the PCA in
his foreword delivered for the London Anti-Corruption Summit 2016:“Second, we need to deal properly and comprehensively with the corruption we
expose. That means bringing the perpetrators to justice, actively enforcing anticorruption laws and working together across international borders to huntdown the corrupt, prosecute them and send them to jail.
One cutting-edge idea to explore here comes from Prime Minister Lee Hsien
Loong. In Singapore, instead of prosecutors having to prove the guilt of thecorrupt, they reverse the burden of proof so that the accused have to show thatthey acquired their wealth legally.”(emphasis in underline added)
11.
Under the CDSA, this presumption operates to expand the scope of a convicted person’s
assets which may be subject to a confiscation order3. As the amount to be recovered from theaccused under the confiscation order is the value of the benefits derived by the accused from
corruption4, this presumption allows for the concealed property to be confiscated from theaccused even if such concealed property may not be directly traceable to the predicate offenceof corruption.
12.
The twin operation of this reversal of burden of proof – one going towards guilt and theother going towards confiscation – maintain and sustain the “high risk, low reward” climatethat is anathema to corruption in Singapore.

Section 24(1), PCA.
Section 24(2), PCA.
3
Section 5(6) CDSA.
4
Section 10(1) CDSA.
1
2－ 190 －

B.

Extra-territorial Reach of the PCA

13.
Section 37 of the PCA makes Singapore citizens liable for corruption offences
committed outside of Singapore and be dealt with in respect of that offence as if it had beencommitted within Singapore. This is a distinctive feature of the PCA which relies on thenationality factor to criminalize extra-territorial acts of corruption.
14.
This extra-territoriality feature linked to the nationality jurisdiction to prosecute was
employed in the 2011 case of Public Prosecutor v Ang Seng Thor5. Ang, a Singapore citizen,
was the CEO and joint-Managing Director of a company called AEM-Evertech Holdings Ltd
which was listed on the Singapore Stock Exchange. He faced two charges of corruptly giving
gratification, one of which involved Ang giving a bribe of S$50,000 in Malacca to a directorof a Malaysian company in order to secure a deal for AEM6. Though the bribe was handed overin Malaysia, Ang was nevertheless prosecuted in Singapore pursuant to Section 37 of the PCA.
15.
Ang pleaded guilty to both charges and was initially sentenced by the District Judge tothe maximum fine of S$100,000 for each charge, for a total sentence of S$200,000 fine.
Although Ang paid the fine in full, the Prosecution appealed against this sentence andsubmitted that a fine was too lenient and that a custodial sentence should be imposed on Ang
in addition to a fine and disqualification to act as a director.
16.
The Prosecution’s appeal was allowed, and Ang’s sentence was enhanced to six weeks’imprisonment and S$25,000 fine per charge, with both imprisonment terms to runconsecutively. The total sentence was therefore 12 weeks’ imprisonment and S$50,000 fine.
Ang was also disqualified from acting as a director for five years from the date of his releasefrom prison.
17.
Ang Seng Thor’s case is significant not only because of the successful invocation of theextra-territoriality provision under Section 37 of the PCA, but also because it allowed for aconcerted effort by the Prosecution to dispel the notion that private sector corruption offences
did not warrant imprisonment terms, a misconception that was hitherto unchallenged. This will
be discussed in further detail below.
C.

Presumption of Corruption in the Public Sector

18.
A distinctive and unique feature of the PCA is the presumption of corruption where thepublic sector is involved 7 . Thus, in prosecutions of public servants or persons who havedealings or seeks to deal with the Government or public bodies for corruption offences, theProsecution need only prove that gratification was given to or received by that person. Section
8 of the PCA then presumes that such gratification was corrupt, and the burden is then shiftedto that person to prove that the gratification was not corrupt.
19.
This presumption reflects the paramount importance of a clean and incorruptible public
service in Singapore. Public servants and people who deal with the public administration areheld to a higher standard than everyone else not only because of the important roles they play,
but also because the confidence in Singapore’s public administration cannot be undermined[2011] 4 SLR 217.
The other charge against Ang was for corruptly giving S$97,158 in cash in Singapore to an agent of anothercompany as ‘kickbacks’ for each purchase order raised by this company to AEM.
7
Section 8, PCA.
5
6

－ 191 －

lest the core values of equality and meritocracy be eroded – the public service cannot only beincorruptible, it must also be seen to be incorruptible. In the words of the late Mr Lee Kuan
Yew:
“Singapore can survive only if Ministers and senior officers are incorruptible
and efficient…Only when we uphold the integrity of the administration can theeconomy work in a way which enables Singaporeans to clearly see the nexus
between hard work and high rewards.”
20.
This presumption provides an effective deterrence against corruption in the public
sector. When combined with a strict code of conduct applicable to all public servants,
disclosure requirements in respect of investments, holdings, property (real or movable) andreceipt of gifts in official capacity, strong ethical values advocated and practised at theleadership levels of Singapore’s public service, public sector corruption cases account for only
15% of all corruption cases investigated in Singapore in 2016.
21.
Since Mr Lee Kuan Yew, the founding Prime Minister of Singapore, and his teamformed government in 1959, there has been a conscious and sustained effort to develop asociety and culture that eschews corruption. Singaporeans expect and demand a clean systemof governance, and do not condone giving or accepting “social lubricants” just to get things
done. This atmosphere of anti-corruption must be maintained by robust prosecution anddeterrent sentences for errant public servants. Recent examples include the prosecution of Peter
Lim, the former chief of the Singapore Civil Defence Force (“SCDF”) who accepted sexual
gratification from a contractor in return for showing favour by advancing the business interestof her company with SCDF. Lim was sentenced to six months’ imprisonment in June 2013.
More recently, a former Singapore Customs officer Mohamed Yusof Bin Abdul Rahman was
charged with corruptly receiving S$3,350 in bribes from four Indian nationals in exchange forprocessing fraudulent Goods and Services Tax (“GST”) refunds, and was sentenced in
February 2015 to a total of 5 years’ imprisonment.
II. SENTENCING IN PRIVATE SECTOR CORRUPTION
22.
Given the obvious harm and culpability in public sector corruption cases where thepublic interest in preventing a loss of confidence in Singapore’s public administration is
automatically triggered, it naturally follows that stiff imprisonment terms are usually meted out
for public sector offenders. How about private sector corruption cases? In allowing theProsecution’s appeal in Ang Seng Thor’s case, Justice of Appeal VK Rajah (“Rajah JA”)
commented that the District Judge erred in holding to an erroneous distinction between public
sector corruption and private sector corruption which justified different sentencing benchmarks
or starting points. He held that while there is certainly a public interest in preventing a loss ofconfidence in Singapore’s public administration which warrants a custodial sentence for public
sector corruption, this did not automatically mean that this public interest was not present inprivate sector corruption. More importantly, triggering the public interest is not the only way
that a private sector offender may be subject to a custodial sentence, and the custody thresholdmay be breached in other circumstances, depending on the applicable policy considerations
and the gravity of the offence as measured by the mischief or likely consequence of thecorruption. In addition, factors such as the size of the bribes, the number of people drawn into
the web of corruption and whether such conduct was endemic will all be relevant to theconsideration of whether a custodial sentence is justified. It is important to dispel the
misconception that private sector offenders will not be punished to the same extent as public－ 192 －

sector offenders as it undermines the anti-corruption regime in Singapore, and the deterrence
value is diluted even further when one considers that even the maximum fine of S$100,000 per
charge is of no great consequence to most private sector offenders like Ang.
23.
Private sector corruption cases comprise a large portion (about 85%) of all thecorruption cases investigated in Singapore, and it is imperative that the sentencing trend reflect
the seriousness of such offences and underscore the zero-tolerance approach towards
corruption in Singapore.
24.
In early 2015, a comparative study was conducted on the sentencing trends in othercommon law jurisdictions, and the results of this study suggested that an upward revision ofsentences for private-sector corruption cases in Singapore may be timely.
A.
England and Wales
25.
In England and Wales, the Sentencing Council issued a set of guidelines for offenders
sentenced on or after 1 October 2014 (“the 2014 Guidelines”) which categorizes the assessmentof the seriousness of an offence based on a “harm and culpability” matrix. The more serious
the harm caused by the offence and the more culpable the offender was in the commission of
the offence, the higher the starting point for sentencing the offender. It is significant to notethat a minimum of 26 weeks’ imprisonment is the starting point sentence for all categories savefor the one with the least culpability and lowest harm (or no actual harm) caused. In the firstprivate sector corruption case successfully prosecuted and sentenced under the 2014 Guidelines,
the Serious Fraud Office secured a sentence of six years’ imprisonment for the giver of bribes
totalling £189,000, and four years’ imprisonment for the receiver.
B.
USA
26.
In the USA, the US Federal Courts are guided by the United States Sentencing
Commission’s Guidelines Manual, which determines starting point sentences based on the“offence seriousness” and “defendant’s criminal history”. “Offence seriousness” includes theharm caused by the corruption, and in this regard the US courts do not merely look at thequantum of the bribe, but also at the intended/actual benefit to the offender and theintended/actual loss caused. This is significant because the latter two amounts (whenascertainable) often far outstrip the bribe amount. As for the range of sentencing for private
sector corruption, 6 months’ imprisonment is the minimum, extending to 10-16 months’
imprisonment when the quantum crosses US$10,000 and 15-33 months’ imprisonment for
amounts between US$30,000 to US$200,000.
C.
Australia (New South Wales)
27.
In Australia (New South Wales), the maximum imprisonment sentence for a corruption
offence is 7 years, which is higher than Singapore’s (5 years). While there are no sentencing
guidelines like in the UK or USA, the NSW courts adopt a process of balancing aggravating
against mitigating factors before arriving at the appropriate sentence (which is similar to
Singapore courts). However, it appears from a review of the notable precedents that NSW
adopts a tougher stance than Singapore vis-à-vis private sector corruption. Bribes of A$120,000
and A$124,000 attracted imprisonment terms of 3¼ years’ 8 and 5 years’ 9 imprisonment
R v Potter [2005] NSWCCA 26. The accused was the Chief Steward of the Greyhound Racing Control Boardand subverted anti-doping procedures in exchange for bribes.
9
R v Bradley David Cooper [2006] NSWSC 609. The accused paid bribes to the Chief Investment Officer of an
insurance firm to secure claims worth about A$5 million before the firm collapsed.
8－ 193 －

respectively. In the recent case of David Michael Wills v R 10 , the accused received bribes
totalling A$1,395,950.50 over a period of 1½ years. He was convicted on, amongst others, 14
corruption charges. For the charges involving sums of A$10,000-A$20,000, he was sentenced
to 6 months’ imprisonment. For the charges involving sums of A$100,000-A$600,000, he wassentenced to 3-4 years’ imprisonment. His aggregate sentence was seven years’ imprisonment
consisting of a non-parole period of four years.
D.
Hong Kong28.
The courts in Hong Kong take a hard-line stance against public and private corruption
alike, and do not recognize the public-private dichotomy for the purposes of sentencing11. The
starting point for an offence under Section 9 of the Prevent of Bribery Ordinance (the provision
for private sector corruption) is imprisonment to achieve the desired effect of deterrence andsending a clear message to the community12. The starting point for bribes involving sums of
HK$54,000 (about S$10,000) to HK$100,000 (about S$18,000) was stated to be 21 to 24
months’ imprisonment13.
E.
Singapore29.
By comparison, the sentence of 12 weeks’ imprisonment imposed in Ang Seng Thor’s
case is relatively light. A similar case would have attracted a sentence of about 2 to 3 years’
imprisonment in the four other jurisdictions reviewed above.
30.
The 2014 case of PP v Leng Kah Poh14 was one of the most egregious cases of private
sector corruption in recent history. Leng was a manager in charge of food and beverage at acompany which operated the IKEA furniture stores in Singapore. He conspired with two others,
Andrew Tee and Gary Lim, to skim money from IKEA by ordering food supplies exclusively
from two companies owned by Andrew Tee and Gary Lim at inflated prices. These twocompanies added no value to the food supplies which were ordered from their supplier; they
merely transported the supplies straight from the supplier to IKEA. Over a period of sevenyears, the two companies made a total profit of S$6.9 million which was split equally between
Andrew Tee, Gary Lim and Leng (i.e. S$2.3 million each). Andrew Tee was sentenced to 40
weeks’ imprisonment, Gary Lim was sentenced to 70 weeks’ imprisonment, and Leng wassentenced to 98 weeks’ imprisonment (close to 2 years’ imprisonment). A similar case would
have attracted an estimated minimum of 5 years’ imprisonment in Hong Kong, and up to 9
years’ imprisonment under US federal laws.
31.
This sentencing trend prompted the Chief Justice Sundaresh Menon, in his 2015
judgment in PP v Syed Mostafa Romel15, to reaffirm the principle stated in Ang Seng Thor’s
case that “there is no presumption in favour of a non-custodial sentence where private sector
corruption is concerned”, and the specific nature of corruption was of first importance indetermining the appropriate sentence to be imposed. Where the private sector corruption[2014] NSWCCA 253.
R v Wong Tat-Sang [1986] HKCA 196 (at [4]): “[the Court of Appeal] cannot for a moment accept thesuggestion that bribery in the private sector is in any way to be regarded as less culpable than bribery in the
public sector”.
12
HK SAR v Chow Kam Yuen [2007] HKCU 835: “The clang of the prison gates would have had a very
wholesome effect on this appellant. His receiving an immediate custodial sentence from the magistrate would
have been a clear message to the community that anyone who commits a corruption offence, such as a section 9
offence, is facing an immediate custodial sentence.”
13
HK SAR v Nguyen Van To [2007] HKCU 2053; HK SAR v To Yiu Cho [2009] 5 HKLRD 309.
14[2014] 4 SLR 1264.
15[2015] 3 SLR 1166.
1011－ 194 －

involved (a) a significant amount of gratification; (b) gratification which had been received
over a lengthy period of time; or (c) compromise of one’s duty or serious betrayal of trust, thestarting point was likely to be a custodial sentence. In this case, Romel was in charge ofinspecting vessels seeking to enter an oil terminal by issuing inspection reports, and if thedefects identified were considered “high-risk”, the vessel would not be allowed into theterminal before rectifying the defects. Romel solicited and received a total of US$7,200 overthree occasions from two captains of marine tankers in exchange for favourable inspection
reports. Romel pleaded guilty and was sentenced to an aggregate of two months’ imprisonment,
but this sentence was enhanced to six months’ imprisonment on appeal by the Prosecution.
Romel’s case represents a landmark in the sentencing landscape for private sector corruption
cases in Singapore, and since then the Prosecution has successfully secured custodial sentences
in many other private sector corruption cases when the result might have been a fine before
Romel’s case.
32.
While Ang Seng Thor’s case sowed the seeds for a tougher punishment regime forprivate sector corruption cases, Romel’s case has established a fertile climate for this regime totake root in Singapore’s anti-corruption landscape. In discharging our sacrosanct duty toprosecute crimes without fear or favour, the Prosecution will strive to continue along thistrajectory to protect and preserve the hard-earned gains in Singapore’s fight against corruption
regardless of whether it occurs in the public or private sphere.
III. CONCLUSION
33.
In the words of Prime Minister Lee Hsien Loong: “Corruption is a scourge that cannever be tolerated… [It is] a cancer in the society.”16 Like cancer, corruption is a disease thatspreads rampantly if unchecked, and debilitates every facet of society and the economy if
untreated. While Singapore has made significant developments over the past decades in thefight against corruption, we must not rest on our laurels but continue to strive to maintain anduphold the high standards of integrity in the public administration as well as the marketplace.
Investigators and prosecutors must work more closely than ever to effectively identify,
investigate and prosecute corruption, and efforts at public outreach and community
engagement must be maintained to preserve the zero-tolerance societal attitude towards
corruption in Singapore.

16

PM Lee’s speech at the London Anti-Corruption Summit 2016.

－ 195 －BEST PRACTICES IN ANTI-CORRUPTION: A DECADE OF
INSTITUTIONAL AND PRACTICAL DEVELOPMENT IN THAILAND
Komkanae Hongthananan * and Nat Nimitchaitham†

I. INTRODUCTION
From the past to present, corruption in Thailand is a serious crime, with a constantly
growing magnitude, affecting political, economic and social security. Corruption in Thailand is
not a new phenomenon. It can undeniably occur in any sector in Thailand; such as, politicalcorruption (state politics, local politics), corruption among government officials (highlevel government officials, public officials, soldiers, and police). Also, corruption can be foundeven in the private sector, which cooperates with government officials.
The following types of corruption in Thailand can be found:
1. The use of power by a government official for illegitimate private gain for himself or
for others.
2. Corruption in government procurement, especially in project bidding between the
public sector and private sector.
3. Corruption in a concession project by granting exclusive control and rights to exploit abenefit illegally.
4. Policy corruption is a new type of corruption: illegally making plans or management
mechanism for beneficiaries.
In addition, another type of corruption happening in Thailand at this period is negligenceor ignorance of duty including noncompliance with laws and regulations.
The problem of corruption has not only been around for a long time in Thailand, but it also
has been around in other countries. It affects all countries. Thais have made efforts to clean up
their own nest by implementing new laws and trying to move on to good governance at the sametime. The global community therefore must help each other to create efficient mechanisms andshare information, knowledge, current situations and problems in order to efficiently prevent andcombat corruption.
II. A DECADE OF INSTITUTIONAL AND PRACTICAL DEVELOPMENT IN
THAILANDOver the past decade, there have been high risks of corruption in most sectors in Thailand
such as state politics, local politics, private capital groups, and government officials. Even*†

Provincial Public Prosecutor, Department of Corruption Litigation, Office of the Attorney General, Thailand.
Public Prosecutor, International Affairs Department, Office of the Attorney General, Thailand.

－ 196 －

though Thailand has the legal framework and a range of institutions to counter corruption,
Thailand does not have an efficient monitoring mechanism, and institutions as such are
overwhelmed by outside influences.
In 1997, therefore, the Office of the National Anti-Corruption Commission (NACC) wasestablished under the Constitution of the Kingdom of Thailand 1997. NACC is a new independent
government agency, having integrity and transparency. NACC has power to inquire andinvestigate government officials who have become unusually wealthy or have committed an
offence of corruption, malfeasance in office or malfeasance in judicial office. In addition, since
NACC has a large number of missions, the Office of the Public Sector Anti-Corruption
Commission (PACC) was established in 2003. PACC, a governmental organization in theexecutive branch, was established to have the responsibility to implement the anti-corruption
policy and to be a centre to coordinate with all of the relevant state agencies.
Furthermore, the Office of the Attorney General (OAG) is an independent organization.
Public prosecutors make independent decisions whether to prosecute cases. At present, OAG has
a new department working regarding corruption among government officials called theDepartment of Corruption Litigation.
In the aspect of the Court of Justice (COJ) in Thailand, COJ now has a new Court called“The Supreme Court’s Criminal Division for Persons Holding Political Positions”. This was set
up in the Supreme Court to act as a trial court in a case where the Prime Minister, minister, memberof the House of Representatives, senators, or other political officials are accused of becoming
unusually wealthy, committing malfeasance in office according to the Criminal Code, performing
duties dishonestly, or being corrupted according to other laws. Also, in 2016, “the Central Criminal
Court for Corruption and Misconduct Cases” was established and set up in the Supreme Court toact as a trial court in cases regarding corruption in government officials.
In the aspect of law, corruption is a social evil and a severe crime. The criminal proceeding
has been separated between inquiry/investigation stage and prosecution stage. The
inquiry/investigation stage, which against high-ranking officials, is the authority of office the
National Anti-Corruption Commission (NACC) while the prosecution is the power of theProsecutors. In this regard, OAG has established an internal agency responsible for prosecuting
public officials or politicians in particular. The Prosecutor will not get involved in inquiries until
they have sent him the investigation report. After that, after the case as such is filed, in court
proceedings, inquisitorial procedure is used for corruption cases. The judges have the right to ask
the witness questions by themselves. This means, the inquiries of NACC and the Courts in thiscategory have specific characteristics different from other general criminal procedure which is theaccusatorial system.
- An accusatorial system is a system where, after accusing the defendant, the plaintiff must
prove its allegations by presenting its most persuasive arguments to the judge before sentencing
the defendant.

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- An inquisitorial system (which is used in corruption cases) is a system where the court isactively involved in investigating the facts as to whether the defendant is guilty as alleged or not,so it is different from general criminal cases.
In addition, persons holding political positions or high-ranking officials are required todeclare their assets to the Office of the National Anti-Corruption (NACC) and must announce theirdeclarations to the public. The assets may be confiscated in two cases, if:
1. The assets acquired from malfeasance in office or corruption (which is not uncommon);2. The assets acquired by any politician or official in excessive amounts without
clarification or reasonable/reliable explanation. These unusually increased assets will
be asked to be seized and belong to the State.
Last but not least, there is an exception of limitation period. In other words, a statute oflimitations period does not apply to corruption cases in Thailand. The periods of prescription shallnot run if the accused fled during the prosecution or court hearings, including when the defendant
fled after the conviction of final judgment.
Section 74/1 of the Organic Act on Counter Corruption B.E. 2558 (2015) stipulates that incriminal proceedings under this Chapter, if an alleged culprit escapes during the prosecution, thetime an alleged culprit escapes shall not be reckoned in the limitation period.
This means, during the process of criminal investigation of the political office holders, if
he or she escapes during this investigation (and prosecution) process, the time period during thisescape will not be counted as part of the statute of limitations period. This is to counter the practiceof politicians who escape the legal process until time limit passes.
In conclusion, Thailand at present has the legal framework and a range of institutions tocounter corruption, trying to prevent and combat corruption. We will illustrate this by providing
actual cases that happened in Thailand which are somewhat successful because of the legal
framework and a range of institutions to counter corruption.
III. CASE STUDIESA.

Case Study A
There is one case involving high-ranking officials who were responsible for many
construction projects. Villains raided an official’s house on the day the official was not home,including family members as well. They all went to a wedding party. There were only servants
who watched the house, but the villains bound the servant in the house and then ransacked thehouse, taking away the property.
A servant ran away and went to report the crime to the police. First, the police did notknow what property was taken until the officer came to the police station for interrogation. He
reportedly lost about four million baht (about US $ 110,000). After that, the police investigated
the arrest of some villains with stolen money in the amount of about 16 million baht. They

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confessed that they taken about 50 million baht (about US $ 1.4 million) and divided it with manyother villains. The facts from the official and villains were totally different because the amountof money confiscated was more than the amount that the official reported.
As a result, NACC had made an inquiry, saying that the government official was unusuallywealthy. This is an example that does not appear to use his position to do anything or to get somebenefit but the law makes it possible to sue under the police evidence.
The Act on Counter Corruption B.E. 2542 (1999) Section 78. In the case where the N.C.C.
Commission discovers that any property of the alleged culprit is connected with unusual wealthand is under the circumstance convincingly indicative of the possibility of its transfer, move,transformation or concealment, the N.C.C. Commission shall have the power to issue an order of
temporary seizure or attachment of that property, without prejudice to the right of the alleged
culprit to submit an application for taking such property for use with or without bail or security.
When a temporary seizure or attachment of the property occurs under paragraph one, theN.C.C. Commission shall seek proof of the property’s origin without delay. In the case where thealleged culprit is unable to present evidence that the property under temporary seizure orattachment is not connected with the unusual wealth, the N.C.C. Commission shall have the power
to continue its seizure or attachment until the N.C.C. Commission passes a resolution that theallegation has no prima facie case, which must be within one year as from the date of the seizure
or attachment or until the Court passes a final judgment dismissing that case. But, if the proof issuccessful, the property shall be returned to such person.
B.

Case Study B
This case involves local top executives in conjunction with land brokers and landlordsplanning to sell the land to local authorities. Local top executives approved land acquisition for a
junkyard. The executives knew the land broker and let the land broker deposit multiple plots ofland. For some plots of land the realtor purchased them from wives and children of local
administrators who had authority to approve the project, which is illegal because the local
executives must not be involved in the project in any other way.
So, the land broker bought land and sold it to government agencies. The land can be soldat a price higher than fair market valve because the partnership of the bankers issued inflated quotes
as evidence. In addition, the land is still a deep hole with high-power pylon crosses which makes
the land unprofitable and unprofitable to sell to other people.
The Attorney General has a prosecution order, and the Court of First Instance and the Courtof Appeal have ruled that the senior executives are guilty
Criminal Code section 157 states: “ Whoever, being an official, wrongfully excises any of
his functions to the injury of any person, or dishonestly exercises or omits to exercise any of his
functions, shall be punished. . .”－ 199 －

C.

Case Study C
In this case, the NACC sent the prosecutor to consider seizure. A former government
official was accused of possessing unusual wealth while he was serving as Deputy Director
General. With a total value of about 7-8 million baht (about $220,000 US), the property sent for
confiscation is as follows:
1. Condominium for his daughter
2. Mercedes Benz
3. Cars for his son
4. The house in the province.
Prosecutors filed for seizure in court. The defence argued that:
1. Extra income from part-time work for a private relative’s company amounted to $2,000
US per month.
2. The defendant has a good financial status since before being the general director andhis parents are rich.
3. Many properties use installments, not cash.
The prosecutor must analyse whether the value of assets and status of the defendant, who
has a high position and work in government service for long time, is appropriate or not. Even theproperty is not an abnormal amount, I have to set the issue to argue the defense defendant.
1. Must argue to the court that earnings that claim to have increased from part-time work
is not true. I have questioned the defendants claiming that this additional income has
evidence of tax withholding or not including the annual tax return in order to prove tothe court that the defendant has never reported this income before.
2. On the issue that the defendant claims to have a good financial position before taking
the position, I have taken the documents that the defendant filed his property and wife
account with the NACC before taking the position, which appeared in the bank accountof the defendant total only 1.4 million (about $40,000 US) to the court.
3. Some properties, such as condominiums, cars undergoing installments, are notpurchased with cash. I found this information that the amount of installments for eachmonth are $3,500 US, of course, is more than the monthly salary of the defendant(who has a salary of about $2,500 US).
Finally, the Court of Appeal, as prosecuted by all prosecutors, found that this case, despite
the presence of fraud and property forfeiture, was not an unusually high amount of money than theposition and position of the defendant. But the correct handling of the issue and the supportive
arguments were successful in the case.
D.

Case Study D
The accusation of the case is corruption selling rice that government buys from farmers.
Those involved in the offences include:－ 200 －

1. Ministers
2. Senior Official, Ministry of Commerce
3. Private companies
The government has been buying rice from farmers at high prices to help farmers’ income.
Ministers with high officials involved in rice selling G to G rice proposed additional criteria
guidelines for cabinet approval.
The prosecutor confirmed that former G to G sales had to be sold to the government by thegovernment or only government delegates. But in this case it has been added to be able to sell tostate-owned enterprises.
Enterprises as defined in the law are companies with more than 50% government
ownership, which in Thailand are few and often large.
The issuance of additional guidelines is part of the plan to commit fraud. They had two
companies, G and H from China, which were 100% government owned and signed a contract tobuy G to G rice with the Thai Ministry of Commerce.
This may not look wrong, because it is selling according to the guidelines approved by the
Cabinet to sell the rice quickly. But in this case, both Chinese companies are truly just nominees
to purchase rice in compliance with the modified guidelines.
Prosecutors have confirmed that to the court. Payments to pay for rice were payments bycheck from the bank account in the country. The source of the money came from Company S, but
the rice that was checked with the customs did not appear. The rice was shipped to Thailand, butthere will be employees of Company S to take the rice from the warehouse. We have checked theinformation from the Chinese commercial ambassador and noted that company G is listed as acompany selling sports equipment. Company H is a trading company of agricultural products. Bothcompanies had insufficient registered capital appropriate for trading millions of tons of rice, andeven identify the Chinese government as having a 100% stake.
But neither company has any relevant relationship with the Chinese government at all,and we find that there are many other registered companies stating that the government holds 100%
stake like these two companies in China, thousands of thousands across the country.
And it is also true that if a state-owned enterprise that the Chinese government
commissioned the contract to buy agricultural produce instead of G to G will have only one
company. This is the truth that the ministers and government officials should know what thecompany is. Certainly not the two companies mentioned.
We have also confirmed that accommodation and food expenses of the agent that Company
G and Company H sent to make the contract with the Ministry of Commerce were paid by
Company S, which is a trading company in Thailand.

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The next important issue that we have to prove is the motivation and benefits. We haveobtained information from a large local rice and retailer that at that time if they need to purchaserice they have to make a payment to Company S, and Company S staff will prepare documentation
to pick up the rice from the warehouse This is why the G to G trading was paid to the Ministry ofCommerce many times. It is found that the order is paid by check up to 900 copies. The price ofrice is sold at market price, but Company S bought it below the market price. That made Company
S get a profit in that section. This case has been selling rice from the warehouse of 4 million tons
when calculating the difference between the purchase price and the market price, the profit margin
is about 10,000 million baht (about 300 million U $).
Finally, in this case, the Supreme Court ruled that the relevant ministers, including theowners of Company S, were sentenced to several years in prison. This case has been complicatedby government policy and the prosecutor must prove the link between the additional rules and theway the corruption occured. And it is important to prove the motives and interests of thewrongdoing in court.
The prosecutor is required to seek a witness's testimony, other than in the case filed by the
NACC, to prove the motives and interests of the wrongdoing by pointing out the financial benefits.
The court believes that the planning and execution process is feasible. So, all the defendants are
guilty.
Act on Offences Relating to the Submission of Bids to State Agencies, B.E. 2542
(1999)
Section 9. In the case where the commission of an offence under this act is madefor the benefit of any juristic person, the managing partner, managing director,
executives or authorised personnel in the operation of such juristic person’sbusiness or a person responsible for the operations of the juristic person on suchmatter shall also be deemed as joint principal offenders, unless it can be proven thathe/she had no awareness of the commission of such offence.
Section 10. Any official of a State agency having the power or duty to approve,consider or perform any function in relation to a bid on any occasion, and who
knows or should have known from the apparent circumstances that an offence under
this Act was committed in the bid on such occasion, having failed to act in suchmanner as to abort proceedings relating to the bid on such occasion, shall havecommitted an offence of misfeasance in office and shall be liable to imprisonment
for a term from one year to ten years and a fine from twenty thousand baht to two
hundred thousand baht.
Section 12. Any official of a State agency who commits an offence under this Act,or commits any act with the purpose of preventing fair competition by favouring
any bidder as the person entitled to enter into a contract with a State agency, shallhave committed the offence of misfeasance in office and shall be liable toimprisonment for a term from five years to twenty years or life imprisonment anda fine from one hundred thousand baht to four hundred thousand baht.

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The Criminal Code, Section 157, states: “ Whoever, being an official, wrongfully excises
any of his functions to the injury of any person, or dishonestly exercises or omits to exercise anyof his functions, shall be punished. . .”IV. CONCLUSION
From the sample cases mentioned above, in particular, case D is a major case in Thailandof fraud against the state and also an abuse of power by state officials. In addition, it can be seenthat corruption cases now can involve individuals or organizations in foreign countries, forexample, government procurement with overseas organizations.
Hence, this points out that Corruption is not just about domestic matters anymore.
Collaboration in providing information between states is important to prevent this kind of
corruption. I believe that in the future the establishment of a centre for corruption suppression,
regardless of whether it is regional or global, will help us to suppress corruption and raise thestandards and effectiveness of the crackdown in all countries.
The Thai government attaches great importance to this issue by including the suppressionof corruption as a part of the national agenda. Recently, Thailand has planned to expand the scopeof anti-corruption laws and has drafted a bill concerning the prevention of “conflict of interest”
among state officials in order to ensure an effective procedure.

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ASSET RECOVERY IN CORRUPTION CASES HANDLED BY THE
PEOPLE’S PROCURACIES OF VIET NAM
Nguyen Duc Bang* and Hoang Chi Kien†

I. INTRODUCTION
In recent years, the number of corruption cases that have been initiated, prosecuted, andbrought to trial tends to increase, in which the illicitly acquired assets is mind boggling. In manycases, public funds and people’s property as well were misappropriated resulting in damages up to
thousands of billions of VN dong whereas success in asset recovery is limited.
The impediments to asset recovery may vary, but they, inter alia, can be identified asfollows:-

Most of the money and property that are misappropriated by corrupters is spent or used forvarious purposes; therefore, these assets often cannot be recovered or returned;
The corrupters used all methods and tricks to disperse or hide the money and/or property
acquired by the crime before being discovered, seized or identified by criminal justiceauthorities;
the process of tracing proceeds and conducting forensic work is time consuming andinadequate.

As a result, it is important to learn good practices and share information among ASEAN
public prosecutors to enhance the success of asset recovery in prosecuting corrupt criminals.
II.

THE CONCEPT OF PROCEEDS OF CORRUPTION

Articles 2 (d) and (e) of UNCAC, which became effective in Viet Nam from 18 September
2009, contain the following definitions:“Property” shall mean assets of every kind, whether corporeal or incorporeal, movable or
immovable, tangible or intangible, and legal documents or instruments evidencing title to orinterest in such assets; and“Proceeds of crime” shall mean any property derived from or obtained, directly or
indirectly, through the commission of an offence;

Senior Prosecutor, Vice Head of Division, Department of Exercising Public Prosecution Power and Supervision over
Investigation of Corruption, Position-related Cases, Supreme People’s Procuracy, Viet Nam.
†
Senior Prosecutor, Chief of Division, Department of International Cooperation and Mutual Legal Assistance in
Criminal Matters, Supreme People’s Procuracy, Viet Nam.
*

－ 204 －

(2015):

Under Vietnamese law, the definition of property is set out in Article 105 of the Civil Code

1. "Property” shall be things, money, valuable papers or property rights. 2. Property shall
include immovable or movable property. Immovable or movable property can be existing orformed in the future.
According to Article 1(2) of the Anti–Corruption Law 2005:“Proceeds of corruption” are property obtained or derived from corrupt acts.
The definition of corrupt acts in Article 3 of the Anti-Corruption Law 2005 contains the 12
different acts specified below:
1.
2.
3.
4.

Embezzling property;
Taking bribes;
Abusing positions or powers to appropriate property;
Taking advantage of positions or powers while performing tasks or official duties for
self-seeking interests;
5. Abusing powers while performing tasks or official duties for self-seeking interests;
6. Taking advantage of positions or powers to influence other persons for self-seeking
interests;
7. Committing forgeries in work for self-seeking interests;
8. Offering bribes, bribe brokerage by persons with positions and/or powers to settle
affairs of agencies, organizations, units or localities for self-seeking interests;
9. Taking advantage of positions or powers to illegally use state property for self-seeking
interests;
10. Harassment for self-seeking interests;
11. Failure to perform tasks or official duties for self-seeking interests;
12. Taking advantage of positions or powers to cover up law violators for self-seeking
interests; illegally hindering or intervening in the examination, inspection, audit,
investigation, prosecution, adjudication or execution of judgements for self-seeking
interests.

However, the corrupt acts under the current criminal code only consist of the 7 types
specified below:
1.
2.
3.
4.
5.
6.

Embezzling property;
Taking bribes;
Abusing positions or powers to appropriate property;
Taking advantage of positions or powers while performing tasks or official duties;
Abusing powers while performing tasks or official duties;
Taking advantage of positions, powers to influence other persons for self-seeking
interests; and7. Committing forgeries in work.

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The concept of "corrupt proceeds" in Viet Nam still has two different interpretations asmentioned above, so it may cause hindrance to the recovery of corrupt proceeds.
III. LEGAL FRAMEWORK FOR RECOVERY OF PROCEEDS OF CORRUPTION
The recovery of corrupt proceeds is enforced during the process of detecting, handling,
investigating, prosecuting, adjudicating and executing judgements in corruption cases. Thereby,
the competent authorities may use measures in accordance with the law to recover proceeds ofcorruption, such as search, seizure, inventory search, freezing, confiscation of the proceeds
obtained or deprived from corrupt acts.
As to the recovery of corrupt proceeds involving foreign elements, Article 71 of the Anti–
Corruption Law 2005 stipulates that:On the basis of treaties to which the Socialist Republic of Vietnam is a party andunder the basic principles of Vietnamese laws, the Vietnamese government shallcooperate with foreign governments in recovering Vietnamese or foreign
corruption-related properties and returning such properties to their lawful owners.
To date, Viet Nam has not adopted specific laws on confiscation and recovery of corrupt
proceeds; however, under the current law, there are two main groups of measures to confiscate andrecover proceeds of corruption as below:•

Group of criminal measures provided in the Criminal Code 1999, the current Criminal
Procedure Code 2003 and the Criminal Procedure Code 2015 (effective in January 2018).

•

Group of administrative and civil measures provided in the Civil Code 2015 and Civil
Procedure Code 2015

A.

Group of Criminal Measures
Under the provisions of Article 28 of the Criminal Code, the recovery of proceeds acquiredby criminal offences shall first be enforced by the imposition of penalties, namely:-

Fine (principle penalty),
Confiscation of property (as an additional penalty) and fine (as additional penalties
when not applied as the principle penalty).

Pursuant to Article 30 of the Criminal Code, fines shall be applied as an additional penalty
but not as a principle one.
Property confiscation is an additional penalty applied to a person convicted of corruption
crimes for only two offences, including: Embezzling property (Article 278) and Receiving bribes(Article 279).

－ 206 －

Article 42 of the 1999 Penal Code states: "The offender must return the property that has
been appropriated to the owner or his lawful manager and must compensate for material damage
which is determined to have been caused by the offense".
According to Article 41 of the Criminal Code, confiscation of objects and money that is
directly related to crimes is enforced as below:
1. The property confiscation for State funds shall apply to:a) Tools and means used for the commission of crimes;b) Objects or money acquired through the commission of crime or the trading or exchangeof such things;c) Objects banned from circulation by the State.
2. Things and/or money illegally seized or used by offenders shall not be confiscated but
returned to their lawful owners or managers.
Article 65 of the Criminal Procedure Code 2003 (corresponding to Art. 88 CPC 2015)
stipulates that investigating bodies, procuracies and courts must proceed in accordance with theprocedures by law to establish the offences and criminal proceeds in order to take measures torecover proceeds misappropriated by corrupt criminals.
However, the current provisions of law still have a number of shortcomings, such as: thedifficulty in determining which of the defendant’s assets are the corrupt assets due to lenientregulations on the asset declaration; the time-consuming process of identification of proceeds may
allow the offender to disperse or hide the proceeds, making them very difficult to recover; lack of
specific provisions creating powers, orders and procedures for the asset recovery.
Articles: 140, 142, 143, 144, 145 and 146 of the CPC 2003 (corresponding to Articles 128,
129, 192, 194, 195, 196, 197 and 198 of the CPC 2015) regulate the search, seizure, temporary
seizure, distraint of property, documents and objects, and freezing bank accounts, which can beconsidered as the most powerful and effective measures in the asset recovery in general and forcorrupt proceeds in particular.
Article 140 of the CPC 2003 (Article 192 of the CPC 2015) stipulates the grounds forsearch of persons, places of residence, workplaces, means, documents, articles, letters, telegrams,
postal parcels and electronic data.
Difficulty: the process takes a long time, and great efforts are required to establish legal
grounds that the corrupt proceeds could be hidden or spent by offenders through different means
and tricks.
According to Article 146 (1) of the CPC 2003 and Article 128 (1) and Article 129 (1) of
the CPC 2015, property distraint and bank account freezing shall only be enforced against theaccused or defendant for the crimes for which the Criminal Code authorizes the imposition of fines
or confiscation of property to secure compensation for damages.

－ 207 －

Difficulties: In a number of cases, the corruption crime or other crimes do not provide forthe immediate imposition of fines or compensation for damages. Instead, other crimes must beprosecuted, such as: negligence of responsibility, causing serious consequence (Article 285);
deliberately disclosing work secrets; appropriating, trading in or destroying documents containing
work secrets (Article 286); etc. These crimes do not permit distraint of assets until the corruption
crime is initiated. Therefore, this is also one of the reasons for prolonging the time of tracking
corrupt proceeds.
The property distrained or the freezing of a bank account shall be enforced in a value or an
amount that is equivalent to the proceeds confiscated, the fine penalty, or in the amount ofcompensation for damages (Article 146 (2) of the CPC 2003, Articles 128 (3) and 129 (3) of the
CPC 2015).
In numerous cases, while the entire suspicious property should be distrained as soon as
possible, only a small portion of the property can be established as corrupt proceeds at an earlystage. Such property distraint cannot guarantee the successful recovery of corrupt proceeds.
B.

Group of Administrative, Civil Measures
The Civil Code 2005 provides for the protection of property rights (Article 164), the rightto reclaim property (Article 166), and the right to claim damages (Article 170).
Article 114 of the Civil Procedure Code 2015 stipulates 11 measures related to asset
recovery as specified below:
1.
2.
3.
4.
5.

Distraining disputed properties.
Prohibiting the transfer of property rights over disputed properties.
Prohibiting the change of the status quo of disputed properties.
Permitting to harvest and sell subsidiary food crops or other products or commodities
Freezing accounts at banks, other credit institutions, state treasury; freezing assets at
depositories.
6. Freezing the obligors’ properties.
7. Prohibiting or forcing the performance of certain acts.
8. Banning obligors from leaving the country.
9. Suspending tender closing and other activities related to tendering.
10. Arresting aircraft or ships to secure the settlement of the cases.
11. Applying other provisional emergency measures in accordance with the law.
Procedures for the application of measures to recover property are also set out timely in
Article 133 (3) of the Civil Procedure Code 2015 as follows: Within 48 hours after receiving thewritten request, the judge must consider and issue a decision to apply provisional emergency
measures. In contrast, the application of compelled measures such as distraining assets and/or
freezing bank accounts in criminal proceedings is only enforced when the defendant has been
officially charged for his crime.

－ 208 －IV.

ASSET RECOVERY ENFORCED BY THE VIETNAMESE PEOPLE'S
PROCURACIESA.

Achievements
In recent years, procurators have strictly supervised the investigation process that started
right from the receipt of tips and reports of the crime to the conclusion of the investigation in every
serious corruption case. In addition, procurators have requested the investigating body to take allnecessary measures to recover proceeds obtained through or related to corrupt acts.
According to statistics on the results of detecting, investigating and dealing with corruption
cases from 1 December 2012 to 31 May 2016 by the procuracies of all levels (except the
procuracies of Lao Cai Province), the procuracies at all levels handled a total number of 1,091
cases with 2,296 accused persons; the number of cases to be resolved at the prosecution stage is:1,037 cases with 1,843 accused persons; the number of cases prosecuted was 868 cases with 1,868
accused persons. The total damaged property in corruption cases is over 5,335 billion VN dong,of which, the total amount of assets misappropriated is more than 4,346 billion VN dong and only
about 1.757 billion dong has been recovered.
In a number of corruption cases, a large portion of the proceeds has been detected, traced
and successfully recovered. In particular, all the corrupt proceeds have been recovered in somecases as specified below:-

The case of Huynh Ngoc Si, 58, former director of the ODA-funded East-West
Highway Project in Ho Chi Minh City, who was prosecuted for bribery, and his family
has paid the full amount of 5,109,200,000 VN dong for his own criminal acts;-

The case of Nguyen Ngoc Thanh Tung, who was prosecuted for abusing positions andpowers to misappropriate properties in Vietinbank, Bac Giang Province, the fullmisappropriated amount of 5.650 billion VN dong has been recovered;-

The case of Nguyen The Ngoc and his accomplices, who were prosecuted for
embezzling properties, occurred at Petrovietnam Transportation Corporation, and thedamages estimated at 3,774,302,109 VN dong have been retrieved; and-Particularly, the recent case of Giang Kim Dat and his accomplices, who wereprosecuted for embezzling property, occurred at the Vinashin Group, Ministry ofTransport; the investigating agencies have investigated, traced and distrained his
suspicious assets with the value greater than the alleged sum of money misappropriatedby him (his distrained properties are worth 300 billion VN dong, exceeding the 260
billion VN dong that were allegedly misappropriated at the time the crime wascommitted).

B.

Shortcomings and Limitations
According to the statistics mentioned above, the total damaged assets in corruption cases
is more than 5,335 billion VN dong, the assets recovered were over 1,913 billion VN dong,accounting for only 35.9%. Although the percentage of assets recovered out of the misappropriated－ 209 －

assets was significantly higher than in the recovery of damaged assets, it still remained low at
40.4 % (1,757 billion VN dong recovered out of the total amount of 4,346 billion misappropriated).
Asset recovery that is enforced by the procuracies at all levels has also indicatedshortcomings and limitations. In particular, in the following grand corruption cases, almost nothinghas been recovered because the offenders have dispersed all property or cannot afford to pay
damages:
The case of Pham Thanh Binh, former Chairman of VinaShin Group, and his 8 accomplices,
who were prosecuted for intentionally violating state regulations on economic management,
causing serious consequences; the compensation for damages must be over 1,100 billion VN dong,but by early 2016, the recovered amount was only 2.4 billion VN dong;
The case of Vu Quoc Hao and his accomplices, who were prosecuted for embezzling
properties and intentionally violating state regulations on economic management, causing serious
consequences. The embezzlement occurred at the Financial Leasing Company II, Agribank ofVietnam; damages to the state were more than 531.8 billion VN dong, but the recovered assets
included only 5.8 billion dong, 4 houses and 1 land plot; andThe case of Huynh Thi Huyen Nhu, who was prosecuted for embezzling property anddeliberately violating regulations on lending in the operation of credit institutions, with thecompensation amount of nearly 14,000 billion VN dong; however, the distrained properties were
estimated at about 500 billion VN dong.
C.

Reasons for the Shortcomings(i) In the course of conducting criminal proceedings, the criminal justice authorities failed
to promptly detect and take necessary measures to distrain and block the property, so the offenders
and their relatives had enough time to conceal or seek to legitimize the illegal income and property
by tricks, such as:
●

●

●
●

Hiding their ownership by using their relatives’ names for the illegal properties, ortransferring money continuously many times through many persons to create a closed
process to transfer those proceeds overseas to buy assets there; this is one of the main
tactics that corrupters have implemented to date to disseminate corrupt property;
Using shell companies that had been legally established for the purpose of laundering
illicit money. These companies may be legally established in one country, but theirmain activity is carried out in another country or territory;Through casinos or recreational entertainment centers to launder corrupt money;
Transferring money out to foreign bank accounts or bringing corrupt proceeds to flee
abroad.

(ii) A number of investigators and procurators still lack professional capacity to recovercorrupt proceeds, especially the general knowledge of budget management, finance, banking,－ 210 －

investment and construction. It is also one of the major impediments to the proper tracing andtracking of corrupt assets.
(iii) Some investigators and procurators, while investigating and prosecuting, have not been
fully aware of their responsibilities and roles, lack of expertise and have inadequate qualifications
to take all necessary measures to ensure the recovery of the damaged or appropriated property incorruption cases.
(iv) Limitations of the current legal system: Although Viet Nam has been a member of
UNCAC since 2003 and enacted the Anti-Corruption Law 2005, which recognized and set out the
principles and legal basis for taking necessary measures to recover corrupt proceeds, theseprovisions are too general, showing the objectives and principles of asset recovery, and not
regulating the authority, order and procedures for recovery of corrupt assets as well as forcible
measures to recover corrupt proceeds. In addition, the Criminal Procedure Codes 2003 and 2015
have not specifically provided for the order, procedures and competence to recover criminal assets
in general and corrupt assets in particular. As a result, the responsibilities and roles of competentauthorities in asset recovery and detecting proceeds have not been enhanced adequately.
The Law on Judicial Examinations 2012 stipulates issues related to financial, banking,construction and land evaluation too broadly and vaguely and provides no sanctions imposed on
agencies, organizations or individuals that have declined or evaded their responsibilities for
examinations or deliberately prolonged the process of examinations.
In addition, the current legislation has not set out the mechanism of coordination in therecovery of corrupt assets involving foreign elements. In particular, the Law on Mutual Legal
Assistance 2007 lacks provisions on asset recovery and has not clearly defined the recovery of
criminal proceeds as an issue that falls under the scope of criminal legal assistance.
(v) Obstacles in economic management, administration and judgement enforcement
include:
●

●

●

●

The mechanism controlling individuals’ assets and income, the use of cash and thesupervision over large transactions is still inadequate and loose;
The identification of property damaged by corrupt acts in many cases is complex andtime-consuming because corrupt assets often take many forms, are hidden separately
in many different locations, and data in legal documents and records are incorrect;
The offender, who is usually a person holding a high position with professional andlegal knowledge, has set planning and uses sophisticated tricks to commit offences andhide corrupt proceeds;
The handling of assets related to grand corruption cases is very difficult due to the factthat the value of the distrained property is often much less than the total amount of theillicit proceeds misappropriated by the corrupt offender;－ 211 －

● The offenders misappropriate properties with the intention of accepting
imprisonment penalties to keep the property obtained though corruption for theiroffspring.

－ 212 －

ELEVENTH REGIONAL SEMINAR ON GOOD GOVERNANCE
PARTICIPANTS, VISITNG EXPERTS & ORGANIZERS LIST

A. International Participants
Name
H.E. Mr. IM Oudom

Title and Organization
Assistant to the Anti-Corruption Unit (Director-General)

Mr. Mong Monichariya

Cambodia
Chief Judge
Preahsihanouk provincial Court

Mr. Yudi Kristiana

Cambodia
Head of Sub-Directorate of Other General Crime
Attorney General Office

Ms. Surya Tarmiani

Indonesia
Investigator
Corruption Eradication Commission

Indonesia
Mr. Vilavong PHOMKONG
Head of Internal Inspection
Department of Inspection
Office of the Supreme People's Prosecutor
Laos
Mr. Thepphathai PHANKA
Deputy Director General
Anti-Corruption Department
State Inspection Authority
Laos
Mr. AMIR BIN NASRUDDIN
Deputy Public Prosecutor
Legal And Prosecution Division
Malaysian Anti-Corruption Commission
Malaysia
Mr. Mohd Anuar Bin Ismail
Investigation Officer
Special Investigation Division
Malaysian Anti-Corruption Commission
Malaysia
Mr. Ngwe Zaw Aung
Deputy Director
Legal Advice Department
Union Attorney General's Office
MyanmarMr. Aung Myo
Director
Administration Division
Bureau of Special Investigation
MyanmarMs. Cristina Belmonte HERNANDEZ Assistant Special Prosecutor Ⅱ
Office of the Ombudsman
Philippines
Ms. Samina Sampaco MACABANDO-USMAN Assistant State Prosecutor
National Prosecution Service
Department of Justice
Philippines－ 213 －

ELEVENTH REGIONAL SEMINAR ON GOOD GOVERNANCE
PARTICIPANTS, VISITNG EXPERTS & ORGANIZERS LIST

Name
Mr. NEO Siong Leng

Mr. Nicholas Lim Kah Hwee

Title and Organization
Senior Assistant Director
General Investigations Branch 2
Corrupt Practices Investigation Bureau
Singapore
Deputy Public Prosecutor
Attorney General's Chambers
Singapore

Mr. Komkanae Hongthananan

Mr. Nat Nimitchaitham

Mr. HOANG Chi Kien

Mr. NGUYEN Duc Bang

Provincial Public Prosecutor
Department of Corruption Litigation
Office of the Attorney General
ThailandPublic Prosecutor
International Affairs Department
Office of the Attorney General
Thailand
Senior Prosecutor, Chief of DivisionInternational Cooperation and Mutual Legal Assistance in Criminal
Matters Department
Supreme People's Procuracy
Viet Nam
Senior Prosecutor, Vice Head of Division
Department of Exercising Public Prosecution Power and Supervision
over Corruption Cases
Supreme People's Procuracy
Viet Nam

B. Visiting Experts
Name
Mr. Giri Suprapdiono

Title and Organization
Director of Gratification
Corruption Eradication Commission

Ms. Candice WelschIndonesia
Chief, Implementation Support Section
Corruption and Economic Crime Branch
United Nations Office on Drugs and Crime－ 214 －

C. Organizers and Observers: Vietnam
Name

Dr. Tran Cong Phan

Title and Organization

Deputy Prosecutor General
Supreme People's Procuracy (SPP)

Mr. Nguyen Duc Hanh

Deputy Principal
Hanoi Prosecution University, SPP

Ms. Nguyen Thi Thanh Tu

Ms. Hoang Hai Yen

Mr. Nguyen Quoc Huy

Mr. Le Tien

Ms. Vu Thi Hai Yen

Ms. Hoang Thi Thuy Hoa

Ms. Nguyen Cam Tu

Ms. Pham Thuy Duong

Ms. Nguyen Quynh Trang

Ms. Ngo Thi Thu Van

Lecturer
Department of Criminology and Criminal Investigation, Hanoi
Prosecution University, SPP
Lecturer
Department of Criminal Law and Criminal Prosecution, Hanoi
Prosecution University, SPP
Legal Expert
Department of Legality and Scientific Management, Supreme People's
Procuracy, SPP
Director
International Cooperation and Mutual Legal Assistance in Criminal
Matters Department, SPP
Deputy Director
International Cooperation and Mutual Legal Assistance in Criminal
Matters Department, SPP
Chief of DivisionInternational Cooperation and Mutual Legal Assistance in Criminal
Matters Department, SPP
Prosecutor AssistantInternational Cooperation and Mutual Legal Assistance in Criminal
Matters Department, SPP
OfficerInternational Cooperation and Mutual Legal Assistance in Criminal
Matters Department, SPP
OfficerInternational Cooperation and Mutual Legal Assistance in Criminal
Matters Department, SPP
OfficerInternational Cooperation and Mutual Legal Assistance in Criminal
Matters Department, SPP

D. Organizers: UNAFEI
Name
Mr. Keisuke SENTA

Title and Organization
Director
UNAFEI

Ms. Ayuko WATANABE

Professor
UNAFEI

Mr. Masahiro YAMADA

Professor
UNAFEI

Mr. Thomas L. SCHMID

Linguistic Adviser
UNAFEI－ 215 －

Eleventh Regional Seminar on Good Governance for Southeast Asian Countries“Best Practices in Anti-Corruption: A Decade of Institutional and Practical Development inSoutheast Asia”

SCHEDULE
17-19 October 2017
Melia Hanoi Hotel
Hosts:
United Nations Asia and Far East Institutefor the Prevention of Crime and the Treatment of Offenders (UNAFEI) ,Supreme People’s Procuracy Office of the Socialist Republic of Vietnam (SPP)
Monday, 16 October
PM
Registration
Tuesday, 17 October
09.00-10.00:
Opening Ceremony – at the Function Room 6+7
Opening Address by Mr. Keisuke SENTA, Director, UNAFEI
Opening Address by Mr. Tran Cong Phan, Deputy Prosecutor General,
SPP
Special Address by Mr. Kunio UMEDA, Ambassador Extraordinary
and Plenipotentiary, Embassy of Japan in Viet Nam
Group Photo session
10.00-10.30:
Coffee / Tea Break
10.30-11.00:
Keynote Address by Mr. Keisuke SENTA , Director, UNAFEI
11.00-12.00:
Special Presentation by Ms. Candice Welsch, Chief, Implementation
Support Section, Corruption and Economic Crime Branch, United
Nations Office on Drugs and Crime
12.00-13.30:
Lunch – at the Hotel Restaurant “El Patio”
13.30-14.30:
Special Presentation by Mr. Giri Suprapdiono, Director of Gratification,
Corruption Eradication Commission
14.30-15.10:
Country Presentation (Cambodia)
15.10-15.30:
Coffee / Tea Break
15.30-16.10:
Country Presentation (Indonesia)
18.00-

Welcome Reception hosted by UNAFEI – at Function Room 1+2－ 216 －

Wednesday, 18 October
09.00-09.40:
Country Presentation (Japan)
09.40-10.20:
Country Presentation (Laos)
10.20-10.40:
Coffee / Tea Break
10.40-11.20:
Country Presentation (Malaysia)
11.20-12.00:
Country Presentation (Myanmar)12.00-13.30:
Lunch – at “El Patio”
13.30-14.10:
Country Presentation (Philippines)
14.10-14.50:
Country Presentation (Singapore)
14.50-15.10:
Coffee / Tea Break
15.10-15.50:
Country Presentation (Thailand)
15.50-16:30:
Country Presentation (Viet Nam)Thursday, 19 October
09.00-10.30:
Chair’s Summary & Discussion
10.30-11.00:
Coffee / Tea Break
11.00-12.00:
Closing Ceremony
Closing Address by Mr. Tran Cong Phan, Deputy Prosecutor General,
SPP
Closing Address by Mr. Keisuke SENTA, Director, UNAFEI
Presentation of Certificates
12.00-13.30:
Lunch – at “El Patio”
PM
Side Event
18:30-

Farewell Reception hosted by SPP – at Function Room 6+7
End of the Seminar－ 217 －

APPENDIX___________________________________________________________
PHOTOGRAPHS
Commemorative PhotographOpening Address by Director Keisuke Senta, UNAFEI
Opening Address by Mr. Tran Cong Phan, SPP
Special Address by H.E. Mr. Kunio Umeda, Ambassador of Japan to Viet Nam
Visiting Expert’s Presentation by Ms. Candice Welsch, UNODC
Visiting Expert’s Presentation by Mr. Giri Suprapdiono, KPK
Presentation by the Participants from Indonesia
Closing Address by Mr. Tran Cong Phan, SPP___________________________________________________________

UNAFEI－ 218 －

－ 219 －－ 220 －－ 221 －－ 222 －