117TH INTERNATIONALPAPERSSEMINARPARTICIPANTS’PARTICIPANTS’ PAPERS

CURRENT SITUATION AND COUNTERMEASURESAGAINST MONEY LAUNDERING
Kevueli Tunidau *I. INTRODUCTION/BACKGROUND
Crime has traditionally been considereda domestic matter, a part of the life of eachsovereign state with which it must cope.
Criminals were almost always nationals of
the sovereign state and crimes havegenerally been committed within it’sborders. The ability to regulate crimes andpunish those who transgress society’s rules
has been, until recently, a matter fiercely
guarded by each sovereign state. Moneylaundering, although not a newphenomenon, has become the talk of
academics, law enforcement agencies andpoliticians. The reason appears to bebecause this crime has become an
Organized Transnational Crime (OTC)
conducted on a massive scale by OrganizedTransnational Criminal Enterprises(OTCE) or syndicates (see UN Report on
the Fifth Session, Economic and Social
Council Official Records, 1996, Supp 10).
In short, money laundering and those who
engage in it, have gone global and Fiji is
no exception to it’s influences.
A. South Pacific Regional Meetings
on OTCAs an OTC, money laundering can only
be combated by Fiji in cooperation withother sovereign states. However, it is in
the sphere of regional bodies that a mostcoordinated approach in addressing OTCE
and money laundering had been very
effective. The Forum Secretariat andCommonwealth Secretariat had been
instrumental in harnessing the cooperationand participation of South Pacific island* Barrister & Solicitor, Office of the Director of Public
Prosecutions, Fijinations and enhancing an understanding
and effective implementation of proceedsof crime, mutual assistance in criminal
matters and extradition arrangements.
Fiji is very much indebted to theJapanese Government and her various
donor agencies for the technical support,
expertise, training and funding to facilitate
the various mechanisms of combating
crime in the Pacific. The Fiji Government
also acknowledged the invaluable role of
JICA and UNAFEI and the need for theirsupport to continue.
B. Honiara Declaration
Although Fiji and her Pacific Islandneighbors are not members of the Financial
Action Task Force (“FATF”) which was
founded by the G-7 Summit in Paris in
1989, to examine ways to combat money
laundering, the need for uniformity and acoordinated approach to tackle thistransnational crime despite differing legal
systems, language and culture was wellrealized regionally.
The Declaration by the South Pacific
Forum on Law Enforcement Cooperationin Honiara, Solomon Islands on July 1992[“Honiara Declaration”] echoed theconcerns of Pacific Forum leaders that ‘anadverse law enforcement environment could
threaten the sovereignty, security andeconomic integrity of Forum members andjeopardize economic and social
development..... and the potential impactof transnational crime was a matter ofincreasing concern to regional states andenforcement agencies.’ The Honiara
Declaration recognized ‘Mutual Assistance399

RESOURCE MATERIAL SERIES No. 58
in Criminal Matters’, ‘Forfeiture of theProceeds of Crime’ and ‘Extradition’ as very
vital in the region’s concerted effort tocombat money laundering and other OTC.
Mutual assistance in criminal matters‘would enhance cooperation between theircourts, prosecution authorities and law
enforcement agencies.’
Forfeiture of the proceeds of crime‘enables the proceeds and instrumentalities
of crime to be traced, frozen and seized’. To
attain this there is a ‘need to regulatebanking and other financial services toreduce the possible manipulation of these
services to “launder” the proceeds of crime.’
A proper regulation of the banking system
would ensure that bank secrecy laws
cannot be used as a shield for thelaundering of criminal profits nor to
obstruct the operation of mutual assistancearrangements.
The Honiara Declaration also recognizes
the need for Fiji and her neighbors toreview extradition arrangements within
the region and steps to be taken thatextradition legislation be modified in linewith the United Nation’s Model Treaty on
Extradition or on the current London
Scheme for the Rendition of Fugitive
Offenders within the commonwealth.
The Honiara Declation was thus theplatform for Fiji to legislate laws on Mutual
Assistance in Criminal Matters andForfeiture of the Proceeds of Crime and to
modify her extradition legislation as
pointed to above. Fiji fulfilled her desire
to combat money laundering and other
OTC by enacting the Proceeds of Crimes
Act, 1997 (POC) and the Mutual Assistancein Criminal Matters Act, 1997 (MACM).

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II. CRIMINALIZATION OF MONEY
LAUNDERING IN FIJI
A. Scheme of the POC Act
It appears to be accepted that there arethree phases or stages in the laundering
process:(i)
Placement: where cash enters thefinancial system;(ii) Layering: where the money is
involved in a number oftransactions; and(iii) Integration: where money is mixed
with lawful funds or integrated
back into the economy, with theappearance of legitimacy.
The POC Act endeavors to trace andmonitor these phases of laundering
culminating in a recovery process of theproceeds of crime. Thus the scheme of the
Act is:“To provide for confiscation of theproceeds of crime to deprive persons of theproceeds, benefits and properties derived
from the commission of serious offences andto assist law enforcement authorities intracing the proceeds, benefits and properties
and for related matters”.
B. Purpose of the POC Act
It’s purpose is threefold:(i)Permits a court in Fiji to grantorders for the forfeiture andconfiscation of property used inconnection with the commission ofa serious offence;(ii) Read together with the MACM Act
1997 it will provide a mechanism
for parallel orders issued in aforeign country to be given effectin Fiji; and(iii) Targets proceeds of a serious
offence. ‘Serious offence’ is defined
under section 3 of the Act as an
offence of which the maximum
penalty prescribed by law is death,117TH INTERNATIONAL SEMINARPARTICIPANTS’ PAPERS
or imprisonment for not less than
12 months.
C. Money Laundering as an Offence
Part V of the POC Act creates money
laundering as an offence against a natural
person and a body corporate by virtue ofsection 69 (2) (a) & (b) respectively. It isalso the penalty provision. Section 69 (3)POC Act considered money laundering an
offence where:
A person either• engages directly or indirectly in atransaction that involves money, orother property, that is proceeds ofcrimeOr• receives, possesses, conceals, disposesof or brings into Fiji any money, orother property, that is proceeds of
crime
And
• the person knows, or oughtreasonably to know, that the moneyor other property is derived orrealized, directly or indirectly, fromsome form of unlawful activity.
• Section 70 creates an offence ofreceiving, possessing, concealing,
disposing of or bringing into Fiji ofany money or property that isproceeds of crime.
• Section 71 imputes liability on a body
corporate within the scope of thecompany’s director, servant or agent’s
actual or apparent authority or of any
other person at the direction, consent
or agreement of a director, servant or
agent’s scope of actual or apparent
authority.

III. SCOPE AND EXTENSION OF
PREDICATE OFFENCES FOR
MONEY LAUNDERING
Fiji is yet to determine and fully gauge
the scope and extension of predicate
offences for money laundering due to it’sinternalization and sophistication. Despite
this the joint cooperation of foreign
detection and investigating agencies
resulted in the seizure of about 300
kilogrammes of heroin with a street valueof about F$25million in Suva recently. A
Chinese national from Hong Kong and Fiji
Chinese national were arrested and now
awaiting trial. The joint operation involved
about 20 agents from the Fiji Police Force,
Australian Federal Police, Royal Canadian
Mounted Police, the United States Drug
Enforcement Administration and New
Zealand Police.
Another factor to consider in this regard
is the absence in Fiji of a FinanceIntelligence Unit (“FIU”) manned byappropriately trained people to analyze andmonitor various commercial and banking
transactions.
Thus the scope and extension ofpredicate offences for money laundering inFiji can not be fully realized without theassistance of foreign aid in cooperation with
our internal security agencies.
IV. FINANCIAL INTELLIGENCEUNITS (FIU)
As noted above, Fiji is yet to establish
Financial Intelligence Units. At this stage
it is a proposal by a POC Implementation
Committee comprising of the AttorneyGeneral, Director of Public Prosecutions,
Assistant Commissioner of Police and a
representative of the Reserve Bank of Fiji.
The committee’s task is to look at
regulations that can be put together tostrengthen the Proceeds of Crime Act. The
FIU is proposed to be manned by

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RESOURCE MATERIAL SERIES No. 58
appropriately trained officers of the police
force and reserve bank.
The committee is also mooting theestablishment of a regional FIU with theview that it be located in a more developed
country such as New Zealand or Australia
due to their established infrastructure andtechnological advance. The exchange of
information between the national andregional FIU would assist recipient
national statutory bodies such as the Fiji
Trade and Investment Board about anindividual person, organization or
corporate entity.
It is envisaged that the expert andtechnical nature of a FIU requires
assistance in the training of personnel inthis area and the appropriate technology.
V. COOPERATION BY BANKS AND
NON-BANK FINANCIAL
INSTITUTIONS
A. Definitions
A “bank” under section 3 of the POC Act
means:• the Reserve Bank of Fiji; or• a bank within the meaning of the
Banking Act.
The Banking Act defines it as any
financial institution whose operations
include the acceptance of deposits of money
withdrawable or transferable by cheque orother means of payment transfer.
Under section 63 of the POC Act‘financial institution’ means:• a bank• a credit union; or• a trust company, finance company ordeposit taking company.
The Banking Act defines ‘financial
institution’ as any company doing banking
business. It further defines ‘banking

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business’ as:• the business of accepting deposits ofmoney from the public or members
thereof, withdrawable or payable
upon demand or after a fixed period
or after notice, or any similar
operation through the frequent salesor placement of bonds, certificates,
notes or other securities, and the useof such funds, either in whole or inpart, for loans or investments for theaccount and at the risk of the person
doing such business; and• any other activity recognized by the
Reserve Bank as customary banking
practice which a licensed financial
institution is authorized to do by the
Reserve Bank.
It would be noted that the definition ofa financial institution under section 63
POC Act is very limited. It does not coverlawyers who operate sole or inpartnerships, accounting firms, foreignexchange agencies, travel agencies, second
hand car-dealers, etc.
The POC Committee is proposing toamend the definition in line with the
Financial Transactions Reporting Act No.
33 of 2000 of the Republic of Vanuatu.
Under that Act the following falls within
the meaning of a financial institution:• Reserve Bank of Vanuatu;• A licensee within the meaning of the
Financial Institutions Act;
• A company licensed as an exemptedbank or financial institution under the
Banking Act;
• A company licensed under the
Vanuatu Interactive Gaming Act;
• A person licensed under the Casino
Control Act;
• A person carrying on business underthe Betting Control Act;

117TH INTERNATIONAL SEMINARPARTICIPANTS’ PAPERS• A person carrying on business under
the Gaming Control Act;
• A person carrying on a business:• Of administering or managing funds
on behalf of an international company
within the meaning of theInternational Companies Act• as a trustee in respect of funds ofother persons• as a trustee or manager of a unittrust
• A person carrying on a business of an
insurer, an insurance intermediary, asecurities dealer or a futures broker;• A person carrying on a business of:• exchanging money;• collecting, holding, exchanging or
remitting funds or otherwise
negotiating fund transfers onbehalf of other persons;• preparing pay-rolls on behalf ofother persons from funds collected• delivering funds;• A lawyer, but only to the extent thatthe lawyer receives funds in thecourse of his or her business for the
purpose of deposit or investment or
settling real estate transactions;• An accountant, but only to the extent
that the accountant receives funds inthe course of his or her business forthe purposes of deposit or investment;• A person carrying on a business of:• Dealing in bullion;• Issuing, selling or redeeming
traveler’s cheques, money orders
or similar instruments;• Collecting, holding and delivering
cash as part of a business orproviding payroll services;• A credit union under the Credit
Unions Act or a cooperative society
under the Cooperative Societies
Act;
A person carrying on electronic businessunder the E-Business Act.
The limited meaning of a financial
institution under the POC Act, unlike the
Financial Transactions Reporting Act of
Vanuatu, limits the scope of expectation forcooperation of non-bank financial
institutions that do not fall within themeaning of a financial institution.
B. Retention of Records by
Financial Institutions
Section 59(1) stipulates that a financial
institution is to retain the original of adocument that relates to a financialtransaction carried out by the institution,
for the minimum of the retention period i.e. 7 years (s 63). Such document pertains
to:• opening and closing of an account;• operation of an account;• opening or use of a deposit box;
• telegraphic or electronic transfer offunds;• transmission of funds between Fijiand a foreign country or between
foreign countries; and• application for a loan and grant of theloan.
Section 59 (3) requires a financial
institution to retain the original documentson microfilm or in another way to facilitate
retrieval of them reasonably practicable.
Section 59(4) imposes penalty of notexceeding $30,000 for an institution that
contravenes subsection (1) & (3).

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C. Register of Original Documents
Section 60 requires the institution toretain a copy of the original if the latter isrequired by law to release it before the endof the retention period and to maintain aregister of record the release of the
document.
D. Communication of Information to
Law Enforcement Authorities
Section 61 stipulates that where afinancial institution is a party to atransaction and the financial institution
has reasonable grounds to suspect that
information that the financial institution
has concerning the transaction:• be relevant to an investigation of or
the prosecution of a person for an
offenceor• may be of assistance in theenforcement of the Act
The institution may give the information
to a police officer or the Director of Public
Prosecutions.
Subsection (2) protects a financial
institution, it’s officers, employees or agent
against any civil liability in taking theaction stipulated under subsection (1).
Subsection (3) restricts the financial
institution, it’s officers, employees or agent
from disclosing to anyone else of it’ssuspicion or information given to the policeor the Director of Public Prosecutions
under subsection (1).
Subsection (4) penalizes any one who
contravened subsection (3)E. Protection for Financial
Institutions
Section 62 protects a financial
institution, it’s officers, employees or agent

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for the purposes of sections 69 (money
laundering) and 70 (possession of property
suspected of being proceeds of crime).
VII. ASSET CONFISCATION
A. Conviction Based
Asset confiscation under the POC Act isbased upon the conviction of a person of aserious offence under the Act. A serious
offence is an offence of which the maximum
penalty prescribed by law is death, or
imprisonment for not less than 12 months.
Under section 4 (2) of the Act a person istaken to be convicted of a serious offence
if:• the person is convicted, whether
summarily or on indictment, of theoffence;• the person is charged with, and foundguilty of, the offence but is discharged
without conviction; or• a court, with the consent of the person,
takes the offence, of which the person
has not been found guilty, into accountin passing sentence on the person foranother offence.
B. Application by Director of Public
Prosecutions (DPP) for
Confiscation Order
Section 5 (1) (b) of POC Act stipulates
that after a person is convicted of a serious
offence the DPP may apply to the court fora confiscation order against the person
convicted in respect of benefits derived bythat person from the commission of theoffence.
C. Notice
Section 7 (2) provides that when the DPP
applies for a confiscation order against aperson he/she should give the person
written notice of the application. The
person upon receipt of the notice may
appear and adduce evidence at the hearing

117TH INTERNATIONAL SEMINARPARTICIPANTS’ PAPERSof the application.
D. Amendment of Application
Section 8(1) of the Act allows the DPP toamend the application at any time before
the final determination of the application,
to include any other benefit upon being
satisfied that the benefit was notreasonably capable of identification when
the application was originally made; ornecessary evidence became available only
after the application was originally made.
The DPP is obliged to give written noticeof the amendment because the effect of theamendment would be an additional benefit
in the application for the confiscation order(subsection 4).
E. Procedure on Application
The court may in determining anapplication for a confiscation order haveregard to the transcript of any proceedings
against the person for the offence (section
9(1)).
Where an application is made for a
confiscation order to the court before which
the person is convicted, and the court has
not, when the application is made, passed
sentence on the person for the offence, thecourt may if it thinks fit, defer passing
sentence until it has determined theapplication for the order (section 9(2)).
F. Confiscation Order on Conviction
Where a court, after hearing the DPP’s
application for a confiscation order, issatisfied that a person has benefited fromthat offence, order the person to pay into
court an amount equal to the value of theperson’s benefits from the offence or theamount that might be realized at the time
the confiscation order is made (section 20(1)).
Section 20 (3) provides that the court can
not make a confiscation order:• until the period allowed by the rulesof the the court for the lodging of an
appeal against conviction has expired;• where an appeal against conviction
has been lodged - until the appeal
lapses or is finally determined.
G. Rules for Determining Benefit
and Assessing Value
A person’s benefit is the value of theproperty so obtained (section 21(1)).
Where a person derives an advantage
from the offence committed, the advantage
is deemed to be a sum of money equal tothe value of the advantage so derived(section 21(2)).
The court in determining whether aperson has benefited from the commissionof a serious offence and in assessing thevalue of the benefit, shall, unless thecontrary is proved, deem:(a) all property appearing to the court tobe held by the person on the day on
which the application is made; andall property appearing to the court tobe held by the person at any time:• within the period between the day
the offence was committed and the
day on which the application is
made, or• within the period of 5 years
immediately before the day on
which the application is made,to be property that came into thepossession or under the control of theperson by reason of the commission of theoffence;(b) any expenditure by the person met
out of payments received by the
person as a result of the commission

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RESOURCE MATERIAL SERIES No. 58
of that offence; or(c) any property received or deemed tohave been received by the person asa result or in connection with thecommission of the offence, to beproperty received by the person freeof any interests therein (section
21(3)).
The court will leave out of account any
benefits of a person that are shown to thecourt to have been taken into account whena confiscation order has previously been
made against the person (subsection (4)).
If evidence is given that the value of aperson’s property after the commission of
the offence exceeded the value of his or her
property before the commission of theoffence, the court will treat the value of thebenefits derived from the commission of theoffence as being not less than the amountof the excess (subsection (5)).
If the person satisfies the court that thewhole or part of the excess was due tocauses unrelated to the commission of theoffence, subsection (5) will not apply to theexcess (subsection (6)).

H. Statements Relating to Benefits
from Commission of Serious
Offence
Section 22 (1) & (2) requires the DPP totender into court a statement which
determines that a person has benefited
from the offence and an assessment of thevalue of the person’s benefit after a copy ofthe statement had been served on that
person. The court will then require that
person to indicate whether he accepts theallegations in the statement. If he or she
does not accept any such allegation, to
indicate what he or she proposes to rely
on.

406

Where a person fails to comply withsubsection (2) the court may, for the
purpose of determination, treat theacceptance of the DPP as conclusive of thematters to which it relates (subsections (3)& (4)).
An acceptance by a person that he or she
received any benefit from an offence
committed is admissible in any proceedings
for any offence.
I. Amount to be Recovered Under
Confiscation Order
Section 23 provides that the amount tobe recovered under a confiscation ordershall be that which the court assesses tobe the value of the person’s benefit fromthe offence.
J. Variation of Confiscation Orders
The DPP may apply to the court for avariation of the confiscation order toincrease the amount by the value of theproperty (section 24).
K. Court May Lift Corporate Veil
In assessing the value of benefits derived
by a person from the commission of an
offence the court may treat as property ofthe person any property that is subject tothe effective control of the person whether
or not the person has any legal or equitableinterest in the property, or any right, poweror privilege in connection with the property(section 25(1)).
The court may have regard to:• shareholdings, debentures ordirectorships of a company that has
an interest in the property and mayorder the investigation andinspection of the books of a named
company;• a trust that has a relationship to theproperty; and• any relationship between persons

117TH INTERNATIONAL SEMINARPARTICIPANTS’ PAPERS
having an interest in the property(subsection(2)).
The court upon the application by the
DPP may make an order declaring theproperty under subsection (1) as available
to satisfy the order (subsection(3)). The
order may be enforced against the property
and a restraining order may be made in
respect the same property (subsection(4)).
L. Enforcement of Confiscation
OrdersSection 26 provides that an amountunder a confiscation order is a civil debt
due to the state and enforced as in civil
proceedings. A person who is a bankrupt
is dealt with under the Bankruptcy Act.
M. Registered Foreign Confiscation
Orders
Where under the MACM Act a foreign
confiscation order is registered in the court,
any amount paid, in Fiji or elsewhere, tosatisfy the foreign confiscation order shallbe taken to have been paid in satisfactionof the debt that arises by the registrationof the said order in court (section 27).
VIII. OTHER ANTI-MONEY
LAUNDERING SYSTEMS/STRATEGIESI had earlier draw attention to the
Mutual Assistance in Criminal Matters Act(MACM) and the Extradition Act. Bothlegislation complement the POC Act in theextradition of suspected offenders to andfrom Fiji and in areas of mutual criminal
assistance between Fiji and othercountries.
A. Extradition Act
The Fiji Extradition Act is broadly basedon the UK 1881 Fugitive Offenders Act. The
provisions of the Act have continued inforce even after Fiji became a Republic in
1987. All treaties negotiated and signed

before 1987 continued to be operative after
1987, although New Zealand and Australia
decided to negotiate new arrangements.
Section 4 of the Extradition Act provides
that:“Subject to the provisions of this Act, aperson found in Fiji who is accused orconvicted of an extradition offence in any
treaty state or designated Commonwealthcountry or who is alleged to be unlawfullyat large after conviction of such an offencein any such State or country, may bearrested and returned to that State or
country as provided by this Act.”
Commonwealth countries are thoselisted in the schedule to the Act - actual
membership of the Commonwealth washeld to be irrelevant in R v Brixton Prison
Governor ex parte Kahan (1989) 2 All ER.
An extradition offence is, in the case ofa treaty State, it is provided for by theTreaty, in the case of a designated
Commonwealth country, it falls within the
Schedule and is punishable withimprisonment for twelve months or more;
and if it satisfied the dual criminality test
set out in section 5 of the Act.
The scope of the Extradition Act isrestrictive and is due to the absence ofExtradition Treaties between Fiji and nonCommonwealth or treaty countries. But
this should change if money laundering is
to be tackled squarely because its effect is
global, international and wide ranging.
The United Nation described OTC andmoney laundering as a “formidable
problem for the International Community”,
a new form of “geopolitics” and “one of themost pernicious forms of criminality ofwhich the dimensions have yet to be fullymeasured and the impact fully
determined”. (Report of the SecretaryGeneral, 4 April 1996 at p.4; UN Press
Release SOC/CP/179 20 May 1996; UNCPJ

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RESOURCE MATERIAL SERIES No. 58
Newsletter nos. 30/31, Dec 1995 at p 5.)
Leading jurists have offered similar
predictions of gloom and peril (see Money
Laundering Control (Dublin) Sweet &Maxwell, 1996).
T h e n e e d f o r F i j i t o e x t e n d i t ’s
extradition treaty borders is due to the factthat OTCE are not limited to operating
within national borders, their internationalrole has become increasingly importantand powerful. Money laundering and theactivities of OTCE are said to “pose aserious threat worldwide in terms ofnational and international security, as wellas political, economic, financial and social
disruptions”. (Zvekic, International
Cooperation and Transnational Organized
Crime, (1996) ASIL 537.)
But even countries that have extradition
arrangements with Fiji or Commonwealthcountries, the incompatibility between
different systems in law, attitude ofcountries to the extradition of their own
nationals and conflicting claims ofjurisdiction are issues which affect theoutcome of a request for extradition, which
has a direct bearing on the real issue ofextradition - the ability of criminals to use
national boundaries and complicatedlegislation to avoid the justice system. Fijiand New Zealand, for example, saw theneed to strengthen their extradition
treaties by signing an Agreement on
Extradition on 21st March, 1992.
Further to this both countries exchanged
diplomatic notes for the passage of Mutual
Assistance in Criminal Matters allowing
video link evidence of witnesses in theirrespective countries.
B. Extradition Cases in Fiji
Our experience with the extradition
cases in the past decade or so has shownthat it requires a level of expertise not onlyin the ability to compare offences in two

408

different countries but also in the ability
to work with the Extradition Act and a bilateral treaty.
Recent years have seen a spate ofrequests. The request made by Fiji to theUnited Kingdom for the return of Kahan
to answer charges of arms smuggling, therequest by Fiji to Australia to extradite
Michael Desmond Benefield for Fraudulent
Conversion, the request by the UnitedStates to Fiji for the return of Kaspar Paul
Rutten for importation of marijuana, therequest by Australia to Fiji for the returnfor Rape, the request byof
New Zealand to Fiji for the return ofMaivelan for serious fraud offences and therequest of the Hong Kong Government for
the return of Tammie Tam Sukh Chong for
fraud offences.
The recent arrest of two people with
about 300 kilograms of heroin could be ourfirst money laundering case. Anotheraccomplice was recently convicted in
Kiribati and sentenced to 5 years in prison.
It is likely that Fiji will seek his extradition
after he has served his prison term to facecriminal charges in Fiji. It is establishedthat one of the accused persons hasproperties in New Zealand, Australia,
Canada and the United States of America.
There is much to be said for prioritizing
the enactment of extradition laws to ensurecompatibility of principles andpracticability of arrangements to assist in
combating money laundering. There areat present too many accessible countries
where there are no extradition
arrangements. Such a vacuum exists tobenefit money launderers who can crossnational boundaries by whatever means
with ease.

117TH INTERNATIONAL SEMINARPARTICIPANTS’ PAPERS
C. Mutual Assistance in Criminal
Matters Act 1997 (MACM)
Fiji enacted the MACM Act in 1997
together with the POC Act. We are yet tosee some major developments in Mutual
Assistance where the Act was practically
implemented. We are on a learning curve
and the only way of developing expertiseis to run cases.
D. Procedures
The Mutual Assistance system is basedon reciprocity and a network of treaties andconventions. However, the process depends
on each country having domestic legislation
to allow it to provide assistance to othercountries. The MACM Act is the domestic
law in Fiji.
If a country wants assistance from Fiji
which involves the exercise of compulsory
powers, it has to make a formal request to
the Attorney- General of Fiji. The AttorneyGeneral will decide whether assistanceshould be provided. If the Minister decides
that assistance should be provided, therequest is forwarded to the Commissionerof Police, if it requires investigative action,
to the DPP, if it requires court action inFiji.
E. Investigation
The provisions which apply at theinvestigation stage in criminal assets cases
tap into the POC Act. They give the Courts
in Fiji the same powers in respect of aforeign investigation that they have in
relation to a financial investigation being
conducted in Fiji. The Fijian courts canissue search warrants, make production
orders and monitoring orders.
F. Cases
As pointed earlier, the only cases so farthat had invoked the MACM Act arevarious serious criminal cases in Fiji where
either the complainants or witnesses havereturned abroad or have migrated. The

assistance is by taking of evidence by the
courts of the requested country via video
link. However, mutual assistance in thisregard applies only to witnesses who are
in Australia and New Zealand.
IV. CONCLUSION
Fiji has recognized the potential threat
to her sovereignty, security and economic
integrity by money laundering and other
OTC. It is also recognized that throughthe work of the Financial Action Task Force(FATF) and other bodies, criminals arebeing progressively squeezed out of otherregions by tighter laws. They are now
finding Fiji and other South Pacificcountries to be an attractive target. As aresult money laundering and other OTC
are becoming more prevalent in the region.
To counter these threats Fiji enacted the
POC Act 1997 and MACM Act 1997. The
POC Act criminalise money laundering andput in place a system of forfeiture of tainted
property and confiscation of assets orproceeds of criminal activities after aperson is convicted of the commission of aserious offence under the Act.
The MACM Act provide mutual
assistance in criminal matters between Fijiand other countries. While the Mutual
Assistance legislation facilitates obtaining
material overseas, it does not of itself makethat material legally admissible in the
courts of the requesting jurisdiction.
Admissibility can be achieved byrelatively simple amendments to theevidence laws of the requesting
jurisdiction. For example, such
amendments could provide that properly
authenticated material obtained fromoverseas under a Mutual Assistancerequest could be prima facie admissible inevidence, subject to the discretion of the
Court to exclude it in the interests of409

RESOURCE MATERIAL SERIES No. 58
justice.
For effective extradition between Fijiand other countries, the basic laws should
allow the executive of each nation to
respond to requests for the surrender offugitive criminals. While reserving its
sovereign right to refuse extradition incertain exceptional cases, the nation’s law
should enable it to surrender fugitives toanother country in cases where that action
does not offend its public policy.

410