Mutual legal assistance is an important mechanism to combat transnational crime. Attorney-General Tan Sri Abdul Gani Patail speaks to SHAILA KOSHY on an upcoming meeting of Attorneys-General to work on a treaty on Mutual Assistance in Criminal Matters in Asean.
IT seems appropriate that the venue for the meeting of Asean Attorneys-General on the proposed Mutual Assistance in Criminal Matters Treaty should be the state of Sabah.
Apart from being the home state of Malaysian A-G Tan Sri Abdul Gani Patail, it is also the state where Abu Sayyaff terrorists abducted 24 tourists and locals from the islands of Sipadan and Pandanan in 2000. Several Jemaah Islamiyah (JI) members have also been picked up in the state over the last couple of months and are now in detention under the Internal Security Act (ISA).
In the last two years, Malaysia has enacted the Anti-Money Laundering Act and the Mutual Assistance in Criminal Matters Act to counter transnational criminal activity and follow the financial trail of terrorists and their sponsors.
It would certainly be a proud moment for Gani if he can persuade all 10 Asean countries to sign the proposed treaty.
Gani said in an interview that not all the delegations to the meeting would be headed by their respective A-Gs. Among others, Vietnam is sending its deputy A-G while Indonesia will be represented by its Law Minister.
Asean police and prosecutors have been pulling their hair out for years for a more concrete form of mutual assistance to combat criminals, but apart from the usual platitudes of the need to deal with organised crime, very little has happened.
In the last decade alone, Asean police chiefs have consistently suggested that their respective governments sign bilateral and multilateral agreements to combat the drug scourge, and sign memoranda of understanding on mutual assistance for other criminal activity.
At the police chiefs’ conference in Vietnam in June last year, they even adopted a resolution pertaining to terrorism.
The world is looking at terrorism with different eyes since the Sept 11 attacks. With the accusation “hotbed for terrorism” levelled at some Asean members, maybe now the region will set up a mechanism to counter other transnational crimes as well.
For starters, all 10 Asean countries are sending a delegation to the three-day meeting, which begins tomorrow. Deputy Prime Minister and Home Minister Datuk Seri Abdullah Ahmad Badawi will deliver the keynote address.
After Gani presents Malaysia’s proposed treaty, each country will present a country report. The delegates will then have over two days to discuss, debate and make amendments to the document before deciding whether they want to be party to it.
Law enforcers and Parliament often forget that criminals are an industrious lot. Many of them find a way to break the law even before the ink has dried on a newly passed statute. They operate networks that business gurus only talk about.
True utilitarian individuals, they gleefully embrace globalisation's effects on communication and transportation, and the removal of trade barriers and border restrictions, to flee detection, prosecution and conceal evidence of and profits from their crimes. At the same time, they take advantage of national boundaries to shield themselves from justice and law enforcement authorities.
As investigations into criminal activity involving large amounts of money these days generally show, the big fishes reside overseas and their network spreads to more than one country.
As developed countries elsewhere have discovered, there is a need to reconcile two seemingly contradictory goals – trade liberalisation and control of transnational criminal activities.
While most Asean treaties have been the initiative of the Asean secretariat, the proposed treaty, which will be discussed in Kota Kinabalu, is the initiative of the Malaysian A-G’s Chambers.
Gani said that he and his officers had looked at the 1990 United Nations Model Treaty on Mutual Assistance in Criminal Matters and the Harare Scheme in drafting their proposal.
The latter, which was approved by Commonwealth law ministers in 1986, is not treaty-based and envisages that all Commonwealth countries will enact complementary legislation enabling the provision by each country of the types of assistance set out in the Harare Scheme.
“We have also studied the 1947 Inter-American Treaty of Reciprocal Assistance for members of the Organisation of American States,” Gani said, adding that representatives from the US Embassy and the British High Commission will be present at the meeting.
Asked in what areas mutual assistance was being sought in the treaty, Gani said that, among others, it would cover the taking of evidence and statements, executing searches and seizures, and the freezing of assets.
“It will also provide for teleconferencing as you see taking place in the current trial of JI leader Abubakar Ba'asyir in Jakarta, Indonesia,” he said.
JI members Faiz Abu Bakar Bafana and Hashim Abas, detained under Singapore's own ISA, testified against their leader on Thursday from the island state via teleconferencing.
As for whether Asean member countries' mixed bag of common law and civil law traditions would be a problem, he said no, adding that the treaty would be subject to national laws.
“Even if we only get two members to sign, we will do it,” he said, when asked whether it was necessary for all 10 members to sign the treaty together.
If criminals can get a network organised, surely we, who have more to lose, can get together and sign a treaty?
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