Mutual Legal Assistance Agreements (MLATs)with the People’s Republic Of China And The United Kingdom

March 6, 2012

Mr. President, Distinguished Colleagues:
I have the honor to seek approval of Senate Resolution No. 732 under Committee Report No. 130, entitled “Resolution Concurring in the Ratification of the Treaty on Mutual Legal Assistance in Criminal Matters between the Republic of the Philippines and the United Kingdom of Great Britain and Northern Ireland,” and Senate Resolution No. 734 under Committee Report No. 132, entitled “Resolution Concurring in the Ratification of the Treaty between the Republic of the Philippines and the People’s Republic of China Concerning Mutual Legal Assistance in Criminal Matters.”
The Situation
At the outset, it bears stressing that transnational criminal offenses are oftentimes fueled by pervasive corruption plaguing governmental institutions worldwide.
A certain way to defeat this prevalent institutional evil is to remove its incentives, by depriving the perpetrators and their cohorts of benefits from such crime.
However, it is easier said than done. Corruption and the flow of its proceeds transcend international borders. It is a reality that sadly helps perpetuate contemporary criminal acts.
Other serious crimes that cut across sovereign boundaries include trafficking in persons, illegal sale of weapons, sale and smuggling of prohibited narcotics, and kidnapping, among others. Many of these crimes currently happen in an unprecedented scale in our region. Human trafficking occurs at the rate of 225,000 victims from Asia per year. From the Philippines alone, no less than 2,000 are believed to be trafficked annually.
The financial rewards of these transnational crimes are commonly laundered, in order to disguise their illicit sources. According to estimates by the International Monetary Fund (IMF), “laundered proceeds from criminal acts amount to 2-5% of the world’s GNP annually or $1.5 trillion.”
Given the more porous characteristic of our borders, criminals have unscrupulously used our resources in engaging in their affairs, while successfully evading the reach of our laws.
As these groups and individuals introduce methodical ways of carrying out their crimes, so should governments address these realities by supplementing domestic legislations with unparalleled international cooperation in the areas of criminal prosecution and law enforcement.
It is in these realities that the crux of the Mutual Legal Assistance Treaties rests.
Objective and Benefits
The deterrent effect of our domestic legislations against criminal acts depends on how well we enforce our laws.
A Mutual Legal Assistance Treaty, abbreviated as “MLAT”, provides a legal framework for mutual assistance by states in the investigation and prosecution of criminal offenses and in legal and judicial proceedings related to criminal matters.
Legal assistance includes the taking testimony of witnesses, provision of documents and items of evidence, exchange of criminal records, execution of searches and seizures, location and identification of witnesses and tracing and confiscation of proceeds of crimes, as well as freezing of assets.
Absent an MLAT, assistance by other states is generally limited to service of documents or letters rogatory, and can be provided only on the basis of reciprocity, and on an ad hoc basis; thus MLATs are important because they make assistance compulsory and obligatory.
Given the increasing frequency and expanding territorial scope of transnational crimes, MLATs have become necessary and vital tools for the Philippines to secure evidence, witnesses and proceeds of such crimes, which are actually beyond our physical and legal jurisdiction.
Our International Obligation
MLATs also provide for a mechanism for the Philippines to comply with our commitments at the multilateral front, such as the UN Convention Against Corruption (UNCAC)1 and the Convention for the Suppression of Financing of Terrorism,2 which obligate State Parties to render mutual legal assistance in the investigation and prosecution of offenses defined under said Conventions.
Hence, pursuant to the policy of promoting justice and upholding the rule of law, the Philippines has entered into MLATs with various bilateral partners. Today, we have MLATs in force with Australia, the United States, Hong Kong, Switzerland, Republic of Korea and Spain . 4
Demonstrating the Value of MLATs
These MLATs have demonstrated their value as crime fighting tools.
The MLAT with the United States, for instance, was the basis for the return of $100,000.00 in the Gen. Carlos Garcia case. It was also said MLAT that allowed Ms. Gracia Burnham to return to the Philippines to testify against Abu Sayyaf members charged with kidnapping in the Dos Palmas Island Resort case. The MLAT with Hong Kong, on the other hand, allowed the Ombudsman to acquire bank documents relating to charges against government officials. We have also relied on the MLAT with Switzerland in our search for illegally acquired wealth and the subsequent recovery of such laundered assets and funds.
In addition to high-profile cases, MLATs also afford legal remedies otherwise unavailable to ordinary litigants under our existing laws and rules of procedure.
The MLAT with China
The MLAT with China was proposed by China in 2000. Negotiations and signing of the treaty were done on the same year, and China ratified it in 2001. It complements the Philippine-China Extradition Treaty4 and the proposed Transfer of Sentence Persons Agreement.
The MLAT with China includes assistance on obtaining judicial or official records, lending of exhibits, obtaining and providing expert evaluations, conducting judicial inspections or examination of sites or objects, and notifying results of criminal proceedings and supplying criminal records.
Assistance may, however, be refused or postponed if the subject offense is not punishable under the laws of both Philippines and China. It may also be refused or postponed if the request would impose excessive burden on the Requested Party, breach confidentiality, lack substantial connection with the case, or relate to the prosecution of a person who could no longer be prosecuted if the offense had been committed in the territory of the Requested Party.
The MLAT with the United Kingdom
The MLAT with the UK was first proposed by the Philippines in 2007 and negotiations were held in 2009. UK ratified it in 2011. The MLAT complements the Philippine-UK Extradition Treaty, which is currently under consideration by the Committee on Foreign Relations. Negotiations are also underway for a Transfer of Sentenced Persons Agreement.
Aside from the standard forms of assistance mentioned earlier, the UK MLAT also includes provisions on asset sharing and return of embezzled public funds to the Requesting State.
It also provides discretionary grounds for postponement or refusal of assistance, specifically when the subject of the request is political or military in nature; when it discriminates against a person or endangers his safety; will result in double jeopardy; when it is likely to prejudice an investigation, criminal proceeding, national security or national interest of the Requested State; or is otherwise inconsistent with the Requested State’s domestic law.
Finally, the UK MLAT allows for spontaneous information, which allows the Philippines or the UK to provide information on criminal proceedings or investigations, even without any request from the other country.
Mr. President,
Sustainable progress against corruption, money laundering, and transnational crimes requires political commitment, effective law enforcement, criminal justice capacities, and international cooperation.
The fight against corruption is not confined within borders. The battle against terrorism does not fall under the exclusive domain of developed nations. Action against transnational crime obviously requires international action.
Normative frameworks for international cooperation against corruption, crimes, terrorism, and transnational crimes have been adopted by the Philippines. It is time to translate these into decisive weapons through MLATs that will help us acquire information and evidence, that conform with our standards. This, Mr. President, is key to our campaign against corruption. This is of paramount importance to our law enforcement efforts.
I therefore respectfully urge the Senate to concur in the ratification of these treaties.
[1]PH deposited its Instrument of Accession to the UNCAC on 8 November 2006. Article 46 states that “States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention.”
[2]PH deposited its Instrument of Accession to the Terrorism Financing Convention 07 January 2004. Article 12 states that “States Parties shall afford one another the greatest measure of assistance in connection with criminal investigations or criminal or extradition proceedings in respect of the offences set forth in article 2, including assistance in obtaining evidence in their possession necessary for the proceedings.”
[3]Dates of Entry into Force: Australia (1993), the United States (1996), Hong Kong (2004), Switzerland (2005), Republic of Korea (2008) and Spain (2008).
[4]The PH-China Extradition Treaty entered into force on 12 March 2006.