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2007/ACT/WKSP1/005

Prosecuting High-Level Corruption

Submitted by: Malaysia

/ Workshop on Strengthening Cooperation Mechanisms in the Asia-Pacific in the Fight Against High-Level CorruptionLima, Peru29-31 October 2007

Prosecuting High Level Corruption

It is a great honor for me to be asked to address this event as a panelist on the topic entitled ‘Prosecuting High Level Corruption’. Before I begin, on the topic assigned to me this morning, I hope you will forgive me if I take this opportunity to reminiscence on the role of a Prosecutor, as a reminder of the importance of this function and then to offer a few thoughts on prosecuting High Level corruption

Prosecution is an honor but it requires talent and experience; it is a skill and some even say an art. Indeed, to be a prosecutor brings different responsibilities in different jurisdictions-but whatever the legal system-all prosecutors should uphold the principles of fairness and justice whilst incorporating the rule of law. All this, coupled with the determination and tenacity to ensure that criminals are caught and brought to book quickly and fairly. These principles lies at the heart of every prosecutor’s work whatever their nationality.

Regardless, of the basis of the criminal law system, whether it is the Roman Law, the Napoleonic Code or the Common Law, the prosecutor in almost all these systems is asked to represent the community. He or she is entrusted with powers and responsibilities. The prosecutor is asked to balance the exercise of these powers as a representative of the community and to use those powers to intervene in the lives of the individuals for the benefit of the community as a whole.

A prosecutor is the quintessential public interest lawyer. This, I believe is the most fulfilling career that one can have as a lawyer. He has no ‘client’ in the conventional sense, but acts impartially and objectively, yet in the public interest.

The prosecutor has vast resources at his disposal and the power this gives him must be exercised with a sense of proportion. He must not advance submissions he does not believe, nor must he conceal material that may assist the accused. It is no part of the prosecutor’s function to seek a ‘conviction at all cost’. No more can be expected of him than that he should present his case to the court fairly, intelligently and persuasively. Fairness by the prosecutor does not make him a ‘soft touch’. He must be as vigorous and determined as he is courteous in the presentation of his case. While he is at liberty to strike hard blows, he is ‘not at liberty to strike foul ones’. As Justice Sunderland explained in 1935 in the Supreme Court of the United States of America, the interest of the office of the prosecutor is ‘not that it shall win a case, but than justice has been done’.

Against this backdrop, we now turn to the challenges of prosecuting high-level corruption.

Corruption is not just an Asian problem, nor an African or South American problem. It is not a problem that is unique to any region or country. It is a global challenge.

World -wide countries have shown a growing recognition on combating global corruption and view it as a threat to development and prosperity of nations.

Corruption jeopardizes the integrity of world markets, the stability of political systems and the security of the international community. This pernicious crime impedes efforts to promote freedom and democracy, stymies economic growth and foreign investment, facilitates transnational crime and erodes public trust in the rule of law.

High-level corruption by senior public officials and politicians is a grave and corrosive abuse of power and the most insidious type of corruption. Lord Acton, a British historian, once said ‘ Power tends to corrupt; absolute power corrupts absolutely.’ Lord Acton was speaking of the individual choice-that as power grows, the power of the conscience declines and the ability to resist temptation is weakened.

The existence of high-level corruption by senior public officials and politicians is an indication that something has gone wrong in the management of the government office, whether it be federal, state or local. In this regard, it is a basic tenet that the government is not to be used for personal enrichment and the extending of benefits to the corrupt.

The prevention of corruption is essential not only to make government work for the intended purpose, e,g ensure that public officials are using their office to further the public interest and not to enrich themselves, but also to preserve public confidence in the democratic process. In this context, it would not be out of place to record the observations of the United States Supreme Court in United States vMississippi Valley Generating Co , 364 US, 520,562 [1961]

‘ A democracy is effective only if the people have faith in those who govern, and faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption’.

Ladies & Gentlemen,

It is a democratic tenet that everyone is equal under the law. However, this may not hold true when corruption suspects are prominent public officials, politicians or rich businessmen. According to the report of the technical workshop, on Coping with High-Profile Judicial Case[1]s, the success rate of prosecutions against senior government officials is still low. This, according to the report is true throughout the world even in countries that have enacted comprehensive anti-corruption legislation. The lack of success in this sector, according to the report is due to a myriad of factors. The Report[2] enumerates various factors, which I as a prosecutor, based onexperience would consider pertinent, as the reasons to the failings of prosecution of high-level corruption.

  • Institutional framework that is often unsuitable for coping with the complexity of corruption cases
  • Interference from governmental bureaus
  • The need to find a balance between the defendant’s rights and the prosecution
  • The impact of public interest and the media on the trial and the prosecution and the psychological pressures it brings with it[3]
  • The Judiciary
  • Lack of legislation against corruption of foreign public officials

These reasons whether viewed cumulatively or individually, remain fundamentally the same, regardless of the country.

Unsuitable Institutional provisions

Statutes, procedures, investigation, case-law, prosecution and judicial appreciation tend to be tailored to prosecution of petty corruption. They tend not to take into account the more sophisticated methods and subterfuge used by present day criminals in order to conceal or disguise their illicit activities.

Modern day corruptors use euphemisms such as ‘ commissions’ ‘donations’ ‘dignity’, ‘employment’, ‘levies’, ‘kickbacks’ and ‘ political funds’ to solicit or obtain corrupt monies and thereafter transfer the corrupt proceeds to financial safe havens. The lack of sufficient intellectual -capacity and training of law enforcement agencies and the judiciary outweighs the sophistication and complexity of corruption offences today. There is thus a pressing need for specialized training in areas such as, forensic accounting, cyber crimes, investment fraud, government procurement processes, and acceptable/ admissible undercover techniques and strategies.

Public figures and politicians under investigation are known to have persuasive powers, particularly among the public institutions previously under their control to prevent evidence or witnesses from being found. Willing witnesses to cooperate with prosecutors and investigators to unravel evidence may sometimes pose problems. On witnesses, countries should move towards confidentiality and immunity provision as fear of retaliation is a main disincentive for reporting on others’ corruption or coming forward in corruption trials. Many countries grant an informant confidentiality or anonymity. [4] Aware that citizens do not always trust guarantees for protection, certain countries have gone further, penalizing the disclosure of the informer’s identity or any information that leads to his discovery.

Witness protection laws and programs pursue the same aims as that discussed above but become more useful at a later stage of the criminal proceedings. To date, Hong Kong, China, Korea and the Philippines have enacted protection laws and programs for witnesses whose personal safety or well-being may be at risk. The challenge of a prosecutor is to maintain such safeguards.

Modern day legislators, investigators and prosecutors must realize that there should be a distinction drawn between ‘corrupt offences’ per se and ‘corrupt practices’. Corrupt practices are not confined to alleged or suspected offences against specific anti-corruption laws, but encompasses a broader range of conduct by public officials particularly, which may be regarded as conducive to corruption. Conduct here includes, blackmail committed by or through the misuse of office, offence of perverting the course of justice, public servant framing an incorrect document with intent to cause injury, public servant obtaining any valuable thing, without consideration, from any person concerned in any proceeding or business transacted by such public servant, public servants unlawfully engaging in trade, public servants unlawfully buying or bidding for property, influence peddling, influencing or negotiating appointments or dealing in offices and the offence of false accounting. In this context, anti-corruption agencies

must be provided with powers to investigate non-corruption criminal conduct, provided that such conduct unravels itself during the investigation of a corruption offence.

Interference from governmental bureaus

In addition, when investigating and prosecuting high-level corruption cases, law enforcement agencies and prosecutors alike, may often face interference from government or political leaders. Rather than being able to conduct the investigation and prosecution as they see fit, they

are obliged to follow orders that may influence the course of prosecution from their political masters who are aligned to the political powers. Here, there should a commitment by leaders of governments to ensure the investigations and prosecutions of corruption cases are conducted independently and free of any form of interference. Prosecutors and investigators should be given a free reign to decide on the course of investigation and prosecution and yet be scrupulously fair in their assessment of facts and processes.

The need to find a balance between the defendant’s rights and the prosecution

A romantic view of criminal law and criminal trials is that only the guilty will be charged, prosecuted and eventually convicted. However, most of us are only too aware that this is not necessarily always the case. There are reasons for this. Foremost, the asymmetry nature of the criminal justice system places unrealistic demands on prosecutors. Defence attorneys may pursue acquittals without regard to the truth and are subject to few ethical restraints. For example, defence attorneys generally are not bound to share evidence unfavorable to their client, but a prosecutor’s failure to share exculpatory material is a serious failing, likely to result in a conviction being reversed.

Some high-profile defendants do not shy from conflict; on the contrary they have the support of skilled lawyers and utilize lengthy appeals processes and other stalling tactics to wear down prosecutors and public opinion. In jury trials, the prominence of high-profile defendants

comes into further play. Juries tend to be swayed by articulate skills of defence lawyers and well-heeled and well-spoken defendants. Common defences of such accused include, the ‘corrupt acts’ as being for the well being of the country’s interest or corporation, vis-à-vis, it was necessary to defend the country against foreign competition, to secure a foreign bid in order to secure employment in the country or that ‘facilitation payments’ are an indispensable form of securing contracts.

In this respect, the challenge of a prosecutor is to maintain his professionalism, and his conduct must be beyond reproach[5]. Prosecutors should also strive as much as possible to humanize defendants in their own minds. They should remind themselves that the defendants are far from the formidable forces that they appear to be, and tackle the defences within the parameters of the law.

Codes of penal procedures of certain countries contain strict rules about the admissibility of evidence in court. Meant to protect the defendant’s rights, these rules sometimes constitute insurmountable obstacles to the prosecution of corrupt individuals. Certain countries have modified their rules to facilitate prosecution. Malaysia has expanded the types of evidence allowed in corruption cases, admitting hearsay and the contents of electronic communication as evidence, whilst, other countries[6] hold any public official with unexplainable wealth, liable.

The impact of public interest and the media on the trial and the prosecution and the psychological pressures it brings with it.

Investigations involving high profile defendants and politicians give rise to wide media attention. While this interest should be viewed positively as developing public awareness against corruption, it can cause serious obstacles to investigation and prosecution of high-level corruption cases. Such pressure grows with the way the media reports the investigation and prosecution. Following their own investigative mechanisms and set of ethics[7], journalists may inquire into cases themselves in order to get that first ‘scoop’ thereby disclosing sometimes confidential information to the public and thwarting investigation and prosecution. In reporting on trials and investigations,

journalists are known to prematurely comment on certain moves by the prosecution or investigation, which may influence the public’s perception of the case, thereby jeopardizing the principle of impartiality.

The decision to prosecute or not sometimes places undue-pressure on the prosecutor. All too often there is gratuitous comments by the media of ‘selective prosecution’ by the prosecution or the peddling of influence by certain personalities. What the media fails to realize is that sometimes, the practical realities of a trial outweigh the public interest factor. Denial of a crime of corruption by both parties creates enormous challenges for the prosecution to prove the wrongdoing. This denial is why corruption is sometimes called a ‘victimless’ crime,

since both parties are willing to engage in it with some type of accrued benefit.

Against these settings, issues like, the lack of cooperation by witnesses[8], missing witnesses, money trail gone cold[9], staleness of offence, irretrievable documentation, cost of prosecution and relevant case laws play a part in the prosecutor’s decision to prosecute or not. Unfortunately, the media are seldom made aware of these factors and reasons why a prosecutor has chosen not to prosecute a case or has taken a particular course in the running of a trial.

When dealing with such challenges, the prosecutor should also be given the rights to address the media on reasons why prosecution is not forthcoming for a certain individual or on a course taken by him or even seek recourse of court in the event the media reporting is seen as obstructing the fairness of a trial[10].

The Judiciary

An area that is seldom touched upon when discussing the problems of combating corruption is the role of the judiciary. How does it factor in, when discussing corruption?

The judiciary is an integral component in the fight against corruption. In the context of high -level corruption that involves politicians and senior public officials particularly, ideally, the judiciary must be seen to have enough independence, vis-à-vis the executive power and the necessary integrity, courage, legal intellect and impartiality when trying the case.

In this respect, according to the report Coping with High-Profile Judicial Cases[11], all too often we have heard reports of the judiciary being used as an instrument by one state figure against the other, or by one regime against another. These accusations distort public perception of the impartiality of the judiciary and in turn discredit investigation and prosecution. Countries committed to eradicating corruption should endeavor towards maintaining the principle that an independent judiciary is essential to the proper administration of justice.

To that end, one must hearken to the words of Alexander Hamilton, one of the framers of the United States Constitution, who said ‘ there is no liberty, if the power of judging be not separated from the influence of the legislative and executive powers…’.

An independent judiciary requires both that the individual judges are independent in the exercise of powers and that the judiciary as a whole is independent, its sphere of authority protected from the influence of other government actors. In the words of the Bangalore principles, judicial independence has both ‘individual and institutional aspects’.

This apart, judges should be trained in the current philosophy of extradition and mutual legal assistance regimes. All too often, judges have been known to be out of touch on the scope of treaties, conventions and legislation when adjudicating on requests for extradition and mutual legal assistance. Specialization in this area of the law is imperative within the judiciary and prosecutors, alike.

Lack of legislation against corruption of foreign public officials and officials of public international organizations

While on the topic of high- level corruption, it is imperative that mention is also made of those to those who contribute, pay, promise to pay bribes or give other undue advantage to foreign public officials or when foreign public officials themselves solicit or accept an undue advantage. Such practices undermine good governance and alter fair competition, globally. The United Nations Convention Against Corruption, namely Article 16[12], mandates that member countries adopt such legislative and other measures as may be necessary to criminalize such conduct.

Unfortunately, the response of certain countries towards ratifying the Convention or criminalizing such conduct is far from satisfactory. This failing, would impact on matters of extradition and mutual legal assistance when it comes to securing the return of such public officials to the country where the offence of corruption took place or obtaining any form of assistance within the scope of mutual assistance in respect of the said offence.

Why?

The obstacle here would be the requirement of dual criminality that is required, by certain countries in matters involving extradition and MLA legislation. As was pointed out by the Kimberly Prost [13], this issue of dual criminality is particularly thorny in cases involving illicit, unjust enrichment or bribery of foreign public officials, since it is not an offence per se in many countries.