PREVENTING CROSS BORDER BRIBERY WITHIN THE ASEAN ECONOMIC COMMUNITY

Transcription

1 MALAYSIAN ANTI-CORRUPTION COMMISSION (MACC) PREVENTING CROSS BORDER BRIBERY WITHIN THE ASEAN ECONOMIC COMMUNITY by : Deputy Commissioner Ahmad Khusairi Yahaya Director of Intelligence Malaysian Anti-Corruption Commission

2 Cross Border Crime Cross Border" or "transnational crime" defined as acts which violate the laws of more than one county. Cross Border Crimes are crimes that have actual or potential effect across national borders and crimes that are intrastate but offend fundamental values of the international community. Smuggling Human Trafficking Illegal Immigrant The criminal offense of intentionally and secretively bringing an item into a country without declaring it to customs officials and paying the associated duties or taxes, or of bringing a prohibited item into a country. All acts involved in the recruitment, abduction, transport, harboring, transfer, sale or receipt of persons, within national or across international borders, through force, coercion, fraud or deception, to place persons in situations of slavery or slaverylike conditions, forced labor or services, such as forced prostitution or sexual services, domestic servitude, bonded sweatshop labor, or other debt bondage." An illegal entrant being a person unlawfully entering, or seeking to enter, in breach of a deportation order or of the immigration laws and includes a person who has so entered

3 Issues & How Serious? The International Organization for Migration (IOM) estimated that in 2012, there were about 200 million emigrants from all over the world and most of the emigrants migrated through illegitimate crossed-borders immigration which is guessed of 20 to 30 million people (The International Organization for Migration Policy Development, IOM 2007, 2008). Firearms SMUGGLING Petrol Rice Drugs The Malaysian Border Protection Agency (Aksem), which is manning the country s borders, had noticed that drugs were fast becoming a commodity, with RM6 million worth of substances being smuggled in within the first month of the year. Goods Sugar Amin Mokhtar, 5 August 2016, Smugglers' paradise: Billions in contraband crossing our borders. New Straits Time Online. Diesel As for illegal firearms, we don t even have an estimate of how many there are but it was revealed in other reports that they could be smuggled into the country through 200 known lorong tikus or hidden entry points along Malaysia s porous border. Prostitution Labor TRAFFICKING SM. Mohamed Idris, 21 July 2016, Call for royal commission of inquiry on firearms. The Star Online. GRO Wildlife For the past five years, the illicit trade involving favourite contraband, such as cigarettes and alcohol (RM47 million), vehicles (RM46 million), firecrackers (RM7 million), diesel and petrol (RM3 million), and rice (RM2.7 million), is also thriving. The agency had seized RM105.7 million worth of those contraband at the nation s borders Amin Mokhtar, 5 August 2016, Smugglers' paradise: Billions in contraband crossing our borders. New Straits Time Online.

4 Malaysia Law Enforcement In The Border Min. of Domestic Trade Co- Operatives & Consumerism Royal Customs Malaysia Anti- Smuggling Unit / Border Control Agency Road Transport Department Involvement Immigration Department Police General Operations Force (Police)

5 Cross Border Crime and Corruption Organised trafficking cannot take place without corruption. Human trafficking occurs with the collusion of corrupt officials with criminal gangs. OECD, 2016, Human trafficking and corruption. While considerable steps have been taken to combat trafficking in persons, these have not comprehensively focused on the fundamental role that corruption plays in the trafficking process. The approach of addressing these two issues jointly coupled with better cross border co-operation, better enforcement and an increased focus on combatting corruption is key to effectively curb trafficking in persons OECD, 2016, Trafficking in Persons and Corruptions Breaking the Chain Highlights. OECD Public Governance Review. Trafficking in persons is one of the most lucrative forms of organised crime. Similarly to illicit trade in general, organised trafficking requires systematic corruption. OECD, 2016, Human trafficking and corruption.

6 Malaysia - Thailand Border Padang Besar, Songkhla Padang Besar, Perlis Tak Bai, Narathiwat Pengkalan Kubur, Kelantan Sungai Golok, Narathiwat Rantau Panjang, Kelantan Wang Prachan, Satun Wang Kelian, Perlis Sadao, Songkhla Bukit Kayu Hitam, Kedah Betong, Yala Pengkalan Hulu, Perak Bukit Bunga, Kelantan Ban Buketa, Narathiwat

7 MACC Power Section 7, Malaysian Anti-Crorruption Commission Act Function of officers of the Commission shall have the following functions: To receive and consider any report and investigate To detect and investigate any suspected offence, attempt, conspiracy To examine the practices, systems and procedures in order to facilitate the discovery of offences under this Act To instruct, advise and assist any person, on latter s request, on ways in which corruption may be eliminated To advise of any changes in practices, systems or procedure compatible with effective discharge of the duties To educate the public against corruption To enlist and foster public support against corruption

8 MACC Power In line with its existence as a single entity against corruption in Malaysia, MACC jurisdictions under the Malaysian Anti-Corruption Commission Act 2009 is dedicated to investigate and prevent any form of corruption and abuse of power. MACC Act 2009, also provides power to the MACC to investigate any offense under other acts listed as "Prescribed Offence" as follows: - An offense punishable under section 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 477A of the Penal Code; An offense punishable under section 137 of the Customs Act 1954; Offences under Part III of the Election Offences Act 1954; An attempt to commit any of the offenses referred to in paragraphs (a) to (c); or An abetment or conspiracy to commit a crime (as that term was defined in the Penal Code) any offense referred to in paragraphs (a) to (c), whether or not the offense is committed in consequence thereof.

9 MACC POWER - INTELLIGENCE PROCESS Information Received The stage of developing information via Contact Note and Intelligence envelope to a quality information. Contact Note & Intelligence Envelope Investigation Paper NFA credible information Project Paper The stage of analysing information developed for verification and further action recommendation. yes Intelligence Paper proceed Inspection Paper Profiling

10 PROACTIVE APPROACH / IBI CONCEPT MACC POWER - PROACTIVE INVESTIGATION PROCESS

11 MACC Past Operations

12 Ops Rainbow Information Information received saying that prevailing corruption by staffs of the Police, Customs, Anti-Smuggling Unit and Patrol Police in Rantau Panjang Immigration Complex and Anti-Smuggling Unit in Lubuk Stol Rantau Panjang. The enforcement officers received bribes between RM100 to RM200 from vans and lorries carrying goods from Thailand to Malaysia. This activities take place every day. Action Intelligence Division has launched Ops Rainbow. Outcome 10 arrests were made. 2 were charged under section 17 (a) of the MACC Act 2009 and both pleaded guilty.

13 Ops Rainbow Malaysia Thailand (CIQ Complex Rantau Panjang) General Operation Force RM10 Anti-Smuggling Unit Post Chabang Empat Salam Road Transport Deparment Inspection RM100 Immigration Inspection Movement without passport stamping Custom Inspection RM100 Anti-Smuggling Unit Inspection Rasuah RM20

14 Ops Licin 2 (Smooth) Information Information received saying that there were officers and staffs of law enforcement agencies such as the General Operations Force, the Royal Malaysian Police, Anti-Smuggling Unit, the Royal Malaysian Customs, the Immigration Department of Malaysia and the Ministry of Domestic Trade, Cooperatives and Consumerism Ministry on duty at the Malaysia Thailand border in Kota Putra (Durian Burung) and Bukit Kayu Hitam, Kedah requested and received bribes between RM to RM 4, from illegal store petrol and diesel business in Durian Burung, Kedah as an inducement not to take any legal action on the activity and sales and smuggling of gasoline and diesel oil to Thailand. Action Intelligence Division has launched an operation called Ops Licin 2 by placing an Undercover Officer (UCO) to work with illegal business of diesel / petrol in Kedah. Outcome 40 Arrests were made, including officers and staffs of Royal Customs Malaysia, Anti-Smuggling Unit, General Operations Force, Ministry.

15 Ops Licin 2 (Smooth)

16 Ops Licin 2 (Smooth)

17 Ops Tanker Information The owners of gas stations and mini pump were operating illegally in the Bukit Kayu Hitam was running the smuggling of subsidized diesel by lorries and pick-up Thailand. To facilitate and protect their activities, the payment of bribes on a monthly basis by middlemen (runner) to officials at the Ministry of Domestic Trade, Cooperatives and Consumerism Ministry and the Anti-Smuggling Unit, the Royal Malaysian Police Kedah. Action Intelligence Division has launched an operation called Ops Tanker. Outcome 10 arrests were made, including officers and staffs of Ministry of Domestic Trade, Cooperatives and Consumerism Ministry and the Anti-Smuggling Unit the Royal Malaysian Police Kedah.

18 Ops Tanker

19 OPS CLONE

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21 INFORMAL ASSISTANCE Collaboration Country/Agency(s): Offence: Independent Commission Against Corruption (ICAC), Hong Kong Accused did not declare his current and fixed savings Assistance Needed: Result(s): Status of Case: To seek confirmation of information on saving funds of accused in Hong Kong & Shanghai Bank (Hong Kong) ICAC Hong Kong has confirmed that accused has an account in Hong Kong & Shanghai Bank (Hong Kong) Accused was charged in the Kuala Lumpur Session Court, Malaysia

22 SUMMONS AND WARRANTS ACT 1971 Collaboration Country/Agency(s): Offence: Assistance Needed: Result(s): Status of Case: Corrupt Practices Investigation Bureau (CPIB), Singapore Accused was caught for offering bribe to the Head of Immigration on duty at Singapore's Tuas Checkpoint To arrest accused and issue Arrest Warrant which was issued by the Singapore Magistrate Court Accused was officially handed in by the representative of MACC to the CPIB Singapore Officers Accused pleaded guilty to both counts

23 MUTUAL LEGAL ASSISTANCE Collaboration Country/Agency(s): Offence: Assistance Needed: Result(s): Status of Case: Ministry of Justice, Japan; Federal Office of Justice, Switzerland and Independent Commission Against Corruption (ICAC), Hong Kong Accused committed breach of trust upon a property owned by Perwaja Rolling Mill & Development Sdn Bhd To obtain documents and evidence of several key witnesses in Japan, Switzerland and Hong Kong Documents and evidence of witnesses involved in Japan, Switzerland and Hong Kong were successfully obtained Accused was charged in Session Court, Kuala Lumpur, Malaysia Value of Gratification: USD24,724,920 million

24 MUTUAL LEGAL ASSISTANCE Collaboration Country/Agency(s): Offence: Result(s): Status of Case: Corruption Eradication Commission (CEC), Indonesia To trace a witness in Indonesia to attend a trial in Malaysia The witness managed to be traced in a remote village called Ponorogo, Jakarta The case which was postponed, is now able to be proceeded and is at present in proceeding

25 LAW ENFORCEMENT COOPERATION Collaboration Country/Agency(s): Offence: Assistance Needed: Result(s): Status of Case: Value of Gratification: Scotland Yard, United Kingdom The signing of Consultancy Agreement with an offshore company and the issue of a bond certificate for securing financial resources To take the testimony of two British witnesses Two British witnesses were identified and information was successfully obtained Accused were charged in Kuala Lumpur Session Court, Malaysia USD5 billion worth of bond

26 LAW ENFORCEMENT COOPERATION Collaboration Country/Agency(s): Offence: Assistance Needed: Result(s): Status of Case: Value of Gratification: National Anti-Corruption Unit, South Africa The suspect committed breach of trust for his personal investment To obtain several documents from financial institutions and interview several key witnesses in South Africa A number of documents were obtained from the financial institutions involved in South Africa. Several key witnesses were also interviewed Accused was charged on three counts USD12,944,984 million

27 JOINT INVESTIGATIONS AND SPECIAL INVESTIGATIVE TECHNIQUES Collaboration Country/Agency(s): Offence: Assistance Needed: Result(s): Status of Case: Anti-Corruption Bureau, Brunei Darussalam One syndicate using Malaysian registered vehicles involving smuggling of diesel to Sarawak, Malaysia Undercover Operation to obtain evidence Information were obtained including names and activities of Custom Officers involved 3 arrests were made

28 JOINT INVESTIGATIONS AND SPECIAL INVESTIGATIVE TECHNIQUES Collaboration Country/Agency(s): Offence: Assistance Needed: Result(s): Status of Case: Accused/Value of Gratification: Anti-Corruption Bureau, Brunei Darussalam Between 40 to 50 registered 4WD vehicles were involved in smuggling diesel almost daily from Kuala Belait, Brunei Darussalam to Miri, Malaysia To obtain information pertaining to records of 4WD vehicles Information were obtained including names and activities of Custom Officers involved. 42 arrests were made Variation of amounts

29 FUTURE COLLABORATION Collaboration Offence: Assistance Needed: The Link: WORLDWIDE Human Trafficking To obtain information pertaining to human trafficking Studies have shown that there is a link between corruption and human trafficking. In eradicating corruption, we may also eradicate human trafficking. This can only be done if there is International Cooperation. International Cooperation depends on the political will of governments.

30 Stories behind the MACC experiences: International agreements such as Memorandum of Understanding to help translate political attention to the problem into action to address the problem of corruption Maximising personal direct contact between officers in different countries Increased use of modern technology to expedite requests and assistance, coupled with using the most modern mechanisms in a resource effective manner. We are laying the groundwork for future success stories, and hope that, someday in the future, this relatively anti-corruption diplomacy may be viewed as the real turning point in the international fight against corruption

31 Issues and Challenges Involvement of various organisation with various roles in cross border crime range from public officials such as police, customs, border control, immigration services and other law enforcement agencies. Limitation of power in investigation and legal privilege. More than crime where in some instances it involves the state or country Limitation and barriers on information and communication in order to get clearer and wider view of the crime. The human factor cause such as personal greed and the level of integrity. Culture and environments that perceived smuggling and trafficking in some way has become a way of life The complex nature of the cross border crime; Corruption is a victimless crime which do not directly violate or threaten the rights of any other individual. It is a crime to the state Secretive by the nature of the work Criminals or syndicate are well financed and highly organised

32 Malaysia s Approaches and Solutions Operation by Enforcement Series of operation on Cross Border Crime by MACC with other enforcement agencies MOU / Bilateral Meeting In line with Article 48 of the United Nations Convention against Corruption (UNCAC), the MACC and NACC has taken the initiative to sign a Memorandum of Understanding (MoU) in This MoU agreement manifests the commitment of both institutions to foster long standing relation, where both parties pledged to support one another in the prevention of and fight against corruption, and to work together in fostering anti-corruption prevention measures. He also noted that the MACC and Thailand's National Anti-Corruption Agency (NACC) had a bilateral meeting for the first time in April, where both agencies agreed to increase the effectiveness in combating corruption along the Malaysia-Thailand border. 2 November 2015, First Bilateral And Working Group Meeting Between The Malaysian Anti-Corruption Commission (MACC) And National Anti-Corruption Commission (NACC) Of Thailand (22-23 October 2015). Inspection and Recommendations Inspection and Consultation Division had carried out an investigation into human trafficking in the country in "The MACC has found several weaknesses in terms of the safety control management system and procedures, and checks of people and vehicle movements along the Malaysia-Thailand border, especially in Kedah and Perlis."In MACC's view, if these weaknesses are not tackled holistically, it would open an opportunity for corruption," he said. B. Cheah, 4 June 2015, Recommendations made by MACC to curb human trafficking. The Sun Daily.

33 Malaysia s Approaches and Solutions Meeting (Task Force) With Agencies Based on these recommendations, Abu Kassim said he had chaired a task force enforcement agency to discuss preventive measures on human trafficking, as well as smuggling, with several senior officers from the Home Ministry, Domestic Trade, Consumerism and Cooperatives Ministry, the police, the Royal Customs Department, Immigration Department, National Security Council and Malaysia Maritime Enforcement Agency. B. Cheah, 4 June 2015, Recommendations made by MACC to curb human trafficking. The Sun Daily. New Agency & New Act The Malaysian Border Security Agency (Aksem) will enforce security control along the Malaysia-Thailand border under a special legislation that will be tabled in Parliament at the end of this year. Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi, who announced this, said the new Act would empower Aksem in enforcing the law pertaining to border security. 25 May 2016, New Act soon to tighten security at Thai border. The Star Online. Governments Cooperation Malaysia will take proactive measures and cooperate with Thailand to tackle several cross-border security issues in both nations. Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi said, in his meeting with his counterparts here, both Thai Deputy Prime Ministers Wissanu Krea-ngam as well as Prawit Wongsuwan, who is also Defence Minister, had agreed to give their full cooperation to Malaysian authorities in addressing dual citizenship and international transfer of prisoners, among others. Hana Naz Harun, 5 August 2016, Malaysia, Thailand agree to cooperate on cross border security issues. New Straits Time Online.

34 Recommendation of Solutions Strengthen the legal basis against corruption and cross border crime. It is important that national legislation on cross border crime is in line with international standards concerning the issues. Jointly addressing and investigating trafficking in persons and corruption with particular focus on at-risk sectors Facilitate international co-operation in the detection and investigation of cross border crime, including by creating a network of all law enforcement at border. To facilitate and promote information exchange and sharing on crime, based on established MOU. Strengthen liaison among law enforcement agencies between countries. Joint taskforce from agencies of two countries to perform inspection and consultation in tackling cross border crime. Jointly addressing and investigating cross-border crime and corruption with particular focus on at-risk sectors

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