COMBATING CORRUPTION IN THE CRIMINAL JUSTICE SYSTEM

COMBATING CORRUPTION IN THE CRIMINAL JUSTICE SYSTEM

The American Bar Association Asia Law Initiative (ABA) in cooperation with the Anti- Corruption Agency Malaysia (ACA), the Malaysia Anti-Corruption Academy (MACA) and the International Bar Association (IBA) proposes the second in a series of seminars intended to address the topic of ‘Combating Corruption In The Criminal Justice System’

to be produced at the MACA facility in January, 2007.

Goals: Concluding that the integrity and effectiveness of any anti-corruption regime must include measures to prevent and, when necessary, investigate and prosecute corruption within the criminal justice system itself, the organizers intend to produce a training seminar reviewing several of these measures as they relate to national judicial, prosecutorial and investigative authorities. In broad terms, the seminar will study the methods used by various governmental agencies in preventing, investigating and prosecuting members of the judiciary, prosecution and law enforcement establishment regarding matters of professional corruption. More specifically this event will follow-up on those issues initiated during the first in this series of seminars (held at MACA in May, 2006) by additionally investigating the role of codes of professional conduct and their place in combating corruption in national criminal justice systems. Further the content of each topic area will study issues raised and questions left unanswered following the first seminar in this series.

Methodology: The seminar, to be held in the English language, will consist primarily of presentations by experts in the fields of: international law; internationally endorsed codes of professional conduct; corruption prosecutions; the management and operation of independent anti-corruption agencies and internal affairs investigations of governmental agencies. The presentations will be made through panels; each panel to be composed of speakers on the discreet topic featured in the particular topic area assigned that panel. A question and answer/discussion session will follow each presentation segment wherein the moderator and presenters will engage with the attendees in a frank discussion of those issues raised by the respective presentations.

Audience participation and discussion will be an integral part of the event.

Written submissions on agenda topics by participating countries will be welcomed.

Inasmuch as a great deal of the information provided and many of the presenters

participating will be from Member Economies of the Asia-Pacific Economic Cooperation

(APEC), those actions agreed in the APEC Course of Action On Fighting Corruption and

Ensuring Transparency, thereafter reaffirmed in the Santiago Commitment, featured in

the UN Convention Against Corruption and reiterated in the 2006 Hanoi ACT meeting,

will broadly define the nature and the content of the seminar. The program is intended to

be one in a series that promote the goal of APEC Economies to work together to intensify

regional cooperation to deny a safe haven to officials and individuals guilty of corruption,

those who corrupt them and their illicitly-acquired assets, and to prosecute those engaged

in bribery and corruption, including in international business transactions.

Topic Areas: The following areas will be subjects of presentations during the course of the program the general theme of which is:

The Investigation and Prosecution of Judicial Corruption, Corruption within the Law Enforcement Agencies and the Prosecution Services

Recognizing that any discussion of combating corruption in the criminal justice system must address the dangers of dishonesty in all sectors, the seminar will address the prevention, investigation and prosecution of corruption in the investigative and prosecution services of national governments as well as in the judicial sector. To this end, the seminar will be addressed by experts in the fields of prosecution and

investigation and the same topics will be addressed separately as they apply to all sectors.

Investigation and prosecution: The program will concentrate on the methods, policies and laws used by investigative agencies and prosecutors in pursuing members of the law enforcement and judicial components of the public service sector suspected of being involved in corrupt practices. Experts will present on both the investigation and prosecution aspects of those cases where judges or other court personnel, criminal investigators and/or prosecutors are suspected of using their offices for improper gain or with improper motive.

Investigation: In an effort to provide insight into the methods utilized by various law enforcement agencies in the investigation of corruption, experts will present on topics concerning: investigative techniques authorized by law in their respective jurisdictions, i.e., electronic surveillance (both consensual and non-consensual), undercover operations, forensic accounting techniques, public cooperation mechanisms, witness protection, provision of immunity to turncoats, plea bargaining, etc. The presentations will make reference to cases actually investigated in various jurisdictions where the illicit activities took place and will detail the methods used to bring the particular cases to conclusion.

The presentations will focus on pointing out the methods most successfully employed as well as exposing those techniques which proved unhelpful. Additionally, in order to put this topic in perspective, a brief overview of the laws regulating investigations and the pertinent statutes dealing with corruption will be explicated as well.

Prosecution: An expert presenter, in the person of a prosecutor and/or an investigative magistrate who has pursued corruption cases through the courts of their various

jurisdictions will offer a detailed description of those experiences in specific corruption

cases. This presentation will be offered to demonstrate how the results of a corruption

investigation are presented before the courts in which they are litigated. Particular

attention will be paid to demonstrating problems that arise as a result of specific

investigative techniques, witness difficulties, documentary evidence, electronic

eavesdropping, consensual monitoring, undercover operations, ‘sting operations’,

immunity from prosecution for judges and prosecutors, including the scope of immunity

and the procedure for its lifting, etc. An effort will be made to present examples from the

common law system as well as other legal paradigms.

The independent anti-corruption agency: Members of anti-corruption agencies will be called upon to present papers that discuss the powers and jurisdiction vested in those agencies to prevent corruption in all of the criminal justice sectors. In so doing, the concepts of professional codes of ethics and professional societies with disciplinary authority will be discussed. Where applicable, the separate codes of professional conduct attaching to law enforcement authorities, judges, prosecutors, etc. will be explicated and distinguished. Mechanisms such as ‘asset declaration’, rotation of personnel, random assignment of cases and measures designed to deal with conflicts of interest will also be discussed. Additionally, as an investigative force, the anti-corruption agency concept of self-monitoring will be reviewed along with the jurisdiction of these agencies to advise in matters of corruption prevention.

Internal investigation divisions: The program will also include presentations from members of the internal investigation divisions of investigative agencies dealing in matters of corruption as well as general law enforcement. Thus methods of monitoring the performance of individual investigators on a routine basis through to those measures used in investigating suspicious behavior on the part of law enforcement personnel will be reviewed and analyzed. Case studies of investigations and the subsequent

prosecutions of police officials will be presented with a view to determining ‘what works and what doesn’t’. Correspondingly, the pitfalls and strong points of various prosecution techniques will be explored, i.e., sting operations, entrapment defenses, informant

testimony, co-defendant testimony, etc.

Office of professional responsibility: Members of those offices charged with the monitoring and disciplining of prosecutors will be asked to detail the regimen by which corruption in this sector is prevented and, when necessary, punished. Likewise,

prosecution offices specifically charged with the servicing of an independent anti- corruption agency will be studied to determine those measures used in the internal policing of their offices. The presentations will deal with the selection processes used in employing prosecutors, their training, continuing legal education, monitoring of

performance and disciplining, etc. Instances of prosecutorial misconduct will be analyzed from cases of extreme negligence or incompetence to cases of actual unlawful conduct.

Anti-corruption legislation: In an effort to identify the legal framework that exists for dealing with corruption in the national arena, an expert in anti-corruption legislation extant within the region will be called upon to describe the particular aspects of the criminal and/or administrative law commonly referenced in corruption cases within particular national systems. Where special legislation has been enacted to deal specifically with any of the species of corruption dealt with in this seminar, that legislation will be highlighted and analyzed.

The role of codes of professional conduct in combating corruption: In the recent past

various international stakeholders have participated in the construction, promotion and

implementation of codes of professional conduct directed to the needs of the basic

components of the criminal justice system; i.e., for the judiciary, the Bangalore

Principles; for the prosecution, the The Standards of Professional Responsibility and Statement of the Essential Rights and Duties of Prosecutors; and for law enforcement authorities, the Cannons of Police Ethics. In order to complete an understanding of how such codes may assist in combating corruption in the ranks of the judiciary, prosecution and investigative authorities experts from the International Association of Chiefs of Police, the United Nations and the International Association of Prosecutors will be called upon to review the respective codes, explain the practical experiences that nations

adopting them have shared, discuss the successes and failures that have been demonstrated in their uses and outline plans for the future development of each.

Moot court exercises—Trial in the Common Law System – Juge d’instruction in the Civil Law System. Given that the culmination of all investigative efforts – in either the

common law or civil law systems—is the exoneration or prosecution of the subjects of the investigation, the program will include a moot court exercise demonstrating: 1) a small portion of the trial of a corruption case in the common law or adversarial system and 2) an example of the functioning of an investigating magistrate in the civil law or inquisitorial system. It is the object of these two exercises to: 1) acquaint those from one or the other of these systems, or those from a mixed system, with some of the procedures in their foreign counterparts; 2) demonstrate the differences between the manner in which evidence is gathered and utilized in alternative systems; 3) demonstrate the use of the factual results of an investigation in a trial and 4) to compare the results. To this end, both professional prosecutors, defense attorneys and a magistrate will participate in this portion of the program.

The common law portion of the exercise will involve the use of a fictitious fact scenario mimicking those commonly found in corruption cases involving dishonest prosecutors or police authorities. The scenario will contain sufficient information upon which to base the testimony of a witness who will be put on the witness stand and examined and cross- examined by the prosecutors and defense attorneys respectively. The person simulating the witness will be previously acquainted with the facts of the case, as will the lawyers.

The exercise will be spontaneous and representative of a real life situation. Each side, defense and prosecution, will have a limited time to conduct the direct, cross and re-direct examination as is appropriate. Following the exercise, the participants will be engaged in a question/discussion session with the lawyers and the witness.

The civil law portion of the exercise will involve the same fact scenario and the same witness however it will be conducted as such an examination would be conducted before and investigating magistrate. While such an examination is not the analogue of the appearance of a witness in a trial situation, the comparison of the two procedures will most fully illustrate the differences between the two systems in the matters of greatest interest in this seminar. Following this exercise, the participants will be engaged in a question/discussion session with the magistrate and the witness.

Participation & Venue: It is anticipated that the seminar will be offered to a regional audience of interested professionals coming from the ranks of the judiciary, law

enforcement and prosecution services. The list of participants is expected to be the result

of suggestions made by the ACA, ABA and the IBA. MACA will also participate in providing expert presentations in the suggested topical areas from amongst the ranks of its personnel and the government of Malaysia.

The Seminar will take place on the premises of MACA.