RAISING THE WHITE FLAG THE EFFECTS OF THE UNITED NATIONS CONVENTION AGAINST CORRUPTION ON EXTRADITION AND MUTUAL LEGAL ASSISTANCE IN THE PHILIPPINES

Fay Irene L. Gurrea (JD'12)

ABSTRACT

Clever and ingenious are the ways in which Corruption seeps and masks itself in society, and fighting it has to be equally, if not more, innovative. As new opportunities to pursue wealth and power abound, so do new ways to maneuver them illicitly. With today's technology and fast-paced lifestyle, pocketing and concealing illegal wealth has become a piece of cake, especially now that the proceeds of Corruption, and the offenders themselves, can cross borders almost instantaneously. Recognizing this, and the need of States to combat Corruption through mutual cooperation, the United Nations in 2003 adopted the United Nations Convention Against Corruption or the "UNCAC." The Philippines recognized the same ideals in 2006 when it ratified the UNCAC as part of its efforts to combat Corruption. One of the primary objectives of the UNCAC is to facilitate International Cooperation between States. In doing so, the UNCAC mandatorily provides that State-Parties shall cooperate in criminal matters relating to Corruption, primarily through Extradition and Mutual Legal Assistance. Extradition and Mutual Legal Assistance are instruments of International Cooperation wherein States assist each other in investigating and bringing to trial persons suspected of having committed transnational crimes on the basis of treaties, customary practice and national laws. Extradition and Mutual Legal Assistance, however, are granted only pursuant to a treaty or convention. As of the end of 2011, the Philippines only has Extradition treaties with thirteen countries, and Mutual Legal Assistance treaties with eight countries. Thus, with respect to other countries that the Philippines has no treaty or agreement with, International Cooperation remains a far-fetched realty. 

Now, the UNCAC offers a stark solution. By allowing the Convention to be used as the legal basis for international Cooperation, the 159 State-Parties to the Convention can now cooperate with each other without resorting to the cumbersome treaty-making process. As a State-Party to the Convention, the Philippines is tasked with the responsibility of ensuring its laws are compliant to the Convention, particularly with the International Cooperation aspect of the agreement. However, with regard to Extradition, the Republic of the Philippines has made a reservation declaring that it does not consider the Convention as a legal basis for cooperation on Extradition with other States. With regard to Mutual Legal Assistance, the Philippines has no implementing legislation, making the UNCAC of no legal force and effect.In complying with its obligations set forth in the Convention, and in promoting the interest of best practices for International Cooperation, thePhilippines' reservation must be formally withdrawn, not only because it is incompatible with the object and purpose of the treaty, but also because its reasoning is illogical, and because it goes against the Philippines' other treaty commitments. Further, in order to comply with its obligation to expedite International Cooperation procedures and to simplify evidentiary requirements, the Philippines' Mutual Legal Assistance protocols must be supplemented by the enactment of legislation. Without the proper legislation, our anti-corruption agencies would be lacking the teeth necessary to curb corruption in the transnational level. These means of combating Corruption, in the form of International Cooperation, are instrumental in serving justice to transnational criminal offenders, which have grown in number since the prevalence of modern transportation and technology. Unless the Philippines allows itself to breach its international obligations, impair its Financial Action Task Force standing, and become a safe haven for corrupt offenders, sufficient measures must be taken in the here and now to prevent and prosecute Corruption, before it is too late. In the words of former U.N. Secretary General Kofi Annan, one thing is certain: If crime crosses borders, so must law enforcement.