Country Paper on Effective Methods to Combat Transnational Organized Crime in Criminal Justice Processes (Philippines)
Total Page:16
File Type:pdf, Size:1020Kb
116TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS COUNTRY PAPER ON EFFECTIVE METHODS TO COMBAT TRANSNATIONAL ORGANIZED CRIME IN CRIMINAL JUSTICE PROCESSES (PHILIPPINES) Ricardo Tiuseco Pamintuan *,** I. FACTUAL SETTING The Philippines, which has not attained genuine economic growth in the past, Transnational organized crime (TOC) is certainly fits this profile. Additionally, its a serious global menace that has evolved location and thousands of mostly into a sophisticated and even legitimate unsecured islands, with rugged coastlines means of perpetuating criminal activities and friendly townsfolk, facilitate and dynasties. It continues to threaten the infiltration and provide strategic and ideal future, the very existence, of every man, drop-off and transshipment points for woman, and child because of its innate TOCGs. voraciousness. No one is spared, not the Americas, not the European Community, II. TRANSNATIONAL ORGANIZED especially not the developing countries and CRIME IN THE PHILIPPINES emerging democracies in Asia and Africa. It destabilizes economies and creates a A. The Current Situation façade of stability and progress to conceal TOC has not been given much attention the erosion of the moral fabric of modern by past administrations due in large society on which it feeds. Globalization and measure to preoccupation with domestic the growing popularity and application of problems still evident to this day, among the internet has made it possible for them, uneven distribution of wealth, trade transnational organized crime groups imbalance, and the protracted though (TOCGs) to expand their activities at an isolated insurgency in the south. This has alarming rate under a cloak of legitimacy been compounded by the traditional notion and to establish bases of operations beyond that crime prevention lies within the their normal and traditional confines. purview of domestic law enforcement. States with high poverty levels are Thus, international covenants particularly vulnerable to such incursions notwithstanding, TOCs have not been as because of the staggering amounts these seriously addressed in the Philippines as groups are willing to invest in employing in other countries. As a member of the offshore managers and in gaining the United Nations, the Philippines has goodwill of local law enforcers and officials. participated in the various conventions of the UN Congress on the Prevention of * Court Attorney VI, Supreme Court of the Crime and the Treatment of Offenders, and Philippines, Philippines has become party to such positive measures **Submitted in partial compliance with the as the Milan Plan of Action, the Caracas requirements of the 116th International Group Declaration, and the Guiding Principles for Training Course on Crime Prevention (The Crime Prevention and Criminal Justice in Administration of Criminal Justice) under the aegis the Context of Development and a New of the Japanese Government, 21 August-17 International Economic Order. November, 2000, UNAFEI, Tokyo, Japan. 183 RESOURCE MATERIAL SERIES No. 58 For some time, Philippine leaders have such wide coverage, they can accordingly been aware of the guidelines and policies be charged, tried and penalized under on the prevention and control of organized Philippine laws, as long as no question of crime, judicial independence, extradition, territorial jurisdiction or diplomatic mutual assistance, transfer of proceedings, immunity is raised. Still, the Philippines and treatment of prisoners, among other is wanting in legislation on some forms of matters. Unfortunately, there has been a TOC like money laundering11, human dearth of relevant local legislation on these trafficking, environmental crimes,12 card subjects, and the ones enacted have been fraud, computer-related crimes,13 stolen fairly conservative. auto and auto parts trafficking, maritime piracy, and violations of intellectual Existing criminal laws, however, may be property rights. The latter, described in made applicable against TOCGs as long as 1995 by the FBI as the “crime of the 21st the crime involved or any of its components Century,” is itself a tool for money falls within the definition of any criminal laundering,14 but there is no existing local statute and meets the requirements of legal mechanism for making such Philippine principles on territoriality. The determination or dealing with a given Revised Penal Code (RPC), the main source identified situation. of criminal law in the Philippines since1 January 1932, enumerates specific felonies Without belaboring the obvious, the fact that may be committed by any person. is, even the terms “transnational organized Similarly, special laws on specific crimes crime” and “transnational organized crime not identified or defined in the RPC, such groups” have no exact definition under as laws on narcotics,1 graft and corrupt existing Philippine laws. The only known practices,2 illegal possession or definition of TOC is found in a paper by a manufacture of firearms and explosives,3 police senior superintendent who declared illegal gambling,4 illegal fishing,5 illegal that “there is an emerging consensus logging,6 piracy and highway robbery,7 defining transnational crime as an offense hijacking,8 car theft,9 and white slavery,10 that has an international dimension and may also be committed, directly or involves (the) crossing of at least one border indirectly, by members of TOCGs. With before, during and after the fact. Therefore, 1 Republic Act No. 6425. (Henceforth, any reference 11 Although the Philippines is not a member of the to Republic Acts shall be indicated as “R.A.”). Financial Action Task Force (FATF) on Money 2 R.A. No. 3019. Laundering, it is enjoined to adopt the “Forty 3 Presidential Decree No. 1866. (Henceforth, any Recommendations” of the FATF drawn up on 1990 reference to Presidential Decrees shall be indicated and revised in 1996. as “P.D.”). 12 For instance, in the case of the Philippines, how to 4 R.A. No. 3063 (on horse racing); P.D. No. 449 (on protect biodiversity, how to deal with the cockfighting); P.D. No. 483 (on game fixing); P.D. unauthorized dumping of toxic wastes, how to No. 510 (on slot machines); and P.D. No. 1306 (on ensure the safe use of chemicals on food products jai alai). and raw materials, or how to police marine 5 P.D. No. 704. sanctuaries within Philippine waters. 6 P.D. No. 330. 13 The efficacy of the recently enacted E-Commerce 7 P.D. No. 532. Law (R.A. No. 8792) is yet to be determined. 8 R.A. No. 6235 14 Organized Crime and Product Counterfeiting, 9 R.A. No. 6538. <http://www.ari.net/iacc/economic.html> 20 May 10 Batas Pambansa Blg. 186. 2000. 184 116TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS it is a mutual concern of at least two crimes.”19 Two years later, Marcos created affected countries that they must jointly the Peace and Order Council (POC),20 address.”15 This definition begs the whose functions and responsibilities question, to say the least. To fully duplicated those of the NACAC. Because understand the nature of TOC and TOCGs, of this, E.O. No. 829 was passed on 11 a resort to other sources is inevitable. The September 1982, abolishing the NACAC INTERPOL defines TOCG as: “Any with the POC absorbing its functions, enterprise or group of persons engaged in duties, and responsibilities. The National a continuing illegal activity which has as Law Enforcement Coordinating Committee its primary purpose the generation of (NALECC) was also constituted to profits, irrespective of national coordinate the activities of various law boundaries.”16 This definition, criticized by enforcement agencies. In such seminal Italy, Spain, and Germany for leaving out form, however, the POC and the NALECC the requirement of an organized command were nothing more than toothless structure, and by the U.S. and Canada for organizations that posed no significant omitting the requirement of using violence threat to the scattered TOCGs operating to attain the group’s goals, was later altered in the country. to read, “Any group having a corporate structure whose primary objective is to From that time until the ascent to the obtain money through illegal activities, presidency by Fidel V. Ramos, Marcos’ often surviving on fear and corruption.”17 cousin and former police chief, there was absolutely no forward movement in the B. Legal Frameworks for Combating battle against TOC. Within his first year Transnational Organized Crime18 in office, Ramos reorganized the NALECC 1. The Early Experiments twice. In 1999, the NALECC would Early attempts to combat TOC were undergo yet another organizational shift mostly of local application and, in more as the government intensified its TOC ways than one, required further legislation programme. Meanwhile, Ramos issued to be effective. In 1979, at the height of E.O. No. 246 on 18 May 1995, martial law, former President Ferdinand reconstituting the National Action E. Marcos established a National Committee on Anti-Hijacking as the Committee on Anti-Organized Crime National Committee on Anti-Hijacking and (NACAC) to formulate government plans, Anti-Terrorism (NACAHT). implement actions, and control all activities “relative to the five pillar Realizing that the task of preventing or approach to the National Criminal Justice eradicating TOC on its own was going to System, particularly on organized be very difficult, the Philippines sought to fight this war in alliance with its neighbors. 15 Lucas V. Cauton, Jr., Transnational Crime: The New In a grand show of regional solidarity, nine Challenge to Law Enforcement, Transnational Ministers of Interior/Home Affairs and Crime Bulletin, Vol. 1, No. 1, 2000, p. 86. Representatives of ASEAN Member 16 First International Symposium on Organized Countries21 converged in Manila, on 20 Crime, St. Cloud, France, May 1988. December 1997 for the 1st ASEAN 17 Transnational Organized Crime, <http:// Conference on Transnational Crime and www.alternatives.com/crime/define.html> 20 May signed the ASEAN Declaration on 2000. 18 See Appendix A for the Timeline of the Philippines’ 19 Letter of Instruction No.