Mutual legal assistance

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The last-minute decision of Malaysian authorities in Sabah to stop the repatriation of Manuel Amalilio, for still undetermined reasons, is a setback for the Philippine effort to render justice to the victims of the P12-billion Aman Futures scam. But it is also a test for the Association of Southeast Asian Nations’ Treaty on Mutual Legal Assistance in Criminal Matters—a landmark regional measure that had been championed and sponsored by Malaysia itself.

Whether the setback is merely “temporary,” as President Aquino’s spokesperson said, or permanent in nature remains to be seen. We cannot see any valid reason for Malaysia to refuse to return Amalilio, the alleged mastermind of the scam that swindled 15,000 Filipinos, to the Philippines: He holds a Philippine passport, has a Philippine birth certificate, and ran an allegedly fraudulent operation in the Philippines. If he does not fall under the scope of the Asean treaty, or of Malaysia’s Mutual Assistance Criminal Matters Act of 2002, then who does?

But it is not only in the Philippines where political power or great wealth can sometimes trump the black letter of the law.

It is incumbent on the Department of Justice, then, to press for the return of Amalilio at the soonest possible opportunity. Malaysian authorities have already done us a favor: They managed to arrest Amalilio early last week, months after he had fled to Sabah. At least we now know where he is. But having been charged with the mere carrying of “fake Malaysian documents” (in the words of National Bureau of Investigation Director Nonnatus Rojas), Amalilio cannot be detained by the Malaysian police indefinitely. The NBI should post an agent back in Kota Kinabalu, if it hasn’t already, to keep tabs on Amalilio.

The DOJ and the NBI must continue to work closely with the Malaysian authorities. That Amalilio was at the airport, ready to board the plane, gives the lie to allegations that shoddy paperwork by the NBI was the reason Malaysia did not allow him to leave. The Malaysian police had to turn him over to the NBI first before he could leave his place of detention; he wouldn’t have been at the airport if the paperwork had not cleared. At least on the level of police-to-police cooperation, then, the work of coordination went smoothly, and represents the Philippines’ best source of leverage.

Now diplomacy must be added to the mix. The Philippines can start by reminding Malaysia of its role in crafting the Asean’s mutual assistance treaty on criminal matters. Almost every milestone related to the treaty showed Malaysia’s pivotal involvement. It was Malaysian in inspiration:  “The idea for a region-wide multilateral Mutual Legal Assistance in Criminal Matters Treaty for like-minded ASEAN Member Countries was proposed by Malaysia” in 2002.  The original draft was prepared by Malaysian officials. “Malaysia took the initiative to prepare a text of the proposed Mutual Legal Assistance in Criminal Matters Treaty for the consideration of like-minded ASEAN Member Countries.” Two key meetings of the chief government lawyers of Asean member-countries to work on the treaty were hosted by Malaysia, in 2003 and 2004. Finally, the treaty was signed, and the secretariat established, in Kuala Lumpur in 2004. (The quotes and dates are from the official portal of the Attorney General’s Chambers of Malaysia.)

We realize that the treaty expressly excludes extradition in its scope of assistance, and that the treaty secretariat records the Philippines as not having ratified the treaty yet. We note, however, that the treaty’s first guiding principle is for Asean countries to “render to one another the widest possible measure of mutual legal assistance in criminal matters, namely investigations, prosecutions and resulting proceedings.” Surely fraud on the scale of the Aman Futures swindle is also a crime in Malaysia? Then Kuala Lumpur (and Kota Kinabalu, too) should realize that assisting Manila in the lawful repatriation of a Filipino citizen, accused of defrauding other Filipino citizens, is precisely the reason why mutual legal assistance treaties exist in the first place.

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