On 4 December 2000 the United Nations General Assembly (UNGA) in its resolution 55/61 decided to commission an ad hoc committee for the negotiation of an international legal instrument to combat corruption effectively.
The committee was stationed at the head office of the Center for International Crime Prevention, Office for Drug Control and Crime Prevention, Vienna.
Negotiations on the text of the UNCAC took about two years. The UNGA adopted the UNCAC by its resolution 58/4 of 31 October 2003, and accepted the offer of the Government of Mexico to host a high level political conference in Merida for signing the UNCAC.
Pakistan has been active partner in the process of negotiations that culminated in the UNCAC.
RATIONALE: Governments or Anti Corruption Agencies alone cannot accomplish a successful drive.
Active participation of the societies at large has become the sin qua non of the struggle against corruption.
Since corruption is no longer a matter of municipal boundaries but a transnational phenomenon affecting all societies and economies, international co-operation has become all the more essential to prevent and control it.
The field for fight against corruption therefore, needs to be extended beyond the public sector domain, domestically, and across the international boundaries, for active participation of the world community.
Moreover, recovery of illicitly acquired assets, and extradition of those who loot national wealth and flee their countries, from abroad demands enhanced mutual legal assistance amongst the family of nations.
Members of the family of nations must, therefore co-operate with one another to prevent and curb the menace.
PURPOSE: Purpose of the convention is to promote integrity, accountability, and proper management of public affairs and properties; strengthen measures to prevent and combat corruption; enhance international co-operation and technical assistance in the fight against corruption; and make the parties duty bound to extend mutual co-operation to one another to facilitate: recovery of assets acquired through illicit practices, and extradition of the corrupt who hides abroad after committing plunders.
PREVENTIVE MEASURES: The UNCAC suggests measures like effective anti-corruption policies that promote the participation process, and reflect the principles of the rule of law; to evaluate the relevance of legal instruments and administrative measures currently in force within the jurisdiction of the signatory countries with a view to bringing them at adequate level to effectively combat corruption.
To implement such anti corruption policies through bodies equipped with necessary material resources and specialised staff, enjoying full independence in the performance of their functions; to strengthen their systems for recruitment, promotion and retirement of civil servants and other non-elected public officials, based on principles of efficiency and transparency like merit and aptitude etc; provide for adequate provisions for the selection and training of public office holders, specially those holding position that are vulnerable to corruption; to bring remuneration and pay scales at equitable levels; and to develop codes of conduct for the public officials in order for them to perform their functions correctly.(The General Assembly resolution number 51/59 of 12 December 1996 prescribes the International Code of Conduct for Public Officials that can be followed as a model)
CRIMINALIZATION OF NEW OFFENCES: The UNCAC provides for adoption of legislative measures to establish, (trading in influence, abuse of functions or position, illicit enrichment, and concealment of the illicit origin of the property) as criminal offences, when committed intentionally.
These will include the offering to, and acceptance by a public official, of undue advantage for him/herself or another person, in order that the public official or the person abuses his or her real or supposed influence for obtaining that undue advantage.
The proposed legislative measure will also be applicable to directors or persons working in any capacity for a private sector entity.
MONEY LAUNDERING: The Convention provides for adoption by the Contracting states such legislative measures to establish as criminal offences acts of commission or omission aimed at laundering the proceeds of crimes.
Pakistan, as other countries, is suffering from practices of money laundering, a process that involves hiding, moving and investing the proceeds of corruption. Even legal money becomes illegal if moved in a manner violating a country of financial regulations or its foreign exchange controls.
For example, any foreign exchange transaction out of Pakistan with out having it reported to the State Bank, render the exported money illegal.
Measures are being taken to counter the practices of money laundering but those who are involved in the process change their methods and techniques to counter these measures, hence the need to devise counter-counter measures.
The Financial Action Task Force (FATF) has noted a combination of sophisticated techniques such as engagement of legal experts to conceal the true ownership of illegal money.
FATF is a multilateral body with 31 countries and two international organisations as its members, and about twenty observers. Its mandate is to set standards and develop policies to combat money laundering.
The recommendations of the FATF have been recognised by the World Bank and IMF as international standards for combating money laundering and terrorist financing.
Money laundering techniques breach the financial regulations to a considerable extent with the result that large scale embezzlement finds its way beyond the territorial jurisdiction.
Domestically, an undocumented economy and the practices like hawala or alternate value transfer system facilitate transfer of the money abroad.
Moreover, some countries have consumer friendly laws which offer safe destinations to proceeds of crimes.
The Government of Pakistan is fully alive to the issue, has been actively participating in a series of events arranged by the FATF and the Asia Pacific Group on Money Laundering (APG), and is also a member of the APG.
On special invitation of APG secretariat, National Accountability Bureau successfully participated in the Mutual Evaluation of South Korea, alongside experts from USA, Australia, and Singapore.
The Bureau also became an "Intervener" for mutual evaluation of Indonesia during APG annual meeting held in Brisbane.
A Joint Judicial Co-operation Working Group (JJCWG) established in January 2002 is already working to streamline co-operation between Pakistan and UK, in the fields of mutual legal assistance, extradition, terrorism, and anti-corruption legislation.
Pakistan has already drafted a money laundering law which is currently under vetting of the Ministry of Law.
Debates on merits and demerits of the Convention may raise concerns amongst public opinion makers.
There may emerge opposite extremes as well. But on balance, the Convention that might have passed through hard debates during the process of negotiations will make a very good working international instrument.
SOME ASPECTS OF THE CONVENTION THAT ARE MOST LIKELY TO GENERATE INTERESTING DEBATE MAY BE IN THE FOLLOWING AREAS:
EXTRADITION:
There are certain rational considerations why an alleged corrupt should be extradited to the requesting state. If crimes are to be controlled, the states giving the asylum should either initiate proceedings against the criminal or hand him over to the state wherein he has committed the crime.
Ideally the accused should be tried in the state in whose territory the crime has been committed.
In view of its greater interest in punishing the offender, and easier availability of evidence.
Hence, the importance of extradition but due to slow and expensive procedures involved in it, extradition is resorted to only in criminal cases of national importance.
The UN Convention provides for enhanced co-operation between the parties on the issues of extradition of accused persons, and mutual legal assistance required in the investigation, prosecution and transfer of the sentenced person, and of assets acquired illicitly.
Chapter IV of the Convention provides for an elaborate regime of international co-operation in order to lessen the complications inherited in the process of extradition and transfer of corrupt and proceeds of corruption.
STATE SOVEREIGNTY: The sovereignty of a state is subject to the rules of international law as much as an individual's freedom is subject to the municipal law of the country to which he belongs.
The reason is that a state is part of the greater international community and to maintain law and order in the international dealings it has to subject itself to the dictates of the law of the nations.
By doing so it loses nothing but as much part of its supreme power as will be surrendered by other contracting party to the same treaty or convention as this will be based on mutual and equal surrender of a part of their supreme powers.
Besides, the Public International law is a law that is between Sates and not above them, and which draws its strength from the consent of the nations.
RATIFICATION: When a treaty or convention specifically provides that only signing by the plenipotentiaries of the states will not be sufficient, and that the states should formally ratify it, the treaty or convention will not have any legal effect or sanction unless ratified by proper authority under the constitutional provisions of the state.
There is an important principle behind this condition. First of all, the spirit of democracy demands that the concerned government should consult public opinion either in parliament or elsewhere before taking upon itself international obligations.
Secondly, the time between signing of the treaty and its ratification, provides an opportunity to the governments to consider the terms of the treaty carefully; and facilitate the enactment of some necessary legislation as some treaties may require realignment of the relevant municipal laws of the states.
There is neither any legal compulsion nor any moral duty on a state to ratify a treaty signed by its representatives. Besides, by virtue of its sovereignty, a state may withhold the ratification but since such a refusal is a serious gesture it ought not to be resorted to lightly.
However, withholding ratification is valid if the plenipotentiary has exceeded his power while signing, or if any deceit has been practised on him, or even if the performance of a treaty obligation becomes impossible. If ratification is withheld, it may either invalidate the whole treaty or it may not be applicable to the non-ratifying state only.
The former scenario may happen when ratification by a particular state is a condition for ratification by other parties to the treaty.
The UNCAC will come into force immediately after its having been ratified by not less than 30 signatories. But country specific enforcement of the Convention will still remain contingent upon its ratification by the country concerned.
SETTLEMENT OF DISPUTES: Amicable means known to international law and transactions for settlement of international disputes are several.
International treaties and conventions, as normal practice, stipulate as to how the parties should settle their disputes emerging out the dealings between them. Article 40 of the UN Charter prescribes the means for settlement of dispute.
These are negotiations; good offices and mediations; conciliation; arbitration; and judicial settlements through the International of Court of Justice (ICJ).
Of these, negotiations are the simplest means. Article 66 of the UNCAC stipulates that the contracting parties should settle their disputes concerning the interpretation or application of the of the provisions of the Convention through negotiations; any such dispute that cannot be settled through negotiations within a reasonable time, shall be submitted for arbitration.
In case the disputing states are unable to arrive at an agreement until six months of submission of their case to the arbitration, any one of the disputing state may request the ICJ in accordance with the Statute of the Court.
The UNCAC allows that a contracting party may declare that is does not consider itself bound to follow the course envisaged in Article 66 but in that case the other contracting parties also shall not be bound to fulfil their obligations under Article 66 in relation to any such contracting party.
DENUNCIATION: International Treaties may terminate on expiry of the period if there is specific stipulated time mentioned in the treaty or in case of treaties imposing no continuing obligations; they cease to operate on the fulfilment of the objective.
The parties to a treaty are its masters. International law does not lay any difficulty in their way if by mutual consent they wish to terminate the treaty.
In some other cases if the treaty grants a unilateral right of denunciation to one or all the contracting states in case of failure of certain essential conditions, the treaty comes to an end on the happening of such a contingency.
Article 103 of the UN Charter specifically provides that in the event of a conflict between the obligations of the members of the UN and their obligations under any other agreement, their obligations under the Charter shall prevail.
Some observers are of the opinion that the states cannot withdraw from the treaty by notice.
There is an exception to this, which is applicable when there are vital changes of circumstances. The parties seeking release from the obligations are justified. Such withdrawal is supported by many writers on the principle rebus sic stantibus.
This means that in case any unforeseen change of circumstances an obligation should peril the existence or vital development of a party, such party should have the right to demand release from the obligation.
This doctrine corresponds to the doctrine of frustration known to private law of contract. Article 70 of the Convention allows a State Party to denounce it by written notification to the Secretary General of the UN who is the designated depositary.
The menace of corruption has affected nearly all countries of the world. The demand for transparent governance has become louder and clearer.
Efforts are being made on domestic, regional as well as international levels to prevent and control the menace.
All these efforts reflect, on the one hand, the gravity of the situation, and on the other hand, the resolve of the world community to chase the curse.
With the signing of the UN Convention the anti-corruption drive has been internationalised.
Pakistan has already travelled some way towards implementing its provisions. The National Anti-Corruption Strategy (NACS) has been approved by the Government which is now in its implementation stage.
The recommendations of NACS, as far as the awareness and prevention aspects are concerned, being in phase with those of UNCAC, if transformed into action will provide a good opportunity to strengthen the efforts aimed at eradicating the curse of corruption.
Pakistan must benefit, by exploiting to the fullest, not only the existing bilateral and multilateral arrangements but should also explore the possibilities of establishing new relationships using the provisions of UNCAC as a launching pad.
Domestically, the Government has already rightly anchored NACS in its Poverty Reduction Strategy Paper (PRSP).
In addition to this, the Government has to provide the first line support by demonstrating a matching political will at the top leadership level.
The availability of financial resources will also remain the quintessential for effective implementation of the recommendations of NACS.
On the international level, the resolve of the world community is clear from the fact that so far 105 countries of the world have signed the UN Convention, thereby demonstrating their consent to combat corruption, and cut the culprits to the quick. But the world community has to continue the stride against corruption with an indomitable determination, and until the curse is defeated ruthlessly.
The success of the game is dependent upon the level of understanding of the issues, vigilance, and agility of the players to respond to challenges.
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