Mutual legal assistance (MLA) refers to the concept of countries mutually agreeing to gather and exchange information in an effort to enforce public or criminal laws. MLA is the formal process by which one State requests another State to exercise its coercive powers or to take steps to obtain evidence that must be admissible in a criminal trial. MLA requests are issued to countries and are received from foreign countries – and designated authorities are required to cooperate and provide required information, often in collaboration with other justice sector actors and law enforcement agencies. These requests can vary – from detention, to sharing of information, to recording statements before judicial authorities and production orders to financial institutions or companies.
Fundamental concepts relating to mutual legal assistance and extradition
International Cooperation between States is governed, primarily, through treaties amongst them. Treaties are the most formal vehicle for States to cooperate in the fields of MLA and Extradition. Such treaties can take the form of multilateral treaties – wherein multiple State parties agree to cooperate with one another. The examples include the United Nations Transnational Organized Crime (UNTOC) and the United Nations Convention Against Corruption (UNCAC), which notes “[any offence falling within the remit of the provisions of this convention] will be deemed to be included as an extraditable offence in any extradition treaty existing between States parties. “
Other agreements take the form of bilateral treaties through which two States tailor the requisite terms and conditions. Pakistan is a party to such bilateral treaties which include agreement with countries as Sri Lanka, Turkey, Kazakhstan, etc.
One mechanism through which such cooperation may be extended is through provisions of domestic law which have a transnational element and grant the State the authority to deal with such incoming requests. Thus reviewing a country’s domestic law is integral if there is an absence of a treaty framework between two countries, either multilateral or bilateral. Therefore, domestic law can help in two ways: directing in terms of implementation of international treaties and forming a basis for international assistance in the absence of a treaty. Such examples include, in particular, Kazakhstan Chapters 55 and 56 of the Criminal Procedure Code or the Extradition Act, 1972 and National Accountability Ordinance, 1999 in Pakistan, Mutual Legal Assistance Act in Kenya, Mutual Assistance in Criminal Matters Act, 1987 in Australia etc.
The principle of reciprocity has its footing in the relations of States with respect to matters of international law and diplomacy. Reciprocity is thus a covenant between the Requested State to provide such assistance that is likely to be provided by the Requesting State, if the Requesting State was asked to do so. For instance, if State A requests that a perpetrator is extradited from State B, and State B obliges, later, State A should honor any extradition requests by State B. At times, this principle is codified in treaties and domestic law. Other times, particularly in common law states, this is based on courtesy and not an obligatory principle.
The UNTOC, however, specifically obliges States parties to adhere to this principle pursuant to Art. 18(1). As such, all parties to the UNTOC must abide by this principle when it comes to matters of international cooperation in criminal investigations within scope of the Convention.
Mutual Legal Assistance Framework
The MLA framework can be utilized in the form of bilateral treaties or multilateral treaties. The benefit of such an MLA framework allows the use of received evidence in accordance with the law of the Requested State which in this case would be the Code of Criminal Procedure, 1898 and Qanun-e-Shahadat Order, 1984.
Although the Anti-Terrorism Act, 1997 (ATA) contains no such provisions, the Anti-Money Laundering Act, 2010 (AMLA) does codify such provisions. Section 27 allows the investigating authorities under the Act to request a contracting State, subject to the permission of the head of the investigating agency, for evidence. Further, sub-section 27(3) of the Act deems such evidence to be a part of the investigation and thus removing any encumbrances that may exist in respect to utilizing informal methods of cooperation as enunciated above.
Contrary to the informal methods of Cooperation between Law Enforcement Authorities in different jurisdictions, the AMLA also provides for making a request for the attachment, seizure, and forfeiture, etc. of property in a Requested State pursuant to Section 30.
International Legal Framework on MLA
The UNTOC is the broadest instrument for international cooperation provided that there is not a bilateral agreement between States. The object and purpose of the UNTOC is to achieve international judicial cooperation against transnational organized crime. The word transnational connotes something that extends or operates beyond national boundaries. Thus, the UNTOC serves as an effective tool in combating criminal activities such as money-laundering, illicit trafficking and the growing links between the transnational organized crime and terrorist crimes.
The primary applicability of the UNTOC would be where there is an absence of bilateral MLAT. The operative provisions in this respect include both Extradition and Mutual Legal Assistance
Article 18(3) of the U NTOC al lows for a wide array of cooperation and includes:
(a) Taking evidence or statements from persons;
(b) Effecting service of judicial documents;
(c) Executing searches and seizures, and freezing;
(d) Examining objects and sites;
(e) Providing information, evidentiary items and expert evaluations;
(f) Providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records;
(g) Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes;
(h) Facilitatingthevoluntaryappearanceofpersons in the Requested State Party;
(i) Any other type of assistance that is not contrary to the domestic law of the Requested State Party
In addition, an MLAR which may be issued under the UNTOC shall contain, as per Art.18(15):
(a) The identity of the authority making the request;
(b) The subject matter and nature of the investigation, prosecution or judicial proceeding to which the request relates and the name and functions of the authority conducting the investigation, prosecution or judicial proceeding;
(c) A summary of the relevant facts, except in relation to requests for the purpose of service of judicial documents;
(d) A description of the assistance sought and details of any particular procedure that the Requested State Party wishes to be followed;
(e) Where possible, the identity, location and nationality of any person concerned; and
(f) The purpose for which the evidence, information or action is sought.
United Nations Convention against Corruption (UNCAC)
Another international convention which may be integral to international cooperation is the UNCAC, which was promulgated to combat and prevent corruption. It is capable of regulating MLA requests in the absence of a bilateral treaty amongst States as per Article 46. Article 48 encourages States to cooperate closely so as to establish channels between them in order to facilitate the rapid exchange of offences covered by the Convention.
International Convention for the Suppression of the Financing of Terrorism (ICSFT)
In the absence of a bilateral framework, States party to the ICSFT convention, including Pakistan, may rely upon Article 12(5), which mandates the provision of assistance in criminal investigations in the absence of a bilateral framework or another multilateral framework.
The UNSCR as a binding UN instrument which must be implemented by States in good faith pursuant to Special Recommendation I of the FATF. Operative paragraph 2(f) of the Resolution reads as follows:
To afford one another the greatest measure in assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessaryforthe proceedings.
In addition, the Resolution provides a legal basis for many such actions that can be taken as the legal basis for international cooperation. With respect to the freezing and confiscation of assets as expounded in Special Recommendation V and FATF Recommendation No. 38, the Resolution’s Operative paragraph 1(c) may be used as a legal basis by State authorities. However, this obligation is one that is not aimed directly at international cooperation. Rather, international cooperation could be seen as a subset of the broader obligation of freezing and confiscating any and all assets belonging to terrorists or such entities.
However, if both operative paragraph 2(f) and 1(c) are read conjunctively, that interpretation is capable of constituting a basis for requesting another State for M LA.
Finally, the international cooperation regime must be seen as that which imposes broader obligations which outweigh obligations of a more specific nature. For instance, for the sake of international cooperation, a State should not refuse an MLAR on the basis of the principle of bank secrecy when the request concerns an offence of a grave nature.