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:: ADVOCATING FOR THE
RATIFICATION OF THE U.N. CONVENTION AGAINST CORRUPTION |
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Senate Ratifies UNCAC: A Bright Spot
for Anti-Corruption Work in Philippines
(November 14, 2006)
On November 6, 2006, the
Philippine Senate ratified the U.N. Convention Against Corruption
with an approval vote of 17-0. November 6 was a glorious day for
anti-corruption advocates like the Transparency and Accountability
Network.
Senator Miriam Defensor-Santiago,
Chair of the Senate Committee on Foreign Relations, sponsored the
Convention in the Senate floor. Senator Edgardo Angara co-sponsored
the treaty and urged the other Senators to immediately ratify the
Convention. In less than one hour, the Convention passed three
readings and was thereby declared ratified and ready for transmittal
to the United Nations.
The Philippines becomes a
state party to the Convention 30 days after the instrument of
ratification is received by the U.N. Secretary-General. This is
timely for the first Conference of State Parties which will happen
on December 10-14 in Amman, Jordan. The Philippines, as a state
party, will have the opportunity to actively participate in
the formulation of implementation mechanisms of the UNCAC.
TAN is hopeful that the
UNCAC will strengthen anti-corruption efforts in the Philippines
with the active participation of civil society groups.
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Background
In its resolution 55/61 of 4 December
2000, the General Assembly recognized that an effective
international legal instrument against corruption, independent of
the United Nations Convention against Transnational Organized Crime
(resolution 55/25, annex I) was desirable and decided to establish
an ad hoc committee for the negotiation of such an instrument in
Vienna at the headquarters of the Centre for International Crime
Prevention, Office for Drug Control and Crime Prevention. The text
of the United Nations Convention against Corruption was negotiated
during seven sessions of the Ad Hoc Committee for the Negotiation of
the Convention against Corruption, held between 21 January 2002 and
1 October 2003.
The Convention approved by the Ad Hoc
Committee was adopted by the General Assembly by resolution 58/4 of
31 October 2003. The General Assembly, in its resolution 57/169 of
18 December 2002, accepted the offer of the Government of Mexico to
host a high-level political signing conference in Merida for the
purpose of signing the United Nations Convention against Corruption.
The Assembly invited all States to be represented at the Conference
at the highest possible levels of Government.
Convention highlights
Prevention
Corruption can be prosecuted after
the fact, but first and foremost, it requires prevention. An entire
chapter of the Convention is dedicated to prevention, with measures
directed at both the public and private sectors. These include model
preventive policies, such as the establishment of anticorruption
bodies and enhanced transparency in the financing of election
campaigns and political parties. States must endeavour to ensure
that their public services are subject to safeguards that promote
efficiency, transparency and recruitment based on merit. Once
recruited, public servants should be subject to codes of conduct,
requirements for financial and other disclosures, and appropriate
disciplinary measures. Transparency and accountability in matters of
public finance must also be promoted, and specific requirements are
established for the prevention of corruption, in the particularly
critical areas of the public sector, such as the judiciary and
public procurement. Those who use public services must expect a high
standard of conduct from their public servants. Preventing public
corruption also requires an effort from all members of society at
large. For these reasons, the Convention calls on countries to
promote actively the involvement of non-governmental and
community-based organizations, as well as other elements of civil
society, and to raise public awareness of corruption and what can be
done about it. Article 5 of the Convention enjoins each State Party
to establish and promote effective practices aimed at the prevention
of corruption.
Criminalization
The Convention requires countries to
establish criminal and other offences to cover a wide range of acts
of corruption, if these are not already crimes under domestic law.
In some cases, States are legally obliged to establish offences; in
other cases, in order to take into account differences in domestic
law, they are required to consider doing so. The Convention goes
beyond previous instruments of this kind, criminalizing not only
basic forms of corruption such as bribery and the embezzlement of
public funds, but also trading in influence and the concealment and
laundering of the proceeds of corruption. Offences committed in
support of corruption, including money-laundering and obstructing
justice, are also dealt with. Convention offences also deal with the
problematic areas of private-sector corruption.
International cooperation
Countries agreed to cooperate with
one another in every aspect of the fight against corruption,
including prevention, investigation, and the prosecution of
offenders. Countries are bound by the Convention to render specific
forms of mutual legal assistance in gathering and transferring
evidence for use in court, to extradite offenders. Countries are
also required to undertake measures which will support the tracing,
freezing, seizure and confiscation of the proceeds of corruption.
Asset recovery
In a major breakthrough, countries
agreed on asset-recovery, which is stated explicitly as a
fundamental principle of the Convention. This is a particularly
important issue for many developing countries where high-level
corruption has plundered the national wealth, and where resources
are badly needed for reconstruction and the rehabilitation of
societies under new governments. Reaching agreement on this chapter
has involved intensive negotiations, as the needs of countries
seeking the illicit assets had to be reconciled with the legal and
procedural safeguards of the countries whose assistance is sought.
Several provisions specify how
cooperation and assistance will be rendered. In particular, in the
case of embezzlement of public funds, the confiscated property would
be returned to the state requesting it; in the case of proceeds of
any other offence covered by the Convention, the property would be
returned providing the proof of ownership or recognition of the
damage caused to a requesting state; in all other cases, priority
consideration would be given to the return of confiscated property
to the requesting state, to the return of such property to the prior
legitimate owners or to compensation of the victims.
Effective asset-recovery provisions
will support the efforts of countries to redress the worst effects
of corruption while sending at the same time, a message to corrupt
officials that there will be no place to hide their illicit assets.
Accordingly, article 51 provides for the return of assets to
countries of origin as a fundamental principle of this Convention.
Article 43 obliges state parties to extend the widest possible
cooperation to each other in the investigation and prosecution of
offences defined in the Convention. With regard to asset recovery in
particular, the article provides inter alia that "In matters of
international cooperation, whenever dual criminality is considered a
requirement, it shall be deemed fulfilled irrespective of whether
the laws of the requested State Party place the offence within the
same category of offence or denominate the offence by the same
terminology as the requesting State Party, if the conduct underlying
the offence for which assistance is sought is a criminal offence
under the laws of both States Parties".
Implementation mechanisms
The Convention needs 30 ratifications
to come into force. A Conference of the States Parties is
established to review implementation and facilitate activities
required by the Convention.
(http://www.unodc.org/unodc/crime_convention_corruption.html)
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