toshimaru ogura on Thu, 1 Aug 2002 10:37:02 +0200 (CEST)


[Date Prev] [Date Next] [Thread Prev] [Thread Next] [Date Index] [Thread Index]

[Nettime-bold] Fw:Encroachment of Principles of International Human Rights ByGlobalizing Law Enforcement


Dear all,

We in Japan have just issued new statement against globalizating law
enforcement issue. Your suggestions and comments are welcome.

I think we should watch FATF of OECD carefully that have a lot of
dangerous tendencies against privacy and civil liberty.
http://www.fatf-gafi.org/index.htm

toshi
NaST
((((((((((^0^)))))))))
toshimaru ogura
ogr@nsknet.or.jp
toshi@jca.apc.org
((((((((((^0^)))))))))

=======================================================
Japanese Lawyers’Statement On Encroachment of Principles of
International Human Rights By Globalizing Law Enforcement
======================================================

Contents

1  Introduction
2 Accelerating Globalization of Law Enforcement by Way of International Treaties
3 Paralyzed Check-Ups of National Parliaments or International Civil Societies on Human Rights
4 Violation of Principle of Auto-determination and International Principles of Human Rights
5 International Convention against Organized Crimes, adopted by UN in 2000
1) Harmonization of Specific Techniques in Criminal Investigation with Human Tights Safe-guards
2)  Control over Crime Genetic Organizations and Right to Self-Determination and Free Speech
3)  Counter Measures against Money Laundering and Protection of Right to Counsel
6   Review Processes of FATF 40 Recommendations
1)  Heavier Duties to Identify Customers or Inform in Financial Transaction
2)  Gatekeeper Control

Civil Society Concerned about Globalizing Law Enforcement
Prof. Osamu Niikura, Aoyama Gakuin University
Prof. Toshimaru Ogura, University of Toyama
Yuichi Kaido, Esq.
Yukio Yamashita, Esq.

Contact: Prof. Osamu Niikura
oniikura@als.aoyama.ac.jp

---------------
1  Introduction

We are Japanese lawyers who have been working for Japan’s
ratification of the International Covenants on Civil and Political
Rights and on Economic, Social and Cultural Rights, and for
introduction of International Law of Human Rights into our soil.

As lawyers in action, we are fully aware of the fact that
counter-measures against trans-border organized crimes and terrorism
are put on the agenda for urgent needs by the international community.
But on the other hand, some of these measures may affect or even
encroach on the basic principles of penal law enshrined by modern
societies or internationally admitted principles of human rights.
This is particularly anxious about the newly conceived policies
against such crimes or terrorism by the International Convention
against Organized Crimes or a review of the 40 recommendations of
Financial Action Task Force (FATF) in OECD.  We believe firmly that
international protection of human rights should be an important object
to be achieved by the international community as a whole, and that any
newly conceived crime policy must be in perfect compatibility with
such principles.

2  Accelerating Globalization of Law Enforcement by Way of International Treaties

Japanese people have been attacked by a wave of criminalizing
legislations for reinforcing law enforcement practices in Japan, which
are all backed up by international treaties or other international
agreements.  These trends have grown stronger after 9.11.

In August 1999, three bills on measures against organized crimes
including a law on authorized interception of communication contain
omnibus control against organized crimes along with counter measures
against money laundering.

In 2002, the Japanese Diet adopted two other bills: one requires
customers identification in financial transaction, and the other
extends controls over financing terrorists.  These two bills were also
inspired by the UN Treaty on Control over Financing Terrorists and the
corresponding recommendations of FATF.  Furthermore, the International
Convention against Transnational Organized Crimes and EU Treaty on
Cyber Crimes are going to be put on the agenda for ratification and
domestic legislation.

As review of FATF 40 recommendations are going on in view of stronger
counter measures against organized crimes, the Government of Japan
will seemingly propose a bill, which aims at controlling
“gatekeepers.”  Then financial companies will be imposed of much
severer obligations to report, restriction will be imposed upon
lawyers’ obligation of silence (that is client’s right, in return,
to ask secretly an advice from his/her attorney), and lawyers will be
obliged to report their client’s activities to financial supervisory
authorities. 

3  Paralyzed Check-Ups of National Parliaments or International Civil
Societies on Human Rights

These trends cited above is nothing but a global wave of criminalizing
legislations, grand designs of which are set up at the meetings of G7
or G8, OECD, EU, Council of Europe, UN, and so on by States
bureaucrats, who are members of law enforcing authorities, or police
officers or public prosecutors, in the industrialized countries.
These trends are accelerated since the incidence of 9.11 or financial
scandals such as evidenced by the collapse of WorldCom.

These trends have their source in a basic desire, which tends to grasp
in hand of national law enforcing authorities each and every flow of
manpower and money, because we are living in a global economy.  For
the global economy, that has its primary core in the USA, and the
second core in Europe, flows of manpower and money are at the center
of grave concerns.

It should be noted that in a current course of enacting international
legislations on criminal matters, no one but limited numbers of law
enforcement officers or diplomats are participating in drafting or
discussing the norms.  No representative from international NGO’s for
human rights advocacy, or no representative of people who are to be
controlled by these international agreements.  Domestically, bills are
adopted without democratic discussion under the pressure or
authorities of international organs such as cited above, leaving
seemingly no room for modification by national parliaments, even they
are prone to maximize competences of law enforcement.  It goes without
saying that domestic NGO’s or even national parliaments have no
effective means to rectify such a treaty, after it is drafted.
Precisely speaking, there remains only a choice whether it be not
ratified or taken for granted within a relatively narrow limits
allowed by the treaty it-self. 

4  Violation of Principle of Auto-determination and International
Principles of Human Rights

But these treaties and recommendations are partly diametrically
contradictory against internationally established principles of
fundamental values and democracy, such as right to self-determination,
right to privacy, presumed innocence in criminal justice, freedoms of
speech, association and assembly, right to counsel and to
self-defense, right to be promptly brought before a judge, right to
fair trial, and so on.  

The drafting process of an International Convention on Comprehensive
Suppression of Terrorism has been in pending, because of insolvable
disputes over a definition of terrorism, and a distinction between use
of force for national independence and terrorism.  Nevertheless, the
International Convention on Control over Financing Terrorists, which
lacks a clear definition of terrorism, has been ratified by many
States including Japan, to enter into force.  If some one provides
money to support movements for self-determination or independence,
such as those conducted by Palestinian people, he/she is likely to be
charged for a crime of financing terrorists.

In the United Kingdom, administrative interception of
tele-communication are carried out widely only under authority of Home
Secretary; foreigners who are suspected as terrorists can be detained
without trial under series of anti-terrorist legislations, which
derogate the application of European Convention on Human Rights.
These are happening.  That shows clearly hazardous trends to suppress
human rights on the pretext of a need for anti-terrorist measures.

5  International Convention against Organized Crimes, adopted by UN in
2000

1) Harmonization of Specific Techniques in Criminal Investigation with
   Human Rights Safe-guards

Article 20 of the Convention stipulates specific techniques, which
might well contribute considerably to strengthen counter measures
against trans-border organized crimes, if they were duly applied.  If
abused, however, they might well bring about serious infringements on
the right to privacy, which is guaranteed by Article 17 of the
International Covenant on Civil and Political Rights.  The modern
history has plenty of cases, which have proven abuses of interception
of tele-communication for political purposes.  

It is true that criminal investigation would be carried out more
effectively, if the investigation officers could make use of massively
collected individual information.  But it should not be forgotten that
a massive collection of individual information could be by itself
serious threats to the individual right to privacy.  While there are
discrepancies among constitutional safe-guards to protect the privacy
from one nation to another, it would be nonetheless necessary to set
up consistent legislative safe-guards against any abuses, if these new
investigative techniques were to be taken into domestic laws.  We
would like thus to underline the needs to avoid any indiscriminative
or arbitral use of the new techniques, and to pay the most conscious
attention to build up effective safe-guards, taking into account of
the protection of the right to privacy under Article 17 of the
International Covenant on Civil and Political Rights.

2)  Control over Crime Genetic Organizations and Right to
    Self-Determination and Free Speech

It is also true that for the sake of counter measures against
trans-border organized crimes, fruitful consequences would be drawn
from a new form of control over organizations, which is laid down by
Article 5 of the treaty.  But that would crash with freedom of speech
or assembly, which has been or still is constitutionally guaranteed in
each Nation.  These measures should be thus taken with due
consideration of and in a form compatible with freedoms of speech and
assembly, which are pertinent in Articles 19, 21 and 22 of the
International Covenant on Civil and Political Rights.  This is
especially true with such States as are in turmoil because of violent
confrontations between colonialist or oppressive political authorities
in power and political, ethnic or religious minorities or antagonists.
In those States, the targets of a hardliner policy are often these
minorities or antagonists.  Such controls based upon collective
responsibility can easily negate human rights protection or right to
self-determination on the side of the minorities.  It should be
mindful that the African National Congress (ANC) in South Africa and
FLETILIN in East Timor were once called as terrorists by the
governments then in power.

We would like thus to underline that controls on crime genetic groups
should be contained within a limit set by the principles of domestic
law, as well as within a line of Articles 19, 21 and 22 of the
International Covenant on Civil and Political Rights in full respect
of freedoms of speech and assembly.

3)  Counter Measures against Money Laundering and Protection of Right
    to Counsel

Article 6 of the Convention makes a crime of money laundering.  There
is no exception with fees or retainers paid to attorneys by their
customers.  The lawyers’ fee or retainer is normally paid by the
accused that is naturally suspected and charged for a crime whatsoever
or even for an organized crime.  If legislative controls went out of
the minimum necessity in terms with the right to counsel, no attorney
could safely assume his/her professional duty toward the accused that
has allegedly committed one of predicate crimes of money laundering.
Some may say that a defense attorney appointed by the court will do,
even if the accused were denied of his/her right to counsel at his/her
choice.  It is nevertheless undeniable that a defense counsel who has
a close tie with the accused can afford better job than an appointed
attorney.  And this is the case in any criminal justice system the
world over.  Attorney’s fees or retainers should thus be excluded
from the target of the control in legislation on money laundering, so
as to guarantee the accused of his/her right to counsel at his/her
choice.

6  Review Processes of FATF 40 Recommendations

1)  Heavier Duties to Identify Customers or Inform in Financial
    Transaction

Duties to identify customers and to inform suspicious transaction to
public officers are already established by the International
Convention against Organized Crimes (Article 7).  The duties are at
the heart of the counter measures against money laundering.  The same
line will be followed by the FATF in a project of review of the 40
recommendations, yet in a way much heavier than ever.

We don’t deny necessary measures, but disagree with a way of thinking
that is prone to justify any means by a supposed purpose.  Any means
should have certain limits outlined by the necessity and
proportionality in accordance with the purpose to be achieved.
Unreasonable measures without limits would cause economic
inefficiency, and bring about economic losses.  They may furthermore
yield bankruptcy by a mere fact that inspection can be carried out by
the financial supervisory authorities, even if there weren’t enough
evidence to prove money laundering.  That is serious.

Foreign workers would find much more difficulties to send their money
to their family at home.  We are living in a borderless world in an
economic sense.  More realistic measures should be taken.

At least, some proposals shown in a FATF paper (Consultation Paper)
are extremely troublesome, such as “STR should be made for all crimes”
(paragraph 147, Option 1), “it is clearly desirable that attempts to
launder money be reported” (paragraph 141).

2)  Gatekeeper Control

A gatekeeper control is a control over lawyers or other legal
professionals, who are to be charged to check illegal transactions in
finance.

As FATF made public its draft review of 40 recommendations in May 30,
2002, a gatekeeper control was proposed in the draft (paragraph
272-280), which is open to public comment until August 31, 2002.

A duty to inform suspicious transaction in terms with money laundering
is already imposed upon lawyers, yet in a limited jurisdiction, such
as in the UK and Keyman Island.  In UK, a neglect to inform suspicious
transaction to the governmental financial supervisory authorities as
well as a disclosure to the customer on what was reported are to be
punished by imprisonment for less than 5 years.  Then serious
incidences already happen.  It is reported that in an effort to evade
troubles, solicitors in UK tend to inform any facts in details in
terms with their customers.  That is to say that those lawyers in UK
must behave as if they were police officers to their customers.

These reporting systems will yield troubles in lawyering.  Some may
report to supervisory authorities even in unsatisfied conditions,
others may refrain themselves from telling their customers what was
reported to the supervisory authorities.  Even a customer may well
refrain from telling his/her attorney what is really important to ask
for advices, and then naturally a basic relationship of mutual trust
between attorneys and customers will go destructed.  If a suspicious
transaction of money laundering were to be reported to the supervisory
authorities, lawyers could ruin their customer in doubt by reporting
eventually wrong facts.  It is a matter of compliance with their
professional ethics to represent justifiable interests of their
customer, even when they are under a pressure of globalizing law
enforcement.  Were there a reporting system, attorneys would be looked
like informants or agents of law enforcement offices, which should
change their images as a guardian of a fellow citizen or customer.
Then it is no exaggeration to say that independent profession of
lawyers will go collapsed. 

In Canada, a law which provides a reporting system is now suspended in
application by a lawsuit filed by a bar association.  While European
Union imposes upon lawyers a duty to report by its directive, it is
said that the directive leaves unaffected a professional secret in
terms with law suit.  Nevertheless, the rim of the duty is far from
clear-cut.  The USA and Japan have not yet such duty in their
legislations.

It is our firm belief that attorneys have their professional duties to
protect civil liberties against unduly State interferences.  The
principle of professional secret is thus pertinent to the very nature
of the profession.  We are accordingly against any gatekeeper
controls, which impose duty upon lawyers to report to financial
supervisory authorities, even with a duly defined exception of their
individual involvement in financing.

July, 2002
Civil Society Concerned about Globalizing Law Enforcement

Prof. Osamu Niikura, Aoyama Gakuin University
	oniikura@als.aoyama.ac.jp
Prof. Toshimaru Ogura, University of Toyama
Yuichi Kaido, Esq.
Yukio Yamashita, Esq.

_______________________________________________
Nettime-bold mailing list
Nettime-bold@nettime.org
http://amsterdam.nettime.org/cgi-bin/mailman/listinfo/nettime-bold