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MLA is no quick fix in asset recovery
Tracking and recovering ill-gotten money and assets that are hidden from tax authorities through money laundering practices is a global problem. This is because corruptors usually flee from laws and regulations in their home countries to hide their ill-gotten assets abroad.
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Illustration of anti-corruption. (Shutterstock/kenary820)
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racking and recovering ill-gotten money and assets that are hidden from tax authorities through money laundering practices is a global problem. This is because corruptors usually flee from laws and regulations in their home countries to hide their ill-gotten assets abroad. Corruptors are free to move their illegal assets to countries that have strict systems related to the security and confidentiality of fund owners and impose very low taxes.
At present, although many countries have agreed to exchange information about financial transactions considered suspicious, there is still a loophole for corruptors to continue their evil intentions to move their assets, through money laundering, to safe places and away from the pursuit of law enforcement agencies in their home countries.
One of the ways that law enforcement or anticorruption agencies in Indonesia can hunt down illegal assets kept abroad is through regional or international cooperation carried out bilaterally or multilaterally with other countries in accordance with Article 44 of Law No. 15/2002 concerning money laundering, as amended by Law No. 25/2003. This international cooperation can be implemented in the form of the mutual legal assistance (MLA) to prevent and mitigate the occurrence of financial crimes.
Indonesia has several basic rules for implementing the MLA, including Law No. 1/2006 on mutual legal assistance in criminal matters and Law No. 15/2008 on the ratification of the Treaty on Mutual Legal Assistance in Criminal Matters, and, internationally, the MLA has been regulated in the United Nations Convention Against Corruption (UNCAC), which was ratified through Law No. 7/2006 on the ratification of the 2003 United Nations Convention Against Corruption.
As one of the state parties of the UNCAC, Indonesia can carry out mutual legal assistance under Article 46 point (1) of the UNCAC, which is mandatory for the UNCAC state parties including Indonesia: “States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this convention.”
The MLA implemented by Indonesia with the state parties of the MLA agreement is carried out with the aim of exchanging information in the framework of their respective law enforcements. The points mentioned in the agreement are usually related to investigations, prosecutions and judicial proceedings in accordance with their respective laws and regulations. In addition, assistance is usually carried out between the ministries of justice or between law enforcement agencies, in the form of: identifying or searching for individuals, obtaining certain documents, carrying out search and seizure requests, confiscating proceeds of crime, freezing assets and other assistance in accordance with the parties’ agreement.
However, the implementation of the MLA between Indonesia and other countries still faces problems such as differences in the legal system and the strictness of the security system in the banking industry (bank secrecy) where illegal financial assets (money obtained through crimes) are hidden.
