toshimaru ogura ogr@nsknet.or.jp writes:

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 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$B!G(B fee or retainer is normally paid by the accused that
is naturally suspected and charged for a crime whatsoever or even for an
organized crime. If legislative controls went out of the minimum
necessity in terms with the right to counsel, no attorney could safely
assume his/her professional duty toward the accused that has allegedly
committed one of predicate crimes of money laundering. Some may say that a
defense attorney appointed by the court will do, even if the accused were
denied of his/her right to counsel at his/her choice. It is nevertheless
undeniable that a defense counsel who has a close tie with the accused can
afford better job than an appointed attorney. And this is the case in any
criminal justice system the world over. Attorney$B!G(Bs 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$B!G(Bt 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 $B!H(BSTR should be made for all crimes$B!I(B
(paragraph 147, Option 1), $B!H(Bit is clearly desirable that attempts to
launder money be reported$B!I(B (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.