[Senate Executive Report 104-26]
[From the U.S. Government Publishing Office]
104th Congress Exec. Rept.
SENATE
2d Session 104-26
_______________________________________________________________________
TREATY WITH THE PHILIPPINES ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL
MATTERS
_______
July 30, 1996.--Ordered to be printed
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
[To accompany Treaty Doc. 104-18]
The Committee on Foreign Relations to which was referred
the Treaty between the Government of the United States of
America and the Government of the Republic of the Philippines
on Mutual Legal Assistance in Criminal Matters, signed at
Manila on November 13, 1994, having considered the same,
reports favorably thereon with two provisos and recommends that
the Senate give its advice and consent to the ratification
thereof as set forth in this report and the accompanying
resolution of ratification.
I. Purpose
Mutual Legal Assistance Treaties (MLATs) provide for the
sharing of information and evidence related to criminal
investigations and prosecutions, including drug trafficking and
narcotics-related money laundering. Both parties are obligated
to assist in the investigation, prosecution and suppression of
offenses in all forms of proceedings (criminal, civil or
administrative). Absent a treaty or executive agreement, the
customary method of formally requesting assistance has been
through letters rogatory.
II. Background
On November 13, 1994, the United States signed a treaty
with the Philippines on mutual assistance in criminal matters
and the President transmitted the Treaty to the Senate for
advice and consent to ratification on September 5, 1995. In
recent years, the United States has signed similar MLATs with
many other countries as part of an effort to modernize the
legal tools available to law enforcement authorities in need of
foreign evidence for use in criminal cases.
States historically have been reluctant to become involved
in the enforcement of foreign penal law.\1\ This reluctance
extended to assisting foreign investigations and prosecutions
through compelling testimony or the production of documents.
Even now, the shared interest in facilitating the prosecution
of transnational crime is viewed as being outweighed at times
by unwillingness to provide information to those with different
standards of criminality and professional conduct.
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\1\ E.g., ``Restatement (Third) of the Foreign Relations Law of the
United States Part IV,'' ch. 7, subch. A, Introductory Note and
Sec. 483, Reporters' Note 2 (1987); Ellis & Pisani, ``The United States
Treaties on Mutual Assistance in Criminal Matters: A Comparative
Analysis,'' 19 Int. Lawyer 189, 191-198 (discussing history of U.S.
reluctance and evolution of cooperation) [hereinafter cited as Ellis &
Pisani].
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Despite these hindrances, the need to obtain the
cooperation of foreign authorities is frequently critical to
effective criminal prosecution. Documents and other evidence of
crime often are located abroad. It is necessary to be able to
obtain materials and statements in a form that comports with
U.S. legal standards, even though these standards may not
comport with local practice. Also, assisting prosecutors for
trial is only part of how foreign authorities may assist the
enforcement process. Detecting and investigating transnational
crime require access to foreign financial records and similar
materials, while identifying the fruits of crime abroad and
having them forfeited may deter future criminal activity. It is
necessary to have the timely and discrete assistance of local
authorities.
Still, it was not until the 1960s that judicial assistance
by means of letters rogatory--requests issuing from one court
to another to assist in the administration of justice \2\--were
approved. Even then, the ability of foreign authorities to use
letters rogatory to obtain U.S. assistance was not established
firmly in case law until 1975.\3\ By this time, the United
States had negotiated and signed a mutual legal assistance
treaty with Switzerland, the first U.S. treaty of its kind.
This treaty was ratified by both countries in 1976 and entered
into force in January 1977. Since then, the United States has
negotiated more than 20 additional bilateral MLATs, 14 of which
are in force.\4\
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\2\ See In re ``Letter Rogatory from the Justice Court, District of
Montreal Canada,'' 523 F.2d 562, 564-565 (6th Cir. 1975).
\3\ Id. at 565-566.
\4\ According to the August 4, 1995, Letters of Submittal
accompanying the MLATs with Austria and Hungary, the United States has
bilateral MLATs in force with Argentina, The Bahamas, Canada, Italy,
Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland,
Thailand, Turkey, the United Kingdom concerning the Cayman Islands, and
Uruguay. MLATs not in force but ratified by the United States include
those with Belgium, Colombia, and Panama. Signed but unratified MLATs
include the five addressed in this report--those with Austria, Hungary,
the Republic of Korea, the Philippines, and the United Kingdom--and one
with Nigeria. Treaty Doc. 102-21, 104th Cong., 1st Sess. v (1992).
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Absent a treaty or executive agreement, the customary
method of formally requesting assistance has been through
letters rogatory. The Deputy Assistant Attorney General of the
Criminal Division has summarized the advantages of MLATs over
letters rogatory to the House Foreign Affairs Committee as
follows:
An MLAT or executive agreement replaces the use of
letters rogatory. * * * However, treaties and executive
agreements provide, from our perspective, a much more
effective means of obtaining evidence. First, an MLAT
obligates each country to provide evidence and other
forms of assistance needed in criminal cases. Letters
rogatory, on the other hand, are executed solely as a
matter of comity. Second, an MLAT, either by itself or
in conjunction with domestic implementing legislation,
can provide a means of overcoming bank and business
secrecy laws that have in the past so often frustrated
the effective investigation of large-scale narcotics
trafficking operations. Third, in an MLAT we have the
opportunity to include procedures that will permit us
to obtain evidence in a form that will be admissible in
our courts. Fourth, our MLATs are structured to
streamline and make more effective the process of
obtaining evidence.\5\
\5\ ``Worldwide Review of Status of U.S. Extradition Treaties and
Mutual Legal Assistance Treaties: Hearings Before the House Committee
on Foreign Affairs,'' 100th Cong., 1st Sess. 36-37 (1987) (statement of
Mark M. Richard, Deputy Assistant Attorney General, Criminal Division).
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Letters rogatory and MLATs are not the only means that have
been used to obtain assistance abroad.\6\ The United States at
times has concluded executive agreements as a formal means of
obtaining limited assistance to investigate specified types of
crimes (e.g., drug trafficking) or a particular criminal scheme
(e.g., the Lockheed investigations).\7\ A separate, formal
means of obtaining evidence has been through the subpoena
power. Subpoenas potentially may be served on a citizen or
permanent resident of the United States abroad or on a domestic
U.S. branch of a business whose branches abroad possess the
desired information.\8\
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\6\ ``U.S. Dept. of Justice, United States Attorneys' Manual''
Sec. Sec. 9-13.520 et seq. (October 1, 1988).
\7\ Id. at Sec. 9-13.523.
\8\ Id. at Sec. 9-13.525.
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Additionally, the Office of International Affairs of the
Criminal Division of the Department of Justice notes several
informal means of obtaining assistance that have been used by
law enforcement authorities in particular circumstances. These
have included informal police-to-police requests (often
accomplished through law enforcement personnel at our embassies
abroad), requests through Interpol, requests for readily
available documents through diplomatic channels, and taking
depositions of voluntary witnesses. Informal means also have
included ``[p]ersuading the authorities in the other country to
open `joint' investigations whereby the needed evidence is
obtained by their authorities and then shared with us.'' The
Justice Department also has made ``treaty type requests that,
even though no treaty is in force, the authorities in the
requested country have indicated they will accept and execute.
In some countries (e.g., Japan and Germany) the acceptance of
such requests is governed by domestic law; in others, by custom
or precedent.'' \9\
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\9\ Id. at Sec. 13.524.
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Like letters rogatory, executive agreements, subpoenas, and
informal assistance also have their limitations compared to
MLATs. Executive agreements have been restricted in scope and
application. Foreign governments have strongly objected to
obtaining records from within their territories through the
subpoena power.\10\ There is no assurance that informal means
will be available or that information received through them
will be admissible in court.
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\10\ Notwithstanding foreign objections, unilateral methods such as
issuing subpoenas on domestic branches may actually have promoted the
negotiation of MLATs. According to one commentator, ``the principal
incentive for many foreign governments to negotiate MLATs with the
United States was, and remains, the desire to curtail the resort by
U.S. prosecutors, police agents, and courts to unilateral,
extraterritorial means of collecting evidence from abroad.'' ``E.
Nadelmann, Cops Across Borders: The Internationalization of U.S.
Criminal Law Enforcement'' 315 (1993) [hereinafter cited as Nadelmann].
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III. Summary
A. General
Mutual legal assistance treaties generally impose
reciprocal obligations on parties to cooperate both in the
investigation and the prosecution of crime. Most, but not all,
MLATs have covered a broad range of crimes with no requirement
that a request for assistance relate to activity that would be
criminal in the requested State. The means of obtaining
evidence and testimony under MLATs also range broadly. MLATs
increasingly are extending beyond vehicles for gathering
information to include ways of denying criminals the fruits and
the instrumentalities of their crimes.
B. Major Provisions
1. Types of proceedings
MLATs generally call for assistance in criminal
investigations and proceedings. This coverage often is broad
enough to encompass all aspects of a criminal prosecution, from
investigations by law enforcement agencies to grand jury
proceedings to trial preparation following formal charges to
criminal trial. Most recent MLATs also cover civil and
administrative proceedings--forfeiture proceedings, for
example--related to at least some types of prosecutions, most
frequently those involving drug trafficking. However, the scope
of some MLATs has been more circumscribed than the proposed
treaty.
The Philippines Treaty states that the parties shall
provide mutual assistance ``in connection with the prevention,
investigation and prosecution of offenses, and in proceedings
related to criminal matters'' (art. 1).
2. Limitations on assistance
All MLATs except various types of requests from the treaty
assistance provisions. For example, judicial assistance
typically may be refused if carrying out a request would
prejudice the national security or other essential interest of
the Requested State. Requests related to political offenses
usually are excepted, as are requests related to strictly
military offenses. Unlike the extradition treaties, dual
criminality--a requirement that a request relate to acts that
are criminal in both the Requested and Requesting States--
generally is not required. Nevertheless, some treaties do
contain at least an element of a dual criminality standard.
Additionally, some treaties go beyond military and political
offenses to also except requests related to certain other types
of crimes. Requests related to tax offenses at times have been
restricted in an MLAT to offenses that are connected to other
criminal activities. Before a request is denied, a Requested
State generally is required to determine whether an otherwise
objectionable request may be fulfilled subject to conditions.
The Philippines Treaty states that assistance may be denied
if a request relates to a political offense. Assistance also
may be denied if it relates to a military offense not normally
punishable under criminal law. Another basis for refusing
assistance is that execution of a request would prejudice the
national security or other essential interest of the Requested
State. A final reason for denying assistance is that it fails
to comply with requirements for form and contents. Before
assistance may be denied, the parties are to consult to
consider whether assistance may be given subject to conditions
(art. 3).
3. Transmittal of requests
Requests under MLATs are conveyed directly through
designated Competent Authorities, which in the United States
has been the Criminal Division of the Justice Department. The
time and paperwork saved in thereby bypassing the courts and
diplomatic channels are among the main advantages of MLATs. For
example, a report by the Criminal Justice Section of the
American Bar Association has stated that the circuitry of the
channel for transmitting letters rogatory and evidence obtained
under them often effectively frustrates use of letters rogatory
as a means of obtaining assistance.\11\
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\11\ American Bar Association, Criminal Justice Section, Report
(No. 109) to the House of Delegates 3 (1989 Annual Meeting in Honolulu)
(hereinafter cited as ABA Report).
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The provisions on the form and contents of requests are
contained in article 4 of the respective treaties. The proposed
MLAT requires that a request for assistance under an MLAT be in
writing, except in urgent situations (in which case a request
must be confirmed in writing later, typically within 10 days).
Among the information usually to be included in a request are
(1) the name of the authority conducting the investigation,
prosecution, or proceeding to be assisted by the request; (2) a
detailed description of the subject matter and nature of the
investigation, prosecution, or proceeding to which the request
relates, a description of the pertinent offenses; (3) a
description of the evidence or other assistance being sought;
and (4) the purpose for which the assistance is being sought.
To the extent necessary and possible, other information
that may facilitate carrying out the request also is to be
provided, including, for example, information on the
whereabouts of information or persons sought or a description
of a place or person to be searched and of objects to be
seized. Additional information may include lists of questions
to be asked, a description of procedures to be followed, and
information on allowances and expenses to be provided to an
individual who is asked to appear in the Requesting State.
4. Execution of requests
Under the proposed treaties the Competent Authority of a
Requested State is to execute a request promptly or, when
appropriate, transmit the request to authorities having
jurisdiction within the Requested State to execute it. The
competent authorities of the Requested State are to do
everything in their power to execute the request.
Article 5 of the proposed MLAT provides that requests are
to be executed in accordance with the laws of the Requested
State, unless the treaties provide otherwise. At the same time,
the method of execution specified in a request is to be
followed unless the laws of the Requested State prohibit it. As
is typical in other MLATs the proposed treaty provides that the
judicial authorities of the Requested State shall have power to
issue subpoenas, search warrants, or other orders necessary to
execute the request.
The Central Authority of a Requested State may postpone or
place conditions on the execution of a request if execution in
accordance with the request would interfere with a domestic
criminal investigation or proceeding, jeopardize the security
of a person, or place an extraordinary burden on the resources
of the Requested State.
At the request of a Requesting State, a Requested State is
to use its best efforts to keep a request and its contents
confidential. If a request cannot be executed without breaching
confidentiality, the Requested State shall so inform the
Requesting State, and the Requesting State then is given the
option to proceed nonetheless. (Provisions on keeping
information provided to a Requesting State confidential are
discussed below.)
Requested States generally bear the costs of executing a
request other than expert witness fees; interpretation,
transcription, and translation costs; and travel costs for
individuals whose presence is Requested in the Requesting State
or a third State.
5. Types of assistance
In conducting a covered proceeding, a Requesting State
commonly may obtain assistance from a Requested State that
includes (1) the taking of testimony or statements of persons
located there; (2) service of documents; (3) execution of
requests for searches and seizures; (4) the provision of
documents and other articles of evidence; (5) locating and
identifying persons; and (6) the transfer of individuals in
order to obtain testimony or for other purposes. Also, mutual
legal assistance treaties increasingly have called for
assistance in immobilizing assets, obtaining forfeiture, giving
restitution, and collecting fines.
Taking testimony and compelled production of documents in
Requested State
The proposed MLAT permits a State to compel a person in the
Requested State to testify and produce documents there. Persons
specified in the request are to be permitted to be present and
usually have the right to question the subject of the request
directly or have questions posed in accordance with applicable
procedures of the Requested State. If a person whose testimony
is sought objects to testifying on the basis of a privilege or
other law of the Requesting State, the person nevertheless must
testify and objections are to be noted for later resolution by
authorities in the Requesting State.
With respect to questioning a witness by a person specified
in the request, though most treaties grant a right to question,
the proposed MLAT with the Philippines (art. 8) limits the
right to question to the extent permitted by the Requested
State's laws.
Service of documents
Under an MLAT, a Requesting State may enlist the assistance
of the Requested State to serve documents related to or forming
part of a request to persons located in the Requested State's
territory. This obligation generally is stated as a requirement
of the Requested State to ``use its best efforts to effect
service'' (art. 13).
The treaties require that documents requiring a person to
appear before authorities be transmitted by ``a reasonable
time'' before the appearance. The service provisions of the
MLAT under consideration is broader than some of those under
MLATs currently in force. Provisions under some earlier MLATs
provide that a Requested State has discretion to refuse to
serve a document that compels the appearance of a person before
the authorities of the Requesting State.
Searches and seizures
MLATs compel that an item be searched for and seized in the
Requested State whenever a Requesting State provides
information that would be sufficient to justify a search and
seizure under the domestic law of the Requested State. The MLAT
authorizes conditioning or otherwise modifying compliance to
assure protection of third parties who have an interest in the
property seized. The proposed MLAT contains procedures and
forms for verifying the condition of an item when seized and
the chair of individuals through whose hands the item passed.
These provisions state that no other verification is necessary
for admissibility in the Requesting State.
Provision of documents possessed by the Government
MLATs provide a variety of means for obtaining documents
abroad. Two means--compelled production in a Requested State by
an individual there and search and seizure--have been
mentioned. Additionally, a Requesting State generally may
obtain publicly available documents. In its discretion, a
Requested State may provide a Requesting State documents in its
possession that are not publicly available if the documents
could be made available to domestic authorities under similar
circumstances. The proposed MLAT contains provisions setting
out authentication forms.
Testimony in Requesting State
MLATs do not require the compelled appearance of a person
in a Requesting State, regardless of whether the person is in
custody or out of custody in the Requested State. Under
provisions on persons not in custody, a Requesting State may
ask a Requested State to invite a person to testify or
otherwise assist an investigation or proceeding in the
Requesting State. A request to invite a witness generally is
accompanied by a statement of the degree to which the
Requesting State will pay expenses. A Requested State is
required to invite the person Requested to appear in the
Requesting State and to inform that State promptly of the
invited witness's response.
A person in custody may not be transferred to a Requesting
State under an MLAT unless both the person and the Requested
State consent. A Requesting State is required to keep a person
transferred in custody and to return the person as soon as
possible and without requiring an extradition request for
return. Persons transferred receive credit for time spent in
custody in the Requesting State.
The proposed MLAT makes some express provision for immunity
from process and prosecution for individuals appearing in the
Requesting State in accordance with a treaty request. Under the
Philippines MLAT (art. 10) immunity, which can apply to all
acts committed prior to departure from the Requested State, is
at the discretion of the Requesting State only for persons not
in custody. Immunity from process and prosecution expires if
the person appearing in the requesting State stays beyond a
designated period after the person is free to leave or if the
person appearing voluntarily reenters the requesting State
after leaving.
Immobilization of assets and forfeiture
The proposed MLAT contains a forefieture assistance
provision. A Requesting State is permitted to enlist the
assistance of a Requested State to forfeit or otherwise seize
the fruits or instrumentalities of offenses that the Requesting
State learns are located in the Requested State. A Requested
State, in turn, may refer information provided it about fruits
and instrumentalities of crime to its authorities for
appropriate action under its domestic law and report back on
action taken by it.
More generally, the MLATs require the parties to assist
each other to the extent permitted by their respective laws in
proceedings on forfeiting the fruits and instrumentalities of
crime. To the extent permitted in domestic law, the proposed
Philippines MLAT (art. 16) also require assistance in (1)
providing restitution to crime victims and (2) collecting
criminal fines. The proposed MLAT provides that forfeited
proceeds are to be disposed of under the law of the Requested
State, and if that law permits, forfeited assets or the
proceeds of their sale may be transferred to the Requesting
State.
Limitations on use
To address potential misuse of information provided, MLATs
restrict how a Requesting State may use material obtained under
them. States at times have raised concerns that MLATs could be
used to conduct ``fishing expeditions,'' under which a
Requesting State could obtain information not otherwise
accessible to it in search of activity in considers prejudical
to its interests. Requested States also are concerned that its
own enforcement interests may be compromised if certain
information provided by them is disclosed except as is
compelled in a criminal trial. As a result, the MLAT contains a
provision requiring information be kept confidential and
limited in use to purposes stated in the request.
Article 7 of the proposed MLAT allows the Requested State
to place confidentiality and use restrictions on information
and other material. Typically, a Requested State may require
that information or evidence not be used in any investigation,
prosecution, or proceeding other than that described in the
request. Requested States also may request that information or
evidence be kept confidential, and Requesting States are to use
their best efforts to comply with the conditions of
confidentiality. Nevertheless, once information or evidence has
been made public in a Requesting State in the normal course of
the proceeding for which it was provided, it may be used
thereafter for any other purpose.
While MLATs contain confidentiality and use limits, they do
vary. The proposed Philippines MLAT expressly states that
nothing in it is to preclude the use or disclosure of
information to the extent that the Requesting State's
constitution so requires in a criminal prosecution.
Location of persons or items
In whole or in part, MLAT requests most often require the
Requested State to locate a person or item. The proposed MLAT
requires the Requested State's ``best efforts'' in locating the
person or item.
6. MLATs and defendants
International agreements frequently confer benefits on
individuals who are nationals of the State parties. Investment
and immigration opportunities, tax benefits, and assistance in
civil and commercial litigation are but some of the advantages
an individual may enjoy under an international agreement.
Nevertheless, it is clear that MLATs are intended to aid law
enforcement authorities only.
The resulting disparity between prosecution and defendant
in access to MLAT procedures has led some to question the
fairness and even the constitutionality of MLATs denying
individual rights. (The constitutional provisions most
immediately implicated by denying a defendant use of MLAT
procedures are the fifth, sixth, and fourteenth amendments.) At
the core of the legal objections is the belief that it is
improper in our adversarial system of justice to deny
defendants compulsory process and other effective procedures
for compelling evidence abroad if those procedures are
available to the prosecution.\12\
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\12\ In its 1989 report on MLATs, the Criminal Justice Section of
the American Bar Association both strongly supported MLATs and also
recommended that ``every future MLAT should expressly permit criminal
defendants to use the treaty to obtain evidence from the Requested
country to use in their defense if they can make a showing of necessity
to the trial court.'' ABA Report at 8.
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Those opposing defendant use of MLAT procedures fear that
States would not enter into MLATs if it meant making
information available to criminals. Also, MLATs do not preclude
accused persons from using letters rogatory to obtain evidence
located in the territory of treaty partners, even though the
non-mandatory nature of letters rogatory may result in
difficulties in obtaining evidence quickly.
In its response to a question for the record by Senator
Helms on this issue the State Department stated:
There are no legal challenges to any of our existing MLATs.
It is the position of the Department of Justice that the MLATs
are clearly and unquestionably constitutional.
In 1992, Michael Abbell, then-counsel to some members of
the Cali drug cartel, did suggest to the Committee that MLATs
should permit requests by private persons such as defendants in
criminal cases. To our knowledge, no court has adopted the
legal reasoning at the core of that argument.
The Department of Justice believes that the MLATs before
the Committee strike the right balance between the needs of law
enforcement and the interests of the defense. The MLATs were
intended to be law enforcement tools, and were never intended
to provide benefits to the defense bar. It is not ``improper''
for MLATs to provide assistance for prosecutors and
investigators, not defense counsel, any more than it would be
improper for the FBI to conduct investigations for prosecutors
and not for defendants. The Government has the job of
assembling evidence to prove guilt beyond a reasonable doubt,
so it must have the tools to do so. The defense does not have
the same job, and therefore does not need the same tools.
None of the MLATs before the Senate provide U.S. officials
with compulsory process abroad. None of the treaties require
the treaty partner to compel its citizens to come to the United
States, and none permit any foreign Government to compel our
citizens to go abroad. Rather, the MLATs oblige each country to
assist the other to the extent permitted by their laws, and
provide a framework for that assistance. Since the Government
does not obtain compulstory process under MLATs, there is
nothing the defense is being denied.
The MLATs do not deprive criminal defendants of any rights
they currently possess to seek evidence abroad by letters
rogatory or other means. The MALTs were designed to provide
solutions to problems that our prosecutors encountered in
getting evidence from abroad. There is no reason to require
that MLATs be made available to defendants, since many of the
drawbacks encountered by prosecutors in employing letters
rogatory had largely to do with obtaining evidence before
indictment, and criminal defendants never had those problems.
Finally, it should be remembered that the defendant
frequently has far greater access to evidence abroad than does
the Government, since it is the defendant who chose to utilize
foreign institutions in the first place. For example, the
Government often needs MLATs to gain access to copies of a
defendant's foreign bank records; in such cases, the defendant
already has copies of the records, or can easily obtain them
simply by contacting the bank.
IV. Entry Into Force and Termination
a. entry into force
The Treaty enters into force upon exchange of instruments
of ratification.
b. termination
The Treaty will terminate six months after notice by a
Party of an intent to terminate the Treaty.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed treaty on Wednesday, July 17, 1996. The hearing
was chaired by Senator Helms. The Committee considered the
proposed treaty on July 24, 1996, and ordered the proposed
treaty favorably reported with two provisos by voice vote, with
the recommendation that the Senate give its advice and consent
to the ratification of the proposed treaty.
VI. Committee Comments
The Committee on Foreign Relations recommended favorably
the proposed treaty. The Committee believes that the proposed
treaty is in the interest of the United States and urges the
Senate to act promptly to give its advice and consent to
ratification. In 1996 and the years head, U.S. law enforcement
officers will be engaged in criminal investigations that
traverse international borders. The Committee believes that
attaining information and evidence (in a form that comports
with U.S. legal standards) related to criminal investigations
and prosecutions, including drug trafficking and narcotics-
related money laundering, is essential to law enforcement
efforts.
To cite an example of how an MLAT can benefit the U.S.
justice system, the Committee notes the response by the State
Department to Chairman Helm's question for the record regarding
how the U.S. has made use of the MLAT with Panama after its
1995 ratification:
One recent case from the Southern District of Texas
serves as an example of the usefulness of the treaty in
the prosecution of financial crimes. In that case, the
Assistant U.S. Attorney urgently needed bank records
from Panama to verify the dates and amounts of certain
money transfers of the alleged fraud proceeds in order
to corroborate the testimony of a principal witness.
The U.S. requested the records only a short time before
they were needed in the trial, and we were pleased that
Panamanian authorities produced the records promptly.
The records were described by the prosecutor as ``the
crowning blow'' to arguments raised by the defense and
indispensable to the Government's ultimate success in
the trial.
The Committee believes that MLATs should not, however, be a
source of information that is contrary to U.S. legal
principles. To attempt to ensure the MLATs are not misused two
provisos have been added to the Committee's proposed resolution
of ratification. The first proviso reaffirms that ratification
of this treaty does not require or authorize legislation that
is prohibited by the Constitution of the United States.
Bilateral MLATs rely on relationships between sovereign
countries with unique legal systems. In as much as U.S. law is
based on the Constitution, this treaty may not require
legislation prohibited by the Constitution.
The second proviso--which is now legally binding in 11
United States MLATs--requires the U.S. to deny any request from
an MLAT partner if the information will be used to facilitate a
felony, including the production or distribution of illegal
drugs. This provision is intended to ensure that MLATs will
never serve as a tool for corrupt officials in foreign
governments to gain confidential law enforcement information
from the United States.
VII. Explanation of Proposed Treaty
The following is the Technical Analysis of the Mutual Legal
Assistance Treaty submitted to the Committee on Foreign
Relations by the Departments of State and Justice prior to the
Committee hearing to consider pending MLATs.
technical analysis of the mlat between the united states of america and
the philippines
On November 13, 1994, the representatives of the
Governments of the United States and the Republic of the
Philippines signed the Treaty on Mutual Legal Assistance in
Criminal Matters (``the Treaty''). In recent years, the United
States has entered into similar treaties with many other
countries as part of a highly successful effort to modernize
the legal tools available to law enforcement authorities in
need of foreign evidence for use in criminal cases.
The Treaty is the third such treaty the United States has
signed with an Asian country and is a major advance for the
United States in its efforts to combat organized crime,
transnational terrorism, international drug trafficking and
other offenses. The Treaty is also important for the
Philippines, as it reflects a formal commitment by the United
States to assist in its high priority investigations of public
corruption, such as efforts to recover public assets stolen
during the administration of former President Ferdinand Marcos.
It is anticipated that the Treaty will be implemented in
the United States pursuant to the procedural framework provided
by Title 28, United States Code, Section 1782. The Philippines
currently has no specific mutual legal assistance laws in force
and intends to enact implementing legislation for the Treaty.
The following technical analysis of the Treaty was prepared
by the United States delegation that conducted the
negotiations.
Article 1--Scope of assistance
This article provides for assistance in all matters
involving the prevention, investigation, and prosecution of
criminal offenses, and in proceedings relating to criminal
matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in the
Philippines, and other legal measures taken prior to the filing
of formal charges in either Contracting Party.\13\ The term
``proceedings'' was intended to cover the full range of
proceedings in a criminal case, including such matters as bail
and sentencing hearings.\14\ It was also agreed that since the
phrase ``proceedings related to criminal matters'' is broader
than the investigation, prosecution or sentencing process
itself, proceedings covered by the Treaty need not be strictly
criminal in nature. For instance, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \15\ such proceedings are covered by the
Treaty.
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\13\ The requirement that assistance be provided under the Treaty
at the pre-indictment stage is critical to the United States, as our
investigators and prosecutors often need to obtain evidence from
foreign countries in order to determine whether or not to file criminal
charges. This obligation is a reciprocal one, and the United States
must assist the Philippines under the Treaty in connection with
investigations prior to the filing of charges in the Philippines.
Some United States courts have interpreted Title 18, United States
Code, Section 1782 to require that assistance be provided in criminal
matters only if formal charges have already been filed abroad, or are
``imminent,'' or ``very likely.'' McCarthy, ``A Proposed Unified
Standard for U.S. Courts in Granting Requests for International
Judicial Assistance,'' 15 Fordham Intl' L.J. 772 (1991). The better
view is that Section 1782 does not contemplate such restrictions.
Conway, In re ``Request for Judicial Assistance from the Federal
Republic of Brazil; Blow to International Judicial Assistance,'' 41
Catholic U.L. Rev. 545 (1992). The 1996 amendment to the statute
eliminates this problem.
In any event, the Treaty was intentionally written to cover
criminal investigations that have just begun as well as those that are
nearly completed, and it draws no distinction between cases in which
charges are already pending, ``imminent,'' ``very likely,'' or ``very
likely very soon.''
\14\ One United States court has interpreted Title 28, United
States Code, Section 1782 as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. See in re ``Letters Rogatory Issued by Director of Inspection
of Gov't of India,'' 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters at the
investigatory stage and those matters customarily handled by
administrative officials in the Requesting State. Since this paragraph
specifically permits requests to be made in connection with matters not
within the jurisdiction of an adjudicatory ``tribunal'' in the
Requesting State, this paragraph accords courts broader authority to
execute requests than does Title 28, United States Code, Section 1782,
as interpreted in the India and Fonseca cases.
\15\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
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Paragraph 2 sets forth a list of the major types of
assistance specifically considered by the negotiators. Most of
the items listed in paragraph 2 are described in further detail
in subsequent articles. The list is not intended to be
exhaustive, a fact that is signalled by the word ``include'' in
the opening clause of the paragraph and is reinforced by the
final subparagraph.
Extradition treaties sometimes condition the surrender of
fugitives upon a showing of ``dual criminality,'' i.e., proof
that the facts underlying the offense charged in the Requesting
State would also continue an offense had they occurred in the
Requested State. Paragraph 3 makes it clear that there is no
requirement of dual criminality for cooperation under the
Treaty, and that assistance may be provided even when the
criminal matter under investigation in the Requesting State
would not be a crime in the Requested State.
Paragraph 3 is important because United States and
Philippines criminal law differ significantly, and the dual
criminality rule would render assistance unavailable to us in
many significant areas. During the negotiations, the United
States delegation received assurances from the Philipine
delegation that assistance is available under the Treaty to
United States investigations of key crimes such as drug
trafficking,\16\ terrorism,\17\ organized crime and
racketeering,\18\ money laundering, tax fraud or tax evasion,
exploitation of guest workers and contract laborers,\19\ crimes
against environmental laws, and antitrust law violations.
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\16\ This includes investigations of charges of conspiracy and
engaging in a continuing criminal enterprise. See 18 U.S.C. Sec. 2; 21
U.S.C. Sec. 848.
\17\ See, e.g., 18 U.S.C. Sec. Sec. 115, 1203, 2331-38, 49 U.S.C.
Sec. 1472.
\18\ See 18 U.S.C. Sec. Sec. 1961-68. The Philippines does not have
an identical offense, but does have statutes prohibiting graft and
corruption.
\19\ For example, the United States Attorney in Saipan is actively
investigating labor and human rights violations allegedly committed
against Filipinos recruited to work in Saipan. See ``United States
Pacific Paradise is Hell for Some Foreign Workers: Filipinos Report
Beatings, Rapes, Lockups,'' Wash. Post, Aug. 29, 1994, at A1.
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Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \20\ that states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence-gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from the Philippines by
letters rogatory, an avenue of international assistance that
the Treaty leaves undisturbed. Similarly, this paragraph
provides that the Treaty is not intended to create any right in
a private person to suppress or exclude evidence provided
pursuant to the Treaty.
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\20\ See United States v. Johnpoll, 739 F.2d (2d Cir. 1984).
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Article 2--Central authorities
This article requires that each Contracting Party establish
a ``Central Authority'' for transmission, receipt, and handling
of Treaty requests. The Central Authority of the United States
makes all requests to the Philippines on behalf of federal
agencies, state agencies, and local law enforcement authorities
in the United States. The Philippine Central Authority makes
all requests emanating from officials in the Philippines.
The Central Authority for the Requesting State exercises
discretion as to the form and content of requests, and the
number and priority of requests. The Central Authority of the
Requested State is also responsible for receiving each request,
transmitting it to the appropriate federal or state agency,
court, or other authority for execution, and ensuring that a
timely response is made.
Paragraph 2 provides that the Attorney General or a person
delegated by the Attorney General acts as the Central Authority
for the United States. The Attorney General has delegated the
authority to handle the duties of Central Authority under
mutual assistance treaties to the Assistant Attorney General in
charge of the Criminal Division.\21\ Paragraph 2 also states
that the Secretary of Justice of the Philippines or a person
designated by the Secretary of Justice serves as the Central
Authority for the Philippines.
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\21\ C.F.R. Sec. 0.64-1. The Assistant Attorney General for the
Criminal Division has in turn delegated this authority to the Deputy
Assistant Attorneys General and the Director of the Criminal Division's
Office of International Affairs, in accordance with the regulation.
Directive No. 58, 44 Fed. Reg. 18,661 (1979), as amended at 45 Fed.
Reg. 6,541 (1980); 48 Fed. Reg. 54,595 (1983). That delegation
subsequently was extended to the Deputy Directors of the Office of
International Affairs. 59 Fed. Reg. 42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate with one another directly or through the diplomatic
channel. Since United States mutual legal assistance practice
has demonstrated that direct communication between Central
Authorities is essential to the prompt and efficient execution
of requests, our treaties usually do not provide for
transmitting requests via diplomatic channels. The Treaty does
provide for use of diplomatic channels as an option, however,
because longstanding Philippine administrative practice has
been to utilize such channels; the Philippines has no explicit
law on this topic. The delegations agreed, however that most
communications regarding the Treaty will be transmitted
directly between Central Authorities; the diplomatic channel
will be reserved for unusual situations.
Article 3--Limitations on assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph 1(a) permits the Requested State to deny a
request if it relates to a political offense; paragraph 1(b)
permits denial if a request involves an offense under military
law that would not be an offense under ordinary criminal law.
It is anticipated that the Central Authorities will employ
jurisprudence similar to that used with respect to extradition
treaties for determining what constitutes a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
Paragraph 1(c) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or similar essential interests of
the Requested State. This would include cases when assistance
might involve disclosure of information that is classified for
national security reasons. It is anticipated that the
Department of Justice, in its role as Central Authority for the
United States, will work closely with the Department of State
and other government agencies to determine whether to execute
requests that might fall in this category. All United States
mutual legal assistance treaties contain provisions permitting
the Requested State to decline to execute requests if execution
would prejudice its essential interests.
The delegations agreed that the phrase ``essential
interests'' is intended to limit narrowly the class of cases in
which assistance may be denied. It is not enough that the
Requesting State's case is one that would be inconsistent with
public policy had it been brought in the Requested State.
Rather, the Requested State must be convinced that execution of
the request would seriously conflict with significant public
policy. An example is a request involving prosecution by the
Requesting State of conduct that occurred in the Requesting
State that is constitutionally protected in the Requested
State.
It was agreed that ``essential interests'' may include
interests unrelated to national military or political security,
and may be invoked if the execution of a request would violate
essential United States interests related to the fundamental
purposes of the Treaty. For example, one fundamental purpose of
the Treaty is to enhance law enforcement cooperation. The
attainment of that goal would be hampered if sensitive law
enforcement information available under the Treaty were to fall
into the ``wrong hands.'' Accordingly, the United States
Central Authority may invoke paragraph 1(c) to decline to
provide sensitive or confidential drug-related information
pursuant to a Treaty request whenever it determines, after
appropriate consultation with law enforcement, intelligence,
and foreign policy agencies, that a senior foreign government
official who likely will have access to the information is
engaged in or facilitates the production or distribution of
illegal drugs, and is using the request to the prejudice of a
United States investigation or prosecution.\22\
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\22\ This is consistent with the sense of the Senate as expressed
in its advice and consent to ratification of the mutual legal
assistance treaties with Mexico, Canada, Belgium, Thailand, the
Bahamas, and the United Kingdom Concerning the Cayman Islands. Cong.
Rec. 13,884 (1989) (treaty citations omitted). See also Staff of Senate
Comm. on Foreign Relations, 100th Cong., 2d Sess., Mutual Legal
Assistance Treaty Concerning the Cayman Islands 67 (1988) (testimony of
Mark M Richard, Deputy Assistant Attorney General, Criminal Division,
Department of Justice).
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Paragraph 1(d) permits the denial of a request not made in
conformity with the Treaty.
Paragraph 2 is similar to article 3(2) of the United
States-Switzerland Mutual Legal Assistance Treaty, and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to paragraph 1. For example, a Contracting Party might
request information that could be used either in a routine
criminal case (which is within the scope of the Treaty) or in a
political prosecution (which is subject to refusal under the
Treaty's terms). This paragraph permits the Requested State to
provide the information on condition that it be used only in
the routine criminal case. Naturally, the Requested State
should notify the Requesting State of any proposed conditions
before actually delivering the evidence in question, thereby
according the Requested State an opportunity to indicate
whether it is willing to accept the evidence subject to the
conditions. If the Requested State does accept the evidence
subject to the conditions, it must honor the conditions.
Paragraph 4 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requested State of any reasons for denying assistance. This
ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings and enable the Requested State to prepare
future requests better.
Article 4--Form and content of requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``emergency situations.'' A request
in another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise. Unless otherwise agreed, the request and all
documents accompanying the request shall be in English.\23\
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\23\ The Philippines has two official languages, English and
Pilipino, which is based on Tagalog. Several other languages, such as
Cebuano, Bicol, Ilocano, and Pampango, are also widely used.
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Paragraph 2 lists information deemed crucial to the
efficient operation of the Treaty which must be included in
each request. Paragraph 3 outlines kinds of information that
are important but not always crucial, and should be provided
``to the extent necessary and possible.'' In keeping with the
intention of the Contracting Parties that requests be as simple
and straightforward as possible, there is no requirement under
the Treaty that a request be legalized or certified in any
particular manner.
Article 5--Execution of requests
Paragraph 1 requires each Contracting Party promptly to
undertake diligent efforts to execute a request. The Treaty
contemplates that upon receiving a request, the Central
Authority will first review the request, then promptly notify
the Central Authority of the Requesting State if the request
does not appear to comply with the Treaty's terms. If the
request does satisfy the Treaty's requirements and the
assistance sought can be provided by the Central Authority
itself, the request will be fulfilled forthwith. If the request
meets the Treaty's requirements but its execution requires
action by some other entity in the Requested State, the Central
Authority will promptly transmit the request to the correct
entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests for execution to the federal investigators,
prosecutors, or judicial officials it deems appropriate to
fulfill the request.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to take whatever action necessary and within its
power to execute the request. This provision is not intended or
understood to authorize the use of the grand jury in the United
States for the collection of evidence pursuant to a request
from the Philippines. Rather, it is anticipated that when a
request from the Philippines requires compulsory process for
execution, the Department of Justice will ask a federal court
to issue the necessary process under Title 28, United States
Code, Section 1782, and the provisions of the Treaty.\24\
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\24\ Paragraph 1 specifically authorizes United States courts to
use all of their powers to issue subpoenas and other process to satisfy
requests under the Treaty.
---------------------------------------------------------------------------
It is understood that if execution of the request entails
action by a judicial or administrative agency, the Central
Authority of the Requested State shall arrange for the
presentation of the request to that court or agency at no cost
to the Requesting State. Since the cost of retaining counsel
abroad to present and process letters rogatory is expensive at
times, this provision for reciprocal legal representation in
paragraph 2 is a significant advance in international legal
cooperation. It is also understood that if the Requesting State
decides to hire private counsel in connection with a particular
request, it is free to do so at its own expense.
Paragraph 3 provides that all requests shall be executed in
accordance with the laws of the Requested State except to the
extent that the Treaty specifically provides otherwise. Thus,
the method of executing a request for assistance under the
Treaty must be in accordance with the Requested State's
internal laws absent specific contrary procedures in the Treaty
itself. For the United States, the Treaty is intended to be
self-executing; no new or additional legislation will be needed
to carry out the obligations undertaken.
Paragraph 4 states that a request for assistance need not
be executed immediately when execution will interfere with an
ongoing investigation or legal proceeding in the Requested
State. It is understood that the Central Authority of the
Requested State determines when to apply this provision. The
Central Authority of the Requested State may, at its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in the
Requested State.
It is anticipated that some United States requests for
assistance may contain information that under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation or
proceeding,'' as required by paragraph 2(b). Therefore,
paragraph 5 enables the Requesting State to call upon the
Requested State to keep the information in the request
confidential.\25\ If the Requested State cannot execute the
request without disclosing the information in question (as may
be the case if execution requires a public judicial proceeding
in the Requested State), or if for some other reason this
confidentiality cannot be assured, the Treaty obliges the
Requested State to so indicate, thereby giving the Requesting
State an opportunity to withdraw the request rather than risk
jeopardizing its investigation or proceeding by public
disclosure of the information.
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\25\ This provision is similar to language in other United States
mutual legal assistance treaties. See, e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5), T.I.A.S. No. --; U.S.-
Canada Mutual Legal Assistance Treaty, Mar. 18, 1985, art. 6(5),
T.I.A.S. No. --; U.S.-Italy Mutual Legal Assistance Treaty, Nov. 13,
1985, art. 8(2), T.I.A.S. No. --.
---------------------------------------------------------------------------
Paragraph 6 requires the Central Authority of the Requested
State to respond to reasonable inquiries by the Requesting
State concerning progress of its requests. This is to encourage
open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 provides that the Central Authority of the
Requested State promptly must notify the Central Authority of
the Requesting State of the outcome of the execution of a
request. If the request is denied, the Central Authority of the
Requested State must also explain in writing to the Central
Authority of the Requesting State the reasons for the outcome.
For example, if the evidence sought cannot be located, or if a
witness to be interviewed invokes a privilege under article
8(4), the Central Authority of the Requested State must report
this to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each Contracting Party shall bear the
expenses incurred within its territory in executing a legal
assistance treaty request. This is consistent with similar
provisions in other United States mutual legal assistance
treaties.\26\ Article 6 does oblige the Requesting State to pay
fees of expert witnesses; translation, interpretation, and
transcription costs; and allowances and expenses related to
travel of persons pursuant to articles 10 and 11.
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\26\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, Mar.
18, 1985, art. 8, T.I.A.S. No. --.
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Article 7--Limitations on use
Paragraph 1 states that the Central Authority of the
Requested State may request that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
In such cases, the Requesting State is required to comply with
the conditions. It will be recalled that article 4(2)(d) states
that the Requesting State must specify the reason why
information or evidence is sought.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 permits the Requested State to request that
information or evidence provided to the Requesting State be
kept confidential or be used only subject to terms and
conditions it specifies. Under most United States mutual legal
assistance treaties, conditions of confidentiality are imposed
only when necessary and are tailored to fit the circumstances
of each particular case. For instance, the Requested State may
wish to cooperate with the investigation in the Requesting
State but choose to limit access to information that might
endanger the safety of an informant, or unduly prejudice the
interests of persons not connected in any way with the matter
being investigated in the Requesting State. Paragraph 2
requires that if conditions of confidentiality are imposed, the
Requesting State need only make ``best efforts'' to comply with
them. This ``best efforts'' language was used because the
purpose of the Treaty is the production of evidence for use at
trial, and that purpose would be frustrated if the Requested
State to see valuable evidence while imposing confidentiality
restrictions that prevent the Requesting State from using it.
The Philippine delegation expressed particular concern that
information it might supply in response to a request by the
United States under the Treaty not be disclosed under the
Freedom of Information Act. The delegations agreed that
paragraph 2, as drafted, does not authorize disclosure under
the Freedom of Information Act of information provided under
the Treaty.
Paragraph 3 states that once evidence obtained under the
Treaty is revealed to the public in accordance with paragraphs
1 or 2, the Requesting State is free to use the evidence for
any purpose. Once evidence obtained under the treaty is
revealed to the public in a trial, that information effectively
becomes part of the public domain. The information is likely to
become a matter of common knowledge, perhaps even being cited
or described in the press. Once that occurs, it is practically
impossible for the Central Authority of the Requesting State to
block the use of that information by third parties.
If the United States government receives evidence under the
Treaty that seems to be exculpatory to the defendant in a
criminal case, the United States is obliged to share the
evidence with the defendant.\27\ Therefore, paragraph 4 states
that nothing in article 7 shall preclude the use or disclosure
of information in a criminal prosecution to the extent that
there is an obligation to do so under the constitution or law
of the Requesting State. Advance notice of any such proposed
use or disclosure shall be provided by the Requesting State to
the Requested State.
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\27\ See Brady v. Maryland, 373 U.S. 83 (1963).
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It should be noted that under article 1(4), the
restrictions outlined in article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Philippine authority seeks to use
information or evidence obtained from the United States in a
manner inconsistent with this article, the person can inform
the Central Authority of the United States of the allegations
for consideration as a matter between the Contracting Parties.
Article 8--Taking testimony or evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom evidence is sought shall be compelled, if necessary,
to appear and testify or produce documents, records, or
articles of evidence. The compulsion contemplated by this
article can be accomplished by subpoena or any other means
available under the law of the Requested State.
Paragraph 2 requires that, upon request, the requested
State must furnish information in advance about the date and
place of the taking of testimony.
Paragraph 3 provides that any interested persons specified
in the request, including the defense counsel in a criminal
case, shall be permitted to be present and, to the extent
allowed by the Requested State's laws, to pose questions during
the taking of testimony under this article. The Philippine
delegation was confident that United States prosecutors can be
present and participate in the execution of requests in the
Philippines. Current Philippine law, however, places
restrictions on the extent to which private lawyers from the
United States may question witnesses directly in the
Philippines, and leaves the extent of such questioning up to
the judge overseeing the proceeding. It is understood that in
the event that direct questioning of a witness is not possible,
the defendant and defense counsel may submit questions for the
judge to pose to the person whose testimony or evidence is
being taken.
Paragraph 4, when read together with article 5(3), ensures
that no person will be compelled to furnish information if the
person has a right not to do so under the law of the Requested
State. Thus, a witness questioned in the United States pursuant
to a request from the Philippines is guaranteed the right to
invoke any of the testimonial privileges (e.g., attorney
client, interspousal) available in the United States, as well
as the constitutional privilege against self-incrimination, to
the extent that it applies in the context of evidence being
taken for foreign proceedings.\28\ A witness testifying in the
Philippines may raise any of the similar privileges available
under Philippine law.
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\28\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties.\29\
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\29\ See, e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2), T.I.A.S. No. --; U.S.-Mexico Mutual Legal Assistance Treaty, Dec.
9, 1987, art. 7(2), T.I.A.S. No. --.
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Paragraph 5 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, the
the case of business records, authentication by the form
appended to the Treaty. Thus, the provision establishes a
procedure for authenticating records in a manner essentially
similar to Title 18, United States Code, Section 3505.\30\ It
is understood that the second and third sentences of the
article provide for the admissibility of authenticated
documents as evidence without additional foundation or
authentication. With respect to the United States, this
paragraph is self-executing, and does not need implementing
legislation.
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\30\ Similar to Title 18, United States Code, Section 3505, Form A
must be sworn to or affirmed on penalty of criminal punishment for
false statement or false attestation. The United States delegation was
assured that the making of a false statement on Form A is punishable in
the Philippines as perjury in violation of article 183 of the
Philippine Penal Code.
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The final sentences of article 8 provide that the evidence
authenticated by Form A is ``admissible'' but, of course, it
will be up to the judicial authority presiding at the trial to
determine whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance or materiality) still must be
satisfied in each case.
Article 9--Records of Government agencies
Paragraph 1 obliges each Contracting Party to furnish the
other with copies of publicly available records of government
agencies. The term ``government departments and agencies''
includes all executive, judicial, and legislative units of the
federal, state, and local levels in both Contracting Parties.
Paragraph 2 provides that the Requested State ``may'' share
with the Requesting State copies of nonpublic information in
government files. The obligation under this provision is
discretionary. Moreover, the article states that the Requested
State may only exercise its discretion to turn over information
in its files ``to the same extent and under the same
conditions'' as it would to its own law enforcement or judicial
authorities. The Central Authority of the Requested State
determines the parameters of that extent and what those
conditions are. The discretionary nature of this provision was
deemed necessary because government files of a Contracting
Party may contain information available to investigative
authorities in that country that justifiably could be deemed
inappropriate for release to a foreign government. For example,
assistance might be deemed inappropriate if the information
requested identifies or endangers an informant, prejudices
sources of information needed in future investigations, or
reveals information that was given to the Requested State in
return for a promise not to divulge it. Of course, a request
may be denied under this provision if the law in the Requested
State bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty in tax
matters and that such assistance would include tax return
information when appropriate. The United States delegation was
satisfied after discussion with the Philippine delegation that
the Treaty is a ``convention relating to the exchange of tax
information'' for purposes of Title 26, United States Code,
Section 6103(k)(4), and that the United States has discretion
to provide tax return information to the Philippines under this
article in appropriate cases.\31\
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\31\ Thus, the Treaty, like all other United States bilateral
mutual legal assistance treaties, authorizes each Contracting Party to
provide tax return information in appropriate circumstances.
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Paragraph 3 states that documents provided under this
article may be authenticated in accordance with the procedures
specified in the request, and if authenticated in this manner,
the evidence shall be admissible in the Requesting State. Thus,
the Treaty establishes a procedure for authenticating official
foreign records that is consistent with Rule 902(3), Federal
Rules of Evidence, and Rule 44, Federal Rules of Civil
Procedure.
Paragraph 3, similar to article 8(5), states that documents
authenticated under this paragraph shall be ``admissible,''
although the judicial authority presiding over the trial
determines whether the evidence should in fact be admitted. The
evidentiary tests other than authentication (such as relevance
or materiality) must be established in each case.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite persons located in its territory to travel
to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory; the invitation may be refused by
the prospective witness. The Requesting State is expected to
pay the expenses of such an appearance pursuant to article 6.
Paragraph 1 provides that the witness shall be informed of
the amount and kind of expenses to be incurred by the
Requesting State in a particular case. Such expenses usually
will include the costs of transportation and room and board.
When the witness is to appear in the United States, a nominal
witness fee also will be provided.
Paragraph 2 establishes that the Central Authority of the
Requesting State may determine that a person who is in the
Requesting State pursuant to this article shall not be subject
to service of process, or be detained or subjected to any
restriction of personal liberty while in the Requesting State.
This ``safe conduct'' is limited to acts or convictions that
preceded the witness's departure from the Requested State. It
is understood that this provision does not prevent prosecution
of a person for perjury or any other crime committed while in
the Requesting State.
Paragraph 3 states that any safe conduct guaranteed in this
article expires seven days after the Central Authority of the
Requesting State notifies the Central Authority of the
Requested State that the person's presence is no longer
required, or when the person leaves the territory of the
Requesting State and thereafter returns to it voluntarily.
However, the Central Authority of the Requested State may
extend the safe conduct period up to 15 days thereafter if it
determines that there is good cause to do so.
Article 11--Transfer of persons in custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, countries are willing and able to ``lend'' witnesses
to the United States provided the witnesses will be carefully
guarded while in the United States and will be returned to the
country at the conclusion of their testimony. On occasion, the
United States Justice Department also has arranged for
consenting federal inmates in the United States to be
transported to foreign countries for testifying in criminal
proceedings.\32\
Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty,\33\ which in
turn is based on article 11 of the European Convention on
Mutual Assistance in Criminal Matters.
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\32\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
\33\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973,
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
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There also have been recent situations in which a person in
custody in a United States criminal case has demanded
permission to travel to another country to be present at a
deposition being taken there in connection with the criminal
case.\34\ Paragraph 2 addresses this situation.
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\34\ See, e.g., United States v. King, 552 F.2d 833 (9th Cir. 1976)
(defendants insisted on traveling to Japan to be present at deposition
of certain witnesses in prison).
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Paragraph 3 provides express authority for the receiving
State to maintain the person in custody throughout the person's
stay there, unless the sending specifically authorizes release.
This paragraph also authorizes the receiving State to return
the person in custody to the sending State, and provides that
this return will occur in accordance with terms and conditions
agreed upon by the Central Authorities. The initial transfer of
a prisoner under this article requires the consent of the
person involved and of both Central Authorities, but the
provision does not require that the prisoner consent to be
returned to the sending State.
Once the receiving State agrees to assist the sending
State's investigation or proceeding pursuant to this article,
it is inappropriate for the receiving State to hold the person
transferred and require extradition proceedings before
returning the person to the sending State as agreed. Therefore,
paragraph 3(c) contemplates that extradition proceedings are
not required before the status quo is restored by the return of
the person transferred. Paragraph 3(d) states that the person
is to receive credit for time served while in the custody of
the receiving State. This is consistent with United States
practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article because it
is anticipated that authorities of the contracting Parties will
deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or identification of persons or items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items at the request of the
Requesting State. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State. The
extent of such efforts will vary, of course, depending on the
quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States is not obligated to
attempt to locate persons or items that may be in third
countries. In all cases, the Requesting State is expected to
supply all available information about the last known location
of the persons or items sought.
Article 13--Service of documents
This article creates an obligation on the Requested State
to ``use its best efforts'' to effect the service of summonses,
complaints, subpoenas, or other legal documents at the request
of the Requesting State. It is expected that when the United
States is the Requested State, service under the Treaty will be
made by registered mail (in the absence of any request by the
Philippines to follow a specified procedure for service), or by
the United States Marshals Service in instances when personal
service is requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State by a reasonable time before the appearance
date. The negotiators agreed that a 30-day advance notice is
appropriate in most cases, but the Central Authorities are free
to agree to permit service with less advance notice, or more,
as deemed appropriate on a case-by-case basis.
Paragraph 3 requires that proof of service be returned to
the Requesting State.
Article 14--Search and seizure
It is sometimes in the interests of justice for one country
to ask another country to search for, secure, and deliver
articles or objects needed as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782.\35\ This article
creates a formal framework for handling such requests.
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\35\ See, e.g., United States ex rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No. 84-67-Misc.-018 (M.D.
Fla., Orlando Div.).
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Article 14 requires that a search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that a request to the United
States from the Philippines usually must be supported by a
showing of probable cause for the search. A United States
request to the Philippines has to satisfy the corresponding
evidentiary standard there. It is contemplated that such
requests are to be carried out in strict accordance with the
laws of the Requested State.
Paragraph 2 is designed to ensure that records are kept of
articles seized and/or delivered under the Treaty. This
provision effectively requires that the Requested State keep
detailed and reliable information regarding the condition of an
article at the time of seizure and the chain of custody between
seizure and delivery to the Requesting State.
This article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requesting State of the burden, expense, and inconvenience
of having to bring the Requested State's law enforcement
officers to the Requesting State to provide authentication and
chain of custody testimony each time the Requesting State uses
evidence produced pursuant to this article. As in articles 8(5)
and 9(3), the injunction that the certificates be admissible
without additional authentication at trial leaves the trier of
fact free to bar use of the evidence itself, in spite of the
certificate, if some other reason exists to do so aside from
authenticity or chain or custody.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many United States extradition treaties.\36\
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\36\ See, e.g., U.S.-United Kingdom Extradition Treaty, June 8,
1972, art. 13, 28 U.S.T. 227, T.I.A.S. No. 8468, 1049 U.N.T.S. 167;
U.S.-Canada Extradition Treaty, Dec. 3, 1971, art. 15, 27 U.S.T. 983,
T.I.A.S. No. 8237; U.S.-Japan Extradition Treaty, Mar. 3, 1978, art.
13, 31 U.S.T. 892, T.I.A.S. No. 9625, 1203 U.N.T.S. 225; US.-Mexico
Extradition Treaty, May 4, 1978, art. 19, 31 U.S.T. 5059, T.I.A.S. No.
9656.
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Article 15--Return of documents, records, and items of evidence
This article provides that any documents or items of
evidence furnished under the Treaty must be returned to the
Requested State as soon as possible if the Central Authority of
the Requested State specifically requests prompt return at the
time the items are furnished to the Requesting State. It is
anticipated that unless original records or articles of
significant intrinsic value are involved, the Requested State
will not usually request return of the items, but this is a
matter best left to development of practice.
The article also states that if both Central Authorities
agree, the documents, records, or items may be disposed of in a
mutually acceptable manner other than by return to the
Requested State. Thus, in appropriate cases, the Central
Authorities may agree that transferred items may be sold,\37\
forfeited, transferred to a third state,\38\ or destroyed.\39\
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\37\ It may be more cost effective to sell the item in the
Requesting State and repatriate the proceeds of the sale.
\38\ It is possible to imagine situations in which the person with
a claim to an item transferred from the Philippines to the United
States resides in neither Contracting Party.
\39\ For example, if the item transferred is a sample of narcotics
seized during a search, destruction of the sample at the conclusion of
the case would be consistent with standard procedure in the United
States.
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Article 16--Assistance in forfeiture proceedings
A major goal of the Treaty is to enhance the efforts of
both Contracting Parties in combatting narcotics trafficking.
One significant strategy in this effort is action by United
States authorities to seize and confiscate money, property, and
other proceeds of drug trafficking.
This article is similar to article 17 in the United States-
Canada Mutual Legal Assistance Treaty and article 15 of the
United States-Thailand Mutual Legal Assistance Treaty.
Paragraph 1 authorizes a Central Authority to notify the other
Central Authority of the existence in the latter's territory of
proceeds or instrumentalities of offenses that may be
forfeitable or otherwise subject to seizure. The term
``proceeds or instrumentalities'' is intended to include things
such as money, vessels, or other valuables either used in the
crime or purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the Contracting Party in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in the Philippines, they can be seized in
aid of a prosecution under Title 18, United States Code,
Section 2314,\40\ or be subject to a temporary restraining
order in anticipation of a civil action for the return of the
assets to the lawful owner.
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\40\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad. 18 U.S.C. Sec. 2314.
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If the assets are the proceeds of drug trafficking, this
article contemplates that the Contracting Parties will be
especially willing to help one another. Title 18, United States
Code, Section 981(a)(1)(B) also allows for forfeiture to the
United States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' \41\ This is
consistent with the laws of countries such as Switzerland and
Canada; there is a growing trend among countries toward
enacting legislation of this kind in the battle against
narcotics trafficking.\42\ The United States delegation expects
that article 16 will enable this legislation to be even more
effective.
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\41\ 18 U.S.C. Sec. 981(a)(1)(B).
\42\ For example, article 3 of the United Nations Draft Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
calls for the signatory nations to enact broad legislation to forfeit
illicit drug proceeds and to assist one another in such matters. A
Report on the Status of the Draft, the U.S. Negotiating Position, and
Issues for the Senate, S. Rpt. No. 100-64, 100th Cong., 1st Sess. 6-11,
25-26 (1987).
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Paragraph 2 states that the Contracting Parties shall
assist one another to the extent permitted by their laws in
proceedings relating to forfeiture of proceeds or
instrumentalities of offenses, restitution to crime victims,
and collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that authorities in the
Requested State may take immediate action to immobilize the
assets temporarily pending further proceedings. Thus, if the
law of the Requested State enables it to seize in aid of a
proceeding in the Requesting State or to enforce a judgment of
forfeiture levied in the Requesting State, the Treaty provides
that the Requested State shall do so. The language of the
article is carefully selected, however, so as not to require
either Contracting Party to take any action that exceeds its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either Contracting Party against property
identified by the other if the relevant prosecution authorities
do not deem it proper to do so.\43\
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\43\ Unlike United States law, Philippine law does not allow for
forfeiture in civil cases. However, Philippine law does permit
forfeiture in criminal cases. Accordingly, a defendant must be
convicted in order for the Philippines to confiscate property.
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United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in the law enforcement
activity that led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country and be approved by the Secretary of State.\44\
Paragraph 3 is consistent with this framework and will enable a
Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by its laws.
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\44\ E.g., 18 U.S.C. Sec. 981(i)(1).
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Article 17--Compatibility with other treaties
This article states that assistance and procedures provided
for under the Treaty shall not prevent assistance under any
other applicable international agreements. Article 17 also
provides that the Treaty shall not be deemed to prevent
recourse to any assistance available under the internal laws of
either Contracting Party. Thus, a Treaty leaves provisions of
United States and Philippine law that deal with letters
rogatory completely undisturbed and does not alter any pre-
existing agreements concerning investigative assistance.\45\
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\45\ See e.g., Agreement on the Provision of Documents to the
Government of the Republic of the Philippines, United States-
Philippines, Mar. 15, 1986, T.I.A.S. No. --; Agreement on Procedures
for Mutual Legal Assistance, United States-Philippines, Mar. 31, 1987,
T.I.A.S. No. --.
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Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
practical ways to make the treaty more effective and their own
efforts more efficient. This article calls upon the Contracting
Parties to share those ideas with one another and encourages
them to agree on the implementation of such measures. Practical
measures of this kind might include methods of keeping each
other informed of the progress of investigations and cases in
which Treaty assistance was utilized, and the use of the Treaty
to obtain evidence that otherwise might be sought via methods
less acceptable to the Requested State. Very similar provisions
are contained in recent United States mutual legal assistance
treaties.\46\
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\46\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, Mar. 8,
1985, T.I.A.S. No. --; U.S.-Cayman Islands Mutual Legal Assistance
Treaty, July 3, 1986, T.I.A.S. No. -- ; U.S. Argentina Mutual Legal
Assistance Treaty, Dec. 4, 1990, T.I.A.S. No. --.
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It is anticipated that the Central Authorities will conduct
annual consultations pursuant to this article.
Article 19--Application
This article states that the Treaty shall apply to any
request presented after it enters into force, even if the
relevant acts or omissions occurred before the date on which
the Treaty enters into force. Provisions of this kind are
common in law enforcement agreements; similar provisions are
found in most United States mutual legal assistance treaties.
Article 20--Ratification, entry into force, and termination
Paragraph 1 contains standard provisions on the procedures
for ratification and the exchange of instruments of
ratification.
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 contains standard treaty language setting forth
the procedure for terminating the Treaty. Termination shall
take effect six months after the date of written notification.
Similar termination provisions are present in other United
States mutual legal assistance treaties.
VIII. Text of the Resolution of Ratification
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of The Treaty Between the Government of the United
States of America and the Government of the Republic of the
Philippines on Mutual Legal Assistance in Criminal Matters,
signed at Manila on November 13, 1994. The Senate's advice and
consent is subject to the following two provisos, which shall
not be included in the instrument of ratification to be signed
by the President:
Nothing in the Treaty requires or authorizes
legislation or other action by the United States of
America that is prohibited by the Constitution of the
United States as interpreted by the United States.
Pursuant to the rights of the United States under
this Treaty to deny requests which prejudice its
essential public policy or interest, the United States
shall deny a request for assistance when the Central
Authority, after consultation with all appropriate
intelligence, anti-narcotic, and foreign policy
agencies, has specific information that a senior
government official who will have access to information
to be provided under this Treaty is engaged in a
felony, including the facilitation of the production or
distribution of illegal drugs.