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A Primer on the MLAT

Even now, long before anyone can SAY with certainty how the Corpus’ revelations of the Lacson foreign bank accounts will play out, the rest of the country is already reaping its benefits. When the Arroyo administration indicated that it was going to invoke the Mutual Legal Assistance Treaty between the Philippines and the United States to seek American assistance in ferreting out the truth about Mr. Lacson’s accounts with American banks, the entire country suddenly learned about the existence of the MLAT. With the knowledge came the realization, "if the MLAT can be used against Lacson, then it could also be used against me". So what exactly, is this MLAT?

Essentially, the MLAT is an agreement that binds the parties to provide each other assistance in the prevention, investigation and prosecution of crimes, such as public corruption and narcotics trafficking, and in proceedings related to criminal matters. It has proven, for the United States, to be a most effective and efficient channel in its transnational financial investigations, such as the BCCI investigation, the investigation of Banco Nationale de Lavoro and of the "Pizza Connection" heroin trafficking case.

Since the thrust of the treaty is effective cooperation between the parties, the assistance that may be asked for by the Requesting State from the Requested State may, generally, be of any form provided it is not prohibited by the laws of the Requested State.

Some examples are: (1) taking the testimony or statements of persons, such as, in the Lacson case, sworn statements of responsible officials of Citibank, N.A. and of the Bank of America, in California and New York; (2) providing documents, records, and items of evidence, such as the bank statements, if any, relating to Sen. Lacson’s accounts; and (3) executing requests for searches and seizures as well as (4) assisting in proceedings related to forfeiture of assets, restitution and collection of fines, in the event that the Senator is found guilty by our courts of illegally amassing wealth while in office.

But not all requests for assistance are automatically granted. Assistance may be denied when it relates to a political offense, to an offense under military law which would not be an offense under ordinary criminal law, or when the execution of the request would prejudice the security of the Requested State or similar essential interests. Of course, a request that is not in conformity with the treaty may also be denied.

But those exceptions aside, the scope of assistance that may be requested is very broad. In fact, there isn’t even any requirement that the subject of the investigation in the Requesting State be also an offense under the laws of the Requested State.

To expedite communication between the law enforcement communities of both parties, the MLAT asks each party to designate a central authority to make and receive requests invoking the treaty. Our central authority is the Secretary of Justice or a person designated by him; his American counterpart is the Attorney General or his designee. The communication between the two may be conducted directly with each other, or coursed through diplomatic channels.

The Central Authority of one party is bound to promptly execute the request of the other or transmit it to the competent authorities in its jurisdiction who in turn are likewise bound to do everything in power to execute the request. The requests are to be executed in accordance with the laws of the Requested State except to the extent that the treaty provides otherwise. But the method of execution specified in the request is to be followed except insofar as it is prohibited by the laws of the Requested State.

Understandably, there are provisions in the MLAT regulating the use of information or evidence obtained. The central authority of the Requested State may request that the Requesting State not use any information or evidence obtained under the MLAT in any investigation, prosecution or proceeding other than that described in the request without the prior consent of the central authority of Requested State.

It may also request that what is furnished under the MLAT be kept confidential or be used only subject to terms and conditions it may specify. If the Requesting State accepts the information subject to such conditions, then it must use its best efforts to comply with said conditions.

However, once evidence or information is made public in the Requesting State, without violating any of the terms and conditions imposed by the Requested State or with the prior consent of the Requested State, it may be thereafter used for any purpose, even if other than the purpose described in the request.

Also, the Requesting State is not precluded from using or disclosing any information to the extent that there is an obligation to do so under its Constitution in a criminal prosecution. Out of courtesy, however, the Requesting State is expected to notify the Requested State in advance of any such proposed use or disclosure.

The United States is the primary proponent of MLATs and has 26 MLATs with various countries as of 1999. The Philippines has only two, with the United States and with Australia. The United States, since its MLAT with the Philippines was adopted by the Philippine Senate on November 27, 1995, has requested and has been able to receive, more than once, information and evidence under the treaty.

Our Secretary of Justice we are told, lost no time in making the necessary request, relative to the Lacson accounts (if any), to the US Attorney General. The American response will tell us whether the Mutual Legal Assistance Treaty is really mutual.

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