TRANSNATIONAL ORGANIZED CRIME.

SRI LANKA.

　

The term “Organized Crime” often evokes images of glamour and excitement. That, however, is a false and deceptive picture. The reality is simply the stark brutality and ruthlessness of crime.

In a sense, however, Organized Crime is a most remarkable and redoutable organism. It seems to be free from political bias or affiliations; non-discriminatory in the services it provides. It is unconcerned with the social and ethnic backgrounds of its clients. It is often hardworking and methodical in its pursuit of its principal objective, to churn out revenue. It is, in other words, just plain “big business”. In fact, one of its infamous crime-bosses once claimed that Organized Crime in the United States was bigger than General Motors of the country. Its very profitable and powerful influence is not limited to any one country. It is a world-wide problem.

Crime, particularly Organized Crime is very much a feature of the society in which it exists. It is affected by the culture, customs and life-style of that society; and must be studied in that context, or else inaccurate views are likely to result. Some criminal organizations have their origins in historical political developments. Some such organizations even manage to enmesh themselves in religious and cultural aspects of the community. In making an intensive study of such organizations it becomes very difficult, and almost meaningless to separate these aspects and consider them in isolation.

Organized Crime constitutes a challenge to the State and society. It is usually concentrated in certain offence ? spheres which guarantee high level criminal profits and in which, at the same time, the risk of detection is reduced because there are no immediate victims or the victims themselves are too scared and are not willing to come forward.

The predominant motive for Organized Crime is profit. According to U.N. estimates the annual turnover from Organized Crime amounts to about 500 Billion U.S. $. Such large profits make it necessary for such illegal money to be “laundered”. Money laundering lies at the intersection between illegal proceeds from crime and the legal flow of high finance. Profits from crime are, after all, the “Working Capital” for the preparation of future criminal offences. As it thrives on profit and wealth, strategies put in place to combat Organized Crime must include effective ways and means of cutting off this vital blood line.

It does not seem to have been yet possible to develop a formula of words to amount to a definition of Organised Crime that could be accepted as being accurate and precise and sufficiently comprehensive as to be fit to be adopted as a statutory definition.

Whilst the 1st International Symposium on Organized Crime in 1988 came out with a definition, the U.N. 8th Congress of 1990 defined it as: “ a series of complex criminal activities carried out on a large scale by organizations or other structured groups with financial profit and the acquisition of power as the predominent motives by establishing, maintaining and exploiting markets for illegal goods and services. These are crimes often transcending natural boundaries and linked not only with corruption of public and political figures through graft or collusion, but also with threats intimidation and violence”

Although terrorist groups are activated by political and ideological objectives, where, however, in realization of such objectives they indulge in drug-trafficking and arms smuggling for fund-raising purposes and for their own use, they too could be included as Organized Crime groups.

　

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Although a clear-cut definition would certainly be helpful, yet, a strict definition would not be a sine qua non. What is important is the identification of the acts to be prohibited. As long as conditions are clearly spelt out, the commission of such acts or conspiracy to commit such acts of affiliation with those who have committed them could be made punishable.

Crime such as Organized Crime, because of its transnational dimension has no boundaries. Law enforcement officers around the world must therefore join hands in the fight to combat Organized Crime. Steps to combat Organized Crime efficiently and all other strategies policies and even legislation must be taken at an international level; and co-operation at both international and regional level must be given the highest priority. It is very necessary to build up an intelligence data base which could help the States to plan strategies jointly. The development of co-operation and understanding between States seems to be the single most effective tool against trans-national expansion of criminal groups who seem to thrive on their ability to identify and exploit loopholes in the various enforcement responses and styles in the various jurisdictions across the world. It is of the essence of all effective enforcement against these devastatingly dangerous desperadoes.

The adoption of Model Treaties in regard to criminal matters ? which introduced the innovative procedure of the transfer of proceedings against a foreign suspect to the State of which he is a national, or in which he is ordinarily resident ? concluded by the 8th U.N. Congress in Havana should receive the undivided attention of all States plagued by this menace. As laws in their own countries are more strictly enforced these groups are becoming more international in their search for an “easy operational environment”. The law enforcement agencies of a State can make it less attractive to such criminals to venture into their own territory by timely passing of information and meaningfully and effectively co-operating with such other State. The

best hope, however, for the control of Organized Crime within a State rests upon the commitment of each State to deal directly with its own criminal groups aided by information sharing.

The raising of awareness of the operation and the extent of Organized Crime among the members of the community, and the mobilization of public support would be important elements of a concerted strategy. If effective control of Organized Crime is to be achieved improved methods of data collection will also have to be introduced. This is a step which also calls for the strengthening of the resources of the law enforcement agencies.

Since the main spring of Organized Crime is the pursuit of profit, effective suppression must begin with ways and means of siphoning off of profits. In this background in the fight to eliminate Organized Crime, the support of the community must be enlisted. The community must be properly told and made aware of the benefits of their voluntary and unstinted support. The community seems, at times, to be labouring under a delusion that its support and co-operation is required for the sole purpose of making the job of the Police easier, and failing to understand that this is ultimately for their own benefit. If the community is so informed, the community would readily begin to realise the usefulness of their support. The community must be educated in regard to their role in the administration of justice in the field of supplying the necessary and vital information upon which the Police investigations, inquiries and prosecutions could be launched and the guilty made to pay for their criminal acts before the regularly established courts of law. The effectiveness, integrity and the sincerity of the law enforcement agencies must be looked into and guaranteed to the community. If, for instance, information given to the Police is not used promptly and meaningfully then police support will count for nothing and the community will be disillusioned and disgruntled. The public must be able to see for themselves the results of their co-

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operation and support and pride themselves and derive satisfaction upon the conscientious discharge of the obligations imposed upon them both by law and public spiritedness. Police need must establish a friendly and helpful image always in the eyes of the community. Many countries have forms of payment to members of the community who voluntees information which lead to the solution of crimes committed and the guilty dealt with by law. Such payments are done in order to encourage and motivate others to do likewise: and they constitute a token of appreciation by the rest of the community. The community must be persuaded to develop confidence in the assurances held out by the authorities that they would not be exposed to any unnecessary risks by volunteering their support and assistance, and that State assistance and protection is always available to them. Such policies to enlist community support must be well thought out; and long - term in nature. Police should not indulge in knee-jerk reaction and should plan ahead. The process must start with the younger members of the community who, after all, constitute one of the greatest, if not the greatest, assets of a nation, and who must be imbued with a high sense of public spiritedness.

The protection of witnesses [and victims] assumes great importance in the fight to contain Organized Crime and eliminate it completely. The availability of witnesses to crimes of this nature, who are ready willing and able to testify freely and without any kind of danger to their persons and property for so testifying cannot be over emphasised. Where there is any hint or threat of danger to the life and limb of a witness, or even a potential witness, arrangements should be promptly and cautiously made to provide security for such witness not only until all legal proceedings in regard to such crime are concluded but also thereafter. Any violence against a person for having testified should also be guarded against, lest the knowledge that he would be at risk even after the conclusion of all legal proceedings will itself act as a deterrent to potential witnesses, whose testimony would be crucial, from making themselves available to the authorities. States should give this aspect of the battle against such

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offenders deep consideration and take quick and meaningful steps to instil a sense of security and confidence into the minds of such persons. That this is not a baseless apprehension, or a financial exercise is borne out by the daring and merciless attacks on helpless victims. The provision of this kind of effective security could turn out to be costly. Even so, such expenditure could well be an indispensable item and a worthwhile and meaningful step in the fight against fearful odds. Japan, Australia, Papua New Guiena, and the U.S. have in operation witness ? protection ? programmes, provisions of law, and systems supervised by Government departments in operation which are worthy of close scrutiny and which could be suitably varied to meet conditions prevailing in other States.

Besides traditional methods of imposing criminal sanctions, concerted public and private efforts, in the form of publicity campaigns against them and surveillance of their activities by voluntary organizations, aimed at assisting Organized Crime group members who are planning to secede would be of immense help in the campaign against Organised Crime groups.

Although petty corruption had been in existence for a long time, it was only in the last quarter of the 20th century that it assumed gigantic form and permeated the entire social fabric, institutions, and organizations, which had hitherto not only remained free from corruption, but had also enjoyed the reputation of being incorruptible, crumpled and fell prey to the evil of corruption. From individual corruption, it become organizational corruption where entire departments would indulge in wrong and illegal acts for monetary consideration. The most demoralsing aspect of this phenomenon was the acceptance of it by the public. The causes of corruption have been identified as traditional values in society undergoing a change: high values ceasing to be a matter of pride in society: the fall in the purchasing capacity bringing in its train, in the developing countries, the stoic acceptance by

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society of the resort to corruption: money generated by Organized Crime and corruption being used by governments and theresultant absence of the political will to curb corruption; the weakness in the systems of check and balances and the public control over vital matters.

It may not be possible to stamp out corruption root and branch so long as human beings lack the innate goodness and the mental development and the strength to resist such unwholesome temptations: but it could be reduced by well conceived and concentrated efforts such as: severe penalties: under-cover techniques used to fight corruption: public being made aware of the impact of corruption on day-to-day-life through adequate public information: efforts made to re-inculcate moral values in society: enhance the morale and self-respect of all the pillars of the Criminal Justice System and they be allowed to discharge their duties with honour in an unvitiated atmosphere.

In the integrated strategy for eradication of Organized Crime, States should strengthen the structure of its Law Enforcement Agencies, the Police, the Tax Agencies, the Judicial Service, the Immigration Officers, Prosecution Agency: improve and encourage co-operation among these agencies, inter se: and also improve investigating ability and computer literacy. States should also take counter measures against corruption among officials and ensure that all the pillars of the Criminal Justice System are free from this pervasive menace. The importance of the inter-dependance of these agencies can never be over-emphasized.

The strengthening of the structures of the Law Enforcement Agencies and co-operation and co-ordination between the different agencies related to Organized Crime control is of the utmost importance; for, behind Organized Crime, there is a well-knit organization with a well defined hierarchy and also a clear-cut objective backed-up with a modus operandi geared to achieve its objective. It is necessary for each Law

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Enforcement Agency to have: a structure capable of intelligence gathering and also of professional training: a built-in system of continous examination of current legislation and the legal procedure so that if new legislation were considered necessary immediate steps could be taken: special investigating groups, with specialised knowledge and the wherewithal for investigating a particular type of crime, which could swing into action as patterns of crime become more and more sophisticated: at their disposal the most sophisticated equipment and a central data-bank to store all relevant information and make them available to other agencies swiftly and unerringly: a public relations agency to keep the public informed of what it is doing, the problem it faces and the efforts being made to overcome such problems and how the members of the public can render assistance in combating these be-devilled criminals.

It is also most imperative that the ability of the Law Enforcement Officers in the fight against Organised crime be improved to the highest standards of efficiency by systematic plans for: the recruitment of the right type with a sound background and also a sound education with training in electronic equipment: a comprehensive training in every aspect of law enforcement as an on-going process to upgrade their professional skills: exchange of information on developments in crime control legislation, methods and techniques: the provision of the most modern equipment with opportunities for specialization in a particular field of law enforcement: attractive terms of payment and special incentives to keep morale and motivation at the highest levels: the best in the existing force to be selected for Organized Crime with full knowledge of the high risks involved in the handling of Organized Crime.

The two most important strategies in this regard are: electronic surveillance and under-cover operations. No other technique is said to come anywhere near electronic surveillance ? i.e. wire- tapping and oral monitoring devices ?“bugs”. In the past no country was able to cope with international crime without laws strongly supporting ? albeit completely controlling ? such electronic surveillance. In the U.S. virtually all

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mob-operations in the past 20-25 years were based to some degree on wire-taps or bugs.

An operation which yields pride of place only to electronic surveillance is the under-cover operation. No technique carries potential for greater success than an under-cover operation: for, if successful law enforcement secures a credible witness [ the under-cover agent] to the most secretive conversations of a criminal ‘family’. Combined with eaves-dropping, under-cover approach is relied on as providing comprehensive coverage of the target’s day to day activities. It must, however, be noted that this technique carries with it the potential for disaster; and requires, therefore, exceptional preparations.

Having regard to the nature of Organized crime, the international demension it has acquired, the degree of managerial sophistication and the entrepreneurial ingenuity it has attracted, effectively excludes a purely domestic solution. It requires a coupling of domestic legislation with international action to effectively deal with it.

While proposed legislation should give due consideration to the concept of individual rights, yet, if it is taken too far, the protection of individual rights would itself defeat the very purpose for which these agencies were established.

It must also be borne in mind that, as has been said, the health of a system of criminal justice is harmed less by organized criminals going free than by even a few persons being wrongly convicted. In this connection cases such as the “Guildford Four” and the “Birmingham Six” ? where, in the incidents which resulted in these cases involving the I.R.A., many young lives, both military and civilian, were lost and maimed, and that, although all accused were convicted by the trial courts, they were all acquitted in appeal by the Court of Appeal ? should always be borne in mind. With the wisdom of hind-sight it has now become clear that some of those associated with the

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prosecution ? police officers, witnesses and even prosecutors ? had felt tremendous pressure to bring the guilty persons to justice; and that, in responding to such pressure, some of those involved appear to have tried hard ? either in the manner of investigation

and interrogation or in the selective use of evidence or even in a general reluctance to disclose the weakness of the case for the prosecution, to obtain a conviction. In such situations, quite apart from any question of any injustice being caused to those wrongly dealt with, what results would be that while innocent persons would be locked up in prison, the guilty would still be at large. What is more ? and probably the worst of it all ? the confidence of the public in the criminal justice system is eroded and the public finds that it cannot rely upon openness and fairness in the courts. Then the whole equilibrium of a civilised society would be in danger.

There is no doubt about the Fundamental need for legislative measures, which should be unquestionably free of constitutional restrictions. Two of the most basic rights which free citizens possess are: the Right to Privacy and the Right of Silence. As Organized Crime Groups go to great lengths to conceal their plans from the Police, the Police must be ready willing and able to infiltrate such groups under carefully prescribed guidelines.

Most methods of information collecting, if not properly employed, could encroach on the constitutional rights of individuals. Nevertheless, the general view seem to be that upholding of individual rights can be subject to some limitation where special circumstances exist which warrant the temporary waiving of such rights to allow investigations to be carried out. Judicial authority should be obtained, wherever it is so availablem before taking such steps.

To combat Organized Crime at national level it is time to formulate laws to deal with it. UNESCO convention held in Vienna in 1988 adopted a decision with regard to

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amending domestic laws and enhancing international co-operation aimed at uniform legal procedure in the world to deal with: drug offences, the creation of new offences,

laws to require public officials, local administrators and politicians to disclose their assets, authorising officials to investigate cases of hidden riches ? eg. The Australian Proceeds of Crimes Act 1987 ? , to do away with Bank secrecy for criminal matters, investigating agencies, court to be empowered to have access to bank data.

It must also be realized that no matter how efficient the local law enforcement agency be, yet, it will not be a deterrent force unless all action taken by it meets the logical end, viz. conviction and punishment, for which the assurance of a judicial system, which is geared to the expeditious disposal of the cases which come before it, is unswervingly and steadfastly held out. The judicial system must ensure the speedy trial of the accused and that justice is meted out according to law. Witnesses must not be subjected to numerous and unnecessary court appearances, lest not only themselves but also other potential witnesses be deterred from coming forward in the future in view of the inconvenience in attending court unnecessarily.

Wherever the judiciary and other Criminal Justice Agencies maintained a high standard of integrity the causes were not far to seek: An acceptable method of Selection: a sense of pride in the position held by them: in turn held in great esteem and respect by the public: well paid ? to keep a decent standard of living ? hence no reason to make money through illegal means : system of periodic transfers keeping them away from developing vested interests.

Many complex legal issues may arise from the tactics to be adopted in the overall strategy planned to combat the organized perpetrators of such far-flung criminal activities as for instance: participatory witnesses: witness protection: Police participating in under-cover operations: human right issues: invasion of privacy: right

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silence prejudicial evidence: Full disclosure of evidence: right of association and assembly: electronic surveillance. In these matters it is for the courts to strike the appropriate balance between the concerns of the accused and the need to take effective action against Organized Crime in the interests of individuals and society.

Short-term and long-term measures have been advocated to curb effective Organized Crime. Short term measures so advocated include: pressure being brought to bear upon law enforcement agencies to crack down upon Organized Crime groups without any reservations: the creation of separate investigating agencies and courts: enactment of special laws empowering the forfeiture and confiscation of the illicit proceeds of Organized Crime.

The long-term measures to be adopted encompass socio-economic and political reforms to get rid of the deep-rooted causes of Organized Crime such as poverty unemployment, the widening gap between the rich and the poor; rehabilitation programmes based upon community co-operation and reforms in the existing criminal justice system, the integration of modalities of international co-operation such as Extradition, Mutual Assistance, Transfer of criminal proceeds and criminals. Frequent international and regional meeting, and conferences for evaluation, exchange of ideas and experiences in order to arrive at a common strategy are also most fruitful. States of all continents will have to rise together above their national interests, to achieve the goal of global prosperity and stability.

Traditional methods of investigation are often inadequate because of the special structure found in Organized Crime, and also because of the progressive professionalism of the offenders operating in this sphere. Through improving the instruments of investigation,, prosecuting authorities must be enabled to penetrate the core of crime organizations. Provision must also be made for regulations for a better

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guarantee of the safety of informers. It is only when the safety of imperilled informers is effectively ensured will it be possible to expect from them statements with the aid of

which those operating behind the scenes and pulling the strings in criminal organizations can be brought to trial and convicted.

Since the main spring of Organized Crime is the pursuit of profit, effective suppression must begin with steps to siphon off their profits. Siphoning off of profits means that Organized Crime is deprived of the assistance of its financial resources. When there is no access to the profits of one offence criminal offenders can be deprived of investment capital, particularly for the commission of further crimes. More severe penalties in the context of Organized Crime would increase the deterrent effect and make appropriate punishment possible. This is particularly so in regard to drug crime committed by organized rings which make up the core of Organized Crime.

Sri Lanka’s strategic location in the Indian sub-continent has increased its vulnerability to be used as a transit-point for the South Western Asian drugs diverted through India bound for African, European and other Western markets. The on-going conflict in the North and the East of the Island has now contributed immensely to an alarming upsurge in the trafficking of narcotic drugs. Law enforcement agencies have disclosed that about 80% of the Sri Lankans jailed in Italy, Fance, Spain, West Germany for drug ? trafficking offences belong to the particular ethnic group engaged in the conflict in the North East. They are well established and organized in these countries and have clandestine facilities for both smuggling and distribution of drugs. Sri Lanka being a convenient transit route serves also the golden-crescent region drug dealers. Air passengers, including foreigners from India, Pakistan and German have been detected trafficking in drugs [with 28 Sri Lankans] in 1991 smuggling drugs, especially heroin, though in moderate quantities.

　

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Another Organized Crime, has been cheating by foreign employment agencies. This was rampant few years ago. It is however, now on the decline. Remedial measures adopted by the State Employment Bureaus and the Ministry of Labour have, in some measure, contributed to a sharp decrease; for, in 1991, the figure was 3,354 and in 1992, it had dropped in the first six months to 552.

The laws relating to narcotics are in Sri Lanka, enforced by three State Agencies ? Police, Customs and the Excise Department. The Police have a central enforcement organization called the Police Narcotics Bureau. The other two have specialised units to combat such crime. Recently another specialised unit ? Bureau of Special Operations - was established to deal with narco-terrorism, smuggling of narcotics and other related offences in the multi-jurisdictional sphere.

Legislative measures which have added teeth to the relevant procedure empower: the detention of narcotic suspects for 7 days [ way beyond the usual 24 hours]: the power to grant bail, reserved to the High Court to be exercised only in exceptional circumstances: Confiscation, upon conviction of any boat, vessel, vehicle, air-craft or air-borne craft or any equipment used for the conveyance of any prohibited article: witnesses given grater protection in that the identity of informers is protected: enhanced fines: death or life sentence introduced [ in 1984] for possession of any quantity of heroin over 2 grams.

A National Dangerous Drugs Control Board, has been established to formulate and review national policy relating to prevention and control of drug abuse and rehabilitation of drug users. It is also empowered to receive and call for information and particulars from individual organisations and public corporations, including government Departments.

　

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Sri Lanka also has become a signatory to the SAARC convention for Suppression of Terrorism.

The Prevention of Terrorism Act ? 48 of 79 ? vests powers of detention of suspects in the Minister/National Security.

Money Laundering was found to commence, in 1993, through Finance companies. The Central Bank Act 78, of 88 provides for the control and confiscation of illicit proceeds, as opposed to the confiscation of articles used for the commission of offences still not regulated by law. No law yet for confiscation of illicit proceeds.

Fire arms are controlled by the Firearms Ordinance which defines what a fire-arm is; and requires a licence for the possession of such Firearms.

Crime Prevention programmes have been planned by the Police with the help of voluntary organisations [ACPF iii], and the public are educated on how to eradicate and prevent Organized Crime activities. Such organizations can inflict serious damage on the social and economic foundations supporting Organized Groups. Although their activities are not so conspicious ? as by way of crackdowns ? yet, they could undermine Organized Crime groups.

In July 1993 the World Ministerial Conference on Organized Transnational Crime held at Naples forwarded a Draft Resolution styled the “Naples Political Declaration and Global Action Plan against Organized Transnational Crime”. The General Assembly “alarmed by the rapid growth and geographical extension of organized crime in its various terms, both nationally and internationally undermining the development process, imparing the quality of life and threatening human rights and Fundamental Freedoms”, and also “recognizing that the growing threat of organized crime with its highly destabilizing and corrupting influence on Fundamental social

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economic and political institutions represents a challenge demanding increased and more effective international co-operation”, and that it “is a major concern of all countries and that it calls for a concerted response from the international community”, did at its 49th Session adopt the said Declaration and the Global Plan.

The Global Action Plan itself provided for :

[A] Problems and dangers posed by Organized Transnational Crime.

The Ministerial Conference also accepted an offer made by the Government of Italy to organize and host at no cost to the U.N. an International Task Force; and invited the Government of Italy to submit the results of the work of the said Task Force to the Commission on Crime Prevention and Criminal Justice at its next session.

The report of the said Task Force will be of immense benefit to all those who are bedevilled by this ugly phenomenon and should prove to be of inestimable value in preparing concrete and result-oriented strategies for a final and successful operation against Organized Crime at all levels ? national, regional and international ? and assure generations to come “peace and stability in the world” and “prosperity without crime” in a “crime ?free society”.

spread activities: its structure and compo-

sition: its motive and the sources of its

funding : its symptoms have been identified

and discussed.

2. Its definition - Some proposed definitions: that an accepted

all embracing one not yet determined and

settled: that a definition though helpful is yet

not a sine qun non: that what is paramount

is the identification of the particular acts

which are criminal and have to be dealt with

as such.

3. Strategy for tackling - [I] Foremost is the need for

the offenders: co-operation among States both at

International and Regional level ?

Treaties and Conventions both

bi-lateral and multi-lateral.

[ii] At domestic level ? public awareness

and participation : Community based

activities: witness and victim protec-

tion programmes: siphoning off

Profits.

[iii] Law Enforcement Agencies ?

Recruitment of the right type -

motivation and improvement of

skill ? training in modern appliances

and upto date technology ? dedicated

and uncorrupted ? efficiency in

investigation, information collection-

storing and prompt exchange of

information.

[iv] Modern Techniques ?

[a] Electronic Surveillance.

[b] Under-cover Operations.

Both of inestimable value

though [b] must be put in

operation very carefully &

tactfully.

[v] Legislation ? It is a Fundamental

need ? should conform to constitu-

tional provisions.

[vi] Judiciary - Imperative that cases

coming before it be expeditiously

and firmly dealt with ? Balancing of

individual rights such as : Right of

privacy and Right of Silence, with

the interests and safety of the

community ? should win and main-

tain the respect and confidence of

the people.

[vii] Corruption ? All branches of Law

Enforcement Agencies must be

uncorrupted and incorruptible ?

and function in unison.

4. Sri Lankan position - The agencies enforcing the relevant laws

and powers of detention vested in the

Police in special circumstances ? re.

powers of confiscation.

5. Re Naples Declaration and the Global Action Plan.

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