organized crime ‘control’ in asia: experiences from india, china and the golden triangle

Electronic copy available at: http://ssrn.com/abstract=2115290

Broadhurst and Farrelly – Organized crime ‘control’ in Asia

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Organized crime ‘control’ in Asia: Experiences from India, China and the Golden Triangle Roderic Broadhurst and Nicholas Farrelly♣ Introduction Asia covers a vast area and includes more than half the globe’s population. Its largest countries, China and India, are the two most populous in the world. This mega-region is host to major religions (Islam, Buddhism, Hinduism and Christianity) but also includes socialist market states, with explicitly secular orientations, like China and Vietnam. The south Asian ‘sub-continent’, with its population of 1.5 billion, has more people living below the poverty line than any other region in the world. In contrast, the average income of the 1.3 billion people in China has risen rapidly. This has also created significant inequality from province-to-province, and between urban and rural areas. Parts of southeast Asia (where ten countries share 590 million people) are still impoverished with Cambodia, Laos and Myanmar (Burma) rated among the poorest in the world. Taken as a whole, Asia has some of the world’s fastest growing economies but also presents extremes of inequality and destitution that are often ineffectively mitigated by government policies. Such inequalities help generate many forms of crime alongside the related problems of poor governance and corruption. In recent decades this vast Asian region has, in general terms, experienced the same globalizing trends and rapid trade liberalization as the rest of the world. But while trade has created a climate of interdependence, the sheer diversity of interests and the persistence of traditional antagonisms have not been contained by regional governance mechanisms to the same extent as they have been in Europe. For instance, the South Asian Association for Regional Cooperation (SAARC) has not yet proven an effective multi-lateral mechanism for cooperation against cross border criminal activities (Gordon 2009).1 The Association of South East Asian Nations (ASEAN) has been more active, but has also generally failed to keep pace with regional crime developments.2 In west and southwest Asia, and to some extent central Asia, there is an absence of multilateral efforts to suppress transnational organized crime.3 The result is increasing cross-border criminal opportunity but no commensurate rise in regional governance and law enforcement capacity. Given the vast scope of the Asian mega-region, in this chapter we are compelled to confine our discussion of the response to organized crime to India, China (including

♣ Australian Research Council Centre of Excellence in Policing and Security, School of Regulation, Justice and Diplomacy, College of Asia and the Pacific, The Australian National University. 1 SAARC has eight members: Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. There are a number of areas where it promotes security cooperation including counter-terrorism and counter-narcotics. 2 ASEAN was established in1967 with the signing of the ‘Bangkok Declaration’ by Indonesia, Malaysia, Philippines, Singapore and Thailand. These countries were later joined by Brunei Darussalam (1984), Vietnam (1995), Laos and Myanmar (1997), and Cambodia (1999), to make up the current ten member states. 3 The Shanghai Cooperation Organisation (SCO) may, however, emerge to play an increasing role in the mitigation of non-traditional security threats, such as transnational organised crime, in central Asia. It was founded in 2001 with Kazakhstan, China, Kyrgyzstan, Russia, Tajikistan, and Uzbekistan as members. Pakistan, India, Mongolia and Iran are observers.

Electronic copy available at: http://ssrn.com/abstract=2115290


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Hong Kong and Macau) and to ASEAN, with a specific focus there on the sub-region known as the ‘Golden Triangle’. In doing so we are conscious that we neglect some important countries and sub-regions where organized crime co-mingles with separatism and terrorism (such as the southern Philippines, West Papua, Aceh, Cambodia, North Korea, southern Thailand). Also the Japanese yakuza or boryukudan (‘violent ones’), although active throughout parts of Asia and the Pacific, are not addressed in this chapter because Peter Hill’s Chapter XX provides an account of them. Instead, we focus on the responses to organized crime in India, China and the ‘Golden Triangle’. Our goal is to explain how countermeasures against organized crime fit into wider debates about law enforcement, public order and security. We are also concerned with the perceptions/nature of criminal activity in the sub-regions that we examine. We find that, by-and-large, strategies for control of organized crime receive significant attention at both national and regional levels, albeit with mixed results. This discussion is followed by an analysis of the regional and multilateral responses to organized crime focusing, most particularly, on the more developed initiatives emerging from ASEAN. We conclude with an assessment of the prospects for effective measures against organized crime in the highly complex Asian mega-region and describe some of the persistent challenges that effective transnational law enforcement will face. India: Organized crime and the state response Criminal groups have a long history in India; perhaps the best known were the thuggee whose practices included rituals associated with the cult of the Hindu goddess of destruction, Kali. The thuggee modus operandi was the murder (strangulation) and robbery of travelers after deceitful attachment to their caravans. It is from these groups that the English word ‘thug’ is derived. Thuggee operated from at least the 17th century but were eventually suppressed by the British from the 1830s onwards after they established a specialist police agency, the ‘Thuggee and Dacoity Department’, whose combination of intelligence capacities, dissemination of knowledge about thuggee techniques and tactics, extensive powers of arrest and the use of informants (former thugs or ‘approvers’ who gave evidence against the stranglers4) helped break up the larger groups (Dash 2005). These police actions coincided with the rise of modern transportation that reduced the opportunities for attacks on slow-moving caravans. Although thuggee were motivated not by religion but by poverty, the use of rituals associated with Kali helped reinforce codes of silence and bonds of fraternity. One of the legacies of their suppression was the Criminal Tribes Act of 1876, which recognized the secret nature of these groups but also unfairly criminalized entire communities (Dash 2005: 280-81; Bayley 1969: 110-111).5 India has, however, continued to experience significant levels of organized criminality. Dacoits, or rural bandits, operated freely until recent times in the Chambai region and in parts of Madhya Pradesh and Uttar Pradesh (Sarkar and Tiwari 2001), among others. Caste, place and religion continue to determine the nature of India’s urban criminal or ‘goondas’ networks and many criminal gangs are caste 4 The term ‘approver’ is still used today for offenders who inform on their co-offenders. 5 A revisionist view of the Thuggee suggest that their prevalence and danger were exaggerated by the colonial authorities in order to extend British hegemony, however, there is little doubt that in the times of turmoil and change of the early 19th century they presented considerable danger.


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based (Thilgaraj and Gandhirajan 2007). Poverty, as in the past, is a major cause of crime and widespread corruption arises partly from the low wages of police and other officials.6 As a result, crime is also greatly under-recorded (Varma 2004). Even before India’s 1991 market reforms and trade liberalization—which generated many opportunities to manipulate foreign currency exchange through hawala (informal networks of lenders and brokers)—criminal gangs had become more identifiably urban in character. Despite attempts to strengthen anti-money laundering law enforcement, hawala provides the major means for tax evasion and the laundering of criminal and terrorist funds. Mumbai, along with Karachi and Dubai, are considered the key centers (Gordon 2010). Turning again to history, after the police reforms of 1903 the obsolete Thuggee and Dacoity Department was replaced by the Department of Criminal Intelligence, which took on special and ‘political’ crimes as part of the new imperial Indian Police Service (IPS) (Dodwell 1932: 372-73). At that time, radical and costly police reform was considered one of the “most urgent needs of Indian administration” (Lord Curzon cited in Dodwell, 1932: 372). They proved almost impossible to implement in any consistent fashion and although “Independence brought revolutionary changes in the political structure of government, it brought none of any consequence to the structure of police administration” (Bayley 1969:51). The IPS continued after India became independent as one of the few national, thus ‘all India’, services. The IPS provides the leadership of the police services across the country and has among its principal duties the suppression of offences associated with organized crime and insurgency. The IPS has been subjected to Supreme Court criticism and there is currently a concerted effort to reform the IPS and modernize police forces throughout India (India Ministry of Home Affairs, 2010). Gordon (2010) notes the generally unprofessional condition of police institutions but also indicates that a flurry of legislative and administrative reform has been recently stimulated in part by the poor response to India’s “9/11”— the Mumbai attacks of “26/11” 2008—and by other pressing issues of security and counter-insurgency. However, the 1861 British colonial-era Police Act, which provided for the original paramilitary model of policing, remains the basic approach and contributes to the poor standards and absence of community policing traditions (Bayley 1969:49). The system of justice inherited from the British has also resulted in an over-burdened and inefficient legal system in India that has also led to amendments to the criminal law authorizing some forms of plea-bargaining and the creation of ‘fast-track’ courts (Gordon 2010; India Ministry of Interior 2010). Scale and activities Organized crime in India and south Asia more generally may be characterized by its diversity of activities (from illicit drugs to counterfeit medicinal products), capture of elements of government (‘goondas raj’), and convergence with terrorism or longstanding insurgencies in particular states and border regions. India’s Maoist

6 Transparency International’s Corruption Perception Index 2009 identified India, like China, as a country exposed to bribery and corruption. However, for context the index ranks Afghanistan at 179 (second worst in the world), Nepal 143 and Pakistan and Bangladesh 139. These south Asian countries are considerably higher than India at 84 and China at 79. Hong Kong, by contrast, is ranked 12. www.transparency.org/policy_research/surveys_indices/cpi/2009/cpi_2009_table, accessed 23 February 2010.


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insurgency, for example, which was responsible for 908 deaths in 2009 alone, also presents a serious criminal and security problem in some states. Combating this and other insurgency groups absorbs a substantial proportion of funds allocated to modernize the police (Ministry of Home Affairs 2010). The most serious terrorist attack before the “26/11” (2008) event was the 1993 Mumbai bombings where over 200 people were killed. This attack allegedly involved Dawood Ibrahim’s ‘D Company’ crime network7 which bribed police and customs officials to allow importation of explosives (US Congressional Research Service 2010). ‘D Company’ supposedly typified the ‘new India’ with members coming from all religions and a range of castes but its activities led to the breakaway of Muslim members and subsequent murderous rivalry between them and the Hindu members of ‘D Company’ (Gordon 2010). Extensive smuggling networks, which are vectors of transnational crime, developed under India’s formerly high trade tariff regime. Criminal groups now concentrate on human trafficking, smuggling of arms, and explosives and illicit drugs. India and Pakistan are transit and destination countries for illicit drugs from southeast and southwest Asia. The United Nations Office on Drugs and Crime (UNODC) estimates for India are dated and exclude female users but surveys suggest 0.7% of males are opiate users (mostly opium not heroin). The region has developed a significant domestic addiction problem with estimates of between 1.39 - 3.31 million opiate users in South Asia (UN 2010:153-1548). ‘Tribal’ minorities located on the India-Myanmar border are engaged in the opium trade and precursor chemicals for the production of heroin and amphetamines flow back to southeast and southwest Asia from India (UNODC 2010). Other important transnational crimes include intellectual property theft, money laundering and cyber crime. Because of India’s rapidly growing on-line presence (Internet penetration is 7% or around 80 million users) it is an emerging site of cyber crime and intellectual property crime. Large numbers of women from poorer countries like Nepal and Bangladesh are also trafficked to work in the sex industry or in sweat shops and domestic service throughout the region. Despite a massive program of frontier fencing (India Ministry of Interior 2010) explosives and weapons are smuggled across the porous India-Nepal border and even the more secure Pakistan-India border has many smuggling routes (Gordon 2010). Responses India is a complex federal system comprising 26 states and a federal government in New Delhi.9 That federal government has until recently played a minor role in the suppression of crime. There is no national law on organized crime although the Prevention of Terrorism Act (POTA) introduced in 2002 has been applied to crime groups who may be connected to terrorist groups and the National Investigations Act (2008) may provide for a wider role for the IPS. Nevertheless some states, notably Maharashtra, have enacted laws that address both organized crime and terrorism. The Maharashtra Control of Organized Crime Act (MCOCA) was introduced in 1999 to curb the growth of organized crime particularly the role of several well organized crime groups active in Mumbai, India’s commercial capital. The key event that led to the introduction of MCOCA was the shooting of popular movie and music producer 7 Dawood Ibrahim is South Asia’s most notorious criminal figure, and is allegedly behind a range of crimes, including terrorist activities. His whereabouts are currently unknown. 8 Estimates of the prevalence of Amphetamine Type Stimulants are not available for India. 9 Twenty-three official languages are recognised in India.


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Gulshan Kumar in 1997. He had apparently refused to pay the usual protection required by organized crime for participating in the lucrative film industry based in Mumbai.10 Kumar was one of several leading ‘Bollywood’ entrepreneurs to be murdered between 1994 and 2001 (Sarkar and Tiwari 2001). The premise of the MCOCA was that existing measures to suppress organized crime were inadequate and thus created special courts to administer “…a special law with stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of organised crime.”11 The preface also makes it clear that “…in recent years [there have been] criminal activities like murders of tycoons related to the film industry as well by builders, extortion of money from businessmen.” Amongst the many additional powers is the admission of uncorroborated confessions. Bail is not available to anyone accused of having committed an offence under the MCOCA. The MCOCA defines organized crime as any continuing unlawful activity by an individual, singly or jointly, either as member of an organized crime syndicate or on behalf of such a syndicate by use of violence or threat of violence or intimidation or coercion, or other unlawful means with the objective of obtaining benefit, profit, advantage or promoting insurgency. Other states have enacted very similar laws to the MCOCA; for example Uttar Pradesh (2007), Andhra Pradesh (2001-200412), and Karnataka (2001). However an equally tough version introduced by Gujarat in 2003 had been repeatedly held up at the federal level and was ultimately passed in July 2009 following amendments that limited the extension of powers of detention, denial of bail and the admission of uncorroborated confessions. While MCOCA style anti-organised crime laws have been controversial, many states have long had laws that attempt to suppress ‘goondas’ and mafia like activities. The Tamil Nadu law of 1982 for ‘Prevention of Dangerous Activities of Boot Leggers, Drug Offences, Forrest Offenders, Goondas, Immoral Traffic Offender, Slum-grabbers, and Video Pirates Act’, represents a typical example augmented recently by enhanced punishment for organised criminals. Thilgaraj and Gandhirajan (2007) describe the main crime groups in Chennai as forming mercenary gangs (i.e. protection, election intimidation, assassination, kidnap, extortion, and land acquisition), robbery and dacoit gangs, theft gangs, and those involved in activities associated with financial fraud. They note the infiltration of the political system via election rigging is inevitable because of the use of criminal gangs to intimidate voters and officials. They also outline the measures introduced in Tamil Nadu to suppress organised crime and these include special police units, communications intercepts, witness protection, limited powers for confiscation of tainted wealth and the use of fast track courts. They argue that a symbiosis between police, politicians and the ‘goondas’ present a major challenge that requires the attention of the federal government and greater co-operation across states and at the international level

10 His religious and political connections may have also had a role in his assassination. Kumar’s music empire had grown as a result of his effective marketing of cover versions of popular songs that exploited the loopholes in the legal definition of copyright theft in India – this likely made him enemies among established singers and music producers who could turn to the Mumbai underworld for retaliation. 11 Statement of objects and reasons: Maharashtra Control of Organized Crime Act, 1999 (Maharashtra Act No. 30 of 1999). 12 The Act was to operate for three years and ceased at the end of 2004.


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(Thilgaraj and Gandhirajan 2007: 210-211; 216). It is for this reason that efforts to tackle organized crime have often proved ineffective. In the short-term, powerful figures are often immune to official sanction. ‘Black’ Societies and Greater China The recent re-emergence of criminal gangs (bang) and the expansion of triads13 in the People’s Republic of China (PRC) have occurred in the context of rapid modernisation, socio-economic change and globalisation. Socialist market reforms and economic development provided attractive illicit opportunities that have encouraged the revival of different forms of organized crime than once flourished in pre-communist China. The uncertainties of the transition from austere communism to capitalism help to induce the re-invention of criminal groups usually known as ‘black’ societies. Between 1979-1997 such gangs gradually re-emerged especially in the form of Hong Kong and Macau triads in Shenzhen, and other triad-like groups in Taiwan (Chiu 2010; Zhang 2009).14 During the first government ‘hard strike’ campaigns in the 1980s the term ‘black society’ returned to the official discourse of crime control (Liu and Wu 2002).15

For Chinese law enforcement agencies, organizations with the ‘character of black society’ are a special type of crime group and they can be distinguished by their attachment to a particular locality, and the use of violence and command complexity, but they may not resemble organized crime groups as found elsewhere (Zhang 2010). The main distinguishing feature is an element of official protection (‘umbrella’) and adoption of a legal business form (Liu and Wu 2002). ‘Black’ societies have sometimes captured local authorities and challenged the authority of Public Security Bureau and People’s Court officials (Choi 2007). The growth of these organized crime groups heightened concerns about the influence of foreign criminals and has hastened the need to foster mutual assistance with foreign police services (Xie and Wang 2005).

Evolution and activities of ‘triads’ or ‘black’ societies The violent subculture of triads originated in the vigorous market competition of the 19th and early 20th centuries over waterfront labour, and competition over the lucrative (illicit) opium trade (Morgan 1960). Because triad societies often had a patriotic and ritualistic element, the distinction between contemporary ‘black’ societies and the pre-war and earlier triads or secret societies is important (Wakeman 1995) and a degree of overlap and ambiguity between triad/black society, illicit business and ‘organised crime’ is inherent. In largely immigrant societies, such as Hong Kong and other coastal cities with large ‘floating’ populations, black societies represent a type of social capital that compensates for weak family and clan affiliations. Black societies 13 It wasHong Kong-style triads rather than the Shanghai ‘green gang’ (ching bang) that have expanded into the mainland because they tended to be more egalitarian and formerly enjoyed the haven provided by operating from British Hong Kong.14For example, economic development in Shenzhen Special Economic Zone (SEZ) and many coastal cities attracted millions of rural migrants from all over China. The emerging market economy created a market for protection and corruption. Shenzhen was a focal point of Hong Kong and Taiwanese triads because of a demand for illicit services, and drug smuggling (Broadhurst and Lee 2009).15 They cite the vice-president of the standing committee of the People’s Congress on “Explanation of Criminal Code Amendment” of 1997 as stating that there was no significant or typical “black society organization” in China but “organizations with the character of a black society” did exist and Article 294 referred to those “organizations of black society” that are outside China and which try to induct Chinese citizens into their organizations.


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are not exclusively criminal but are secret brotherhoods (usually with a master-disciple form) that become loose cartels bound by social as well as economic ties. The scale and activities of black societies have now also changed and moved beyond traditional predatory street crime, vice, extortion and drug dealing predicated on violence to embrace diverse ‘grey’ business activities that include trafficking, copyright, Internet and financial service crimes (Chu 2000; Yam 2001b).

Triads are sometimes depicted as a worldwide network that uses connections among overseas Chinese for drug and human trafficking (Lintner 2003). Chin and Zhang (2003) have argued that triads have been in decline among overseas Chinese and are skeptical about the existence of global networks of triads (see also Yam 2001b: 28-29). They argue, in the case of human trafficking, this is because of a ‘structural deficiency’ that arises from a strong common culture and tradition that provides discipline in a local context but also limits their capacity to develop strong transnational networks. Later they note the growth of Chinese crime groups in both local and transnational illicit activity (Zhang and Chin 2008). Xia (2008) sees this as a combination of indigenous growth and the return of the triads especially in Guangdong and other coastal provinces (see also Zhao and Li 2010).16 Response Concern about the role of criminal societies has a long history and anti-triad laws prohibiting membership in Hong Kong, for example, date back to 1845. The law had been “…cast wide…to enable triad type activities to be stamped out” (HKSAR v Chan Yuet Ching, cited in Broadhurst and Lee 2009) and triads have long been regarded as a criminal conspiracy. Suppression of corruption and bribery among police had been a priority in Hong Kong and a series of scandals involving corrupt officers led to political intervention and the establishment of the Independent Commission Against Corruption (ICAC) in 1974 with powers to compel witnesses and to examine unexplained wealth. This severed the symbiotic link between the police and triads. Hostility towards the potential organised crime-police symbiotic relationship and crime syndicates, whether triad-related or not, has been sustained in Hong Kong. For example, the Drug Trafficking (Recovery of Proceeds) Ordinance of 1989, the Organised and Serious Crimes Ordinance (OSCO) of 1994, and later amendments and statutes granted law enforcement agencies further powers to investigate and prosecute patterns of unlawful activities associated with organised crime. These measures have not been copied in the rest of China, partly due to the difference in legal traditions.

Subsection 2(1), of the Hong Kong (SAR) Organized and Serious Crimes Ordinance defines ‘organized crime’ as a Schedule 117 offence that: (a) is connected with the activities of a particular triad society; (b) is related to the activities of two or more persons associated together solely or partly for the purpose of committing two or more acts, each of which is a Schedule 1 offence and involves substantial planning and organization; or (c) is committed by two or more persons, involves substantial planning and organization and involves: (i) loss of the life of any person, or a 16 Zhao and Li (2010) examined 64 cases relating to organized crime in Hong Kong and concluded that there was a trend to regionalization rather than internationalization: i.e. that organized crime activities had expanded from Hong Kong to mainland China. The presence of triads in international cases was rare and they argued that since the transfer of Hong Kong to the control of the PRC it has declined. 17Schedule 1 offences include the common law offences of murder, kidnapping, false imprisonment and conspiracy to pervert the course of justice and certain statutory offences in respect to drugs, money laundering and so on (details see Chapter 455, laws of Hong Kong or Yam 2001a).


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substantial risk of such a loss; (ii) serious bodily or psychological harm to any person, or a substantial risk of such harm; or (iii) serious loss of liberty of any person. In Macau organized crime is defined as ‘associations or secret societies’ constituted for the purpose of obtaining illegal advantages. The definition also requires that the ‘existence of the association is manifested in an accord, agreement or in other ways’ aimed at committing one or more specified crime types.18 To prove the existence of a secret society, it need not have a clear hierarchy, places to meet or indeed to meet regularly or have written rules of formation and profit sharing. In the PRC a ‘criminal group’ or ‘syndicate’ refers to any relatively stable criminal organization, which is composed of more than three persons for the purpose of jointly committing a crime (Article 26, PRC Criminal Law 1997). Organizations with the ‘character of a black society’ or of a ‘gangland nature’ are redefined in the 2011 revisions to Article 294 as part of the broad reforms included in the 8th Amendments to the PRC Criminal Law. Among the changes was the criminalization of the bribery of foreign officials (Article 164), and in the context of the contaminated milk scandals, clearer definitions and enhanced punishments for those involved in bogus drugs and food adulteration (Articles 141-144). In the revised criminal law such criminal organizations will be more formal than a criminal group with positions for a leader, mid-level organizers, and core members as well as ordinary or affiliate members: all may be subject to punishment for breach of internal rules. They are also profit oriented but have a stable income derived by providing illegal drugs or goods, extortion, and receiving protection fees from legal business. They routinely use violence or threats to extort or manipulate a market or business or elements of society. Finally, officials are implicated to provide protection through the use of bribery, threats or induction, or a member may be placed into a government agency to provide an ‘umbrella’ (see the People’s Supreme Court, “Explanation of Questions Related to Judging Cases of Organizations with Character of Black Society” issued in 2000 and cited in Zhang 201019). In response, central government investigative teams have been deployed to assist city and county Public Security Bureau officers deal with local organized crime groups. The revised Article 294 (1997 Criminal Law as amended in 2011) holds ringleaders criminally responsible for actual offences committed, and enhances their punishment including the forfeiture of property, punishes overseas crime groups who recruit members in the PRC, and punishes state functionaries involved. It defines activities of an ‘organization of the character of a black society’ as:

18 See Article 1(1), Organized Crime Law 1997:the list contains offences commonly associated with organized crime including homicide, offences against the person, abduction and kidnapping, rape, trafficking in persons, extortion, exploitation of the prostitution of others, loan sharking, robbery, illegal immigration, illegal gambling, trafficking in fauna, artifacts, explosives and firearms, document and credit card fraud, and corruption. 19 The Standing Committee of the National People’s Congress (NPC) issued a further interpretation in 2002 that clarified and reiterated the four criteria in the earlier guidance on ‘the character of a black society’ as prescribed in Article 294 but appeared to make optional the involvement of officials (personal communication and translation Lena Zhong and Wing Lo, October 2010). These interpretation were the basis for the comprehensive amendments to Article 294 of the PRC Criminal Law (Amendment (VIII) to the Criminal Law of the PRC, as adopted at the 19th meeting of the Standing Committee of the Eleventh NPC of the PRC on February 25, 2011 and came into effect on May 1, 2011.

Rod Broadhurst � 19/8/11 9:46 AMDeleted:


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“(1) A relatively stable criminal organization is formed with a relatively large number of members, and there are specific organizers or leaders and basically fixed core members.

(2) Economic interests are gained by organized illegal or criminal activities or other means, and it has certain financial strength to support its activities.

(3) By violence, threat or other means, it commits organized illegal or criminal activities many times to do evil, bully and cruelly injure or kill people.

(4) It dominates a certain area by committing illegal or criminal activities or taking advantage of the harboring or connivance by the state functionaries, forming an illegal control or significant influence in a certain area or sector, which seriously disrupts the economic and social order.”20

A key countermeasure in mainland China has also been to promote anti-corruption efforts. In the context of modernization, and increasing corruption, ‘hard-strike’ anti-crime programs have not proven effective in curbing the growth of organized crime (Zhang & Chin 2008, Trevaskes 2010). Police and prosecutors are also restrained by the absence of forfeiture of property laws, inadequate unexplained wealth provisions or laws that punish those who are members of overseas gangs (Zhang 2010). The need to demonstrate that the criminal group has an organizational structure and can enforce rules on its members, combined with the limited capacity of many Public Security Bureau units, and the absence of Hong Kong-style conspiracy laws are key limitations in the suppression of black societies. Efforts in China to curtail corruption and reduce organized crime will be crucial and need to be guided by greater clarity in the PRC criminal law, and transparency in the oversight role of all levels of the Chinese Communist Party (Broadhurst and Lee, 2009). The costs of internal public order have rapidly grown and the legitimacy of the police will depend increasingly on their efforts to curb organized crime (Social Development Research Group 2010). While China's domestic laws comply in part with the United Nations Convention against Transnational Organized Crime's (UNTOCC21), Lewis (2007) notes that legal reforms are not driven by a fear of transnational organized crime alone but also by internal security, revenue protection and, threats from ‘separatists’. It is those other ‘organized’ threats to stability, which have been the subject of the most consistent official attention. The Golden Triangle: Flows and Politics Another key area within the Asian mega-region, which in fact sits between India and China, has come to be known as the ‘golden triangle’ (e.g., Lyttleton 2004). Arguably the most notorious Asian borderland with respect to organized criminal activities this is the area where the northeastern portion of Myanmar meets northern Thailand,

20 Unofficial translation as provided by the College for Criminal Law Science of Beijing Normal University 2011, courtesy of Lu Jianping. 21 The PRC makes a reservation with regard to Article 35, paragraph 2 of the Convention and is not bound to refer disputes to the International Court – a reservation made by many countries, including the United States.

Rod Broadhurst � 19/8/11 9:50 AMDeleted: Whoever organizes, leads, or actively participates in an organization with characteristics of a criminal syndicate, which carries out lawless and criminal activities in an organized manner through violence, threat, or other means, with the aim of playing the tyrant in a locality, committing all sorts of crimes, bullying and harming the masses, and doing what has seriously undermined economic and social order.


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northern Laos, and the peripheral zones of southwest China. It is ethnically, linguistically, culturally and politically complex, with long histories of war, trade and migration. During the 20th century it developed a reputation as a key site for the global narcotics trade (Renard 1996; Belanger 1989; McCoy 1972). This trade was made possible by the generally lawless character of parts of this mountainous region, and by the almost permanent conditions of civil conflict that defined its post-World War II history (Yawnghwe 1993). The trigger for the massive growth in opium and the heroin trade was the influx of the Chinese Nationalist 13th Army under General Li Mi in 1949 into the border areas, pushed out by the victorious Communist troops. Under General Li’s command a tax on opium was raised in Wa and Shan areas as a means of supporting his army. By the 1960s the remnants of this force and their merchant allies accounted for 90% of the international heroin business.22 Among the many so-called narco-armies that emerged were various Shan militias (the most prominent among these was the Mong Tai Army of Sino-Shan warlord Khun Sa), Communist Party of Burma splinter groups (including the United Wa State Army and the Eastern Shan State Army) and then other opportunistic ethnic and political movements that have maximized opportunities for narcotics production and trafficking. The Thai government opium monopoly also benefited the various military administrations after the Second World War although the sale of opium was banned in 1959. In previous decades the bulk of the drugs trafficked from this region were derived from the local opium crop and the Heroin No. 4 that was produced contributed significantly to global narcotics flows. However, since the late 1990s the opium and heroin trade have largely replaced by the market for Amphetamine Type Stimulants (ATS). Initially as a southeast Asian regional problem, but now trafficked far more widely into parts of south and east Asia, and to western countries, the pills produced in golden triangle laboratories have helped to define a new era of illegal drug production, some have even described it as an ‘epidemic’ (McKetin, et al, 2008). UNODC estimates of ATS consumption in the southeast and east Asian region is thought to be driven by at least 3.43 million but as many as 20.6 million users; many more users when compared to the estimates for opiate users at between 2.83-5.06 million users (UN 2010: 214-15; 153). In Thailand the pills are widely known as ya ba (or ‘crazy medicine’) and were the subject of former Prime Minister Thaksin Shinawatra’s 2003 ‘war on drugs’. That official effort to disrupt the drug trade was predicated on perceptions of a national crisis. It led to around 3000 extrajudicial killings.23 Other countries have similarly confronted the problems that come from large quantities of relatively cheap pills, marketed, in most cases, to youthful populations with sufficient disposable income to use regularly. In the Thai case the vanguard of amphetamine consumers were in the 22 This ‘lost army’ formed an irregular border force known as the Yunnan People’s Anticommunist Volunteer Army supported by the United States Central Intelligence Agency but it was also the genesis of the opium-heroin business (McCoy 1972). 23 Since the coup of September 2006 deposed former Prime Minister Thaksin’s government has been lambasted by its political opponents for the human rights abuses committed during the ‘war on drugs’. However, Thaksin enjoyed remarkable popular support for these policies; support which was shared across almost all segments of Thai society. There remains contention about the final death toll from this period and it is likely that a final figure will never be agreed (see Tassanai, et al., 2005: 116, for useful details).


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trucking, fishing and construction industries. The capacity of labourers to work hard, for very long periods of time, ensured that an early vernacular term for the drug was ya kayan (‘industriousness medicine’). This was followed by a period when the pills were popularly known as ya ma (‘horse medicine’) because they could provide animal-like strength and resilience. Most of the drugs which have flowed into Thailand have been produced by minority ethnic groups in the northeast part of Myanmar, particularly in the Shan State. This region has long borders with China, Laos and Thailand, and there are countless ways that large quantities of drugs can be moved across the national frontiers. Convoys of heavily armed troops carrying such drugs have now become part of local economic and political mythology. Arguably the most important of the groups associated with this trade are the Wa (see Chin 2008). The Wa speak a Mon-Khmer language but have become increasingly Sinified as their towns in their mountain strongholds have been encouraged to take advantage of the commercial opportunities that China offers.24 The United Wa State Army is the most important of their armed groups and since the late 1980s it has operated under a ceasefire agreement with the Myanmar military. One outcome of that ceasefire has been increased opportunities for trade, including of narcotics. In Thailand the idea that the wa daeng (‘red Wa’) are crucial to the regional organized crime system/network has gained significant acceptance at both popular and official levels. These Wa criminal groups do not operate in isolation and their connections with Chinese, Lao, Thai, African and other organized crime syndicates remain the subject of speculation. Such speculation indicates that for students of organized crime this region is enduringly problematic. With the exception of major studies by McCoy (1972) and Chin (2008) there has been little concerted academic scrutiny of criminal activities in the region. It has fallen to international and national counter-narcotics agencies, and a plethora of non-government organizations, to help develop a fuller picture of the historical evolution and contemporary character of organized crime. What is striking about these organized criminal groups is the significant, long-term links, with local insurgencies, international criminal syndicates, and elements of the local and national bureaucracies as well as politics. Eradication efforts have, therefore, proven to be less successful than the enormous investment in both counter-opium and counter-amphetamine operations would normally indicate. For many in Thailand, Myanmar and Laos, but also in other regional transshipment and funding hubs, the ‘golden triangle’ has remained a profitable and flexible sub-region for illicit ‘grey’ businesses. Evolution and activities As the nature of the regional economy has changed we should also bear in mind that the ‘golden triangle’ is no longer defined by the narcotics trade alone. Complementary trade in weapons, chemicals, timber, and people are all part of this very significant evolution, which has also seen great expansion of gambling across the region particularly in areas that are easily accessible to Thai and Chinese who cannot legally gamble on their home soil. In other ways, the economic clout of Thailand and China has led to a situation where the ‘golden triangle’ is being constantly re-configured in response to the consumer demands, and the political priorities, of these countries. For

24 In fact, this is a pattern that is replicated in many of China’s border areas. The combination of relative legal impunity and economic opportunity has created hotspots for crime.


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instance, during the late 1990s until around 2005 heavy investment in casinos along the China-Burma border led to large towns with economies almost entirely founded on gambling. These towns have recently encountered economic difficulties as Chinese tolerance for gaming (especially outside Macau) has cooled as a result of anxieties about tax evasion and money laundering. Difficulties with visas and access have meant that some of the major gambling centers, like Mong La in Burma’s Shan State, are struggling to survive with much more modest flows of gaming tourists (mostly from Thailand). Some have also sought to provide technological innovations with, for example, Internet gambling. Two other organized crime businesses also deserve close attention: guns and people. First, the trade in weapons is key to the criminal enterprises that have managed to survive in the ‘golden triangle’. There was a time when weapons from the wars in Indo-China, and especially in Cambodia, would easily find their way to the ‘golden triangle’ usually having been trucked across Thailand. The regional arms market has developed since then and the significant incomes of many criminal and rebel groups have meant that weapons can be brought from other sources. Thailand’s gun laws are also weak with many handguns imported on fake import licenses; over 400,000 were estimated to have arrived in the country between 1995-2001 (Sittapong Tanyapongpruch 2001: 602). Second, it is the trade in people (what the Thais call ‘kan kha manut’) that often capitalizes on the misery that has accompanied the dislocations of those who have lived alongside war in the ‘golden triangle’ for generations. The lack of economic and other opportunities in Myanmar have also encouraged many to attempt to flee their circumstances there. While most of these migrants are not trafficked by criminal organizations and, rather, find their way from the border to Thailand, or Malaysia, using a range of brokers and other networks, there are still some who find themselves trafficked into conditions of grave exploitation and abuse, especially as prostitutes (see Farrelly 2011). In the cases of both weapons and people trafficking the role of organized crime is opaque and is distorted by the analytical inclination to look for simple explanations. In the case of the ‘golden triangle’ there is a complex interaction of ethnic, political, economic, cultural and criminal dynamics that have led to the current situation. It is a situation, which has proven difficult for law enforcement agencies to adequately police. Sub-regional response The response to the inter-related criminal activities that occur in the ‘golden triangle’ was first, and most publically, associated with the United States and Thai government efforts to pacify Thailand’s northern frontier. In the 1960s and 1970s a cocktail of communist insurgency, ethnic sentiment and narcotics income led to a dangerous period for Thailand. On Thai soil a range of counter-narcotics programs were implemented, most of which sought to remove the incentives for production and provide alternative income opportunities. Many of these activities were publicized in ways that attributed successes to the direct interventions of members of the Thai royal family, particularly King Bhumibol Adulyadej. Such policies had only minor effect on the various, usually transnational, organized criminal groups that were profiting from the trade. As political and economic conditions changed they tended to survive, and even prosper, with new sources of income and new ways of exploiting the


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peculiar configuration of lawlessness and opportunity that still exists, particularly in northeast Burma. Thailand, Burma and Laos have all developed laws which could, if fully enforced, serve to disrupt criminal activities in the golden triangle. Thailand, as an example, has the Measures for the Suppression of Offenders in Offences Relating to Narcotics Act 1991, a Money Laundering Control Act 1999 and the Anti-Trafficking in Persons Act 2008. Similarly, Burma has a portfolio of relevant laws and seeks to implement them with the oversight of officials from the United Nations Office of Drugs and Crime (UNODC). In all cases the public presentation of the fight against organized crime has been given significant attention. However, the challenge is that for all of the governments, but particularly in Burma, there are substantial capacity constraints, which are sometimes partnered with poor inter-agency co-ordination and a reputed unwillingness to interdict drug supply routes or curtail the lucrative pay-offs associated with the drug trade. Formal responses from the relevant governments have been inadequately enforced and challenges to the major criminal groups (e.g. the Thai god-fathers known as ‘jao pho’, ethnic Chinese-Thai organized crime and the ‘red Wa’) are often sporadic and disjointed. As far as we can discern few Southeast Asian countries, despite being signatories of the UNTOCC, have explicit and comprehensive laws to target organized crime.25 Widespread corruption among the police and other agencies is still reported in all of these countries. Nonetheless the law in these countries provides harsh punishment for those participating in organized crime if convictions are made. Thailand resumed carrying out the death penalty for convicted drug traffickers, including those dealing in amphetamines in July 2009 (Amnesty International 2009). In the past, such tough policies have had limited effect on drug abuse and organized trafficking networks (Sittapong Tanyapongpruch 2001). One of the problems is that groups which may, for instance, become criminalized in Thailand will usually enjoy sanctuary elsewhere. The same dynamic often occurs for those criminal groups that are most problematic in the eyes of the Myanmar authorities; they make their homes in Thailand. Such a situation is complicated by the lack of any legal consensus about which groups are most dangerous and how they can be best identified, managed and prosecuted. Thailand, finally, has the usual tools to enable it to tackle the tainted wealth of organized criminals through forfeiture and anti–money laundering laws as well as providing for witness protection in 2003, expanded mutual legal assistance and other measures. Unfortunately, political instability and competing law enforcement agencies have undermined some of the benefit of these reforms. In this sense the legal mechanisms for dealing with organized criminal groups in the golden triangle are far less important than the political and economic considerations that have kept organized crime in business. It is also relevant that many organized criminals seem to find mainland Southeast Asia an enduringly attractive home. Ease of access, inexpensive

25 The former British colonies (Singapore, Malaysia, Brunei) have versions of the Hong Kong style anti-societies (anti-triad) laws but a suite of legal measures aimed at disrupting enterprise crime, racketeering, money laundering, and capable of addressing tainted wealth and corruption and providing witness protection are yet in place. An overview of legislation in the Asia-Pacific notes the absence of specific anti-organised crime laws in Indonesia, Thailand, Vietnam and Cambodia but notes a US style anti-racketeering bill has been under consideration in the Philippines (see Schloenhardt 2009).


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global transport and communication links, and a ‘relaxed’ lifestyle may contribute to the attraction of the ‘golden triangle’ and adjacent areas for transnational crime. ASEAN, in concert with China and the US, has failed to take on the challenges of establishing a viable economic and civil society capable of negating the narco-businesses that have been part of the golden triangle economy for so long. Regional responses to organized crime This discussion of the ‘golden triangle’ should lead us to consider how the forces of globalization and their socio-political and economic impacts have provided impetus to view organized crime not only as a domestic social problem, but also as a ‘transnational’ global threat. This new interest in transnational forms of organized crime has also been connected to the increased concern (especially since the terrorist attacks of 11 September 2001) about potential interactions with terrorism as well as risks posed by ‘failed’ states. Multi-lateral responses to law enforcement have become increasingly important in order to improve the effectiveness of mutual legal assistance to address both longstanding (e.g. narcotics trafficking) and newer (e.g. cybercrime) international, cross-border crimes. Like the European Union and Council of Europe, ASEAN has sought to coordinate the response to non-traditional security concerns such as transnational crime and counter terrorism. Unlike the situation in Europe institutional reform and integration of cross-border agencies in the policing sector has not followed. Dorn and Levi (2008) provide an example of such differences in their comparative assessment of the anti-money laundering and anti-terrorist finance policies in Asian and European countries. Their account considers the different nuances of Asian and European policy practices regarding illegal timber logging, 'informal' fund transfers and terrorism. It is apparent that differences in policy priorities occur because in Asia economic and financial issues dominate while European authorities emphasize political dialogue around issues of security and human rights. Economic development has often been prioritized by Asian governments and can trump concerns about illicit trade. A lack of concrete action in respect to many problems including maritime piracy, illegal drugs and terrorism has generated criticism of ASEAN’s lack of progress on non-traditional security threats. ASEAN’s intent is that over time these issues will be managed through a more integrated framework for cross-jurisdictional cooperation. There are also competing concerns about other human security issues such as pandemics and environmental hazards (ASEAN Secretariat 2006a). Nevertheless there has been progress. Throughout ASEAN the appointment of police liaison officers to consular posts, 24/7 contacts for senior designated officers, exchange programs, enhanced protection for courts and police who faced retaliation by transnational criminal organizations, and the sharing of criminal intelligence are no longer novel developments. But they are also inconsistent across the region as a whole. General efforts to improve information sharing (e.g. a regional data-base, typology studies, networking), joint police operations, mutual legal assistance (e.g. the integrity of travel documents and control over the movement of persons of interest and the harmonization of laws criminalizing transnational crimes), institutional capacity building (a Centre for Combating Transnational Crime), and training are being discussed. However, Emmers (2003) has argued that the ‘securitization’ of transnational crime in ASEAN in the mid-1990s context may have made the development of co-operative arrangements in policing more difficult and limited


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action to dialogue. ASEAN has since the mid-1990s begun to establish multilateral measures to improve the law enforcement co-operation of member states, and also to work more closely with the ASEAN + 3 (China, South Korea and Japan) and ASEAN + 6 (includes South Korea, Australia and New Zealand) cohorts. In respect to ASEAN the 1997 and 1998 Manila Declaration on the Prevention and Control of Transnational Crime; the 1999 Yangon Plan of Action to Combat Transnational Crime and, the 2004 Vientiane Declaration Against Trafficking in Persons Particularly Women and Children provide for dialogue and joint action. ASEAN in 2004 entered into co-operative arrangements with China to enhance law enforcement capacity and address: “…such non-traditional security issues as trafficking in illegal drugs, people smuggling including trafficking in woman and children, sea piracy, terrorism, arms smuggling, money laundering, international economic crime and cybercrime”.26

At the November 2009 7th ASEAN Ministerial Meeting on Transnational Crime (AMMTC), held in Siem Reap, Cambodia a revised ASEAN-China Memorandum of Understanding on ‘Cooperation in the Field of Non-traditional Security Issues’ was concluded and the first ASEAN Plus China Ministerial Meeting on Transnational Crime (1st AMMTC + China) was also held in November 2009.27 Joint efforts are coordinated through the framework of the ASEAN AMMTC supported by meetings of the relevant senior officials (SOMTC) who are tasked with developing five-year plans and co-ordination with other ASEAN senior officials responsible for “drug matters”, and the meetings of ASEANAPOL (Chiefs of National Police) and heads of customs and immigration. Following the 29th ASEAN Chiefs of National Police (ASEANAPOL) meeting the establishment of a permanent ASEANAPOL secretariat commencing in January 2010 was agreed.28 The ‘Work Plan on Combating Illicit Drug Production, Trafficking, and Use’ (2009-2015) was adopted by the 7th AMMTC and reflects the worthy but ambitious vision of a ‘drug-free’ region by 2015. Several objectives are noted in the AMMTC’s general action plan and include the development of a regional counter-measures strategy, greater cooperation among police, prosecutors and judges29, enhanced coordination among ASEAN itself; a strengthened ability to counter ‘sophisticated’ transnational crime; and bilateral and multi-lateral treaties on mutual legal assistance and extradition (ASEAN Plan Of Action To Combat Transnational Crime n.d.). Such transnational cooperation and the role of agencies such as Interpol and the UNODC are important since they help create the necessary climate to bring about a universal jurisdiction for many serious crimes. A key development was the UNTOCC adopted in 2000 and ratified in September 2003 by 135 countries including China, India, Japan and all other Asian countries (except North Korea). An additional

26 Article 1 of the “MOU Between the Governments of the Member Countries of the Association of Southeast Asian Nations and the Government of the People’s Republic of China on Cooperation in the Field of Non-Traditional Issues”, Bangkok, Thailand, January 10, 2004. 27 The 8th ASEAN AMMTC will be held in Bali on the 11 November 2011. 28See the Joint Communiqué of the 29th ASEAN Chiefs of Police Conference, Ha Noi, 13-15 May 2009. 29 Another objective that seldom receives attention is to encourage the rehabilitation of perpetrators of such crimes.


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protocol addressing human smuggling30 had also been adopted, however, fewer countries have ratified the protocol dealing with firearms smuggling. Conclusion Policies for controlling organized crime in the Asian mega-region are under-developed compared to some other parts of the world. For global law enforcement this is worrying because as the weight of economic and demographic influence shifts to Asia many countries are struggling to enforce their current laws, and region-wide initiatives are underdeveloped. Furthermore, the overlap between terrorist and crime networks seems more problematic in many parts of Asia as noted in the example of India where the convergence of crime and terrorism is observed.31 The absence of a central response from India’s government may lead to further problems given the limited capacities of the Indian police. India’s muted engagement with major mega-regional bodies such as ASEAN suggest that a useful pan-Asian structure capable of addressing threats such as transnational organized crime is far from materializing. Reform of the policing services and the development of effective courts and anti-corruption regimes (as found in Hong Kong, Singapore) will be essential. Capacity building, strengthened mutual legal assistance and other recommended measures have yet to be developed in some countries and the emergence of a concerted regional response is essential – such that SAARC and ASEAN (including the ‘plus three’) embrace a wider vision of their respective roles in crime control. The current approach by government across Asia may be expressed by the Chinese idiom “if the water is too clean the fish will have nothing to eat”. Keeping the water dirty has sometimes been considered pragmatic and forward-looking. This sums up the policy dilemma faced by China, India, Thailand, Burma and other countries in curbing the endemic corruption that contributes to the poor performance of government in providing effective control of organized crime (although some analysts, such as Hitner 2008, are more optimistic). It is obviously foreseeable that some of the areas where organized crime has flourished could now be brought under fuller control by the central governments that seek to manage them. Nonetheless the longstanding pattern of inadequate law enforcement and weak governance of criminal matters leads us to conclude on a less optimistic note. In this regard we echo a Philippines scholar who suggested with respect to terrorism that, Asian “[g]overnments have placed more importance on their sovereignty than on their efficacy in defeating a common enemy/threat” (Cruz 2008: 13-14). In areas such as the ‘golden triangle’, but even in Hong Kong and Macau, the persistence of organized crime has a way of confounding law enforcement models for its eradication. The globalized economy rewards nimble and flexible economic actors, and Asian organized crime groups have come to exemplify these characteristics even, or perhaps especially, when they are not undertaking explicitly criminal activities. It is through the blurring of different forms of economic and political action that these groups have survived for so long. Our anticipation is that the future of crime in Asia will continue to fertilize the criminal groups that have come to make ‘thug’, ‘triad’ 30 ASEAN has also undertaken to develop a regional convention on trafficking in persons and the Bali Process to combat people-smuggling is a new multilateral mechanism designed to address this major cross-border crime. 31 The link between crime and terror is often circumstantial, but terrorists may use crime to raise funds needed to support their goals (Findlay 2008).


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and ‘golden triangle’ notable parts of the international language of criminal organization.


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organized crime ‘control’ in asia: experiences from india, china and the golden triangle

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