The Dual Criminality Principle in the Association of Southeast Asian Nations-Mutual Legal Assistance Treaty in Criminal Matters (ASEAN- MLAT) Prosecuting Transnational ‘Cyber-Human Trafficking’ in the Southeast Asian Region

his paper examines the applicability of the ‘Treaty on Mutual Legal Assistance in Criminal Matters among like-minded ASEAN member countries’ (ASEAN-MLAT) in the prosecution of human trafficking committed in the cyberspace. This multilateral treaty ensures cooperation among Southeast Asian (SEA) states in the prosecution of crimes. ASEAN-MLAT, however, adheres to the principle of dual criminality which means that a crime cannot be subject of cooperation if it is not penalized under the jurisdictions of either the Requesting or the Requested Party. Although there are no specific laws which penalize cyber-human trafficking among SEA states and there is still a need for future development of a more cyber-responsive penal legislation on human trafficking, this crime when committed in the cyberspace can still be accommodated under the national penal laws existing in the ASEAN countries. A comparative reading of all penal laws among SEA states reveals that human trafficking includes the recruitment of persons for the purpose consonant with trafficking. This means that human trafficking as a crime can be committed in the cyberspace. Hence, despite the absence of a particular penal provision on cyber-human trafficking, this crime can be a proper subject of mutual legal assistance for investigation and prosecution among and between SEA states.

Keywords:cyber-human trafficking, dual criminality principle, mutual legal assistance treaty, prosecutorial framework, transnational crimes