MEASURES TO FREEZE, CONFISCATE AND RECOVER
PROCEEDS OF CORRUPTION, INCLUDING PREVENTION
OF MONEY-LAUNDERING IN MYANMAR
Lwin Lwin Than*I. INTRODUCTIONCorruption poses a serious problem and affects each and every one of us. It is a fact that there arelinks between corruption and other forms of crime, including money-laundering. Corruption is no longer
a local matter. It is a transnational phenomenon. To prevent, to control and to eradicate corruption is aresponsibility of all of us. This is the reason why we meet here with hope of exploring ways and means ofstrengthening our legislation and criminal justice systems in the area of measures to freeze, confiscate andrecover proceeds of corruption, including prevention of money-laundering.

II. MYANMAR LEGAL SYSTEM
The Myanmar legal system is closely akin to Indian legal system of the Common Law Legal Family.
However, it is not a replica of the Common Law System since we have embodied in laws of Myanmar ournational characteristics, especially in the area of Myanmar Customary Law. We have been developing ourown Legal System for nearly one and a half centuries.

III. OFFICE OF THE ATTORNEY GENERAL (OAG)The Office of the Attorney General (OAG) of the Union of Myanmar has been constituted underthe Attorney General Law, 2001.Its predecessor was the Attorney General Law,1988.The present Attorney
General Law grants the Attorney General wide –ranging powers including legislative drafting, legaltranslation, updating laws and amendments. Moreover, the OAG is responsible for giving legal advice
on matters relating to international conventions and regional agreements, and also on matters of bilateralor multilateral treaties, memorandums of understanding, memorandums of agreement, local and foreign
investments and other instruments that are to be ratified by the Union of Myanmar. The Attorney Generalis the Chief Prosecutor and appears in criminal cases and also litigates or defends claims of civil nature
where the government is involved.

IV. THE LAW OFFICERS
The Law Officers who are appointed under the Attorney General Law, 2001, perform the functions
and duties assigned to us by the Attorney General including tendering advice on criminal cases and before
trial to be in conformity with the Law.

* International Law and ASEAN Legal Affairs Division, Deputy Director, Office of The Attorney General, Union of Myanmar.

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V. JUDICIAL SYSTEM OF MYANMAR
The present judicial system was adopted by the Judiciary Law, on 27 June, 2000. All Criminal Courts
in Myanmar have to adhere strictly to the established procedure and practice of admitting documentaryand material evidence, examining witnesses, and examining complainants and the accused. Basic legal
principles to be observed in conducting criminal cases are that the burden of proof lies on the prosecution.
In criminal cases Law Officers play significant rules by giving legal opinion to the police before sending
the case to the court, conducting before the court on behalf of State, and if he or she is not satisfied withthe order of the court, filing appeal and revision to higher courts in order that the accused be convicted andthe sentence be enhanced.

VI. LEGISLATION ON THE AREAS OF CORRUPTION
There is various legislations in Myanmar containing provisions for taking action against
corruption.
1. The Prevention of Corruption Act
It is the main law and it provides more effective measures. This Law provides special rules ofevidence that the burden of proof relies on the accused, if the acceptance of a bribe by the accused hasbeen proved. The Law also provides that the Court may presume an accused guilty of corruption if heowns or owned too much money or properties beyond his income, where the accused cannot prove his
lawful ownership of such money or properties. Any person convicted under section 4(1) (c) /4(2) of thislaw is punishable with imprisonment for a term which may extend to seven years. Besides, all benefits
obtained by the accused by committing such offense shall be confiscated. The punishment under this law ismore severe and effective than the punishment prescribed under the Penal Code. So, in Myanmar, serious
corruption cases are prosecuted under with law. The law also authorizes investigating police officers tomake necessary inspections of the bank accounts or registers of the accused and / or his or her dependents.
However, the law requires obtaining prior sanction from the relevant appointing authority of the accused
before taking action under this Law.
2. The Penal CodeIt provides, under sections 161 to 171, corruption offences by or relating to public servants. Taking ofgratification by public servants other than legal remuneration in respect of an official act; taking gratificationin order, by corrupt or illegal means, to influence a public servant, taking gratification for exercise ofpersonal influence with public servant, without consideration, from persons concerned in proceedings orbusiness transacted by a public servant, disobeying direction of the law by a public servant, with intent tocause injury to any person, framing an incorrect document by public servant with intent to cause injury
to any person; unlawfully engaging in trade by a public servant, are corruption offences punishable withimprisonment ranging from one year to three years, or with fine, or with both.
3. The Narcotic Drugs and Psychotropic Substances Law
It has particular provisions for taking action against investigating officers who commit corrupt acts.
Section 18 of the Law provides, inter alia, that a person authorized to search, arrest, seize, exhibit andinvestigate in respect of any offence under that law shall be, on conviction, punished with imprisonment
for a term which may extend from 5 years to 10 years, if he is guilty of asking for and accepting any money
and property as gratification either for him or herself or for another person, or accepting a narcotic drug or
psychotropic substance unlawfully.
4. The Control of Money Laundering Law
The Law prescribes, under section 25, members of the investigation body not to demand or accept− 111 −

money or property either for him or herself or for any other person as a gratification; substitution of anoffender with any other person so that action cannot be taken against him or her imprisonment of anoffender without taking action against him or her. The breach of such prohibitions may be punishable withimprisonment for a term which may extend from a minimum of 3 years to a maximum of 7 years and may
also be liable to a fine.
5. The Myanmar Police Force Maintenance of Discipline Law
It has wide provisions concerning corruptions. Especially, its sections 17 and 18 provide various kindsof corruptions. Section 17 prohibits a person subject to that law not to commit, unnecessarily detaining ofa person against the law, failing to bring his or her case before the proper authority for investigation, taking
in or bringing in or allowing to be taken in, due to his or her negligence, articles which are prohibited frombeing taken in or brought into the prison or police custody, causing or allowing a prisoner or a person incustody to strike or otherwise ill-treat another person subject to that Law or any prisoner under custody,
striking or ill-treating his or her subordinate, allowing to escape any person for whom he or she has aduty to keep or guard, and demanding or accepting cash or kind in a corrupt manner from any person.
The offender who violates any of such prohibitions, on conviction by Police Court, may be punished withimprisonment up to 3 years or less punishment as prescribed in that Law. Section 18 of the Law further
prohibits a person subject to that Law not to commit theft of any property belong to the Myanmar Police
Force or any person subject to that Law, dishonestly misappropriate or convert to his or her own use ofsuch property, committing criminal breach of trust in respect of such property, dishonestly receive or retain
any such property, will-fully destroy or injure or cause loss through negligence of any such property,
dishonestly misappropriate, obliterate, destroy , injure or cause loss through negligence, any exhibit, or
do any other thing with intent to defraud or to cause wrongful gain or wrongful loss. The violation of
any of such prohibitions shall be punishable with imprisonment up to 3 years or such less punishment asprescribed by that Law.
6. The Defense Services Act, the Pyithu Hluttaw Election Law, the Commercial Tax Law, the Forest Law
and the Fire Services Law
They also provide provisions for taking action against corruption.
7. The Criminal Law Amending Act
It is the more effective procedural law in taking action against corruptions. If the Government has
the reasons to believe that an accused in a corruption case obtained money or property by committing suchan offence, it may direct to submit an application to the District Administrative Officer for the attachmentof a warrant on such money or property. These speedy actions may deter or freeze or exhibit the money orproperty obtained by the accused in a timely manner.

VII. THE MEANING OF THE LAW TAKING ACTION AGAINSTTHE OWNERSHIP OR SALE OF PROPERTY OBTAINED BYILLEGAL MEANS
It means the Government is authorized to confiscate movable or immovable property of a person
who obtained such property by illegal means or from illegal business or brought with money evaded fromincome tax.

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VIII. MYANMAR TAKING ACTION AGAINST CORRUPTION
Myanmar launched many operations to suppress corruption from 1974 to 1988. The Crocodile
Operation, Machinery Operation, Shark Operation, Hinsa Operation, and Varasein (or Thunder Bolt)
Operation are significant among others. The White Elephant Operation was also a special one and thisOperation took action against even intelligence and customs officials.

IX. CRIMINALIZATION OF MONEY LAUNDERING
Money Laundering was criminalized under several provisions contained in the Control of Money
Laundering Law 2002. To implement this Law effectively, Rules relating to the Control of Money
Laundering Law was issued in 2003.The Central Control Board formed under this Law has the powers topass an order confiscating money and property obtained by illegal means(Section 8(1)).Chapter IX of theRules prescribes the details for confiscation.

X. RELATED INSTITUTIONAL MEASURES◦In Myanmar, corruption cases are cognizable case under the provisions of the Code of Criminal
Procedure. Therefore those cases may be investigated by the Bureau of Special Investigation officers orPolice Officers without obtaining warrant of a court. Bureau of Special Investigation (BSI) is conferredauthority to investigate corruption cases under the provisions of the Bureau of Special Investigation and theInvestigation Department Act, and the Myanmar Police Force is authorized to do so under the provisionsof the Code of Criminal Procedure.
◦Being a cognizable case, BSI Officers and Police Officers may book case against the accused at therespective police station, request for sanction to prosecute the accused from the relevant Ministry, arrest theoffender, examine the accused and witnesses, seize the exhibits, construct the case, ask for expert opinions
on the exhibits if necessary, ask for legal advice from the Office of the Attorney General or various Law
Offices for sound construction of the case and reconstruct the case in accordance with the legal adviceof the Office of the Attorney General or the respective Law Office, and file the case before a competentand relevant Court. Usually, the Bureau of Special Investigation investigates serious corruption cases andrefers other corruption cases to Myanmar Police Force for investigation. If the case is not strong enoughfor sending up to the Court, and it is necessary to take some other action, such corruption case is referredto the Government department concerned for taking departmental action.
◦Under section 197 of the Code of Criminal Procedure, if an accused who is a Judge, Magistrate orany public servant who is not removable from his or her office save by or with the sanction of the President
or relevant Ministry, is accused of any offence alleged to have been committed by him or her while actingor purporting to act in the discharge of his or her official duty, no Court shall take cognizance of suchoffence except with such previous sanction.
◦When such cases are sent up before the Courts, BSI prosecutors or Law Officers conduct prosecution
in those cases. Throughout the prosecution period, prosecutors consult with the relevant Investigation
Officers of the case to construct the case strongly. If necessary, the Law Office concerned files appeals
or revisions against the order and judgment of original or appeal Court to enhance punishment so as toobtain effective and deterrent punishments. The BSI may request the relevant Law Office to file revisionin those cases. If the accused is acquitted by the Court, The Office of the Attorney General may file anappeal against acquittal order to the Supreme Court. The BSI or the Myanmar Police Force may apply tothe relevant Law Office or Office of the Attorney General to file an appeal against acquittal.

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XI. ADMINISTRATIVE MEASURES AGAINST CORRUPTION
All civil service personnel in Myanmar are responsible for abiding by the Fundamental Rules andSupplementary Rules. Those Rules prescribe that Government servants shall not, except with the priorsanction of the Government, accept directly or indirectly on his or her own behalf or on behalf of any otherperson, or permit any member of his or her family so as to accept any gift, gratuity or reward.

XII. CONFISCATION, FREEZING AND SEIZING OF PROCEEDSOF CRIME◦Myanmar laws allow for the confiscation of criminal property under the following pieces oflegislation:(i)
Narcotic Drug and Psychotropic Substances Law 1993 in respect of cases concerning the followingoffences:(a)	Cultivation, Possession, Transportation, and Sale of narcotic drugs, psychotropic substances orchemical/plants used in the production of the same;(b) Laundering the proceeds of (a);(c) Accepting Bribes in connection with (a);(d) Conspiracy to commit (a) or (b).
(ii)
Section 8(i) of the Control of Money Laundering Law, 2002 allows the CCB to pass an orderconfiscating money and property obtained by illegal means.
(iii)
The Code of Criminal Procedure, 1889, Section 517 allows for the general confiscation of items ofproperty including money, and other valuable property.
◦Although Criminal Procedure Code Section 517 is general in nature, it can widely apply and use invarious corruption cases before the court as evidence and exhibits including money and property. Criminal
Procedure Code Section 517 provides as follows:(1) When an inquiry or a trial in any criminal Court is concluded, the Court may make such order as it
thinks fit for the disposal, by destruction, confiscation, or delivery to any person claiming to be entitledto possession thereof, or otherwise, of any property or document produced before it or in its custody, orregarding which any offence appears to have committed, or which has been used for the commission of anyoffence.
(2) When the High Court or a Court of Session makes such order and cannot through its own officers
conveniently deliver the property to the person entitled thereto, such Court may direct that the order be
carried into effect by the District Magistrate.
(3) When an order is made under this section such order shall not, except where the property is livestock or
subject to speedy and natural decay, and save as provided by sub-section(4), be carried out for one month,or, when an appeal is presented, until such appeal has been disposed of.
(4) Nothing in this section shall be deemed to prohibit any Court from delivering any property under
the provisions of sub-section (1) to any person claiming to be entitled to the possession thereof, on hisexecuting a bond with or without sureties to the satisfaction of the Court, engaging to restore such property
to the Court, if the order made under this section is modified or set aside on appeal.
Explanation.--In this section the term “property” includes in the case of property regarding which an− 114 −offence appears to have been committed, not only such property as has been originally in the possession orunder the control of any party, but also any property into or for which the same may have been converted
or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.
I also would like to present the MFIU.

XIII. THE FINANCIAL INTELLIGENCE UNIT AND ITS FUNCTIONS◦ The Central Control Board on Money Laundering Order 3/2004 established the Myanmar Financial
Intelligence Unit ("MFIU"). Myanmar has chosen the Law Enforcement model of an FIU. The MFIU
is a unit under the Ministry of Home Affairs; it is headed by a Police Colonel, the head of the Myanmar
Police Force's ("MPF") Department against Transnational Crime.
◦ The MFIU is the sole body in Myanmar authorized to receive transaction reports. The reports aredelivered to the MFIU by the reporting bodies either by courier/messenger or through the post or by
fax or electronic means.
◦ The MFIU has signed MOUs to govern the exchange of information and financial intelligence with theThai FIU, AMLO and Indonesian FIU, PPATK.

XIV. DOMESTIC AND INTERNATIONAL COOPERATION FOR
EFFECTIVE INVESTIGATION AND PROSECUTION OF
CORRUPTION
Bureau of Special Investigation, Myanmar Police Force and Law Office cooperate for soundconstruction of the corruption cases at the pre-trial stage and during trial period. The Courts at variouslevels pass effective and deterrent punishments against the offenders of corruption cases. The Supreme
Court instructs all Courts at all levels to pass effective and deterent punishments, on conviction, against theaccused of corruption cases.

XV. INTERNATIONAL COOPERATION◦ Myanmar is a Party to the ASEAN Treaty on Mutual Assistance in Criminal Matters. Under this treaty
assistance is rendered among Parties. Besides, Myanmar has already enacted The Mutual Assistancein Criminal Matters Law 2004. It is the main Law in Myanmar for bilateral, multilateral and regional
co-operation for effective search, seizure and confiscation of exhibits in criminal matters including
corruption.
◦ This Law contains provisions for Search, Seizure and Confiscation of Exhibits as follows:
Section 25
With respect to request of any foreign State the Central Authority shall, if granted
after scrutiny the request of a foreign State to search, seize, control, issue restraining order or confiscate theexhibit is granted instruct the relevant government department and organization to search, seize, control,
issue restraining order and confiscate in conformity with the existing laws.
Section 26(a) The Central Authority shall administer the property seized as exhibits, property
controlled and property confiscated under the request of a foreign State in conformity with the bilateralagreement.
Section 26(b) If there exists no bilateral agreement between the two States, the confiscated property
shall vest in the State.
◦ Myanmar has already signed the United Nations Convention against Corruption and thoroughly studies− 115 −

the Convention for the development of a main Law to effectively suppress the corruption.

XVI. CONCLUSION
This is the current situation in Myanmar. Myanmar has a good basic legal and regulatory frameworkfor freezing, seizure and confiscation. However, in international co-operation in corruption cases,
Myanmar has little experience. Myanmar is ready to co-operate in this area and make the provisions oflaws operational.
Thank you.

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