LEGISLATION RELATING TO PROTECTION AND
COOPERATION OF WITNESSES IN THE UNION OF MYANMAR
San Lin＊I. INTRODUCTION
Since a criminal case is built upon the evidence provided by witnesses, each and every statement of
witnesses is very important as it can change the course of the whole case. Witnesses play a crucial role in law
enforcement efforts to bring the perpetrators to justice. Often, however, witnesses are intimidated, threatened,
harmed and harassed to prevent them from speaking out. On the other hand, witnesses deviate from telling
truth because of being inﬂuenced by corruption and bribery. So that the need of witnesses protection can beclassiﬁed in two categories. The ﬁrst one is to protect the physical and mental security of the witnesses frombeing threatened, intimidated, harassed and harmed before, during and after investigation, inquiry and trial.
The second one is to prevent the witnesses from giving false statement and evidence to the responsibleofﬁcials, police ofﬁcers and the court during investigation, inquiry and trial. The role of witnesses is very
important in a trial and in the criminal justice system of every country. Witnesses are required, and secure
protection and cooperation of witnesses is essential to maintain the rule of law. Likewise, the whistleblowers
who disclose improper conducts, malpractices and wrongdoings of lawbreakers are also required for the
public interest. Legislation relating to establishment of witnesses and whistleblowers protection programme isrequired.

II. THE LEGISLATION RELATING TO PROTECTION AND
COOPERATION OF WITNESSES IN GENERAL
Though the particular law relating to protection and cooperation of witnesses has not been enacted in
Myanmar, there are some existing laws containing the provisions which have the nature and characteristics ofprotection and cooperation of witnesses.
A. Protection of Witnesses
To protect witnesses from being asked indecent, scandalous, vexatious, offensive questions, andquestions intended to annoy or insult them, Sections 151 and 152 of the Evidence Act provide as follows:
Section 151. The Court may forbid any questions or inquires which it regards as indecent or scandalous,
although such questions or inquires may have some bearing on the questions before the Court, unless they
relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts inissue existed.
Section 152. The Court shall forbid any question which appears to it to be intended to insult or annoy, or
which, though proper in itself, appears to the Court needlessly offensive in form.
In preventing and suppressing trafﬁcking in persons, to pay particular attention of women, children
and youth, preventive measures for women, children and youth is widely provided in the Anti Trafﬁcking in
Persons Law enacted in 2005. Under that law, the Deputy Attorney General is the head of Working Group on
Legal Framework and Prosecution Measures. One of the functions and duties of the Working Group is to lay
down and carry out necessary arrangements for the effective protection of trafﬁcked victims and witnesses inprosecuting cases under that law.
＊State Law Ofﬁcer (Director), Mon State Law Ofﬁce, Ofﬁce of the Attorney General, Union of Myanmar.

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In respect of safeguarding the rights of trafﬁcked victims, preventive measures are provided in that
law as follows:
Section 11. In order not to adversely affect the dignity of trafﬁcked victims:(a) if the trafﬁcked victims are women, children and youth, the relevant Court shall, in conducting the trialof offences of trafﬁcking in persons, do so not in open court, but in camera for the preservation of theirdignity, physical and mental security.
(b) with respect to trafﬁcking in persons, the publication of news at any stage of investigation, prosecution,
adjudication shall be made only after obtaining the permission of the relevant Body for the Suppressionof Trafﬁcking in Persons.
(c) person not involved in this case shall not be allowed to pursue or make copies of documents containedin the proceedings.
Section 12. The Central Body shall, if the trafﬁcked victims are women, children and youth, make necessary
arrangements for the preservation of dignity, physical and mental security.
Section 14. The Central Body shall arrange and carry out for the security of life of trafﬁcked victims andrepatriation and resettlement as much as possible.
Under section 16 of that law, with respect to the trafficked victims who are women, children andyouth, the Central Body and relevant Working Groups are responsible to give special protection of theirdignity and identiﬁcation and necessary security and assistance, and to give protection by keeping conﬁdential
the information relating to them.
Under section 19(e) of that law, the Central Body is responsible to lay down the security programmes
and to make arrangements for other rights entitled while the trafficked victims are giving testimony orcontesting a case.
Regarding hearing in camera, similar provision is provided in section 352 of the Code of Criminal
Procedure as follows:
Section 352. The place in which any criminal Court is held for the purpose of inquiring into or trying any
offence shall be deemed an open Court, to which the public generally may have access, so far as the same canconveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks ﬁt, order at any stage of any inquiry into, or
trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be
or remain in, the room or building used by the Court.
Under section 16 of the Brothel Suppression Act, 1949, if a person who is found having sexualintercourse or who is found in the circumstances visible for having sexual intercourse is produced as a witness
he shall be tried in camera.
Under section 66(e) of the Child Law, any person who commits the offence relating to inserting andannouncing information revealing the identity of a child who is accused of having committed an offence or
who is participating as a witness in any case, in the radio, cinema, television, newspapers, magazines, journals
or publications and displaying or making use of the photograph of the child without the prior consent of therelevant juvenile court shall, on conviction, be punished with imprisonment for a term which may extend to 2
years or with ﬁne which may extend to kyats 10,000 or with both.
B. Protection and Cooperation of Informers
In uncovering criminals and suppression of offences, getting information is crucial. However, if theinformer is to be identiﬁed in serious crimes, the person who knows the commission of an offence will notgive information relating to the offence as he is afraid of facing the danger made by the offenders as
retaliatory action.
To protect the safety of informers, section 125 of the Evidence Act provides that no Magistrate orpolice ofﬁcer shall be compelled to say whence he got any information as to the commission of any offence,and no revenue ofﬁcer shall be compelled to say whence he got any information of any offence against the
public revenue.
Similar provisions are inserted in some other laws to preserve the safety of informers and to get theircooperation in uncovering the commission of serious crimes.
Under section 8(j) of the Control of Money Laundering Law enacted in 2002, the Central Control― 88 ―

Board formed by the Government has the power to give necessary protection and giving reward to an
informer in respect of money and property obtained by illegal means.
As gambling leads malpractices, corrupt practices and commission of other offences, suppression ofgambling is crucial for community peace and law and order. To uncover and suppress gambling, cooperationof informers is essential. For this matter, section 20 of the Gambling Law empowers the Magistrate who tries
the case to pass order to give at least ﬁve hundred kyats, the money gained from forfeiture, or conﬁscation, or
the money gained from selling properties passed order to be confiscated under that law as reward to theinformer.
To impose more effective penalties on offenders in respect of offences relating to narcotic drugs andpsychotropic substances, and to cooperate with the States Parties to the United Nations Convention,international and regional organizations in respect of the prevention of the danger of narcotic drugs andpsychotropic substances, the Narcotic Drugs and Psychotropic Substances Law was enacted in 1993.
Under Rule 65 of the Rules Relating to Narcotic Drugs and Psychotropic Substances, the Central
Body may make such measures as may be necessary for giving reward to the following persons in respect of
an offence which action has been taken under the Narcotic Drugs and Psychotropic Substances Law, with theapproval of the Government:(i) a person who gives an information relating to a commission of an offence contained in the saidlaw;(ii) undercover informer;(iii) the persons who outstandingly make investigation, search and seizure to be able to seize thedrugs, materials and offenders involving in the offence.
C. Prevention of Corruption
Corruption diverts witnesses from telling truth and ruins fair administration, justice and the rule oflaw. To prevent corruption, the penalties are provided in sections 161 and 162 of the Penal Code.
Under Section 161 of the Penal Code, any public servant who takes gratification other than legal
remuneration in respect of an ofﬁcial act shall, on conviction, be punished with either description for a term
which may extend to 3 years, or with ﬁne, or with both.
Any person who takes gratiﬁcation in order to inﬂuence public servant by corrupt or illegal means
shall, on conviction, incur the similar punishment under Section 162 of the said Penal Code.
To provide more effective penalties for corruption, the Suppression of Corruption Act, 1948 wasenacted.
If any public servant by corrupt or illegal means or by abuse of his ofﬁce as a public servant obtains
for himself or for any other person any valuable thing or pecuniary advantage, he is said to commit theoffence of criminal misconduct in the discharge of his duty under section 4(1)(c), 4(2) of the said Act, and heshall be punished with imprisonment for a term which may extend to 7 years and all the gains found to havebeen derived by him, by the commission of that offence shall be liable to be forfeited to the State.
Regarding suppression of corruption, more severe punishments are provided in later laws.
Under section 46 of the Forest Law enacted in 1992, any forest staff who, by reason of his power
accepts from any person cash or kind in a corrupt manner or in contravention of the law and participates andconspires in extracting, moving or unlawfully having in possession forest produce in a wrongful manner shallbe punished with imprisonment which may extend from a minimum of 1 year to a maximum of 7 years.
Under section 25(a) of the Control of Money Laundering Law, any member of the Investigation Body
who demands or accepts money or property either for himself or for any other person as a gratiﬁcation in
investigating money laundering offence shall, on conviction, be punished with imprisonment 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.
Similar punishment is provided in section 30 of the Anti Trafﬁcking in Persons Law for any publicofﬁcial who demands or accepts money and property as gratiﬁcation either for himself or for another person
in carrying out investigation, prosecution and adjudication in respect of any offence under that law.
More severe punishment is provided in section 18 of the Narcotic Drugs and Psychotropic Substances
Law. Under section18 of the said law, any person who is authorized to search, arrest, seize exhibits andinvestigate in respect of any offence under that law, and guilty of asking and accepting any money and― 89 ―

property as gratification either for himself or for another person shall, on conviction, be punished withimprisonment for a term which may extend from a minimum of 5 years to a maximum of 10 years and may
also be liable to a ﬁne:
D. Tender of Pardon to Accomplice for Making Approver or State Witness
In serious crimes involving more than one offender where there is no reliable evidence or witness,making an accomplice approver or State witness is helpful to enable effective conviction of principal
offenders. For this matter, section 337(1) of the Code of Criminal Procedure empowers the Magistrate notlower than the Magistrate of first class to tender a pardon to a person supposed to have been directly or
indirectly concerned in or privy to the offence on condition of his making a full and true disclosure of thewhole of the circumstances within his knowledge relative to the offence and to every other person concerned,
whether as principal or abettor, in the commission thereof.
Rule 66 of the Attorney General Rules made under the Attorney General Law, 2001 empowers Law
Ofﬁcers to tender conditional pardon to the accused for making him State witness in accordance with theprovisions contained in section 337 of the Code of Criminal Procedure.
Section 19 of the Gambling Law empowers the Magistrate to make a person involving in the offence
contained in that law prosecution witness and tender him a pardon in accordance with the procedures.
Section 14 of the Brothel Suppression Act,1949 empowers the Magistrate to examine a person who is
not a principal offender among the persons prosecuted under that law as a witness relating to the offence. The
person who is involved in the offence under that Act and he has made a full and true disclosure of the wholeof the circumstances relating to the offence within his knowledge to the satisfaction of the Magistrate shall beentitled to receive an acknowledgement certificate from the Magistrate under section 15 of that Act. So
receiving, he shall be exempted from being punished under that Act.
E. Immunity from Prosecution
To enable effective prevention and suppression of serious crimes including terrorism, financing ofterrorism, transnational organized crimes and crimes related to money laundering and to enable rendering ofassistance in criminal matters in accordance with international conventions, regional and multilateralagreements the Mutual Assistance in Criminal Matters Law was enacted in 2005. Under that law, immunity
for witness from prosecution is provided as follows:
Section 31. The Central Authority shall, if the person who is to give testimony, statement or expert opinion
in any foreign State has committed any offence previously in the Requested State, within 15 days or if it
exceeds 15 days from the date of arrival at the said State and making report thereof, raise the issue to get prioragreement with the said State so as not to prosecute, detain, punish or restrict personal liberty in the said State
with respect to the previous offence, during the period agreed upon by the two States.
Section 35. The relevant government department and organization shall not prosecute, detain, punish or
restrict personal liberty of a person sent by a foreign State with respect to any offence committed by him
previously in the Union of Myanmar within 15 days or if it exceeds 15 days from the date of arrival andmaking report thereof, during the period agreed upon between the two States while he is in the Union of
Myanmar to give testimony, statement, expert opinion or in person, in accordance with this law.
Under section 13 (a) of the Anti Trafﬁcking in Persons Law, the trafﬁcked victims are exempted frombeing taken action for any offence under that law.
F. Prevention of Witness from Turning Hostile
In many cases, it is on the basis of the evidence given by witnesses that the State initiates theprosecution process. Because of inadequate protection given to witnesses, they are inﬂuenced to change theirearlier statements. To prevent witnesses from turning hostile by telling lie, police officers making an
investigation into an offence, as the statement made to the police ofﬁcer is an inadmissible evidence, forward
the crucial witnesses to the Magistrate for recording the statements of the witnesses before commencement of
the trial. If the earlier statement to the Magistrate and the later statement made to the Magistrate during thetrial contradict each other, action can be taken to the witness for giving false evidence.
Punishment for giving false evidence is provided in section 193 of the Penal Code as follows:― 90 ―

Section 193. Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricatesfalse evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished withimprisonment of either description for a term which may extend to 7 years, and shall also be liable to ﬁne:and whoever intentionally gives or fabricates false evidence in any other case shall be punished withimprisonment of either description for a term which may extend to 3 years, and shall also be liable to ﬁne.
G. Obstruction of Justice
The legislation addressing the use of physical force, threats or intimidation or promise, offering or
giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the
production of evidence can be found in the Penal Code.
Under section 352 of the said Penal Code, whoever assaults or uses criminal force to any person
otherwise than on grave and sudden provocation given by that person shall be punished with imprisonment ofeither description for a term which may extend to 3 months or with ﬁne or with both.
Under section 506, whoever commits the offence of criminal intimidation shall be punished withimprisonment of either description for a term which many extend to 2 years, or with ﬁne, or with both; and if
the threat be to cause death or grievous hurt, or to cause the destruction of any property by ﬁre, or to cause an
offence punishable with death or transportation or with imprisonment for a term which may extend to 7 years,
or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term
which may extend to 7 years, or with ﬁne, or with both.
Under section 507, whoever commits the offence of criminal intimidation by an anonymous
communication, or having taken precaution, to conceal the name or abode of the person from whom the threat
comes, shall be punished with imprisonment of either description for a term which may extend to 2 years in
addition to the punishment provided for the offence by the above mentioned section.
The penal provisions relating to the use of physical force, threats or intimidation to interfere with theexercise of ofﬁcial duties by a justice or law enforcement ofﬁcial are provided in the Penal Code as follows:
Section 186. Whoever voluntarily obstructs any public servant in the discharge of his public functions shallbe punished with imprisonment of either description for a term which may extend to 3 months, or with ﬁne orwith both.
Section 189. Whoever holds out any threat of injury to any public servant, or to any person in whom hebelieves that public servant to be interested, for the purpose of inducing that public servant to do any act, or
to forbear or delay to do any act, connected with the exercise of the public functions of such public servant,shall be punished with imprisonment of either description for a term which may extend to 2 years, or withﬁne, or with both.
Section 228. Whoever intentionally offers any insult, or causes any interruption to any public servant, while
such public servant is sitting in any state of a judicial proceeding, shall be punished with simple imprisonment
for a tem which may extend to 6 months, or with ﬁne which may extend to one thousand kyats, or with both.
The punishment for assault or criminal force to deter public servant from discharge of his duty is an
imprisonment for a term which may extend to 2 years or with ﬁne, or with both under section 353 of the Penal
Code.

III. CONCLUSION
Nowadays, many developed countries all over the world have developed their legislation bypromulgating protection and cooperation of witnesses laws containing the provisions relating to various
preventive measures and necessary arrangements for the witnesses who are under threat, intimidation and indanger. In Myanmar, since occurrence of offences harmful to the physical and mental security of witnesses
retaliated by offenders is rare, so far, the particular law relating to protection of witnesses has not been stillpromulgated. But, when the situation requires, Myanmar may consider to promulgate the special law relating
to protection of witnesses.

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