CURRENT CHALLENGES AND BEST PRACTICES IN THE
INVESTIGATION, PROSECUTION AND PREVENTION OF
CORRUPTION CASES
Khin Cho Ohn*I.

INTRODUCTION

Corruption is a chronic disease that damages the merits and aptitude of human beingsand swallows resources from the earth. Although we all have been trying to eliminate thedisease, it is still surrounding us. The more globalization the world has achieved, the morecorruption increases. When criminals who commit corrupt acts use this technique for theircrime, what can we do, what should we do? We have to cooperate and assist each other ineliminating the corruption on this earth, absolutely.
II.

HISTORY OF ANTI-CORRUPTION LAWS IN MYANMAR

Before ratifying the United Nations Convention against Corruption, anti-corruption inMyanmar had a long, deep legal history dating back to 1885. After three Anglo-Burmese
Wars with the British, the Kingdom of Myanmar was annexed to the British Empire in 1885.
The Penal Code and the Criminal Procedure Code were introduced in Myanmar and they
were widely used till 1948 when we received independence. Even after independence thePenal Code and the Criminal Procedure Code continued to be in legal effect. Regardingcorruption, there was an old law, the Suppression of Corruption Act, 1948. Myanmar has
adopted the English Common Law Legal System in a modified manner taken from India.
Myanmar ratified the ASEAN Mutual Legal Assistance Treaties (AMLAT) in 2004 anda domestic law, the Mutual Legal Assistance in Criminal Matters Law was enacted after that.
After ratifying the United Nations Convention against Corruption, the Anti-Corruption Law
was promulgated by the Pyidaungsu Hluttaw (Parliament) Law No. 23/2013 on 7th Aug 2013.
In this paper I will present the challenges and the best practices in investigation, prosecution
and prevention of corrupt acts.
III. GENERAL PRACTICE OF CRIMINAL CASESAs Myanmar practices the Indian Legal System, investigation is not done by the Union
Attorney General’s Office (UAGO). The Union Attorney General’s Office is the main officewith 14 Region and State Advocate General’s Offices, District Law Offices and Township
Law Offices under it. One of the functions of the UAGO is prosecution, and investigation isdone by the prosecuting body which is under the Ministry of Home Affairs. The procedurefor the prosecuting body is prescribed in the Criminal Procedure Code. The Bureau of Special
Investigation is one of the prosecuting bodies. It was formed according to the Bureau of*

Deputy Director General of the Union Attorney General’s Office, Myanmar.

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Special Investigation Act, 1951. The functions of the Bureau are: investigation, submitting
legal opinions on cases, prosecution, collecting and submitting intelligence. The prosecution
officer of the Bureau conducts criminal cases on behalf of the state before the Court under theBureau of Special Investigation Act, 1951.
The function of the UAGO is controlled by the Attorney General of the Union Law. I
will present the procedure of prosecution from a Law Officer’s point of view. In respect of aninvestigation, when a report of the prosecuting body is received, a Law Officer examines
whether the facts are complete or not in conformity with law. After that, the Law Officer
gives an opinion on the case. Then the case is sent back to the prosecuting body, and the caseis filed with the respective Court. The duty of a Law Officer is like a computer: the output
will come out depending on the input or facts. If the facts are not complete, the opinion givenby the Law Officer will not be accurate. Therefore, the first challenge in investigation is thatsome facts collected by the prosecuting body are insufficient.
Times change and general practice also changes. There were few issues in theinvestigation of corruption cases under the old law, the Suppression of Corruption Act, 1948.
The police examined the accused and witnesses, took custody of remands, seized money andproperty and filed their case at the court. After ratifying the United Nations Convention
against Corruption, the Anti-corruption Law was promulgated and there came challenges.
Under the new Law, the President of Myanmar formed the Anti-Corruption
Commission comprising one Chairperson and one Secretary among the fifteen members withthe approval of the Pyidaungsu Hluttaw (Parliament) to combat corrupt acts. The
Commission conducts enquiries into bribery and illicit enrichment of suspects andinvestigates them. For enquiry and investigation, the Commission forms the Investigation
Board which is led by any member of the Commission with appropriate citizens and thePreliminary Scrutiny Board with the appropriate persons on case-by-case basis. When theCommission receives information from the President of the Union and two Speakers ofParliament and complaints by aggrieved persons, it directs the Investigation Board to enquirefrom the suspect about his actions and illicit enrichment. But at first instance, investigation
causes the suspect to get the right to explain the allegations. If he can explain with strong
evidence, he will be free. In doing so, investigating the suspect, it is said that the provision of
the new Law is good at practicing humanity and ensuring the rights of the suspect. But someaccused are absconding while the case is under investigation. It is one of the challenges. We
are considering issuing a separate law or directive to overcome this challenge. Moreover, theAnti-Corruption Law and rules related to it also need to be amended.
IV. PROSECUTION
When a case related to corruption is filed, the Anti-Corruption Commission requests theUAGO to take part in the corruption case. When the UAGO receives the request from theCommission, I, as the Deputy Director General, as well as the head of the Prosecution
Department, direct the Advocate General’s Office of the respective Region or State to attacha Law officer to the case. The case is constructed on the facts of the investigation. There aretechnical deficiencies in the court so the cooperation of the prosecuting body and the Law
Officer is needed. Sometimes there are prosecution witnesses before the court, who deny thestatements attributed to them in police papers. In these cases, the conducting law officer has
to compare their statements before the court with the police paper. In some cases, important- 113 -witnesses do not appear before the court. In these cases, the appearance of witnesses iswaived. This is a challenge during the prosecution of these cases.
When the accused is acquitted at trial, it is necessary to appeal to the respective High
Court of Region or State or the Supreme Court of the Union against the acquittal. But there isa limitation of six months for an appeal against acquittal. If the limitation is exceeded, it isnecessary to draft an affidavit. This is one of the challenges facing Law Officers. In theprosecution of some corruption cases, the prosecuting body cannot seize money and property
related to the corruption as the accused refuses to produce the evidence. In these cases, wehave to collect circumstantial evidence. Sometimes there are loopholes because of
insufficient circumstantial evidence. The English Common Law Legal System says “A manis presumed to be innocent until he is proved to be guilty.” The burden of proof lies withprosecution and the Law Officer. Although the jury system was once initiated, there wereweaknesses in using it because of the custom and culture of the Myanmar Society. All thejudgements are made by the Court. It is a maxim of the English Common Law that “It isbetter for ten guilty persons to be acquitted then for one innocent man to be convicted.”
V. PREVENTION
The Ministry of Home Affairs is more responsible for the prevention of corruption thanLaw Officers. At this point, the rule of law is essential for the prevention of offences. Thiscan be done with the cooperation of three pillars of justice mainly the Prosecuting Body, theUnion Attorney General’s Office and its subordinate offices and the Courts. The ProsecutingBody has to collect the facts, the Union Attorney General’s Office has to conduct the casewhether the accused is guilty or not and the court has to give an effective deterrent judgement.
The rule of law is fundamental for the prevention of crimes and can produce Good
Governance. Our old practice has been done with experience passed from senior lawyers tojunior lawyers. During the time of the new Government, we conducted 56 workshops andseminars with the cooperation of the UN and International Organizations, International Law
firms, the Attorney General’s Chambers and the Ministry of Law of ASEAN countries. The
first seminar was with the European Union (EU) on the “Rule of Law” in February 2012. Itwas the largest international seminar in Myanmar with experts from 20 countries present, andit was attended by personnel from the Legislature, Executive and Judiciary. The attendees
amounted to 250 people. Whenever we conduct international workshops and seminars, weinvite the other two pillars of the State, namely, the Legislature and the Judiciary. Conducting
seminars and workshops gives awareness to the participants and other attendees, whodisseminate the knowledge gained to their colleagues.
We engaged the UNDP to have their country programme, an agreement with Japan
International Cooperation Agency (JICA), and USAID, and created a Design Workshop torestructure the functions of the UAGO. The Ministry of Law of Singapore signed an MOU
with us, and the Japan International Cooperation Agency (JICA) signed a Record ofDiscussion. We already have two MOUs with China and Lao PDR. We just signed an ROD
with the Republic of Korea (KOICA) on 14th October 2015.
Internationally, the Attorney General of the Union gives keynote addresses around theworld. He was the at APEC (the Asia–Pacific Economic Conference) Pathfinder Dialogue inBangkok and the Rule of Law Seminar in Bangkok conducted by the American BarAssociation, Department of State of USA and the Royal Family of Thailand. He also gave a- 114 -keynote address at the International Legal Aid Conference in Johannesburg, South Africa. He
also gave a speech in Singapore organized by the AGC on the Changing Role of theMyanmar Legal System. These are landmarks in the prevention of corruption as well as Ruleof Law.
VI.

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS LAW

Myanmar promulgated the Mutual Legal Assistance in Criminal Matters Law 2004 tobe in line with international standards. This law was drafted with the help of the UNODC andwas approved by the Financial Action Task Force (FATF). FATF comprises 36 member
states and is headquartered in Paris, France. Myanmar ratified the ASEAN Mutual Legal
Assistance Treaty (AMLAT) in 2004 and also checked whether our law was in conformity
with the AMLAT. Every letter of the treaties and the spirit of the treaties are in conformity
with the Law. The Ministry of Home Affairs issued the Mutual Assistance in Criminal
Matters Rules in the same year. The Government shall form the Central Authority forrendering assistance among states in criminal matters in which the Union Minister of theMinistry of Home Affairs is a Chairman, the Deputy Attorney General is one of the members
and the Director General from Myanmar Police Force is Secretary.
According to this law, any foreign state requesting assistance of Myanmar in criminal
matters shall:(a) If it is a State Party to the international convention or regional agreement to which
the Union of Myanmar is a State Party or a state which has a bilateral agreementwith the Union of Myanmar, requests for assistance are to be submitted directly to
the Central Authority;(b) If it is the State Party to the international convention or regional agreement towhich the Union of Myanmar is not a State Party or the state that has not enteredinto a bilateral agreement with the Union of Myanmar, requests for assistance are
to be submitted to the Central Authority through diplomatic channels.
Any foreign State may, in making a request under section 10, with respect toinvestigation, prosecution and judicial proceedings in criminal matters include and request
the following matters:(a) Taking evidence or statements from any person;(b) Rendering service so that judicial documents shall have effect;(c) Examining objects and sites;(d) Identifying or tracing money or property that is relevant to the offence to be used
for evidentiary purposes ;(e) Execution of searches, seizures, control, issuing restraining orders andconfiscation of exhibits;- 115 -

(f) Obtaining information, documents to be used for evidentiary purposes, records
and expert opinions;(g) Providing originals or certified copies of relevant documents and records to be
used for evidentiary purposes;(h) Exposing the residential address of offenders, location of the exhibits and othernecessary information;(i) Other matters in respect of which the Central Authority has agreed to giveassistance.
The requesting state shall, in making a request mention the following facts in theMyanmar language or the English language:(a) Name and designation of the authority making the request;(b) Statement setting out a summary and nature of the case relevant to the request;(c) Necessary identity, address and nationality of the person concerned;(d) Procedures for rendering assistance in matters for obtaining evidence;(e) Period and limitation during which the request is to be complied with;(f) Information to be exposed and evidence to be obtained;(g) Statement to perform confidentially if the matter is required to be performed
confidentially;(h) Extract of relevant laws, rules and procedures exercised in one’s own state inrespect of the requested assistance and the reasons thereof;(i) Name, function and responsibility of the person conducting the investigation orprosecution in judicial proceedings in one’s own state;(j) Other necessary information.
The requesting state may, in urgent circumstances, make a request orally by telephone
facsimile, electronic mail or other electronic means including computer networks. In making
such requests the original letter of request shall be sent to the Central Authority without delay.
The Mutual Legal Assistance in Criminal Matters Law is an existing law, but to date there isno case related to this law and no country in ASEAN has submitted requests on this matter.
VII.

PUBLIC–PRIVATE PARTNERSHIP AND BEST PRACTICE

Corruption is a difficult issue to deal with. To tackle corruption cases, it is necessary tohave the cooperation of the government and the public. Corruption cases can be constructedon the complaint of the public, and we have announced hotline numbers for use by the public- 116 -

for such complaints. We also advertise in the newspapers for public awareness. There aresome sample cases which resulted in the punishment of the accused based on complaints
received from the public. One of these is where the Homalin Township Judge of Sagaing
Region decided judgements which were not consistent with the law; thus, he was involved incorrupting criminal cases. He was sentenced by the High Court of the Sagaing Region withimprisonment for a term of 10 years with labour. Due to information from the representativeof the Homalin constituency, the above case was discovered. When the Anti-Corruption
Commission receives a complaint, it forms, if necessary, an investigation board andPreliminary Scrutiny Board to investigate these offences. Then, the Commission requests theUAGO to give legal advice on these offences. During investigation and prosecution, theprosecuting body and the UAGO need to cooperate. It is the best practice that the prosecuting
body and the UAGO work cooperatively. Then the Commission requests the Union Attorney
General’s Office to give legal advice for these offences. It may therefore be said that the bestpractice for corruption cases is also public communication and engagement. Since this is thebest practice, and there will then be the rule of law and hence we have “Good Governanceand Clean Government”. The government alone cannot apply best practices without theactive participation of the public. Public–Private Partnership is necessary. To achieve this, thepublic must be “Good People, Clean People”.
VIII. WHISTLE-BLOWER PROGRAMME OR WITNESS PROTECTONMEASURES
Myanmar provides whistle-blower and witness protection in section 17(i) of the AntiCorruption Law. The Commission gives necessary protections and rewards to the informer inthe matter of revealing and taking action for informing, provided there is credible evidence inrespect of the bribery or enrichment by bribery allegation. The Commission can also issue
rules about this, but the practice is not widely used yet.
IX.

CONCLUSION

Myanmar has come a long way in its legal system since belonging to the English
Common Law legal family. The judge is responsible for the judgement, the Law Officers forprosecution and the prosecuting body for investigation. Cooperation among these three
institutions is necessary for combating crimes. As a step in both law and practice inintroducing the fight against corruption, Myanmar has ratified the United Nations
Conventions against Corruption (UNCAC) and the ASEAN Mutual Legal Assistance Treaty.
Myanmar also promulgates domestic laws related to these treaties and applies these laws. In
applying these laws, we face challenges. Challenges are everywhere but the most important isto overcome them. Myanmar is trying its best to overcome these challenges in both law andpractice.

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