BEST PRACTICES IN ANTI-CORRUPTION
Aung Myo*I. INTRODUCTION
1.
Corruption poses a serious problem and affects every country, and it impacts each andevery human being. It is a fact that there are links between corruption and other forms of crime,
including money laundering. Corruption is no longer a local matter. It is a transnational
phenomenon. To prevent, control and eradicate corruption is a responsibility of all of us. To
enforce the enacted laws and regulations of each country, it is required to develop a sound anticorruption mechanism and political will.
2.
In Myanmar, corruption is widespread, and it will be a great challenge to eliminate such
malpractice in the shortest time possible. Nevertheless, bribery and corruption disturb thesociety, economics, and the rule of law at all corners, and the problem needs to be handled
effectively.
II. HISTORICAL BACKGROUND
3.
The Penal Law (1861) and the Code of Criminal Procedure (1898) were the laws which
penalize the offence of bribery and corruption. The Special Investigation Administrative Board
was established and the Special Investigation Administrative Board and Bureau of Special
Investigation Act was promulgated in 1951. In line with this act, the Bureau of Special
Investigation (BSI) was founded on 1 September 1951. The Suppression of Corruption Act
was enacted in 1948. A new law for anti-bribery and corruption was enacted in August 2013,
and the 1948 law has been repealed.
4.
Section 4 of the Anti-Corruption Law stipulates the law’s objectives: to create clean
government and good governance, to protect state-owned properties, community and rights
and benefits of the citizens from corruption and to take effective action against offenders ofcorruption. This is a clear message to the world that Myanmar is dedicated to combating
corruption as its national duty.
5.
Besides the Anti-Corruption Law 2013, there are new laws in which provisions relevant
to bribery and corruption are stipulated. These laws include, but are not limited to, the Civil
Service Personnel Law, the Foreign Investment Law, the Myanmar Citizens Investment Law,
the Myanmar Special Economic Zones Law, the Competition Law, the Consumer ProtectionLaw, the Anti-money Laundering Law, the Electronic Transaction Law, the Electricity Law,etc. However, according to section 68 of the Anti-Corruption Law, any investigation or action
taken against money or property related to corruption or enrichment by bribery shall only betaken according to this law.

*Director, Bureau of Special Investigation, Myanmar.

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6.
According to the Control of Money Laundering Law, if a person launders money andproperty obtained by corruption, he is punishable with imprisonment extending up to ten years
and may also be liable to pay a fine, and any proceeds of the crime will be confiscated. Theseare effective deterrents against the offenders of corruption cases.
III.
A.

RELEVANT AGENCIES AND INSTITUTIONS AND THEIR WORKINGMECHANISMS
Relevant Agencies and Departments

7.
According to the law, an anti-corruption commission has been formed and organizedconsisting of 15 members, of whom 5 persons are selected by the President, the Speaker ofPeople’s Parliament and the National Parliament. When the members of the commission areassigned, they must report their money, property, liabilities and rights of their family if headedby them, including beneficial ownership, to the President.
8.
The duties and functions of the commission are forming of preliminary scrutiny bodies
and investigation bodies, forming the department by assigning the Chief Investigator,
specifying the authority, cooperating with the government departments and agencies and Stateowned enterprises in laying plans for programmes in order to dispel corruption andimplementing suitable programmes for public cooperation. The commission also has power toexamine the records of banks and financial institutions, issue an order to responsible personsof banks and financial institutions to allow the seizure of evidence if necessary, issuing orders
prohibiting the transfer, concealment, and disguise of accounts and money, issuing orders toprosecute, pass and order confiscation of money and property with the recommendation of apreliminary scrutiny body, and to give protection to and set rewards for witnesses.
9.
Other relevant agencies, such as the Ministry of Home Affairs, the Myanmar Police
Force, and the Financial Intelligence Unit also take action on corruption cases. Sometimes theagencies are combined as a team to enquire and investigate bribery and corruption.
B.

Working Mechanism

10.
Offences relating to corruption and bribery shall be investigated by the investigationbody formed by the Anti-Corruption Commission in line with the Anti-Corruption Law, 2013.
Moreover, officers of the Bureau of Special Investigation, who have been conferred the powerof Police Officer, also have power to investigate the offences relating to corruption and bribery
due to corruption offences, which are defined as cognizable offences by the Anti-Corruption
Law.
11.
Being a cognizable case, BSI Officers and Police Officers may file a case against theaccused at the respective police station, arrest the offender, examine the accused and witnesses,
seize evidence, construct the case, ask for expert opinions on the evidence if necessary, seek
and receive legal opinions from the legal section of the BSI or the Union Attorney General andtheir respective legal offices, request permission to prosecute the accused from the relevant
Ministry and file the case before a relevant Court. If the case is not strong enough for sendingup to the Court, and it is necessary to take some other action, such corruption cases are referredto the relevant Ministry for taking departmental action.

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When such cases are sent up before the Courts, BSI prosecutors or Law Officers
prosecute those cases. Throughout the prosecution period, prosecutors consult with the relevant
Investigation Officers of the cases to build strong cases against the accused. If necessary, thelegal office concerned files appeals or revisions against the order and judgement of the originalor appellate court to enhance punishment so as to obtain effective and deterrent punishments.
The BSI may also request the relevant legal office to file amendments in those cases. If theaccused is acquitted by the Court, the officer from the Division or State Attorney GeneralOffice may file an appeal against the acquittal order to the High Court of the Region or theHigh Court of the State. The BSI or the Myanmar Police Force may also file an appeal against
the acquittal order to the High Court of the Region or the High Court of the State through therelevant Division or State Attorney General Office.
IV.

CONFISCATION, FREEZING AND SEIZING OF PROCEEDS OF CRIME

13.
Generally, law enforcement bodies are authorized to conduct search and seizures
according to the Code of Criminal Procedure. In cases relating to the special laws, search andseizures must be in line with the provisions of those special laws. The proceeds of crime must
be confiscated by the court according to the Code of Criminal Procedure and other relevant
special laws.
14.

The following laws allow the confiscation of the proceeds of crime:(a)Section 53 of the Anti-Corruption Law assigns the confiscation power to theAnti-Corruption Commission relating to money and property obtained bybribery and corruption and proceeds of crime.
(b)
Relating to the cultivation, possession, transportation, and sale of narcotic drugs,
psychotropic substances or chemicals/plants, laundering the proceeds, accepting
bribes and conspiracy, section 24 of the Narcotic Drug and Psychotropic
Substances Law 1993 allows confiscation.
(c)Section 52(a) of the Anti-Money Laundering Law, 2014 allows the Courts topass an order confiscating money and property obtained by illegal means.
(d)
The Code of Criminal Procedure, 1889, Section 517 allows for the generalconfiscation of items of property, including money and other valuable property.
Although the provision is general in nature, it can be widely applied and usedin various corruption cases before the court as evidence and exhibits including
money and property.
(e)According to some cases in which money and property are supposed to beobtained from illegal sources but are not evidently related to any criminal cases,
pursuant to The Criminal Law Amending Act.
(f)
In addition to the Code of Criminal Procedure, the Criminal Law Amending Act
is a more effective procedural law to freeze and confiscate effectively the assets
of a person alleged to have committed corruption if there are grounds to believethat he committed corruption. The law empowers the district administration
officer, without seeking an order of a court, to issue a warrant to be attached tothe assets of the accused person. This speedy action may deter the accused fromtransferring the assets or enable the government to freeze the money or property
obtained by the accused in a timely manner.

15.
The BSI investigated 87 corruption cases from 2003 to 2013, and 273 offenders wereprosecuted and punished according to the law and 88 million US dollars were confiscated.

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The Bureau also investigated 34 money laundering cases from 2014 to 2017, in which
3 offenders were punished, 12 million US dollars were seized and 18 million US dollars wereconfiscated.
V. THE PROCLAMATION OF THE PRESIDENT’S OFFICE OF THE UNION OF
MYANMAR REGARDING THE ACCEPTANCE OF GIFTS
17.
The Proclamation of the President’s Office of the Union of Myanmar regarding theacceptance of gifts was announced on 1 April 2017. It contains a definition of gifts, basicprinciple provisions relating to prohibited organizations/persons, exceptions, things and gifts
which are not allowed to be accepted, and gifts which are given by foreign governments. This
proclamation has already been distributed to all Government Departments and Organizations.
VI.

CHALLENGES

18.
Myanmar does not have a whistle-blower protection law and does not have a legal
framework for special investigation techniques, such as wiretapping and video conferencing.
To investigate public servants, we need approval from the applicable department. Thus, theaccused knows about the investigation, and they sometimes abscond or conceal the evidence.
Consequently, when we conduct searches, there may be no evidence, and the accused may havewithdrawn their money from the bank so there is nothing to confiscate. Because there is nowhistle-blower protection law, the witnesses often fail to appear before the court so it isdifficult to punish the offender effectively. These are weak points in the legal framework andthe procedures for the management of confiscated property. The Anti-Corruption Law is notfully in compliance with UNCAC. Myanmar is still a developing country and is not able to use
online systems in public services. We have to conduct services in person, and there is often red
tape in the system so it is vulnerable to corruption. Most people pay in cash so it is hard toreport suspicious transactions. Now, government departments are conducting open tenders inpublic procurement and are reducing the red tape.
19.
The places that can cause corruption are the departments that can permit big projects,
those that deal with people, and the courts, which can punish offenders. We have enacted theLaw for the Protection of Personal Freedom and Safety, and it is difficult to trace, conduct
surveillance or wiretap a suspect. Many Myanmar nationals work abroad and use thehondy/hawala system to send money back to Myanmar so there are no suspicious transaction
reports, and it is hard to trace the money laundering and tax evasion. In addition, we are notable to use an e-procurement system.
VII.

PLANS OF ACTION

20.

Myanmar’s strategies for corruption prevention are as follows:(a)
To regard corruption and prevention as matters of international concern and toprevent corruption multilaterally.
(b)
To cooperate with regional governmental organizations and society to preventcorruption.
(c)
To cooperate with regional anti-corruption agencies.

21.

Tactics for corruption prevention are as follows:－ 149 －

(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)

To reduce poverty, to achieve progress and give priority to the welfare of publicservants.
To reduce malpractice in order to create good governance and clean government.
To create transparency in the administrative sector and to reduce formalities inpublic administration.
To conduct corruption awareness programmes for the public sector and private
sector to create a corruption free environment.
To set up a complaint system for corruption and bribery.
To form a joint team consisting of central organizations and commissions at alllevels and departments.
To create a plan of action to ensure that the private sector is free from corruption.
The essential plan must be implemented and reviewed according to the law andprocedures.
To apply technology instead of human resources to reduce abuses of power.
To create independence in the administrative and judicial sectors.
To cooperate with the media to prevent and fight corruption.
To apply modern technology to fight corruption.
To modernize and amend the Anti-Corruption Law, Rules and Regulations,
Orders and Guidelines to fight corruption.
To apply a reward and punishment system to fight corruption.
To provide suitable opportunity and assurance to fight corruption.
To cooperate with international organizations to fight corruption.
VIII. CASE STUDIES

A.

Criminal Miscellaneous Case No. 7/ 2015, Bago Region High Court

22.
The offender U Shwe, who was a Deputy District Judge from Taungoo District Court,
was prosecuted under Section 56 of the Anti-Corruption Law and Section 512 of the Criminal
Procedure Code. Although he was dismissed from his job for taking a bribe from a client, theBago Region High Court took action against the offender with proclamation and attachment ofproperty in Criminal Miscellaneous Case No. 7/ 2015.
B.

Criminal Regular Trial No. 1/ 2014, Sagaing Region High Court

23.
U Tin Sein, Township Judge, Homemalinn Township, Sagaing Region, who wasconvicted by the Sagaing Region High Court, CRT No. 1/ 2014 under Section 56 of the AntiCorruption Law, was sentenced to 10 years’ imprisonment. In this case, U Thein Lwin, Bailiffof the Homemalinn Township Court, was referred as a principal witness in accordance withSection 164 of the Code of Criminal Procedure, whose deposition led to the judge’s conviction.
C.

Criminal Regular Trial No. 563/ 2015, Meikhtila Township Court

24.
Lawyer U Aye Lwin and another were convicted by the Meikhtila Township Court,
CRT No. 563/ 2015 under Section 57/ 63 of the Anti-Corruption Law. In this case, U Aung KoLinn (a) Ko Aung Aung, the driver, was referred to, as a principal witness, in accordance withSection 164 of Code of Criminal Procedure, whose deposition led to the conviction of thedefendants.

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Criminal Miscellaneous Case No. 68/ 201425.
Yankin Additional Township Judge Daw Khin Lay Nge was prosecuted under the AntiCorruption Law Section 56/ Cr.P.C Section 512 in the High Court of the Yangon Region inCriminal Miscellaneous case No. 68/ 2014. It was alleged that she was bribed in the amount ofKyats Three Hundred Thousand from the client and this case is still in progress.

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