EFFECTIVE FINANCIAL INVESTIGATION AND ANTI-MONEYLAUNDERING MEASURES FOR CONFISCATION AND ASSETRECOVERY TO COUNTER NEW AND EMERGING CORRUPTIONTHREATS
Kyaw Kyaw Naing*

I. INTRODUCTION
Nowadays, transnational crimes such as money-laundering, corruption and terrorism arecommitted by groups and in more than one state by using advanced technology. Money-launderingand corruption offences occur in the form of transnational crimes and threaten not only the rule oflaw but also the economy of the state. Combating these crimes is the first and most important task
requiring cooperative efforts of the entire international community. Today we live in a world thatis linked. No state or jurisdiction in the world can live alone. States are linked to each other bycooperation or by legal instruments in the form of bilateral or multilateral treaties. Corruption
concerning government officials is widespread in the world today. No country in the world is freefrom malpractice. The fact that no country is free from corruption requires the effort of all countries
to combat this widespread matter.
II. MYANMAR’S PARTICIPATION IN INTERNATIONAL TREATIESREGARDING TRANSNATIONAL CORRUPTION-RELATED CRIMESThe Republic of the Union of Myanmar, being a member of the global community, has never lagged
behind and is taking part in the process of combating transnational crimes such as money-laundering,terrorism and corruption, and is cooperating with international and regional anti-corruption organizations.
Regarding the international conventions which have been ratified by Myanmar, measures have beentaken for criminalization of money-laundering and corruption, and the harmonization of domestic law
with international standards. Myanmar acceded to the United Nations Convention for the Suppression ofthe Financing of Terrorism, which was signed on 12 November 2006 and ratified on 16 August 2006.
The United Nations Convention against Corruption was signed on 2 December 2001 and ratified on 20December 2012.
III. NATIONAL ANTI-MONEY-LAUNDERING LEGISLATION
In order to give domestic effect to these conventions and the conventions ratified by Myanmar thatcome into touch with the public, the principles of the conventions have been transformed into domestic
legislation for implementation thereof. Myanmar promulgated the Control of Money Laundering Law
2002 which conferred power to the Central Control Board so whether the offender absconds or not,his property can be confiscated. However, the Control of Money Laundering Law in 2002 has some
*Deputy Director General, Legal Advice Department, Union Attorney General’s Office, Myanmar.

- 73 -gaps in the implementation of the FATF recommendations. In 2014, the Anti-Money-Laundering Law
was promulgated in line with FATF standards, and its rules were issued on 2015. According to theCML Law, the properties of the absconder cannot be confiscated by the Control of MoneyLaundering Central Board. However, the court only has power to confiscate these proceeds ofcrime (money and properties). Relating to the court practice of confiscation, it is true that
confiscation of properties and money are based on the conviction of the accused person under theCriminal Procedure Code, section 517. On the other hand, section 53(a) of the Anti-Corruption
Law conferred power to the Commission to confiscate the properties and money which are derived
from illegal enrichment. As an aspect of international cooperation, section 25 of the Mutual Legal
Assistance in Criminal Matters Law provides that the Central Authority has power to confiscate
properties and money upon the request of a foreign jurisdiction.
The CML Law has conferred power to the FIU to investigate and prosecute money-launderingcases. Now, the FIU has been established separately to do its main task of receipt, analysis anddissemination of STRs. Investigation of money-laundering is assigned to the Financial Crime
Investigation Division. However, there are many investigation bodies which have power toinvestigate predicate offences such as the Drugs Police Force, the Anti-Trafficking Police Forceand the Bureau of Special Investigation. Some offences are not separately prescribed in their duties
and so they are overlapping each other.
IV. NATIONAL RISK ASSESSMENT ON MONEY-LAUNDERING AND
FINANCING OF TERRORISM
Under FATF Recommendation 1 and under section 7(c), chapter 4 of the AML Law, the 2014
Myanmar National Risk Assessment Committee on ML/TF was formed by the Anti-MoneyLaundering Central Board on 30 December 2015 to conduct national risk assessment in moneylaundering and financing of terrorism with the help of the International Monetary Fund. TheNational Risk Assessment Report was issued on 12 July 2018 by approval of the Cabinet. In theassessment report, proceeds of crime were largely identified based on tax and excise evasion,environmental crime, and corruption and bribery.
In order to mitigate the risks that have been found in the NRA and Mutual Evaluation Report,
the strategic action plan was drafted in consultation with the relevant Ministries and DNFBP toconduct a risk-based approach for mitigating risks. Among the five strategic areas, areas (iv) and(v) mainly focus on the capacity development of LEAs, prosecuting bodies and judicial authorities
with respect to confiscation of proceeds obtained from committing money-laundering, its predicate
offences, terrorist financing, and enhancing internal and international cooperation on AML/CFT.
V. ANTI-CORRUPTION LEGISLATION
Before Myanmar was a party to the UNCAC, Myanmar had a legal framework since she gained her
independence, namely the Prevention of Corruption Act 1948, the Amendment of the Criminal Law
1951, the Law Taking Action against Ownership or Sale of Property Obtained by Illegal Means 1986 toprotect the State from corrupt civil service personnel. During this period, bribery and corruption wereseverely suppressed in accordance with the existing laws.

- 74 -Myanmar signed the United Nations Convention against Corruption on 2 December 2005 andratified it on 20 December 2012. Under the obligations of UNCAC, Myanmar adopted the AntiCorruption Law in 2013 and its rules were issued. Under this law, the Anti-Corruption Commission wasformed on 25 February 2014, which was composed of 15 members. A new commission was formed on23 November 2017 by President Office Notification 30/2017, comprising 12 members including theChairperson. The commission’s functions and responsibilities are prescribed in sections 16 and 17.
Under this law, the Anti-Corruption Commission can only investigate corruption cases and can only
confiscate based on illegal enrichment. Section 58 of the Anti-Corruption Law prescribes that any
person who conceals, obliterates, alters or transfers the proceeds of crime related to any offence
contained in this law shall, on conviction, be punished with imprisonment for a term not exceeding
five years, and shall also be liable to pay a fine. This means that the commission has power toinvestigate corruption related to money-laundering cases. It is also overlapping power withFinancial Crime Division under the AML Law.
VI. PROSECUTION OF CORRUPTION CASES
According to the Anti-Corruption Commission’s website, during 2017 to 2019, 37 corruption cases
were prosecuted by the Anti-Corruption Commission. However, corruption cases are not investigated as
money-laundering offences. Because these cases are a small amount of bribery cases, that is why theAnti-Corruption Commission does not seem to hand over the cases to the Anti-Financial-Crime Division
to take action against offenders to charge with AML.
If the predicate offence and money-laundering can be investigated in parallel, moneylaundering can be suppressed effectively. Although predicate offences are investigated by somerelevant organizations, some cases were not exposed. In corruption cases, some of the known
properties can be confiscated but some are not because there is no parallel investigation if
cooperated with the Financial Crime and Anti-Money-Laundering Division more public funds canbe confiscated.
In the Asia/Pacific Group on Money Laundering (APG) Mutual Evaluation Report ofMyanmar, the APG recommend that parallel investigation of predicate offences and moneylaundering should be conducted for effective investigation and prosecution. So a provision
granting power to conduct parallel investigations is needed in the AML Law. That is why thisrecommendation is included in the new draft Anti-Money-Laundering Law.
Prosecuting

37 CasesNo. of Prosecuted Persons

106 persons

SerialSectionAccused/Sentenced
Persons

Remarks

၁။1

Section 55 of the Anti-CorruptionLaw

2 persons

2 persons are on trial.

၂။Section 55/63

3 persons

3 Persons are on trial.

- 75 -၃။

Section 56

73 persons

၄။

Section 56/63

19 persons

၅။

Section 57

4 persons၆။

Section 57/63

2 persons၇။

Section 59

1 person၈။

Section 59/63

2 persons56 persons are on trial;
16 persons are being prosecuted as
absconders;One person was sentenced to 5 years’
imprisonment.
18 persons are on trial;
One person was sentenced to 4 years’
imprisonment.
2 persons are on trial;
One person is being prosecuted as an
absconder;
One person was sentenced to 3 years’
imprisonment.
One person is being prosecuted as an
absconder;
One person was sentenced to 3 years’
imprisonment.
One person is on trial (One Case)
2 persons are being prosecuted as absconders(2 Cases)This chart is copied from the ACC website. http://www.accm.gov.mm/acc/index.php?route=pavblog/blog&id=70

VII. PREVENTIVE MEASURES AGAINST CORRUPTION
As per Anti-Corruption Rule 59, the Anti-Corruption Commission may, for the participationof the public in preventive measures of corruption, give educative lectures in schools and civilsociety organizations, provide training courses to the staff of government departments andorganizations, expose corruption and activities of persons of high integrity in the news media,
release news of corruption for public information and give training and education to promote thehonesty of the authorities. The Anti-Corruption Commission formulated the Anti-Corruption
Strategic Plan (2018-2021), entitled “Fight Corruption, Promote Integrity’’. Corruption Prevention
Units were formed in 15 ministries on 1 March 2019. The members of the Corruption Prevention
Units are trying to reduce corruption in their organizations.
VIII. INTERNATIONAL COOPERATION
Myanmar is a state party to the United Nations Conventions Against Corruption. In order torender assistance in criminal matters under international obligations, Myanmar promulgated theMutual Assistance in Criminal Matters Law on 28 April 2004, and its Rules were issued on 14October 2004. The Extradition Law was enacted on 21 July 2017.
IX. THE MUTUAL ASSISTANCE IN CRIMINAL MATTERS LAW
The Mutual Assistance in Criminal Matters Law was promulgated on 28 April 2004, and its
Rules were issued on 14 October 2004 in order to render legal assistance in criminal matters inaccordance with international conventions, regional agreements and other agreements among- 76 -

states. Under this law, the Central Authority was formed, which is chaired by the Minister forHome Affairs. All the matters in regard to rendering assistance in criminal matters are administeredby the Central Authority. Under section 10 of the MLA Law, any foreign state shall, if it is a stateparty to the international convention or regional agreement to which Myanmar is a state party, ora state which has a bilateral agreement with Myanmar, request assistance directly to the CentralAuthority and if it is not, a foreign state may request assistance from the Central Authority throughdiplomatic channels.
Section 25 of the MLA Law authorizes the Central Authority, after scrutiny of the request of aforeign state, to search, seize, control, issue a restraining order or confiscate the assets. The Central
Authority shall instruct the relevant government departments and organizations to execute therequest in conformity with existing laws. However, section 26(a) provides that the Central
Authority will execute the request of foreign state based on bilateral treaty if there is no bilateralagreement between the two states and the confiscated properties shall be vested in the State. Thismeans that asset recovery will be implemented based on bilateral agreement, otherwise the asset
must be owned by the State. Under UNCAC, asset recovery is one of the most important mattersin international cooperation. Under the Second Cycle UNCAC review on Myanmar, reviewing
states pointed out some weakness in Myanmar’s legislation on international cooperation,
particularly with respect to the asset recovery system.
X. EXTRADITION LAW
Regarding extradition, Myanmar enacted the Extradition Act in 1903 in which listed cases areextraditable; however, modern forms of transnational crime are not listed. This is not in line withthe present situation, so Myanmar’s Parliament enacted a new extradition law in 2017 to be in linewith international obligations. To date, Myanmar has no bilateral treaties with other states and no
extradition cases. In addition, Myanmar’s AML/CFT regime was reviewed by the APG in 2017.
The Report was adopted at the APG’s 21st Plenary Session in Nepal in 2018, and it was publishedin September 2018. In the report, Myanmar was found to be in partial compliance with FATF
Recommendations 37, 38 and 39, but Recommendation 40 was found to be in substantial
compliance. This shows that Myanmar still has some weaknesses in international cooperation.
XI. THE ROLE OF THE UNION ATTORNEY GENERAL’S OFFICE
In accordance with the 2008 Constitution, the Attorney General of the Union Law was enacted
on 28 October 2010. Under this Law, the Attorney General of the Union and a Deputy Attorney
General shall be appointed. The Attorney General of the Union is a member of the Union
Government, and he is responsible to the President of the Union. In order to do the duties andpower of Attorney General of the Union, the Union Attorney General’s Office was established. Inthe Union Attorney General’s Office there are four main departments headed by Directors General:(a) The Legislative Vetting and Advising Department is responsible for vetting andadvising with respect to new laws initially drafted and sent by the relevant ministries,
as well as the vetting of draft laws sent by the relevant ministries to amend any
existing laws. This Department is also responsible for vetting and advising the draft- 77 -Rules, Procedures, Notifications, Order and Directives and translation of laws from
the Myanmar language to English.
(b) The Legal Advice Department is responsible for tendering legal advice to theUnion-level organizations on matters relating to international, regional or bilateral ormultilateral treaties, whether Myanmar should be a party or not, and tendering legal
advice to the Union-level organizations regarding MOUs, agreements, local andforeign investment instruments and giving them general legal advice.
(c) The Prosecution Department is one of the oldest departments in the Union Attorney
General’s Office. This Department is responsible for prosecution on behalf of theState in criminal and civil cases in which the government is involved as the plaintiffor defendant. In addition to that under the new Constitution, the Union Attorney
General’s Office appears on behalf of the State in applications to issue writs to theSupreme Court of the Union.
(d) The Administration Department carries out the functions relating to civil service
personnel affairs, inspection, budget and accounting, logistics, legal research,building, training, compiling and publishing law books, and information technology.
XII. ROLE OF THE PROSECUTOR OR LAW OFFICERUnder the Union Attorney General Law 2010, law officers have various duties. Law officers
from different levels of law offices are mainly concerned with tendering pretrial legal advice on
criminal cases and appearing in the court on behalf of the government. Before the Anti-Corruption
Law, corruption cases were investigated and prosecuted by the Bureau of Special Investigation, inwhich law officers are not involved. After the Anti-Corruption Law was enacted, the Commission
is responsible to investigate, and the Union Attorney General’s Office is responsible forprosecution.
XIII. CONCLUSION
Regarding the theme of this seminar, “Effective Financial Investigation and Anti-MoneyLaundering Measures for Confiscation and Asset Recovery to Counter New and Emerging
Corruption Threats”, Myanmar has some deficiencies in effective investigation in moneylaundering, corruption cases and its asset recovery system as recommended by mutual evaluationand the result of the National Risk Assessment. Myanmar needs to fill some gaps and needs toenhance capacity-building within prosecuting bodies, and among judges and law officers as well,to do their duties effectively.

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