COMBATING CORRUPTION THROUGH EFFECTIVE CRIMINALJUSTICE PRACTICES
Mr. Aung Khant *I.

INTRODUCTION

Myanmar became an independent sovereign state on 4 January 1948, and systematic
corruption has occurred since that time. There were frequent losses of state properties due tobribery, corruption and economic malpractice in Myanmar. To prevent such losses the public
property protection police, or P4, consisting of 30 members was formed on 23 December 1947.
In 1951, the Bureau of Special Investigation was founded under the Special Investigation
Administrative Board and Bureau of Special Investigation Act, 1951 with its strength of 315
members. The Bureau investigates corruption according to the Suppression of Corruption Act,
1948. The new Anti-Corruption Law was enacted on 7 August 2013 according tointernational standards and norms. The Anti-Corruption Commission was formed on 25
February 2014, and investigation officers from the Bureau of Special Investigation weretransferred and have being seconded to that commission to investigate corruption offences.
II LEGAL SYSTEM OF MYANMAR
Myanmar practices dualism with regard to obligations of international conventions andcannot directly apply international law as Myanmar domestic law. The State Peace andDevelopment Council made efforts to adopt a multi-party democratic system and marketoriented economic system with a significant programme of reforms instituted in late 1988.
Multi-party democracy elections were held in 2015 and convening of parliaments withelected representatives followed in 2016. The new government announced that it would
create clean government, good governance and make political, economic and social reforms.
Under the Anti-Corruption Law, Section 3(b), gratification includes the currencies,
properties, presents, service fees, entertainment and other illegal benefits accepted or given
without consideration or appropriate cost for the purpose of corruption. Bribery of public
officials is made a criminal offence under the Penal Code Section 161-165, but the AntiCorruption Law has superseded the Penal Code because of its more specialized nature. The
Penal Code applies subsidiarity for offences not covered by the Anti-Corruption Law. The
definition of corruption in section 3(a) includes both active and passive bribery. Sections 55,
56 and 57 impose penalties that vary with the position of the offender (imprisonment of up to
15 years for persons in political positions and fines).
Myanmar has not made illicit enrichment a criminal offence, but enrichment bycorruption under Section 3(c) is a ground for confiscation. Myanmar will consider making
bribery in the private sector a criminal offence.

*

Director, Bureau of Special Investigation, Myanmar.

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III. FINANCIAL INTELLIGENCE UNIT
The Financial Intelligence Unit was established in January 2004 under the Central
Control Board on Money Laundering according to the Control of Money Laundering Rules.
In 2014, the Control of Money Laundering Law was repealed, and a new Anti-Money
Laundering Law was enacted in order to be in line with international standards and norms
including the recommendations of the Financial Action Task Force (FATF). According tothis new law, the Anti-Money Laundering Central Board (AMLCB) formed the Financial
Intelligence Unit on 28 August 2014 as the central agency to receive, request and analyse
reports and disseminate financial intelligence. The AMLCB assigned the Anti Financial
Crime Division to perform the FIU’s function in 2016. Legal action was taken in all of thecases according to the Criminal Procedure Code, Evidence Law and Penal Code.
The FIU issues reporting forms, provides financial intelligence, compiles, maintains anddisseminates information, cooperates and exchanges information with other domesticorganizations, provides awareness, training assistance to government departments, requests
information from reporting organizations, cooperates with domestic and foreign organizations
and enters into agreements with counterparties. The Financial Intelligence Unit has the rightto manage independently the funds received according to financial year in accordance with theexisting financial rules and regulations. The FIU shall establish an electronic reporting system
and a computerized system in order to perform its tasks.
All designated reporting organizations including banks and financial institutions have toreport on suspicious transactions and any transaction above 10,000 US Dollars to the FIU. The
FIU, law enforcement agencies, banking and supervisory authorities need to coordinate andcooperate nationally and internationally.
Statistical data on the Anti-Money Laundering Law are as follows:Year2014 to 2017

Cases
Investigations
27

Open
Files

/

Prosecutions

10

7

Convictions-

Remarks
5 cases closed,
12 cases underinvestigation

Section 5(j) of the Control of Money Laundering Law defines the list of predicate
offences consistently with the FATF's recommendations that cover a wide range of serious
offences including bribery and corruption. Moreover, criminal liability of legal persons isestablished in Sections 43-49 of this law. Statistical data on confiscations under the AntiMoney Laundering Law are as follows:
Under Freeze
USD 31.34 millions

Under Court Trial
11.94 million- 98 -

Confiscation
USD 0.6 million

IV. DISCRETION OF THE LAW ENFORCEMENT BODIESThe Attorney General’s Office (AGO), the Anti-Corruption Commission (ACC), theBureau of Special Investigation (BSI) and other relevant law enforcement bodies exercise awide range of discretion in carrying out their duties. Myanmar follows a system of
discretionary prosecution. The ACC seeks legal advice from the AGO with regard to theprosecution of corruption cases and then files the cases in court for trial. According to
Schedule II of the Code of Criminal Procedure, if the offence is punishable by death,transportation or imprisonment for 3 years and upwards, but less than 7 years, it is notbailable. There are only very limited possibilities for early release or parole. Under Rule 177of the Civil Service Personnel Rules, a public servant who has been accused of a criminal
offence (including corruption) may be removed, suspended or reassigned depending on thenature and seriousness of the investigation. A public official can be subject to disciplinary
procedures regardless of the outcome of a criminal investigation or prosecution. The Union
Judiciary Law states that the reintegration of offenders into society is one of the primaryprinciples of the administration of justice in Myanmar. Under Section 13 of the Anti-Corruption
Law, the members of the commission shall submit asset declarations to the president of theUnion upon assignment of duty. Under the Anti-Corruption Law Section 51-54 and AntiMoney Laundering Law Section 52, it is possible to identify, trace, freeze, seize and confiscate allproceeds derived from an offence or their monetary equivalent.
A. Criminal Miscellaneous Case No 7/2015 of Bago Division High Court
The offender U Shwe, who was a Deputy District Judge from Taungoo District Court,
was discovered to have taken a bribe from a client through a bank. The investigation bodyexamined the bank records and found out it was true. He was prosecuted under Section 56 of
the Anti-Corruption Law and Section 512 of the Criminal Procedure Code. The Bago Region
High Court took action against the offender by proclamation and attachment of property in
Criminal Miscellaneous Case no. 7/2015.
Myanmar does not have a formal witness protection programme, but the powers of theCommission include providing necessary protection to persons providing evidence ofcorruption offences (section 17(I) of the Anti-Corruption Law). Such measures include
keeping the identity of persons providing information or assistance confidential (AntiCorruption Rule 62).
Procedures are available to use video technology and remote testimony to facilitate thetestimony of witnesses and experts. There are no agreements presently in place between
Myanmar and other States for the relocation of witnesses. Victims can be considered to bewitnesses on a case-by-case basis subject to relevant protection measures and procedures.
Section 493 of the Criminal Procedure Code allows the victim to instruct a “pleader” to act incourt on his behalf. There is no legislation in Myanmar to address the protection of whistle-blowers
in the private sector.
Pursuant to the Anti-Corruption Law, Myanmar established the Anti-Corruption
Commission as the primary, but not exclusive, body for the investigation of Convention
offences. In addition, this investigative capacity is supplemented by other specialized law
enforcement agencies and oversight institutions, including the Bureau of Special
Investigation and the Myanmar Police Force. The Criminal Procedure Code, section 337- 99 -

permits the judge to conditionally pardon an offender who fully cooperates and provides aform of immunity from further prosecution or punishment. Cooperating offenders are
considered witnesses under Myanmar Law and subject to applicable protection measures.
Although Myanmar cannot extradite its nationals, Myanmar, as a general rule, prosecutes
nationals in cases where there is no extradition.
V. INTERNATIONAL CORRUPTION
The Anti-Corruption Law, Rule 59 speaks about coordination with other relevant
stakeholders. The Union Civil Service Board cooperates with the UNDP to promotetransparency and accountability in the civil service, build the capacity of civil servants and topromote a merit-based civil service system. The Public Finance Management Act is currently
being developed with assistance from the World Bank. Relevant laws for the private sector—
the Company Act, the Consumer Protection Law, the Competition Law, the Investment Law,
the Arbitration Law, the Privatization Law and the Chambers of Commerce Law—arecurrently being developed in Myanmar.
The FIU has signed MOUs for information exchanges with 13 different countries.
Myanmar is also a member of the Asia-Pacific Group on Anti-Money Laundering (APG) andthe Asset Recovery Inter-Agency Network for Asia Pacific (ARIN-AP). The Mutual Legal
Assistance Law 2004 is for recovery of property through international cooperation in
confiscation. The Mutual Legal Assistance Law contains Form A and Form B for countries tofile with the Competent Authority and request assistance, and national authorities will
provide assistance. According to the MLA Law Section 10, Myanmar needs to have abilateral agreement with a country to act on a confiscation order. If there is no bilateralagreement, the request shall be submitted to the Central Authority via diplomatic channels.
The seized or confiscated property shall be administered by the bilateral agreement, and if
there is no bilateral agreement, it shall be vested in Myanmar under Section 26 of the MLA
Law. The Competent Authority on MLA has power to issue orders to freeze, seize andconfiscate. The Anti-Corruption Commission has power to confiscate assets concerning thecorruption case. Concerning special cooperation, information is provided timely to requesting
countries. In the course of an investigation, information is shared with requesting countries orwith countries to ask them to obtain information for the on-going investigation.
Regarding the extradition system of Myanmar, it is necessary to amend the system as
Myanmar enacted the Burma Extradition Act in 1904, but it is no longer used or in line withcurrent practice. With the cooperation of the UNODC, the Law Drafting Committee drafted
the bill including 7 chapters, 42 sections, 1 schedule and 2 forms. The extradition law enacted
as Pyidaungsu Hluttaw Law No. 16, 2017 after submitting to Pyidaungsu Hluttaw andAmyothar Hluttaw on 21 July 2017. Both national and foreign citizens who commit any
offence which could be sentenced to two years' imprisonment and above could be extradited.
The corruption offences and money laundering offences are listed as extraditable and could
not be refused as political-nature offences.
A. Mayangone Township Police Station Narcotics Case FIR No.2/2005
According to the information exchange between the Central Committee for Drug
Abuse Control (CCDAC) and the China National Narcotic Control Committee (NNCC),
drugs (“Ice”) weighing 102.05 kilos were seized from Shak Chan (a) Archan’s house in
Mayangone Township on 24 May 2005. The Mayangone Township Police took action
against him under Section 15/19(a)/20(a)/21 of the Narcotic Drugs and Psychotropic- 100 -

Substances Law (1993). According to Myanmar's request to China for arresting andextraditing Kyan Shak Hwar (male), China arrested and extradited him to Myanmar on 1 July
2005.
B. The Pate-Chin-Myaung Police Station, Narcotic Case FIR No. 2/2012
On 1 August 2012, the Northern Mandalay Drug Enforcement Force arrested Aung Ko
Latt (male) with 171,000 Methamphetamine tablets found in his car at Wet Won village, Pyin
Oo Lwin Township. The Pate-Chin-Myaung Police took action against Aung Ko Latt and theowner of the drugs, Mar Du Lar, who lived in Kyal Gong, China, under Section
15/19(a)/20(a)/21 of the Narcotic Drugs and Psychotropic Substances Law (1993). According
to Myanmar's request to Thailand for arresting and extraditing Shwe Nu (male), Thailandarrested and extradited him to Myanmar on 26 June 2013.
C. Mutual Assistance in Criminal Matters Law (2004)
Myanmar signed the Treaty on Mutual Legal Assistance in Criminal Matters with India
on 27 July 2010 for cooperation and mutual assistance in criminal matters. Myanmar also
signed a Memorandum of Understanding on Cooperation for Preventing and Combating
Corruption with the South East Asia Parties against Corruption (SEA-PAC) members on 14
November 2013 and the ASEAN Mutual Legal Assistance in Criminal Matters Treaty(AMLAT) on 17 January 2006.
D. Providing Mutual Legal Assistance to China
The Chinese government made a request to send an accused, Sai Aung Myat, who was inpolice custody in Kyaing Tong Township under Section 15 and Section 19(a) of the Narcotic
and Psychotropic Substances Law as a main witness in a murder case, drug trafficking,kidnapping and robbery of a Chinese government-owned ship. At the first Session (1/ 2002)of the Central Authority formed under the Mutual Assistance in Criminal Matters Law, theAuthority decided to send Sai Aung Myat temporarily to testify at the Chinese Court under
the MOU on 28 August 2012. Sai Aung Myat testified at the Kumming Court, and theoffenders, Sai Naw Khan and two others who committed murder, drug trafficking,kidnapping and ship robbery, were sentenced to death on 6 September 2012. Chinatransferred Sai Aung Myat back to Myanmar.
E. Case Study 1
Someone has complained to the Anti-Corruption Commission that a high-ranking official
has taken a bribe from a company and gave it to his son. The investigators from theCommission searched his son’s house and interviewed his son. After that, the official
resigned and the commission made a press release and announced that the official was
innocent. According to the Anti-Corruption Law Section 20(d), the preliminary scrutiny andinvestigation shall be kept secret.
F. Case Study 2
A businessman from Yangon gave funds to a terrorist group in Rakhine State. He did notgive the money himself, but two persons transferred the money from the bank and later they
absconded to another country. The person who accepted the money from Rakhine State also
absconded to another country.
The Rakhine State’s police arrested the two persons from the terrorist group, and theygave statements that the businessman had given them the funds to attack police stations andto pay for medical treatment at the hospital. The businessman was also arrested and- 101 -

prosecuted. There was no strong evidence that the businessman transferred the money, so thejudge acquitted him. The businessman gave the money, but he was released.
The challenges are that the Supreme Court of the Union will issue a writ of certiorari, but
the judge cannot solve the problem because the evidence is not strong. The businessmen also
have good relationships with higher authorities who will apply pressure.

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