ANTI-BRIBERY BILL. Unofficial translation

Transcription

1 ANTI-BRIBERY BILL Unofficial translation Anti-bribery Bill (2012, Pyidaungsu Hluttaw Law No. ),, 2374 ME (,, 2012) The Pyidaungsu Hluttaw prescribed this law. 1. (a) This law shall be known as Anti-bribery Law. Chapter (1) Title, taking action and definitions (b) This law takes effect since the date the President issues an ordinance to enact the law. 2. Following wordings included in this law shall be defined as follow:- (a) Bribery means accepting or giving presents without paying the price; the offer, promise, attraction or request to accept or give presents by an authority on his own behalf or on anyone s behalf or on behalf of any organization exploiting his or her position of authority in order to do or to evade anything or to give anyone illegal opportunity, either directly or indirectly. (b) Gratification means money, asset and any illegal benefit including present, remuneration, reward and etc. given or received, or offered, promised or attracted or solicited to give or receive without paying true value. (c) Accumulation of wealth through bribery means becoming rich by accumulating money and assets, or reducing liabilities or obtaining money and assets illegally through bribery while exercising power and duties of the position. (d) Public organization means legislative, executive and judicial bodies at the Union level, or Region or State level, or any organization with public participation under any existing law, or any public company incorporated under Myanmar Companies Act. (e) Civil servant means permanent or temporary employee discharging any legislative, executive and judicial duty, whether he/she receives salary, allowance and remuneration or not, through appointment or nomination, or member of any public activity including public department, organization and enterprise, or the person defined as civil servant under any existing law. (f) Foreign civil servant means legislative, executive or judicial officer appointed or nominated by any foreign country, employee of board, commission, corporation or other organization or the authority tasked with accomplishing any mission of any foreign country, and the person invested with power to perform duties on behalf of public international organization. (g) Public office holder means the person announced by the commission as the public office holder in agreement with the Pyidaungsu Hluttaw by notification at any appropriate time.

2 (h) Senior official means director-general or managing director or similar rank who leads the government department or government organization, or director, board member or committee member or similar rank of State-owned or public-private partnership company, board, corporation or any other organization. The phrase also means the person who assumes duty on temporary basis. (i) Authority means civil servant, foreign civil servant, public office holder or senior official who has authority derived from the position or the right to administer or manage, or the person who has the right to manage any public organization or representative. (j) Bank and monetary organizations mean domestic organizations formed under Myanmar Monetary Organizations Law or any other existing law with the purpose to coordinate monetary or capital market collecting financial resources from other individuals in order to invest in credit, credit and public bond, securities or other allowed monetary activities by the organization. (k) Banking document means ledgers, bank s daily book, income record, account, other books and catalogues used in banking activities in use at bank and monetary organizations. (l) Money means official coins, notes and papers issued by Central Bank of Myanmar, transferrable contracts including securities, Treasury bond, debit securities, foreign currencies, or any contracts or securities related to foreign currencies. (m) Asset means the thing that has any shape or not, that is touchable or not, and that movable or not. Profit, opportunity and the right are assets. (n) Representative means the person who work or perform duties for any other person. (o) Victim means the person effected by bribery of any person. (p) Commission means Anti-bribery Commission formed under the law. (q) Commission office means Anti-bribery Commission office established in accordance with the organization structure by the Union government. (r) Preliminary scrutiny team means the team formed by the commission, in taking action in connection with money and assets obtained by accumulation of wealth through bribery to conduct initial scrutiny and report in order to confiscate the money and assets. (s) Investigation team means respective bribery investigation team formed by Anti-bribery Commission under this law. (t) Chief investigator means director-general of Anti-bribery Commission office. (u) Investigator means investigator in various ranks under chief investigator of Anti-bribery Commission office. 3. Purposes of this law are as follow:- (a) Combating against bribery as a national duty, Chapter (2) Purposes (b) Ensuring clean government and good governance, (c) Uplift of reputation and responsibility in public administration, (d) Protecting loss of State-owned assets and rights and interests of society and citizens by bribery, (e) Imposing substantial penalties on charges related to bribery and on those who produce wealth, and

3 (f) Developing economy on domestic and foreign investments, facilitated by the rule of law and greater transparency of administration mechanism. Chapter (3) Formation of Anti-bribery commission and its duties and authorities Formation of Anti-bribery commission 4. The President, the Speaker of Pyithu Hluttaw and the Speaker of Amyotha Hluttaw each shall elect five members who possess prescribed qualifications. 5. The Speaker of Pyithu Hluttaw and the Speaker of Amyotha Hluttaw shall put forward names of elected members in accordance with the provision prescribed in Section (4). 6. (a) The President shall submit name list of 15 members elected in accordance with Section (4) and of two members to be assigned as Chair and Secretary to the Pyidaungsu Hluttaw and form the commission in the agreement with the Pyidaungsu Hluttaw. The Pyidaungsu Hluttaw does not have the authority to deny membership of any person put forward by the President if there is no clear evidence that reveals any member is disqualified. (b) The commission shall be accountable to the President. 7. (a) The term of the commission is normally the same as that of the President; (b) The commission shall discharge duties till the formation and assignment of a new commission complete; (c) Commission members shall not serve more than two terms; 8. Each commission member shall possess qualifications mentioned hereunder: (a) Myanmar citizen; (b) person who has attained the age of 45 years and is under 70; (c) person deemed by the President, the Speaker of Pyithu Hluttaw or the Speaker of Amyotha Hluttaw who nominate him/her as fair and just person. 9. The following persons shall not be entitled to be nominated as commission members: (a) person discharging legislative, administrative and judicial duties; (b) person who is of unsound mind as adjudged by the relevant law; (c) member of a religious order; (d) person who is an undischarged insolvent as being declared by the relevant court; (e) person who is sentenced, or removed or dismissed from a post on bribery charge; (f) person whose assets are nationalized on charges prescribed in this law or for being wealth acquired by bribery. 10. A commission member shall not be:- (a) person holding office or position that entitles government salary, allowance and money; (b) officer or staff of government department, government organization, government enterprise, board, corporation or region authority; (c) shareholder of joint venture, company or organizing operating business activity or a staff of any of them.

4 11. In following conditions, the commission membership shall be ceased: (a) death; (b) expiry of the term of the commission; (c) resignation; (d) being subject to Sections (9) and (10); (e) being found by examination of medical team assigned in accordance with the law that mental or physical condition of the person is unsound for ever, making him/her unfit to continue assuming duties; (f) being imprisoned by order of any court. 12. Commission members shall submit the list of money, assets, liabilities and prospective gains of the family business they lead with value to the President when they are assigned to the commission. 13. The President shall designate or change remunerations, allowances and rights of the chairman and members of the commission, preliminary scrutiny team members and investigation team members. Relieving member of the commission. 14. If the President finds any commission member do not adhere to laws in discharging duties, breaches the Constitution of the Republic of the Union of Myanmar or any existing law deliberately, is in a situation that could largely impacts on the post, the commission member shall be relieved of the commission with agreement of the person who nominate the commission member. 15. Duties of the commission are as follow:- Duties and authorities of the commission (a) Formation of preliminary inspection teams and investigation teams, if necessary, and guiding and supervising the said teams; (b) Formation and reformation of working committees or working groups, if necessary, to enforce provisions in this law, designating duties of these teams, handing over duties of the commission to any working committee or group, guiding and supervising the said working committees and working committees, (c) Suggesting the appointment of Investigator to the President, (d) Tasking preliminary inspection team and investigation team with the duty to examine bribery charges and report findings to the commission, (e) Reporting findings on bribery charges to the President, the Speaker of Pyidaungsu Hluttaw, the Speaker of Pyithu Hluttaw or the Speaker of Amyotha Hluttaw concerned, (f) Designating class, post and rank of authority who shall submit list of money, assets, liabilities and prospective gains, (g) Investigating or compelling investigation into money, assets, liabilities and prospective gains submitted by authority, (h) Submitting annual report to the President, the Speaker of Pyidaungsu Hluttaw, the Speaker of Pyithu Hluttaw or the Speaker of Amyotha Hluttaw concerned in accordance with the rules, (i) Providing suggestions and recommendations to government departments, government organizations or government enterprises in drafting work programmes and plans by authorities to improve functioning and eradicating bribery,

5 (j) Adopting appropriate plans to prevent bribery, boost honesty of authorities and to encourage public participation, (k) Assigning duties of the commission to officers and staff of relevant government departments, government organizations, government enterprises and regional administration department and organization for preventing and eradicating bribery, (l) Receiving and investigating complaints, rejecting complaints which are found invalid and taking action against false plaintiff, (m) Assigning investigation teams and Investigators to launch raid, and search for and gathering evidence in buildings related to bribery charges in accordance with the rules, (n) Working in cooperation with international organizations, regional organizations and foreign countries in combat against bribery, (o) Performing duties assigned by the President, the Speaker of Pyidaungsu Hluttaw, the Speaker of Pyithu Hluttaw or the Speaker of Amyotha. 16. Authorities of the commission are as follow:- (a) Giving instruction to search for and seize wealth accumulated by bribery and money and asset connected with bribery as evidence, giving permission to return seized evidence on bail, and revoking the permission, (b) Ordering officials of banks and monetary organizations to allow investigation teams to search for and seize money and assets at banks and monetary organizations concerned in connection with the case under investigation as evidences, access, copy and seize, if necessary, monetary records, (c) Imposing restraint on relevant departments, organizations and individuals not to change, transfer, hide, destroy or transform money and assets that shall be evidences in the period of investigation and issuing directive to impound these, (d) Revoking order issued under Sub-Section (b), restraint and impounding directive issued under Sub- Section (c), (e) Acquiring assistances necessary to enforce this law from relevant government departments, organizations, non-governmental organizations and necessary individuals, (f) Granting appearing allowance and travel allowance to witnesses summoned by preliminary scrutiny teams, working committees, groups and investigation teams formed under this law in according with the existing law, (g) Compelling investigation team or Investigator to:- (i) lodge lawsuit against an authority at relevant Region or State High Court if he/she commits any offence prescribed in this law, (ii) lodge lawsuit against an individual except authority at relevant court invested with judicial powers if he/she commits any offence prescribed in this law. (h) Informing the Union government to assign relevant legal officer to represent the State at the court under the arrangement of the Office of the Attorney-General of the Union in cases filed under Sub- Section (g). (i) Issuing order to confiscate money and assets of any authority which are found to be derived from bribery after examining report of preliminary scrutiny team,

6 (j) Granting protection and designated reward to informant in case of exposing of the bribery charges and wealth derived from bribery thanks to his/her tipoff with concrete evidence. Filing lawsuit. 17. The commission, based on report of investigation or other concrete information, shall:- (a) direct leader of investigation team or Investigator to file lawsuit against any authority at Region or State High Court if he/she is found to commit bribery, (b) direct leader of investigation team or Investigator to file lawsuit against anyone except an authority at relevant court invested with judicial powers if he/she is found to commit bribery, (c) inform the Union government to assign relevant legal officer to represent the State at the court under the arrangement of the Office of the Attorney-General of the Union in cases filed under Sub- Sections (a) and (b). Chapter (4) Formation of preliminary scrutiny team as regards money and assets derived from wealth accumulated by bribery and its duties 18. The commission shall form case-wise preliminary scrutiny team with suitable persons to examine and report on confiscation of money and assets if it finds these are, in actual fact, derived from wealth accumulated by bribery, based on report of investigation or other concrete information. 19. The preliminary scrutiny team shall:- (a) inform the investigated person of the investigation whether his/her wealth is accumulated by bribery on assignment of the commission and allow him/her to defend himself/herself or hire attorney to make the defence, (b) subpoena necessary individuals to bear witness as regards the assets, (c) submit report of investigation to the commission, attached its findings, review and comments after reviewing report of investigation of investigation team or information acquired by the commission and presentation of defendant, (d) keep findings and things under investigation secret. Chapter (5) Formation of investigation team and its duties 20. The commission shall investigate or call for investigation in order to take action in accord with the law regarding the following cases. (a) being tasked by the President with undertaking investigation and submitting report. (b) being tasked by the Speaker of the Hluttaw concerned as regards a proposal of Hluttaw representatives in accord with the law to take action, if necessary, against a holder of public office pursuant to Section (42), Sub-section (b). (c) when victim, for taking legal action against anyone who commits bribery, files:- (i) a complaint at the commission, (ii) a complaint at any working committee, working team, preliminary scrutiny team and investigation team formed under this law, (iii) a complaint, at any government department or government organization concerned, which is transferred the commission from the said department or organization.

7 21. The commission shall not investigate the following cases:- (a) the complaint having been investigated by the commission, (b) the complaint filed again with no new evidences. 22. The commission shall form and assign investigation teams led by any commission member with suitable citizens. 23. The following persons shall not be included in the investigation team:- (a) the person who is concerned in the accusation, (b) the person who has hatred against the plaintiff or the accused, (c) the relative of the plaintiff or the accused, (d) the person who has business relationship with the plaintiff or the accused. 24. The investigation team, in conducting investigation, shall ask the accused to make defence, present evidence or witness as regards the accusation in a fixed period. 25. In investigation undertaken by the investigation team, the accused shall defend himself/herself or hire attorney to make the defence to the accusation. 26. (a) The investigation team shall submit report of investigation to the commission chairman after completing investigation. (b) The commission chairman shall call the commission meeting to consider the said investigation within 30 days after receiving the report submitted in accordance with Sub-section (a). 27. The commission shall:- (a) according to report of investigation, (i) dismiss the complaint if it assumes that there is no concrete evidence. (ii) if it finds the person commits any offence prescribed in this law, grant prior permission to lodge lawsuit and task the investigation team or the Investigator with filing lawsuit against him/her at respective court. (iii) inform the President, the Speaker of the Pyithu Hluttaw and the Speaker of the Amyotha Hluttaw of the decision to grant prior permission to lodge lawsuit in accordance with Sub-section (ii) as soon as possible. (b) form preliminary scrutiny team and tasked it with submitting report of investigation in accord with provisions in Chapter (4) of this law if any individual is found to have accumulated the wealth through bribery after scrutinizing the report of investigation. (c) task the investigation team which submitted the said report or another investigation team if it is assumed that further evidences should be gathered. 28. In cases of filing lawsuit against the accused or of deciding to investigate by preliminary scrutiny team believing there may be accumulation of wealth through bribery by the commission, and the accused being the authority, the accused shall not continue performing his/her duties since the day the commission made the said decision. 29. The commission shall:- (a) in case of deciding to file lawsuit against an authority, deliver its report on the case to the President who assigns the commission in accordance with Section (21), Sub-section (a), and the Hluttaw Speaker

8 concerned who assign the commission and the plaintiff in accordance with Section (21), Sub-section (b), and the Union Government Office for taking follow-up action against him by the Office of the Union Attorney-General. (b) report the head of the organization of the civil service if it is assumed that disciplinary action should solely be taken against the accused. 30. The investigation, if necessary, shall continue in order to take legal action or disciplinary action, or confiscate related assets by the State although the accused has abandoned his/her position while conducting investigation on the allegation by the commission. 31. Regardless of any provision in any existing law, the commission shall invest investigation team or any Investigator with the following powers to investigate any bank if it is assumed that investigation is necessary as regards an offence prescribed in this law:- (a) Inspecting and copying any banking documents, bank accounts or catalogues at any bank or monetary organization or under its management, (b) Inspecting and copying any share portfolio, purchase record, budget or withdrawal from anyone s account, (c) Inspecting materials in safe deposit boxes at any bank or monetary organization, (d) Enquiring about other information related to any catalogue, list and material prescribed in Subsections (a), (b) and (c). 32. Investigation team or Investigator invested with authority in accordance with Section (32) shall seize document, catalogue, record and cash under investigation in the following conditions:- (a) inspecting, copying and abridging them shall not be completed without seizure, (b) possibility of destroying evidence if not seized, (c) the need to cite them as evidence in filing lawsuit under this law or other existing laws. 33. (a) The commission, if it is informed or believe that any transferable asset including any financial contract that is subject to any charge under this law or to be cited as evidence in the said case, shall order any bank or monetary organization not to sell, or procure or transfer, in any other way, it or any part of it, regardless of any provision in any existing law, until the order of the commission is revoked or revised. (b) Bank and monetary organization, or representative or employee, which/who abides by the order issued under Sub-section (a), shall not be charged under the penal code or the civil procedure. 34. The commission, if it believes that any asset subject to any charge under this law is kept or deposited overseas, shall take measures to bar the keeper or the depository from transferring the asset in any way in accordance with the procedures. Chapter (6) Formation of Anti-bribery Commission Office 35. The President shall form Anti-bribery Commission Office with Chief Investigator, Investigators and staff.< 36. The President shall appoint Chief Investigator at the suggestion of the commission.

9 Duties and Authorities of Chief Investigator 37. The Chief Investigator shall be accountable to the commission and perform duties in accordance with directive from the commission. 38. The Chief Investigator, in accordance with the directive from the commission, shall instruct, control and supervise the commission office. 39. The Chief Investigator shall submit report on his/her undertaking to the commission in accordance with the procedures. Duties, Authorities and exemptions of Investigator. 40. Investigator shall perform the following duties on assignment of the commission:- (a) Accepting and investigating tipoff and complaints, (b) Launching investigation on committing, attempt to commit or helping to commit any offence prescribed in this law, (c) Inspecting nature, systems, and rules and regulations of government departments, government organizations and public organizations which resort to bribery, and recommending changes, if necessary, to these systems, and rules and regulations to the commission, (d) Suggesting and helping government departments, government organizations and private organization which are combating against bribery on request, (e) Suggesting heads of government departments, government organizations and public organizations for combating bribery effectively in accordance with the directive from the commission, (f) Reporting findings of investigation to the investigation team, (g) Educating public for the fight against bribery, (h) Performing other duties assigned by the commission. 41. Members of the commission, members of preliminary scrutiny team, members of investigatin team and investigators shall enjoy the same authorities and exemptions as a police officer granted under any existing law in performing duties prescribed in this law. Chapter (7) Providing information on bribery Providing information by the President, the Speaker of the Pyithu Hluttaw, the Speaker of the Amyotha Hluttaw and Hluttaw representatives 42. (a) The President or the Speaker of the Pyithu Hluttaw or the Speaker of the Amyotha Hluttaw shall assign the commission to conduct investigation regarding bribery charge. (b) The representatives of the Pyithu Hluttaw or the Amyotha Hluttaw shall submit proposal as regards accumulation of wealth through bribery, misappropriation of position or bribery charge by any public office holder to respective Hluttaw in accordance with the law. (c) The respective Hluttaw Speaker shall:- (i) assign the commission to conduct investigation, if necessary, on receipt of the proposal as prescribed in Sub-section (b). (ii) report the public office holder, who has, according to the report of the commission, accumulated wealth through bribery or committee misappropriation of position or bribery charge, to authorities concerned to take legal action against him/her.

10 Tipoff and complaint by victim 43. Victim of bribery shall give information and lodge complaints at the commission, the commission office, working committee formed under this law, working group, any preliminary scrutiny team, any investigation team, respective government department, any organization as regards bribery or accumulation of wealth by any authority through bribery. 44. The commission office, working committee formed under this law, working group, any preliminary scrutiny team, any investigation team, or respective government department or organization which has received the information or complaint under Section (43) shall submit it to the commission as soon as possible in accordance with the procedures to gave necessary instructions for effective measures in response to the information or the complaint. 45. If the information or the complaint is found to be false and intended to hurt or defame any individual, action will be taken under this law against the person, who provides the information or files the complaint under Section (43). Chapter (8) Declaration of money, assets, liabilities and prospective gains owned by authority 46. The commission shall issue order of the name list of authorities who are subject to submitting declaration of money, assets, liabilities and prospective gains after obtaining and scrutinizing the name list from respective departments and organizations. 47. Authorities who are subject to submitting declaration of money, assets, liabilities and prospective gains owned by the family they led in the same business shall submit it to the commission once a year in accordance with procedures. 48. The authorities, in submitting the declaration, shall:- (a) attach copy of proof showing how money and assets are owned, (b) attach copy of document showing payment of income tax from the money earned from selling assets, if any, (c) Present lists of money, assets, liabilities and prospective gains, both at home and abroad, as regards money and assets ownership prescribed in Sub-sections (a) and (b). 49. On death of the authority, heir, official representative or treasurer of the authority shall submit lists of money and assets owned by him/her to the commission in accordance with procedures. Chapter (9) Confiscation of wealth accumulated through bribery 50. The commission shall, according to the report on findings of the investigation team, assign preliminary scrutiny team to scrutinize and report money and assets owned by any authority who accumulated wealth through bribery. 51. On assignment from the commission, the preliminary scrutiny team shall acquire necessary evidences in accordance with this law and submit report on findings to the commission with comment on whether the said money and assets should be confiscated or not. 52. The commission, after assessing the report on findings of the preliminary team shall, if money and assets of any authority:- (a) are found to be owned through bribery, issue order to confiscate the money and assets owned by him/her.

11 (b) are proved to be owned through legal activities with concrete evidence, return the said money and assets under confiscation or freezing order to the accused. 53. The commission shall return money or assets seized as evidences which are legally transferred to another person in honest manner to the said person if with concrete proof. Chapter (10) Offences and penalties 54. Any public office holder who is found guilty of bribery charge, shall be sentenced to the prison term not exceeding 15 years and/or fine. 55. Any other authority except public office holder, who is found guilty of bribery charge, shall be sentenced to the prison term not exceeding 10 years and/or fine. 56. Anyone except public office holder and authority, who is found guilty of bribery charge, shall be sentenced to the prison term not exceeding seven years and/or fine. 57. Anyone, who is found guilty of changing, transferring, hiding, destroying or transforming money or assets related to any offence prescribed in this law or related to wealth accumulated through bribery, shall be sentenced to the prison term not exceeding five years and/or fine. 58. Anyone, who is found guilty of giving false information or filing invalid complaint that any individual commits any offence prescribed in this law, accumulates wealth through bribery, or reporting wrong witness or creating fake evidence, or asking another person to do one of them, shall be sentenced to the prison term not exceeding five years and/or fine. 59. Anyone, who is found guilty of failing to abide by an order issued by any organization assigned by the commission, shall be sentenced to the prison term not exceeding six months and/or fine. 60. Any authority, who is found guilty of deliberately failing to declare money, assets, liabilities and prospective gains within the period fixed by the commission or making wrong or incomplete declaration, shall be sentenced to the prison term not exceeding five years and/or fine. 61. Any official of bank and monetary organization, who is found guilty of committing any of the following acts in connection with the offence prescribed in this law, shall be sentenced to the prison term not exceeding five years and/or fine:- (a) refusing to allow the investigation team on assignment from the commission to accomplish legal duties, (b) giving or transferring money and assets at any bank and monetary organization related under freezing order of the commission without permission of the commission, (c) destroying, changing, amending or transferring records related to money and assets under investigation of the commission without permission of the commission. 62. Anyone, who instigates, attempts, conspires or manages to commit any offence prescribed in this law, shall be sentenced the penalty prescribed for the said offence. Chapter (11) General provisions 63. The person under investigation is responsible for proving how money or assets, he/she owns, are acquired legally or from which income with concrete evidences.

12 64. The investigation team or the investigator, who is tasked with filing lawsuit over any offence prescribed in this law, shall:- (a) acquire prior permission issued by the commission in agreement with the Union government if the suit is against the public office holder, (b) acquire prior permission in accordance with the existing law if the suit is against the Hluttaw representative, (c) acquire prior permission issued by the commission if the suit is against anyone, except the public office holder and the Hluttaw representative. 65. If evidence related to bribery charge prosecuted under this law are materials difficult to bring to the court, report on how it is maintained or respective documents shall be submitted to the court without requiring to bring the said evidence to the court. The court shall issue maintenance order, assuming the said report as the evidence before the court. 66. Any commission member, preliminary scrutiny team member, investigation team member, investigator, working committee member and commission office staff, or any staff of the commission, preliminary scrutiny team, investigation team or the commission office, who acts honestly in enforcing provisions in this law, shall not be charged with civil or criminal or other offences. 67. Regardless of provisions in any other existing law, charges of bribery, accumulation of wealth through bribery and inspection of money and assets shall be prosecuted only under this law. 68. Offences prescribed under this law are defined as cognizable offences. 69. Commission members, members of working committee, working group, preliminary scrutiny team and investigation team formed under this law, investigator, officers and staff of the commission office are to be assumed as civil servants. 70. The Union government shall allot budget for allowances of working committees, working groups, preliminary scrutiny teams and investigation teams formed under this law and allowances of the commission office. 71. The commission shall issue bylaws, rules, regulations, notifications, orders and directives in enforcing provisions in this law. 72. The 1948 Suppression of Corruption Act (Law No. 67/48) is revoked by this law.