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Republic of the Union of Myanmar Press Release Team Press Release (15/2013)

Republic of the Union of Myanmar Press Release Team Press Release (15/2013)

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Republic of the Union of Myanmar

Press Release Team

Press Release (15/2013)

8 August, 2013

2nd Waxing of Wagaung, 1375 ME

 

Press Release on the Promulgation of Anti-Corruption Law

 

1. Amyotha Hluttaw Financial and Legal Affairs Commission Chairman U Aung Tun of Magway Region Constituency No (11) submitted the Anti-Bribery Bill on the first day fourth regular session of First Amyotha Hluttaw on 4-7-2012. The Pyidaungsu Hluttaw approved the bill on the seventh day sixth regular session of First Pyidaungsu Hluttaw on 8-2-2013 and sent it to the President on 13-2-2013 to sign and enact it as law. The President sent the Anti-Bribery Bill back to the Pyidaungsu Hluttaw with 12 amendments suggestions, which are mentioned in detail in third column of the table of the fourth paragraph, on 22-2-2013. These 12 suggestions of the President include consultations with the Union Attorney-General, legal practitioners and academicians to make it comply with the constitution, compliance with the United Nations Convention Against Corruption (UNCAC), compliance with the existing laws and suggested omissions.

 

2. World nations have given high priority to anti-corruption efforts in post-conflict periods and in transitions. Myanmar enacted Anti-Corruption Act in post-independence period in 1948 and tasked the central investigation agency to enforce it. Myanmar made ratification and accession into UNCAC initiated since 2005 on 21-12-2012. A committee led by the Vice-President have overseen anti-bribery and anti-corruption efforts inside government departments since 8-1-2012. The Central Investigation Agency of the Ministry of Home Affairs enforced 1948 Anti-Corruption Act. There are 23 existing laws connected with the act.

 

3. The Pyidaungsu Hluttaw only agreed on two amendments of the name change to “Anti-Corruption Bill” and the provision as regards the search for evidence in any bank among 12 comments by the President. The Pyidaungsu Hluttaw decided to keep 10 remaining facts as approved earlier by the Hluttaw and sent it to the President on 30-7- 2013. The following amendments need to be made to the bill:-

 

 

(a)

Despite the title of Anti-Corruption Bill, it merely prescribes bribery charges;

 

(b)

To match with the title of the bill, the expression “corruption” needs to be defined.

 

(c)

As corruption includes misuse of power, bribery and deliberate irresponsibility, the bill should cover these areas.

 

4. As regards the bill, the original approval of the Pyidaungsu Hluttaw, the President’s comments and the final approval of the Pyidaunsu Hluttaw are shown against as follows:-

Sr

Initial approval of

Pyidaungsu Hluttaw

President’s

remark

Final approval

of Pyidaungsu

Hluttaw

1

2

3

4

(a)

The name of the bill is expressed as “Anti-bribery Bill”.

Bribery is a part of the corruption.The name of the bill should be taken into consideration whether it should be “Anti-corruption Bill” to be in conformity with the “the United Nations Convention against Corruption- UNCAC” that has been signed by Myanmar.

The comments of the President is approved.

(b)

32. Whatever provisions are included in any existing laws, the commission, if it assumes that it is necessary to probe into a criminal case expressed in the law, shall entrust following powers to an investigation team or an investigation officer to go through a bank.

Regarding the Section 32 of the Bill which says the commission shall entrust following powers to an investigation team or an investigation officer to go through a bank, the expression “to go through a bank” should be replaced with “ to investigate the bank accounts of the accused”.

The previous approvalof Pyidaungsu Hluttaw is approved.

(c)

13. Members of the commission, when they are assigned duty to the commission”, shall make a list of their property including cash owned by their families and their liabilities and assets and shall submit the list to the president.

“Members of the commission, when they are assigned duty to the commission”, shall make a list of their property including cash owned by their families and their liabilities and assets and shall submit the list to the president” described in the Section 13 of the bill should be excluded as it is not in conformity with the constitution.

The previous approval of Pyidaungsu Hluttaw is approved.

(d)

15. The President, if he finds out that a member of the commission carries out duty against the law or breaks the constitution or existing law or tarnishes the image of the commission, shall have the right to terminate the duty of the member with the agreement of a personnel who selects the member.

“The President shall have the right to terminate the duty of the member with the agreement of a personnel who selects the member” described in the Section 15 of the bill should be excluded as it is not suitable for the president to seek an agreement from the personnel who selects the member.

The previous approval of Pyidaungsu Hluttaw is approved.

(e)

16 (o) Carrying out other duties assigned by the President, the Speaker of Pyidaungsu Hluttaw, the Speaker of Pyithu Hluttaw or the Speaker of Amyotha Hluttaw.

Sub-section (o) of the Section 16, should be reviewed assigning separate duties by the speakers of Hluttaws it is in conformity with the Sub-section (a) of the Section 11 of the constitution as this law would be brought about by the executive sector.

The previous approval of Pyidaungsu Hluttaw is approved.

(f)

30 (a) In a case when the commission has to decide to take action against a person who is in authority, the commission shall submit its report to the President who assigned duty to the commission under the subsection (a) of the Section-21, to the Speaker of the respective Hluttaw who assigned duty under sub-section (b) of the Section 21 and shall send its report to a person who lodged complaints, and to the Union Government Office so that it can take actions against the defendant under the arrangement of the Attorney- General of the Union.

Regarding the provision of “shall send its report to a person who lodges complaints” in Sub-section (a) , Section 30 of the bill, submitting the commission’s report to the president is suitable but sending the report to a person who lodges complaints is not suitable and should be corrected. Because, the commission is comprised five members each selected by the President, Pyithu Hluttaw Speaker and Amyotha Hluttaw Speaker under Section-5 and has been assigned duty by the president under the sub-section (b) of the Section-7.

The previous approval of Pyidaungsu Hluttaw is approved.

(g)

30 (a) In a case when the commission has to decide to take action against a person who is in authority, the commission shall submit its report to the President who assigned duty to the commission under the subsection (a) of the Section-21, to the Speaker of the respective Hluttaw who assigned duty under sub-section (b) of the Section 21 and shall send its report to a person who lodged complaints, and also to the Union Government Office so that it can take actions against the defendant under the arrangement of the Attorney-General of the Union.

According to the Section-18 of the bill, a leader of an investigation team or an investigation office shall open files on a person who takes bribery. The expression “shallalso send its report to the Union Government Office so that it can take actions against the defender under the arrangement of the Attorney-General of the Union” in the sub-section (a) of the Section 30, should be corrected as it is not in conformity with the Section 18 and the office of the Attorney-General of the Union has to carry out its dutyon behalf of the State.

The previous approval of the Pyidaungsu Hluttaw is approved.

(h)

41 (f) Submitting the findings to the Investigation Team.

Regarding “ the investigation officer shall submit its reports on his findings to the investigation Team” in the Sub-section (f) of the Section-41 of the bill, the investigation officer should submit his report only to the commission as he is assigned duty by the commission.

The previous approval of Pyidaungsu Hluttaw is approved.

(i)

Chapter 8

Declaring the property owned by a person in authority and his duties rights (from Section-47 to Section-51)

“declaring the property owned by a person in authority and his liabilities and assets” included in the Chapter-8 of the bill and the expression in Section 47, 48, 49 and 50 should be excluded as they are not in conformity with the constitution.

The previous approval of Pyidaungsu Hluttaw is approved.

(j)

72 (a). The Commission can issue laws, bylaws, regulations, rule and regulations with the agreements of the Union government.

The Section 72 (a) of the Bill states that the Commission can issue laws, bylaws, regulations, rule and regulations with the agreements of the Union government. It should be reviewed whether or not it is in conformity with the Constitution.

The Pyidaungsu Hluttaw approves the previous approval.

(k)

68. Regarding corruption and bribery or being rich based on corruption and bribery or investigation into corruption and bribery and action taken against corruption and bribery cases, action should be taken against those who commit the corrupt cases in accord with that bill even though other existing law stipulates action taken.

The bill needs to add following points.

- In essence, the Section 68 of the bill amounts to taking this bill alone into account. UN Convention Against Corruption (UNCAC) includes appointment of qualified public officials (Article 7), Article 8 (Codes of Conduct for public officials, public procurement and management of public finances (Article 9); Public Reporting (Article 10); measure relating to judiciary and prosecution services (Article 11); private sector (Article 12); and measures to protect money-laundering (Article 14). In accord with that law, Myanmar enacted the following law; The Penal Code; The Criminal Law Amending Act (1951); The Forest Law ; The Union Civil Services Board law (under discussion at Hluttaw); The Union Judiciary Law; The Narcotic Drugs and Psychotropic Substances Law; and The Law Taking Action Against the ownership or sale of property obtained by illegal means. It is hereby suggested that Section 68 of that bill should be enacted in conformity with UNCAC‘s articles and described in accord with the existing laws. (There are 23 existing laws regarding the bill).

 

-Participation of society (Article 13) should be included in the bill.

 

-UNCAC includes protection of witness, experts and victims (Article 32) and Protection of reporting persons (Article 33). The Section 17 (i) of the bill includes Protection of reporting persons only. So, protection of witness, experts and victims should be added into the bill.

 

-That bill should include Extradition (Article 44), Transfer of sentenced persons (Article 45); Mutual legal assistance (Article 46); Transfer of Criminal Proceedings (Article 47); Law enforcement cooperation (Article 48); Joint investigation (Article 49); and Special Investigative techniques (Article 50).

The Pyidaungsu Hluttaw approves the previous approval.

(l)

10.The following persons should not be appointed as members of the commission.

10 (d)  Those who are serving his or her jail terms according to court’s verdict.

53 (b)   Money and properties should be given back to those owners when authorized persons can prove that money and properties are obtained by legal means.

 

Usage of expression should be amended.

-The expression “those who are in jail according to court’s decision described in the Section 10 (d) of the bill should be replaced with the expression “Those who have served jail terms according to court’s decision”.

-The expression “money and properties shall be given back to those owners” described in Section 53 (b) of the bill should be used as the expression “those accused”.

 

The Pyidaungsu Hluttaw approves the previous approval.

5.Though certain provisions mentioned above in para-3 in the bill resent to seek the President’s approval for signing it into law need reconsidering and to meet the prescriptions in the constitution and UNCAC and existing laws related to corruption, a message was sent to the Speaker of Pyidaungsu Hluttaw on 7-8-2013 to ask the President to sign the bill approved by the majority of MPs with respect to the wish of majority. The full text of the message is as follows:

 

Reference:

(1) message sent to the President by the Speaker of Pyidaungsu Hluttaw with letter No. 1/pahta (meeting) 9/2013-9 dated 13-2-2013

 

 

(2) message sent by the President to the Speaker of Pyidaungsu Hluttaw with letter No. 107(2)/8/President Office dated 22-2-2013

 

 

(3) message sent by the Speaker of Pyidaungsu Hluttaw to the President with letter No. 1/pahta (meeting) 9/2013-59 dated 31-7-2013

 

 

1.

I sent the anti-corruption bill with message (2) in the reference along with 12 remarks and received the bill back from the parliament with message (3).

 

2.

The parliament only approved the two out of 12 suggestions—changing the name of the bill and changing the matter related to bank evidence—and sent the other 10 points back to me intact.

 

3.

I made the 12 suggestions, seeking the advice from the Union Attorney-General, legal experts, academicians and legal and academic suggestions of the departments concerned, with a view to meeting the prescriptions of United Nations Convention Against Corruption (UNCAC) and existing laws on anti-corruption.

 

4.

Of those 12 suggestions, I have suggested that prescriptions in the sections 15, 16, sub-section (o), sections 47, 48, 49 and 50 need to meet the provisions of the constitution, prescriptions in section 18 need be cancelled or amended as it is against the other existing laws and prescriptions in section 30 sub-section (a) and section 41, sub-section (f) be amended and the prescriptions in section 68 need to meet existing laws and the international convention which Myanmar has signed.

 

5.

In addition, I here describe the points need considering in the bill sent back to me.

 

 

(a)

Though the bill is named anti-corruption bill, the provisions only cover penalties for bribery and corruption.

 

 

(b)

It needs to define the phrase “corruption” to meet the intention of the name of the bill.

 

 

(c)

The bill needs to cover wide-ranging subjects as corruption includes abuse of power, bribery and deliberate negligence.

 

 

6. In the Union address on 31-3-2011 on assuming the presidency of Myanmar, I articulated my political commitment that I would lead the government in bringing about good governance and clean government for stability of the State and national economic development beginning from the very first I took the office.

 

7.

In addition, learning the political process of global nations, it is found that focus is placed on anti-corruption efforts in post-conflict period and transition period. In our country in the post-independence era, 1948 Anti-corruption Act was enacted and special investigation was formed to tackle with corruption. The new government led by me ratified the UNCAC on 20-12-2012 which Myanmar signed in 2005. On 8-1-2013, a committee led by Vice-President was formed and tasked with eliminating corruption and bribery in government departments.

 

8.

Home Affairs Ministry responsible for anti-corruption measures legally formed Special Investigation Bureau and Financial Intelligence Unit (FIU) and working in cooperation with international organizations. In addition, the special investigation bureau set up a public complaint system aiming at public cooperation in anti-cooperation efforts and announced its establishment on 30-11-2012 dailies.

 

9.

Moreover, a Union minister at the President was assigned to ensure good governance and clean government and he received 119 complaints about collusive practices of civil servants and following actions were taken—

 

 

(a)

Punishment under provision in civil servants law section 53

362 persons

 

 

(b)

transfer

 69 persons

 

 

(c)

retirement

18 persons

 

 

(d)

imprisonment

1 person

 

 

 

Total 

450 persons

 

 

10. I welcome the efforts of the parliament to enact the bill while the government is directing its efforts on anti-corruption as it is the joint effort toward the same goal. I however sent the remarks in the hope of improving the bill to assure its effectiveness in measures for the rule of law and interoperability with other existing laws. The parliament has refused to accept 10 out of 12 suggestions and there are three points that need reconsidering in the bill sent back to me, which I describe in para-5 above. As regards to my remark that some provisions in the bill need to meet the provisions in the constitution, “the Constitutional Tribunal of the Union, under the section 322 sub section (b) of the constitution is tasked with checking if the laws enacted by the Pyiadungsu Hluttaw, Region Hluttaw, State Hluttaw or leading bodies of self-governing regions agree to the constitution and taking proper actions against failures.

 

11.

Furthermore, as regards the effectiveness of the laws, the section 198 (a) of the constitution— “If a particular provision in the enacted law or a particular law in force is against the certain provision in the constitution, the provision in the constitution shall be followed”—must be considered.

 

12.

Despite the above-mentioned circumstances, I signed the bill approved by the majority of MPs with respect to the wish of the majority. The signed anti-corruption bill is forwarded for further proceeding according to section 106, subsection (b) of the constitution.

           

 

6. The Constitutional Tribunal of the Union is obliged to check if the laws enacted by the legislatures and leading bodies of self-governing regions agree to the constitution, under the section 322 subsection (b) of the constitution.

 

7. The Pyidaungsu Hluttaw enacted the anti-corruption law as the law No. 23 of the Pyidaungsu Hluttaw on 7-8-2013 as per section 106, Subsection (b) of the Constitution and the full context of the law was made public on 8-8-2013 issue of State-owned dailies.

 

8. It is hereby announced that the President has signed the anti-corruption bill into law with respect to wishes of the majority as the bill was approved by the majority of MPs.

 

Press Release Team

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