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Anti-corruption In Myanmar

1. Bribery in the home (private to public)

1.1 The Legal Environment

Bribery of public officials is largely governed under Chapters IX and XIA of the Myanmar Penal Code and the Anti-Corruption Law of 2013 (the “Anti-Corruption Law”). Taxation, banking, and financial legislation, as well as the Myanmar Official Secrets Act 1923, the Defence Services Act 1959, the Fire Services Law 1997, and the Civil Service Law 2013, all contain corruption-related charges and penalties.

1.2 What does bribery mean?

The Penal Code establishes a number of bribery-related offenses. The general offense is as follows:

Whoever accepts or obtains or agrees to accept, or attempts to obtain, from any person, for himself or for another person, any gratification whatsoever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions, favor or disfavor to a person, who is or expects to be a public servant.

All offenses under the Penal Code can only be committed by public workers (with the exception of bribery in connection with elections). However, in theory, the person who provides the pleasure could be charged with aiding and abetting the public official in the crime.

The term “corruption” is defined as follows in the Anti-Corruption Law:

Giving, accepting, receiving, attempting to receive, offering, pledging, or discussing in any way a consideration from a person concerned for himself or another or any organization in order to do anything, refrain from doing any lawful act, or give a person his legitimate right are all examples of corruption.

1.3 What does it mean to be a public official?

The Myanmar Penal Code defines public servants broadly, including government employees, military members, judges and court officials, as well as police and inland tax officials.

1.4 Bribery’s Consequences

(a) For the Individuals Involved

  • If a public official commits a crime under the Penal Code, the abettor may face the same penalties as the official. The penalty for the above-mentioned offense involving public officials under the Penal Code might be a fine, up to three years in prison, or both.

  • Any “political post holder” guilty of corruption faces a fine and up to 15 years in jail; any other authorized person faces a fine and up to 10 years in jail; and anyone else faces a fine and up to seven years in prison under the Anti-Corruption Law.

(a) For the corporation/legal entity

  • Neither the Penal Code nor the Anti-Corruption Law contain any specific punishments for corporations or legal entities. However, under Myanmar’s Interpretation of Expressions Law of 1973, the term “person” encompasses any company, hence companies are subject to the same penalties as private individuals. Under the Penal Code, the same situation exists.

1.5 Contributions from politics

Contributions to political parties are unrestricted under the Political Party Registration Law (2010). However, contributions must come from domestic rather than international sources.

1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)

The new Myanmar administration released instructions to government officials on 4 April 2016 limiting gifts that can be taken in an effort to reduce corruption. In an area where there has previously been little direction, these rules provide an incredibly significant guide for international investment. The underlying idea of the rules is that no government officer, member of any government commission or committee, or member of the public service may accept any gift given to them as a result of their official position. However, there are a few notable exceptions that are worth noting: Gifts of up to MMK 25,000 (approximately USD 25) may be accepted; gifts of up to MMK 100,000 (approximately USD 100) may be given on religious occasions such as Christmas and Thadingyut; and gifts of up to MMK 100,000 (approximately USD 100) may be given on religious occasions such as Christmas and Thadingyut (end of Buddhist lent festival). When the present comes from a foreign government, the situation is slightly different. In this situation, I presents up to MMK 400,000 (about USD 400) may be accepted; (ii) travel allowances for official trips may be accepted; (iii) scholarships and medical expenses may be accepted; and (iv) other presents may be accepted in specific circumstances.

These standards bring much-needed clarity to an area where it has previously been difficult to determine what is and is not appropriate gift-giving to government officials. Despite the fact that the rules do not have a clear legal basis, they are certain to have a huge impact. We can only wait to see if they have any impact on the Anti-Corruption Law’s implementation.

Public officials may not be entertained unless it is in the framework of a lecture, workshop, or other comparable event. It’s also worth remembering that context is especially crucial when it comes to public officials: a gift from a CEO to a minister is likely to be more valuable than one given to lower-ranking authorities.

 

2. Bribery in the home (private to private)

2.1 Legal Framework Bribery in the United States is governed by the Anti-Corruption Law.

2.2 What is bribery in the private sector?

Private bribery does not have its own definition. At first glance, the Anti-Corruption Law appears to be aimed largely at government officials. On a wider reading, however, it could include what is known as private corruption. As a result, the definition of corruption would be the same as in section 1.2.

A director general or managing director of a state and private joint venture firm, board, corporation, or other institution would fall under this category, according to the Anti-Corruption Law. In a broader sense, authoritative people could include other high-ranking authorities or managers.

There have been no cases that might be used to help interpret this regulation. However, in these circumstances, we recommend that you proceed with caution. It’s worth noting that the legislature’s goal in establishing the Anti-Corruption Law was to fulfill Myanmar’s commitments under the UN Convention Against Corruption, which specifically addresses bribery in the private sector. Furthermore, the Myanmar legislature revised the Anti-Corruption Law to incorporate a broader term of “corruption,” implying that private-public corruption is covered.

2.3 Consequences of private bribery

(a) For the people who are involved

Anybody who is not an authorized person faces a fine and up to ten years in prison; anyone else faces a fine and up to seven years in prison.

(b) For the business/legal entity

The Anti-Corruption Law contains no specific punishments for businesses or legal bodies. However, under Myanmar’s Interpretation of Expressions Law of 1973, the term “person” encompasses any company, hence companies are subject to the same penalties as private individuals. Under the Penal Code, the same situation exists.

2.4 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)

Because there are no specific constraints on hospitality expenses, what is socially acceptable in the commercial setting must be used as a guide to a significant extent.

Presents and entertainment expenses are typically valued at up to USD 75 per person for gifts and the same amount per person for entertainment. Obviously, what is appropriate will vary depending on the situation and the status of those involved. As previously stated, the government has officially announced limits on what presents government employees may and may not accept, which are significantly lower in value than previously imagined. It’s unclear how this guidelines will affect how private-to-private gift-giving standards are handled. We suggest caution due to the newness of the Anti-Corruption Law and the absence of examples in this area.

 

3. Foreign public officials’ corruption

3.1 The Legal Environment

The Anti-Corruption Act is a piece of legislation enacted to combat corruption.

3.2 Definition of foreign public official corruption

Foreign public official corruption does not have its own definition. The crime is authorized person corruption, and a foreign public official is an authorized person. In section 1.2, the crime of corruption is defined.

3.3 Explanation of the term “foreign public official”

“A person who is appointed or selected by any foreign country legislation, administration, or judiciary officer, a person who works in a board, commission, corporation, or other organization formed to carry out the duties of a foreign country, and an authorized person who works on behalf of an international organization,” according to the Anti-Corruption Law.