Prevent
and suppress trafficking in persons as national duty as it damages the pride and
pedigree of Myanmar nationality that hould be valued and safeguarded by Myanmar
race The State Peace and Development Council enacts Anti Trafficking in Persons
Law
The Union of Myanmar
The State Peace and Development
Council
The Anti Trafficking in Persons Law
(The State Peace and
Development Council Law No. 5/ 2005)
(The 11th Waxing Day of Tawthalin,
1367, M.E.)
(13th September, 2005)
The State Peace and Development
Council hereby enacts the following Law:
Chapter I
Title,
Jurisdiction and Definition
1. This Law shall be called the Anti
Trafficking in Persons Law.
2. This Law shall have jurisdiction on any
person who commits any offence cognizable under this Law in the Union of
Myanmar, or on board a vessel or an aircraft registered under the existing law
of the Union of Myanmar, or on a Myanmar citizen or foreigner residing
permanently in the Union of Myanmar who commits the said offence outside the
country.
3. The expressions contained in this Law shall have the meanings
given here under:-
(a) Trafficking in Persons means recruitment,
transportation, transfer, sale, purchase, lending, hiring, harbouring or receipt
of persons after committing any of the following acts for the purpose of
exploitation of a person with or without his consent:
(1) threat, use of
force or other form of coercion;
(2) abduction;
(3) fraud;
(4)
deception;
(5) abuse of power or of position taking advantage of the
vulnerability of a person;
(6) giving or receiving of money or benefit to
obtain the consent of the person having control over another
person.
Explanation (1) Exploitation includes receipt or agreement for
receipt of money or benefit for the prostitution of one person by another, other
forms of sexual exploitation, forced labour, forced service, slavery, servitude,
debt-bondage or the removal and sale of organs from the body.
Explanation (2) Prostitution means any act, use, consummation or scheme
involving the use of a person by another, for sexual intercourse or lascivious
conduct in exchange for money, benefit or any other
consideration.
Explanation (3) Debt-bondage means the pledging by the
debtor of his /her personal labour or services or those of a person under
his/her control as payment or security for a debt, when the length and nature of
service is not clearly defined or when the values of the services as reasonably
assessed is not applied toward the liquidation of the debt.
(b)
Pornography means representation through exhibition, indecent show, publication,
cinematography or by use of modern information technology of a sexual activity
or of the sexual parts of a person for primarily sexual purpose.
(c)
Trafficked victim means a person on whom trafficking in person has been
committed.
(d) Organized criminal group means a structured group of three
or more persons, for a certain period with the aim of committing a serious
crime, in order to obtain directly or indirectly a benefit relating to money or
material. Explanation: Structured group means a group that is not randomly
formed for the immediate commission of an offence and that does not need to have
formally defined rules for the functions and duties of its members, continuity
of its membership or a developed structure.
(e) Serious crime means an
offence punishable with imprisonment for a term of four years or more under any
existing law.
(f) Transnational crime means an offence committed in more
than one State, or an offence committed in one State but a substantial part of
its preparation, planning, direction or control takes place in another State, or
an offence in which the offenders are involved in an organized criminal group of
another State or an offence committed in one State, which has affects on another
State.
(g) Controlled delivery means the technique to expose and take
action against the principal offenders, effect control with the consent of the
relevant authority and proceed on their arrangement, when the import, export,
entry, passing through or departure of illegal or suspected property or person
in the Union of Myanmar or into the territory of a foreign State is found, on
inspection.
(h) Property means movable property in any form, being
corporeal or incorporeal, tangible or intangible, animate or inanimate or
immovable property. This expression also includes legal documents evidencing
title, negotiable instruments and benefits pertinent to property.
(i)
Imprisonment for life means imprisonment passed on a convicted person to serve
in the prison until death.
(j) Child means a person who has not attained
the age of 16 years.
(k) Youth means a person who has attained the age of
16 years but has not attained the age of 18 years.
(l) Central Body means
the Central Body for Suppression of Trafficking in Persons formed under this
Law.
Chapter II
Aims
4. The aims of this Law are as
follows:
(a) to prevent, and suppress the trafficking in persons as a
national duty as it damages the pride and pedigree of Myanmar nationality that
should be valued and safeguarded by Myanmar race;
(b) in preventing and
suppressing trafficking in persons to pay particular attention to women,
children and youth;
(c) to enable effective and speedy investigation to
expose and take action against persons guilty of trafficking in persons and to
prevent further trafficking in persons by passing effective and deterrent
punishment;
(d) to liaise and coordinate with international
organizations, regional organizations, intergovernmental organizations formed
between governmental organizations and non-governmental organizations in
accordance with the international conventions relating to suppression of
trafficking in persons which Myanmar has acceded;
(e) to perform
effectively the functions of rescuing, receiving, safeguarding, rehabilitation
and reintegration into society of trafficked persons.
Chapter
III
Formation of the Central Body and Functions and Duties
Thereof
5. (a) The Government shall form the Central Body for Suppression
of Trafficking in Persons comprising the Minister for the Ministry of Home
Affairs as the Chairman, the Deputy Minister for the Ministry of Home Affairs,
the Deputy Minister for the Ministry of Social Welfare, Relief and Resettlement
and the Deputy Attorney General as Deputy Chairman, Director-General of Myanmar
Police Force as Secretary and suitable persons from among the following as
members:
(1) heads of relevant government departments and
organizations:
(2) representatives from the non-governmental
organizations;
(3) relevant experts;
(b) The Chairman of the Central Body
may if necessary assign a suitable person from among the members as the Joint
Secretary.
6. The functions and duties of the Central Body are as
follows:
(a) submitting suggestions to the Government for laying down a
State policy and working programmed relating to suppression of trafficking in
persons;
(b) forming the required working groups to implement its functions
and duties and determining the functions and duties thereof;
(c) forming the
different levels of State, Divisional, District and Township Bodies for
Suppression of Trafficking in Persons and determining the functions and duties
thereof;
(d) forming the bodies comprising experts to perform research works
for carrying out suppression of trafficking in persons effectively and assigning
duty thereto and supervising thereof;
(e) forming sector-wise Monitoring
Mechanism and Evaluation Team comprising experts and assigning duty thereto to
obtain the necessary substantive data relating to suppression of trafficking in
persons;
(f) laying down the necessary arrangements for the relief,
resettlement, rehabilitation, and reintegration into the mainstream of society
for the trafficked victims;
(g) communicating and coordinating with
international organizations, foreign States, local and foreign non-governmental
organizations, and obtaining assistance for work relating to suppression of
trafficking in persons, protection and rendering assistance, resettlement and
rehabilitation;
(h) directing as may be necessary to seize immovable
properties involved in an offence under this Law as exhibit;
( i) directing
when necessary the attachment and sealing of immovable properties involved in
the offence, which have been seized as exhibits; in prosecuted offence, disposal
as may be necessary in accordance with the final order of the relevant
Court;
(j) reporting to the Government from time to time the implementation
activities under this Law;
(k) carrying out functions and duties relating to
suppression of trafficking in persons assigned by the Government from time to
time.
7. The Central Body shall form the following working groups
comprising suitable persons and may form other required working groups to carry
out the implementation of the suppression of trafficking in persons:
(a)
Working Group on Prevention of Trafficking in Persons and Protection of
Trafficked Victims, headed by the Deputy Minister for the Ministry of Home
Affairs;
(b) Working Group on Legal Framework and Prosecuting Measures headed
by the Deputy Attorney General;
(c) Working Group on Repatriation,
Reintegration and Rehabilitation of Trafficked Victims, headed by the Deputy
Minister for the Ministry of Social Welfare, Relief and Resettlement.
Chapter IV
Functions and Duties of the Working Groups
8. The
functions and duties of the Working Group on Prevention of Trafficking in
Persons and Protection of Trafficked Victims are as follows:
(a) forming
Sub-Working Groups to carry out effectively the prevention of trafficking in
persons according to schemes approved by the Central Body;
(b) performing
effectively works relating to educating and publication of the danger of
trafficking and evil consequences to the people for the prevention of
trafficking in persons;
(c) sharing information by laying down the prevention
of trafficking in persons programmes, communicating and exchanging news with
domestic and foreign network;
(d) communicating and coordinating with
different levels of State, Divisional, District and Township bodies on
suppression of trafficking in persons;
(e) supervising the set-up of
specially trained force for the prevention of trafficking in persons, speedy and
effective investigation and exposure;
(f) scrutinizing and permitting to
enable the use of the controlled delivery system upon requirement when exposing
and investigating the trafficking in persons and liaising and coordinating with
foreign States, if necessary;
(g) laying down and carrying out working
programmes relating to protection and assistance to the trafficked victims
programmes especially women, children and youth;
(h) laying down and carrying
out working programmes relating protection and assistance in conformity with the
stipulations foreigners who are trafficked victims and have arrived in
Myanmar;
(i) arranging the required training and educating of persons who
will undertake the duty of protecting the trafficked victims;
(j) obtaining
assistance of the relevant government departments, organizations and
non-governmental organizations for the effective implementation of this
Law;
(k) recommending the enhanced communication and cooperation with
international organizations and regional organization and entering into
bilateral or multilateral agreements;
(l) carrying out other functions and
duties assigned by the Central Body.
9. The functions and duties of the
Working Group on Legal Framework and Prosecuting Measures are as
follows:
(a) drafting and submitting to the Central Body the necessary
draft of the rules, procedures, notifications, orders and directives for the
determination of security status of related information of trafficked victims
for the dignity and security and identification of trafficked victims, in
respect of the prevention of trafficking in persons;
(b) coordinating with
the relevant prosecution bodies to impose effective and severe punishment upon
the persons who have committed the offence of trafficking in persons and to
prosecute with valid evidence in accordance with law;
(c) laying down and
carrying out necessary arrangements for the effective protection of trafficked
victims and witnesses in prosecution cases under this Law;
(d) submitting to
the Central Body, in respect of the commission of trafficking in persons offence
as transnational organized crime, if necessary, to give assistance or to obtain
assistance between States;
(e) communicating and coordinating with the
different levels of State, Divisional, District and Township Bodies for
suppression of trafficking in persons;
(f) implementing by laying down the
training programme and enhancing skills programmes in order to take effective
action under this Law;
(g) obtaining assistance of relevant government
departments, organizations, and non-governmental organizations to enable the
effective implementation of this Law;
(h) carrying out other functions and
duties assigned by the Central Body.
10. The functions and duties of the
Working Group on Repatriation, Reintegration and Rehabilitation of Trafficked
Victims are as follows:
(a) coordinating and cooperating with relevant
government departments, organizations and non-governmental organizations for the
repatriation of the trafficked victims, to their native place, enquiring the
circumstances of the relevant family, medical examination of trafficked victims
with their consent, consolation and education and other necessary
assistance;
(b) laying down schemes and implementing to get the vocational
education based on the education and technical knowledge and to get employment
opportunities for the rehabilitation of trafficked victims;
(c) communicating
and coordinating with different levels of State, Divisional, District and
Township Bodies for Suppression of Trafficking in Persons;
(d) arranging to
enable utilization from the rehabilitation fund established under this Law for
the suppression of trafficking in persons and protection of trafficked victims,
in carrying out the rehabilitation works for the trafficked victims;
(e)
obtaining assistance of the relevant government departments, organizations and
non-governmental organizations for the effective implementation of this
Law;
(f) carrying out other functions and duties assigned by the Central
Body.
Chapter V
Safeguarding the Rights of Trafficked
Victims
11. In order not to adversely affect the dignity of the
trafficked victims:
(a) if the trafficked victims are women, children and
youth, the relevant Court shall, in conducting the trial of offences of
trafficking in persons, do so not in open Court, but in camera for the
preservation of their dignity, physical and mental security.
(b) with respect
to trafficking in persons, the publication of news at any stage of
investigation, prosecution, adjudication shall be made only after obtaining the
permission of the relevant Body for the Suppression of Trafficking in Persons
Body.
(c) person not involved in this case shall not be allowed to peruse or
make copies of documents contained in the proceedings.
12. The Central
Body shall, if the trafficked victims are women, children and youth, make
necessary arrangements for the preservation of dignity, physical and mental
security.
13. The Central Body:
(a) shall not take action against
the trafficked victims for any offence under this Law.
(b) shall determine
whether or not it is appropriate to take action against the trafficked victims
for any other offence arising as a direct consequence of trafficking in
persons.
(c) shall, if the trafficked person who re-entered the country has a
right of permanent residence protect his right to get permanent residence,
security and relevant status.
14. The Central Body shall arrange and
carry out for the security of life of trafficked victims and to arrange
according to their wishes for repatriation and resettlement as much as
possible.
15. The Central Body shall in the prosecution of a person
guilty of trafficking in persons coordinate with the relevant Ministries for the
temporary residence in Myanmar and repatriation to the relevant State of the
trafficked victim who is a foreigner, after giving the testimony.
Chapter
VI
Special Protection of Trafficked Victims, Women
Children and
Youth
16. The Central Body and relevant Working Groups shall, with
respect to the trafficked victims who are women, children and youth:
(a) give
special protection of their dignity and identification and necessary security
and assistance.
(b) carry out to send them back to their parents or guardian
if after scrutiny it is found that it is the best condition for them.
(c)
arrange other suitable and secure protection when there is no condition for
repatriation to the parents and guardian or inappropriate condition for
repatriation.
(d) arrange with emphasis on freedom of expression of their
desire and freedom of choice according to their age and maturity.
(e) carry
out with special arrangement for remedy of their physical and mental damage,
giving vocational education based upon education and technique and medical
examination and medical treatment with their consent.
(f) give protection by
keeping confidential the information relating to them.
17. The Central
Body shall lay down and carry out programmes of security and other protection
for the trafficked victims women, children and youth during the period of
prosecution of persons guilty of any offence of trafficking in persons under
this Law or during the period of instituting a suit for compensation for tort by
the trafficked victim for the trafficking in persons.
18. The Central
Body shall lay down and carry out the programmes to conduct necessary training
courses for persons performing the functions and duties relating to the
protection of trafficked victims especially women, children and
youth.
Chapter VII
Repatriation, Reintegration and
Rehabilitation
19. The Central Body shall, after coordination with the
relevant departments, organizations and non-governmental organizations for the
repatriation of trafficked victims, reintegration into the mainstream of the
society resettlement and rehabilitation the trafficked victims carry out as
follows:
(a) arranging and carrying out necessary coordination for the
repatriation of the trafficked victims;
(b) arranging the temporary shelter
at a safe place or appropriate house for the trafficked victims;
(c)
rehabilitating the social aspect;
(d) hiring a lawyer if necessary in a suit
instituted by the trafficked victim for his/her grievance, requesting the Office
of the Attorney General for a Law Officer to conduct in the case or assisting in
hearing with interpreter;
(e) laying down the security programmes and
arranging for other rights entitled while the trafficked victims are giving
testimony or contesting a case;
(f) arranging medical examination and giving
medical treatment with the consent of the trafficked victims;
(g) arranging
for teaching of vocational education based upon education and technical
opportunities for the survival of the life of the trafficked victim.
20.
The responsible officials of the Embassies of the Union of Myanmar in foreign
States shall provide necessary protections for trafficked victims of Myanmar
citizens or permanent resident foreigners of Myanmar and coordinate with the
relevant responsible persons for sending them back to Myanmar.
21. The
expenditures relating to suppression of trafficking in persons may be borne by
the State in accordance with the provisions of this Law.
Chapter
VIII
Establishment of the Fund
22. The Central Body may for the
purpose of utilizing for the suppression of trafficking in persons, repatriation
and rehabilitation of trafficked victims:
(a) establish a fund with money
supported by the State and money donated from local and foreign sources.
(b)
accept and administer the property supported by the State and property donated
from local and foreign sources.
23. The Central Body shall:
(a) in
coordination with the Auditor General’s Office determine the procedures relating
to the maintenance the of the fund and the administration of the property
supported and donated.
(b) keep the functions under sub-section (a) in
accordance with the procedures and shall submit to the inspection by the person
assigned by the Auditor General.
Chapter IX
Offences and
Penalties
24. Whoever is guilty of trafficking in persons especially
women, children and youth shall, on conviction be punished with imprisonment for
a term which may extend from a minimum of 10 years to a maximum of imprisonment
for life and may also be liable to a fine.
25. Whoever is guilty of
trafficking in persons other than women, children and youth shall, on conviction
be punished with imprisonment for a term which may extend from a minimum of 5
years to a maximum of 10 years and may also be liable to a fine.
26.
Whoever is guilty of any of the following acts shall, on conviction be punished
with imprisonment for a term which may extend from a minimum of 3 years to a
maximum of 7 years and may also be liable to a fine:
(a) adopting or
marrying fraudulently for the purpose of committing trafficking in
persons.
(b) causing obtaining unlawfully the necessary documentary evidence
documents or seal for enabling a trafficked victim to depart from the country or
enter into the country.
27. Whoever is guilty of making use or arranging
with a trafficked victim for the purpose of pornography shall, on conviction be
punished with imprisonment for a term which may extend from a minimum of 5 years
to a maximum of 10 years and may also be liable to a fine.
28.
Whoever:
(a) is guilty of trafficking in persons with organized criminal
group as provided in section 24 shall, on conviction be punished with
imprisonment for a term which may extend from a minimum of 20 years to a maximum
of imprisonment for life and may also be liable to a fine;
(b) is guilty of
trafficking in persons with organized criminal group as provided in sections 25,
26 or 27 shall, on conviction be punished with imprisonment for a term which may
extend from a minimum of 10 years to a maximum of imprisonment for life and may
also be liable to a fine;
(c) is found to be a member of an organized
criminal group shall, on conviction be punished with imprisonment under
sub-section (a) or subsection (b) whether he has personally taken part or not in
the commission of the offence.
29. Whoever is also guilty of a serious
crime provided in sub-section (e) of section 3, in committing trafficking in
persons shall, on conviction be punished with imprisonment for a term which may
extend from a minimum of 10 years to a maximum of imprisonment for life or death
sentence.
30. Any public official who demands or accepts money and
property as gratification either for himself or for another person in carrying
out investigation, prosecution and adjudication in respect of any offence under
this Law shall, on conviction be punished with imprisonment for a term which may
extend from a minimum of 3 years to a maximum of 7 years and may also be liable
to a fine.
31. Whoever is guilty of any offence provided in this Law
shall, after a prior conviction for the same offence be liable to the maximum
punishment provided for such subsequent offence.
32. Whoever prepares,
attempts, conspires, organizes, administers or abets, or provides financial
assistance to commit or in commission of any such offence shall be liable to the
punishment provided in this Law for such offence.
33. The Court shall, in
passing a sentence for any offence provided in this Law, pass an order for
confiscation or disposal in accordance with the stipulations of the property
involved in the offence, which have been seized as exhibits. It may pass an
order to pay damages to the trafficked victim from the money confiscated or from
the proceeds of sale of property or from the fine.
Chapter
X
Miscellaneous
34. If an exhibit involved in any offence prosecuted
under this Law is not easily producible before the Court, such exhibit need not
be produced before the court. However, a report or other relevant documentary
evidence as to the manner of custody of the same may be submitted. Such
submission shall be deemed as if it were a submission of the exhibit before the
Court and the relevant Court shall pass an order for disposal of the same in
accordance with this Law.
35. The Ministry of Home Affairs shall form the
Staff Office as may be necessary in accordance with the stipulations for the
purpose of assistance in carrying out the functions and duties of the Central
Body.
36. Notwithstanding anything provided in any existing Laws, action
shall be taken only under this Law on offences relating to trafficking in
persons.
37. In prosecuting any offence under this Law, prior sanction of
the Central Body or any Body assigned by the Central Body shall be
obtained.
38. In implementing the provisions contained in this
Law:
(a) the Ministry of Home Affairs may with the approval of the
Government; issue such rules and procedures as may be necessary.
(b) the
Central Body and the relevant Ministries may issue notifications, orders and
directives, and the Director General may issue such orders and directives as may
be necessary.
(Sd) Than Shwe
Senior General
Chairman
The State
Peace and Development Council