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 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, regional organizations, foreign States,
local and foreign non-governmental organizations, and obtaining assistance for
works 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 to protection and assistance in conformity with the stipulations to
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 upon 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.
(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
protection 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 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 sub-section (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 such 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
