Anti-Corruption and Anti-Bribery Laws of Bangladesh
By Suhan Khan FCIArb, Syeda Faiza Hossain and Ahmed Farzad
Published in: The Mergers & Acquisitions Review, Fourteenth Edition, The Law Reviews, January 2021
Corruption has always been a major concern for Bangladesh as it directly affects the economy and development of the country. Bangladesh has been trying its best to prevent corruption by implementing various stringent laws and has certainly been successful in minimising the level of corruption in the past few years. An allegation of bribery or corruption is one of the fastest ways a company can tarnish its reputation. Whilst corporations doing business in Bangladesh have their own Anti-bribery and Corruption policies and compliance programs, an appraisal of anti-corruption and anti-bribery laws of Bangladesh is of utmost importance for any corporation doing business in Bangladesh. This writing is aimed at giving a birds’ eye view of the laws and regulatory framework in place in the jurisdiction of Bangladesh.
Applicable Anti-corruption and Anti-bribery laws in Bangladesh
The very first special law that had been implemented to counter bribery and corruption in Bangladesh was the Prevention of Corruption Act 1947 (“PCA 1947”). Thereafter, Bangladesh Anti-Corruption Act, 1974 (“BAC 1974”) was enacted which established the Bureau of Anti-Corruption for dealing with and controlling bribery and other forms of corruption. However, BAC 1974 was subsequently repealed and got replaced by the Anti-Corruption Commission Act 2004 (“ACCA 2004”). The ACCA 2004 established the Anti-Corruption Commission and as such the previous Bureau of Anti-Corruption established under the BAC 1974 was no longer required and hence got dissolved. However, notwithstanding anything stated in any other law, the Penal Code 1860 (“PC 1860”) also covers a number of offences which are directly and indirectly related to corruption and bribery and thus shall be subject to the said Act. Moreover, Anti Money Laundering Act 2012 along with some other miscellaneous laws have been put into effect by the Government in order to tackle the offences related to corruption and bribery.
Definition of corruption and bribery within the jurisdiction of Bangladesh
The comprehensive definition of corruption has not been provided in either ACCA 2004 nor in PC 1860. Section 2(E) of the ACCA 2004, instead of providing a generalised definition, referred to some of the offences mentioned in the schedule to the ACCA 2004 and stated the same to be considered as offences under corruption. As per the schedule, the following offences are:
- Offences under section 161 (Public servant taking gratification other than legal remuneration in respect of an official act), 162 (Taking gratification, in order, by corrupt or illegal means, to influence public servant), 163 (Taking gratification, for exercise of personal influence with public servant), 164 (Punishment for abetment by public servant of offences defined in section 162 or 163), 165 (Public servant obtaining valuable thing, without consideration, from person concerned in proceeding or business transacted by such public servant), 165A (Punishment for abetment of offences defined in sections 161 and 165), 165B (Certain abettors excepted), 166 (Public servant disobeying law, with intent to cause injury to any person), 167 (Public servant framing an incorrect document with intent to cause injury), 168 (Public servant unlawfully engaging in trade), 169 (Public servant unlawfully buying or bidding for property), 217 (Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture), 218 (Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture) and 409 (Criminal breach of trust by public servant, or by banker, merchant or agent) of the Penal Code 1860.
- Offences under section 420 (Cheating and dishonestly inducing deliver of property), 467 (Forgery of valuable security, will, etc), 468 (Forgery for purpose of cheating), 471 (Using as genuine a forged document) and 477 (Fraudulent cancellation, destruction, etc, of will, authority to adopt, or valuable security) if such offences are concerned with public property or if such offences are committed by government employees or employees of banking institutions or employees of financial institutions while discharging their official duties,
- Offences stated under Prevention of Corruption Act 1947.
- Offences stated under Money Laundering Prevention Act 2012.
- All the offences stated hereinabove in connection and in relation to offences stated under Section 109 (Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment ), 120B (Punishment of criminal conspiracy) and 511(Punishment for attempting to commit offences punishable with imprisonment for life or imprisonment) of the PC 1860.
The PC 1860 also did not include a definition of corruption but rather provided definition of “wrongful gain”. As per PC 1860, wrongful gain is a gain by unlawful means of property to which the person gaining is not legally entitled. Based on such definition, offences stated under sections 161- 169, 171, 217-218 and 409 along with sections 420, 467, 468, 471 and 477 if such offences are concerned with public property or if such offences are committed by government employees or employees of banking institutions or employees of financial institutions while discharging their official duties; fall within the purview of the common offences of corruption.
The thorough outline as to what may constitute bribery has been provided under the PC 1860. As per section 23 of PC 1860, whoever gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery. Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both. However, it has also been provided that bribery by treating shall be punished with fine only.
Liability under the Penal Code 1860
If a public servant accepts, obtains or attempts to obtain any gratification other than legal remuneration as a motive or reward for doing any official act or for showing favour or disfavour to any person or for rendering any service or disservice to any person then the same shall be considered as an offence and the public servant shall be punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Under the said PC 1860, the word ‘gratification’ is not restricted to pecuniary gratifications or to gratifications estimable in money. Besides, “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which is permitted by the authority by which he is employed, to accept. Similarly, taking gratification to influence public servant, taking gratification for exercising personal influence with public servant, obtaining valuable things by public servant from person concerned in proceeding or business transacted by such public servant, disobeying law or framing an incorrect document by public servant with intent to cause injury to any person or public servant unlawfully engaging in trade or buying or bidding for property or any abettor(s) to such acts shall be considered as offences under the PC 1860 and if proven guilty the offender may be subject to imprisonment for a period ranging from 1 (one) year to 3 (three) years or with fine or with both depending on the seriousness of the offence.
In addition, whoever accepts or attempts to obtain, any gratification for himself or any other person, or any restitution of property, in consideration for the concealment of an offence under his/her screening of any person from legal punishment for any offence, shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. The same sort of punishment has been prescribed for the person who is offering the money, benefit or gratification.
Scope of the Prevention Of Corruption Act, 1947
The PCA 1947 does not provide any definition or does not even identify the criteria as to what amounts to corruption or bribery. However, the PCA 1947 has termed certain offences as ‘criminal misconduct’ and has prescribed the maximum punishments of the same. The offences that has been termed as criminal misconduct under PCA 1947 are identical to the offences mentioned under Section 161-165 of the PC 1860 as stated hereinabove. However, the maximum punishment prescribed under PCA 1947 is higher as compared to the punishments mentioned under the PC 1860. For example, the maximum punishment for committing an offence under section 161 of the PC 1860 is three years imprisonment or fine or both; whereas under section 5(1) of PCA 1947, the maximum punishment for committing similar kind of offence is imprisonment for 07 (seven) years or fine or with both. Nevertheless, as the PCA 1947 is a specialized law, the punishment prescribed under the said act shall prevail over others.
Impact of the Anti-Corruption Commission Act 2004
Formation of the Commission
The ACCA 2004 mostly deals with the formation and functions of the Commission. The Commission shall have the powers amongst others to inquire and investigate into the offences relating to corruption, to file and conduct cases under this Act on the basis of inquiry and investigation carried out by itself, to inquire into any allegation of corruption on its own initiative or upon an application filed by an aggrieved person or by any person on his/her behalf or to perform any other work considered necessary for the prevention of corruption etc.
Power to investigate and arrest
In case of conducting inquiry and investigation, the Commission shall have some special powers including but not limited to summon witnesses, ensure their appearance and interrogate them under oath; to discover and present any document; to take evidence under oath; to issue warrants for the interrogation of witnesses and the examination of documents and to deal with any other matter for realising the fulfilling the aims and objectives of the law. Furthermore, the Commission may require any person to furnish information in matters relating to any inquiry or investigation and any person so directed is obliged to furnish the information available to him . However, the ACCA 2004 makes no provision for the resolution of possible conflicts arising out of official secrets, legal and professional privilege or banking privilege and also fails to state under what circumstances such privileged/protected documents will be subject to disclosure to the Commission or what protections will be provided to such documents when they are produced for examination by the Commission.
In order to conduct investigation, the Commission may empower a subordinate officer of the Commission to investigate into corruption and for the purpose of such investigation the empowered officer shall have the power of an officer-in-charge of a police station. Moreover, notwithstanding any other provision of the said ACCA 2004, if any officer empowered by the Commission has justifiable reasons to believe that a person in his/her name or in the name of others is the owner or in possession of moveable or immoveable property not compatible with known and declared sources of his/her income, then subject to the permission of the court the officer can arrest that person. However, the Act does not provide for the circumstances in which such a person can be arrested, for what purpose or the period of detention.
Declaration of properties
If the Commission is satisfied on the basis of its own information and after necessary investigation that any person or any other person on his behalf is in possession or has obtained ownership of property not consistent with his legal sources of income then the Commission through an order in writing shall ask that person to submit a statement of assets and liabilities in the manner determined by the Commission and to furnish any other information mentioned in that order. If any person after having received such order fails to submit the written statement or furnish the information accordingly or submits any written statement or provides any information that is false or baseless or there are sufficient grounds to doubt their veracity or submits any book, account, record, declaration, return or any document or gives any statement that is false or baseless or there are sufficient grounds to doubt its veracity, then that person will be sentenced to imprisonment for a term up to three (3) years or a fine or both.
Possession of property in access of the known sources of income
If the concerned public official is found to be in possession of any property or liquid assets, which he should not have received by law or the property is not consistent with the known sources of his income, then such illegal possession of asset shall be considered as an offence under corruption and if proven guilty then the concerned official may be subject to punishment with imprisonment for a period of minimum of three (3) years to a maximum of ten (10) years and the said property shall be confiscated. Besides, if it is proved during the trial of charges that the accused person in his own name or any other person on his/her behalf has obtained ownership or is in possession of moveable or immoveable property not consistent with the known sources of his/her income then the court shall presume that the accused person is guilty of the charges and unless the person rebuts that presumption in court the punishment meted out on the basis of this presumption shall not be unlawful.
Anti-Corruption Commission (Amendment) Act 2016
The Government of Bangladesh has enacted the Anti-Corruption Commission (Amendment) Act 2016 in the year 2016. As per the Amendment Act 2016, Section 408 (Criminal breach of trust by clerk or servant), 420 (Cheating and dishonestly inducing deliver of property), 462A (Penalty for negligent conduct of bank officers and employees), 462B (Penalty for defrauding banking company), 466 (Forgery of record of Court or of public register, etc), 467 (Forgery of valuable security, will, etc),468 (Forgery for purpose of cheating), 469 (Forgery for purpose of harming reputation), 471 (Using as genuine a forged document) and 477A (Falsification of accounts) of Penal Code 1860, shall not be triable under the ACCA 2004 except in cases, where the alleged property is a government property, or alleged person is a government official while discharging his official duty, bank-employees or employers, employees or employers of any financial institute while discharging his official duty.
Corruption and money laundering
The Money Laundering Act, 2012 (“MLA 2012”) criminalizes the illegal transfer of assets earned through ‘predicate offences’ from Bangladesh to any other country or from any other country to Bangladesh or conversion of such assets with the intent of nondisclosure of the source of the earnings. The MLA 2012 also provides for corporate liability, thus both individuals and companies can be held liable for bribery. Any person committing an offence under the MLA 2012 shall be punishable with imprisonment for a term of at least 4(four) years but not exceeding 12 (twelve) years and, in addition to that, a fine equivalent to the twice of the value of the property involved in the offence or taka 10(ten) lacks, whichever is higher. If, however, any entity commits an offence under MLA 2012 then it shall be punished with a fine of not less than twice of the value of the property or taka 20(twenty) lacs, whichever is greater and in addition, the registration of the said entity shall be liable to be cancelled.
The proper implementation of the anti-corruption laws and anti-bribery laws shall largely depend on the role of the Commission itself. In paper, the Commission has been given significant powers in order to deal with corruption with minimal interference and hindrance. However, political influence has played a major role in the past in manipulating the Commission as per its needs. Hence, an independent and impartial Commission is essential for eradicating corruption from Bangladesh.