Introduction
Bangladesh has long worried about Anti corruption since it hurts its economy and growth. Bangladesh has implemented strict anti-corruption measures and reduced corruption in recent years. A company’s image may be tarnished quickly by bribery or Anti corruption allegations.
Corporations conducting business in Bangladesh must evaluate Bangladesh’s anti corruption and anti-bribery legislation, even if they have their own policies and compliance processes. This article provides an overview of Bangladeshi laws and regulations.
Applicable Anti corruption and Anti-bribery laws in Bangladesh
The Prevention of Corruption Act 1947 (“PCA 1947”) was Bangladesh’s first anti corruption legislation. The Bangladesh Anti-Corruption Act, 1974 (“BAC 1974”) created the Bureau of Anti Corruption to combat bribery and other types of corruption. It was superseded by the Anti Corruption Commission Act 2004 (“ACCA 2004”).
The BAC 1974 Bureau of Anti Corruption was disbanded by the ACCA 2004 because it was replaced by the Anti Corruption Commission. The Penal Code 1860 (“PC 1860”) includes a range of offenses directly and indirectly linked to corruption and bribery, regardless of any other legislation.
In addition, the government has implemented the Anti Money Laundering Act 2012 and other legislation to combat corruption and bribery.
Definition of corruption and bribery within the jurisdiction of Bangladesh
Corruption
ACCA 2004 and PC 1860 do not define corruption comprehensively. In ACCA 2004, Section 2(E) refers to specific offenses in the schedule as corruption offenses, rather than establishing a generic term. The schedule lists these offenses:
- 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.
- Section 420 offenses (cheating and dishonestly inducing property delivery), 467 (Valuable security, will, etc. forgery), Forgery to cheat, 468 471 (Using as genuine a forged document) and 477 (Fraudulent cancellation, destruction, etc., of will, authority to adopt, or valuable security) if they involve public property or are committed by government employees, bankers, or financial institution employees while performing their official duties,
- Prevention of Corruption Act 1947 offenses.
- Money Laundering Prevention Act 2012 offenses.
- The offenses listed above are related to those in Sections 109 (Punishment of abetment if the act abetted is committed in consequence and no express provision is made for its punishment), 120B (Punishment of criminal conspiracy), and 511 (Punishment for attempting to commit life-sentenced offenses) of the PC 1860.
Instead of defining corruption, the PC 1860 defined “wrongful gain”. Wrongful gain is the illegal acquisition of property under PC 1860. According to this definition, corruption includes offenses under sections 161-169, 171, 217-218, and 409, as well as sections 420, 467, 468, 471, and 477 if they involve public property or are committed by government employees, bank employees, or financial institution employees while performing their official duties.
The PC 1860 defines bribery in detail. According to section 23 of PC 1860, bribery occurs when a person gives or accepts a gratification to induce or attempt to induce another person to exercise an electoral right. Bribery is punishable by imprisonment for up to one year, a fine, or both. It also states that treating bribes is punishable by fine solely.
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, showing favor or disfavor to anyone, or rendering any service or disservice to anyone, the public servant shall be punished with three years in prison, a fine, or both. Under the PC 1860, “gratification” does not have to be monetary.
In addition, “legal remuneration” includes any remuneration a public official may legitimately seek and accept from his employer. 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.
Moreover, whoever accepts or attempts to obtain any gratification for himself or another 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. The individual giving the money, reward, or enjoyment faces the same penalty.
Scope of the Prevention Of Corruption Act, 1947
The PCA 1947 does not define corruption or bribery. However, the PCA 1947 defines ‘criminal misconduct’ and sets maximum penalties. As described previously, PCA 1947 criminal misconduct crimes are the same as PC 1860 Section 161-165 charges.
The maximum sentence under PCA 1947 is greater than under PC 1860. Under section 161 of the PC 1860, the maximum penalty for committing an offense is three years in jail or a fine, but under section 5(1) of PCA 1947, it is seven years or both. Since the PCA 1947 is specialized, its penalties will take precedence.
Impact of the Anti Corruption Commission Act 2004
Formation of the Commission
The ACCA 2004 focuses on Commission creation and functions. The Commission may inquire and investigate corruption offenses, file and conduct cases under this Act based on its own inquiry and investigation, inquire into any allegation of corruption on its own initiative or upon an application filed by an aggrieved person or any person on his/her behalf, or perform any other work necessary to prevent Anti corruption.
Power to investigate and arrest
In conducting an inquiry or investigation, the Commission has special powers to summon witnesses, ensure their appearance and interrogate them under oath, discover and present any document, take evidence under oath, issue warrants for witness interrogation and document examination, and deal with any other matter to achieve the law’s goals.
In addition, the Commission may ask any individual to provide information for an inquiry or investigation, and that person must comply. However, the ACCA 2004 does not address conflicts arising from official secrets, legal and professional privilege, or banking privilege, nor does it state under what circumstances such privileged/protected documents will be disclosed to the Commission or what protections will be provided when they are produced for examination.
The Commission may authorize a subordinate official to investigate Anti corruption with the authority of a police station officer-in-charge. Despite any other provision of the ACCA 2004, any officer empowered by the Commission can arrest a person in his/her name or in the name of others if he/she has justifiable reasons to believe that the property is not compatible with known and declared sources of income, subject to court permission. The Act does not set the conditions, purpose, or duration of such an arrest.
Declaration of properties
If the Commission is satisfied on 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 inconsistent with his legal sources of income, the Commission shall request in writing that person submit a statement of assets and liabilities and any other information specified in that order.
If any person after receiving such order fails to submit the written statement or furnish the information accordingly, submits any book, account, record, declaration, return, or document, or gives any statement that is false or baseless, that person will be sente
Possession of property in access of the known sources of income
If the public official is found to be in possession of any property or liquid assets that he should not have received by law or that do not match his known sources of income, it is considered an offense under anti corruption and the official may be imprisoned for three to ten years.
If it is proven during the trial 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 immovable property not consistent with his/her known sources of income, the court shall presume that the accused person is guilty of the charges and shall not punish him/her unlawfully unless he/she rebuts that presumption in court.
Anti Corruption Commission (Amendment) Act 2016
The Bangladeshi government passed the Anti Corruption Commission (Amendment) Act 2016. The Amendment Act 2016, Sections 408 (Criminal breach of trust by clerk or servant), 420 (Cheating and dishonestly inducing property delivery), 462A (Penalty for negligent conduct of bank officers and employees), 462B (Penalty for defrauding banking company), 466 (Forgery of Court or Public Register Record, etc.), 467 (Forgery of Valuable Security, Will, etc.), 468 (Forgery for Cheating), 469 (Forgery for Harming Reputation
Corruption and money laundering
The money laundering act of 2012 (“MLA 2012”) criminalizes the unlawful transfer of funds gained via ‘predicate offences’ from Bangladesh to another country or from another nation to Bangladesh or conversion of such assets with the purpose to conceal the source. Corporate responsibility under the MLA 2012 makes both people and businesses bribery-liable.
The MLA 2012 punishes violators with at least 4 years in prison and a fine of twice the value of the property involved or taka 10 lacks, whichever is higher. If an entity commits an MLA 2012 offense, it will be fined twice the property’s worth or taka 20(twenty) lacs, whichever is more, and its registration will be canceled.
Conclusion
Implementation of anti corruption and anti-bribery legislation will rely on the Commission. In theory, the Commission has broad powers to combat anti corruption without intervention. Political power has historically used the Commission to its advantage. A fair and unbiased Commission is needed to eliminate anti corruption in Bangladesh.
