International Journal of Research and Innovation in Social Science (IJRISS) |Volume VI, Issue XI, November 2022|ISSN 2454-6186
Rethinking the Criminalization of Illicit Enrichment in Combating Corruption in the Public Sector
Sandun Yapa & Prof. Baishun Yuan
University of Hunan, China
Abstract: Some jurisdictions like Hong Kong have explicitly shown how illicit enrichment (IE) offenses under Article 20 of the United Nations Convention against Corruption (UNCAC) can be an effective legal tool to deal with grand corruption in the public sector. Nevertheless, many jurisdictions are unwilling to accept it even as a criminal offense. The primary purpose of this paper is to critically examine the reservations about the criminalization of IE expressly made by North America and most of the Western European Parties to the UNCAC. Their main argument is that such implementation would infringe the fundamental legal principles of criminal law, namely the right to remain silent and not to incriminate oneself, which guarantee the right to be presumed innocent. In assessing how some statutory legislation similar to the nature of Article 20 and the relevant decisional law has defined the scope of the said rights, particularly in the English common law context, this paper firmly argues that criminalizing illicit enrichment does not contravene any legal principle. Further, the report emphasizes why and how Article 20 should and can act as a direct legal tool to confront grand corruption in the public sector by closely scrutinizing the origins of public officials’ unexplained assets and earning patterns.
Keywords: illicit enrichment; corruption; assets disclosure of public officials; United Nations Convention against Corruption (UNCAC); the reverse burden of proof; the right to silence; the right not to incriminate oneself
I. INTRODUCTION
The legal concept of illicit enrichment (IE) as a criminal offense can be traced back to its origin in Argentina in 1936. However, it had not been criminalized until 1964 in its legal system. India had used it as an evidential legal tool until it was criminalized as an offense in its legislation in 1964 (see Muzila et al., 2011). Sri Lanka criminalized illicit enrichment as early as 1954, enacting its Bribery Act No. 11 of 1954. The recognition of the elements of illicit enrichment and its driving force dates back to the 1930s. However, merely over 40 jurisdictions by 2010 had criminalized illicit enrichment, most representing developing countries (ibid).
To date, IE has been recognized as a criminal offense in the fight against corruption in the public sector by the 2005 United