We need to criminalize illicit enrichment so that persons who live well beyond their legitimate means must be able to justify the legitimacy of their financial circumstances. There are many signs of unexplained wealth including exotic and prolonged vacations, luxurious cars, and extravagant homes, to name a few.
Though the majority of countries have not enacted such legislation (it is estimated just over 40 countries have done so), it is felt that illicit enrichment legislation would deter would-be criminals by reducing the profitability of illegal activities. In the process, it is anticipated that such legislation would prevent crime by diminishing the offenders’ ability to finance their future criminal acts.
Of course, many have argued that unexplained wealth legislation constitutes an attempt by the State to deprive citizens of privately owned assets and is highly intrusive. Besides, it is in direct conflict with the rights to property ownership, freedom of citizens from unnecessary interference by the state, the right to privacy and the right to silence and legal representation.
States have tended to focus on people in public life, hence integrity in public life legislation. Generally speaking, illicit enrichment laws extend to all public officials meaning anyone who provides a public service or performs a public function and not just elected officials or persons in public life. In Guyana for instance, the relevant legislation (the Integrity Commission Act) extends to the possession of unexplained wealth by any “person who is or was… in public life.” The legislation allows law enforcement to prosecute public officials for possessing the illicitly obtained funds at any point in time even if those funds were obtained decades prior to the arrest.
But we need to widen the ambit of the laws. We also need to provide law enforcement agencies (where the evidence is insufficient) with the ability to pursue public officials and others suspected of engaging in bribery, embezzlement, or other activities which resulted in unexplained wealth.
Where such legislation exists, there are several components. These include provisions granting:
• the Director of Public Prosecutions (DPP) or police the ability to require a financial institution to provide information about the transactions and/or assets of a particular person;
• the DPP the ability to apply to the courts for an order allowing the office to conduct an examination of a suspect individual which can demand that said person furnish the court with information and/or documents;
• the DPP the ability to obtain documents relating to assets or property by applying for a production order;
• the right of the DPP to apply to the court for orders requiring a financial institution to monitor or suspend a person’s account and provide that information to the police or DPP;
• the right of the police to detain a person if they have a reasonable suspicion that the person has, in their possession, property liable to forfeiture, or documents identifying or determining the value of a person’s unexplained wealth; and
• the right of the police to seize property if they reasonably believe it was derived from or used in a crime and both the police and the DPP have the power to apply to the court for a restraining or freezing order, which prevents property or assets from being used for a period of time.
Jamaica has had some limited success with its attempt to control corruption. Indeed, the Commission for the Prevention of Corruption (CPC) reported five cases of illicit enrichment to the director of public prosecutions (DPP) in 2013-2014. Three of the cases involve employees of Jamaica Customs, one each from the Financial Investigation Division and one from the National Health Fund.
Among other things, its enactment may certainly provide the government with much needed necessary funds to finance some of its critical functions. For where they are strong and enforced as for example in Hong Kong, penalties for illicit enrichment include prison sentences and hefty fines. In Hong Kong, a person convicted of illicit enrichment is liable to a ten-year maximum prison sentence and fines of up to BD$256,410.03. In other countries, the sentence includes forgoing any government pension scheme and disqualification from holding any public office.
But as I indicated, there is tremendous discomfort with the scope of these Acts. Chief among them is the reversal of the onus of proof (and therefore, the undermining of the presumption of innocence) which makes it possible for the police to confiscate property from innocent people because of the scope of the legislation. Unlike the current ‘innocent until proven guilty’ approach which protects the innocent from unfair conviction, such legislation violates that principle and leaves many uncomfortable. Perhaps this unease undergirds the tendency to enact the more restrictive Integrity in Public Life Act to treat the issue of illicit enrichment without violating the human rights of the public official who has been accused. We also have in place money laundering legislation which can sometimes provide a wide enough net acting in concert with countries which are serious about curbing corruption.
Unfortunately, I do not have much confidence in these laws (money laundering for example) given the scale of public corruption globally. This is clear in the number of government officials who have been caught with millions and sometimes billions of dollars which they have acquired illegally.
Added to the litany of concerns, in small societies like ours there is the distinct possibility that some provisions of the legislation may well lead to politically motivated detentions and seizures. That is why the DPP and office must be above political fray and independent.
So given the above, States have chosen instead to enact Integrity in Public Life Acts which can help detect whether public officials are violating the public trust. These Acts attempt to “incentivize” persons in public life to comply with disclosure requirements by providing both criminal and administrative sanctions if persons provide false or incomplete information and or fail to disclose assets. Through the simple act of requiring public officials and their spouses (in some countries it extends to children and other close family members) to submit a statement of their financial interests, the disclosure requirements under the integrity legislation create a detection system that can assist in not only uncovering but also deterring future corrupt practices. It cannot be rejected, but it certainly does not go as far as laws expressly targeting illicit enrichment whether public or private. It is an important first step.
(Cynthia Barrow Giles is a senior lecturer in political science at the University of the West Indies, Cave Hill Campus)