Rethinking the Criminalization of Illicit Enrichment in Combating Corruption in the Public Sector

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.