In Paraguay in 2015, in his meeting with Paraguay’s civil society, Pope Francis of the Roman Catholic Church described corruption as the “gangrene of a people”.
He denounced corruption and highlighted that corruption persists in many parts of the world.
Pope Francis also highlights that wealth creation should not be “only for the benefit of a few”. It must be extended to “each citizen, without exclusion”. The Guardian reports that Pope Francis urged “political leaders not to sacrifice human lives on the altar of money and profit”.
Like other like-minded commentators in Solomon Islands, Celsius Talifilu—a former public servant and political advisor to the former premier of Malaita province—observes that there is “too much unexplained wealth with many of those who hold higher echelons of power in the country.”
This statement was made in the context of arguing against increasing public money in the form of constituency development funds available for politicians and their supporters.
While such a statement can be interpreted in different ways because of the complexities of state-society relations in Solomon Islands, it also illustrates the need to re-examine how the country’s criminal laws address the issue of unexplained wealth.
Unexplained wealth is also known as “unjust enrichment” or “illicit enrichment”. Article 20 of the United Nations Convention Against Corruption (UNCAC), which Solomon Islands acceded to in 2012, covers illicit enrichment. The UNCAC defines illicit enrichment as a “significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income.”
Oliver Landwehr, an editor of the book, “The United Nations Convention Against Corruption: A Commentary” (2019) states that Article 20 of UNCAC is the “most controversial article among the criminalisation provisions in chapter III and possibly in the entire Convention.”
This, according to Landwehr, is because Article 20 is a semi-mandatory provision. It contains an obligation to consider the establishment of illicit enrichment as an offence. However, Article 20 further states that such obligation is subject to the state party’s constitution and its legal system’s fundamental principles. Such due process principles and rights include the right to remain silent, the presumption of innocence and the burden of proof.
The domestication of illicit or unjust enrichment provisions varies in different countries. In certain countries—anti-corruption laws on illicit enrichment only target public officials—not private actors. In other countries, unexplained wealth is a civil action, meaning it is not a criminal offence.
Generally, state parties that ratify or accede to the UNCAC are expected to comply with and domesticate the provisions of UNCAC. Solomon Islands is yet to include a clear-cut provision on illicit enrichment in its criminal laws.
In Solomon Islands, under the Leadership Code (Further Provisions) Act 1999, there is a requirement for public officials to submit declarations regarding assets and interests. However, the Penal Code does not have an illicit enrichment provision. This finding is based on a review by international reviewers on whether the laws of Solomon Islands are consistent with UNCAC.
However, during the consultations on the Anti-Corruption Bill (the Bill), when illicit enrichment provisions were suggested to be part of the Bill and the Penal Code, it was a mountain to climb. Coupled with the difficult political climate, the consultation raised certain constitutional complications. A complication was that the illicit enrichment provision limits the constitutional provision of the presumption of innocence and other due process rights. In the spirit of UNCAC’s Article 20—its use of qualified language poses implementation challenges for state parties.
Put another way, for Solomon Islands, like other developing countries, UNCAC’s Article 20 use of qualified language problematises the inclusion of illicit enrichment provisions in the state party’s domestic laws.
But in developing countries, given the nature of the unexplained wealth and the need to tackle corruption head-on because of its negative ramifications on the socio-economic and legal life of a state and development, legal scholars argue that due process rights should not be absolute, hence the need for reasonable limitations.
Further, literature elsewhere argues that the public interest in the fight against corruption should be paramount as opposed to due process rights. But as legal scholars explore, there is a need to balance these competing interests going forward. This balance may be an issue that governments of state parties leave for the courts to deal with when such a need arises.
Non-governmental organisations like the Transparency Solomon Islands (TSI) see the absence of unexplained wealth provision coupled with the use of custom as a defence against corruption, as making the Anti-Corruption Act 2018 a weak law.
Future reforms to the Anti-Corruption Act 2018 are desperately needed. Hence, it is necessary to revisit the illicit enrichment provisions of UNCAC and consider including them as part of the Anti-Corruption Act 2018 or other relevant laws. Someone suggested that another way is to have the offence of illicit enrichment in the new Constituency Development Funds Bill 2023.
I hope any new government that comes into power next year (2024) will have the policy direction and political willpower to relook at the UNCAC, the Anti-Corruption Act 2018 and related laws. Best practices from Hong Kong and the European Court of Human Rights must also inform these reforms.
Source: SBM