Presumed Guilty: Balancing Competing Rights and Interests in Combating Economic Crimes

This article will examine the juridical basis of the right of an accused in a corruption action to be presumed innocent until proved guilty by the requisite standard of proof by the prosecution and the rationale for relaxing this right, which is guaranteed all accused persons, by shifting the burden to the accused to disprove his guilt in order to advance an overriding public interest. The conflict between these two sets of rights, one individual and the other collective, raises a number of questions, which will be addressed in this article. More generally, it brings to the fore the weight to be given the due process protections found in all international human rights instruments, as well as whether these protections can be derogated in favor of reverse burden provisions and under what circumstances a court will justify any derogations from the right to presumption of innocence in criminal trials. Specifically, the article intends to find out whether, in official corruption proceedings, the right of an accused to be presumed innocent of the crime he is charged is an absolute right that is not subject to any derogation, or whether the presumption of innocence simply enjoys a preeminence among all other individual rights such that any derogation from it in the context of global war against corruption is permissible. Should the right of an accused to be presumed innocent be accorded special protection at the expense of other fundamental social, political, or economic interests that society at large is entitled to enjoy? If not, how then should courts proceed to balance the concrete right asserted by an individual accused and the abstract collective rights of parties (society as a whole) not before the court during a corruption trial? Would the process of reconciling conflicting human rights require courts to derogate from the individual right to presumption of innocence in favor of placing the burden on the accused to prove his innocence? Finally, what should be the nature of the burden of proof placed on the accused in a corruption action: a persuasive or legal burden requiring the defendant to disprove, on a balance of probabilities, the prosecution's presumption of his guilt, or an evidentiary burden where the defendant is only required to point to evidence that contradicts the state's presumption of his guilt? In seeking answers to these questions the article will explore international jurisprudence as well as common law and civil law precedents on the subject. The article breaks from conventional jurisprudence on reverse onus clauses, striving to save these exceptions to the presumption of innocence from constitutional invalidation by reading them as imposing only an evidential burden on the accused. This approach leaves undisturbed the prosecution's legal burden of proving the guilt of the accused on each element of the offense under the demanding "beyond a reasonable doubt" standard. It also places the prosecution at a severe disadvantage in adducing evidence to prove every essential element of the crime of official corruption. Allocating the burden of persuasion to a party in a case where there is little or no evidence of the facts in issue is to deal a fatal blow to that party's case. This is the precise outcome to be expected in an official corruption proceeding where the accused is a high-ranking public official. Corruption by nature is a clandestine pursuit, and those who engage in corrupt activities in the course of their official functions tend not to do so openly. As a result, access to essential information to build a case against such officials is difficult to reach. In order to correct this information deficit, it is necessary to place both the evidentiary and persuasive burdens on the accused while allowing him to discharge the latter on the less demanding balance of probabilities standard of proof. A public official found in possession of substantial wealth that bears little or no relation to his earnings during the performance of his functions should be required to bear the burden of producing evidence to establish the lawful origins of his wealth and to be able to persuade a fact finder that the wealth in question was more likely than not obtained through legal and legitimate means. This article therefore argues that the reverse onus clause in the offense of illicit enrichment is compatible with the presumption of innocence (i) to the extent that reasonable limits can be placed on this principle that can be justified in a free and democratic society, and (ii) so long as it is interpreted to have expressly placed an evidentiary burden on, and impliedly shifted the legal burden to, the accused to prove the lawful and legitimate origins of his wealth on the balance of probabilities standard.