Monday, February 6, 2012

Presuming Innocence, or Corruption, in China

(My thanks to IntLawGrrls for the invitation to contribute this introductory post)

At a 2000 press conference, Zhu Rongji, then-Premier of the People's Republic of China, caused a stir when, in response to a question from a German reporter regarding whether China could solve the problem of corruption without giving up one-party rule, he retorted,
'The Chinese have made tremendous achievements in its anti-corruption fight in recent years. Did your countries execute as many corrupt criminals as we did?'
The official transcript unfortunately does not record the reporter’s expression upon hearing Premier Zhu’s response, but one can imagine that he and the other foreign journalists were a bit taken aback.
Over a decade later, it appears that corruption may even have worsened. More than once, Hu Jintao, China's current President, has stated that the situation with respect to corruption remains grave. (And see here.)
The failure to curb endemic corruption is certainly not due to a hesitancy to use harsh punishments. For example, in July 2011, two former vice mayors of prominent Chinese cities were executed for accepting vast amounts of bribes and abusing their powers. Stories of officials abusing power for private gain are found the world over, but China faces a crisis that dwarfs most countries’ battles with corruption.
In “Presuming Innocence, or Corruption, in China,” an article forthcoming in the Columbia Journal of Transnational Law, I ask how China is using criminal law to combat corruption and what are the resulting tensions with international human rights norms.
One piece of China’s strategy has been to criminalize illicit enrichment: a significant increase in the assets of a public official that he cannot explain in relation to his lawful income.
China’s illicit-enrichment provision essentially requires that the defendant disprove a critical element of the crime (i.e., that the assets are not from legitimate sources), instead of having the prosecutor prove the illicit nature of the assets. In other words, the crime is written with a “reverse-onus provision” that at least partially places on the defendant’s shoulders the burden of proof with respect to an element of the crime.
Reverse-onus illicit-enrichment provisions highlight the tension between the presumption of innocence and the goal of effectively prosecuting corruption. I argue that, despite the strong presumption of innocence expressed in international human rights norms, illicit enrichment in China provides a compelling illustration of circumstances in which it is appropriate that the defendant shoulder a greater evidentiary burden.
I connect the domestic context to the international debate surrounding illicit enrichment and contend that the formal allocation of proof in China’s illicit-enrichment offense is defensible both based on China’s existing legal obligations (domestic and international) and as a normative matter when considering China’s current circumstances.
That being said, I focus my criticism on the system used to implement the offense.
Arguably, a clear reverse-onus provision, coupled with a meaningful ability to meet its requirements, is better than a direct-onus provision coupled with China’s current failure to give force to procedural rules that would make for something resembling equality of arms in the adjudication process. At least in the former scenario, the defendant knows the task ahead, and can attempt to respond accordingly.
Looking beyond the confines of China, I further propose that we consider procedural rights holistically and not in isolation.
Accordingly, any erosion of the presumption of innocence must be understood in the context of its relationship to other foundational procedural rights, particularly the right to silence and the right to counsel.
I suggest that the presumption of innocence and right to counsel should be seen as having an inverse relationship: The more we diminish the presumption of innocence, the greater the need for counsel and, in particular, competent counsel with access to exculpatory information.
China’s current consideration of reforms to its Criminal Procedure Law (last revised in 1996) and possible ratification of the International Covenant on Civil and Political Rights (which China signed in 1998) present opportunities both to:
► Enhance the presumption of innocence generally; and
► Provide for a more robust defense, especially when a defendant is charged with an offense for which the presumption is relaxed.
Looking at the amendments to the Criminal Procedure Law that are poised to be adopted soon – amendments helpfully summarized in this recap by the NGO Dui Hua – it appears that at best modest steps towards enhancing the rights of the accused will be included. (credit for photo by Wu Yanpeng of China’s Criminal Procedure Law) Nor does the draft incorporate an explicit presumption of innocence or right to silence.
I hope that we will not need to wait another fifteen years for further revisions. Moreover, in the meantime, I hope that police, prosecutors, and judges will faithfully implement even the modest reforms that have made it into the draft.

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