Presuming Innocence, or Corruption, in China

Abstract

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 order to counter rampant corruption, China has criminalized illicit enrichment, i.e., a significant increase in the as-sets of a public official that he cannot explain in relation to his lawful income. This Article addresses the tension between the presumption of innocence and the goal of effectively prosecuting corruption. In particular, the Article argues 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 disproves an element of the crime.

The Article further proposes that we look at 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. The Article argues that the presumption of innocence and right to counsel have an inverse relationship, in that 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 recent consideration of reforms to its Criminal Procedure Law and possible ratification of the Inter-national Covenant on Civil and Political Rights pre-sent opportunities both to enhance the presumption of innocence generally and to provide for a more robust defense, especially when a defendant is charged with an offense for which the presumption is relaxed.

Keywords: Presumption of Innocence, China, Illicit Enrichment, Criminal Procedure