JANUARY 3 — Malaysia is a signatory to the United Nations Convention Against Corruption (UNCAC). The UNCAC is an international instrument to address the scourge of corruption at the global level.

The adoption of the UNCAC in 2003 sent a clear message that the international community was, and continues to be, determined to prevent and control corruption. It should warn the corrupt that betrayal of the public trust will no longer be tolerated.

The UNCAC is the international community’s affirmation of the importance of core values such as honesty, respect for the rule of law, accountability and transparency in promoting development and making the world a better place for all.

A landmark instrument, the UNCAC introduces a comprehensive set of standards, measures and rules that all countries can apply in order to strengthen their legal and regulatory regimes to fight corruption. It calls for preventive measures and the criminalisation of the most prevalent forms of corruption in both public and private sectors.

It also requires member states to return assets obtained through corruption to the country from which they were stolen — a major international breakthrough as the UNCAC offers a framework for effective action and international cooperation.

In his Foreword to the UNCAC, then Secretary-General Kofi Annan wrote of the provisions therein contained:

"These provisions — the first of their kind — introduce a new fundamental principle, as well as a framework for stronger cooperation between States to prevent and detect corruption and to return the proceeds. Corrupt officials will in future find fewer ways to hide their illicit gains.

"This is a particularly important issue for many developing countries where corrupt high officials have plundered the national wealth and where new Governments badly need resources to reconstruct and rehabilitate their societies.”

On illicit gains in particular, Article 20 states as follow:

"Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, 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.”

Even though Article 20 above recommends that member states should criminalise illicit enrichment, some — including Malaysia — have yet to specifically legislate on the matter. And there is "no unanimous applied definition of illicit enrichment”, despite the term is therein defined in Article 20 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.”

As such, based on his research on the laws around the world, Andrew Dornbierer offers the following definition:

"The act of illicit enrichment can be broadly defined as the enjoyment of an amount of wealth that is not justified through reference to lawful income”. (Dornbierer, A., 2021. Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth. Basel: Basel Institute on Governance.)

The phrase "not justified through reference to lawful income” refers to an absence of evidence that demonstrates the legitimate or non-criminal sources from which the enjoyed wealth was derived (such as salaries, profits from legitimate businesses, pension payments, inheritances, gifts or even loans from banks).

Dornbierer offers a simple example:

If an individual worked as a public tax assessor from 2010 to 2020 and earned a cumulative total salary of US$400,000 during this period, but instead was found to possess US$4,000,000 in his bank account at the end of this period, then if it is not possible for the individual to demonstrate that the additional US$3,600,000 was derived from other existing sources of legitimate income during this time (such as a loan from a bank, earnings from a side business, or the receipt of inheritance) then under an illicit enrichment law, the court may presume that this unjustifiable increase in wealth has not been derived from lawful sources and will impose a relevant sanction, even if no evidence of underlying or separate criminal activity is presented to the court.

In simple words, illicit enrichment is wealth that is not lawful income in the absence of evidence that shows otherwise.

In his book, Dornbierer annexes a compilation of illicit enrichment legislation and other relevant legislation which he categorises as either: