Burden of proof

Recently in an editorial this newspaper advocated an idea that has also been suggested by others as a way of eradicating corruption; namely, place the burden on the accused of proving that there has been no corruption.

This innovation fails a fundamental test of fairness; it gives a defendant the burden of proving a negative, "I am not corrupt." This would reduce Indonesia's system of justice to a farce. There are other, fairer rules of law that might be adopted.

One is to recognize rebuttable presumptions of law and shifting burdens of proof, if these doctrines are not already part of Indonesian jurisprudence.

Criminal defendants would still in the first instance be presumed innocent until proven guilty, and the burden of proof remains with the prosecutor. But in the presence of certain facts the law would create a presumption of guilt; instead of being presumed innocent, the accused is presumed to have committed the prohibited act.

To illustrate: An official is accused of corruption. He earns Rp 5 million per month salary with no other significant reported income, but purchases a Rp 400 million vehicle.

Given this unexplained wealth, a presumption arises that the excess wealth is evidence of corrupt practices -- particularly if extra income is not reported to the tax authorities. In the eyes of the law, instead of being presumed innocent the accused is now presumed guilty of corruption.

This presumption is rebuttable, not conclusive proof of guilt. The accused has the right to rebut the presumption by presenting additional evidence; the burden of proof shifts to the accused to establish that the unexplained income came from a legitimate source.

For example: if the accused can present proof of an inheritance, then the burden shifts to the prosecutor to challenge the new evidence. Perhaps the prosecutor shows that the inheritance documents are fraudulent, in which case the cycle of presenting and challenging evidence continues.

Perhaps the accused presents unassailable evidence that there is a legitimate source of extra income. Then the corruption case fails. Rebuttable presumptions of law and shifting burdens of proof are alternatives that do not violate the fundamental rights of the accused.

Use of these legal tools is preferable to negating the principle that the side who brings the accusation or demand for legal relief has the burden of coming forward with the first proof.

DONNA K. WOODWARD

Medan, North Sumatra