David Bergman / Scroll.In
On Tuesday, BGR group, a Washington based lobbying firm working for the Bangladesh government, sent out a press advisory titled, Canadian court vindicates Bangladesh on Padma bridge case; baseless World Bank claims discredited.
The press advisory stated that a Canadian court had ruled that there was no “credible, compelling and corroborated” evidence and no “reasonable and probable grounds to believe” that corruption had occurred in the construction of the Padma bridge, a mega project in Bangladesh, which was to be partly funded by the World Bank until it suspended its $1.2 billion loan in 2012 alleging a “high-level corruption conspiracy”. The advisory was e-mailed to the media along with a message stating that the Canadian court had also held that the corruption allegations against the Bangladesh government “were baseless”.
Sajeeb Wazed Joy, the son of Bangladesh Prime Minister Sheikh Hasina and the government’s chief Information Technology advisor, also made similar claims in an article on his Medium blog titled, World Bank owes Bangladesh an apology after failed attempt to defame country, where he wrote that the Canada court had stated that the evidence of corruption in the project “was based on ‘gossip and rumour.’ In other words, it was made up”.
These views are not restricted to government representatives. Bangladesh’s media appears to be in almost complete agreement that the Canadian court proceedings have proven that the corruption allegations were a hoax, and that the country was the victim of a conspiracy involving the World Bank and other so called anti-national elements.
Even The Daily Star, Bangladesh’s leading independent English language newspaper, reported on its front page that the Canada court “has literally trashed the investigation by Canadian police and evidence of World Bank” and held that “the allegations were based on nothing more than ‘gossip, speculation and rumour’”.
Alternative facts
Yet, despite the widespread unanimity, these comments are wholly inaccurate. They misrepresent – indeed distort – the nature of the court proceedings in Canada, which, earlier this month, resulted in the acquittal of three business executives accused of corruption in the Padma project.
Whilst a Canadian court did rule in January that certain information in the case was “nothing more than speculation, gossip and rumour”, this conclusion only applied to information contained in four e-mails from so-called “tipsters” that triggered the police and World Bank inquiries in early 2011. It did not apply to the evidence they collected as a result of the subsequent investigations.
In fact, the court ruling – which the BGB Group, the prime minister’s son and the Bangladesh media refer to – had absolutely nothing to do with the strength of the World Bank or police evidence substantiating claims of corruption within the Padma bridge project, or indeed the merits of the prosecution case against the three accused.
The consultancy contract
The corruption allegation concerned a relatively small construction supervision contract worth about $50 million that was tendered by the Bangladesh Bridge Authority, the executing agency for the project.
In December 2010, five shortlisted companies were ranked in order of their technical qualifications for this contract, and then at the end of March 2011, re-ranked taking into account how much money they sought to do the work. This resulted in the large Canadian engineering company SNC Lavalin coming second, behind the UK engineering company, Halcrow.
Two months later, however, on June 12, the Bangladesh Bridge Authority wrote to the World Bank awarding the contract to SNC Lavalin, claiming that there were”issues/concerns” regarding Halcrow’s financial and technical proposals.
Investigations start
In the first few months of 2011, some months before SNC Lavalin was awarded the contract, the World Bank received four e-mails claiming that SNC Lavalin officials were seeking to corrupt the bidding process and offer bribes to Bangladesh government officials in order to win this consultancy contract.
On the basis of this information, Integrity Vice Presidency, an independent unit within the World Bank started inquiring into the matter, and in March that year passed on the e-mails to the Canadian police, which started its own investigation the following month.
In May that year, just weeks into its investigation, and on the basis of the four e-mails forwarded by the World Bank, a Canadian court authorised the police to intercept private communications of certain individuals. The authorisations were renewed in June and August 2011. The information provided to the court to obtain these authorisations were six years later the subject of the January ruling in Canada that has been so distorted by Bangladesh government representatives and the media.
Post-May 2011 investigation
Before looking at that recent ruling in Canada, it is important to note that post-May 2011, investigations by both the World Bank and the Canadian police continued apace.
In September, four months after the intercept authorisations were provided, Canadian police raided SNC Lavalin’s Oakville office and in April 2012, a year into its investigation, the police charged two low level officers of the Canadian company for bribery offences.
World Bank investigations were also continuing, with the international lender now describing the incident as a “high-level corruption conspiracy among Bangladeshi government officials, SNC Lavalin executives, and private individuals”. It stated that it had “credible evidence corroborated by a variety of sources”, to support this claim.
Two months later, in June 2012, the international lender announced that it was suspending its loan, and in January 2013, a panel of eminent experts, appointed by the World Bank wrote to the Anti-Corruption Commission in Bangladesh setting out the conclusions of their investigations up to that date. These included details of meetings, emails and agreements that were said to have taken place between SNC Lavalin and Bangladesh government officials. The letter was leaked to the media providing the public with the first opportunity to see the extent of the evidence alleging corruption.
The information in the letter is significant as it shows that the four 2011 e-mails sent by tipsters to the World Bank and passed on to Canadian authorities were the beginning, and not the end, of the World Bank investigation.
Following the letter, in April 2013, SNC Lavalin accepted a Negotiated Resolution Agreement, which meant that along with its affiliates, the company would be barred from bidding for World Bank contracts for 10 years. This is particularly significant as one of the four criteria required before the international donor agrees to a negotiated settlement is: “Whether an accused party has admitted culpability”. It is fair to assume that SNC Lavalin had done so.
Four months later, in September 2013, the Canadian police charged three additional men, including a former senior executive of SNC-Lavalin and a former state minister for foreign affairs Abul Hasan Chowdhury of bribery offences.
The January ruling
By the end of 2016, there remained only three Canadian citizens, including two former executives of SNC Lavalin charged with bribery offences relating to the alleged Padma bridge corruption case. With a trial imminent, these three accused challenged the legality of the judicial decision made in May 2011, which had authorised the use of wiretaps.
The wiretaps were crucial to the prosecution as it was, in part, relying on the information obtained from them to substantiate its case against the three accused.
To determine whether the original authorisation was legally justified, the new judge had to review whether the court in May 2011 was right to have concluded that the information, provided by the police showed that there were “reasonable and probable grounds [that] an offence is being or has been committed”. Mere suspicion was not sufficient, the information had to be “compelling, credible and corroborated”.
In its application requesting permission for the use of wiretaps six years ago, the Canadian police had relied primarily on the information set out in the initial four e-mails that had triggered the investigation.
It was an assessment of the adequacy of this evidence – and this evidence alone – that resulted in Justice Ian Northeimer concluding that it was not sufficient to justify wiretap authorisation, and on which he made his widely quoted criticisms.
The judge said:
“Reduced to its essentials, the information provided [in the May 2011 application] was nothing more than speculation, gossip and rumour. Nothing that could fairly be referred to as direct factual evidence, to support the rumour and speculation, was provided or investigated.”
To avoid any ambiguity, however, the judge specifically stated that his ruling did not consider any evidence collected by the Canadian police after May 2011.
Justice Northeimer stated:
“[T]he focus is on the information available to the police at the time of the application rather than information that the police acquired after the original application [to wiretap] was made…
“I have specifically not reviewed the information provided from the intercepted communication.”
Implications of the ruling
Though the ruling did not concern the overall evidence substantiating corruption in the tender, or more specifically the merit of the prosecution case against the three accused, the ruling did have significant implications. It meant that the evidence obtained from surveillance, which had initially been authorised six years earlier, was no longer admissible in the criminal trial.
The prosecution now had to decide whether, without the wiretap evidence – which was presumably incriminating as otherwise the accused would not have challenged its admissibility – it still had enough evidence to provide a “realistic prospect of conviction”.
A month later, on February 10, the Canadian prosecutor told the judge that without the surveillance evidence it would not proceed further. The court then acquitted the three men.
Distorting the ruling
Those who claim that the Canadian proceedings prove that the World Bank allegations were baseless or that the evidence was made-up are distorting the contents and meaning of Justice Northeimer’s January ruling.
Putting it charitably, they have failed to understand three things about it. First that the judge was only assessing the initial information that the police had in its possession one month after it started its investigation – the information that triggered subsequent inquiries. Second, that the judge’s criticism was only made in the context of a police application seeking judicial authorisation to undertake communication surveillance. And third, that the review undertaken by the judge was not concerned about any of the evidence subsequently collected by the World Bank detailed in its letter to the Anti-Corruption Commission in January 2013, or the evidence collected by the Canadian police.
Despite this reality, the language of the Canadian court ruling, combined with the subsequent acquittal of the three men accused of corruption, has allowed Bangladesh government representatives to create a strong fictional narrative that appears credible to those unaware of the details of the court proceedings.
Since in the current political climate few in Bangladesh will dare to confront this fictional narrative, the government is likely to exploit the situation and seek to show that the government is free from corruption, that it is a victim of conspiracies by international bodies like the World Bank and foreign police forces, and that civil society organisations, particularly those raising issues of corruption, cannot be trusted.
Truth, however, is a stubborn thing. So even in this new post-fact world, saying inaccurate things about Canadian judicial orders may just come back to bite the government.
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