Wednesday, March 22, 2017

The Daily Star, Padma Bridge and Canada's Federal court

Over a month ago, the Daily Star published a front page news article on a Canadian court decision dealing with the admissibility of wiretap evidence in a trial involving three men alleged to have been involved in a conspiracy to corrupt a Padma bridge consultancy contract.

The Daily Star is one of Bangladesh's great success stories. It seeks to be an independent and fearless newspaper, and though it may not always succeed,  it often does, and for its efforts it has been roundly punished by the government - in advertising bans, attacks by the prime minister and her son, and an organised effort to file criminal cases against its editor.

On this occasion, however, the Daily Star failed to report independently or accurately about this judgement and gave further steam to a false narrative widely propogated by Bangladesh's governing party spokespersons - which has indeed now resulted in a High Court order seeking the establishment of a commission of inquiry. 

This inaccurate article was widely read - and shared by nearly 4000 people on Facebook. A week after the publication of the article, I submitted an article setting out how the Daily Star's report was inaccurate - and despite a number of reminders, the newspaper has neither said it will or wont publish it. Since nearly a month has passed, I am publishing the article below.

(See: The Wire and The Scroll, for other articles on the court decision)

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Clarifying what the Canadian court said and did not say about Padma bridge corruption 
David Bergman 
On Febuary 21, 2017, The Daily Star ran a front page news article on a Canadian Federal Court’s ruling about whether intercept evidence, that police had been authorised to collect six years ago, should be admitted in a criminal trial which was accusing three men of bribery involving a Padma Bridge construction consultancy contract. 
The article was titled, Padma Bridge 'Graft Conspiracy': Flimsy evidence, flawed probe. 
If you read the title and the substantial introduction at the beginning of the article, you would in all likelihood have come away thinking the following. 
First, that a Canadian court had ‘trashed’ the evidence collected by World Bank and the Canadian police in its investigation of Padma bridge corruption and found that it was all nothing more than “gossip, speculation and rumour.” 
Second, that that the court had also highly criticised the investigation conducted by the two agencies. 
Third, that the court proceedings did not even mention ‘corruption in Bangladesh’. 
And forth, would have gained an overall impression that the three men were acquitted due to the Canadian court criticism of the adequacy of the evidence collected about the alleged corruption in Bangladesh. 
All these would be inaccurate, or at best highly misleading. As a result, the failure of The Daily Star – the country’s leading English language paper which prides itself on its accurate journalism and independence - to have had an accurate headline and introduction provided readers with a distorted view of what the ruling decided and why three men were finally acquitted of corruption charges. 
Gossip, speculation and rumour  
The Daily Star article stated that ‘The Canadian police investigation in the Padma bridge corruption conspiracy case was essentially flawed and the allegations were based on nothing more than “gossip, speculation and rumour”. 
A Canadian court did hold that certain information obtained by the Canadian police was nothing more than “gossip, speculation and rumour”, but the court was only commenting on the very initial information that the World Bank had received in early 2011 which first alerted the World Bank to there being a corruption issue. 
This information was contained in four e-mails sent by ‘tipsters’ to the World Bank and then passed to the Canadian police in March 2011. It was this information that was responsible for triggering the investigation, nothing more. 
The Daily Star does not make it clear in its introduction that the court’s comment did not apply to any of the evidence collected in subsequent years by both the World Bank and the Canadian Police which resulted in them pressing charges against various individuals in September 2012 and in April 2013 – two years after the World Bank and Canadian Police investigation actually started. 
Specifically, the article did not make clear that the court’s comments do not apply to evidence obtained following a raid of SNC Lavalin’s office which took place in September 2011 or the evidence contained in a letter sent by a World Bank expert panel to the Bangladesh Anti-Corruption Commission in January 2013 which was leaked to the media and indeed published in the Daily Star. This letter sets out details of meetings and e-mails between SNC Lavalin officials and Bangladesh officials leading upto the Bangladesh Bridge Authority informing the World Bank in June 2011 that SNC Lavalin had received the construction consultancy contract.  
The reason why the Canadian court in 2017 was assessing the ‘tipster’ information was because the Canadian police provided this information to a Judge in May 2011 in an application to get authorisation to wiretap communications as part of its corruption investigation. Six years later the three accused men claimed that the authorisation should not have been given, as the e-mails were not sufficient in themselves to justify such an intrusion into a person’s privacy that wiretapping constitutes – and the court agreed.  
‘Trashing the investigation’ 
In claiming that the court trashed the investigation, The Daily Star report referred to a comment by the Canadian judge which stated that the police ‘did not undertake any independent investigation of any of the allegation made. They did not speak with any of the persons who were identified by the tipsters as being in a position to direct information regarding the allegations.’ 
However, as should be clear from above, this comment only applied to the situation in May 2011 – and not to any of the subsequent investigations which carried on for at least another two years. It did not apply to the full investigation conducted by the police and World Bank into the corruption allegations. 
In making its comments about the tipster information, the Canadian Court in 2017 was stating that a judge could only provide authorisation to the police to wiretap communications when it had ‘compelling, credible and corroborated’ information’ that provided ‘reasonable and probable ground to believe an offence is being or has been committed’. In the view of the judge the ‘four tipster’ e-mails provided by the police to the court in May 2011 were not in themselves enough for a court to have authorised a wiretap; before seeking permission to get a wire-tap, the court said that the police should have obtained further corroboration of the allegations contained in the tipster e-mails, and the police had not by that time done so. 
Not mention ‘Corruption in Bangladesh’ 
This is demonstrably wrong. First, the three men accused were charged under the Corruption of Foreign Public Officials Act 1998, and alleged to have bribed or seeking to bribe ‘foreign’ – i.e Bangladeshi – officials. Second, the information provided by the tipsters involved alleged bribery in seeking to change the ranking in the results of the tender organized by the Bangladesh Bridge Authority relating to the construction of the Padma Bridge. 
In a linked remark, The Daily Star article also stated that ‘No Bangladeshi politicians or officials were accused in Canada.’ The impression given by this remark is that the lack of prosecutions against Bangladesh officials was because of lack of evidence of any corruption in Bangladesh. However the Daily Star failed to mention that Canadian courts have no jurisdiction to prosecute foreign nationals under the 1998 Act and indeed that this was the reason why in May 2014 the prosecution had to drop its charges against the former Minister of State of Bangladesh, Abul Hasan Chowdhury, not due to lack of evidence. 
Why the case was dropped 
The Daily Star article quoted the Canadian Globe and Mail journalist Janet McFarland as stating that the men was acquitted after the prosecution decided to drop the case, saying it had no other evidence or witness to call. As far as it goes this is not inaccurate, but without context, is misleading since it gives the impression that the case was dropped following the judge’s criticisms of ‘the evidence’ and with the prosecution having no evidence to call. 
The reason why the men were acquitted was because the court in January 2017 held that the intercept evidence – which was one should note presumably incriminating – was deemed to be inadmissible in the criminal trial. The prosecution decided that, without the wiretap evidence it did not have enough other evidence against these individuals to ensure a ‘realistic prospect of conviction.’ 
As Janet McFarland herself has explained: “The acquittal was not based on anything to do with the merits of the accusation or the quality of the evidence in the case, which was never revealed. It was not the case that [the prosecutor] had no witnesses to call, just that she didn’t think she had a realistic chance of conviction so did not proceed to call any evidence.” 
Moreover, it should of course, be noted that the decision to acquit these particular individuals accused in this case has no bearing on whether there was corruption as part of the construction supervision contract.

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