Padma Bridge controversy is alive again ever since an Ontario court has literally trashed the investigation by Canadian police and evidence of World Bank last week. No Bangladeshi politicians or officials were accused in Canada. Existence of related corruption in Bangladesh was not even mentioned. Yet it kicked up an uproar in Bangladesh, which is building the crucial bridge with its own resources upon WB's refusal to fund the project over graft evidence. Many now ask what evidence the global lender actually had. Based on the Jan 6 ruling, The Daily Star report will answer some of the questions.
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”.
In their court filings to obtain permission to intercept the private communications of the accused, the Canadian police had submitted some documents, such as emails, supplied by the World Bank as “evidence” of a possible corruption conspiracy scam. The WB had got those from four “tipsters” although the court suspected the number of whistleblower could even be one or maximum two.
At least two tipsters admitted in their emails to the WB that they only heard “rumours” of corruption involving the project. Yet neither the WB nor the Royal Canadian Mounted Police (RCMP) independently verified those allegations or looked into the reliability of these sources, said the Superior Court of Justice in Ontario, Toronto, in its January 6 ruling.
The 26-page order came in response to petitions by the three accused, who challenged the legality of the wiretap evidence. The ruling is now available on the website of the Canadian Legal Information Institute (CanLii).
Full text of the court ruling: http://bit.ly/2m4Hzuk
The ruling that the intercepted private communications cannot be used as evidence at the trial ultimately led to the acquittal of the three accused on February 10, even before the case could actually go on trial.
The acquittal order was given after the prosecution decided to drop the case, saying it had no other evidence or witness to call, the Globe and Mail journalist Janet McFarland, who covered the proceedings, told The Daily Star.
To be clear, the court dealt only with the legality of the wiretap evidence. It also did not review the wiretap evidence submitted by the RCMP. The content of the wiretap evidence has not been made public.
“I have specifically not reviewed the information provided from the intercepted communications so as to not fall, inadvertently, into an 'ends justify the means' analytical trap,” said Justice Ian Nordheimer, who is a veteran judge specialising in business laws, in his ruling.
The RCMP declined to comment on the matter.
The three acquitted are Ramesh Shah, Kevin Wallace and Zulfiquar Ali Bhuiyan. Shah and Kevin were former employees of Canadian construction firm SNC Lavalin, which was alleged to have been at the centre of the “scheme to bribe some Bangladeshi officials and individuals to win a $50 million construction supervision job”. Zulfiquar is a Bangladeshi-Canadian citizen.
Five companies were shortlisted for construction supervision job of the 6.2km bridge over the Padma river. The technical qualification of these firms was assessed in December 2010 and the financial aspects of their proposals in March 2011. SNC-Lavalin came out second in both aspects.
In March 2011, the WB contacted the RCMP, saying it received allegation of possible corruption involving SNC Lavalin and the Padma bridge project, according to the court ruling, which was made public on February 10.
The WB, which cancelled its $1.2 billion loan for the project citing “proof” of a corruption conspiracy, received the allegations from four tipsters via emails.
Paul Haynes, then an investigator within the WB's Vice Presidency for Integrity (INT) who raised the allegation to the RCMP, did not meet or know the identity of tipsters 1 and 3, but knew the identity of tipster 2.
However, at the request of tipster 2, he refused to reveal his/her identity to the RCMP. Haynes also knew the identity of tipster 4 and he revealed that identity to the RCMP.
It later turned out that the information from tipster 4 was very general in nature and was irrelevant to the allegations.
None of these tipsters provided any information to the police or the WB in the past, meaning their credibility has never been tested.
The information provided by three tipsters had, in turn, been received by the tipsters from other sources and that the RCMP and the INT knew the identity of some of these sources.
But the RCMP did not independently verify any of these allegations; did not talk to any of the persons identified by the tipsters as being in a position to provide direct information regarding the allegations; and did not meet any tipster or even speak with tipster 1 or tipster 3.
The RCMP opened its investigation in April 2011 and applied for three authorisations to tap the private communications of the accused between May and August 2011.
“It is these authorisations that are the subject of this challenge [by the accused],” the court said.
While applying for such authorisations police must make “full, frank, and fair disclosure” of the information available, but the RCMP did not do so. At times it gave “misleading” information, such as about the travel record of Wallace and Shah, or withheld known facts.
Police did not even dig out the motive of any of the tipsters.
In one of his own emails to the WB, tipster 1 said, “We have heard many rumours of corruption in the evaluation process for the CSC [Construction Supervision Contract] proposals submitted from five different shortlisted consultants. The latest rumours seem to be based on evidence, which we have not yet seen. If they are true, then it seems that the evaluation done by the special committee that was set up by the Bangladesh Government has not been done correctly.”
In some of his/her emails, this tipster directed the WB to specific people by name. The tipster also said the WB could contact to confirm the information that s/he was providing. But there is no evidence that the WB spoke to any of those people, the court said.
Also, while the police spoke with tipster 2 by phone twice, there is no evidence that the police or the WB probed his/her credibility.
Interestingly, the WB knew that tipster 2 had been involved in corrupt practices in the same bidding process with another bidder.
The court agreed to some degree that someone involved in corruption can be a source of information about similar corrupt practices, but that cannot be the sole justification for his/her credibility and reliability.
Tipster 3, whose identity was also unknown, sent only one email to the WB. “It is known to all that the technical evaluations are manipulated by the evaluation committee,” the email said, adding, “SNC is promising hefty corrupt payments”.
The court noted there was no indication how tipster 3 knew this. And given his/her anonymity, there is no reason to believe that s/he was in a position to know it.
Hearsay statements of an informant can provide reasonable and probable grounds to justify a search, but evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds for that, it said.
“I repeat that there is a high standard to be applied to satisfy the constitutional requirements for an authorisation to issue to intercept private communications. Mere suspicion of criminal activity is not sufficient,” the judge said.
THE THREE Cs
The court referred to a “three C's” investigative approach when informants are involved. The “three C's” stand for compelling, credible and corroboration.
To justify a warrantless search, the court said, it must be considered if the information is compelling, if the source is credible and if the tip has been corroborated by police investigation before making the decision to conduct the search.
In the present case, the information was not compelling because, first, the police did not know the identity of three informants and, second, the information they provided was not their first-hand knowledge. It was either based on general perception or something heard from other people.
The credibility of the sources was not established because they are from outside the police and never provided information to police.
Citing two previous judgments, the police argued that informants need not have a track record to be credible and that even anonymous sources may be relied upon.
The court dismissed such line of arguments, since in both of those cases the anonymous informant was found to be reliable because the police had independently confirmed some aspects of the information they provided.
Police also claimed they were able to confirm substantial portion of the tips. For example, they corroborated information such as corruption is a problem in Bangladesh; SNC has engaged in corrupt practices in the past; and Mashiur Rahman is prime minister's financial adviser.
But the court said this was nothing but a recitation of publicly known information. “In one sense, it might be seen as confirming nothing more than the tipsters had access to the Internet.”
And the alleged corrupt practices by SNC Lavalin in the past do not relate to the present case -- those allegedly took place in Africa and India, both 20 years ago.
VIOLATION OF CONSTITUTIONAL RIGHTS
The wiretap application can be made if other investigative procedures have been tried and have failed or other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation using other investigative methods, it said.
While the contents of the applications for authorisations failed to establish that there were no other reasonable ways to investigate the allegations made by the tipsters, the authorisations to intercept private communications lacked the requisite grounds for their issuance, the court added.
“The authorising judge had to be satisfied that other investigative procedures were 'unlikely' to succeed… the authorising judge must … remember that the citizens of his country must be protected against unwanted fishing expeditions by the state and its law enforcement agencies.
“Consequently, the authorisations were issued in violation of the applicants' s.8 Charter right to be free from unreasonable search. As a consequence, an order is made excluding all of the private communications intercepted under the authorisations from the evidence to be tendered at trial,” concluded the judge.
On February 10, the three accused were produced before the same Ontario Superior Court.
The Crown attorney, Tanit Gilliam, told the court that since they could not use wiretap evidence, the Crown would be calling no witnesses or evidence in the case.
She then invited the judge to acquit the accused, Janet McFarland, the Globe and Mail journalist, told this newspaper.
The judge then said they were all acquitted.
Bangladesh was not a party to this case.
Bangladesh had its own investigation into the allegation, which led to the resignation of communications minister Syed Abul Hossain, who was alleged to have been involved in the scam. Also, bridges division secretary Mosharraf Hossain Bhuiyan was sent to jail and Mashiur Rahman was sidelined.
After about three years' probe, the Anti-Corruption Commission cleared all the seven accused in September 2014, saying it found no evidence of corruption against them.
About a month later, a Dhaka court acquitted them all -- Wallace, Shah, a local agent of SNC Lavalin and four Bangladeshi officials, including Mosharraf.
Contacted for comment yesterday, Mehrin A Mahbub, head of corporate communications of WB's Dhaka office, referred to the previous response by Qimiao Fan, WB County Director for Bangladesh, Bhutan, and Nepal:
“The World Bank takes allegations of fraud and corruption impacting Bank-financed projects very seriously. Once a World Bank investigation is concluded, we share findings with national authorities to determine whether or not there was a violation of national legislations. The status of referral actions is published in INT's annual report. How each referral is handled is always left up to each national authority.”