Censored justice

When will the media in Bangladesh cover the ICSID decision on Niko corruption claims and how will the courts respond?

Censored justice
February 8th 2018, Dhaka, Bangladesh — Lawyers aligned with the BNP stand behind a locked gate inside the High Court premises, after the former prime minister and BNP chairperson Khaleda Zia was sentenced to five years in prison on corruption charges. Photo: Monirul Alam, Zuma Press/Alamy Stock Photo

As Netra News reported recently, a tribunal set up by the International Centre for Settlement of Investment Disputes (ICSID) had ruled that there was no corruption involved when the last BNP government signed gas exploration contracts with the Canadian company Niko. The story should not have been breaking news since the decision of the tribunal was handed down in February 2019, and one would have expected that in this intervening period it would have been widely reported in Bangladesh. Yet, this was not the case.

In fact very few knew about the decision which also specifically exonerated senior figures in the BNP government including the former Prime Minister Khaleda Zia and the former law minister Moudud Ahmed. The members of the tribunal who wrote the decision and a few other tribunal officers involved in the case were aware of the ruling, but they were not allowed to talk about it. This was because the Bangladesh government, rather extraordinarily, blocked the publication of the ICSID decision. In order for such a ruling to be published, both the parties to a dispute must agree to publication, and in this case the Bangladesh side was withholding its consent.

It is of course understandable why the government would prefer that this decision would never see the light of day. It can be seen as a highly detailed and minutely argued decimation of the ongoing corruption prosecution in Bangladesh against Khaleda Zia and some of her government ministers and senior officials.

Had any other group of individuals other than these three ICSID tribunal members come to the same conclusions, the Awami League government would almost certainly have called them “biased”, “corrupt” or otherwise “procured”. But it is difficult to do so in this case as the government itself chose one of three members of the tribunal, and agreed to the appointment of the chairperson.

The Bangladesh government’s strategy now seems to be aimed at quashing any coverage of the tribunal decision, and in this it has the complicity of the media. Although any journalist can now access a copy of the ICSID decision from Netra News’ website, Bangladesh’s mainstream media has still not reported on the case. The country has reached a stage where its media are so self-censoring, intimidated, or partisan that newspapers and television channels do not report a decision of an international arbitration tribunal as it goes against the interest of the government.

There is no question, however, that those who stand accused of corruption over the Niko contracts will use the tribunal decision as part of their defence, and it will be interesting to see how the Bangladeshi trial court deals with it.

The ICSID decision does not just detail why the allegations against individual ministers and officials do not stand up to scrutiny, but undercuts the very basis of the prosecution arguments that corruption had taken place, including perhaps most significantly the idea that the BNP government agreed to a bad financial deal for the country, losing it money.

The international arbitration tribunal in fact found that it was a good deal for Bangladesh, signing a contract where it purchased gas from the company at a price significantly below the level Niko had sought and also at an amount “substantially below the price which Petrobangla paid to other suppliers.”

As the tribunal decision reads, “Niko had requested a price of US$2.75/MCF and, during the negotiations, was prepared to reduce the price to US$2.35/MCF. Petrobangla and the government had offered US$1.75/MCF. Although they were prepared, at some time during the negotiations, to increase the price to US$2.10/MCF, they reverted to their original position and in the end insisted on the price initially offered. Despite much objection, Niko had to accept this price.”

The ICSID tribunal decision also undermined other key underlying assumptions of the ongoing criminal prosecution. It ruled that the Bangladesh government was wrong to assert that Niko was “unqualified” for the work contracted; that any procurement regulation in Bangladesh was violated; or, that the inclusion of the Chhatak East gas field in the area of exploration in the Joint Venture Agreement (JVA) was “irregular”.

One might imagine that it will be difficult for the Bangladeshi trial court, currently involved in the process of framing charges, to ignore all these conclusions which are backed up by a level of rigour and detail generally unknown in the country’s court system. But the process of justice within Bangladesh’s court system often takes place immune from the intrusion of a genuine search for the truth. This is particularly so when it involves the criminal prosecution of opposition politicians where the outcome is predictable, determined by a government with particular political imperatives, and facilitated by a partisan set of investigators, prosecutors, and judicial officers. Facts are of little concern to those involved in the system. The only issue is what the government wants.

So one should not hold out too much hope that the Bangladeshi courts will give much significance to the ICSID decision. This is particularly so when the government’s objectives here are helped by a quiescent and unquestioning media.●

David Bergman (@TheDavidBergman) — a journalist based in Britain — is Editor, English of Netra News.

🔗 Netra News, Khaleda and BNP leaders exonerated by international arbitration tribunal (January 2nd 2020)