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NIKO case: Punishment for bribery, but what about the bribed?

Mozammel H. Khan
THE Canadian company Niko became news in Bangladeshi media once again when an international tribunal rejected its challenge over the Bangladesh government's claim regarding payment of $106 million in compensation for two blowouts atTengratila Gas Field in Chhatak. The government filed a damage suit with a Dhaka court in June 2008 against Niko Resources Bangladesh Limited, claiming Tk.746.5 crore ($106 million) in recompense for the destruction of properties and gas reserves in and around the gas field
Before the tribunal, Niko challenged the case and another issue related to payment for gas sales from the Feni gas field, which the Canadian company operates with Bapex.
Niko started drilling the Chhatak-2 well on December 31, 2004. It drilled the first well there without the required approval of a Joint Management Committee. The first blowout was on January 7, 2005, in Tengratila of Sunamganj. Niko took up a programme for drilling a relief well to contain the blowout. While the drilling was in progress, another blowout occurred on June 24, 2005. A follow-up inquiry committee of the energy ministry found that the blowout had resulted from operational failure and inappropriate casing design. On December 6, 2005, the government formally demanded compensation from Niko.
In the meantime, according to a 'sealed' affidavit filed in Alberta court by the Royal Canadian Mounted Police (RCMP) obtained by Canadian newspaper The Globe and Mail through a legal battle, Niko appointed Canada's financially tainted Senator Mac Harb. He came to Bangladesh at least four times between 2004 and 2006 to help Niko navigate the fallout from the explosion. The senator was repeatedly warned by Canadian authorities to stop his lobbying, RCMP's affidavit shows. On one of Harb's trips to Dhaka, the then Canadian high commissioner to Bangladesh was so incensed that she confronted the senator in his hotel. In an interview with RCMP, she said that she was "not happy" that Harb "had actually met with the [Bangladeshi] minister of foreign affairs at his home, at night without me, and without me being aware of the meeting."
In June, 2011, lawyers for Niko stood before an Alberta Court of Queen's Bench judge and, on behalf of the company, pleaded guilty to bribing the then Bangladesh state minister for energy and mineral resources, contrary to section 3(l)(b)of the Corruption of Foreign Public Officials Act (CFPFA).
In the autumn of 2003, recounting the event the RCMP report said: "On the other side of the world, the government of Khaleda Zia came
around and handed Niko a joint venture agreement with Bapex."
The RCMP report citing a confessional statement (corroborated partly by RCMP and monitoring of bank money flow) of 'someone' from the clique went on, "after Niko was handed drilling rights, more than $500,000 (U.S.) appeared in 'someone's bank account. From there, he dispersed some of the money to the cast of characters around Prime Minister Khaleda Zia - including al Mamun. A portion of the payment, he believed, would go to al Mamun's friend, the prime minister's son. The former minister, who would not take 'a single pie' from anyone, received a total of $102,000, the confession alleged."
Since the blowout was due to the "faulty and negligent operation of Niko Resources," the government had the power to order payments. The decision about how much, however, would be heavily influenced by the say of one man, an important voice in an ongoing dispute between Niko and the government over a gas purchase and sale agreement.
On June 23, 2011, Justice Scott Brooker of Alberta Queen's Bench delivered the verdict saying: "It is an embarrassment to all Canadians." The court handed down a $9.5 million negotiated penalty against Niko, the maiden enforcement under the CFPOA, enacted in 1998. In the detailed verdict, the reports of Dhaka's The Daily Star was referenced twice by the honourable judge.
The evidence was sufficient for the RCMP to state in the same court filing that it had "uncovered information that [Niko] used bribes to influence [Bangladeshi] public officials in order to secure the Joint Venture Agreement." So why didn't the RCMP pursue the other charges?
Then there's the logistics of getting Bangladeshi witnesses before a Canadian court. "How are you going to get them into court for trial? Are you going to use a video link? All sorts of problems kick in," RCMP said. "We play to win. With what we had, we had them dead-to-rights. So, if the investigation went on forever, could we prove everything bad that was ever done? Yeah, we could. May be. May be. But eventually you've got to draw a line in the sand."
The above could be issues for the Canadian RCMP, but they are non-issues for the Bangladesh ACC. Why was the guilty plea of the bribery that was punished in the Canadian court not pursued in the Bangladeshi court to punish the bribed? During their trip to Dhaka, the RCMP discussed the anti-bribery law, and what good it might do in the world. "Everyone saw how important this is. This was good for Bangladesh," RCMP investigator said. "But there was at least one naysayer in the country's elite. During the interview at his home, the concerned minister offered a meandering diatribe against the 'lies' and 'conspiracy' that landed him in jail for two years." "Corruption is there everywhere in the world. Corruption was there, is there, will be there," was his diabolic postulation.
The writer is the Convenor of the Canadian Committee for Human Rights and Democracy in Bangladesh.
E-mail: mozammel.khan@live.ca