Over the last two weeks there have been various reports on the status of the police investigations into so-called bribery allegations against Minister Jack Warner in his then capacity as vice president of FIFA.
The Commissioner of Police reportedly stated that the Director of Public Prosecutions recommended no further action in the matter. Naturally newspaperheadlines in response screamed "Jack cleared by the DPP". The DPP was quick to react, asserting that he never cleared anyone but on the basis of the evidence brought to him by the police he directed that they pursue inquiries under the Customs Act, in respect of possible breaches under that Act.
Now the Attorney General has stepped into the picture, apparently in an attempt to explain the DPP's advice and the Commissioner's statement. He says what the DPP was saying was that there was no evidence in the file sent to him to substantiate further investigation, except under the Customs Act. He asserts that if there was any offence of signing a false Customs declaration it would have been former FIFA election candidate Mohamed bin Hammam who would have to answer. The AG concludes that if the police found no evidence of bribery it is because none exists.
Ergo — if one were to follow the AG's reasoning — then Jack Warner is "cleared" of bribery allegations.
To determine if this is so it might be useful to consider the allegations that have been made against Mr Warner (in his capacity as FIFA VP) which have been in the public domain. It is that he, as then-president of the Caribbean Football Union, at a meeting at the Hyatt Regency Hotel last May (2011), was party to offering US$40,000 each to some 25 country representatives of FIFA for their support of candidate bin Hammam. Both Warner and bin Hammam were asked to answer bribery allegations by the FIFA ethics committee. Warner instead resigned as VP and did not answer any allegations. Bin Hammam was found guilty by the ethics committee of the violation and banned from FIFA.
Subsequently the Opposition PNM wrote to the Police Commissioner asking for an investigation into the matter to determine whether there were breaches of the law, including the criminal law relating to bribery and the Customs Act. Without any information as to whether persons brought into T&T or left T&T with large sums of money which were not declared it would be difficult to assert any breaches of the Customs Act.
Merely being in possession of US$1 million may not in itself be enough to ground an offence under the Customs law. In this regard the DPP is quite correct to suggest that there may be need for further investigations along those lines. Whether this is a matter for the police or the Customs authority is another matter. Customs officers have powers under the Customs Act to investigate and charge for (and prosecute) offences under that Act without recourse to the police.
What appears to be of more concern, however, is the possibility of bribery offences. It has been stated in the public domain (more than once) that there is a video purporting to show the distribution of "bribes" to the FIFA representatives. Can this be an offence in T&T?
The Representation of the People Act at section 96 provides, inter alia: "A person is guilty of bribery who, directly or indirectly, by himself or by any other person on his behalf—gives any money or procures any office to or for any elector or to or for any other person on behalf of any elector or to or for any other person in order to induce any elector to vote or refrain from voting." These bribery offences under the Act, however, only relate to national and municipal elections in T&T and payments in relation to voting at those elections.
The only other law that might be relevant is the Prevention of Corruption Act. The relevant offence under that Act is under section 3. That section makes it an offence for a person to solicit or receive a gift or reward as an inducement to an agent (of the State) to do/not do something in a matter in which the State or a public body is concerned. Similarly a person who gives the gift or reward as an inducement etc is guilty of corruption — once is it a matter in which the State or a public body is concerned.
Under our law FIFA is not a public body. It is an association (not even a company) established under the laws of Switzerland. If one chooses to bribe representatives of FIFA (not the countries themselves) to sway votes in a FIFA election such an action would not fall under our Prevention of Corruption Act. Put another way, if persons offered bribes or took bribes to vote/not vote a certain way in an election of officials to the Queen's Park Cricket Club – would this be corruption? It might well be in a moral or ethical sense but under the Prevention of Corruption Act it would not be a crime since it is not a transaction involving the State or a public body.
Even under the old common law offence of bribery this would not be crime because again there would be no bribery by or of a public official. One must not forget that the allegations against Mr Warner were not in his capacity as a Minister or public official of T&T. They relate solely to actions by persons in their various capacities as representatives of FIFA. Whatever actions that might or might not have occurred in relation to attempting to fix a FIFA election is not criminal corruption under our laws.
Minister Warner apparently knew what he was talking about when he said (as was reported) – FIFA business is FIFA business.
• Dana Seetahal is a former Independent Senator