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When the punishment does not fit the crime

  • Published at 12:04 am November 12th, 2019

Is there a legal precedent for getting Shakib’s sentence reduced? 

On October 29, the whole nation grieved for their brightest star under the sky. Shakib Al Hasan, one of the all-time best all-rounders of the game, was declared ineligible to play for the next two years. The decision of the International Cricket Council came out of the blue and has since been criticized by many.

Shakib was held accountable for failing to report three incidents of being approached for corrupt conduct. The incidents, respectively, took place in mid-November of 2017 during the ongoing Bangladesh Premier League, and in January of the following year when Bangladesh was participating in a tri-series tournament with Sri Lanka and Zimbabwe, and in April 2018 concerning an IPL match between Sunrisers Hyderabad against Kings XI Punjab.

Applicability of the Anti-Corruption Code

The applicability of the new ICC Anti-Corruption Code 2018 has been questioned since the first two incidents predate the Code that came into force on February 9, 2018. But the incidents come under the purview of the Anti-Corruption Code 2018 as clarified under Article 11.3.

In substance, the provisions regarding the offense are analogous in both the codes and, therefore, Shakib does not benefit from the lex mitior principle in receiving sanction for a lesser punishment. However, whereas this case completely hinges upon Shakib’s WhatsApp conversation with Deepak Aggarwal, it might have been difficult for ICC to bring charges if the new Code did not provide a retrospective effect on procedural provisions.

Previously, the ACU-ICC could only request information from players without having access to messaging system such as WhatsApp. However, Article 4.3 brought a procedural change in this regard and was legally followed in the investigation process. 

Shakib breached Article 2.4.4 of the Code in all three incidents by failing to disclose full details of the approaches without unnecessary delay. Code Article 6.2 stipulates that the sanction for such breach is a period of ineligibility of a minimum of six months and a maximum of five years. Shakib accepted the charges against him and was consequently banned for two years. But it should be kept in mind that it was an agreed sanction where Article 5.1.12 provides absolute discretion to ICC to depart from the Code Article 6.2 sanction range. Thus, technically, it was possible to impose a ban of even less than six months.

Had the ICC deemed it to be a good case, Shakib could have received a shorter period of ineligibility as well. Although it cannot be argued that his sanction is unreasonably long, it is not very considerate either.

The ICC and the BCB

When the conduct of corruption involves a domestic match along with an international one, Article of the Code allows ICC and the National Cricket Federation under whose jurisdiction the domestic match is played to reach an agreement as to which body would proceed on taking action against the charged participant. Thereby, ICC reached an agreement with the Board of Control for Cricket in India (BCCI) for the incident related to the particular IPL match. Similarly, before taking action for the first breach during the Bangladesh Premier League, ICC was supposed to reach an agreement with BCB. But both the BCB president and Shakib confirmed that BCB had not been aware of the investigation. 

Article of the BCB Anti-Corruption Code for Participants elucidates that, in the absence of an agreement, the BCB shall take action solely with respect to the conduct relating to the relevant domestic matches played under its jurisdiction, the ICC shall take action solely with respect to the relevant international matches and/or the other relevant National Cricket Federation(s) shall take action solely with respect to corrupt conduct relating to the other relevant domestic matches. But, overlooking BCB’s priority over the very first incident, ICC took action against the three incidents altogether which induces a very incongruous scenario.

Shakib can still be involved in domestic matches at any time before the end of his period of ineligibility.

Despite there being no right of appeal against the decision following Article 7.2, the chairman of the ACU can give such permission under his absolute discretion per the Code Article 6.8. The participant’s apology, remorse, and cooperation with ACU in full disclosure of information will assist in acquiring such permission, and Shakib has already fulfilled these factors.

Even if Shakib received permission under Code Article 6.8, he will not be able to play in international matches before October 29, 2020 as the sanction currently stands. BCB needs to employ all existing legal options and pursue administrative measures to reduce the term of Shakib’s sanction. 

Raihan Rahman Rafid is student of law, University of Dhaka. He serves as Assistant Director, Youth for Human Rights-Bangladesh and Sub-editor, Law & Justice, Daily Observer.