The recent match and spot fixing allegations against Mohammad Ashraful and the subsequent sensational confessional statement made by him raised the question of whether Ashraful could face criminal charges for his offence based on the current laws of the country. Although some sympathise with him in light of the importance of his contribution to Bangladesh cricket, they feel that to keep the game clean he should receive exemplary punishment to deter others from following his path in the future.
The need to fight against match and spot fixing is a response to perceptions of it as a public interest issue. It jeopardises the integrity of competitions, damages the social, educational and cultural values, while also affecting the economic role of sports.
Sports integrity needs to be protected from fraud in order to avoid doubt concerning the authenticity of results. Without the unpredictability inherent in fair play in sport, it becomes unappealing to spectators, broadcasters and sponsors. Furthermore, match and spot fixing can be considered a form of corruption and as such, must be sanctioned by criminal law.
The difficult question is whether the punishment should only be confined to individuals like Ashraful for aiding or abetting the spot fixing, or whether it should extend to punish the actual book-maker, either in Bangladesh or abroad.
Last week, Bangladesh Cricket Board (BCB) President Nazmul Hassan Papon at a press briefing at Dhaka's Sher-e-Bangla Stadium said, “Ashraful has made confessions, so there’s no need for any evidence. We aren’t punishing him, but there is no scope for him to take part in any of the future competitions.” He said that the investigation of the ICC’s Anti Corruption and Security Unit (ACSU) would end soon and that they would submit the full report to BCB in seven days. “If found guilty of spot-fixing, he (Ashraful) will be given exemplary punishment. One will be banned from playing cricket ranging from six months to life as punishment as per the Anti-Corruption Policy.”
An appropriate offence in which Ashraful could be charged is aiding or abetting gambling or betting. While there are no specific laws in Bangladesh dealing with internet gambling, online lottery and betting, these activities are considered illegal. Wherever money is put at stake and the rest is left to luck, it is termed as gambling activity.
Gambling per se is an offence since it does not involve skill and has been explicitly prohibited under the Public Gambling Act of 1867. Therefore, in public places like a club, games such as flash and housie are disallowed.
The term “gambling” as such has not been defined in the Public Gambling Act 1867. However, one can refer to the Indian Constitution for indication of how it might be understood. According to Entry 34 of List II, under the Seventh Schedule to the Indian Constitution, "'Gambling' includes any activity or undertaking whose determination is controlled or influenced by chance or accident and an activity or undertaking which is entered into or undertaken with consciousness of the risk of winning or losing, e.g., 'prize competitions, a wagering contract, ... Where there is no actual transfer of goods but only to pay or receive the difference according to the market price which varies from the contract price."
In my view, the test for determining whether a game constitutes “gambling” is finding out if the dominant element of the game is chance or skill. However, the legislation in India also does not define what "skill" means in the context of gambling. Based upon the interpretation of the courts in India it can be safely concluded that a game that does not involve skill or is a mixed game of chance and skill would not be treated as lawful in India. In the case of M.J. Sivani and Ors. V. State of Karnataka and Ors. 1995 6 SCC 289 the Supreme Court held that when in a game the element of chance strongly preponderate, it cannot be game of mere skill.
Looking at this from another perspective, it is possible that Anti Corruption Commission could also initiate proceedings against Ashraful under sections 26 and 27 of the Anti Corruption Act, 2004 that deals with a person’s wealth. The Commission can ask for the statement of wealth of Ashraful and if his wealth is disproportionate to his known source of income and if he cannot show the legal sources of income, then Ashraful can be charged on those means. Subsequently, an alternative means of proceedings can also be brought by National Bureau of Revenue (NBR) under section 132 (Penalty for non-payment of tax) and section 134 (punishment for concealment of income) of the Direct Tax Act 2011.
In a broader sense, Ashraful could be charged under Section 420 (cheating and dishonestly inducing delivery of property) of the Penal Code, 1860 which is a punishable offence with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
However, section 415 of the Penal Code defines cheating as “Whosoever intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.”
On close observation, it is apparent that while BCB is paying a monthly salary and other facilities to Ashraful, the body has been deceived by his wilful conduct of entering into match and spot fixing (contrary to the code of conduct), resulting in harm to the BCB’s reputation. The ingredients of the offence “cheating” are however unclear, in the case of when the alleged offence occurred under the instruction of other contractual employers.
While some countries focus on general offences of corruption or fraud, others have implemented specific sport offences to cope with match-fixing -contained either in their Criminal Codes (Bulgaria, Spain), sports laws (Cyprus, Poland, Greece) or special criminal laws (Italy, Malta, Portugal). In the UK, betting related match-fixing episodes are punished under the offence of cheating at gambling. Overall, these provisions differ greatly as regards the act to be criminalised as well as the scope, objective and subjective elements of the offences or the relevant sanctions.
In order to overcome the loopholes in existing legislation, improving police and judicial cooperation, encouraging international cooperation and enhancing the exchange of information between the countries, development of International Treaties and Convention should be encouraged.
The current laws indicate serious obstacles in applying existing legislation to episodes of spot-fixing. A closer examination of the most relevant provisions as discussed above shows shortcomings that could make the provisions difficult to apply to cases like Ashraful.
Therefore, I am of the opinion that the offence of cheating is not something that adequately deals with the issue of match and spot fixing. The current laws are insufficient to deal with fixing in sports and the charge of cheating would not be able to sustain a conviction of Ashraful in the alleged offence and that there is a need to introduce comprehensive legislation to regulate betting and deal with fixing in sport. It’s high time the Ministry of Sports considers introducing a bill imposing criminal liability on match-fixing and cheating in sports.
