The incongruity over Shakib’s ban and the ICC Code

As the hype over Shakib Al Hasan and the ban imposed on him continues, the legal side of the whole story comes to the forefront.

Even though Shakib cannot appeal against the ban, passionate cricket fans have taken the case pretty seriously. Social media was flooded with several conspiracy theories. Some of them even claimed that the ICC made a mistake by penalising Shakib with its latest set of codes which came into effect on February 9, 2018. 

There is a complicated legal side to the whole Shakib saga. The ace Bangladeshi all-rounder was penalised for breaching the ICC ACU code of conduct 2.4.4. The charges, according to an ICC official statement, were as follows: 

Article 2.4.4 – Failure to disclose to the ACU full details of any approaches or invitations he received to engage in corrupt conduct - in relation to the Bangladesh, Sri Lanka and Zimbabwe Tri-Series in January 2018 and / or the 2018 IPL

Article 2.4.4 – Failure to disclose to the ACU full details of any approaches or invitations he received to engage in corrupt conduct - in relation to a second approach in respect of the Tri-Series in January 2018.

Article 2.4.4 – Failure to disclose to the ACU full details of any approaches or invitations he received to engage in corrupt conduct - in relation to an IPL 2018 match between Sunrisers Hyderabad v Kings XI Punjab on 26 April 2018.

Under the provisions of the Code, Shakib chose to admit to the charges made by the ICC rather than face an Anti-Corruption Tribunal hearing.

Subject to him satisfying the conditions with respect to the suspended part of the sanction, he will be free to resume international cricket on 29 October 2020. 

The penalty that Shakib got was according to the ICC anti-corruption code paragraph 2.4.4. But the code in question came into effect on February 9, 2018. The ICC says, "It[Article 2.4.4] shall not operate to disturb any decisions and/or sanctions previously made under predecessor versions of the Anti-Corruption Code (including the Code of Conduct) or anti-corruption rules of National Cricket Federations. Nor shall its substantive provisions apply retrospectively to matters pending before the Effective Date. Instead, any case pending prior to the Effective Date, or brought after the Effective Date but based on acts or omissions that occurred before the Effective Date, shall be governed (a) as to substance, by the predecessor to the Anti-Corruption Code that was in force at the time of the alleged offence, subject to any application of the principle of lexmitior by the hearing panel determining the case; and (b) as to procedure, by this Anti-Corruption Code."

It clearly states that the code cannot be applied retrospectively in cases dated before the substantive provision takes effect. It can be used in case of investigation and probe, but cannot be used to penalise someone. 

ICC pressed charges against Shakib on the basis of the incidents on 19 January 2018, January 23 2018 and April 26 2018. Apparently two of the incidents were before the implementation of the ICC Code, which came into effect on February 9, 2018. So it is incongruous on ICC's part to charge Shakib under the breach of the same Code of Conduct. 

Because ICCs Code of Conduct paragraph 2.4.4 and 6.2 did not exist during the incident, it is unjust to penalise Shakib for the breach of paragraph 2.4.4 and 6.2. In 2014 ICC had a different Code of Conduct, but Shakib was not penalised for breaching that. 

Since Shakib's latest incident was on April 26, he can be penalised for that. And the decision states in paragraph 32 that corresponding to code 7.2 Shakib cannot appeal against the ban.

BCB can appeal against it, but lawyers say that it won't be of much help in changing the decision. Renowned lawyer Barrister Khaled Hamid Chowdhury says that the BCB can challenge the decision on the implication of the ICC code of conduct, but it would not change much, "Shakib's investigation was an on-going process. I have compared the existing code with the prior one and found them to be very similar. The code of conduct ICC put into effect in 2014 also says that a player could be penalised for 6 months to 5 years for a similar offence. Yes, technically BCB can appeal to the ICC against the current code mentioning it's implication of February 9, 2018. Certainly, Shakib's first two offences were not within this timeline. But according to my understanding, the previous law also suggests similar outcomes and penalties." 

Meanwhile, The Bangladesh Cricket Board is yet to decide whether to appeal to the International Cricket Council (ICC) to reduce the ban on Shakib Al Hasan. BCB CEO Nizamuddin Shujan said they have already talked to their legal advisors regarding the issue.

Shujan said BCB was looking at all legal options on whether to appeal or request ICC to reduce Shakib's penalty.

Bangladesh cricket's governing body also stated that Shakib's central agreement with BCB was under scrutiny.

Whatever may be the measures taken by BCB or the player, it is almost certain that there will be some interesting twists yet in the Shakib case, which might unfold in upcoming months.