The Bangladesh Cricket Board (BCB) can appeal against the decision to ban Shakib Al Hasan from all forms of cricket, but lawyers say it will not be of much help in changing the decision.
While talking to The Business Standard, Barrister Khaled Hamid Chowdhury said, "The investigation on Shakib was an ongoing process. I have compared the existing code with the prior one and found them to be very similar."
The code of conduct the International Cricket Council (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 the BCB can appeal to the ICC against the current code mentioning its implication of February 9, 2018. Certainly, Shakib's first two offences were not within this timeline. But my understanding is that the previous law also suggests similar outcomes and penalty," the veteran lawyer said.
Shakib was penalised for breaching the ICC's Anti-Corruption Unit code of conduct 2.4.4. The penalty that Shakib got was as per the ICC anti-corruption code paragraph 2.4.4. But the code in contention came into effect on February 9, 2018.
The ICC says, "It 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 lex mitior 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 the 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.
The ICC pressed charges against Shakib on the basis of the incidents on January 19, 2018, January 23, 2018, and April 26, 2018.
Apparently two of the incidents occurred before the implementation of the ICC Code, which came into effect on February 9, 2018. So, it is incongruous on the ICC's part to charge Shakib under the breach of the same Code of Conduct.
The ICC's code of conduct paragraph 2.4.4 and 6.2 did not exist during the incident. So, it is unjust to penalise Shakib for the breach of paragraph 2.4.4 and 6.2. In 2014, the ICC had a different code of conduct, but Shakib was not penalised for breaching that.
Shakib's latest incident happened on April 26, 2018, so he can be penalised for that. And the decision states in paragraph 32 that according to code 7.2, Shakib cannot appeal against the ban.
Meanwhile, The Bangladesh Cricket Board is yet to decide on whether to appeal to the 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 the BCB was looking at all legal options on whether to appeal or request the ICC to reduce Shakib's penalty.
Bangladeshi cricket's governing body also stated that Shakib's central agreement with the BCB was under scrutiny.