I do not know how they do it. But they do!
They did it in the Australia-India Sydney Test in 2008 when the ICC bungled once and then again and then some more! Mike Proctor is believed to have pleaded with the ICC to appoint someone more capable to hear the Harbhajan Singh “Monkeygate” case. The ICC insisted that they needed the issue dealt with speedily. Good motives. However, they forced Proctor, a man who was incompetent in matters legal, to handle a hot potato. However, instead of a potato the ICC handed the man a grenade. He promptly blew it up and with it, himself too!
The poor man was a sacrificial lamb. Another lamb in a string of broken bodies. He quietly joined the ranks of the dispensable, like Mike Denness, Darryl Hair, Steve Bucknor and many others before him!
And now, in a bid to rush through a decision process on Gautam Gambhir, the ICC may have created another lamb for their slaughter-queue!
Personally, I do feel that Gambhir was denied natural justice in his appeal.
Albie Sachs passed his judgement without once talking to Gambhir! Surely, this just cannot be right although Albie Sachs says in his ruling that a conversation would not have had any impact on his appeal decision given that there were no significant “important questions of fact are in dispute” and given the “desirability of speedy resolution”.
Question: Who desired a speedy resolution?
The appellant? The BCCI? Cricket Australia? The ICC? The Australian cricket players who wanted Gambhir rubbed out of the game?
My view is that “Natural Justice” affords only Gambhir the maximal right to a speedy (or otherwise) resolution. Every other stakeholder has, at best, a passing interest in the timeliness of the resolution.
What is important is that justice is seen to be served and not quite the time it takes for it to be served.
It would seem that, in his haste, Sachs has erred and with him, his masters at the ICC, who — it can be inferred — sought a speedy resolution.
I can imagine that the BCCI would be upset at this — they are — and would pick holes in the technicalities of the appeal ruling rather than the actual ruling itself!
The ruling itself was probably right! Who knows?
I am a firm believer in the “you do the crime, you serve the time” principle. In that sense, I do believe that Gambhir has to take his ‘penalty’ on the chin. However, a fair process would afford any person the right to Natural Justice. If I were Gambhir, I would be upset mainly because I would have cause to feel that Natural Justice was denied in the appeals process.
There are a few reasons for this and I explore these below.
The main body of the appeal was built around the “disproportionate nature of the penalty imposed”, particularly bearing in mind the provocation to which Gambhir had been subjected.
Although Albie Sachs did refer to the actual offence in terms that could be interpreted as grounds for leniency, Gambhir wasn’t allowed the opportunity of a full exploration of the issues around that finding of Sachs.
Let us examine what Sachs wrote. He says: “I am prepared to accept that he had been the victim of prolonged and persistent verbal abuse by members of the Australian team, culminating in a moment of anger that led to his unfortunate lapse. I would add in his favour that the manner in which Shane Watson had raised an arm as he ran past for the first run, could have been taken by him as a mocking gesture, and thereby could have served as the last provocative straw. Furthermore, I accept, as the umpires did, that the actual contact was not serious. “
Few issues stick out in these statements by Sachs:
- Sachs calls the elbow an “unfortunate lapse” which could imply that, in his view, there was no pre-meditation — surely, there is immediately a case for leniency there!
- Sachs concludes that, “Shane Watson had raised an arm as he ran past for the first run, could have been taken by him as a mocking”. Now that is Albie Sachs’ assumption or conclusion of Gambhir’s mental state and hence, Gambhir’s conclusions at that time! In other words, Sachs has concluded that Gambhir thought Watson was mocking him by raising his arm! How could Sachs be so sure? Did he ask Gambhir? Did Sachs seek to verify if indeed Gambhir saw that as “mocking”? No, he did not. Indeed, Gambhir could make a case that that he did not quite see the ‘Watson raised arm’ tactic as ‘mocking’ but rather an attempt by Watson to elbow Gambhir on his first run, which the batsman cleverly avoided. Gambhir could then have gone on to quite conceivably make a claim that on his way back for the second run, his own elbow-thrust-out action was indeed a ‘reflex’ (consistent with his “guilty as charged but not deliberate” plea) to ensure that he doesn’t get elbowed once again by Watson while on his second run! This is all conjecture. But heck! Sachs’s conclusion was also purely conjectural and was based on the realm of the hypothetical and second-guessing! All I am saying is that Sachs has rushed to a conclusion without providing Gambhir an opportunity to put forth his case in the appeal.
Sachs then goes on to say “The points he wishes to make have already been made, and for purposes of this appeal I fully accept their veracity.”
This is not quite true. It is, indeed, factually incorrect. The BCCI had made requests “for certain documents or recordings to be given.” These recordings are presumably voice recordings of the preceding play.
Sachs then enters territory that is most dangerous, in my view. He says, “In this context, further delay would leave him (and the selectors, and the public) in the unenviable position of not knowing where he stood in relation to the upcoming Test match, without any corresponding benefit as far as the appeal is concerned.”
Albie Sachs has left himself completely open to inspection, analysis, question and ridicule here.
It is better to delay justice but reach the right decision after considering the appeal in all its fullness than rush to a final judgement in a bid to second-guess the needs of Gambhir, the Indian selectors and the viewing public on the outcome of Gambhir’s appeal ruling.
Of all the statements in his ruling, I find this statement reproduced above to be the most ludicrous. Sachs cannot and should not wear the shoes of either the Indian team selectors or the viewing public.
Most importantly, however, unlike the hearing in the presence of Chris Broad, the ICC Appeals process does afford a player the natural right to legal representation. This right was denied by Albie Sachs, who, in a hurry to afford clarity to the Indian selectors and viewing public rushed through a somewhat botched process to arrive at a hasty judgement, in my view.
The judgement may be correct. However, with the process being ordinary at best and a mockery at worst, I feel that Albie Sachs and the ICC have left themselves wide open for a overturning of this ruling on grounds of “technical irregularities”.
As I said before, I do not have a problem with the outcome, but if I were Gambhir I would have every right — on several counts — to feel aggrieved that natural justice was thoroughly denied.
The BCCI has made a legitimate complaint to the ICC. The BCCI has said, in a letter to the ICC, “The order has been passed without affording the player an opportunity of personal hearing, legal representation and without acceding to his request for certain documents or recordings to be given to him and also denying him any extension of time.”
I am not sure what can and will happen from here on in. The ICC will not — and should not — allow a re-appeal. The process does not allow for that. It is likely that the ICC Executive Board will need to step in here and do something in a hurry.
All this convinces me, if I needed convincing in the first place, is that the ICC, as it stands, is incapable of running the game of cricket. From their handling of sensitive issues to the running of major events like the World Cup, the ICC has shown itself to be a somewhat incompetent organisation.
In my view, the ICC has botched one issue too many and it would seem to me that the time is appropriate to do something about it. That time is now.