YOUSUF ALI SAYEED, J. The travails of the Petitioner are well known. Once a celebrated international cricketer who represented Pakistan with distinction at senior level in the test and ODI versions of the game[1], he fell from grace as a central figure of spot-fixing scandal while contracted as an overseas player by the English County team Essex during the 2009.
2. The proceedings that ensued culminated in a life ban being imposed on him by a disciplinary panel of the England Cricket Board (the "ECB"), the body responsible for all aspects of the administration of the game in those countries, with that decision being assailed and litigated before an independent Appeal Panel and then before the High Court of Justice in England, reported as Kaneria v. England and Wales Cricket Board Limited [2014] EWHC 1348, up to the Court of Appeal.
3. The details of the affair stand fully documented through that judgment, as well as a decision rendered by a learned Division Bench of this Court in a prior round of litigation embarked upon by the Petitioner against the Pakistan Cricket Board (the "PCB"), reported as Danish Kaneria v.
Pakistan 2012 CLC 389. Whilst the focus of the present Petition does not require an overly detailed exposition of the underlying facts marking either set of proceedings, suffice it to say that matter entailed the Petitioner and a younger teammate named Mervyn Westfield being implicated in spot-fixing, with it being alleged that they under performed in a one-day match between Essex and Durham on 05.09.2009. Westfield, admitted to having accepted 6000 in return for conceding a set number of runs off an over and was sentenced to four months imprisonment in February 2012 after pleading guilty to the charge of accepting or obtaining corrupt payments. The Petitioner had also been arrested at that time, with it being alleged that he had acted as the conduit for the payment, but the charges were dropped due to a lack of evidence. However, disciplinary proceedings were brought by the ECB on two charges; (i) that he had induced or encouraged, or attempted to induce or encourage his teammate not to perform to his merits by deliberately conceding a minimum number of runs; and (2) that the had thereby conducted himself in such a manner as might bring the game of cricket or any cricketer into disrepute. The Petitioner denied culpability, but on 22.06.2012 was found guilty on both counts by a Disciplinary Panel of the ECB's Cricket Discipline Commission, which decided that it was appropriate to inter alia impose a life ban; it being observed in the ruling that "We regard Danish Kaneria as a grave danger to the game of cricket and we must take every appropriate step to protect our game from his corrupt activities".
In summation, it was said that he had exploited his position in the game. "As a senior international player of repute he plainly betrayed the trust reposed in him in his dealings with fellow team- mates and we regard his persistent efforts to recruit spot fixers as being a seriously aggravating factor in his case."
4. The life ban was upheld on appeal to an independent Appeal Panel. The Petitioner then challenged the award of the Appeal Panel before the High Court through Applications under sections 68 and 69 of the Arbitration Act, 1996, contending that the Panel had exceeded its powers and erred in law as the penalty imposed was disproportionate. That too failed to yield a positive result, with the High Court decision being upheld by the Court of Appeal. Ergo the ban remains in the field, unimpaired.
5. Although the Petitioner had protested his innocence throughout the course of the aforementioned proceedings and rigidly maintained that stance for several more years. he did a volte-face so as to make an unequivocal admission of his guilt in a televised interview aired on the Al-Jazeera news channel on 20.10.2018 inter alia stating that "My name is Danish Kaneria and I admit that I was guilty of the two charges brought against me by the England and Wales Cricket Board in 2012". During the course of that interview, he went on to say "I have become strong enough to make this decision, because you cannot live a life with lies".
6. On the strength of that admission, the Petitioner then addressed a letter dated 16.02.2020 to the PCB seeking to be rehabilitated in the game and requesting the latter's intercession on his behalf with the ICC for that purpose. It is pertinent to mention that the aforesaid letter was generally worded, with no specific rule being cited at the time. Be that as it may, vide a reply dated 08.03.2020, the PCB expressed its inability to accede to that request, citing Article 9 of the "International Cricket Council's Anti-Corruption Code for Participants" and of the "Pakistan Cricket Board's Anti-Corruption Code for Participants" (hereinafter individually referred to as the "ICC Code" and "PCB Code", and collectively as the "Codes"). The cited provisions read as follows: The ICC Code ARTICLE 9 RECOGNITION OF DECISIONS 9.1 All National Cricket Federations shall comply with the Anti-Corruption Code and take all necessary and reasonable steps within their powers to recognise, enforce, extend and give effect to all decisions taken and Provisional Suspensions and sanctions imposed under the Anti- Corruption Code within their own respective jurisdictions, without the need for further formality. This shall include (without limitation), where it has the jurisdiction to do so, requiring the organisers of any Matches, tournaments or other events sanctioned by the National Cricket Federation to recognise and give effect to such decisions and Provisional Suspensions and sanctions.
9.2 Decisions made and Provisional Suspensions and sanctions imposed under the anti-corruption rules of National Cricket Federations shall be recognised, enforced, extended and given effect to within their respective jurisdictions by the ICC and other National Cricket Federations (including in respect of any Matches, tournaments or other events sanctioned by such National Cricket Federations), automatically upon receipt of notice of the same, without the need for further formality.
The PCB Code ARTICLE 9 RECOGNITION OF DECISIONS Decisions made and Provisional Suspensions and sanctions imposed under this Anti-Corruption Code and/or the Anti-Corruption Rules/Code of the ICC and/or other National Cricket Federations shall be recognised, enforced, extended and given effect to within their respective jurisdictions by the PCB, ICC and the relevant National Cricket Federations automatically upon receipt of notice of the same, without the need for further formality. This shall include (without limitation), where the PCB has the jurisdiction to do so, requiring the organisers of any Matches, tournaments or other event sanctioned by the PCB to recognise and give effect to such decisions and Provisional Suspensions and sanctions.
7. Whilst it is unnecessary to reproduce the entire chain of communication that ensued, two pieces of correspondence that merit replication by virtue of encapsulating the competing viewpoints and certain other relevant provisions of the Codes are the legal notice dated 11.06.2020 addressed on behalf of the Petitioner to the Chairman of PCB and the response of the PCB's Chief Operating Officer dated 08.07.2020.
8. The body of that legal notice sought to advance the case of the Petitioner in the following terms: "RE-REHABILITATION PROGRAM Dear Sir, We, for and on behalf of our client namely Danish Parabha Shanker Kaneria ("our Client"), write and address to you as under:
1. That we are, in receipt of your letter dated: 08.03.2020 sent by you to our Client. Having perused the contents of the same, the following assertions are made.
2. That our Client is the highest wicket taking spinner of Pakistan. Any further statement outlining his prolific career would be superfluous as our Client's performance speaks for itself as he unabashedly is one of the best cricket players the Country has produced.
3. That has asserted in your letter, our Client was banned for life by the English Cricket Board ("ECB") in June of 2012, and continues to remain ineligible.
4. That subsequent to the imposition of the ban, our Client in 2018, not only accepted the allegations, but also, in unequivocal terms issued his apology with regard to the said charges and his role in it.
5. That since 2012, our Client has not partaken in any activities related to the sport of cricket, and as a result continues to suffer egregiously.
6. That our Client, after having issued his public apology, after having had shown remorse, and after suffering psychologically, financially and emotionally, wrote to you on 21.02.2020, requesting and agitating to partake in the rehabilitation program of Pakistan Cricket Board ("PCB"), an opportunity afforded to his fellow colleagues, so that our Client would be assimilated into the world of domestic cricket again or any variation thereof, so that he may be able to earn his living through the only skill he has honed, known and tirelessly worked for and excelled at.
7. That you in your reply to the said letter, asserted that the penalty and the ban was imposed by the ECB, and by virtue of you being a Full Member of the International Cricket Council ("ICC") not only were required to uphold the decision but were unable to provide any relief or make any decision regarding our Client. Furthermore you in the said letter discussed the interplay between ICC's Anti-Corruption Code ("Code") and National Cricket Federations and the applicability of decisions thereof for all member countries vis-a-vis the Code.
8. That it is noteworthy to mention that the Code is silent regarding players who have been banned for lifetime, as their ineligibly is perpetual, however the Code does provide a mechanism whereby the lifetime ban can be overturned, or wherein the National Cricket Federation, in this case your esteemed office and board, via a written agreement can seek permission from the Chairman of Anti-Corruption Unit ("ACU") to let the ineligible player play domestic cricket, albeit some conditions are met. That Article 6.8 of the Code is reproduced as under for your perusal: "ARTICLE 6 SANCTIONS 6.8 The Chairman of the ACII shall, only after obtaining the prior written agreement of any relevant National Cricket Federation(s) and the prior approval of the ICC Board have discretion to permit Participant who is subject to a period of Ineligibility to participate or otherwise be involved in Domestic Matches at any time prior to the end of that period of ineligibility where in the opinion of the Chairman of the ACU the early reinstatement of such eligibility is warranted by the conduct of the Participant since the period of Ineligibility was imposed, taking into account such factors as the ACU Chairman in his absolute discretion considers appropriate and given the underlying objectives of this Anti-Corruption Code. Such factors may include (without limitation) the fact and timing of any expressions of apology, remorse and/or contrition by the Participant, the Participant's cooperation with ACU education programmes, and/or the Participant's full disclosure of any and all information known to the Participant that may be helpful to the ACU in enforcing the Anti-Corruption Code or in otherwise furthering its objectives. For the avoidance of doubt, the Chairman of the ACU shall not in any circumstances have discretion to reinstate the Participant's eligibility to participate or otherwise be involved in International Matches prior to the end of the period of Ineligibility."
9. That in pursuance of the Article mentioned above, PCB has the authority to write to the Chairman ACU thereof making a request at the behest of our Client to grant him permission to play and participate in domestic cricket, or any related activity thereof.
10. That our Client has shown his willingness to undergo any and all educational, rehabilitative, or any other related programs, nationally and internationally, as cognizant by his conduct and his correspondence with your office on various occasions. That our Client has also met the list the requirements enumerated in the Code.
11. That our Client has suffered unimaginable and incomprehensible hardships, both professionally and personally, and continues to suffer with each passing day. That the singular most unfortunate event of our Client's professional career, has not only left him with regret and deep remorse, but has also renewed his resolve to serve as an example of the grave repercussions which ensue by compromising on integrity. That whilst PCB may have many a programs to instill in its players highest form of integrity, dedication, and honesty, the personal teaching of a past player who has been penalized, castigated and ostracized due to lapse in judgment has more of a powerful affect as a form of deterrence.
12. That our Client has dedicated his life to the game of cricket and has known no other life than being a cricketer. His sole source of income has vastly been affected, all his colleagues facing similar charges have gone through the rehabilitative program, and have been allowed to continue to play cricket. Furthermore, our Client's name has been besmirched, and he is willing to undo the harm, provided an equal and fair opportunity is provided to him.
13. That the principles of justice demand, that you in your capacity as a National Cricket Federation, do the needful and aid in providing your erstwhile participant with another chance to earn his living. It is pertinent to mention that many a lifetime bans have been overturned by the ICC, and therefore the ICC has taken a lenient view if the player has shown remorse, apologized publically and has shown willingness to undergo the rehabilitative program so that he may be allowed to participate in cricket related activities domestically.
14. That it is expected of you that you in your capacity as the National Board will exercise and grant our Client with the same opportunities, treatment and prospects that were granted to all your players and participants in similar positions, and that an equal, fair, unbiased opportunity is provided to our Client.
In light of the above submissions, you are hereby requested to exercise the power given to you under the Code and address the Chairman ACU to grant our Client permission to participate in domestic cricket or activities related thereof as our Client is willing to undergo any and all programs as the same is willing and cooperate to the best of his abilities."
9. The response forthcoming on 08.07.2020 unequivocally expressed the PCB's inability and refusal to accede to the Petitioner's request, as follows: "Subject: REHABILITATION PROGRAM This is in continuation of the Pakistan Cricket Board (PCB)'s letter dated 8th March 2020, the contents of which are reiterated, and in response to your letter dated 11th June 2020 addressed to the Chairman PCB, who has instructed me to respond as follows.
Having studied Mr. Kaneria's case, we are aware that:
1. As a result of the proceedings before a Disciplinary Panel of the Cricket Discipline Commission wherein charges had been levelled against your Client by the England and Wales Cricket Board (ECB), it was determined that Danish Kaneria had 'knowingly induced or encouraged Merlyn Westfield not to perform on his merits in the Durham match' and such act, consequently, brought the game of cricket and cricketers into disrepute. This also brought Pakistan and the PCB into disrepute. The Disciplinary Panel on 22nd June 2012 unanimously concluded that the only appropriate sanction for your Client was that of suspension for life.
2. Being dissatisfied with this decision, your Client Challenged the Disciplinary Panel's Decision before the Appeal Panel of the Cricket Discipline Commission. These proceedings, which turned out to be a complete re-hearing, lasted for approximately six months. The burden of proof was once again on the ECB and after lengthy arguments and submission of evidence by both parties, the Appeal Panel concluded that the ECB had proven to the agreed standard of proof that Danish Kaneria was guilty of the charges levelled against him. The Appeal Panel further found that your Client "was fully aware of and encouraged the details of the arrangements put to Mr. Westfield.
Such conduct is quite obviously such that the game of cricket is brought into very serious disrepute". The Appeal Panel upheld the life ban imposed on your Client stating that a lesser penalty would not be appropriate. The Panel noted that the life ban was intended to not only act as a deterrent for other cricketers but also to ensure that Mr. Kaneria had no further opportunity to damage the game in future.
3. Subsequently in May 2014, your Client appealed against the decision of the Appeal Panel before a commercial bench of the High Court in London claiming that the Appeal Panel had been wrong in upholding the life ban in 2013 and wrong in ordering him to pay the ECB legal costs of GBP 200,000. This appeal was dismissed.
4. Despite having exhausted all legal remedies v. available in respect of his case, your Client then filed an appeal before the Court of Appeal (Civil Division) in August 2014, which was also rejected.
5. Throughout the disciplinary and appeal proceedings, your Client neither made no admission nor expressed any remorse and instead sought to cast blame on others.
6. It was not until after six years of exhausting all legal options available to him and repeated denials that your Client admitted to having committed corrupt conduct under the relevant anti- corruption code.
As explained in PCB's earlier letter dated 8th March 2020, PCB's rehabilitation program is offered to players upon conclusion of the respective periods of ineligibility imposed on them in accordance with terms prescribed under applicable rules. As admitted by you in your letter dated 11th June 2020, the ineligibility of players who have been banned for a lifetime is perpetual. The life ban imposed by the ECB and upheld by all appellate authorities, read with Article 9 of the ICC and PCB Anti-Corruption Code for Participants, means that your Client is ineligible to play cricket under the jurisdiction of any authority affiliated with the ICC worldwide.
The only way the ban could have been overturned was by way of appeal, an avenue which has already been explored and exhausted by your Client on multiple occasions.
You have placed reliance on Article 6.8 of the ICC Anti-Corruption Code; however, you fail to appreciate that this provision is applicable only to periods of ineligibility imposed by the ICC itself under the ICC Anti-Corruption Code, which in this case is not attracted.
Instead, we would like to refer your Client to Article 6.8 of the ECB Anti-Corruption Code for Participants (reproduced below): "6.8 The Chair of the Anti-Corruption Tribunal which has imposed a period of Ineligibility on a Participant (or if such Chair is unavailable, the Chair of the CDC or his/her designee) shall have discretion to permit such Participant to participate or otherwise be involved in Matches at or below the level of Domestic Matches at any time prior to the end of that period of Ineligibility where: 6.8.1 such Participant has made such a request in writing to the Designated Anti-Corruption Official at any time after the conclusion of any applicable appeal proceedings or no earlier than six months after the decision of the Anti-Corruption Tribunal (whichever is later); and 5.8.2 in the opinion of the Chair of the Anti-Corruption Tribunal which has imposed a period of Ineligibility on a Participant (or if such person is unavailable, the Chair of the CDC (or his/her designee)) the early reinstatement of such eligibility is warranted by the conduct of the Participant since the period of Ineligibility was imposed, taking into account such factors as such Chair (or designee) in his absolute discretion considers appropriate and given the underlying objectives of this Anti-Corruption Code. Such factors may include (without limitation) the fact and timing of any expressions of apology, remorse and contrition by the Participant, the Participant's cooperation with official ECB, PCA or other education programmes, and/or the Participant's full disclosure of any and all information known to the Participant that may be helpful to the Designated Anti-Corruption Official in enforcing the Anti-Corruption Code or in otherwise furthering its objectives. For the avoidance of doubt, the Chair of the Anti-Corruption Tribunal or the Chair of the CDC (as applicable) shall not in any circumstances have discretion to reinstate the Participant's eligibility to participate or otherwise be involved in International Matches prior to the end of the period of Ineligibility."
In light of the above, your Client would be better advised to approach the ECB as stipulated in the ECB Anti-Corruption Code for Participants."
10. In the wake of the PCB's refusal to accede to his request, the Petitioner invoked the jurisdiction of this Court under Article 199 of the Constitution, seeking that such conduct be declared as illegal, discriminatory and in deprivation of his fundamental rights and it being prayed that the PCB be directed to indiscriminately implement the PCB Code in the Petitioner's favour so as to induct him in a rehabilitation program and allow him to participate in cricket related activities whilst simultaneously representing him before the ICC for induction into the rehabilitation program under the ICC Code, at its own cost.
11. Despite the Petitioner's correspondence with the PCB having centered around Article 6.8 of the ICC Code, the argument advanced on his behalf by learned counsel instead focused on and remained confined to the like numbered Article of the PCB Code, which similarly prescribes a mechanism whereby ineligible players could be reprieved to the extent of domestic cricket subject to certain conditions being met, with it being argued that the suspension for life imposed on the Petitioner by the Disciplinary Tribunal of the ECB did not come in the way of the Petitioner being rehabilitated to that extent thereunder. In that regard, it was submitted that as the decision against the Petitioner itself clarified that he was henceforth "suspended from any involvement in the playing, organisation or administration of any cricket under the jurisdiction of the ECB", there was thus no embargo on his rehabilitation to the extent of domestic fixtures organized under the aegis of the PCB. Article 6.8 of the PCB Code prescribes as follows.
"6.8 [The [Chairman/Other Relevant Authority as authorised by the Chairman of PCB] shall, only after obtaining- the prior approval of the Board of Governors PCB, have discretion to permit a Participant who is subject to a period of Ineligibility to participate or otherwise be involved in Domestic Matches played under the jurisdiction of the PCB at any time prior to the end of that period of Ineligibility where in the opinion of the Chairman of PCB the early reinstatement of such eligibility is warranted by the conduct of the Participant since the period of Ineligibility was imposed, taking into account such factors as the Chairman of PCB in his absolute discretion considers appropriate and given the underlying objectives of this Anti-Corruption Code. Such factors may include (without limitation) the fact and timing of any expressions of apology, remorse and/or contrition by the Participant, the Participant's cooperation with anti-corruption education programmes run by or on behalf of the PCB and/or the ICC, and/or the Participant's full disclosure of any and all information known to the Participant that may be helpful to the PCB Vigilance and Security Department in enforcing the Anti-Corruption Code or in otherwise furthering its objectives.
For the avoidance of doubt, the Chairman of PCB shall not in any circumstances have discretion to reinstate the Participant's eligibility to participate or otherwise be involved in International Matches prior to the end of the period of Ineligibility.]"
12. It was submitted that although the Petitioner had made a public confession of guilt with the object of showing remorse and promoting deterrence, the PCB failed to consider that aspect and also refused to engage the ECB on his behalf. It was contended that such a refusal to accommodate Petitioner was unreasonable and also amounted to discrimination as, per learned counsel, other cricketers who had similarly been censured for corrupt conduct had nonetheless subsequently been given another chance by the PCB to undergo rehabilitation.
13. Conversely, learned counsel for the PCB pointed out that as per Article 9.2 of the ICC Code, the sanctions of a domestic disciplinary board were to be universally upheld by all other boards; hence the life suspension of the Petitioner was to equally be given effect by the PCB. Furthermore, attention was invited to Article 6.5 of the ICC Code and the analogous Article 6.5 of the PCB Code, which provide that: The ICC Code 6.5 No Participant who has been declared Ineligible may, during the period of Ineligibility, play, coach, officiate or otherwise participate or be involved in any capacity in any Match or any other kind of function, event or activity (other than authorised anticorruption education or rehabilitation programs) that is authorised, organised, sanctioned, recognised or supported in any way by the ICC, a National Cricket Federation, or any member under the jurisdiction of a National Cricket Federation, or receive accreditation to provide media or other services at any official venue or Match. National Cricket Federations shall take all reasonable steps within their powers to give effect to this Article 6.5 to the extent that they have the jurisdiction, power or ability to do so.
The PCB Code "6.5 No Participant who has been declared Ineligible may, during the period of Ineligibility, play, coach, officiate or otherwise participate or be involved in any capacity in any Match or any other kind of function, event or activity (other than authorised anti-corruption education or rehabilitation programmes) that is authorised, organised, sanctioned, recognised or supported in any way by the ICC, a National Cricket Federation or any member under the jurisdiction of a National Cricket Federation, or receive accreditation to provide media or other services at any official venue or Match. The ICC and other National Cricket Federations shall take all reasonable steps within their powers to give effect to and enforce this Article 6.5 in their respective geographical jurisdictions to the extent that they have the jurisdiction power or ability to do so."
14. It was emphasized that till such time as the Petitioner's life was lifted by the ECB, he remained ineligible to be associated with cricket in any capacity, and any aberrant act would render the PCB a pariah to foreign boards and players, who would shun any domestic event in which the Petitioner was permitted to participate.
15(sic.) throughout remained obdurate in contesting the charges against him and had only come forward to- make an admission of guilt after exhausting all available legal challenges to the decision made against him by the disciplinary panel, and such conduct did not demonstrate any real degree of contrition. He drew attention to the order of the Disciplinary Panel of the Cricket Discipline Commission of the ECB, where it was noted that "Kaneria has made no admission, has shown no remorse and sought to cast blame on other plainly innocent persons."
16. Having considered the arguments advanced in light of the prevailing life suspension against the Petitioner and relevant provisions of the Codes, it comes to the fore that the factors that may be taken into consideration for purpose of determining whether the discretion under Article 6.8 to allow reinstatement of eligibility to an otherwise ineligible participant to the extent of domestic matches include the fact and timing of the expression of apology, remorse and/or contrition and cooperation otherwise shown. However, as pointed out, the chronology of events marking the case of the Petitioner reflects that he did not make any admission until coming forward to confess his involvement in the affair through a privately arranged interview more than six years after exhausting the legal options otherwise available to him.
17. Furthermore, and more fundamentally, it is manifest that Article 6.8 has to read in the context of Article 6 as a whole. What emerges from a holistic reading of that provision is that the 'Ineligibility' envisaged should be such as has been imposed upon a participant as a sanction under the PCB Code by an Anti-Corruption Tribunal constituted by the PCB, whereas the Petitioner was admittedly suspended for life by a disciplinary panel constituted by the ECB under its own Code, which continues to date so as to maintain his ineligibility.
18. As such, Article 6.8 does not confer discretion on the functionaries of the PCB to grant a concession in a case such as that of the Petitioner. Ergo, the stance of the PCB appears to be well founded and we see no irrationality or unreasonableness afflicting the determination that the rehabilitation of the Petitioner cannot be considered during the subsistence of his suspension, and that only the ECB may consider granting any concession in that regard whilst determining whether the Petitioners conduct adequately reflects the due element of remorse.
19. The plea of discrimination also appears to be misconceived, as no instance of any participant similarly placed to the Petitioner in terms of suffering a life suspension being rehabilitated by the PCB was cited, and the only examples forthcoming were of players who had been handed down lesser bans for a defined period by either the ICC, PCB, or another national board, as the case may be, and had then resumed their participation in the game after commencing rehabilitation upon lapse of that period or after the sanction was otherwise lifted by the imposing authority.
20. That being so, the Petition fails and stands dismissed accordingly.
1. The Petitioner played 61 Tests for Pakistan between 2000 and 2010 and took 261 wickets at an average of 34.79. Between 2001 and 2007 he played 18 ODIs and took 15 wickets at an average of 45.53. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.