Thursday, January 31, 2008

The Harbhajan verdict: Why Level 2.8 charge against him fails to carry conviction

I had suggested in my last post that the speculation that Harbhajan Singh might be imposed only fine in lieu of match-ban by the Appeals Commisioner Justice John Hansen was wrong because for a level 3.3. offence -which Singh was found to have committed by the Adjudicator, Mike Procter - the penalty is only match-ban and not fine. I also suggested that it was possible to substitute harsh penalty with a lighter one, if it pertains to the same class of offences, by reducing the finding of severity or seriousness, but it is not possible to substitute one serious offence with another minor offence, so as to mitigate the penalty.

Well, I have been proved wrong, because, I did not anticipate that Justice Hansen would be confronted with a statement of agreed facts, and an admission from Symonds himself that he did not consider Singh's offence as a level 3.3. offence.

Having said that, I must add that I am not comfortable with Justice Hansen's reasoning.

His finding that the allegation of Level 3.3. offence against Singh fails because of the reasons he cited is persuasive.

However, his finding that Singh committed Level 2.8 offence on the basis of his own confession that he used offensive language against Symonds appears to be on a weaker foundation.

Let's for instance, accept that Singh used teri ma ki. The words are offensive in India, and would have been found offensive to any reasonable and ordinary person in India. But in Australia? Symonds and other Australian players, as Justice Hansen himself found out, did not understand the language at all, though Symonds admitted the words could have been probably used by Singh. Justice Hansen recognises the cultural differences that characterised this exchange between Singh and Symonds, but he was perhaps reluctant to take these cultural differences to their logical conclusion. In Paragraph 51, he says offensive language is to be gauged by its effect on a reasonable or ordinary person, that is, not in terms of the intentions of the user of offensive language, in this case, Singh. How does Justice Hansen treat the reasonable or ordinary person in India and Australia alike, overlooking the cultural and linguistic differences, which could result in different levels of comprehension of an expression?

In Paragraph 56, Justice Hansen accepted the claim of the Counsel for Cricket Austrialia that Symonds took Singh's language to be offensive and seriously insulting, but did not consider it falling under Level 3.3. Justice Hansen failed to ask the Counsel, Mr.Ward, how he could have found the language offensive, when he did not understand the meaning of teri ma ki.

Thus by Justice Hansen's own reasoning, applying the balance of probability standard - rather than the standard of beyond reasonable doubt - the level 2.8 charge against Singh must have also been found to be not proved. After all, the Australian side found the language offensive because it felt it was racial. Once it was found that it was not racial, then the basis for it being called offensive also disappears.

To be precise, the level 2.8 charge was Justice Hansen's inference, and not born out of an allegation from Australian players, thus raising the question whether his judgment met the ends of justice.

UPDATE: PLEA BARGAINING THROUGH THE BACK DOOR?: I maintain that Justice Hansen's reasoning in finding Singh guilty under Level 2.8 is flawed. But I don't condone BCCI's desperation to remove the racial slur. ICC Conduct Rule 5.6 clearly says Plea Bargaining is not permitted. However, by confessing to have uttered the offensive word, (which he has not done so before Procter) has not Harbhajan Singh plea bargained, and invited a lesser kind of penalty from Justice Hansen? Rule 5.6 clearly circumscribes the powers of the Adjudicator. Justice Hansen,as Appeals Commissioner, however, appears to have expanded his discretionary powers inexplicably, and allowed plea bargaining by Harbhajan Singh, without actually calling it so. Obviously, the ICC Conduct Rules need clarity and fine-tuning.
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