Fundamental Guarantees of the Rights of the Accused in Islamic Criminal Justice System
Hamdard Islamicus, Vol. XL, Issue No. 4 (Oct-Dec 2017), pp. 45-65.
21 Pages Posted: 1 Jan 2018 Last revised: 22 Jul 2018
Date Written: December 25, 2017
Islamic criminal justice system provides fundamental guarantees to the accused. Islamic criminal law presumes the accused innocent unless proven guilty. In addition, Islamic criminal justice system has provided many safeguards to the accused that are always upheld during detention, investigation, trial, and post-trial. These rights are: 1) the right of each person to the protection of life, honour, liberty and property; 2) the right to due process of law; 3) the right to a fair and public trial before an impartial judge; 4) confrontation and cross-examination of accusers and witnesses; 5) freedom from compulsory self-incrimination; 6) protection against arbitrary arrest and detention; 7) prompt judicial determination and; 8) right of appeal. Thus, Islamic criminal law has provided basic guarantees to the accused person. First, he should not be charged under the principle of legality. If charged, he has many defences, especially under the doctrine of uncertainty (shubha) in cases of hudood and homicide. He has rights during the investigation of the crime and his right to honour and privacy are more important even if it means forgoing an investigation and thus permitting a crime to go unprosecuted and unpunished. The trial has to be fair and the cross-examination of accusers and witnesses is a must. The accused cannot be incriminated by the court during the trial or during the investigation. Upholding these principles mean that the rights of the accused are fully guaranteed under Islamic criminal law and that Islamic criminal law has provided excellent procedural requirements to guarantee the rights of the accused. Books of classical Islamic law do not focus on the basic principles of Islamic law. Those that exist are either mentioned in a separate chapter devoted to a specific crime or they must be found by deduction. Adhering to these principles is intended to avoid a miscarriage of justice under Islamic criminal justice system.
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