FUNDAMENTAL GUARANTEES OF THE RIGHTS OF THE ACCUSED IN THE ISLAMIC CRIMINAL JUSTICE SYSTEM

Abstract

The Islamic criminal justice system provides fundamental guarantees to the accused. The 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 the 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, the Islamic criminal law has provided basic guarantees to an 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 (shubhah) in cases of Íudood 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 the Islamic criminal law that has provided excellent procedural requirements to guarantee the rights of the accused. Books of the 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 the Islamic criminal justice system.