Muslim jurists indicate that the delay of evidence in a criminal trial renders the evidence uncertain and prevents the application of penal punishments.[i] The overlong subjection of detainees to pending criminal cases will not go overlooked under a Shariah-based system, in which the prompt presentation of evidence is essential to sustaining a punishment and a delay with confessions or testimonies can render the evidence inadmissible and doubtful.[ii]
As far as the rights of the accused under Islamic laws of criminal procedure are concerned, the classical scholars of Islam have maintained that this is subsumed under the category of delegated interests, left to the ruler’s discretion, so long as the objectives of Islamic law are complied with. Throughout many periods of Islamic rule, several offices were entrusted with the responsibility of distributing criminal justice, including the office of complaints (Mazalim), the market inspector, judge etc.[iii] The political authorities are granted the means to apprehend offenders and bring them to justice. Historically, the procedural system used in criminal cases featured a system of accusation and investigation and a combination of these systems were employed by Islamic states in different stages of history.[iv] Like other legal systems which have evolved, under Shariah law, the indictment of an individual is considered to limit the rights and freedoms of the accused, yet the Shariah contains precedents which forestall any unlawful abuse of an accused person’s rights. Awad notes:
“His primary right is the right to lawful defence, which attaches independently by virtue of the mere fact that he is the accused. Secondary rights are related to the powers which are granted to the examination or investigative authority and represent the restrictions placed upon these powers”.[v]
As far as the accused is concerned, the restrictions which the Shariah places on the power of investigators amount to guarantees which can be classified as rights.
Regarding the scope of preventive detention, Muslim jurists understood the concept of habs (imprisonment) as an act depriving another of liberty and therefore proceeded with concern when ensuring the legality of any arrest. The eminent 11th century Shafi’ jurist Abu’l-Hasan al-Mawardi believed the period of imprisonment to be undetermined by Shariah law and left to the judge’s discretion. However, he is considered to give preference to the view which restricts a judge’s authority and favours the more lenient treatment in relation to the accused.[vi] Since Prophet Muhammad referred to those in a state of detention as prisoners, it established another precedent in Shariah law, that the accused shall be maintained at the expense of the state.[vii] According to Ibn al-Qayyim, detention implied “preventing the individual from dealing with others in any way that would lead to their being harmed”.[viii] Furthermore, when we consider how many Muslim scholars of the past categorized detention under the same bracket as penal punishments, Islamic law makes an important admission in suggesting that mere suspicion is not substantial grounds to warrant arrest and detention. It is a shame that the very same principles, lauded by the criminal justice systems in the west, are consistently breached. An example is what Human Rights Watch identified in 2004, as the disproportionate use of the powers of arrest in the British authority’s dealings with Muslims under the government’s anti-terrorism acts.[ix]
In recent years, the confidence of British Muslims in the UK criminal justice system has been significantly undermined. Cases such as Babar Ahmad, who was subjected to repeated physical assaults and religious insults during his arrest; the botched terror raid in East London, where two brothers-one of them shot in the chest during the raid-were released without charge following eight days in police custody; and a general perception that Muslim communities are being policed by the security services has raised question marks regarding the balanced consideration between liberty and security. Anne Costello, an activist with the Campaign Against Criminalising Communities observed, “It is surely not hard to see that the first scenario (‘prioritising security’) aggravates the initial problem whilst the second (‘prioritising justice’) has at least some prospect of reducing it”.[x] The general scrutiny and provisions permitted by Shariah law relating to the treatment of accused or suspicious individuals could certainly have avoided the gross human rights violations in the above cases. Regarding the anti-terrorist operation in Forest Gate back in 2006, The Observer reported that “the police had voiced concerns over the credibility of the sole informant who had provided the ‘intelligence’ that prompted the raid”.[xi] Members of the British intelligence would benefit from reflecting on the following incident related by Abdul Rahman ibn Awf, who narrates:
One night, I was on guard duty with ‘Umar ibn al-Kattab in Medina. We noticed a night-light through an open door, where we heard the loud and noisy voices of some people. ‘Umar said: “This is the residence of Rabi’a ibn ‘Umayya ibn Khalaf, and they are drunk. What do you think?” I said: “I think we have done a forbidden act. God has stated: Do not spy and we have.”’Umar left them alone.
Given the lack of credible intelligence in the Forest Gate raid-despite the brothers being under surveillance for two months and an intelligence indicating a threat of chemical weapons-under the Shariah, both Mohammed Abdul Kahar and Abul Koyair would have been spared the ordeal of arbitrary arrest and detention, due to unsubstantiated evidence which fails to satisfy the Islamic requirements of legitimate and incriminating evidence, regardless of whether the individuals are of a mildly suspicious character. According to Islamic legal theorist Taha Jabir al-Alwani,
“One’s previous record of having transgressed or being accused is not sufficient to violate the sacredness of his/her person or privacy in the absence of hard supporting evidence. This view was upheld by Umar when he refrained from spying on Abu Mihjan al-Thaqafi and Rabi’ah ibn Umayyah, for both were well known for their love of strong drink…Based on these principles, the Shariah does not allow the searching of a person or of one’s home, the surveillance of personal conversations, the censorship of personal mail, and the violation of one’s private life unless there is legally valid evidence to show his/her involvement in a crime”.[xii]
While these traditions establish the prohibition of spying, we can also consider Muhammad’s practice of inquiring after the welfare of prisoners and how the Caliph Ali would visit prisons to take heed of complaints by inmates and to thoroughly inspect the prison’s condition[xiii] thus demonstrating Islamic law’s commitment to an individual’s inviolability. With the right to a fair trial within a reasonable time and safeguards for the accused a cornerstone of criminal procedure in Islamic law, Orientalist views that Islamic criminal justice operates without constitutional protections[xiv] are misinformed.
Article 14 (3) (d): Effective legal representation
Article 14 (3) (d) grants the right for the accused:
“To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”
Islamic law also recognizes the right to defence via effective legal representation. Too often, this right has been denied to litigants and accused parties standing trial under the supposedly Islamic criminal justice systems in the Muslim world. Selected Muslim states serve as relevant case studies when exploring whether the practice of legal representation is observed. A good case in question is Saudi Arabia, who despite acknowledging this right in Articles 59 and 62 of Administrative Rules of Procedure of Judicial Bodies,[xv] nonetheless has been criticised for lacking the necessary political will and vision to guarantee that the provisions are practically implemented.[xvi]
The Republic of Nigeria is also a worthwhile study, which has 12 states implementing Islamic criminal law. It is concerning however, that in many high profile trials adjudicated in the Shariah courts, defendants were denied representation by legal counsel, stirring up a human rights fury. The highly publicized Amina Lawal case generated a storm of controversy when she was sentenced to death by stoning in March 2002. Once again, Nigeria’s Shariah penal code was the subject of criticism, since Ms Lawal had no legal representation in her trial, despite this right being provided for under Section 36 (1) of the Nigerian constitution.[xvii] Despite the judgement being rendered in favour of Ms Lawal following appeal to the court of appeal in Katsina and her conviction being overturned, the substantial media and human rights campaign in her support left many with the impression that Nigeria’s Shariah courts were culpable for the unconstitutional practice.
It is unfortunate that there is a widespread ignorance in the legal and human rights communities about the procedural right under Islamic law, namely, the right to effective legal representation. According to Abdullahi Ahmed An-Na’im, professor of law at Emory University,
“…in view of the increasing technicality of substantive and procedural criminal law, the accused person is generally said to be entitled to the benefit of expert legal advice in confronting the case for the prosecution and presenting his or her own defence”.[xviii]
As is the case with positive law, the right of the accused to be represented by an attorney is enshrined in Islamic legal practice and its denial under any circumstances is prohibited. This is reflected in the canonical traditions of Islam. It has been narrated that Caliph Ali was unfavourably disposed to litigation and would appoint Ukail ibn Abi Talib as a representative.[xix] It is worth noting that since court sessions were public in the history of Islam, the right to engage counsel is not explicitly contained in the books of Islamic procedural law, such as adab al qadi (etiquette of judges). This omission should not be taken as evidence that Islamic law fails to recognize effective legal representation as a significant procedural means. For example, a very important incident is related by al-Khashini, in his History of the Qadis of Qurtuba:
“…two men brought their dispute before Ahmad ibn Baqi. Believing that one of the disputants seemed to know what he was talking about while the other (who appeared to be honest and truthful) did not, he advised the latter to find someone to speak on his behalf…”[xx]
There are other reasons besides those presented, as to why the right to engage council is imperative as far as the Shariah is concerned. A consideration of the three main categories of criminal offenses under Islamic law (hudud, qisas and ta’zir) will help to clarify.
[To be continued]
[i] See Salama, M.M.‘General Principles of Criminal Evidence in Islamic Jurisprudence’, in Bassiouni, M.C., (ed.), The Islamic Criminal Justice (1982), p. 113-115
[iii] Awad, M.A. ‘The Rights of the Accused under Islamic Criminal Procedure’, in: Mahmoud
Cherif Bassiouni (ed.), The Islamic Criminal Justice System, London/Rome/New
York1982, 91-107, (97).
[iv] Al-Alwani, J.T. ‘Judiciary and Rights of the Accused in Islamic Criminal Law’, in Tahir Mahmood (Ed.) Criminal Law in Islam and Muslim World: A Comparative Perspective(Institute ofObjective Studies,New Delhi), p. 267
[v] Awad, M.A., op.cit.: p. 94
[vi] Awad, M.A., op.cit.: p. 103
[vii] Al-Alwani, J.T., op.cit.: 268
[viii] Ibn al-Qayyim, ‘al-Turuq al-Hukmiyah’, p.101, 103
[ix] Abbas, T. (2011), ‘Islamic Radicalism and Multicultural Politics: The British experience’. Routledge, p. 157
[x] Costello, A. (2007), ‘Balancing Security Versus Liberty: The Wrong Scales Or The Wrong Question?’, in Arches Quarterly, Vol 1, Ed (1), 2007, p. 25
[xii] Al-Alwani, J.T., op.cit.: p. 272
[xiii] See Abu Yusuf, Kitab al Kharaj and its commentary Fiqh al-Muluk, vol 2, 238
[xiv] Farrar, S.A. (2003) “Islamic jurisprudence and the role of the accused: a re-examination”, 23(4) Legal Studies, p. 587-604
[xv] See K.S.A. Ministry of Foreign Affairs, Protection of Human Rights in Criminal Procedure and in the Organization of the Judicial System (2000)
[xvi] Baderin , M A. (2006), “Effective Legal Representation in “Sharī’ah” Courts as a Means of Addressing Human Rights Concerns in the Islamic Criminal Justice System of Muslim States”, In: Cotran, Eugene and Lau, Martin, (eds.), Yearbook of Islamic and Middle Eastern Law (2004-2005). Brill, p. 158-159.
[xviii] An-Na’im, A.A. (1990), ‘Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law’, Syracuse University Press, p. 102
[xix] See al-Bayhaqi, A., ‘Kitab al-Sunan al-Kubra’ (Arabic) (1925) 26 cited in al-Saleh, O.A. ‘The Rights of the Individual to Personal Security in Islam’ , p. 81
[xx] See Al-Khushini, Tarikh Qudat Qurtubah (Arabic) cited in Al-Alwani, J.T., op.cit.: 275