Shari’ah law recognizes the fundamental premise of innocence until proven guilty, and
the need to be found guilty through definitive evidence. As the Qur’an states:
‘Why did not the believers - men and women - when they heard of the affair, - put the best construction on it in their own minds and say, "This (charge) is an obvious lie"? Why did they not bring four witnesses to prove it? When they have not brought the witnesses, such men, in the sight of Allah, (stand forth) themselves as liars’ (Verses 24:12, 24; 13). This is the famous maxim that encapsulates the presumption of innocence (Alborno 1991 p.179). In Islam the accused is considered innocent until evidence has been brought which shows his guilt, or until he admits the charge. The basic principle is that human beings are born innocent and have the right to be treated as such (Kamali 2008 p.181). The presumption of innocence is also guaranteed in the ACHR Art. 16, ICCPR Art.14 (2) & ECHR Art.8 (1).
In Islamic law, all scholarly interpretations (Alhanbly, Almaleky, Alhanfy and Alshafaey) agree that a defendant cannot be compelled to give a confession, also that the accused has the right not to speak. A confession cannot be taken under force; otherwise the confession is not admissible. A confession, once given, can be withdrawn, even after the sentence has been passed or during its execution (Kamali 2008 p.183). Ibn Taymiyyah (1328) wrote that, at the time of the Prophet, a woman in Medina had a bad reputation as regards her sexual conduct, so much so that the Prophet said concerning her: ‘If I were to stone anyone without evidence, I would have stoned this woman’ However, even given her bad reputation, as there was no evidence, he did not condone the punishment Ibn Taymiyyah also quotes a statement of the caliph ‘Umar ibn Al-Khattab to the effect that no one may be punished on the basis of suspicion and mistrust’ (ibid.,).
In Islamic law a person who does not have full possession of his faculties cannot make a legally admissible confession. A judge must revise any confession carefully and not accept it until he/she is fully sure it is correct and lawful. For a confession to be accepted, the defendant must not only admit to the category of crime, but must provide relevant
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details to support his/her assertion of guilt. The requirements are strict for the acceptance of confessions as there is a higher spiritual justice than the justice in the courts that is recognized by Islamic law. A Muslim believes that if a guilty person hides the truth and the courts cannot prove his/her guilt, he/she still would be punished by God; even if punishment by man may not be possible (Kamali 2008 p.183).
This principle stems from the following words of the Prophet: “The burden of proof is on him who makes the claim, whereas the oath is on him who denies” (Al-Hanbly 2001 p.226). In Islamic law, it is very difficult to prove a crime and, if there remains any doubt as to whether the defendant had committed the crime, it is not possible to punish him as the defendant might face a severe punishment. For that reason, it is almost impossible to prove the guilt with a suspicion. The Prophet’s sayings encourage the judge to pay attention to cases of doubt: “Avert huddud punishments by suspicions or doubts and if the accused has a way out, release him, it is better for the judge to pardon erroneously than to punish erroneously’’ (Al-Hanfy1997 p.25 No.5522).
To conclude, Shari’ah does not included detailed rules with regards to the right against self-incrimination. However, this right can be inferred from two principles: the principle of innocence and the prohibition of subjecting the accused to coercion to make him confess.
2. 5 Non- Discrimination in Shari'ah.
Islam not only recognizes absolute equality between men, irrespective of any distinction of colour, race or nationality, but also makes it an important and significant principle, a reality. The Holy Qur’an states:
“Mankind, we have created you from a male and female" In other words all human beings are siblings to one another. They all are the descendants from one father and one mother. "And we set you up as nations and tribes so that you may be able to recognize each other" (49:13). This can be interpreted as meaning that although there are social and cultural divisions among human beings which it is important to acknowledge, no one race
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or culture should presume superiority over another, nor refuse them their rights. "Indeed, the noblest among you before God are the most heedful of you" (49:13). Superiority can only be on the basis of spirituality and moral integrity; and even this in no way justifies oppressing others even if they are perceived as ‘less pure’. It is immoral to assume airs of superiority and runs counter to the principle of equality integral to this verse (A’la Maudude1995 p.20). ACHR reflects this right in Art. 3.
This has been exemplified by the Prophet in one of his sayings thus: "No Arab has any superiority over a non-Arab, nor does a non-Arab have any superiority over an Arab. Nor does a white man have any superiority over a black man or the black man any superiority over the white man. You are all the children of Adam, and Adam was created from clay". A’la Madude comments that this shows how Islam holds that there ` should be absolutely no discrimination based on colour, ethnic group, nationality, gender, wealth or creed and that equality is seen as a God-given birthright (1995p.20). This reflects the ICCPR Art.26 & ECHR Art.14.
2.6. The Right to Privacy.
Islamic legal ideas value privacy very highly; in the words of the Prophet: ‘Do not enquire into the affairs of others; do not spy on one another; do not outbid one another; do not envy each other; do not hate one another; do not shun one another; be as fellow- brothers and servants of Allah’ (Alsafreny 1993 p.271).
The right to a private life is strongly supported by Shari’ah Law, even if an offence has been committed. The command ‘Spy not’ in the Qur’an is clarified by the Prophet (P.B.U.H) who said, “Do not be on the lookout for slips made by believers. For he who is eager to show up the shortcomings of a fellow believer will find that God shows up his faults and humiliates him before others, even though his ill deeds were performed in the secrecy of his own home”. This means that spying on someone is not permitted even if there is a strong probability that there is wrongdoing within the person’s home (Daneshyar & Chambers 2003 p.13). The right to privacy is also encapsulated in the
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ACHR Art.21 and guaranteed in ICCPR Art.17 & ECHR Art.8. There is no better illustration of this point than the incident involving the second Caliph Omar who committed the sin of spying on someone he suspected of debauchery. He had broken into the man's property and the man confronted him saying that this was a breach of God's commandments, upon which the Caliph apologised and left. (Daneshyar and Chambers 2003 pp.13-14). Daneshyar & Chambers comment that this incident demonstrates Islam’s attitude to the right to privacy and to freedom of expression without fear of reprisals. This is in contrast to the behaviour of many Muslim States which profess to follow Shari’ah Law but feel that it is permissible to place monitoring devices in the homes of private citizens merely on the suspicion of the police. This is also done in nations that pride themselves with being democratic and freedom loving (2003 p.14).