Traditionally, Shari’ah in law administered by the
court of a single qadi, who was the judge of the facts as well as the law,
although on difficult legal issues he might seek the advice so professional
jurist, or mufti. There was no hierarchy of courts and no organization system
of appeals. Through his clerk (katib) the qadi controlled his court procedure,
which was normally characterized by a lack of ceremony or sophistication. Legal
representation was not unknown, but the parties would usually appear in person
and address their pleas orally to the qadi.
Procedural safeguards are prescribed neither in Koran
nor in the Sunna, but are left to the discretion of the ruler who is
responsible for the public welfare. The ruler’s formulation of procedural rules,
however, is guided by various koranic principles.
Special following matters are considered to adjudicate
any cases in Islamic Law:
a) Respect
for the individual is the central precept of Islam.
b) Free
men are equal before the law and are entitled to equal protection from the law.
c) Judicial
and governmental decisions must conform to the Shari’a. A governmental or
judicial decision must be consistent with the Shari’a: otherwise it is a
nullity.
d) Law
is not to be applied retroactively.
e) The
accused is presumed innocent until proven guilty.
f) Punishment
fits the crime. The individual is to be punished in accordance with the harm
inflicted upon humanity, society, and God. The penalties for Hudud offences are
specified in the Koran. Quesas require an equivalence between the crime and its
punishment. The punishment of Ta’azir is usually guided by community consensus
(Ijma) by custom (Al-urf), or by analogy to offenses with fixed penalties (Qiyas).
The stages of Proceedings which are followed as bellow:
Jurists agree that based on Shari’s principles, the
accused is to be free from pre-trial detention, is not to be compelled to confess,
is to be given the opportunity to be represented by an attorney, and is to be
free from warrantless searches and seizures.
1. Pre-Trial Detention
The
system of pre-trial detention and release on monetary bail is generally not
recognized in the Shari’s Islamic jurists appear to agree that the accused
should not be detained prior to trial. Pre-trial detention also interferes with
an individual’s freedom of movement which is protected by the Koran: “It is He
who made the earth submissive to you; therefore walk in its tracts, and eat of
His provision.”
2.
Pre-Trail
Interrogation
As
under the common law, the accused has the right to refuse to answer questions and
the accused’s silence may not be used as evidence of guilt. The Koran
explicitly prohibits the use of beatings, torture, or inhuman treatment to extract
a confession. This type of treatment violates the dignity of accused, results
in a loss of confidence in the Islamic system of justice, and creates a risk of
false confessions. The use of torture is a sin.
3.
Right
to Present Evidence and to Assistance of Counsel
The Islamic criminal
justice system recognizes the right of both the plaintiff and the accused to
present evidence at trial and to have the privilege of being represented by
counsel during pre-trial interrogation, at trial, and, upon conviction, at execution
of the sentence. The privilege of counsel is based upon the Islamic theory of “protected
interest” which guarantees an individual’s freedom of religion; the right to 
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