An Appraisal of the Nature of Islamic Criminal Procedure: Whether Adversarial or Inquisitorial?
DOI:
https://doi.org/10.53762/alqamar.07.01.e02Keywords:
Adversarial; Criminal Procedure; Ḥudūd; Islamic Criminal Procedure; Inquisitorial; Nature; qiṣāṣ; siyāsah; violation of right; ta‘zīrAbstract
Criminal procedure is criminal justice in action. Islamic Criminal law (ICL) is being enforced through western procedural systems known as adversarial and inquisitorial which makes significant anomaly in the application of ICL. Enforcement of ICL without accompanying Islamic rules of procedure is arguably to practice ICL incompletely, inaccurately, and indeed un-Islamically. As the substantive ICL is different in its form and substance, the Islamic Criminal Procedure (ICP) is also different than the western procedural models. The ICP has many independent features which are not available in any other law. The classification of offences in ICL is linked with violation of rights; of Allah, of the individual and of the society. The kind of right violated determines the rules of procedure. Furthermore, Islamic law operates within two spheres; fixed and flexible. The Muslim jurists worked on fixed part whereas care of flexible part is left in the hand of rulers. Although the rules of ICP can be found in Qur’ān & Sunnah – primary sources of Islamic law - and in classical Islamic jurisprudence but neither the classical nor the contemporary Muslim scholars set out formal code of ICP (templates) corresponding code of procedure of modern-day. By applying qualitative research methodology, this article aims to examine the nature of ICP whether adversarial or inquisitorial while examining its salient features. It discusses classification of ICP and analyzes legal consequences of its various kinds. Scientific study of ICP can play vital role to direct our ongoing revamping process of criminal justice in the right direction with the aim to make the system efficient and cost-effective in the delivery of expeditious justice.
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Ibid., 4.
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The view of the majority of Muslim jurists regarding to all the rest of the ḥudūd crimes except ḥirābah, is that punishment could not be suspended by the way of repentance when reported to the authorities. The minority view is that “repentance suspends the ḥudūd punishments generally.
Muhammad Hashim Kamali, Crime and Punishment in Islamic Law: A fresh Interpretation, (New York: Oxford University Press 2019), 27. During the period of Maoist (1949 – 1976) in China, the CJS was unique based on basic principle of “leniency with those who confess and severity with those who resist.” The attitude of the offenders was one of the pertinent factors for determination of sentence. A more severe sentence resulted in case of any attempt to appeal against conviction. The spirit of this principle appears to run through-out the criminal process, though it is not formally incorporated in the criminal justice codes.
Qur’ān 5:38-39. Naturally repentance and reforms come as a result to advice, enlightenment and education therefore, punishments should not be hastily carried out and time should be given even some positive incentives on the selective basis for this purpose. See Kamali, Crime and Punishment in Islamic Law p. 29.
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Restorative is very recent concept in the penal philosophy and the United Nations promoted it globally while introducing restorative standards as part of the international human rights law.
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Ibid., 41.
Carrie Menkel-Meadow, “The Restorative Justice: What Is It and Does It Work”, Annual Review of Law and Social Science (2007), 163. pp. 161-187.
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Qur’ān 4:135, translation by Syed Abul Ala Maududi.
Kamali, “The Right to Personal Safety and the Principle of Legality in the Shariah”, 262.
Qur’ān 4:105, translation by Muhammad Taqi Usmani.
Abu Dawud, Sunan, hadith No. 3583.
Kamali, “The Right to Personal Safety and the Principle of Legality in the Shariah”, 261.
see Nyazee, General Principles of Criminal Law: Islamic and western, (Islamabad, Shariah Academy, 2007), 70-71.
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Muhammad Mushtaq Ahmed, “The Crime of Rape and Hanafi Doctrine of siyāsah”, Pakistan Journal of Criminology, Vol. 6, No.1, (2014), 173.
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Ibid., 71.
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See Section 499 and 500 of the Pakistan Penal Code, 1860.
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Ibid., 31.
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Section 2 (b), Offence of Zina (Enforcement of the Hudood) Ordinance 1979.
Ala’ al-Dīn, Abū Bakr b. Mas‘ūd al-Kasānī, Bada’i‘ al-Sana’i‘ fi Tartib al-Shara’i‘, eds. ‘Ali al-Mu‘awwad and ‘Adil ‘Abd al-Mawjūd (Beirut: Dar al-Kutub al-‘Ilmiyyah, 2003), 9:177.
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Ibid., 14.
Ibid., 15.
‘Ala al-Din Abu Bakr b. Mas’ud al-kasani Badai al Sabai fi Tartib al-Shariah, (Beirut: Dar Al-Kotob Al-Ilmiyah 9:248.
See Section 299 (l), Pakistan Penal Code, 1860.
Muhammad Amin Ibn Abidin Ash-Shami, Radd al-Muhtar, (Beirut: Dar Al Kotob Al-Ilmiyah), 6:123-24.
Ahmad, “Significant Features of the Hanafi Criminal Law”, p. 1-7.
Ibid., 54.
Zayn al-Abidin, Al-Bahr Al-Ra’iqSharhKanz al-Daqaiq (Beirut: Dar al-Ma’rifah, n.d.), 5:11.
Ahmad, “The Doctrine of Siyasah in the Hanafi Criminal Law ....”, 30.
Nyazee, General Principles of Criminal Law: Islamic and western, 66.
Ibid., 66.
Ibid., 68.
Example of this situation can be found in ḥudūd Ordinances enforced in Pakistan, in which two male witnesses are not required in case of ta‘zīr and case can be proved through the testimony of one witness, even the witness is a female.
Muhammad Amin b. Abidin al-Shami, Majmu’at al Rasa’il (Damascus: al-Matba’ah al-Hashimiyyah, 1325 AH), 1:348-357.
Ahmad, “Significant Features of the Hanafi Criminal Law”, 1.
Ibid., 7.
Al-Mawardi mentioned that petition is necessary in all those cases where rights of the people are affected however, in ḥudūd cases, Qadi can initiate proceeding acting on his own without any complaint from any private person and can examine the case alone however he mentioned that according the Abu Hanifa, neither the qadi can initiate the proceedings in ḥudūd without a specific demand nor he can examine the case alone without recourse to him by a plaintiff. See Abu’l Hassan al-Mawardi, Al- Ahkam as-Sultaniyyah (The Laws of Islamic Governance), translated by Asadullah (London: Ta-Ha Publishers Ltd.). 107-08.
However, in qadf and sariqah, the jurist created two exceptions where complaint is necessary from the affected persons. See Ahmad, “Significant Features of the Hanafi Criminal Law” 16.
Ibid, 7.
The condition of four witnesses is mention explicitly by the Qur’ān in the verses 4:15 and 24:4.
Section 8 of the Offence of Zina Ordīnance.
Ahmad, “Significant Features of the Hanafi Criminal Law” 6.
Nyazee, General Principles of Criminal Law, 146-47.
Ahmad, “Significant Features of the Hanafi Criminal Law”, p. 8. Generally, the courts in Pakistan considered the notion of Shubhah equivalent to the notion of ‘benefit of doubt’ which is incorrect and misconception of the courts. Even this wrong presumption was applied by the Federal Shariat Court in Hazoor Bakhsh case. See PLD 1983 FSC 1.
Nyazee, General Principles of Criminal Law, 146-47.
Some mistakes of fact are considered as mitigating factors in English law; however, mistake of law is not deemed valid defense. See Sec. 79 of the Pakistan Penal Code, 1860.
Ahmad, “Significant Features of the Hanafi Criminal Law”, 8.
Qur’ān 17:33.
Sahih Bukhari Hadith No. 3475 from one Islam application.
Ahmad, “Significant Features of the Hanafi Criminal Law”, p.9.
See Sections 54, 55 and 55-A of Pakistan Penal Code, 1860.
Section 4, Enforcement of Shari’ah Act, 1991.
https://www.supremecourt.gov.pk/downloads_judgements/const.p.6_2023.pdf (last accessed on 31.12.2023)
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