Presumption of Innocence Law is one of the main principles of judicial systems in Islamic legal structure. This is based on the principle of fairness, as Al-Kisswani (2013) upholds. When one is arrested on a suspected offence, the reason why he or she is taken to the courts is to determine whether or not he or she is guilty as charged or not.
There are instances where one is accused wrongly of an offence committed with someone else. This principle seeks to protect those who have been accused of an offence, but are innocent. It is not fair to harass such innocent individuals because they have not committed any offence. If they are proven to be guilty, then the legal system may make the decision to administer punitive measures against them. It is upon the judgment that an individual can be considered guilty.
However, this principle is always applied with prejudice in various cases in the Middle East courts. A section of the society in this region feels that this principle has been applied with prejudice. In this study, the researcher will be interested in determining the perception of Middle East graduate law students on the presumption of innocence of anyone who has not been tried in a court of law.
The presumption of innocence is an important principle in the judicial system that seeks to protect the rights of the accused until proven guilty. According to Arafat (2001), cases where an individual is accused of a crime committed by someone else are common in this region. This explains why the judicial system is necessary.
The system is expected to investigate the crime and determine if they can place the accused in the scene of crime, determine the motive, and the means used in committing the crime before declaring him or her guilty. If the court fails to place the accused in the scene of crime or fails to determine the motive or means of committing the crime, then such a person will be considered innocent. Until proven guilty, it is important to treat the accused as an innocent person.
According to Druart (1993, p. 5), “Presumption does not always contradict the truth, even though on the other hand it does not always agree with it.” When one is assumed to be innocent, this does not in any way confirm that the accused person cannot be found guilty of the crime. It does not change the truth in any way, and neither does it contradict it.
It is only meant to offer a temporary reprieve to the accused until that time that the court of law will discern the truth. It is a fact that the court may determine that the person is either guilty or innocent. When it is determined that the person is guilty, the law will be allowed to take its course, and appropriate punishment will be mated (Kant, 2008).
On the other hand, when the person is declared innocent, then he shall be allowed to enjoy his freedom and all the charges will be dropped. Punishing a suspect who is later declared innocent by the courts is an offence (Arafat, 2001). It will be considered a direct violation of that person’s rights. This principle can, therefore, be assumed to be meant to protect those who are innocent of the crimes leveled against them.
The principle of presumption of innocence traces its genesis to the Islamic judicial system. Following the teachings of Quran, the Islamic courts realized that it was required of them to treat their suspects as innocent individuals until a fair legal process proves otherwise. Al-Kisswani (2013, p. 89) says, “Islamic law established the famous principle that is now decided by the vast majority of contemporary legislation which is the principle of presumption of innocence.”
The judicial systems in the Middle East and the larger Arab world have embraced this presumption of innocence as a principle of fairness. Adamson (2013) says that this principle has been widely used as a way of delivering justice in a way that both parties will experience some form of satisfaction.
However, a section of the policy implementers have made strong arguments against this principle of innocence until proven guilty. According to Druart (1993, p. 5), “The supposition of innocence of the accused leads to giving the criminals a kind of unwanted immunity which harms the society.”
This principle affects the process of investigation because the authorities are forced to treat the suspects as innocent individuals. This means that the investigating team is not allowed to coerce the suspects into stating the truth about their involvement in the crime. Sometimes personal confession may be needed to confirm beyond any reasonable doubt that a person is guilty. However, Fakhry (1991) says that it is rare for one to give self-incriminating information, even when it is the right thing to do.
For this reason, it may be necessary to convince them to state the truth using conventional approaches. However, when one knows that the law treats him or her as an innocent person, they are always tempted to hide the truth as a way of getting away with the offence. This argument is strongly opposed by a number of theories of justice.
According to Mill’s Utilitarian Theory of Justice, the quest for justice can be achieved by upholding morality. Moral values will always restrain an individual from committing an offence. The investigative agencies need to maintain moral standards in their actions in order to ensure that justice for either the accused or the victim is not trampled upon.
We seek justice in the judicial system because we are a moral society. The courts will need to determine the morality of the actions of the accused so that he or she can be judged based on what the social structure considers to be moral (Kant, 2008). For this reason, it will be wrong to subject a suspect to unfair pressure because it would be immoral to punish an innocent person. If this happens, the very essence of justice shall have been defeated.
According to Rawls’s Theory of Justice, we see a different perception of the relationship between justice and morality. According to this theory, morality can generally be defined as ethical behavior based on the code of behavior defined by a given society. It is an act that the society considers right based on socio-cultural and religious beliefs. On the other hand, justice entails acting in respect of the legal structures within a given country. For instance, there are cases where cultural beliefs and practices of different people within the society make them have different views towards what they consider ethical or morally acceptable.
This would mean that what society A consider ethical may be considered unethical by society B. in such cases, justice may not be based on the morality as defined by either cultures. It must be defined by the legal systems set up by the parliament or judicial precedents. The presumption of innocence is envisioned in the constitutions of most of the countries in the Middle East (Adamson, 2013). This makes this principle a fundamental aspect when administering the law. For this reason, it should not be ignored.
In order to collect relevant data from the graduate students in the Middle East about their perception towards the presumption of innocence, the researcher will conduct a survey in the selected institution of higher learning. The researcher will develop a questionnaire that will be used to collect secondary data from the field. The research will employ quantitative methods by using simple mathematic tools. The opinions of the respondents will be given numerical values through the use of Likert Scale in order to facilitate the analysis. The data will be specifically collected from the graduate students of Alquds University.
The participants will be expected to give their views about the application of the law of presumption of innocence in Middle East region. From their views, the researcher will be able to determine their perceptions towards this issue, and factors that define their perception.
The participants and research questions
The survey will include précis questions that will allow the analysis of graduate students answers to the perception of the application of this law and if they do believe that presumption of innocence is applied unconditionally without prejudice. Due to the sensitive nature and straightforward questions of the survey, the researcher will ensure that the participants remain anonymous. In order to achieve this, the respondents will be picked randomly and assigned numerical codes.
The participants will pick the forms from assigned locations, and drop them back after filling them anonymously. This way, even the researcher will not be in a position to identify their real identity. Their responses will be analyzed using quantitative methods in order to determine their perception.
The research will use 50 participants who are currently undertaking graduate programs in law or related studies. As shown in the previous section, the researcher also relies on historical events of this law as recoded in various books and journal articles in order to back up the findings from the primary sources. This would help in strengthening the conclusions made out of this study.
The researcher used a number of questions to collect the relevant data from the respondents, and the results were presented in tabular form for the purpose of clarity. The following are some of the questions and the responses that were obtained.
Responses from the research questions
Do you believe that presumption of innocence is applied unconditionally without prejudice in this region?
This was the first question that was posted to the respondents who participated in this study. It was the most important question because it sought to directly capture the perception of the respondents in this study towards application of the principle of innocence till proven guilty. As shown from the diagram above, the respondents view towards application of this principle varied a lot. Majority of the participants strongly disagreed with the claim that presumption of innocence is applied unconditionally without prejudice in this region.
They stated that the legal system, especially the investigative officers have largely disregarded this principle by subjecting the suspects to unfair victimization in the name of extracting information from them. Out of the 50 participants, 35 believed that this principle has not been used in the region in the manner that was expected. Only 13 participants thought that the principle has been adequately applied. Two participants stated that they were not sure of the status of application of this principle.
Do you believe that there is a deliberate attempt by the stakeholders in the legal system to defeat the principle of innocent till proven guilty?
This question was designed for the graduate students to give their expert opinion on why this principle is not successfully applied in this region despite the fact that the entire world learnt of it from the Islamic teachings and laws. The researcher wanted to determine if there was a deliberate attempt by the stakeholders in the legal system to defeat this principle. The following results were obtained.
From the chart above, it is clear that most of the respondents feel that the stakeholders in the legal system are deliberately defeating this principle despite their knowledge of it. 80% of the respondents feel that the stakeholders are directly engaging in acts that contradicts this principle of fairness. Another section of the respondents (10%) were not sure or were unwilling to give their direct view on this issue. Only 10% of the participants felt that the stakeholders are doing everything within their powers to uphold this principle.
What should be done to entrench the presumption of innocence among the suspects within this region?
When asked to mention one main way through which the stakeholders, especially the investigative agencies, can be compelled to maintain this principle when interrogating their suspects, the participants gave four main strategies. Most of the participants (30%) felt that when the suspects are assigned competent lawyers, then their rights cannot be violated. The lawyers will tell them of their rights as innocent people until proven otherwise by a court of law.
26% of the participants felt that it is necessary to develop stronger laws that would prohibit the abuse of this principle by any of the participants. 24% stated that it would be necessary to create awareness among the suspects and the investigative authorities about the need to uphold this principle. 20% of the respondents stated that the investigation process should use technology and other state-of-the-art strategies that would help in the speedy identification of the individuals involved in a particular crime. This would eliminate temptation to torture suspects in order to get confession from them.
According to the information obtained from the applied research project, it is clear that the presumption of innocence is one of the most important principles of fairness for any suspect who has been arrested for any crime. Although this law originated from the Islamic teachings among the people of the Middle East, the research reveals that its application in this region has been minimal. Both secondary and primary sources of data are in agreement that the justice system, especially the investigative departments, has failed to uphold this principle.
Adamson, P. (2013). Balancing Acts: Arabic Ethical Literature. History of Philosophy Without Any Gaps. Web.
Al-Kisswani, J. (2013). Presumption of Innocence. Jordan: Waelbooks Publishing.
Arafat, Y. (2001). Penal Procedure Law No. 3. Official Gazette, 442(1), 1-97.
Druart, T. (1993). Al-Kindī’s Ethics, Review of Metaphysics, 47(1), 5.
Fakhry, M. (1991). Ethical theories in Islam. Leiden: E.J. Brill.
Kant, I. (2008). Groundwork of the metaphysics of morals. Lanham, MD: Start Publishers.