Taha Jabir al Alwani

Under the law of Islam, the accused enjoys many rights. These will be summarized below.

The Right to a Defense

The accused has the right to defend himself/herself against any accusation. This may be accomplished by proving that the evidence cited is invalid or by presenting other evidence that contradicts it. In any case, the accused must be allowed to exercise this right so that the accusation does not turn into a conviction. An accusation means that there is the possibility of doubt, and just how much doubt there is will determine the amount and parameters of defense. By comparing the evidence presented by the defense with that of the party making the accusation, the truth will become clear-which is, after all, the objective of the investigation.

Therefore, self-defense is not only the right of the accused to use or disregard as he/she pleases, but is also the right and the duty of society as a whole. If it is in the best interests of an individual not to be convicted when he/she is in fact innocent, the interests of society are no less important. It is the society’s concern that the innocent are not convicted and that the guilty do not escape punishment. It is for this reason that the Shari‘ah guarantees the right to a defense, and prohibits its denial under any circumstances and for any reason.
 
In a well-known hadith, the Prophet is reported to have told ‘Ali, who he had just appointed as governor of Yemen: “O ‘Ali! People will come to you asking for judgments. When the two parties to a dispute come to you, do not decide in favor of either party until you have heard all that both parties have to say. Only in this manner will you come to a proper decision, and only in this way will you come to know the truth.” It is related that ‘Umar ibn ‘Abd a1 ‘Aziz said to one of his judges: “When a disputant comes to you with an eye put out, do not be quick to rule in his favor. Who knows, maybe the other party to the dispute will come to you with both eyes put out!”

The basic rule in regard to defense is that it should be undertaken by the accused, as it is his/her right, if he/she is capable of doing so. If not, he/she may not be convicted. This is why some jurists have opined that a dumb mute cannot be punished for hadd crimes, even when all of the conditions regarding evidence have been satisfied. Because if the mute were capable of speaking, he might be able to raise the sort of doubts that negate the hadd punishment (for a lesser, ta‘zir punishment or amercement), and by means of sign language only, he may not be able to express all that he may want to. So, under such circumstances, if the hadd punishment is administered, justice will not have been served, because the hadd will have been administered in the presence of doubt.

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