Abstract
This work focuses on the principle of legality and the various other maxims
regarding the rights of the accused under Islamic criminal justice system. Its
main findings are: that the principle of legality (mabda’ al-Ibahat) is the most
basic principle (mabda usuli) of Islamic criminal law. This principle has two
postulates: 1) no crime without law, and 2) no punishment without law. The
natural outcome of these two principles is another principle, that is, ‘no
retroactive application of criminal law’. The majority of authors consider the
principle of legality as absolute, however, this work carves out certain
exceptions to it. In case a crime endangers the peace and security of the state or
the interest of the community is involved or when giving retrospective effect
would be necessitated by the interest of the community rather than the
individual or when the application of the principle is beneficial to the accused,
then it is allowed to give criminal law retrospective effect. In addition, this
work finds out that the principle of legality is not against Islamic law as is the
opinion of some scholars. This principle is intended to safeguard the
fundamental rights of the accused either by not charging him or giving him
lesser punishment even if that punishment be promulgated subsequent to the
commission of the crime. Books of classical Islamic law do not focus on the
basic principles of Islamic law. Those that exist are either mentioned in each
separate chapter devoted to a specific crime or they must be found by
deduction. Adhering to the principle of legality means that Islamic criminal
justice system was well advanced since the dawn of Islam.
MUHAMMAD MUNIR. (2018) The Principle of Legality in Islamic Criminal Justice System , Hazara Islamicus, Volume 7, Issue 1.
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