Introduction
Presumption of innocence is a principle which holds that the accused is innocent until the prosecution proves otherwise in a fair legal process. This is a fundamental principle in the Islamic legal structure and is meant to ensure that the rights of an innocent person are not abused because he or she is a suspect to a given crime. According to Kant (2008), the judicial system exists to ensure that anyone who is suspected of committing a given crime is given a fair trial to ensure that justice is served. The prosecution has the burden of proof, and until such a time that the proof is given beyond any reasonable doubt, the accused should be treated as an innocent person.
According to Al-Kisswani (2013), the Presumption of Innocence Law is used to ensure that there is fairness in the process of prosecution, and that the accused will only be considered guilty after the prosecution has proven so. In the Arab Islamic countries, especially in the Middle East, the Presumption of Innocence Law has been considered a fundamental part of the laws that define how a suspect should be handled. This is so because it is believed that this law originated from the Islamic teaching that requires the authority to punish a suspect only after a fair trial (Adamson, 2013).
The Presumption of Innocence Law has been ignored by many authorities due to the ongoing conflicts in the Middle East. According to Kant (2008), there has been a tension between Palestine and Israel in Gaza that have led to the death of innocent people. The ongoing war between Israel and Hamas of Israel has seen this principle ignored by the forces from both sides. It is estimated that over 1800 Palestinians and 56 Israelis have died in this war since it started about two months ago.
What is worrying is that most of the casualties are women and children who are not only innocent, but also unable to protect themselves from the attackers. This is a clear demonstration of how much this principle has been disregarded despite its universal acceptance. This has affected the perception of people towards this law. This law has been defeated by people who believe in revenge, without due consideration of the people who suffer because of their actions. In this research, the focus was to determine the perception of the graduate law students at a Palestinian University on the application of Presumption of Innocence principle in this country, taking into consideration the ongoing conflicts between Israel and the Hamas of Palestine.
Literature Review
According to Adamson (2013), “Presumption of innocence is a legal right of the accused in a criminal trial.” It is the general assumption that till one is proven guilty, it will be a violation of his or her rights to subject him or her to unfair treatments based on the crime he or she is accused of committing. The Presumption of Innocence Law has attracted the attention of many scholars who have developed interests in analyzing its relevance, especially in the current society where there are rising cases of terrorism in various parts of the world. Al-Kisswani (2013) critically analysis the presumption of innocence law as applied in many of the systems in the Middle East and other Islamic countries. The scholar says that the society is increasingly becoming intolerant, and this principle is largely ignored by many judicial systems.
When one is arrested, it is assumed that he or she is innocent until the judicial system proves otherwise. However, this has been ignored, especially with the current tension that is experienced in the Middle East.
The legal systems in many of the Islamic countries use the Presumption of Innocence Law as the main reason why a person is brought before the court of law for a fair trial. According to Al-Kisswani (2013), the presumption of innocence is a fundamental principle in the Islamic laws, and has been used in the Middle East judicial systems for a long period. The law seeks to defend both parties before the prosecution can prove its case. It is common for an individual to be accused of a crime he or she did not commit. The prosecution will be expected to offer reliable evidence to the court in order to convince the jury that the crime was actually committed by the suspect.
According to Adamson (2013), “The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the judge of the fact, who is restrained and ordered by law to consider only actual evidence and testimony that is legally admissible.” This means that the judge will consider the accused innocent, till this proof is given. During the process of investigation and prosecution, the accused is to be accorded all the rights, and at no moment should he or she be subjected to any form of intimidation or abuse of his rights. The law allows the state to deny the accused the right to movement for fear that he or she may escape from justice in case he or she is actually guilty.
However, the state has no powers to subject the accused to any other form of punishment in the name of seeking for a testimony from him or her. The prosecution should look for ways of presenting the proof to the court without using excessive force against the accused.
A section of the scholars have strongly rejected the Presumption of Innocence Law when dealing with some criminals. According to Arafat (2001), the principle of presumption of innocence offers an unfair immunity to the accused, making it difficult to investigate some of the worst criminal cases committed against innocent people. There are cases where a suspect is caught in the act of crime with others who manage to escape. The security officers may need to investigate such an individual in order to identify the accomplices. It is always very difficult to extract information from hard criminals without using some form of motivation.
When such a criminal realizes that he or she has the immunity offered by this law, the investigation team may not successfully get any useful information to them. This means that the other accomplices cannot be traced because the accused is not willing to cooperate. In such cases, the investigative officers should be allowed to use some form of force in order to motivate the accused to reveal the truth about what he or she knows about the crime (Al-Kisswani, 2013).
Another section of scholars and activists in the Middle East have denounced the principle of presumption of innocence citing the torture that suspects are subjected to when they are taken to Guantanamo Bay. According to Kant (2008), the War on Terror, headed by the United States has seen many people, especially the Muslim youths from the Middle East, arrested and taken to this detention camp because they are suspected to be involved in the acts of terrorism. At this facility, most of the suspects are denied their rights, and the officers would treat them as suspects. At this facility, Arafat (2001) says that the authority would force the suspects to admit that they conspired to attack the United States. Sometimes they are forced to name other gang members who are still free but still planning the attacks against the United States.
According to Kant (2008), although it may be true that some of the suspects are involved in criminal acts, there are cases where innocent individuals are subjected to unfair pain for a crime they did not commit. There are cases where an individual who has been against terrorism is accused of participating in the vice, and subjected to inhuman interrogative process. Some people even die during the interrogation because of the physical and psychological torture. For these reasons, some activists in the Middle East have demanded for a similar treatment for any suspect of war crimes, especially when the suspect is from the West or their sympathizers.
However, Al-Kisswani (2013) has been against these attacks, holding that it is unfair to subject innocent people to pain because others are not following the law. Al-Kisswani (2013) says, “Our mutual responsibility is to respect one another, and we should not confuse the right with power” (p. 2). The judicial system is given the power to listen to the proof presented before it and determine if the accused is guilty or not.
The prosecution on the other hand, has the responsibility to investigate the crime, and present the proof to the court. The suspect has the right to be treated as an innocent person until the court makes the decision that he is guilty as charged. The legal system exists because of this principle. If this principle is ignored, then jungle law will be allowed to prevail. The justice system will lose its moral authority in the country, and people will start taking decisions in their own hands. This can lead to anarchy.
The society will not have any respect to the law, and innocent people will be subjected to unfair treatments by those who hold power. Al-Kisswani (2013) says, “According to jurisprudence, the criminal law with its substantive rules is an obsolete message if not supported by a good system that ensures the application of its rules” (p. 3). One of the fundamental rules is the presumption of innocence. It is the very reason why courts exist in the country. The system must respect laws that form its pillars, and all the procedures should be followed in order to maintain fairness. According to Al-Kisswani (2013), “This application ensures the procedural rules, and if the criminal law was made for offenders then the Code of Criminal Procedure is made for the honorable people with all its guarantees” (p. 4).
It would be immoral to follow the Codes of Criminal Procedure in one case, and totally disregard the procedures in another case. Every suspect in a criminal case should be granted a fair hearing, and all the necessary procedures followed before one can be judged. In order to gain insight into this topic, it may be necessary to review some of the philosophical thoughts of some scholars that are relevant to this principle. It would be important to analyze some of the philosophical thoughts that some scholars have put forth on the issue of presumption of innocence.
Philosophical View
The principle of presumption of innocence has attracted a massive attention of scholars who have given it a completely new thought of analysis in order to address the existing controversies. According to Kant (2008), while some philosophers believe that it is important to have this principle of fairness at all times when addressing cases of criminal justice, other scholars believe that it is important to isolate some cases, especially when dealing with hard criminals and war criminals caught in the act. Some of the philosophical thoughts that would be analyzed in this study include the following.
Nietzsche’s ‘God is Dead’ Philosophy
This is one of the most controversial philosophies that deal with the issue of fairness in the society as defined by religion. Adamson says that Friedrich Nietzsche is one of the greatest philosophers who have tried to explain the ethical behavior of human beings from the religious perspective. According to Nietzsche, the world is slowly shifting to unfairness as people drift away from the strong fabric or religion. Adamson (2013), the rise in atheism has led to the decline in religion in many parts of the world.
The society is shifting, and people are no longer following the teachings of their religion. Atheism is rising, and many people in the contemporary world depend on their learned knowledge to make their decisions. The fear of God is slowly diminishing among the people of all religious groups, the fact that has led to the deterioration of morality and ethics. According to this philosophy, people tend to respect the teachings of their religious groups (Fakhry, 1991). The principles taught in religion tend to define the behavioral pattern of people. The belief in divine intervention will make an individual behave ethically at all times.
When the law is based on religious teachings, then it becomes possible for people to obey it because they believe in it. However, when people’s belief shifts from the religious principles that define some laws, then such laws may cease to be sensible to them. This may explain why this principle of fairness is ignored by many people who are expected to respect it. The fundamental principle among the Muslims and many other religious groups is that God is omnipresent, and He has a unique capacity of knowing what we are doing because we cannot hide from Him. Our actions can never be hidden because he can read our hearts and see us at all times.
This belief has limited the temptation of some people to engage in acts of crime. It is unfortunate that there is emerging a group of people in the society that have developed a new approach to religion. They feel that God cannot define their actions, and that they can only do what their hearts direct them to, irrespective of the religious teachings. To this Group, Friedrich Nietzsche says that God is dead, and now they have gained independence from religion.
They can now do what they wish without the fear of the wrath of God. The presumption of innocence is largely entrenched into the religious teachings as the society strives to give justice whenever it is due. This means that justice to them is what they consider right as per their own personal judgments. This explains why this principle is largely ignored despite the religious teaching that strongly supports it. Friedrich Nietzsche says that as long as God is still dead among these people, they will drift away from the religious teachings, and this may limit their ability to obey laws based on these religious teachings.
Philosophical View of Kant
The Moral Philosophies of Kant are very vital when explaining the good and the bad in the society. At all times, people always make an effort to do what is considered good, and avoid all bad things. However, it is important to understand that good acts must have some specific qualifications that make them good. Kant (2008) says that something can only be considered good if there are justifications that make it be regarded as so.
Human beings by nature would always strive to do what is good, because it always generate some form of satisfaction in one’s conscience. However, when one no longer cherishes the values that are respected by other members of the society, actions that may appear good to him may be immoral in the face of the society. According to this philosophy, what one considers a good act must have some justifications, not only based on one’s own thoughts, but also on terms agreeable to the members of the society (Kant, 2008).
An individual will always achieve self-satisfaction if he or she believes that the action done is justifiable before other members of the society. Sometimes one may be tempted to act unethically, but Kent says that the desire to do what is good and to avoid bad deeds should always prevail, especially when the act may have a direct effect on other people. The morality should be witnessed in the judicial system. The investigative authority is charged with the responsibility of presenting a proof to the court that the accused indeed committed a crime. It is good if they present this proof without subjecting the suspect into undue pressure because this is what the law says. Their action will be regarded as being good if they act within the law, and respect the presumption of innocence principle. The investigative authority should not ignore this law.
Fairness when handling suspects should not be a choice to the people conducting the investigation, but a responsibility. Every human being is entitled to fair hearing, and the prosecution should ensure that innocent individuals are not punished over crimes they never committed. Al-Kisswani says, “When the innocence of citizens is not guaranteed no freedom will exist.” This scholar says that all other freedoms are based on the fact that an individual is innocent, and therefore, has the right to enjoy his or her right. When the state, through its systems, fails to recognize this fact, then the state will have unprecedented power over the freedom of its citizens.
Methodology
In every research, there must be a clear methodology that defines the process of data collection, analysis process and data presentation. Research methods will define the quality of a report, because it defines the steps that will be taken, challenges that may be faced, and how the validity of the research will be assured. In this study, the researcher used both the primary and secondary sources of data. Every piece of research is meant to increase knowledge in a given field, or discover new knowledge on a particular area. For this reason, it is important to acknowledge the works of other researchers which are relevant to the study.
This not only helps to enhance the validity of the research, but also enables a researcher to avoid duplication of information that is already in existence. For this reason, the researcher was keen to analyze information from other scholars who have conducted research in this field (Taylor, 2005). The secondary sources of data were collected from the relevant books, journals, and reliable online sources. The constitution of Palestine was also used as one of the sources of secondary data in order to enhance the understanding of what the law in this country says about the presumption of innocence principle. The primary data was collected from the sampled individuals as discussed in the sections below.
Data Collection
The process of collecting primary data is one of the most complex tasks that need a lot of attention in order to obtain the relevant information from the target group. The researcher was interested in finding a viable method of obtaining the relevant data from a group of post-graduate students in law or other related courses (Vogt, 2007). The researcher sampled a group of 50 participants who were graduate students of law at Alquids University. All the participants were chosen through stratified sampling, and only those who were willing to participate in the study were picked. From the sampled group, the researcher was interested in getting their opinion, based on their experience and what they have learnt, on the way the relevant government agencies were applying the presumption of innocence law when handling criminal cases.
Of interest was to determine if this law was applied free and fairly, without any prejudice. The researcher was also interested in determining how the opinions of these scholars have been influenced by the current military conflict between Hamas of Palestine, and the Israeli army. The response from the participants was assigned numerical values using a Likert Scale so as to enhance mathematical analysis. The decision to collect data from the graduate students of law was guided by the fact that they understand the law of this country, and are well informed about the presumption of innocence principle. For this reason, they were able to explain how they think this law has been applied in this country. The researcher used stratified sampling in order to select the participants in this study. The decision was made because of the desire to get the view of people from different social groups.
Research questions
Research questions are very important when collecting primary data from the field. When a researcher sets forth to collect data from the sampled population, it is important to determine what information is needed in order to avoid time wastage by asking irrelevant question or engaging in unnecessary debates. The research questions help the researcher to develop specific questions that the participants will respond to in order to deliver the right data. The researcher used précis questions in order to capture the perception of the students on the issue of application of this principle of fairness in the Palestinian legal system. The research questions used in this study are as follows.
- Do you believe that presumption of innocence is applied unconditionally without prejudice in this region?
- Do you believe that there is a deliberate attempt by the stakeholders in the legal system to defeat the principle of innocence till proven guilty?
- What is the impact of the ongoing conflict between Palestine and Israel on your perception towards Presumption of Innocence Law?
Each of the three questions was meant to respond to specific issues concerning the implementation of Presumption of Innocence Law within Palestine. Simple mathematical tools were used to analyze the responses obtained from the respondents. The results obtained from the analysis were presented in simple charts and graphs for clarity.
Ethical issues
In every research, it is important to maintain ethics in order to ensure that the researcher earns respect among the participants. Ethical issues must be maintained, especially when dealing with sensitive or emotive issues that raises controversy in the society (Druart, 1993). In most of the cases, people may not wish to take part in such research for fear of victimization because of their conflicting opinions.
The researcher knew the importance of hiding the real identity of the participants in this study. The issue under investigation has remained controversial and emotive in this society. Some members of the society hold strong emotions towards the issue of dealing with criminals, especially if they are war prisoners. Anyone with a contrary opinion from that of the majority population is always considered a traitor. This may make such a person to be subject to various forms of intimidation. The researcher assigned the participants numerical codes in order to avoid cases of using real names. This helped in concealing their identity. The decision to collect data in this form was made because it was determined that this is a controversial topic in this country.
Analysis and Findings
This section involves the analysis of primary data that was collected from the graduate students of law at the selected college. The primary data forms the basis of a research because it offers a researcher an opportunity to investigate the issues and develop findings based on the information collected from the field. It offers the researcher an opportunity to compare the information collected from the literatures, and the data gathered from the field. For these reasons, the analysis of the primary data was very important for this research. The primary data was analyzed using simple mathematical tools. As mentioned in the methodology, the results obtained from the analysis were presented using graphs and charts for the purpose of clarity. The analysis was based on the three main research questions developed for this study.
Results
The first research question directly focused on the topic of this research. It was the most important question as it was directly inquiring about the participants’ perception towards the application of the presumption of innocence as applied in Palestine. The following question was posed to the participants.
Do you believe that presumption of innocence is applied unconditionally without prejudice in this region?
The results obtained from the respondents were fed into Excel spread sheet and the graph above was obtained. It was noted that there was a sharp difference in the opinion of the respondents on this question. It was observed that 32% of the respondents strongly believed that the Presumption of Innocence Law is applied freely without any prejudice. 16% stated that the law is somehow applied without prejudice. 18% of the participants felt that somehow the law is not applied freely without prejudice, while 28% of them strongly felt that this law is not applied freely. 6% of the participants were not sure of this issue.
Three students were not sure of the way this law was applied. From the responses obtained from the participants, it was clear that their opinion was largely influenced by the ongoing conflicts between Hamas and Israel. Their responses was based on their political affiliations, and had very little to do with their concern to uphold the law. Some felt that the government was biased when dealing with a section of the society, but very lenient with another.
The second question was focused on determining the role of stakeholders in the legal system in protecting the presumption of innocence principle within the judicial system. Some of the scholars whose works were reviewed blamed the law enforcement agencies for disregarding this principle once they arrest criminal suspects. Some of the scholars claimed that cases where the police use brutality to get information from the suspects were very common in this country. The researcher was interested in investigating this issue in order to determine the truth behind it. The participants, being graduate students in law, were in a better position to give their views over what they had seen happening, or read through their wide research in this field.
Do you believe that there is a deliberate attempt by the stakeholders in the legal system to defeat the principle of innocence till proven guilty?
This question, just like the previous question, was very controversial among the respondents as they held varying views. 34% of the participants were strongly convinced that the stakeholders who are expected to be the custodians of the law in this country are directly involved in breaking it. They stated that the law enforcers, especially the people responsible for investigation, give total disregard to this principle of fairness when dealing with suspects. 18% of the participants felt that somehow the government was involved in frustrating this law, while one of the participants noted that he was not sure whether there were direct breaches of the law by the government authorities. 30% of the participants stated that they were strongly convinced that there was no deliberate attempt by the stakeholders in the judicial system to defeat this law when dealing with criminal cases.
They stated that it is rare for the police to use force against suspects when investigating their cases. 16% felt that somehow the government has not made any direct move to interfere with this principle of fairness when dealing with criminal cases. The percentage of those who believed that the government was interfering was slightly higher than that of those who stated that the government has respected this law when dealing with criminal cases. The participants who shared an opinion towards the ongoing military conflict between Hamas of Palestine and Israel had a similar view on the attempt by the stakeholders to defeat this law. This explains why their response varied sharply on this issue.
The third question was also very important in this research because it sought to determine how much the participants’ perception were affected by the ongoing military conflict between Hamas of Palestine, and Israel. According to Adamson (2013), the constant conflict in the Middle East is one of the main reasons why the Presumption of Innocence law has been disregarded by people who are expected to uphold it. Some of the scholars whose works were reviewed in this research stated that these conflicts have resulted in cases where the prisoners of war are denied the immunity that comes with this principle of fairness.
When this happens, they would be subjected to an unfair treatment that would result into making confession that is pleasant to the investigating authorities. This means that innocent individuals will be tortured in order to plead guilty of crimes that they did not commit. This has seen many innocent people go to jail, a clear breach of the law. The current conflict between Palestine and Israel was a perfect opportunity for the researcher to capture how such wars affect the perception of the law enforcement agencies involved in the investigations.
What is the impact of the ongoing conflict between Palestine and Israel on your perception towards Presumption of Innocence Law?
The results that were obtained from the respondents were a clear demonstration that the current conflict between Hamas of Palestine and Israel was a major factor that defined how these participants perceived the presumption of innocence principle. It was noted that forty out of the fifty respondents believe that the current military conflict between Palestine and Israel has a massive influence on their perception towards this principle of fairness. Seven of the fifty participants noted that the current events at Gaza had a moderate influence on their perception towards this principle of fairness. It was only three participants who stated that this conflict did not affect their perception towards the ongoing conflicts in Gaza. This confirms the claim made by the scholars in the literatures reviewed in this study.
Conclusion
The Presumption of Innocence Law originated from the Islamic teachings in the holy book of Quran which demands that one should only be punished after a fair trial. However, it is worrying that this principle of fairness is disregarded by the same people who should be upholding it. Cases where suspects are subjected to physical torture and other psychological humiliations are becoming common in most of the Islamic Arab countries. The secondary and primary sources of information gathered in this research agree that the Presumption of Innocence Law has not been applied freely and without prejudice in this country. There have been cases where the law enforcers use intimidation and torture to extract information from the suspects, even if the information is wrong.
The primary data revealed that the ongoing conflicts in Gaza between Palestine and Israel influence the perception of the stakeholders towards the application of this law in the country. Almost all the participants stated that the conflict affected their perception of application of this law in one way or the other. This clearly confirmed the claims by the scholars whose works were reviewed in this paper. The constant conflicts in the Middle East are largely to blame for the inability of the stakeholders to apply this law without any prejudice.
References
Adamson, P. (2013). Balancing Acts: Arabic Ethical Literature. History of Philosophy Without Any Gaps. Web.
Al-Kisswani, J. (2013). Presumption of Innocence. Jordan: Wael books Publishing. Web.
Arafat, Y. (2001). Penal Procedure Law No. 3. Official Gazette, 442(1), 1-97. Web.
Druart, T. (1993). Al-Kindī’s Ethics, Review of Metaphysics, 47(1), 5. Web.
Fakhry, M. (1991). Ethical theories in Islam. Leiden: E.J. Brill. Web.
Kant, I. (2008). Groundwork of the metaphysics of morals. Lanham, MD: Start Publishers. Web.
Taylor, G. (2005). Integrating qualitative and quantitative methods in research. Lanham: University Press of America. Web.
Vogt, P. (2007). Quantitative Research Methods for Professionals Author. New York: Pearson. Web.