RIGHTS OF AN

ACCUSED IN
CRIMINAL CASES
Hjh Zalwatul Sakinah Hj Ibrahim
13B0204
• ‘suspect’ - a person thought to be guilty of a crime or offense
• ‘accused’ - a person who are charged with or on trial for a crime
• Evidence is not strong = suspect
• Evidence is sufficiently strong to lead to his arrest or being
charged in court = accused
 Principle of Presumption of Innocence

“a person is presumed innocent until proven guilty”

“the original presumption is that one has no
liability”
 Surah Al-Isra’ : 15

Allah SWT says,

“Whoever adopts the right path does so for his own benefit,
and whoever goes astray does so to his own detriment, and no
bearer of burden shall bear the burden of another, and it is not
Our way to punish (anyone) unless We send a Messenger.”
 1.Right to be informed of grounds of arrest
It is reported by Abu Hurayrah and Zaid bin Khalid where they said that a man
came and asked the Prophet SAW, ‘My son was a labourer working for a man and
he committed an act of illegal sexual intercourse with the man’s wife, and I gave
one hundred sheep and a slave as a ransom for my son’s sin. Then I asked a
learned man about this case and he informed me that my son should receive one
hundred lashes and be exiled for one year, and the man’s wife should be stoned to
death.’ The Prophet said, ‘By Him in Whose Hand my soul is, I will judge you
according to the Laws of Allah. Your one hundred sheep and the slave are to be
returned to you, and your son has to receive one hundred lashes and be exiled for
one year. O Unays! Go to the wife of this man, and if she confesses, then stone her
to death.’ Unays went to her and she confessed. He then stoned her to death.
• Compulsory for the suspect or accused to be notified the reason for
his arrest
• Reason to inform the grounds or allegation: to allow him to answer
or deny the allegation
– Informed – able to defend himself
– Not informed – unable to defend himself
• Obligatory to provide the suspect or accused with materials and
information relating to his case
• Maxim: anything that must exist to complete the obligatory is also
obligatory
• Suspect or accused must be informed promptly with a language that
he understands for the reason of his arrest and allegation against
him.
Section 33(4) of the CPC (Cap 7):
33(4). Any police officer making an arrest under this section
shall, unless the circumstances are such that the person arrested
can be in no doubt with regard to the reason for his arrest,
immediately such arrest is effected notify to the arrested person
the reason for his arrest.
 2.Right to be represented by a legal
representative
• Islamic Law recognizes the rights of suspect or accused to seek legal
assistance and to be represented by a counsel
• In Surah Al-Qasas verse 33-34 where Allah SWT says,
“33. He said, ‘My Lord, I have killed a person from them,
therefore I fear that they will kill me.”
“34. And my brother Harun is more eloquent than me in speech;
so send him with me as a helper to bear me out. I am afraid, they will
give the lie to me.”
• Rationale: to ensure that an arrested person may properly defend
himself against his arrest
• Right begins from the moment of arrest – must not obstruct police
investigation and administration of justice
• Ramli bin Salleh v Inspector Yahya bin Hashim:
Hashim Yeop A. Sani J. remarked that the right is not meant to be
given only when the arrested person is charged in criminal court but
well before that so as to enable him to prepare his defence
 3.Right to remain silent
• Generally, a suspect or accused should co-operate with the authority
by giving them all information he has about any case under
investigation
• Surah Al-Baqarah verse 283 where Allah SWT says,
“And don’t conceal testimony. He who conceals, his heart is
sinful.”
• If the suspect or accused decides to remain silent, he cannot be
coerced to speak or to confess, if so, confession is irrelevant and
inadmissible
• If the question asked can lead to prejudice, he has the right to remain
silent.
• Silence does not necessarily amount to an admission
• Al-Zarqa: silence of an accused gives the meaning that he denies the
charge against him
• Pendakwa Mahkamah-Mahkamah Kadi against Dayang Tiawa
binti Samad:
– The accused was asked to enter defence, however, the accused elected
to remain silent.
– The court held that the accused was merely exercising a legal right to
remain silent and therefore no inference of guilt could be drawn against
her
• Presence of circumstantial evidence (qarinah) to support the
allegation, silence of the suspect or accused may amount to a
confession
 4.Right to be released on bail
• Bail: temporary release of a suspect or accused person awaiting trial,
sometimes on a condition that a sum of money be lodged to
guarantee their appearance in court
• Majority of Muslim scholars – bail is allowed in all cases related to
the right of man such as debt and qisas cases
• Some Muslim scholars – bail is not allowed in hudud cases prior to
a reported hadith where the Prophet SAW said,
“No bailment in hudud cases,”
• Religious Council and Kadi Courts Act (Cap 77) does not clearly
categorize offences into bailable or non-bailable
Section 67(1) of the Religious and Kadi Courts Act (Cap 77):
67(1). The court may grant bail to any accused person and such
bail may be taken in cash or by bond with or without sureties

• A person can be released on bail with or without sureties

• For example: a case that happened during the period of Umar
where al-Ghamidiyyah, a pregnant woman came to the Prophet
SAW and confessed to committing adultery. The Prophet SAW
told her to go back without asking for any surety until she gave
birth to the child. This is because there is no sign that the woman
intended to abscond the jurisdiction
• Section 347(1)(a) CPC (Cap 7) = bail is obligatory on bailable
offences
• Section 347(1)(b) = bail is discretionary on non-bailable offences
 5.Right to defend himself in court
• Judge should not make judgment unless he has heard all that both parties in
dispute have to say
• It is reported by Abu Daud to the effect that:
Ali r.a. said: “The Prophet SAW had sent me to Yemen as a judge. I said to
the Prophet, ‘O Prophet, why do you send me while I’m still young and
ignorant on matters of the judiciary?’ The Prophet SAW said, ‘Verily Allah
SWT will grant His guidance on your heart and will strengthen your
tongue. If two men came arguing before you, do not give judgment until
you have heard the argument of the second man as you have heard the
argument of the first, this is more fitting for you so that the matter would
be clear to you when you give your judgment.’ Ali r.a. said, ‘Since then I
have never had any doubts while giving judgment.’”
• Islamic Law provides the suspect or accused with several other
rights which can be utilized to defend himself in court such as the
rights to call witnesses, to cross-examine witnesses and not to be
tried when he is not present in court

1. To call witnesses
– Verse 282 of Surah Al-Baqarah where Allah SWT states,
“And the witnesses must not refuse when they are summoned.” 
2. To cross-examine witnesses
• A witness like any other person has the possibility of being mistaken in his
evidence or forgetting
• It is reported that when Ma’iz bin Malik came to the Prophet saw and
confessed to adultery, the Prophet SAW said, ‘Probably you only kissed
(the lady), or winked, or looked at her?’ He said, ‘No. O Allah Apostle!...’
The reason why the Prophet SAW asked such questions is to ensure that
Ma’iz really understood his confession and did not make any mistakes on
it
• Suspect or accused is the most appropriate person to cross-examine the
witnesses – accusation has been made against him –has a right to disclose
the truth and defend himself
• One way to cross-examine the witnesses?
To ask about the facts of their evidence – to ensure that there are no
forgotten or mistaken elements in it
3. Not to be tried in absence of the suspect or accused
• This rule derives from the command of the Prophet SAW to Ali r.a.,
not to decide in favor of one party until he had heard all from both
parties in dispute
• Fundamental for the court to use all possible means to inform the
accused about the allegation made against him and to ask him to
appear in court to defend himself.
 Conclusion
a suspect or accused acquires certain rights for himself at each
stage of procedure in the Shariah Court of Brunei Darussalam.
For instance:
 a suspect or accused person has a right to know of the allegation
made against him and other related information, in a language which
he can understand in order to defend himself
 a suspect or accused may seek legal assistance in order to defend
himself
 a suspect or accused person also holds other rights such as right to
remain silent, right to defend himself in court and right to bailment.