Can a Muslim lawyer defend a "guilty" client?

-by hijaupadi-

Listed below are few situations which might raise the question as stated above:-

a) A client who has been charged for robbery

b) Three Non-Muslims who has been charged for gang-rape where the victim was a female Muslim.

c) A client who has been charged for murder and more important, he confesses that he committed the murder before you!!!

In accordance to the abovesaid situations, can a Muslim lawyer defend such clients?

It is a non arguable and had become an agreed fact that as soon as you graduated from the Garden of Knowledge and Virtue or other universities as well and holding a degree in Law, like it or not you will be facing or being asked by the society or even your parent this crucial question over and over again. Or to make it worse, you yourself will ask this question. Therefore, it is important for us to understand the whole concept of Justice particularly from the eyes of Islamic Law. Having said so, I have no doubt and believe that from a feminist law-student or Muslim-counsel point of views, they might refuse to defend the abovesaid clients particularly to the second gang-rape situation since the alleged criminals are Non-Muslims and the victim is a female and most important she is a Muslim. However, I am pretty sure that the situation will be different after they (including us) understood the whole concept of Justice.

Thus, let us focus and understand this issue from the Islamic Shariah of Law point of view. In Islamic Law, the principle in dealing with the issue of allegation is that “He who alleges has to prove it. This principle had been derived from one of the Hadith of Prophet Muhammad SAW which he says that “ Al-Bayyinah a’la al-Mudda’I, wal yamin a’la man Ankara”. For easier understanding, a person who alleges another person of committing a crime or an offence, that person must prove and brings his witnesses and evidences so as to support and corroborate his allegation against the alleged person. In current civil litigation system, the principle that had been laid down by the Shariah is now had been statutorily embodied. It is now the main duty and responsibility on the prosecution side to establish a prima facie case and beyond reasonable doubt whereas a defense counsel’s responsibility is to appear on behalf of the accused to prove otherwise and to demolish prosecution’s case. (Please be noted that it is UNFAIR for the accused to defend himself since he does not possess sufficient legal knowledge regarding both substantial and procedural part of law. Thus,it is a shame on legal profession if anyone appears on court unrepresented)


”How can you defend such a client since you know he is guilty?” asked by Mak Minah to Zaiton (IIUM LLB and LLB(S) Degree holder.

In answering this kind of tricky question, one must be composed and answer it with wisdom, not emotion. Your answer will definitely reflect your personality. Thus, tell them that we never know that he is guilty or not. We will be only convinced that a person is guilty or not ONLY if we were at the crime scene and saw every second, every part of the commission of such act. Therefore if we are not there to witness and see clearly what had happened and how the crime is committed, then it is not safe for us to say that a person is guilty eventhough that person had confessed before us that he actually had committed the crime. In fact, it might be that person is just unluckily caught in a situation which might make him seems like a guilty person.

As far as a reasonable human-creature is concerned, we might form our own opinion on a particular alleged offence that had said to be committed by an alleged person. Our opinion might be wrong and totally irrelevant since we might only heard what had happened from one side only without hearing to the other side. Our perception and opinion on his liability arise from our own opinion only. One must be noted that there is an enormous and huge different between opinion and knowledge. A lawyer is needed for advocacy, not for judgment. It must be emphasized that it is not the lawyer’s duty to make judgment. And that is why, a judge is needed to hear from both side and give his best to uphold justice.

The abovesaid explanation is totally in-line with what Rasulullah SAW had teaches us when the Prophet sent Saidina Ali R.A to be a judge in Yaman. It has been narrated that Rasulullah SAW in his noble reminders to Saidina Ali R.A which he said:

“When any litigant comes before you, listen to the second as you listen to the first one”.

This Hadith postulates and teaches us on how a proper conduct of a trial should be and procedure in dealing with cases in Court. It must be remembered that everybody who involve in the process of justice especially the judge or the magistrate must keep their free-mind throughout the trial and avoid from making any presumption or opinion until both sides had been heard. After the completion of the trial, it is the duty of the judge to make a fair decision without fear and favor guided with witnesses’ evidences particularly to the strength of prosecution’s evidences. A lawyer must keep in their minds to the basic legal maxim that ‘A Person is innocent until proven guilty’. Moving from that premise, it must be noted that a person is to be proved his guilty in the court, NOT in the lawyer’s room.

It is now safe to conclude that if you are defending someone who is innocent and not yet being proved to be guilty in the Court, so you will not be accountable before Allah S.W.T, InsyaAllah. After all, Allah is there and we have done our best in doing a proper trial and to achieve justice. In the Prophet Yusuf’s case, what we can infer from the situation faced by Prophet Yusuf is that Allah knows better on what had happened. Allah had sent him into the prison even though he was not guilty which later proved to be beneficial to him since Allah knows best. Allah looks at how the process is done, whether it is done with integrity or vice versa notwithstanding of its outcome. After all, Allah knows best =)).

*Lesson of the day “ It is better to allow 10 guilty person to be released other than rendering one innocent person to be convicted”-Biar tersalah ampun, Jangan tersalah hukum!”