COMMENT | While debating the mid-term review of the 12th Malaysia Plan in the Dewan Rakyat recently, PAS president Abdul Hadi Awang made a rather startling statement on criminal law.

In a jab clearly aimed at Deputy Prime Minister Ahmad Zahid Hamidi, Hadi said that there was no such thing as discharge not amounting to an acquittal (DNAA) in Islam.

In fortifying his view, Hadi cited Islamic history as his stare decisis ( legal precedent) whereby the then-Ottoman caliphate - Sultan Muhammad al-Fateh - was punished for abuse of power after oppressing an architect who had gone against his wishes.

The Marang MP then sweepingly concluded that "this happened, and this shows that there is no DNAA in Islam. There must be a punishment”.

Such an oversimplified and shallow statement was, nonetheless, accompanied by Perikatan Nasional MPs thumping their tables in support.

Apparently, the PAS president disagrees with the court’s verdict of DNAA granted to the Umno president. To be fair, Hadi and I are on the same page on that score. But the similarity, however, ends there.

His rather sweeping statement that there is no such thing as the DNAA in Islam, in my view, is, with due respect, feeble and even inaccurate.

Unfortunately, he is fond of making sweeping statements on many matters, especially when they entail a grey area. In other words, he is always too quick to rush to judgement.

Being conferred with the "ulama" title, he and his diehard supporters seem to believe that he possibly possesses the “ unchallenged authority “ of giving any juristic view on matters relating to Islamic law.

While his unflinching commitment to Islam should never be doubted, his views on certain aspects of Islam, on the contrary, might be mind-boggling and problematic.

Occasionally, in his attempt to highlight the supremacy of Islam - or Islamic law- he miserably failed to realise that his rather simplistic approach to anything seemed to be counter- productive.

Worse still, more often than not, the way he tried to promote Islamic jurisprudence to Malaysian society has unnecessarily portrayed Islam in a bad light!

There is a well-known maxim in Arabic that originated from logic: "Passing judgement on something is dependent on having a proper conception thereof," which I am convinced that he is fully aware of.

Based on such an important maxim, for Hadi to simply pass a swift judgement that there is no such thing as DNAA in Islam, logic, at least, requires him to have a good and proper understanding of the true nature of the subject matter - the DNAA - first before he can pass any judgement on matters involving DNAA.

Yes, if we pore over the vast heritage of Islamic jurisprudence, our Muslim jurists may have not specifically mentioned the issue of DNAA in their writing.

‘The forgiven zone’

DNAA deals with the issue of Islamic criminal law procedure which, I honestly believe, is not within Hadi’s expertise.

Anyway, the absence of such discussion in Islamic jurisprudence does not ipso facto render such a concept totally alien to Islamic law and thus ought to be outrightly rejected.

In my view, the fact that there is a concept of ijtihadiyah (matters which are not fixed and permanent ) in Islamic law means that Islamic law is never meant to be static and extremely rigid.

Islamic law duly recognises flexibility which, in Islamic law vocabulary, is called “the forgiven zone”.

Be that as it may, it would be fair to say that DNAA would squarely fall under the rubric of ijtihadiyah and hence legitimate under Islam.

Under the present legal system, the verdict of DNAA does not carry a full and absolute acquittal to any accused who has been indicted for any criminal charges.

On the other hand, DNAA signifies a provisional or temporary release whereby the accused person would still be subject to re-arrest and re-charge - even for the same criminal offences.

Having said that, we may fairly say that DNAA does not really goes against the spirit of maqasid al-shari'ah” (the aims/objectives of syariah) in that in the case of Zahid, he can always be re-arrested and re-charged in court even for the same 47 charges if the Madani government via the attorney-general decides to do the same.

MOHAMED HANIPA MAIDIN is a former deputy minister in the Prime Minister’s Department (Parliament and Law).

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