A press statement by Mohamed Hanipa Maidin, a former deputy minister of law cum a Member of Parliament, on Sept 14, 2023:

While debating the Mid-Term Review of the 12th Malaysia Plan in the Dewan Rakyat recently, the PAS president cum Marang Member of Parliament made a rather startling statement on criminal law.

In a jab clearly aimed at Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi, PAS president Tan Sri Abdul Hadi Awang remarked that there is no such thing as a discharge not amounting to an acquittal (DNAA) in Islam. 

In fortifying his view, he 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 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 a DNAA conferred to the Umno president cum deputy prime minister. To be fair, the PAS president and I are on the same page on that score. But the similarities, however, end there. 

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

Unfortunately, the PAS president is too well known to be fond of making rather 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 counterproductive! 

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

There is a well-known maxim in Arabic that is originated from logic — الحكم تصوره عن فرع شيء على — 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 the MP Marang to simply pass a swift judgement that there is no such thing as a 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 the DNAA. 

Yes, if we pore over the vast heritage of Islamic jurisprudence, our Muslim jurists may have not specifically mentioned about the issue of DNAAs in their writing. DNAAs deal with the issue of Islamic criminal law procedures which, I honestly believe, are not within the PAS president’s expertise. 

Anyway, the absence of such discussion in islamic jurisprudence does not render such a concept to be totally alien to Islamic law or 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 as “the forgiven zone”. 

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

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

On the other hand, a DNAA signifies a provisional or temporary release, whereby the accused person would still be subject to rearrest and recharged — even for the same criminal offences. 

Having said that, we may fairly say that a DNAA does not really goes against the spirit of “maqasid al-shariah” (the aims/objectives of shariah). In the case of Zahid, he can always be rearrested and recharged in court even for the same 47 charges if the Madani government via the attorney general decides to do the same.

Mohamed Hanipa Maidin was formerly a practising lawyer, with almost 25 years in active practice.

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