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21 May 2019

Despite public perceptions of Brunei’s new Islamic criminal code, the problem is far from recent. The Sultan’s absolute power has made the current situation inevitable, Kerstin Steiner writes.

The tiny tropical nation of Brunei is making international headlines again. Repeating the international outrage that saw the absolute monarchy’s emphasis on Islam in 2013 and 2014, global attention is again focused on the ‘recent’ implementation of the Syariah Penal Code Order 2013 (SPCO 2013). Criticism has rained down on the country, but much of it comes from misunderstanding the circumstances.

In effect, the SPCO 2013 consolidated already existing Islamic criminal offences. It brought together those under other Islamic and civil codes and filled in regulatory gaps. Significant changes included the application of certain provisions to non-Muslims – something that has interestingly not drawn significant attention so far – and of course, highly controversial punishments for certain crimes – for example, amputation for robbery and stoning for adultery.

In order to understand this, it is important to discuss the key factors at play.

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First, this is not a recent development. Brunei has been on this trajectory for decades, moving towards further implementation of Islamic law. Considering this, the enactment of the SPCO 2013 was not surprising.

In July 1996, to celebrate his 50th birthday and reaching 10 years of independence from the UK, the Sultan of Brunei called “for the urgent establishment of Syariah Courts in their complete form in order to … enforce the Qanun Jina’i Islam, that is, the Islamic Criminal Act, as is required by Allah.”

That this was a gradual approach is also evident in the implementation of the SPCO 2013. It was implemented in phases, allowing for law enforcement officers to be trained, procedures to be set up, and the public to be informed – and arguably accustomed – to the new Syariah criminal law.

Full application required the final piece of the puzzle: a criminal procedure code. This came in the form of the Syariah Courts Criminal Procedure Code Order 2018 passed in March 2018 and enforced since the beginning of this year.

This was a clever political manoeuvre, whether intentional or unintentional. While the code was never seriously opposed or even questioned in Brunei itself, it created only small initial international public outrage. As certain phases were postponed or only partially implemented, anger would decrease and things would become quiet again.

The majority of this outrage makes reference to international human rights standards. While Brunei is a reluctant ratifier of international human rights standards, none that it has signed to date will be of assistance in this case. Brunei made this very clear in its carefully phrased letter from the Minister of Foreign Affairs to the United Nations in April 2019.

In essence, it makes a cultural relativism argument. Referring to the ‘Islamic nature’ of the state, it argues that the hudud and qisas punishments are ordained by God, and that the whole purpose of Islamic criminal law is prevention rather than punishment. In this vein, certain punishments are necessary to “safeguard the sanctity of family and marriage”.

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Officials also claim that carrying out the punishments – death by stoning, amputation, and lashes amongst others – would not be in violation of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) which Brunei signed in 2015 and still plans to ratify.

The nation made it clear from the beginning that it “reserves the right to formulate and communicate, upon ratification, such reservations, interpretative understandings, and/or declarations which it might consider necessary.”

Furthermore, it also argues that there is a high threshold to make a conviction under hudud laws using Islamic evidence law, as it would require several Muslim eyewitnesses.

The recent announcement by the Sultan extending the existing moratorium on the death penalty for gay sexual acts still leaves penalties in place. Considering this a success fails to acknowledge two important matters. Firstly, a moratorium can be easily revoked, and secondly, there exists a failsafe provision in which a conviction, albeit with a lesser penalty, can still be made even without meeting Islamic evidence standards.

If the international human rights framework is of no assistance, then the domestic legal framework doesn’t offer protection even close to international human right standards.

Fundamentally, moreover, Brunei is an absolute monarchy. The Sultan is the head of state with full executive and legislative power. This provides legitimacy for the Melayu Islam Beraja ideology.

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The SPCO 2013 encapsulates the will of the absolute monarch and, of course, fits into the state’s Islamic narrative. It is one of many exercises in branding Islam and establishing a Bruneian understanding of Islam.

Another element often ignored by critics is that Brunei has been under a state of emergency provision since 1962. The Sultan can pass any legislation without undergoing review. Even if there were domestic protection against the implementation of the SPCO 2013, the Sultan could easily overcome those protections.

Calls for economic sanctions against Brunei-owned businesses, especially in the tourism industry, miss the point. This has proved ineffective in the past and is unlikely to work now, despite arguments otherwise. Boycotts subside quickly and ignore the fact that about 90 per cent of Brunei’s income comes from oil and gas, which contribute to about two-thirds of its GDP.

Since the passing of the SPCO 2013, it has not become clear whether the event was merely a symbolic exercise and whether the code would even be completely implemented. Though very few people have been prosecuted so far, the SPCO 2013 has continued criminalising acts that are not punishable under civil law while ordering significantly different and higher punishments for ones that are.

International engagement with Brunei should take into account its unique form of government – in this case and all others. The SPCO 2013 is arguably still at a crossroads, but the recent development has also removed one of the most significant roadblocks to its full implementation. The issue is thus as important as ever.

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