Majlis Ilmu, the Knowledge Convention took place last week. With it, the announcement by His Majesty the Sultan and Yang Di-Pertuan of the passing of the Syariah Penal Code Order 2013.
Copies of the Order were made available from last week. I have been able to try to digest the same, along with reports of the various talks given. I have also managed to have a look at the Syariah Courts Evidence Order, 2001.
From what I can understand, as the Syariah Penal Code is implemented in phases, there will be two penal codes in force, side by side - The Syariah Penal Code and the Penal Code (Chapter 22 of the Laws of Brunei, hereinafter, “Cap 22”).
While Cap 22 provides for a wide variety of offences - such as offences against public tranquility, offences against the person, against property, against public administration. The Syariah Penal Code appears to confine itself to 4 main crimes overlapping with Cap 22 - these are theft, murder, rape and assault. There are also, under the Syariah Penal Code, offences such as unlawful intercourse outside marriage (zina), apostasy, false claims of zina and drinking intoxicants. Finally in the Syariah Penal Code, there is a raft of “General Offences” relating to Islam such as the offences of failing to attend Friday prayers, failing to respect the fasting month, and offences relating to the propogation of other religions.
There would then appear to be 3 classes of offences, firstly, offences solely under Cap 22, secondly, offences under the Syariah Penal Code and finally, overlapping offences. My understanding is that for the overlapping offences, there will be some administrative step taken to decide which courts - the Syariah Courts or the Civil Courts, shall have jurisdiction over an offence. This would appear to have to be dealt with by amendments to the Criminal Procedure Code.
The Syariah Penal Code states that it applies to Muslims and to non-Muslims alike, except as otherwise stated. Generally, non-Muslims may still be charged with such things as theft, murder, and assault. Non-Muslims however would not be charged for offences such as apostasy and drinking. Zina, for non-Muslims, would not be a crime so long as both parties are non-Muslim.
Clearly, what has garnered the greatest attention are the punishments for the 7 Hudud offences, for which the Syariah considers as claims of Allah and for which punishments are ordained by the Holy Quran and the traditions of the Prophet pbuh. The Hudud punishments are amputation for theft and robbery; death for apostasy, rape and zina; flogging for drinking and false accusation of zina.
What should be said is that for the Hudud punishments to be handed down, a very high standard of proof is required – either a confession made 4 times before a judge at 4 different occasions or the testimony of a number of eye witness who have themselves had to undergo a procedure to determine, not only their ability to act as a witness, but that they are “adil”, meaning that they “perform the prescribed religious duties, abstain from committing capital sins, and (are) not perpetually committing minor sins”. It would seem to me that there will be a trial, not just of the person accused, but of the accuser or witness, to determine whether they have led true and just lives. In the absence of such proof, the court will not be able to mete out the Hudud punishment and would fine or imprison the accused instead.
I think giving evidence is one thing, but if prior to doing so, your whole life were to be examined for the presence of “capital or minor sins”, well maybe the ability to execute any of the Hudud punishments would be almost as remote as securing a conviction for “causing death by black magic” (Section 152).
Perhaps what may be said is that in fact, for a criminal justice system to work well, it requires perpetrators of offences to admit and to confess to their crimes as soon as possible after being apprehended. This means that victims are quickly compensated where possible and that the punishment, whatever it may be, will be swiftly meted out. In this situation, the fear is that perpetrators of crime may avoid as far as possible confessing or admitting to guilt. This may “clog” the system with undue and unnecessary delay.
One of the criticisms of the adoption of Syariah in other countries is the difficulty that the system has in dealing with rape and other sexual offences against women. The problem is that on one hand, one must complain of a rape. On the other, rape may only be proven by the confession of the accused or of the testimony of 4 witnesses who are “adil”. In the absence of either, one is left with the admission to unlawful sex of the complainant, who may then be charged or convicted with zina.
Our Syariah Penal Code and the Syariah Courts Evidence Act appears to deal with this firstly, by providing for the possibility of convicting the accused on a non-Hudud basis, for which a sentence of imprisonment instead of death would be given, but for which there will be a lower standard of proof. Secondly, there is the ability, for the complainant, or of any person confessing to a Hudud crime, to withdraw their confession at any time before or even during punishment.
It seems to me therefore, that a great deal of thought has gone into the implementation of these laws.
Other than the major offences, Cap 22, appears still to remain in place and the civil courts appear to continue with a large amount of criminal justice work.
In so far as the “General Offences” have been put into place, it may be said that the Syariah Penal Code serves to protect the position and the eminence of Islam in the lives of the inhabitants of Brunei.
To borrow the words of the Honourable Attorney General, the new Syariah Penal Code is not evolutionary nor revolutionary, it is the product of great effort and wisdom.
Digging in the history of the last two hundred years will turn up the empty shells of a number of once beautiful, progressive and promising nations, turned for many reasons into failed or failing states. But I have faith that our good people, rightly guided may succeed to bring about the promise of justice, progress and fairness.