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Brunei’s recent implementation of a new penal code (hereafter "the Code") has drawn condemnation from many quarters, including calls to boycott the Sultan of Brunei’s overseas investments.[1] The harshest criticism has been reserved for sections of the Code that conflict with human rights norms on torture and individual freedom, specifically the inclusion of severe punishments for liwāṭ (sodomy), zinā (unlawful sexual intercourse between heterosexuals), and theft.[2] While these sections deserve attention, other less noticed parts of the Code are potentially of greater concern. Broadly speaking, the Code’s overall disposition frequently ignores classical Islamic law’s substantive and procedural constraints in favor of criminalizing more conduct.
Hence, while Brunei’s Code purports to align itself with Islamic law, there are several provisions that represent significant departures from classical Islamic law and its prescribed limitations. Perhaps the most glaring example is the Code’s decision to punish "persons without legal capacity," described as "not mukallaf" in the Code.[3] Historically, like most legal systems, Islamic law assessed capacity prior to assigning legal responsibility or criminal liability.[4] While Brunei’s Code recognizes excuse defenses for incapacity, at various points it also inexplicably punishes actors it does not deem legally responsible.[5] For instance, Provision 70 punishes zinā committed by persons without legal capacity, including pre-pubescent minors (non-bāligh).[6] One might be tempted to think Brunei views zinā as a strict liability crime, however this is not the case; various other provisions in Part II of the Code account for mental state.[7] Rather, the Code is simply expanding criminalization and allowing actors that technically lack legal capacity to somehow attain the required mental state for the prohibited conduct.
Furthermore, although the Code includes Islamic law’s traditional evidentiary requirement of four eyewitnesses to establish liability for zinā, the Code considers absence of this evidence as only a partial defense.[8] Instead, the Code creates a second-tier zinā crime where the four eyewitnesses may not be present but "other" evidence exists.[9] This structure departs from the norms of classical Islamic law, where failure to produce four witnesses in a case involving consensual, non-marital sexual intercourse constituted a complete defense.[10] In fact, the absence of four credible eyewitnesses would trigger potential criminal penalty for false accusation, which suggests that prosecution of zinā crimes was not emphasized even if the underlying conduct was strongly discouraged.[11] Against this classical framework, Brunei’s Code protects "false accusations" as long as they are made in "good faith."[12]
Possibly the most disturbing departure from classical Islamic legal procedure in the Code is its requirement of four eyewitnesses in cases involving rape (zinā bi’l-jabar).[13] Conflating the evidentiary requirements for non-consensual as opposed to consensual circumstances not only lacks a basis in classical Islamic law, but has far-reaching consequences. This was demonstrated by the devastating impact of a similar evidentiary requirement for rape incorporated into Pakistan’s 1979 Hudood Ordinance.[14]
The Code also contains other areas of expanded criminalization, such as ill-considered provisions regarding inchoate crimes, specifically attempts. For instance, the Code includes a provision that punishes attempted apostasy (irtidād).[15] It notes that an attempt at apostasy will be punished the same as apostasy. As an example of what constitutes "attempted apostasy," the Code notes that simply being "determined to renounce" Islam is enough to trigger punishment for apostasy. By criminalizing "attempted apostasy" at a very early stage of preparation, the Code actually undermines classical Islamic legal doctrine on apostasy, which allowed numerous opportunities for retraction prior to accepting that someone was an apostate. In other words, classical Islamic law did not have a crime of attempted apostasy.[16] Furthermore, in the premodern period criminalizing apostasy was arguably justified due to its intimate connection to political treason; no such connection exists today.[17] Similarly, in another instance, the Code punishes attempted zinā then provides an example of what would constitute an attempt: an unmarried couple lying down on the same bed.[18] Again, the Code defines attempt at a very early stage, well before what would be considered "perpetration" of the crime. There is no indication that these two individuals are engaged in any intimacy, but their presence on the same bed is enough to trigger a penalty for attempted zinā.
In sum, Brunei’s Code gives one pause from the standpoint of Islamic law and code drafting. In trying to achieve the comprehensiveness of modern criminal codes alongside misplaced notions of what Islamic criminal law should look like, Brunei ends up criminalizing far more conduct than classical Islamic law ever sought to sanction. Aside from the numerous issues outlined above, other serious problems exist, most notably the sparse mention of culpability requirements[19], poorly constructed accomplice liability[20], and a Sharīʿa catch-all provision[21] that defeats the Code’s fundamental purpose. These are alarming flaws for a Code that seeks to produce anything resembling a more just criminal law in Brunei, let alone one that can be considered faithful to classical Islamic law.