IMPLEMENTING HUDUD IN BRUNEI

By Tun Abdul Hamid Mohamad

(From left) Former chief justice of Malaysia Tun Abdul Hamid Mohamad, Institute of Advanced Islamic Studies (IAIS) Malaysia deputy chief executive officer Professor Dr Mohamed Azam Mohamed Adil and IAIS Malaysia founding chairman and CEO Professor Dr Mohamad Hashim Kamali at a public lecture on hudud law at the IAIS Malaysia building in Kuala Lumpur on Tuesday. Pic by Aziah Azmee

GAZETTED: The Syariah Penal Code Order 2013 will be implemented in stages from April ON Oct 22, the government of Brunei Darussalam gazetted the Syariah Penal Code Order 2013 (the Order) with the view, in brief, to introduce the hudud and qisas punisfhments in the country. The Order will be implemented in stages, starting with takzir offences in April. In the meantime, the provisions of the Penal Code will continue to be enforced and the offences tried by the Civil Courts. This is because the work of updating laws relating to procedure, evidence and others is incomplete. THE SYSTEM OF GOVERNMENT AND POLITICS IN BRUNEI The political system and government in Brunei are that of an absolute monarchy. Even under normal circumstances, the sultan has absolute executive and legislative powers. His powers supersede the provisions of the Constitution. He may also amend the Constitution or make laws regardless of the Constitution. Secondly, Brunei is a unitary country and not a federation. There is no distribution of legislative powers between states and the federation. Thirdly, there is no constitutional limitation on the jurisdiction of the Civil Courts or the Syariah Courts. For example, the Syariah Courts' jurisdictions are not limited to persons professing the religion of Islam. There are no restrictions on the types of offences that can be placed under the jurisdiction of the Syariah Courts. In any event, the sultan may either ignore or remove any restriction by amending the Constitution.

Fourthly, even though there are a few political parties in Brunei, they have no significant role to play. There is no coalition of political parties representing different races and religions to form the government, no general election and no opposition. Under such circumstances, there is nothing or anyone that can prevent the sultan if he decides to make a law and implement it. THE SYSTEM OF GOVERNMENT AND POLITICS IN MALAYSIA Malaysia is a federation. There are matters that lie within the jurisdiction of the federal legislature and there are matters that lie under the jurisdiction of the state legislature. The Constitution is the supreme law of the country and any law that is inconsistent with it is null and void. Government powers are shared by the three branches: the executive, the legislature and the judiciary. At the federal level, executive power rests with the cabinet, led by the prime minister. In the final analysis, the cabinet and the government are answerable to the voters, who may even remove the government. The Yang di-Pertuan Agong acts on the advice of the cabinet. By convention, he must follow the advice of the cabinet, except in some matters provided for by the Constitution. Legislative powers are vested in the parliament, consisting of Dewan Rakyat, Dewan Negara and the Yang di-Pertuan Agong. Constitutional amendments require a two-thirds majority. Apart from that, there are matters that require the consent of the Conference of Rulers. Federal parliament may legislate only on matters prescribed for it by the Constitution. It cannot legislate on matters that lie within the jurisdiction of the state legislature. Judicial powers are vested with the courts. These include power to interpret the Constitution and judicial review. Courts are empowered to declare a law void if it conflicts with the constitution. The court also has the power to declare an order, directive, decision or action of a minister invalid through judicial review. No one is above the law. A state legislature may only legislate on matters that lie in List II of the Ninth Schedule (State List). Syariah Courts are state courts. Their jurisdictions are limited to Muslims only. HOW DOES BRUNEI PROPOSE TO IMPLEMENT THE SYARIAH PENAL CODE ORDER 2013? The law is made by an Order issued during a state of emergency. It is made by the sultan, who has absolute power. No one can question him. No one can challenge him, including through a court of law. Until the Syariah Penal Code order 2013 is brought into force, the position in Brunei is similar to that in Malaysia. Criminal offences are tried by the civil courts. Similar to Malaysia, the so-called "syariah offences" are placed under the jurisdiction of the Syariah courts. Indeed, in drafting the said laws, Brunei used the Malaysian laws as a model. Syariah Penal Code Order 2013 classifies offences as follows: 2

FIRST, offences punishable with hudud punishments, for example, theft (sariqah), robbery (hirabah), adultery (zina), rape (zina bil-jabar), sodomy (liwat), accusing someone of adultery (qazaf) and drinking intoxicating drink; SECOND, the offences punishable with qisas and diyat. For example, homicide (qatl) and causing hurt; and, THIRD, general offences, such as not performing Friday prayers, khalwat and indecent acts, which carry the sentence of imprisonment and fine. Generally, the Order is applicable to Muslims and non-Muslims. For example, offences of theft, robbery, rape and sodomy. There are offences applicable to Muslims only, for example, drinking intoxicating drink and adultery. There are offences applicable to non-Muslims only, for example, contempt of the Prophet by non-Muslims and deriding the verses of the Quran or Hadith. There are acts that do not constitute an offence if done by a non-Muslim with a non-Muslim, but becomes an offence if it done with a Muslim, for example, adultery. Some offences are under the exclusive jurisdiction of the Syariah courts. For example, pregnant out of wedlock, failure to perform Friday prayers, disrespecting Ramadan, khalwat, indecent behaviour, men posing as women or vice versa, practising black magic, propagation of religion other than the religion of Islam, worshipping contrary to hukum syarak, accusing a Muslim as kafir. These offences will be tried by the Syariah court. These are takzir offences punishable with imprisonment and/or fine. There are also offences that have been in the penal code since its introduction in Brunei but now they are also provided for in the Syariah Penal Code Order 2013. For example, theft, robbery, rape, sodomy, causing the death of another person and causing hurt. As a result, for these offences are similar provisions in two laws with different means of proof, different sentences, different prosecutors and different courts to try them! How are these offences dealt with? Where should the offences be reported? Who will investigate the offences? Who will prosecute? Which court will hear the cases, the civil court or the Syariah Court? According to the explanation given by Awang Mohd Yusree Junaidi, the assistant solicitorgeneral of Brunei, such cases will be reported to and investigated by the Royal Brunei Police Force, assisted by the Religious Enforcement Unit and other law enforcement agencies, if necessary. Once the investigation is completed, the case would be forwarded to the public prosecutor. Assessment will be made whether there is sufficient evidence for proving the offences under the Syariah Penal Code Order or if the suspect wants to make a confession. In such a case, the case will be transferred to the Syariah Court for prosecution by the Syariah prosecutor assisted by the deputy public prosecutor, if necessary. If not, then the prosecution will continue under the penal code in the civil court.

In other words, even though there are two provisions regarding the same offences in two laws, a person would be charged only once, under one of the laws. Only time will tell how this arrangement works. Tun Abdul Hamid Mohamad is former chief Justice of Malaysia
Excerpt of a speech delivered at the International Institute of Advanced Islamic Studies on Feb 11 TOMORROW: Can such law be made and implemented in Malaysia?
Read more: Implementing hudud in Brunei - Columnist - New Straits Times http://www.nst.com.my/opinion/columnist/implementing-hudud-in-brunei-1.482897#ixzz2tIgYAY9o

New Straits Times, Thursday 13 February 2014

GREAT CARE NEEDED ON IMPLEMENTATION OF HUDUD

ASSUMING that a law similar to Brunei's Syariah Penal Code Order 2013 was to be made in Malaysia, under the existing legal framework, could it be done and how? I am only looking at it from the legal perspective as it is, neutrally and professionally like a judge delivering a judgment. In discussing this issue, attention must be paid to the provisions of the Federal Constitution regarding the division of legislative powers between the Federation and the states. Under the Federal Constitution, "criminal law" is a federal matter and within the jurisdiction of the civil courts. On the other hand, "offences relating to precepts of Islam" are within the legislative powers of the states and the jurisdiction of the Syariah Courts. We will now look at the offences. We find that some of the offences are "criminal law" offences which had existed in the Penal Code since 1936 and were in force at the time the Constitution was drafted. Certainly the words "criminal law" used by the framers of the Constitution refer mainly to offences in the Penal Code. Otherwise, what else is "criminal law"? Furthermore, if not, then all the trials of offences under the Penal Code by the Civil Courts since Independence would be unconstitutional, null and void. That is a very ridiculous suggestion.

On the other hand, among the offences, there are offences which are not to be found in the Penal Code or any federal law. In fact they have been provided for in the Syariah Criminal Offences Enactments of the states. Examples are sexual intercourse out of wedlock, accusing another person of committing zina and offences relating to intoxicating drink. It could be argued that those offences are not part of federal "criminal law". So, if those criminal offences under the Penal Code were to be made punishable with hudud and qisas punishments, that could only be done under a federal law, i.e. as criminal law and not as "offences relating to precepts of Islam" as provided by the Constitution. There is no constitutional impediment to do so as a federal law. Parliament may choose whatever punishments to be provided for criminal offences, including punishments according to Syariah. Done that way, they may be extended to Muslims and non-Muslims alike. Criminal law is under the jurisdiction of the civil courts. Civil courts have jurisdiction over Muslims and non-Muslims alike. For Parliament to make such a law, no amendment to the Constitution is required and the bill could be passed by a simple majority. This situation is comparable to the law on Islamic banking and finance and takaful. It must be stressed here that, as a federal criminal law, it must apply to all, Muslims and nonMuslims alike, because it is "criminal law" and not "offences relating to precepts of Islam". If it is made applicable to Muslims only, it would be contrary to Article 8 as it is a discrimination on grounds of religion and, therefore, unconstitutional, null and void. What about offences which are not in the Penal Code or any federal law which, in fact, had already been provided for in the Syariah Criminal Offences Enactments of the states, for example adultery? It could be argued that they are not "criminal law". To me, they may be made offences under the state law. However, to use hudud punishment for them, there is a legal impediment, not by the Constitution but by federal law which limits the punishments which could be legislated by the state. Only if the federal Parliament is prepared to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 to enable the state legislature to provide for the hudud punishments, then the state may be able to do so. As a state law under the Federal Constitution, the law is only applicable to Muslims and fall under the jurisdiction of the Syariah Courts. There is no constitutional issue here. However, if it is done that way, then there will be a situation where some hudud offences carrying hudud punishments which form part of the federal criminal law are applicable to Muslims and non-Muslims and tried by the civil courts. Besides, there will be some hudud offences carrying hudud punishments which form part of the state law applicable only to Muslims and tried by the Syariah Courts. Is it sensible to have such a situation? I will leave it to you to decide. 5

Many people think that since the offences are hudud and qisas offences according to Syariah and "Islamic law" is under the jurisdiction of the state, therefore state legislature may make such law. At the most, they are partially right. In Malaysia, any law made must be consistent with the Constitution. As I have said earlier, some of those offences lie within federal and civil courts' jurisdiction. If they are made state law, clearly they are unconstitutional, null and void. Even if it is done by the state legislature, it cannot be made applicable to non-Muslims. The Constitution only empowers the state to make laws to create offences applicable only to Muslims. If the state legislature makes such law applicable to non-Muslims, the law is unconstitutional, null and void. Besides, Syariah Courts have no jurisdiction over non-Muslims. If the state were to empower the Syariah Courts to try non-Muslims, that law is also unconstitutional, null and void. We often hear people saying that the law would be made applicable to Muslims only. Again, this is only partially right. The reasons are, first, criminal law is not personal law or "offences relating to precepts of Islam" as provided by the Federal Constitution. Criminal law is a public law. The offences are offences against the state (or King, in England), not just against the victim. That is why it is the Public Prosecutor who prosecutes, on behalf of the state. Secondly, a law applying hudud punishments for criminal offences under the federal jurisdiction to Muslims only would be inconsistent with Article 8 of the Federal Constitution as it is a discrimination on grounds of religion and, therefore, unconstitutional, null and void. Thirdly, is it fair that if a Muslim steals the property of a non-Muslim he is subject to hudud punishment (amputation of hand) while if a non-Muslim steals the property of a Muslim he is only subject to imprisonment and/or fine? Another point that must be made is that at least there is one offence that cannot be provided for, whether in the federal or state law, because it will be unconstitutional. That is the offence of irtidad or a Muslim declaring himself as a non-Muslim. Under the Syariah Penal Code Order 2013 (Brunei) that offence is punishable with death. In Malaysia, such a provision would clearly be contrary to Article 11 of the Federal Constitution. Brunei has no constitutional constraint to make such a provision because it has no similar provision in her Constitution. In any event, the sultan may just ignore it or amend it. Conclusion In my view, any law, no matter how good it is, if it is implemented without proper preparation, without taking into account the relevant factors or implemented inefficiently or unprofessionally, may lead to injustice. Good intention alone is not enough. Technical knowhow, expertise and discipline are amongst the factors essential for the success of the implementation.

The implementation of a law does not end with bringing it into force. What is more important is how it is done, what are the effects and the consequences, whether it leads to a better society, peace and tranquillity and whether it improves the level of justice in a country? The goal of criminal law is not to punish, including with any particular punishment. The goal of criminal law is to prevent the prohibited acts, to establish public order and to administer justice in the event of contravention. Punishment is a tool to achieve that goal. A tool is not a goal. So, how it is used should be taken into account. The result will be the measure of its success or otherwise. The success of the implementation of hudud should not be measured merely by the fact that it is implemented or how many heads are decapitated, how many persons are stoned to death and how many hands are amputated. There is more to it. From what we read regarding what had happened in Pakistan, Nigeria and Sudan, since the implementation of the laws in question, we are still unable to say that it is going on smoothly and has achieved greater justice. We are not in a position to assess the implementation of the law in Brunei yet because it has not come into force. Maybe in three or five years, we will be able to see how the implementation actually works and its impact. Does it lead to a higher degree of justice? Does it reduce the crime rate as expected? Will Brunei Darussalam, which is already peaceful be more peaceful? So far, the countries that have implemented the hudud punishments, such as Pakistan, Nigeria and Sudan still lag very far behind in these areas compared with countries that do not implement the hadd punishments such as Sweden, Norway, Iceland, Denmark and Japan in those areas. Perhaps, there are other factors. The real challenge for Brunei is how the Syariah investigators, Syariah prosecutors and the Syariah judges will discharge their respective duties of investigating, prosecuting and trying the cases, at least at the initial stages. Their experience is limited to minor criminal cases like khalwat. When the law is implemented, suddenly they will have to deal with more complex cases like causing death, rape and causing bodily injuries which will also involve the introduction of scientific evidence unless they are only going to wait for the suspects to make confessions by way of iqrar which is most unlikely to happen. Would they be able to deal with the sudden influx of cases? Maybe Brunei will prove something. We'll wait and see. At least, there is a difference in the case of Brunei. In Brunei, the introduction of hudud punishment is not motivated by political survival or to win the next general election. Work on its implementation had been going on for about 30 years and is still incomplete. We know that they have tried their best, and sincerely and have come up with a model they believe to be suitable considering the circumstances in Brunei. We wish them all the best. Regarding Malaysia, I have placed the facts before you. I leave it to you and the authorities to consider and decide. In doing so, it is important that we take all the relevant factors into account and if we decide to do it, we should do it right. 7

Excerpt of a speech delivered at the International Institute of Advance Islamic Studies on Feb 11. New Straits Times, Thursday 14 February 2014 Read more: Great care needed on implementation of hudud - Columnist - New Straits Times http://www.nst.com.my/opinion/columnist/great-care-needed-on-implementation-of-hudud1.483694#ixzz2tIkPK3xO