Islamic, civil law can work as one

Rasidah HAB
BANDAR SERI BEGAWAN

IN SIX months, Brunei will have two criminal justice systems working hand in hand - the Syariah Penal Code Order and the Civil Law.

Brunei Darusssalam’s Attorney General, Yang Berhormat Datin Seri Paduka Hjh Hayati Pehin Orang Kaya Shahbandar Dato Seri Paduka Hj Mohd Salleh yesterday offered her take on the feasibility/probability (Kebolehlaksanaan) of criminal civil law and Islamic criminal law working under one system.

Speaking at the symposium on the first day of the Knowledge Convention 2013 yesterday, YB Datin Paduka Hjh Hayati said under the two criminal laws, criminal cases will be divided into two: offences that does not overlap (offences that fall under the jurisdiction of the syariah courts only) and for overlapping offenses (offences that fall under the jurisdiction of both Syariah courts and civil courts).

Attending the Attorney General’s public lecture was Her Royal Highness Princess Hjh Mutawakilah Hayatul Bolkiah and civil servants.

For offences that falls under the jurisdiction of only the syariah courts, investigation of cases such as irtidad (apostasy), failure to perform Friday prayers, disrespecting the month of Ramadhan, khalwat, worship (any Muslims who worships anything that contradict (hukum syarak) and propagation of religion other than Islam will be done by the religious enforcement unit, assisted by the police and other law enforcement agencies if necessary.

Upon completion of the investigation, the findings will then be presented to syariah chief prosecutor, who will be assisted by the prosecutor if necessary.

If there was sufficient evidence for prosecution upon evaluation of the findings, prosecution will be made by syariah prosecutor, and assisted by deputy public prosecutor if necessary.

The criminal cases will be heard before the Syariah Court or Syariah High Court depending on their jurisdiction.

She added, for overlapping offences (offences that fall under the jurisdiction of both Syariah and civil courts), investigation of cases such as theft, robbery, murder, rape and causing injury are reported to and investigated by the police and assisted by the religious enforcement unit and other law enforcement agencies, if necessary.

Upon completion of investigations, the findings will be presented for evaluation to the public prosecutor, and assisted by chief syariah prosecutor if necessary.

Assessment then will be made to determine whether there was sufficient evidence to prove that the offences fall under the Syariah Penal Code Order.

This will be done by the special panel committee for the implementation of the Syariah Penal Code Order, co-chaired by the Chief Syarie Judge and the Chief Justice as well as its members.

YB Datin Paduka Hjh Hayati added that if the suspect confessed his guilt by iqrar (admission/confession), the case will be transferred to syariah court for prosecution by the syariah prosecutor with the assistance of the deputy prosecutor if necessary. If otherwise, then the prosecution will continue under the penal code in civil court.

The Syariah Penal Code Order will be applied provided that specific conditions required by syariah are met, she said. In such cases, further investigation and trial will be done in accordance with the provisions of the Syariah Penal Code Order, she added.

An example would be zina (willful sexual intercourse without being validly married to each other).

To prove that zina had taken place, Syariah requires four witnesses, who not only has to be fair and good Muslims, but their individual accounts of the incident must be devoid of discrepancies.

If these conditions are not met, for example, if there were not enough witnesses, but the indications of zina taking place are very prominent, the case will be addressed in civil court.

YB Datin Paduka Hjh Hayati said there were many other questions related to the laws such as why have both laws and not just one.

“In honesty, I will not be able to answer such questions as it should be answered by those who are experts in this field,” she said.

“This vision is not evolutionary, and not revolutionary in nature. It was done with wisdom, so that Islamic criminal law can be absorbed as the country’s law without bringing in unwanted effects both internal and international perspective as well as to ward off negative perceptions or accusations,” she added.

Dipetik dari - The Brunei Times