Concerns over Brunei's new Syariah penal code

The International Commission of Jurists says Brunei Darussalam's new penal code is a blueprint for human rights violations.

The ICJ has written to the government of Brunei, stressing that the Syariah Penal Code is incompatible with international human rights law.

ASEAN member Brunei enacted its 2013 penal code last October, scheduled to take effect in April.

The revised laws criminalise adultery, extra-marital affairs, consensual gay sex and also re-introduced the death penalty after years of an effective moratorium.

Presenter: Sen Lam

Speaker: Emerlynne Gil, international legal advisor for Southeast Asia, International Commission of Jurists

GIL: It contains several provisions, which we feel violate the obligations of Brunei under international law. It allows the imposition of the death penalty, and other penalties that constitute torture, or other cruel, inhumane or degrading treatment.

It continues to criminalise adultery, extra-marital sexual relations and sodomy, which is in violation of international human rights laws and standards. And it also discriminates against women. And finally, it violates the right to religious freedom, freedom of opinion and freedom of expression.

LAM: Is it not a fact that many Southeast Asian nations with capital punishment in their law books, rarely carry them out?

GIL: That's true. Brunei has not implemented the death penalty since 1957 and had until now, generally been viewed as having abolished the death penalty de facto. The other two countries that are viewed as de facto abolitionists, or have not implemented the death penalty for several years in southeast Asia are Myanmar and Laos.

In general, these three countries have been viewed as de facto abolitionists, but in southeast Asia, alot still retain the death penalty. You have Malaysia, Indonesia, Vietnam, Singapore.. so you can't really say that in southeast Asia the practice is de facto abolitionist - half of the countries in southeast Asia still implement the death penalty.

LAM: But as you pointed out, Brunei has not carried out the death penalty since 1957, so isn't that proof that the country does not favour capital punishment as a deterrence?

GIL: That's true, but what is actually of specific concern to us, is that this new law that they're enacting, firmly entrenches the death penalty in its legal system. In fact, the death penalty, the manner by which the death penalty is imposed in the new law, is stoning to death. So that's very, very concerning for us.

We were very surprised that an ASEAN member is doing this, especially at this point in time, where the ASEAN is trying to demonstrate to the international community that it is able to develop human rights standards. And this definitely is a setback, not only for Brunei, but for the entire region.

LAM: And the ICJ is also particularly concerned about what the penal code might mean for women in Brunei - why are women particularly vulnerable under this new code?

GIL: The code does proscribe that stoning to death applies, regardless of whether the offender is male or female. However, studies have shown that in countries where stoning is still imposed, women face more risks of receiving this penalty because they are most likely to be found guilt of adultery or having engaged in extramarital sexual relations. This is because of the institutionalisation of gender discrimination in the laws. Women are more likely to receive the penalty of stoning to death because for instance, there is the visible evidence of pregnancy, so because of this very visible evidence, women are more easily found to have engaged in extramarital relations, or having committed adultery. It could also be because of the difficulty in proving a rape, and prosecuting rapists. The nature of the crime which more often than not, would have no witnesses and involves only two people. So because of this, women are most likely to receive this type of penalty.

LAM: ASEAN has had a longstanding policy of non-interference in each other's affairs, and Bandar Seri Begawan or Brunei, may well see your letter as interference. Do you expect a response from the Brunei government?

GIL: We do. The ICJ always encourages dialogues with governments on these kinds of issues. We will try as much as possible to continue engaging with them, to seek a response and also not only from Bandar Seri Begawan, but also from ASEAN, to see if ASEAN can look at this issue, which is really not only an issue in Brunei, but an issue in the region.

I think there's a great chance that we will be able to have some sort of communication with them. We have also circulated this letter among the ASEAN members, and also representatives of Brunei to the AICHR - the ASEAN Inter-governmental Commission and Human Rights - as well as Brunei's representative to the ASEAN Commission on Women and Children.


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