MoFA shoots down UN criticism of Syariah Penal Code Order

|     Hakim Hayat     |

BRUNEI Darussalam’s full implementation of the Syariah Penal Code Order, 2013 (SPCO) does not discriminate against anyone, contrary to claims by its critics, and only aims to respect and protect the legitimate rights of all individuals, society or nationalities of any faith and race.

This was highlighted by Minister of Foreign Affairs II Dato Seri Setia Awang Haji Erywan bin Pehin Datu Pekerma Jaya Haji Mohd Yusof (pic below) in a letter addressed to the Office of the United Nations (UN) High Commissioner for Human Rights (OHCHR) in Geneva, Switzerland.

The letter, signed by the minister, was sent from Brunei’s Permanent Mission to the UN in Geneva in response to a joint communication released by the OHCHR raising concerns on the Sultanate’s full implementation of the SPCO on April 3.

With the SPCO’s main objective of creating a society where religion, life, intellect, property and lineage are preserved and protected, the minister said that concerns raised by the OHCHR appear to have been “misconceived”, while addressing specifics in the joint communication pertaining to the protection of rights of women, sexual orientation, penal sentences of hadd and whipping, among issues.

Defending criticism on the capital punishment for adultery and same-sex sexual relations, the minister stated that the law does not criminalise nor has any intention to victimise a person’s status based on their sexual orientation or belief, noting that the criminalisation of adultery and sodomy is to safeguard the sanctity of the family lineage and marriage among individual Muslims, particularly women.

The minister added that the offences will not apply to non-Muslims, unless the acts covered under the law are committed with a Muslim.

On the protection of rights of women in the country, the minister said women here have made significant achievements and are given equal opportunities in all aspects of society, including education, training, healthcare, employment, asset ownership, benefits and citizenship.

He also shared that the SPCO also protects women from slanderous accusations of adultery.

Going into more detail about convictions in the penal sentences of hadd – stoning to death and amputation for the offences of theft, robbery, adultery and sodomy – the minister emphasised that securing conviction in such cases require extremely high evidentiary threshold, requiring no less than two or four men of high moral standing and piety and witnesses – to the exclusion of every form of circumstantial evidence, coupled with very high standards of proof of “no doubt at all” for all aspects, which he said goes further than the common law standard of “beyond reasonable doubt”.

He said the standards of piety of the male witness is extremely high, such that it is extremely difficult to find one in this day and age, to the extent that hadd convictions may solely rest on the confessions of the offender.

Unlike the common law principle, the minister said that confessions are encouraged to be withdrawn and can be withdrawn at any time even during execution of sentence.

The law provision for piety witnesses under Section 3(1), Syariah Courts Evidence Order, 2001 provides that the witness must be a Muslim who performs the prescribed religious duties, abstains from committing capital sins and is not perpetually committing minor sins.

It is also to be noted that the failure to perform a single prayer in the life of the male witness will disqualify him from meeting the strict requirement as a witness.

Under the SPCO, the minister said, the punishment of whipping is done with moderate force, with the offender being fully clothed and the whipping not resulting in the laceration of the skin or breaking of bones.

He also said that the imposition of the death penalty for murder upon the satisfaction of extremely high evidential threshold can be avoided by a pardon from the next of kin of the victim, or upon payment of blood money if requested by the next of kin.

The minister also stressed Brunei’s stance that the hadd and qisas punishments in the SPCO are not man-made laws, but are ordained by Allah the Almighty in Al-Quran and in the hadiths of Prophet Muhammad (pbuh), and should not be misunderstood as any kind of radicalisation.

He reaffirmed that the SPCO focusses more on prevention than punishment.

“It aims to educate, deter, rehabilitate and nurture rather than to punish It seeks to strike the right balance between protecting the rights of the accused person and the rights of the victims and families. Similar to the common law system, the presumption of innocence and due process are strictly adhered to in ensuring a just and fair trial where offenders are tried before a proper court which is presided over by qualified and trained judges, not only in Syariah law but also in the principles of the common law,” the minister said.

In the letter, the minister also reiterated Brunei’s commitment to its international obligations in promoting and protecting human rights as enshrined in the Charter of the UN and the Universal Declaration of Human Rights (UHDR).

“As a responsible member of the international community, Brunei will continue to uphold its obligations and adhere to international covenants of human rights to which Brunei is a party, including the Convention on the Elimination of All Forms of Discrimination against Women. Brunei’s signature to the UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) in 2015 testifies our strong rejection to acts of torture,” he said.

Brunei, the minister stated, has also undergone two cycles of the Universal Periodic Review (UPR) in 2009 and 2014 respectively, “reflecting its strong commitment to the UN human rights mechanisms”.

The minister additionally maintained Brunei’s commitment to the third cycle of the UPR in May this year.

“Strong religious values with rich heritage of tradition and culture forms the very foundation of the unique Bruneian identity – loving, peaceful and respectful community and Islam as an official religion is the way of life for its people,” he said.

The minister highlighted that Brunei takes pride in its own sovereignty, and like all other independent countries, “enforces its own rule of laws reflecting its own cultural and religious values”.

He maintained that the realisation of international human rights must be considered in the national context, bearing in mind the diversity and the different political, economic, legal, social, cultural, historical and religious backgrounds of the world.

“It must be appreciated that the diversities in cultural, traditional and religious values in the world means that there is no one standard that fits all. This necessitates tolerance, respect, understanding and the giving of policy space, especially for small states like Brunei which strive to preserve their own traditional, religious and cultural values,” the minister added, also mentioning Brunei’s belief and trust that the UN embraces and continues to uphold the sovereign equality of all its members as stipulated in Article 2 of the UN Charter.

He underlined that although Islam is Brunei’s official religion, the constitution also explicitly stipulates that the country recognises the right of non-Muslims to practice their religions in peace and harmony.

In his letter, the minister highlighted as well that Brunei will also “continue to practice a dual legal system based on Syariah and common laws that will run in parallel to maintain peace and order to preserve religion, life, family and individuals regardless of gender, nationality, race and faith”.