Friday, 14 October 2011

Syariah-compliant penal code

HRH Princess Hajah Muta-Wakkilah Hayatul Bolkiah on the second day of the International Seminar on Islamic Law, held at the BRIDEX Conference Hall. Picture: BT/Saifulizam
Friday, October 14, 2011
Review to integrate Islamic laws into existing civil legislation

BRUNEI Darussalam will soon see the creation of a unique hybrid legal system where Islamic laws are integrated into existing civil legislation, making them Syariah-compliant.

All existing legislation in Brunei will be reviewed to ensure they are Syariah-compliant and amendments will be made to any sections that contradict Islamic law, said the Head of the Research and Law Review Division at the Attorney General's Chambers yesterday. "Instead of having a separate Act or set of laws to apply to Muslims, Syariah laws will be integrated into the existing Penal Code and other offences that are punishable under Hudud," said Senior Counsel Zuraini Hj Sharbawi.

Hudud crimes are offences where punishment has been set by Allah (SWT). Hudud laws cover six areas: theft, illicit sexual relations, making unproven accusations of illicit sex, drinking intoxicants, apostasy and robbery.

Zuraini explained that the reforms committee will be creating a new hybrid system that has not been seen anywhere in the world.

"It would be unique and very special to Brunei... We're not using a model from another country this is His Majesty's vision."

However, there are crimes which are not punishable under Hudud. These offences, called Takzir, will still be dealt with through the civil courts.

"When we bring it together there will no longer be Syariah courts or civil courts, there will be Hududcourts and Takzir courts," said the senior counsel.

Many people have voiced concern over some of the draconian punishments prescribed under Hudud, such as the severing of hands for theft or flogging for sex outside marriage.

"You have to understand the burden of proof is very, very difficult for Hudud," said Zuraini.

"It is highly likely that the majority of cases will end up in civil courts because the evidence does not meet the burden of proof under Hudud laws."

Citing an example, she said for someone to be punished for sex with a minor, there must be at least four witnesses to fulfil the burden of proof.

"In civil courts, cases must be proven beyond a reasonable doubt. In Syariah there must be no doubt."

A panel will be set up to analyse each case and determine whether a specific offence has sufficient evidence to proceed under the Hudud court.

The senior counsel said minor amendments to the Criminal Procedure Code (CPC) laws that outline the legal process will also be made.

"What we're trying to do now is have just one Syariah-compliant CPC which can be used for both Hududand Takzir courts. Because you're using the same one (for both courts) there is fairness in that."

"(We are trying to come up with it) as fast as we can. In His Majesty's titah it is clear he's not happy with waiting five more years, eight more years, so the urgency is there." The Brunei Times