What explains Brunei’s expansion of the death penalty in 2019?

What explains Brunei’s expansion of the death penalty in 2019?

Claudia Yee | 31 August 2021

In April 2019, Brunei implemented its third phase of the Syariah Penal Code Order 2013. The 2019 revision garnered far more international attention than the first two phases. The media reporting focused on the prescription of the death penalty for same-sex sexual relations (liwat), theft (sariqah), adultery (zina), and blasphemy (irtidad)—though liwat had been criminalized under the second revision in 2016 as punishable by a maximum imprisonment term of 10 years alongside a fine.

Several governments and international human rights organizations have expressed concerns over the expansion of the Penal Code. Human Rights Watch urged Brunei to ‘immediately repeal’ the revisions, pointing out that the 2019 revision does not comply with international human rights law. Amnesty International expressed concern about the introduction of ‘cruel punishments such as death by stoning’. The UN High Commissioner for Human Rights, Michelle Bachelet, also urged Brunei to halt the introduction of the ‘draconian new penal code’. The Australian government followed French, German, UK, and US governments in raising concerns about the 2019 revision with the Brunei government.

The 2019 revision, which expanded the scope of the death penalty, is significant because Brunei is classified as a de facto abolitionist state and has not executed anyone since 1957.

Sultan Haji Hassanal Bolkiah’s response to the international backlash

In addressing the international backlash, Sultan Haji Hassanal Bolkiah announced that Brunei will continue to observe its moratorium on executions—including the new capital offences introduced under the 2019 revision:

We are conscious of the fact that misperceptions may cause apprehension [about the implementation of the Syariah Penal Code Order]. However, we believe that once these have been cleared, the merit of the law will be evident. . . As evident for more than two decades, we have practised a de facto moratorium on the execution of death penalty for cases under the common law. This will also be applied to cases under the SPCO [the 2019 revision] which provides a wider scope for remission. (The full English translation of his decree can be found here.)

This statement leads one to ask why the Sultan expanded the application of the death penalty under law in the first place, and why he refused to scrap the 2019 revision, despite widespread international criticism.

Possible reasons for the 2019 revision: from securing a legacy to declining oil reserve? 

Different hypotheses have emerged since the announcement of the 2019 revision. One hypothesis is that the revision was not about law and order but about the Sultan securing his legacy after more than fifty years in power. Another hypothesis views the 2019 revision as the Sultan attempting to rehabilitate his family’s imageafter allegations of sexual misconduct were made against Prince Jefri Bolkiah, who was already subject of public scrutiny due to his extravagant lifestyle and behaviour. By enacting these conservative revisions to the penal code, the Sultan may have hoped that the monarchy would once again be seen by the Bruneian community and the Muslim community outside of Brunei as a credible governing system.

Alternatively, the 2019 revision may be linked to the declining oil reserves, which could result in unemployment and cuts to social welfare. Discontent could build up among citizens. The expansion of the death penalty through the implementation of Sharia Law may have been an attempt  to ‘keep people in line’ and to deter citizens from inciting plans to oppose the government.

We don’t have a concrete answer as to the reasons for Brunei’s Syariah law implementation— but as someone who grew up in Brunei, I have to view the 2019 revision within a broader political-religious context.

Working towards a Zikir nation

The implementation of Islamic law is not new. On the day Brunei declared independence from Britain in 1984, Sultan Omar Ali Saifuddien III, the 28th Sultan of Brunei, declared Brunei to be a ‘sovereign, democratic and independent Malay Muslim Monarchy’, defining the country as a Malay nation governed according to the Islamic faith by a king, who is the sultan and supreme ruler of the nation. This marked the start to Brunei explicitly aiming to become Zikir Nation—a nation that upholds Allah’s laws. Working towards a Zikir nation is part of strengthening the Malay Islamic Monarchy.

Islamic practices and teachings govern every aspect of life. The monarchy, and by extension the government, have erected Islamic courts in the capital, established its first Islamic university, and built more Arabic schoolsIslamic religious education has been integrated into general and religious education as mandated by law. In this vein, the introduction of the new capital offences contributes to achieving the Sultan’s vision of Brunei becoming a Zikir nation.

Fulfilling a religious obligation as the Head of Islam in Brunei

The Sultan’s 2019 revision to the Penal Code may be interpreted an act of fulfilling an obligation as a spiritual leader—namely the Head of Islam in Brunei—to put in place plans to further the country as a Malay Muslim Monarchy and Zikir Nation.  As the Head of Islam in Brunei, the Sultan must obey and practice what he sees as ‘Allah’s orders’, laws and all the teachings in the Sunnah. In recent years, the Sultan has advocated for a hardline vision of Islam, including banning public celebrations of Christmas so that the people are not led ‘astray’ and that they can be prevented from ‘damaging their faith’.

Concerning the 2019 revision, the Sultan argued:

[Fully implementing the Syariah Penal Code Order 2013] is our religious obligation to Allah Subhanahu Wata’ala as an Islamic country. The aim of implementing the law is to uphold the objectives of Syariah which are to protect religion, life, lineage, property, and intellect.

He added that ‘[t]here should not be any concern about the Syariah law as it is full of Allah’s mercy and blessings’. In the Sultan’s perspective, Allah has ‘blessed’ the 2019 revision and this may have been taken as sufficient justification to prescribe the death penalty for non-violent offences mentioned earlier. In doing so, the Sultan likely feels to have fulfilled his religious obligation towards creating a pious Islamic society.

Claudia Yee is a JD student at Monash University. Claudia completed her clinical placement with the Eleos Anti-Death Penalty Clinic in June 2021.