INTRODUCTION

CLASSIFICATION OF OFFENCES

TO WHOM THIS ORDER APPLIES?

ENFORCEMENT PHASE

METHODS OF PROOF

OFFENCES AND PUNISHMENT

GENERAL OFFENCES

CONCLUSION

CONTENTS

OBLIGATION TO IMPLEMENT LAWS

According to Al-Quran and Sunnah

Al-Maidah: verse 49

Al-Quran:

وال نـهم مبا أنـزل اهلل وأن احكم بـيـتـتبع أهواءهم واحذرهم أن يـفتنوك

إليك …عن بـعض ما أنـزل اهلل

“And judge, [O Muhammad], between them by what Allah has revealed and do not follow their inclinations and beware of them, lest they tempt you away from some of what Allah has revealed to you...”

Sabda Rasulullah Sallallahu ‘Alaihi Wasallam which implies: Whoever has been imposed hadd penalty, his penalty will be expediated in the world, Verily Allah is Just from repeating the same punishment in the Hereafter, and whoever has been executed the hadd penalty, verily Allah will cover and forgive him. Verily Allah is Noble from repeating the punishment on whom He hath forgiven.

Hadith:

PROCLAMATION OF SYARIAH PENAL CODE, 2013

“…With the blessings of Allah, this legislation will be gazetted today, the 22nd of October, 2013, and will come into force six months hereafter in phases. By the Grace of Allah, with the coming into effect of this legislation, our duty to Allah is therefore being fulfilled…”

Titah in conjunction with Knowledge Convention on 17th Zulhijjah 1434 / 22nd October, 2013

CLASSIFICATION OF OFFENCES

TYPES OF PUNISHMENTS IN THE SYARIAH PENAL CODE ORDER 2013

Punishments as specified in the

Quran and Hadith

Punishments fixed by the Head

of State (Ta’zir) Includes fine, imprisonment,

whipping and death

• Punishment as ordained by the Quran and Hadith Hadd

• Retaliation or similar punishment Qisas

• Specified amount payable to heirs of victim of qatl Diyat

• Compensation payable to the victim of hurt Arsy

TYPES OF OFFENCES ACCORDING TO SYARIAH

HADD QISAS TA’ZIR

Sariqah (theft) Offences against the

human body:

Qatl (causing death)

or causing

hurt

Offences other than hudud and

qisas

Hirabah (robbery)

Zina (adultery) which includes Zina bil-jabar

(rape) and liwat (sodomy)

Qazaf (Accusation of zina / zina bil-jabar / liwat)

Intoxicating drinks

Irtidad (apostasy)

TO WHOM DOES THIS ORDER APPLY ?

MUSLIMS

AND NON – MUSLIMS

Offences committed abroad by a citizen or permanent resident

may be prosecuted in Brunei. [Section 6(3) Syariah Courts Act

Cap.184]

OFFENCES COMMITTED OUTSIDE BRUNEI DARUSSALAM

ENFORCEMENT

PHASES

FIRST PHASE

April 2014

All Offences under Part IV Chapter IV that are punishable only by

FINE OR IMPRISONMENT

FIRST PHASE

Certain offences apply to non-Muslims subject to circumstances:

Khalwat (close proximity) if committed with a Muslim

MUSLIMS ONLY

Failure to perform Friday prayer Unmarried female Muslim leaves

custody of her parents / guardian without reasonable excuse

Non-payment of zakat or fitrah Give away or surrender a Muslim

to non-Muslims Worship Muslim woman pregnant out of

wedlock (except victim of rape)

MUSLIMS AND NON-MUSLIMS

Disrespecting the month of Ramadhan

Indecent behaviour Man posing as woman or

vice versa Man who impregnates

Muslim female out of wedlock

SECOND PHASE

after the Syariah Courts Criminal

PROCEDURE Code (SYARIAH CPC) is gazetted

All offences punishable by

except offences punishable by DEATH

12 months

HADD, QISAS, WHIPPING, DIYAT AND ARSY

SECOND PHASE

In addition to the above, some offences apply to non-Muslims subject to circumstances:

Drinking intoxicating liquor in a public place

MUSLIMS ONLY

Section 206 False claim

(e.g. claiming to know a matter that is beyond human

understanding or knowledge, contrary to Hukum Syara’)

MUSLIMS AND NON-MUSLIMS

Sariqah (theft) Hirabah (robbery) Qazaf (accusation of

zina, zina bil-jabar or liwat) Causing hurt

THIRD PHASE

after the Syariah Courts Criminal PROCEDURE

Code (SYARIAH CPC) is gazetted

The Order will be FULLY enforced including offences punishable by death

24 months

THIRD PHASE

MUSLIMS ONLY Declaring oneself as God Declaring oneself as Rasul or Nabi Irtidad (apostasy)

MUSLIMS AND NON-MUSLIMS

Qatl (causing death) Contempt of Prophet

Muhammad Deriding verses of al-

Quran or hadith (sayings) of the Prophet

METHODS OF PROOF

SOME IMPORTANT TERMS USED IN SYARIAH LAW OF EVIDENCE

IKRAR

A statement made by a person orally, in writing or by gesture, that he is under some

obligation to another person in respect of some right (Confession)

SYAHID A person who gives evidence by syahadah (A witness who fulfills the requirements

necessary for syahid witnesses)

‘ADIL

A Muslim who performs the prescribed religious duties, abstains from committing

capital sins and is not perpetually committing minor sins

SOME REQUIREMENTS OF IKRAR DAN SYAHID

REQUIREMENTS OF IKRAR (Confession)

•Sound Mind •Attained puberty •Voluntary

REQUIREMENTS OF A SYAHID WITNESS

•Sound Mind •Attained puberty •‘Adil •Possess good memory •Able to speak, see and hear (HADD and QISAS cases)

Number of syahid (witnesses) For Hadd Punishments

Sariqah (Theft)

2 male syahid (witnesses)

Hirabah (Robbery)

Qazaf (Accusation of Zina (Adultery), Zina bil-jabar (Rape) and Liwat (Sodomy))

Drinking intoxicating drinks

Irtidad (Apostasy)

Number of syahid (witnesses) For Hadd Punishments

Zina (Adultery), Zina bil-jabar (Rape),

Liwat (Sodomy)

4 male syahid (witnesses)

Number of syahid (witnesses) For Qisas And Diyat Punishments

Qatlul-‘amd (Intentional Murder)

2 male syahid (witnesses)

Qatlu Syibhil-‘amd (Intention To Cause Harm To

The Body Or Mind Of A Person Which Causes

Death)

• 2 male syahid (witnesses); • 1 male syahid (witness) and

2 female syahid (witnesses); or • 1 male syahid (witnesses) and

oath of the complainant Qatlul Khata’

(Unintentional Murder / Injury Which Causes Death)

Causing Hurt 2 male syahid (witnesses) other than testimony of victim

OFFENCES PUNISHABLE WITH HADD, QISAS OR DIYAT

CONFESSION OR TESTIMONY OF WITNESSES (BAYYINAH /

CIVIL STANDARD)

CIRCUMSTANCIAL EVIDENCE e.g.: CCTV, DNA, ETC

OR ANY OTHER ADMISSIBLE EVIDENCE ACCORDING TO

LAW

(BEYOND REASONABLE DOUBT)

IKRAR OR SYAHADAH

HADD, QISAS OR DIYAT PUNISHMENT

TA’ZIR PUNISHMENT

MEETS ALL REQUIREMENTS

AND CONDITIONS (NO DOUBT AT ALL)

FAILS TO MEET ALL REQUIREMENTS AND

CONDITIONS BUT THERE IS CREDIBLE EVIDENCE THAT IS ADMISSIBLE

e.g. CCTV, DNA, (BEYOND REASONABLE

DOUBT)

GENERAL OFFENCES

METHOD OF PROVING OFFENCES

TA’ZIR PUNISHMENT

OFFENCES & PUNISHMENTS

HADD (SPECIFIC PUNISHMENTS)

Offences Hadd Punishments

Punisments other than Hadd

Sariqah (theft)

Amputation of hand

Fine, imprisonment or both

Hirabah (robbery)

Death / amputation of right hand and left foot/ qisas

Imprisonment and whipping

Qazaf (accusation

of Zina, Zina bil-jabar or

li t)

Whipping 80 strokes

Fine, imprisonment,

whipping or combination of any

two

HADD (SPECIFIC PUNISHMENTS) Offences Hadd

Punishments Punisments other

than Hadd Zina

(adultery) Stoning to death

(muhshan) OR

Whipping 100 strokes

(ghairu muhshan)

Whipping and imprisonment

Zina bil-jabar (Rape) Liwat

(sodomy) Drinking

intoxicating drinks

Whipping 40 strokes

Fine, imprisonment or

both Irtidad

(apostasy) Death (if refuses

to repent) Imprisonment and whipping

ZINA (ADULTERY) Applies to a non-Muslim if committed with a Muslim

• If proven by way of ikrar or syahadah, stoning to death

• Otherwise, whipping ≤ 30 strokes AND imprisonment ≤ 7 years

Muhshan

• If proven by way of ikrar or syahadah, whipping 100 strokes AND 1 year imprisonment

• Otherwise, whipping ≤ 15 strokes AND imprisonment ≤ 3 years

Ghairu muhshan

SEXUAL ACTS BETWEEN MEMBERS OF THE SAME SEX

• Liwat (sodomy) • Punishment similar with zina • If proven by way of ikrar or syahadah,

stoning to death (muhshan) or whipping 100 strokes (ghairu muhshan)

• Otherwise, whipping AND imprisonment

Between man and

man

• Musahaqah (lesbianism) • Applies to non-Muslim if done with a

Muslim • Fine ≤ $40,000, imprisonment ≤ 10 years,

whipping ≤ 40 strokes, or combination of any two of the punishment

Between woman

and woman

QISAS (RETALIATION) , DIYAT (RESTITUTION) AND ARSY (COMPENSATION)

Unintentional hurt- causing

Offences Punishments Qatlul-’Amd (Intentional Homicide) Death

Qatlu Syibhil-’Amd (Intention To Cause Harm To The Body Or Mind Which Causes Death)

Diyat (Restitution) & Imprisonment

Qatlul-Khata’ (Unintentional Homicide)

Causing Hurt Qisas (Retaliation) or Arsy (Compensation) & Imprisonment

“Diyat” means the specified amount payable to the heirs of victim of qatl. “Badal-al-sulh“ is mutually agreed compensation in accordance with Hukum Syara’ to be paid or given by the offender to the wali-ad-dam in cash or in any kind or form of movable or immovable property.

Value of Diyat (Restitution)

1000 dinars (4250 grams of gold) or its equivalent in local currency at the time when

qatl is committed.

Illustration–

1 gramme of gold = $80.00 4250 gram emas x $80.00 = $340,000

GENERAL OFFENCES

Fine ≤ $4,000 Imprisonment

≤ 1 year or both

SECTION 195:

DISRESPECTING MONTH OF RAMADHAN

(1) Consumes any food, drink or tobacco in a public place

(2) sells/serves any food, drink or tobacco for immediate consumption at that spot, in a public place

(4) Employer abetting the commission of an offence under subsection (2)

EXCEPTION:

Medical Practitioner or

Any other person

who serves any food, drink or medicine to any patient during the fasting hours in the month of Ramadhan without which such patient will

be affected.

SECTION 196: KHALWAT

Isolating oneself in close proximity that can lead to

suspicion that they are committing an immoral act

Between man and woman (one or more) who is not *mahram (*whom he/she cannot marry due to family relationship)

Living together, cohabiting, in

confinement; OR Fine ≤ $4,000

Imprisonment ≤ 1 year or both

• Tarnishes the image of Islam;

• Depraves a person; • Brings bad influence;

or • Causes anger to the

person who is likely to have seen the act.

Section 197: INDECENT BEHAVIOUR

Fine ≤ $2,000 Imprisonment ≤ 6 months or

both

Without reasonable excuse:

Fine ≤$1,000, imprisonment ≤ 3 months or both For immoral purposes:

Fine ≤$4,000, imprisonment ≤ 1 year or both

SECTION198: MAN DRESSING AND POSING AS

WOMAN OR VICE VERSA

(1) Practises or advertises black magic

(2) Seeks help from a person who practices black magic

Fine ≤ $20,000 Imprisonment

≤5 years or both

Fine ≤ $8,000 Imprisonment

≤ 2 years or both

SECTION 208: PRACTISING ETC. BLACK MAGIC

PROSELYTIZING Convert or attempt to convert someone from one

religion, belief, or opinion to another

Offence Penalty

209 Propagation of religion other than Islam to a Muslim or person having no religion

Fine ≤ $20,000, imprisonment

≤ 5 years, or both

210 Persuading a Muslim to change religion Fine ≤ $20,000

AND imprisonment

≤ 5 years 211 Persuading a person having no religion to a religion other than Islam

PROSELYTIZING Convert or attempt to convert someone from one

religion, belief, or opinion to another

Offence Penalty

212 Exposing beliefs and practices of religion other than Islam to a Muslim child, or child whose parents have no religion, under 18 years of age

Fine ≤ $20,000 AND

imprisonment ≤ 5 years

214 Delivering or giving publications relating to religion other than Islam to Muslims or persons having no religion

Fine ≤ $2,000, imprisonment ≤ 6 months, or both

215 Giving in public places publications relating to religion other than Islam to Muslims or persons having no religion

Fine ≤ $1,000, imprisonment ≤ 3 months, or both

Fine ≤ $8,000, imprisonment ≤ 2 years or both

SECTION 216: WORSHIP

An act or statement that shows faith to any person, object, thing or animal that such person,

object, thing or animal possesses power for example the ability to bring good luck, increases wealth, grants wishes, heals diseases and others

amounts to an act of worship

Any Muslim who worships any person, place, nature, object, thing or animal

Usage in publication, speech or public statement, any word to state or express any fact, belief, idea, concept, act,

activity, matter or instances of or relating to a religion other than the religion of Islam

Punishment:

Fine ≤ $12,000; Imprisonment ≤ 3 years or both

SECTION 217: OFFENCES IN RELATION TO USE OF CERTAIN WORDS IN RESPECT OF RELIGION OF ISLAM

WORDS WHICH SHALL NOT BE USED IN RESPECT OF RELIGION OTHER THAN RELIGION OF ISLAM

1. Azan 2. Baitullah 3. Al-Qur’an 4. Allah 5. Fatwa 6. Firman Allah 7. Hadith 8. Haji 9. Hukum Syara’ 10. Ilahi

11. Ka’bah 12. Kalimah al-syahadah 13. Kiblat 14. Masjid 15. Imam 16. Mufti 17. Mu’min 18. Solat 19. Wali

EXPRESSIONS WHICH SHALL NOT BE USED BY NON-MUSLIMS IN RESPECT OF RELIGION OTHER THAN

RELIGION OF ISLAM (EXCEPT AS REFERENCE OR CITATION)

1. Alhamdu lillah 2. Allahu akbar 3. Assalamu ’alaikum 4. Astaghfirullah al ’azim 5. A’udzubillahi minasy

syaitanirrajim 6. Bismillahirrahmanir rahim 7. Insya Allah 8. La ilaha illallah

9. La haula wala quwwata illa billahil ’aliyil ’azim

10. Masya Allah 11. Rabbul ’alamin 12. Subhanallah 13. Tabarakallah 14. Wa’alaikumussalam 15. Walillahilhamd 16. Wallaahu ’a ’alam

SECTION 220 contempts or brings into contempt, insults, makes fun of, mocks, mimics or ridicules

Teaching of

Islam

Practice or

ceremony related

to Islam

Words regarded

as holy by

Muslims

Law in force

related to Islam

Sahabat

Tenets of

recognised sect

Fatwa published in

the Gazette

Fine ≤ $12,000, imprisonment ≤ 3 years or both

Proved either by ikrar of the accused, or by syahadah

of at least two syahid

Proved by other evidence

Death penalty Imprisonment ≤

30 years AND whipping ≤ 40

strokes

All the above penalties are subject to sections 226 and 227

SECTION 221 Contempt of Prophet Muhammad

by non-Muslim

Proved either by ikrar of the accused, or by syahadah

of at least two syahid

Proved by other evidence

Death penalty Imprisonment ≤

30 years AND whipping ≤ 40

strokes

All the above penalties are subject to sections 226 and 227

SECTION 222 Deriding etc. verses of Al-Qur’an or

hadith by non-Muslim

CONCLUSION “Beta berharap, sesiapa juga yang berstatus rakyat dan penduduk negara ini, akan sama-sama berdiri teguh dan berganding bahu dalam mendukung dan mengalu-alukan kelahiran Akta yang bersejarah ini. Tidak diragukan lagi, ia adalah sebahagian dari 'sejarah besar' kita dan negara.”

As citizens and residents of this country, we are obliged to have faith and to stand together in supporting the enforcement of the law stipulated by Allah Subhanahu Wata'ala.

Titah in conjunction with Majlis Ilmu on 17th Zulhijjah 1434 / 22nd October, 2013