Pursuing Over-Criminalization at the Expense of Islamic Law

Abstract

This short essay provides a critical assessment of certain aspects of Brunei’s new criminal code. The international community has rightly condemned the Code’s potential violations of human rights norms against torture and individual freedom. Most condemnations have focused on provisions for capital punishment, whipping, and amputation for the new Code’s crimes of liwāṭ (sodomy), zinā (unlawful sexual intercourse between heterosexuals), and theft. But little attention has been paid to the Code’s departures from classical Islamic law’s substantive and procedural constraints; departures that allow legislators and prosecutors to criminalize more conduct. For example, the Code permits punishment of offenders who lack legal capacity, requires four eyewitnesses to prove rape, and prosecutes beliefs through punishing attempted apostasy. For these reasons, despite the procedural protections and heightened standards of doubt jurisprudence, the new Code entails many other provisions that signal the need for greater caution and perhaps further modification. This essay argues that Brunei codified Islamic criminal law in a way that creates novel crimes and disregards defendant rights, thus diverging from norms of fairness and cultural accommodation present in the precedents and mores of the very Islamic system which it seeks to reinterpret for its society today.

Keywords: Islamic Law, Brunei, codification, criminal law, criminal procedure, inchoate crimes, law reform, rape, Southeast Asia, Sharia