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INTRODUCTION
CLASSIFICATION OF OFFENCES
TO WHOM THIS ORDER APPLIES?
ENFORCEMENT PHASE
METHODS OF PROOF
OFFENCES AND PUNISHMENT
GENERAL OFFENCES
CONCLUSION
CONTENTS
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
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)
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
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
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
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
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