Understanding Brunei's Lawmaking Process

Brunei is an Islamic country with a unique system of law. As a former British protectorate, its legal system is based on British common law. However, it also has a parallel Syariah law system for Muslims, which takes precedence in areas such as family and property law. In 2014, Brunei became the first Southeast Asian country to adopt strict Syariah criminal law, which applies to both Muslims and non-Muslims. This has resulted in a formidable set of laws and customs that govern the country and its people.

The role of the Sultan

The Sultan of Brunei is the absolute monarch and head of state and government. He is the King, Prime Minister, Minister of Defence, Minister of Finance, and Minister of Foreign Affairs and Trade. The Sultan is also the official 'guardian and protector' of Islam and tradition in Brunei.

The Sultan's role in law-making is significant. Brunei has been ruled under a State of Emergency since 1962, which grants the Sultan wide legislative powers. During this State of Emergency, the Sultan may pass any legislation he deems beneficial by Emergency Order, without judicial review.

In 2014, Brunei began implementing Sharia law, with the Sultan declaring that these laws should be regarded as "special guidance" from God. The Syariah Penal Code Order (SPCO) was scheduled to come into force in April 2019, but following international condemnation, the Sultan extended a moratorium on the death penalty to include the SPCO. The moratorium could be lifted at any time by the Sultan, reinstating death-by-stoning punishments.

The Sultan's role as the absolute monarch and protector of Islam in Brunei means that he has significant influence over the country's laws and their implementation. The Sultan's powers allow him to shape the legal landscape of the country, particularly through the use of Emergency Orders and the implementation of Sharia law.

Sharia law

Brunei's legal system is based on British common law, with a parallel Sharia law system for Muslims. The Sharia Penal Code (SPC), which came into force in 2019, applies to both Muslims and non-Muslims, including foreigners, although non-Muslims are exempt from certain sections. The SPC outlines corporal and capital punishments for offences such as murder, theft, adultery, rape, sodomy, apostasy, blasphemy, and other acts deemed crimes under Sharia law. These punishments include fines, imprisonment, whipping, caning, amputation of hands or feet, or death (including by stoning).

The implementation of the SPC has been controversial, with critics arguing that it curtails the rights of minorities and discriminates against vulnerable groups, including children, women, and religious and sexual minorities. The code imposes the death penalty for adultery, homosexuality, and insulting or defaming the Prophet Mohammed, and bans the propagation of religions other than Islam. It also includes provisions that discriminate against women and girls, such as punishing extramarital sex and imposing death by stoning as punishment. The code also bans indecent behaviour, including pregnancies out of wedlock, and criminalises any act that "tends to tarnish the image of Islam".

The SPC incorporates longstanding Sharia-based domestic laws that prohibit the sale and consumption of alcohol, propagating religions other than Islam, eating in public during the fasting hours of Ramadan, cross-dressing, and close physical proximity between unmarried persons of the opposite sex. It also prohibits non-Muslims from proselytising Muslims or other non-Muslims.

While the SPC has been criticised for its harsh punishments and restrictions on freedom of religion, the Bruneian government has defended it as essential to the country's way of life and as a defence against extremism. The government describes its official national philosophy as Melayu Islam Beraja (MIB) or Malay Islamic Monarchy, which encompasses Malay cultural influences, the importance of Islam in daily life and governance, and respect for the monarchy.

In practice, the impact of the SPC on the lives of Bruneians has been varied. Some sources suggest that it has not significantly affected the lives of most Bruneians, while others highlight specific groups, such as religious minorities and the LGBTQ+ community, who have faced social pressure and fear of persecution due to the SPC's provisions.

LGBT rights

Brunei's LGBT community faces significant legal challenges and discrimination. Homosexuality has been illegal in the country since 1906, when it became a British Protectorate, and same-sex sexual activity was criminalised. Since then, Brunei has gained independence and become a constitutional monarchy with a ministerial government, and an absolute monarchy with the Sultan as head of state and government.

The country operates under Sharia law, which includes strict rules based on its reverence for religion. In 2014, Brunei began implementing Sharia law in stages, and in 2019, the Syariah Penal Code (SPC) was finalised, which included provisions for punishing homosexual acts with death by stoning. This sparked international condemnation, and a celebrity-backed boycott of luxury hotels owned by the Sultan of Brunei. As a result, the government extended a moratorium on the death penalty, which was still in effect as of May 2023. However, the moratorium could be revoked at any time, as the Sultan holds absolute power.

Under the SPC, sexual activity between men is de jure liable to capital punishment, with de facto penalties of imprisonment and whipping applied. Sexual relations between women are punishable by caning, imprisonment, and fines. The LGBT community in Brunei is largely hidden, and individuals feel the need to remain discreet about their sexual orientation. They face unofficial and societal discrimination in employment, housing, recreation, and education. They have also reported intimidation by police, and monitoring of their activities and communications.

Brunei's penal code has been described as a "deeply flawed piece of legislation" by Amnesty International, and the United Nations has called it "cruel, inhuman and degrading". The country's implementation of these laws has been delayed in the past due to international pressure, and there are doubts about whether the strictest punishments will be enforced. However, the existence of these laws and the climate of fear they create have a significant impact on the rights and freedoms of LGBT individuals in Brunei.

The death penalty

• Insulting or defaming the Prophet Muhammad (articles 63, 76 and 220)
• Rape (articles 75 and 76)
• Adultery (articles 68 and 69)
• Sex between unmarried couples (zina) (articles 68 and 69)
• Anal sex (liwat) (article 82)
• Robbery (articles 62-63)

The Syariah Penal Code's provisions for the death penalty violate Brunei's obligations under international human rights conventions, including the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The right to life is enshrined in article 3 of the Universal Declaration of Human Rights, and arbitrary deprivation of life is prohibited under international law.

In response to international backlash, the Sultan of Brunei announced in May 2019 that the country would adopt a "de facto moratorium on the execution of the death penalty" for cases under the Syariah Penal Code, including those related to anal intercourse and sex between unmarried couples. However, this moratorium does not address broader human rights concerns, and the death penalty could be restored at any time.

The monarchy and the constitution

Brunei is an absolute monarchy, with the Sultan of Brunei as both head of state and head of government. It is the only ruling monarchy in Southeast Asia and one of the few remaining absolute monarchies in the world. The Sultan is the King, Prime Minister, Minister of Defence, Minister of Finance, and Minister of Foreign Affairs and Trade. He is also the official 'guardian and protector' of Islam and tradition in Brunei.

The Sultan holds absolute power in the state for administrative purposes. Since 1962, Brunei has been under a state of emergency, which is renewed every two years, and during this time, the Sultan retains absolute authority. The Sultan's legislative powers are extensive, and he can pass any legislation he deems fit by Emergency Order without any judicial review of his actions.

The country gained independence from the United Kingdom on 1 January 1984, and the Sultan became prime minister, leading a six-member government. The Sultan's government pays for education, healthcare, and most other living expenses of its citizens, financed through Brunei's oil and natural gas wealth. The Sultan is one of the richest men in the world, and his lifestyle is often described as hedonistic.

The country's governance is guided by the Constitution and the state ideology of Melayu Islam Beraja (MIB) or 'Malay Islamic Monarchy', which combines Islamic law, Malay culture, and monarchical rule. The laws of Brunei consist of the Constitution, Statutes and subsidiary legislation, Islamic laws, caselaw/judicial precedent, and the common law of England.

Frequently asked questions