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SYARIAH PENAL CODE ORDER, 2013: A BRIEF INTRODUCTION

SYARIAH PENAL CODE ORDER, 2013: A BRIEF INTRODUCTION. CONTENTS. INTRODUCTION ENFORCEMENT PHASES TYPES OF PUNISHMENTS & OFFENCES TO WHOM DOES THIS ORDER APPLY? METHODS OF PROOF OFFENCES AND PUNISHMENTS (HADD & QISAS)

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SYARIAH PENAL CODE ORDER, 2013: A BRIEF INTRODUCTION

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  1. SYARIAH PENAL CODE ORDER, 2013: A BRIEF INTRODUCTION

  2. CONTENTS • INTRODUCTION • ENFORCEMENT PHASES • TYPES OF PUNISHMENTS & OFFENCES • TO WHOM DOES THIS ORDER APPLY? • METHODS OF PROOF • OFFENCES AND PUNISHMENTS (HADD & QISAS) • CIRCUMSTANCES WHEN HADD PUNISHMENT WILL NOT BE IMPOSED (FOR SARIQAH OR THEFT) • GENERAL OFFENCES • CONCLUSION

  3. OBLIGATION TO IMPLEMENT LAWS According to al-Quran and as-Sunnah

  4. Al-Quran وَأَنِ احْكُمْ بَيْنَهُمْ بِمَا أَنْزَلَ اللَّهُ وَلَا تَتَّبِعْ أَهْوَاءَهُمْ وَاحْذَرْهُمْ أَنْ يَفْتِنُوكَ عَنْ بَعْضِ مَا أَنْزَلَ اللَّهُ إِلَيْكَ… al-Maidah: verse 49

  5. “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 ...”

  6. Essence of the Verse • It is obligatory upon head of the state to implement laws in accordance with what has been revealed by Allah. • We are reminded not to be influenced by any form of inclination that are tempting away from what has been revealed by Allah.

  7. Hadith SabdaRasulullahSallallahu ‘AlaihiWasallamwhich 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. (Narrated by Ahmad, Tirmizi, IbnuMajah from Ali bin AbiThalib)

  8. Essence of the Hadith Punishment by hadd in this world releases the perpetrator from being punished in the Hereafter

  9. 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 17thZulhijjah 1434 / 22nd October, 2013

  10. BRUNEI CONSTITUTION Article 39 & Article 83(3) “...Powers of His Majesty to make laws in the interest of the public and to prescribe penalties…”

  11. enforcement phases

  12. FIRST PHASE 22nd April, 2014 All Offences under Part IV Chapter IV that are punishable only by FINE or IMPRISONMENT

  13. SECOND PHASE 12 months after the Syariah Courts Criminal PROCEDURE Code (SYARIAH COURTS CPC) is gazetted All offences under Part IV Chapter I, II and III that are punishable by HADD, QISAS, DIYAT, BADAL–AL-SULH OR ARSY EXCEPT offences punishable by DEATH

  14. THIRD PHASE 24 months after the Syariah Courts Criminal PROCEDURE Code (SYARIAH COURTS CPC) is gazetted The Order will be FULLYenforced including offences punishable by death

  15. TYPES OF PUNISHMENTS & OFFENCES

  16. TYPES OF PUNISHMENTS Punishment as ordained by the Quran and Hadith Hadd Punishments as specified in the Quran and Hadith Qisas Retaliation or similar punishment Specified amount payable to heirs of victim of qatl(restitution) Diyat • Compensation payable to the victim of hurt Arsy Mutually agreed compensation to be paid to a wali-ad-dam / victim Badal- al -sulh

  17. TYPES OF PUNISHMENTS Punishments fixed by the Head of State (Ta’zir) Fine, imprisonment, rehabilitation, supervison, whipping and death

  18. TYPES OF OFFENCES QISAS, DIYAT, ARSY & BADAL–AL–SULH TA’ZIR HADD Sariqah (theft) Offences other than those punishable with haddor qisas Offences against the human body Qatl (causing death) or causing hurt Hirabah(robbery) Zina (adultery) includes Zinabil-jabar (rape) and liwat (sodomy) Qazaf(Accusation of zina /zinabil-jabar/ liwat) Drinking Intoxicating drinks Irtidad(apostasy)

  19. TO WHOM DOES THIS ORDER APPLY? Muslims and Non-Muslims

  20. Irtidad(apostasy) Worship Non-payment of zakator fitrah Failure to perform Friday prayer AMONG OF offences applicable to Muslims ONLY

  21. AMONG OF OFFENCES APPLICABLE TO BOTH MUSLIMS AND NON-MUSLIMS • Sariqah(Theft) • Hirabah(Robbery) • Qatl(Causing death) • Causing hurt • Contempt of Prophet Muhammad • Deriding etc. verses of Al-Qur’an or hadith • Indecent behaviour • Disrespecting Ramadhan (fasting month)

  22. AMONG OF OFFENCES THAT APPLY TO NON MUSLIMS SUBJECT TO CIRCUMSTANCES • Zina (adultery) if committed with a Muslim • Drinking intoxicating liquor inpublic places • Khalwat (close proximity) ifcommitted with a Muslim

  23. OFFENCES COMMITTED OUTSIDE BRUNEI DARUSSALAM Offences committed abroad by a citizen or permanent resident may be prosecuted in Brunei. Section 6(3) Syariah Courts Act Cap.184

  24. METHODS OF PROOF

  25. METHODS OF PROOF OFFENCES PUNISHABLE WITH HADD, QISAS OR DIYAT • IKRAR (Confession) OR • SYAHADAH SHAHID (Testimony of witnesses) FAILS TOMEET ALL CONDITIONSBUT THERE IS CREDIBLE EVIDENCE THAT IS ADMISSIBLE BY COURT e.g. CCTV, DNA (BEYOND REASONABLE DOUBT) MEETS ALL CONDITIONS (NO DOUBT AT ALL) HADD, QISAS OR DIYAT PUNISHMENT PUNISHMENT OTHER THAN HADD, QISAS AND DIYAT

  26. METHODS OF PROOF GENERAL OFFENCES CONFESSION OR TESTIMONY OF WITNESSES (BAYYINAH / CIVIL STANDARD) OR ANY OTHER EVIDENCE ADMISSIBLE BY COURT e.g. CCTV, DNA, ETC (BEYOND REASONABLE DOUBT) FINE, IMPRISONMENT, REHABILITATION, SUPERVISON, WHIPPING AND DEATH

  27. DEFINITIONS

  28. SOME REQUIREMENTS OFIKRAR (CONFESSION) AND SYAHID (WITNESS) REQUIREMENTS OF IKRAR • SOUND MIND • ATTAINED PUBERTY • VOLUNTARILY REQUIREMENTS OF A SYAHID WITNESS • SOUND MIND • ATTAINED PUBERTY • ‘ADIL • POSSESS GOOD MEMORY • ABLE TO SEE, HEAR AND SPEAK (HADD AND QISAS CASES)

  29. OFFENCES & PUNISHMENTS(HADD, QISAS, DIYAT, ARSY OR BADAL AL-SULH)

  30. HADD

  31. MuhshanA legally married person and had sexual intercourse in the marriage GhairuMuhshan A person who is not married or married but never had sexual intercourse in the marriage

  32. HADD

  33. QISAS (RETALIATION), DIYAT (RESTITUTION), ARSY (COMPENSATION) AND BADAL AL-SULH

  34. QISAS (RETALIATION), DIYAT (RESTITUTION), ARSY (COMPENSATION) AND BADAL AL-SULH

  35. QISAS (RETALIATION), DIYAT (RESTITUTION), ARSY (COMPENSATION) AND BADAL AL-SULH

  36. 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 gramme of gold x $80.00 = $340,000

  37. GENERAL OFFENCES

  38. GENERAL OFFENCESUNDER PART IV CHAPTER IV

  39. Punishments: S.94(1)PREGNANT OUT OF WEDLOCK Muhshan (married and had sexual intercourse in the marriage) GhairuMuhshan (not married / married but never had sexual intercourse in the marriage) Fine ≤ $4,000; Imprisonment ≤1 year or both Fine ≤ $8,000; Imprisonment ≤2 years or both

  40. S.94(5)MAN IMPREGNATES A MUSLIM WOMAN OUT OF WEDLOCK Punishment: Fine ≤ $8,000; Imprisonment ≤ 2 years or both

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