Quit focusing on punishments, they are not the aim of Syariah law: Brunei's Attorney-General

Attorney General Datin Hjh Hayati deliver a special talk during the Syariah Penal Code Declaration Ceremony held at International Convention Center in Berakas

BANDAR SERI BEGAWAN - Brunei's Syariah law has strict and complex due process that deserves the attention of the outside community, the Attorney-General said yesterday, adding that punishment is not the aim of the new code.

In her lecture during the Syariah Penal Code Order 2013 declaration ceremony at the International Convention Centre (ICC), YB Datin Seri Paduka Hjh Hayati Pehin Orang Kaya Shahbandar Dato Seri Paduka Hj Mohd Salleh cited "three clear distinctions of the Syariah Penal Code that impressed me that are absent in civil courts".

She said: "It's crucial that we and the outside community understand these distinctions and not continue to focus on the punishments but shift it to the code's strict and complex due process."

One such distinction is that witnesses' testimonies in hudud (fixed penalty) cases and qisas (retaliation) must be fair and cannot contradict one another, she said.

The attorney-general noted that the code takes into account the victim's rights or victim's inheritance, including family members.

"Punishments for intended murder under the Syariah and Civil Law Penal Codes are the same - the death penalty," she said.

"However, in Syariah courts, before the punishment is carried out, the victim's inheritor can forgive qisas or retaliation either with compensation (diyat) - the court or government cannot intervene in this affair."

Third is the caning punishment, YB Datin Seri Paduka Hayati said, adding that she had witnessed a caning demonstration during a visit to the Prisons Department. She noted that the cane, when carrying out a punishment under civil law, is frighteningly swung with extreme force during whipping.

In comparison, the attorney-general referred to an explanation by the State Mufti, who said about caning under Syariah: "It suffices that the hand is raised slowly and caning strike on the back is done evenly - not just on one area."

YB Datin Seri Paduka Hayati said: "Punishments only act as the tool and not the aim of the Syariah Penal Code." She added that she was made to understand the Syariah courts have prepared a five-year (2013-2017) plan to strengthen the Syariah courts.

"In my opinion, there is no disputing against the Syariah law and the noble responsibility of a Sultan who loves his people and is loved by his people to exercise his responsibility as Ulil Amri - (because) who are we to boldly oppose the laws of Allah (STW)," YB Datin Seri Paduka Hjh Hayati said.

While noting the "we are made to understand" that the Syariah law has "very high standards of convictions - meaning without doubt", she acknowledged that the code's success would depend on the agencies' knowledge, understanding, discipline, integrity and practical training in exercising the punishments.

"Indeed it's challenging to provide accurate answers to general and hypothetical questions especially when there is yet to be a case under the Syariah Law Penal Code 2013, brought over to court that can be used as a guide," she said.

Meanwhile, the attorney-general said the Religious Enforcement Office will lead investigations on crimes that fall under Syariah courts, while the Royal Brunei Police Force (RBPF) will take charge of overlapping cases that fall under both the Syariah and civil courts.

It was previously reported that the Ministry of Religious Affairs had proposed the integration of religious enforcement officers into the RBPF once the Syariah law comes into effect.

She said cases under the Syariah court include not performing Friday prayers and close proximity.

Propagating a religion besides Islam will be investigated by the Religion Enforcement Office and can be aided by RBPF and law enforcement agencies if needed.

"Once the investigations are complete, the investigation paper will be forwarded for review by the Syariah chief prosecutor with the aid of public prosecutors if needed," she said.

YB Datin Seri Paduka Hayati said that for overlapping cases - crimes under the Syariah and civil courts such as theft and rape - will be reported to and investigated by the RBPF and assisted by the Religious Enforcement Unit when the need arises.

"After the investigations are done, the investigation paper will be reviewed by public prosecutors aided by Syar'ie Court judges if necessary," she said.

To determine the overlapping cases, the attorney-general said when there is enough evidence to prove the Syariah law offences, or if the suspect makes a confession, the case would then be transferred to the Syariah court. Charges would then be made by the Syarie prosecutor, with the help of the deputy public prosecutor when the need arises.

YB Datin Seri Paduka Hjh Hayati said an assessment will be made to determine whether there is sufficient evidence to prove the crime or if the suspect confesses to a crime.

"In this situation, the case will be brought to the Syariah court with the prosecution made by Syar'ie prosecutors and aided by the deputy public prosecutor if necessary," she said.

"If it is not a Syariah offence, then the prosecution will continue under the civil court's penal code," she added.

Hence, she said a preliminary investigative and prosecution process for overlapping crimes will be conducted to set the appropriate court - Syariah or civil - so a person will not be tried twice for a similar offence.

It is inaccurate to say that the civil law penal code will be abolished, she said.