Practising a dual criminal justice system

BANDAR SERI BEGAWAN: With the strengthening of Syariah Criminal Law in the country, will we see an eventual merging of Civil and Syariah Criminal Laws into one Penal Code system one day?

To answer this question, Borneo Bulletin spoke to Attorney General Datin Seri Paduka Hajah Hayati binti Pehin Orang Kaya Shahbandar Dato Seri Paduka Haji Mohd Salleh at the Knowledge Convention yesterday.

Datin Seri Paduka Hajah Hayati described the dual code system being practised by the two courts in terms of processes and procedures, and regarding the future, there are thoughts of one single Penal Code.

“I am not saying it will happen but as I say, there are thoughts of one Penal Code system,” she said, adding that she was unsure if it will “be a merged code or just based on Syariah only”.

Only time will tell whether this will happen or not, and according to the Attorney General, if it is to happen, it will also depend on whether the country is ready for it.

What is currently in place is a Civil Penal Code running alongside Syariah.

Regarding the newly launched ‘The Syariah Penal Code: An Introduction’, she said, “As the Attorney General, inevitably, I have continuously been confronted with many questions, at times, provocative ones on the Syariah Law and its implementation in Brunei Darussalam.”

“I must confess that not being an expert in the field of Syariah Law, I cannot and dare not attempt to provide answers and I, like many others, must learn only from the experts.

The publication of this special book penned by Pehin Datu Seri Maharaja Dato Paduka Seri Setia (Dr) Ustaz Haji Awang Abdul Aziz bin Juned, State Mufti of Brunei Darussalam, is renowned for his unique writing style is therefore very timely indeed.”

She said that bringing in the Syariah Criminal Code was a challenge.

The implementation of the Syariah Criminal Penal Code opens a new chapter in the nation’s legal system and unique challenges.

In her talk, she discussed the current Civil Justice system, where in Brunei Darussalam, there is no trial by jury.

Cases are heard by a judge or magistrate, unless cases involve the death sentence, which is then heard by two High Court judges.

The Magistrate Court hears most of the criminal cases such as theft, bribery, misuse of drugs and traffic-related incidents.

A magistrate can pass a sentence of not more than seven years and of a fine not more than $10,000.

Cases involving persons under the age of 18 years old is heard by the Juvenile Court.

More serious cases are sent to the High Court, while the Intermediate Court has the same power as the High Court but cannot pass sentences of imprisonment exceeding 20 years or hear cases involving the death penalty.

In the Court of Appeal cases are heard by three judges headed by the President of the Court of Appeal.

The Syariah Criminal Penal Code Order, which has 254 Chapters divided into five sections, is meant for Muslims and non-Muslims.

Offences under the Syariah Court include pregnancy outside marriage, not performing Friday prayer, not honouring Ramadhan, close proximity, indecency, men acting like women, women acting like men, practising black magic, propagating a religion other than Islam and worshipping idols.

Cases that can be heard by both Civil and Syariah Courts include theft, robbery, statutory rape, unlawful carnal knowledge, criminal defamation, homicide, causing hurt, extortion and more.

The Attorney General provided an example for explaining the jurisdiction between the Syariah and Civil Courts and its associated challenges.

For example, a robber enters a house and when the house owner tries to prevent the robbery, the robber kills the owner before escaping with the stolen items.

The robber can be charged under Chapter 55 for theft under Syariah law and Chapter 380 for theft under the Penal Code.

For the charge of murder, the robber can be charged under Chapter 126 of the Syariah Criminal Code as well as under Chapter 302 ‘culpable homicide amounting to murder’ of the Penal Code.

Datin Seri Paduka Hajah Hayati also highlighted that other judicial bodies also have power concomitant with criminal cases, which can also be used as guidance in the implementation of the Syariah Criminal Code and the Penal Code.

For example, Courts Martial have jurisdiction under the Royal Brunei Armed Forces Act to hear criminal cases conducted by military personnel.

These cases are not only limited to military offences such as failure or neglect of duty or scandalous conduct, but also include offences that can be brought under the Penal Code such as theft, robbery and other offences.

In practice, the RBAF will only take action on military personnel for military offences. For other type of offences, RBAF will refer investigation and prosecution according to civil procedure or in line with Royal Brunei Police

Force investigations, with the prosecution lying in the hands of the Civil Court.

Similarly, cases such as unlawful intercourse can be charged under the Islamic Religious Council Act and also under the Penal Code and Unlawful Carnal Knowledge Act.

Normally, if it involves a woman under the age of 16, the criminal procedure will be carried out in Civil Court. If the offender is an adult, the prosecution will be made at the Syariah Court.

The Attorney General made a reference to the titah of His Majesty the Sultan and Yang DiPertuan of Brunei Darussalam, saying that it is clear that His Majesty’s vision is to have a nation with a unique justice system where the Syariah and Civil systems run concurrently.

With the implementation of the dual Criminal Penal Codes, she explained that investigation and prosecution of cases under the Syariah Court will be investigated by religious law enforcement, while assisted by the police and other law enforcement agencies if needed.

For offences that are under both the Civil and Syariah Codes, cases will be investigated by the police, while assisted by religious law enforcement and other law enforcement agencies if needed.

The Attorney General said the success of the implementation of the Syariah Criminal Code needs the involvement of the Attorney General’s Chambers, Syarie Prosecution Division, Religious Enforcement Divison, Prisons Department and lawyers.

A penal committee has been formed to assess this need and its implementation will be carried out in stages.

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