Types of criminalisation

  • Criminalises sex between men
  • Criminalises the gender identity/expression of trans people
Commonwealth member state
Penal Code 1951, Section 377 Unnatural Offences

Section 377 criminalises “carnal knowledge against the order of nature” with a penalty of up to ten years imprisonment and a possible fine. The law is only applicable to men.1

Syariah Penal Code Order 2013, Section 82 Liwat

Section 82 of the Syariah Penal Code, when in force, will criminalise sexual intercourse between men with a maximum penalty of death by stoning.2

Syariah Penal Code Order 2013, Section 198 Man Posing as a Woman or Vice Versa

Section 198 of the Syariah Penal Code, when in force, will criminalise anyone who “dresses and poses” as the opposite sex in a public place with a penalty of up to three months imprisonment, and a possible fine. Where this is done for “immoral purposes”, which is undefined, the penalty is increased to up to one year imprisonment.3

Enforcement

2018

As of March, it was reported that the implementation of the third phase of the Syariah Penal Code was underway, meaning that the death penalty could soon be imposed for sexual intercourse between men.

2017

It was reported in the US Department of State Human Rights Report for Brunei that Section 377 of the Penal Code was primarily applied in cases of rape or child abuse when both attacker and victim were male. The Syariah Penal Code criminalises “liwat” (anal intercourse) between men with a penalty of death by stoning, however, this law has not yet been implemented.

2015

In March, a Bruneian civil servant was fined $1,000 under the Syariah Penal Code after he pleaded guilty to cross-dressing in a public place.

2014

The US Department of State Human Rights Report documented that there were no reports of arrests or prosecutions of LGBT persons during the year.

Statements by Public Figures

2015

In February, singer John Legend expressed his concern about Brunei’s anti-gay laws by boycotting an event at a hotel owned by the Sultan of Brunei.

2014

In May, a group of 20 US lawmakers, led by Democrat Mark Pocan of Wisconsin, signed a letter calling on the US Government to pressure Brunei to revoke Islamic criminal laws that will punish sodomy and adultery with the death penalty, including by stoning.

In May, there were reports that the Dorchester Hotel in Los Angeles had lost an estimated £1 million in bookings due to a boycott over the actions of its owner, the Sultan of Brunei, in approving anti-gay laws in Brunei. Stephen Fry and Richard Branson were among those publicly promoting the boycott of the Dorchester Chain.

In April, spokesman for the UN High Commissioner for Human Rights, Rupert Colville, condemned the proposed implementation of a new penal code based on local interpretations of sharia law (see further below) as contravening international human rights standards. He added: “The provisions of the revised penal code may encourage further violence and discrimination against women and also against people on the basis of sexual orientation.”

The provisions of the revised penal code may encourage further violence and discrimination against… people on the basis of sexual orientation.

Rupert Colville, UN High Commissioner for Human Rights

In January, the Regional Director (Asia and the Pacific) of the International Commission of Jurists, Sam Zafiri, published an open letter to the Prime Minister of Brunei condemning amendments to the country’s Penal Code which provide for the penalty of death by stoning for the offence of sodomy.

Persecution and Discrimination

2017

The US Department of State Human Rights Report for Brunei stated that the LGBT community reported discrimination in employment, housing, recreation and education, as well as threats and intimidation by police. The government also monitored the activities and communications of LGBT people.

In a statement made for IDAHOT in May, the ASEAN Caucus highlighted the routine arrest and beatings of LGBT people by state forces under the pretences of “defending public morals.”

2016

Amnesty International reported that in August, a man was arrested for “cross-dressing and improper conduct.” The punishment on conviction included a fine of BN$1,000 or three months imprisonment, or both.

2014

In November, the International Gay and Lesbian Human Rights Commission submitted a report to the Committee on the Elimination of Discrimination Against Women stating that: “The enforcement of SPC Order 2013 is likely to result in even tighter family control and increased violence to force Bruneian lesbians, tomboys, masculine-looking women, bisexual women and transgender women to conform to social norms (and now criminal law) on sexuality and gender.

Legislative News

2017

It was reported in the US Department of State Human Rights Report that Chapter 22 of the Penal Code was amended to increase the minimum sentence of carnal intercourse against the order of nature to between 20 to 50 years incarceration. However, there are no clear indications that this has been enacted.

2016

In its concluding observations of the review of Brunei, the Committee on the Rights of the Child noted its concern that: “Discrimination against certain groups of children, particularly girls, children with disabilities, children belonging to ethnic and religious minorities, lesbian, gay, bisexual, transgender and intersex children and stateless children, still exists in practice.”

2015

In their 2015 State-Sponsored Homophobia Report, the International Lesbian and Gay Association stated that: “Brunei Darussalam is currently phasing in a Syariah Penal Code that sees, in black letter law, the death penalty introduced for certain same-sex sexual activity in 2016, but seems unlikely to be implemented in actuality.”

In March, Brunei voted in favour of an unsuccessful Russian proposal at the UN General Assembly’s Fifth Committee (Administrative and Budgetary) that sought to overturn the Secretary-General’s decision to extend UN staff benefits same-sex married couples.

Despite a temporary halt, the first phase of the implementation of a new Syariah Penal Code, one which will eventually lead to the stoning of people found guilty of same-sex sexual activity, was started. Speaking about the Penal Code, the Prime Minister was quoted as saying: “The decision to implement the (Penal Code) is not for fun but is to obey Allah’s command as written in the Quran.”

2014

During its second UPR cycle, despite concerns raised about its new Syariah Penal Code, Brunei rejected all recommendations to decriminalise sexual activity between same-sex consenting adults and ensure the protection of human rights for sexual minorities.

2010

In its first UPR cycle in 2010, Brunei rejected recommendations to amend Section 377 of the Penal Code in order to decriminalise consensual sexual activity among persons of the same sex.

Footnotes
1. Penal Code 1951, Section 377 Unnatural Offences

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine.

Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” Full text.

2. Syariah Penal Code Order 2013, Section 82 Liwat

(1) Any person who commits liwat is guilty of an offence and shall be liable on conviction to the same punishment as provided for the offence of zina.

(2) For the purposes of this Order, “liwat” means sexual intercourse between a man and another man or between a man and a woman other than his wife, done against the order of nature that is through the anus.” Full text.

3. Syariah Penal Code Order 2013, Section 198 Man Posing as a Woman or Vice Versa

“(1) Any man or dresses and poses as a woman or any woman who dresses and poses as a man in any public place without reasonable excuse is guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000, imprisonment for a term not exceeding 3 months or both.

(2) Any man or dresses and poses as a woman or any woman who dresses and poses as a man in any public place for immoral purposes is guilty of an offence and shall be liable on conviction to a fine not exceeding $4,000, imprisonment for a term not exceeding one year or both.” Full text.

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