Brunei | Human Dignity Trust

Types of criminalisation

Criminalises sex between men
Criminalises sex between women
Criminalises the gender identity/expression of trans people
Death penalty

Commonwealth member state

Penal Code 1951, Section 377 Unnatural Offences

Section 377 criminalises “carnal knowledge against the order of nature”, punishable with 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 criminalises ‘liwat’ (sexual intercourse between men), punishable in certain circumstances with death by stoning, or otherwise with whipping and imprisonment.2

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

Section 198 of the Syariah Penal Code criminalises anyone who “dresses and poses” as the opposite sex in a public place “without reasonable excuse”, punishable with up to three months’ imprisonment, and a fine of up to B$1,000. Where this is done for “immoral purposes” (undefined), it is punishable with up to one year imprisonment and a fine of up to B$4,000.3

Syariah Penal Code Order 2013, Section 92 Musahaqah

Section 92 of the Syariah Penal Code criminalises ‘musahaqah’ (same-sex sexual activity between women), punishable with a fine of up to B$40,000, imprisonment for up to 10 years, whipping not exceeding 40 strokes or a combination of any two of these.4

Enforcement

2019

On 5 May, following considerable international criticism at the full implementation of the Syariah Penal Code Order 2013 on 3 April – including a boycott campaign, diplomatic/political and civil society pressure, and various universities (University of Aberdeen, King’s College London, Oxford University) considering revoking/revoking the Sultan’s various honorary degrees – the Sultan of Brunei extended a moratorium on the death penalty to the offences provided in the Syariah Penal Code, including death by stoning for ‘liwat’ (same-sex sexual intercourse between men). Nevertheless, these laws remain in place and the other draconian punishments for same-sex intimacy (whipping, imprisonment and fines) remain applicable.

On 3 April, Brunei fully implemented the Syariah Penal Code Order 2013, which makes provision for death by stoning for same-sex sexual between men, in addition to criminalising same-sex intimacy between women.

In March it was reported that Brunei would be implementing the remaining provisions of the Syariah Penal Code Order 2013 on 3 April 2019, including Sections 82 and 92 which criminalise same-sex intimacy between men and between women respectively. The former will be punishable with death by stoning or whipping with 100 strokes and imprisonment for 1 year, while the latter will be punishable with a fine not exceeding $40,000, imprisonment for a term not exceeding 10 years, whipping not exceeding 40 strokes or a combination of any two of these. These provisions are applicable to both Muslims and non-Muslims.

2018

As of March, it was reported that the implementation of the third phase of the Syariah Penal Code was underway.

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 maximum 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

2019

On 3 April, with the full implementation of the Syariah Penal Code Order 2013, the Sultan of Brunei indicated that he wanted to see “Islamic teachings in this country grow stronger.”

I want to see Islamic teachings in this country grow stronger.

Sultan of Brunei

In response to news that Brunei would be implementing the remaining phases of the Syariah Penal Code Order 2013 on 3 April 2019 – including provision for death by stoning for same-sex intimacy between men – actor George Clooney wrote an article calling for the boycott of nine Brunei-owned hotels. His boycott was supported by other celebrities, including Elton John.

The UN High Commissioner for Human Rights, Michelle Bachelet condemned the implementation these laws, calling on Brunei “to stop the entry into force of this draconian new penal code, which would mark a serious setback for human rights protections for the people of Brunei if implemented.”

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

2019

In March, it was reported that Brunei would be implementing the remaining provisions of the Syariah Penal Code Order 2013 on 3 April 2019, which will criminalise same-sex intimacy between men and between women. The former will be punishable with death by stoning or whipping with 100 strokes and imprisonment for 1 year. The latter will be punishable with a fine not exceeding $40,000, imprisonment for a term not exceeding 10 years, whipping not exceeding 40 strokes or a combination of any two of these.

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 Sultan of Brunei 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.”

The decision to implement the (Penal Code) is not for fun but is to obey Allah’s command as written in the Quran.

Sultan of Brunei

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.

Syariah Penal Code Order 2013, Section 69 Punishment for Zina

“(1) Any Muslim who commits zina and it is proved either by ikrar of the accused, or by syahadah of at least four syahid according to Hukum Syara’ after the Court is satisfied having regard to the requirements of tazkiyah al syuhud, is guilty of an offence and shall be liable on conviction to hadd punishment as follows –

(a) if he is muhshan, stoning to death witnessed by a group of Muslims; or

(b) if he is ghairu muhsan, whipping with 100 strokes witnessed by a group of Muslims and imprisonment for a term of one year.

…

(3) Any non-Muslim who commits zina with a Muslim and it is proved either by ikrar of the accused, or by syahadah of at least four syahid according to Hukum Syara’ after the Court is satisfied having regard to the requirements of tazkiyah al syuhud, is guilty of an offence and shall be liable on conviction to the same punishment as provided under subsection (1).”

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.

4. Syariah Penal Code Order 2013, Section 92 Musahaqah

“(1) Any Muslim woman who commits musahaqah is guilty of an offence and shall be liable on conviction to a fine not exceeding $40,000, imprisonment for a term not exceeding 10 years, whipping not exceeding 40 strokes or combination of any two of the punishment.

(2) Any non-Muslim woman who commits musahaqah with a Muslim woman is guilty of an offence and shall be liable on conviction to a fine not exceeding $40,000, imprisonment for a term not exceeding 10 years, whipping not exceeding 40 strokes or a combination of any two of the punishment.

(3) In this section, “musahaqah” means any physical activities between a woman and another woman which would amount to sexual acts if it is done between a man and a woman, other than penetration.” Full text.

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