Brunei’s Sharia Penal Code Order: Punitive Turn or the Art of Non-Punishment?

Abstract

In his essay, Dominik M. Müller takes an historical approach. He traces Brunei’s new Islamic criminal code back to the country’s independence in 1984, and even further, to the so-called Anglo-Mohammadan law established by the British protectorate earlier in the twentieth century, and to the Hukum Kanun Brunei before that—some version of which may have stretched all the way back to Islam’s arrival to Borneo in the fifteenth century. Müller is the first to assess the Code based on the evidence, albeit from Phase One. From 2014 to 2019, Phase One saw some application of the new Islamic Code to misdemeanors, but the degree paled in comparison with applications of the existing state Code. Looking at a twelve-month period from 2015 to 2016, Müller counts a total of 247 prosecutions under the new Code, all including fines (with the corporal punishments of the new code from Phases Two and Three not yet in effect). He puzzles over the expressions of surprise among the international media outlets at the new Code, given the long history that preceded as well as the legislative history that followed the phased introduction of the new law announced in 2013, and the minor penalties since. Müller then contrasts the international criticism with the local response: feeling under attack, an educated elite and other social media influencers in Brunei closed ranks in support of the new Code under the banner #BruneiUnited. For Müller, while none of these developments should have surprised the world, the fact that they did likely follows from the fact that Brunei is both historically relatively insular and the “academically most understudied Southeast Asian country.” If true, his observation underscores the extent to which more research is required.