Published: 20 December 2019 Authors: Stefan Talmon and Mareike Höcker
On 22 October 2013, the Sultan of Brunei issued the Syariah Penal Code Order, 2013. The Code provided for extreme corporal punishments such as death by stoning for extramarital sex, adultery, or gay sex; amputation of limbs for stealing; and 40 strokes with a whip for lesbian sex. The Code prescribed the death penalty for a wide range of offences including robbery and insult or defamation of the Prophet Mohammed. Those who persuaded, told or encouraged Muslim children under the age of 18 to accept the teachings of religions other than Islam could be fined or jailed. Children who had reached puberty and were convicted of serious offenses could receive the same punishments as adults, while younger children could be subjected to whipping.
The Code was implemented in several phases starting on 1 May 2014. The initial phase introduced fines or jail terms for offences such as indecent behaviour, failure to attend Friday prayers, and out-of-wedlock pregnancies. The implementation of phase two and three, which was to introduce the more serious offences and punishments, was postponed on several occasions because of international opposition. On 29 December 2018, it was finally announced that the relevant provisions of the Syariah Penal Code Order were to be applied from 3 April 2019. In light of international criticism, the Prime Minister’s Office of Brunei Darussalam issued the following press statement on 30 March 2019:
“Brunei Darussalam is a sovereign Islamic and fully independent country and, like all other independent countries, enforces its own rule of laws. Brunei Darussalam has always been practising a dual legal system, one that is based on the Syariah Law and the other on Common Law.
In fully implementing the Syariah Penal Code Order (SPCO) 2013 from 3rd April 2019, both systems will continue to run in parallel to maintain peace and order and preserve religion, life, family and individuals regardless of gender, nationality, race and faith.
The Syariah Law, apart from criminalizing and deterring acts that are against the teachings of Islam, it also aims to educate, respect and protect the legitimate rights of all individuals, society or nationality of any faiths and race.”
Upon the commencement of phase two and three of the Syariah Penal Code on 3 April 2019, the German Federal Government Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office, issued the following statement:
“I am shocked by the imminent tightening of Sharia laws in Brunei. The death penalty is a cruel and degrading form of punishment. The same holds true for other corporal punishments for which Brunei is also creating a legal basis by taking this step. These punishments are incompatible with human dignity and cannot be justified on religious grounds.
What is particularly disturbing is the heightening of criminal liability for sexual acts between same sex partners who in future could face stoning. I condemn in the strongest possible terms criminal persecution based on sexual orientation, gender identity and the resulting brutal punishments.
I call upon the Government of Brunei not to implement the planned tightening of the Sharia penal code and, should the code come into force nonetheless, not in any circumstances to carry out the death penalty and other corporal punishments. We consider the criminal law provisions to be a clear violation of the country’s human rights obligations.”
This raises the question of which human rights obligations Brunei Darussalam violated by putting into effect the Syariah Penal Code.
Provisions of the Syariah Penal Code could be considered contrary, inter alia, to the right to life, freedom from torture and other ill-treatment, expression, religion, privacy, and individual autonomy. Several provisions could also be regarded as discriminatory and not in line with the rights of women, children, and lesbian, gay, bisexual, and transgender people.
However, the fact that provisions of the Syariah Penal Code are not in line with international human rights guarantees does not automatically mean that Brunei Darussalam is violating international law. A State’s human rights obligations are defined by the treaties it has ratified and customary international law. The first problem here is that Brunei Darussalam is not a party to many of the relevant human rights treaties. For example, the country is not a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or the International Covenant on Civil and Political Rights and its Second Optional aiming at the abolition of the death penalty. Whether capital punishment by stoning, amputation of limbs or whipping violates Brunei Darussalam’s human rights obligations thus comes down to the question of whether these archaic forms of punishment are contrary to customary international law. Stoning and amputation of limbs as a punishment have been considered a violation of the customary international law prohibition of torture and cruel, inhuman or degrading punishment, as reflected in Article 5 of the Universal Declaration of Human Rights. However, this seems by no means certain considering that stoning to death, amputation and whipping are foreseen as penal sentences in Syariah law and a number of Islamic States still practice this form of punishment. The same is true for the customary international law prohibition of the death penalty more generally. Brunei Darussalam is part of a sizable number of countries that over the last few years have repeatedly placed on record their “persistent objection to any attempt to impose a moratorium on the use of the death penalty or its abolition in contravention of existing stipulations under international law.”
Brunei Darussalam is a party to the Convention on the Rights of the Child. Under Article 37(a) of the Convention, States Parties must ensure that no child is subjected to torture or other cruel, inhuman or degrading punishment and capital punishment must not be imposed for offences committed by persons below eighteen years of age. The Syariah Penal Code is in conflict with this provision as it allows for the death penalty of children who have reached puberty and provides for whipping of younger children. Similarly, Article 212 of the Syariah Penal Code, which makes exposing beliefs and practices of religion other than the religion of Islam to a Muslim child a criminal offence, may be considered a violation of Article 14(1) of the Convention on the Rights of the Child which provides that States Parties shall respect the right of the child to freedom of thought, conscience and religion. However, upon accession to the Convention on 27 December 1995, Brunei Darussalam made a reservation, which was later modified and reads in the relevant version as follows:
“The Government of Brunei Darussalam expresses its reservations on the provisions of the said Convention which may be contrary to the Constitution of Brunei Darussalam and to the beliefs and principles of Islam, the State, religion, and without prejudice to the generality of the said reservations, in particular expresses its reservation on Articles 14, Article 20 paragraph 3, and Article 21 sub-paragraphs b, c, d, and e of the Convention.”
The reservation was notified to States Parties of the Convention on 4 March 1996. Germany objected to this reservation. In a note to the Secretary-General of the United Nations, received on 12 February 1997, the Federal Government stated:
“The Government of the Federal Republic of Germany has examined the reservations made by the Government of His Majesty the Sultan and Yan Di-Pertuan of Brunei Darussalam at the time of its [accession to] the Convention on the Rights of the Child.
The Government of the Federal Republic of Germany notes that the said reservations include reservations of a general kind in respect of the ‘provisions of the said Convention which may be contrary to the Constitution of Brunei Darussalam and to the beliefs and principles of Islam, the State religion. . .’
The Government of the Federal Republic of Germany is of the view that these general reservations may raise doubts as to the commitment of Brunei Darussalam to the object and purpose of the Convention.
It is the common interest of states that treaties to which they have chosen to become parties should be respected, as to their object and purpose, by all parties.
The Government of the Federal Republic of Germany therefore objects to the abovementioned general reservations.
This objection does not preclude the entry into force of the Convention between Brunei Darussalam and the Federal Republic of Germany.”
The reservation of Brunei Darussalam and Germany’s objection to that reservation raise questions as to their validity and legal effect. Article 51(2) of the Convention on the Rights of the Child provides that a “reservation incompatible with the object and purpose of the present Convention shall not be permitted.” The provision echoes the rule in Article 19 (c) of the Vienna Convention on the Law of Treaties (VCLT). A reservation with regard to a State’s internal law and “the beliefs and principles of Islam” (the so-called “Sharia reservation”) is not incompatible per se with the object and purpose of a treaty. Seven other Islamic States have made similarly broad national law and Sharia reservations. Germany did not claim that the reservation was inadmissible because it was incompatible with the object and purpose of the Convention, but simply stated that it raised “doubts as to the commitment of Brunei Darussalam to the object and purpose of the Convention” – which is not the same. The fact that Germany felt it necessary to object also indicates that it did not consider the reservation invalid per se. In this connection, it is of interest to note that of the 196 parties to the Convention only 10 – all of them Western European States – objected to the reservations made by Brunei Darussalam.
Similar questions arise with regard to the Convention on the Elimination of All Forms of Discrimination against Women, to which Brunei Darussalam acceded on 24 May 2006. Several of the offences prescribed in Syariah Penal Code Order are discriminatory against women. Again, the country attached a general reservation “regarding those provisions of the said Convention that may be contrary to the Constitution of Brunei Darussalam and to the beliefs and principles of Islam.” Germany objected to that reservation on 19 December 2006, stating that:
“The Government of the Federal Republic of Germany is of the opinion that by giving precedence to the beliefs and principles of Islam and its own constitutional law over the application of the provisions of the Convention, Brunei Darussalam has made a reservation which leaves it unclear to what extent it feels bound by the obligations of the Convention and which [is] incompatible with the object and purpose of the Convention. […]
Pursuant to Article 28 (2) of the Convention, reservations that are incompatible with the object and purpose of the Convention shall not be permitted.
The Government of the Federal Republic of Germany therefore objects to the above-mentioned reservations. This objection shall not preclude the entry into force of the Convention between the Federal Republic of Germany and Brunei Darussalam.”
In this case, Germany went further than in its objection to the reservation to the Convention on the Rights of the Child, declaring the general internal law and Sharia reservation to be “incompatible with the object and purpose of the Convention” and as such impermissible. Fifteen other States made similar Sharia reservation to that of Brunei Darussalam. While 21 other EU Member States and Canada also objected to these Sharia reservations, it must also be noted that 166 States Parties to the Convention did not raise any objections to these reservations. It is thus at least arguable that Brunei Darussalam’s Sharia reservation is not incompatible with the object and purposes of the Convention.
However objectionable the Brunei Darussalam Syraiah Penal Code with its cruel, inhuman and degrading punishments may have been to Germany, it was by no means a clear-cut case that it constituted “a clear violation of the country’s human rights obligations,” as claimed by the Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office. Be that as it may, the Federal Government’s outspoken criticism of the Syraiah Penal Code may – together with the global outcry, including boycotts and celebrity protests – have contributed to the Sultan of Brunei on 5 May 2019 announcing that “a de facto moratorium on the execution of death penalty” in place since 1967 would also apply to the offences under the Code.
Category: Human rights
Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from 20 Essex Street, London. He is the editor of GPIL.
Prof. Dr. Stefan Talmon LL.M. M.A
Mareike Höcker is a law student at the University of Bonn. She spent a semester studying at the Charles University in Prague.
Mareike Höcker is a law student at the University of Bonn. She spent a semester studying at the Charles University in Prague.