Brunei’s new criminal code legislates death by stoning for extramarital sex, anal sex between people of any gender, and abortion. It also codifies amputation of limbs for stealing and forty lashes by whip for lesbian sex. The Code makes consensual same-sex acts illegal and punishable by death and criminalizes transgender people by prohibiting gender expression associated with a different sex than one’s state-recognized binary gender. These punishments will also apply in full force to children who have reached puberty (called baligh), while younger children (above seven years old, called mumaiyiz) may still be subjected to whipping.
In October 2013, Sultan Hassanal Bolkiah first formally published the Syariah Penal Code Order. The order established a brutal new criminal law system designed to punish ideological morality crimes. It was to be installed in phases (likely in an attempt to temper international outrage), starting with fines and imprisonment and escalating to include amputation, whipping, and death by stoning. The implementation of the law was delayed after international outcry, but finally took effect on April 3, 2019. Now that it is in force, the new penal system is expected to target Brunei’s most vulnerable citizens; women, LGBTQ people, children, and the poor.
Brunei is a small country on the north coast of the island of Borneo in Southeast Asia, bordering the South China Sea. The state is majority Muslim and ethnically Malay. Despite its size, Brunei is extremely wealthy due to its crude oil and natural gas production. It consistently ranks in the top five richest countries in the world and has the second-highest Human Development Index score among the Southeast Asian nations after Singapore. Ruled by an Islamic absolute monarchy under Sultan Hassanal Bolkiah, Brunei’s ruling royal class enjoys a huge private fortune provided by the state. Hassanal Bolkiah has been in power since 1963 as the world’s second longest-reigning current monarch after Queen Elizabeth.
Hassanal Bolkiah is no stranger to problematic policy positions. During the Contra War in Nicaragua, Bolkiah played a significant role in funding the United States’ illegal interventionalism. America’s current special envoy for Venezuela, Elliott Abrams, convinced Bolkiah to wire ten million dollars to help the United States overthrow Nicaragua’s Leftist Sandinista government. This payment was ultimately sent to the wrong Swiss bank account number by mistake.
Bolkiah also leads the Brunei Investment Agency which owns the Dorchester Collection, an operator of some of the world’s most elite hotels, including the Dorchester in London and the Beverly Hills Hotel in Los Angeles. Despite Dorchester’s attempt to separate itself from the inhumane criminal policies of Brunei, a movement among celebrities has started to boycott Dorchester hotels because of their clear financial connections to Bolkiah. It is unclear whether the pressure from a highly-visible coalition of wealthy, secular, Neoliberal personalities will be sufficient to convince Brunei’s government to change course.
Brunei’s lack of transparency has made independent monitoring of human rights in the country difficult. It has had the death penalty in place since British colonization but has not carried out an execution since 1957, leading Amnesty International to declare the penalty “abolitionist in practice.” And while many citizens are fearful of the enforcement of the new penal code, there is suspicion that the new criminal penalties are a bluff designed to attract more investment from conservative Muslim markets. For example, the laws stipulate that acts of anal sex or adultery must be witnessed by four Muslim adults in order to be prosecuted. Still, gay dating in Brunei has reportedly come to a grinding halt, with people fearing entrapment by policemen pretending to be gay. Any enforcement of these laws, no matter how rare, would be devastating for human rights in the country and in violation of international law.
The newly enacted penal code, according to Human Rights Watch, “is discriminatory on its face” and violates Brunei’s obligations under international human rights law, including the rights to “life, freedom from torture and other ill-treatment, expression, religion, privacy, and individual autonomy.”
Brunei’s draconian punishments against women and children violate treaties to which Brunei is party, such as the Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discrimination Against Women. The use of stoning and amputation in the penal system violates binding customary international law’s absolute prohibition of all forms of torture, and other cruel, inhuman, or degrading treatment or punishment. Brunei’s proposed use of the death penalty for “offenses” such as adultery and homosexuality is a form of arbitrary deprivation of life that violates Brunei’s international legal obligations as described by the United Nations Human Rights Committee’s General Comment No. 36, which states that “under no circumstances can the death penalty ever be applied as a sanction against conduct” that is protected by international law.
In addition to new criminal laws dealing with sex and gender, Brunei has invoked the death penalty for “insult or defamation of the Prophet Mohammad” by both Muslims and non-Muslims, which (along with the other new capital punishment crimes) violates the international principle that the death penalty should be reserved for only “the most serious crimes,” such as those involving intentional killing. Additionally, the criminalization of both Muslims and non-Muslims for “printing, disseminating, importing, broadcasting, and distributing publications against Islamic beliefs,” Brunei violates the rights to freedom of expression and religion.
The United States, Britain, France, Germany, the United Nations, and several human rights advocacy organizations have joined in condemning the new penalties in Brunei. So far, no sanctions, divestments, or legal challenges have been implemented. China, Singapore, Malaysia, the United States, the United Kingdom, and Germany (respectively) remain Brunei’s largest trading partners, making billions of dollars on exports to the country every year. If Brunei is making these changes to increase their foreign investments, maybe these countries should put their money where their outrage is.