The Constitutionality of Brunei’s Brutal Penal Code
In 2014, the small country of Brunei, on the island of Borneo, became the first East Asian nation to supplement their existing civil penal code with Sharia law. Otherwise known as Islamic law, Prime Minister and Sultan Hassanal Bolkiah enacted the Syariah Penal Code Order, to be implemented on a roll-out basis. Sharia law calls for the enforcement of strict corporal punishment in response to a variety of criminal acts that are seen as incompatible with Islam. Most recently, the code has established that the punishment for engaging in consensual homosexual sex or anal sex is death by stoning, which applies to Muslims and non-Muslims alike.
In effect as of April 3rd 2019, the new provisions stirred an international outcry. The public have initiated boycotts on businesses owned by or affiliated with the Sultan and his administration, such as the Dorchester Collection, which owns nine luxury hotels throughout North America and Europe. Similarly, authorities such as Amnesty International and Human Rights Watch have referred to the provisions as “vicious punishments”<1> that violate the country’s international legal obligations.<2> That being said, it is yet unclear whether highlighting the human rights implications of the country’s new laws will lead to change.
In Canada, the Canadian Charter of Rights and Freedoms protects citizens against government policies, legislation or initiatives that infringe upon human rights, such as discrimination on the basis of sexual orientation or religion. The rights afforded by the Charter are crucial, particularly in the context of criminal legal proceedings and the administration of justice. They outline the importance of treating all people with dignity and respect, irrespective of aspects of their identity that may differentiate them from other demographics. Meanwhile, 70% of the Brunei’s population is Muslim, forcing religious minorities to subscribe to ideology that may be irreconcilable with their beliefs, which speaks to another facet of Sharia law’s threat to fundamental human rights.
Adding to the conflicts of Muslim and non-Muslim, or gay and straight, the recent provisions also highlight another, less explicit issue of inequality: trans erasure. While “homosexual sex” is punishable by death, the provisions establish that “lesbian sex” is punishable by forty lashes with a whip. One could reasonably infer, in light of the consequence for anal sex also being death, that gay sex here involves men with penises. Correspondingly, lesbian sex, the punishment for which is far less severe, must apply to women with vaginas. Bruneian law operates on the presumption that genitalia determines gender, which in turn contributes to the disparity between the distinct punishments for the two sexual acts.
What the vocabulary used tells us is that the nation of Brunei has no regard for the lives of queer people of any designation, whether transgender and/or homosexual or other. Irrespective of punishment, reducing an entire demographic of people to a body part is dehumanizing and antiquated. This rigidity is in sharp contrast with the Charter, which allows for an expansive approach in the court’s consideration of previously unrecognized forms of discrimination, where an analogous ground is successfully compared to a preexisting (enumerated) right.
While it is not difficult to understand that the laws are brutal in nature, it may be more challenging to grasp that countries can opt not to abide by international law. Given the how many jurisdictions and legal systems exist, the strict enforcement of international law would be an extremely complex undertaking. As a result, the only potential ramifications flowing from these atrocious punishments are unstable international relations with larger and more powerful countries, or economic sanctions. Being a country rich in oil, the Brunei government might only be forced to modify such laws if they experience a sharp decline in oil sales as a result of the enactment.
An affront to basic human dignity, the laws are Draconian in comparison to the constitutional issues that affect similarly marginalized groups in Western countries. Given that such as gay marriage, adoption and biological parenting have generally been normalized in modern Western society, it is especially horrifying that laws calling for the stoning of the LGBTQ2S+ community not only continue to exist, but are continuing to be enacted. Consequently, the new penal code not only calls into question the morality of using death as punishment, but it also raises questions about Brunei’s place in the context of an increasingly global society.