Is Brunei’s sharia law just for show?

Brunei, one of the world’s smallest countries and few remaining absolute monarchies, is under global fire for phasing in a controversial new sharia penal code that mandates amputation, whipping or stoning to death for violations.

The oil-rich sultanate of less than half a million people is now the first Southeast Asian country to adopt Islamic criminal law at the national level, reflecting a regional shift toward an increasingly conservative interpretation of Islam.

The stricter laws come five years after the first phase of the penal code entered force. Enacted in April 2014, the initial phase related to tazir offenses that included penalties such as fines or imprisonment for indecent behavior, failure to attend Friday prayers and out-of-wedlock pregnancies.

The latest phases relate to hudud and qisas which mete out punishments interpreted by Muslim juristic scholars derived from the Koran. They include public flogging for abortion, amputation for theft and the death penalty for a number of offenses, including rape, adultery, sodomy, robbery and insulting or defaming the prophet Muhammad.

Fears that the new laws will lead to the persecution of gay, lesbian and transgender people have stoked an international outcry, while calls for boycotts of luxury hotels owned by Brunei’s sovereign wealth fund have been led by prominent celebrities such as actor George Clooney, comedian Ellen DeGeneres and musician Elton John.

Michelle Bachelet, the high commissioner for human rights for the United Nations, weighed in saying the new measures would “mark a serious setback for human rights protections for the people of Brunei if implemented.” While Brunei’s neighbors have remained quiet on the matter, the United States, Germany, Australia and others voiced condemnation.

Sultan Hassanal Bolkiah, who has ruled the wealthy Borneo enclave for 51 years, has not yielded to the international pressure. A press statement issued by his office said that Brunei would enforce laws “criminalizing and deterring acts that are against the teachings of Islam” as a “sovereign Islamic and fully independent country.”

The 72-year-old monarch made no specific mention of the sharia penal code or mounting international criticism of the harsh new punishments when he delivered a nationally televised speech on April 3 as the laws were phased in. He called for Islamic teachings to gain prominence in the country and assured that Brunei “will always be devoted to Allah.”

The sultan is “fulfilling his duty as an Islamic ruler and also balancing interests between people within the state, the religious bureaucracy that has always called for this and felt that this is necessary, and other interests,” said Dominik Müller, a researcher at the Max Planck Institute for Social Anthropology, in an interview with Asia Times.

“The law has a symbolic function and a legitimizing function,” he said, describing the new measures as a “transformation and expansion of the existing sharia judiciary.” Brunei’s legal system is based on British common law with a parallel sharia law system for Muslims that was previously limited to governing custody rights and marital matters.

“There was a sharia judiciary in Brunei in the colonial era since the 1910s, even before that you had Islamic penal courts in the pre-colonial era. The British established this modern Islamic administration,” Müller said. “What’s new, for example, is that the sharia laws or parts of them will now apply for non-Muslims.”

The new code punishes both Muslims and non-Muslims for acts such as distributing publications against Islamic beliefs, publicly consuming food, drink or tobacco before sundown during the month of Ramadan, anal sex between two men or a woman and a man, and cohabitation and intimate contact between unmarried couples.

Non-Muslims, predominantly ethnic Chinese and others from indigenous groups, account for 21.2% of Brunei’s estimated 450,000 population, according to US Central Intelligence Agency statistics, while the other 78.8% practice Islam. In legal systems said to derive from the Koran in force elsewhere in the Islamic world, sharia law only applies to Muslims.

The broader penal code has support among Bruneians who see its implementation as an expression of religious and national identity, with many voicing support for the move on social media. Others are unhappy with the international outcry and feel the issue is misunderstood and misrepresented in some mainstream Western media coverage.

“The government has very successfully monopolized Islamic discourse to the state-brand of Islam. There is no legitimate space in the public sphere for any other interpretation,” Müller told Asia Times. “In that sense, the bureaucratization of Islam in Brunei is monolithic, very hegemonic and effective in controlling dissent.”

A former British protectorate that gained independence in 1984, Brunei provides generous policies for its citizens including zero taxes, subsidized housing and free healthcare and education. Political parties are banned while the sultan holds full executive powers, is not liable to any legal proceedings and constitutionally “can do no wrong.”

“Within the state, the Islamic bureaucracy has clear interests,” Müller said. “Religious bureaucrats are the most powerful force, in my view, in Brunei outside of the royal family because you don’t have an organized opposition, you don’t have a civil society or any organizations that make claims. [The sultan is] giving them what they want.

“They’re giving him what he needs [in terms of religious legitimation],” the academic said. Questions have, however, been raised over the extent to which the harsh new measures will actually be implemented. While capital punishment has long been on the books, Brunei hasn’t actually carried out an execution since 1957, when it was still under British rule.

While some see the introduction of sharia law as a way of shoring up support from Brunei’s largely conservative citizenry and placating Islamist sentiments, analysts believe the new severe punishments could rattle the country’s efforts to diversify the economy away from dependence on energy exports.

Unless new fuel sources are discovered, research projections suggest that Brunei’s oil and gas reserves will be depleted within two decades at the current pace of extraction. The government aims to transform the country into a regional trading and financial hub within the next two decades, though some believe sharia law will put off potential expatriates from residing in the sultanate.

Others say the laws will be a major roadblock to attracting international tourists. Eco-tourism, along with halal food exports, are among the sectors promoted by the government in a diversification push that has so far yielded mixed results. Brunei is home to pristine dive sites, rainforests and national parks but is among the region’s least-visited countries.

“My guess is that there will be very little implementation,” said Müller, who claimed that sharia law has been applied to relatively few cases since the initial phase in 2014. “Many cases of crimes were dealt with under the regular penal code, although you could have tried them in phase one already under the sharia courts, but it didn’t happen.

“Still, the sultan cannot get out of this,” he said.

“He has publicly committed [to sharia law] in his royal speeches and again and again said this was needed, and that it was his obligation as a Muslim ruler towards God. What they can do is take things slow. They can still use the previous penal code so the laws are as little enforced in practice as possible, that’s what government people also say,” Müller said.

“It’s a paradox and counter-intuitive. Why would you want a law if you don’t want to implement it? But again, the law has a symbolic function and a legitimizing function.”

Sharia demands a high evidentiary burden of proof, such as the requirement of four pious men to witness personally an act of fornication to support a sentence of stoning, which would make cases of capital punishment rare.

Phil Robertson, deputy Asia director at Human Rights Watch, sees it differently. “This law is like leaving a loaded gun on the kitchen table,” told Asia Times. “Eventually someone is going to pick it up and then a tragedy will occur. One way or another, cases will arise under this law and prosecutions will go forward for ‘crimes’ that should not be considered crimes.”

“They may want to set an example by implementing sharia in some cases,” Müller concedes. “But I personally don’t think anybody will ever be stoned to death in Brunei, but I may be wrong. I hope I’m right.”