By Azaraimy HH
His Majesty the Sultan and Yang Di-Pertuan of Brunei Darussalam has called on the Islamic Religious Council, which is one the highest level of councils in the country, one that influences policy direction on all matters Islamic, to begin structuring criminal law based on the requirement of Islamic teachings.
His Majesty in a titah yesterday stated that research showed that adherence to Islamic laws in the form of 'Hukum Kanun Brunei' had strongly existed in Brunei since the period of first sultan and which continued before the British came.
Today, more than 27 years since Brunei reached independence, in addressing members of the Islamic Religious Council at its annual meeting yesterday at the State Legislative Council Building, His Majesty called for the integration of criminal justice based on the requirements of the "Hukum Sharak" (Sharak Law).
The Islamic Religious Council, whose prominent role is to advise His Majesty on all matters Islamic, is also the policy-maker that determines the administrative direction of the Islamic religion in the country.
His Majesty wants criminal law based on "Allah's Law" to be re-established and be able to work alongside the Civil Law more prominently.
(Currently, Civil Law encompasses a much wider power in the judicial system while the Syariah Court handles mostly family cases.)
Furthermore in a titah yesterday, His Majesty also urged that in order to ensure that the Muslims in the country be blessed in this world and the life hereafter, the country must make any law in the Civil Court that contradicts with Islamic law into alignment with the Sharak.
"...we have found that many under the Civil Law do not really contradict with Islam, but any of them that does contradict has to be aligned," His Majesty stated.
In his titah, His Majesty said, "...as the Head of State and Head of Government, I am responsible ... and whatever I am about to say is only to please the Creator ... Allah SAW.
"Brunei is an Islamic state since the time of its first Sultan, which was Sultan Muhammad Shah from 1363-1406, and before 200 years after his time Brunei started to make amendments to its own law which was then known as 'Hukum Kanun Brunei'..."
"These laws are believed to have been written during the reign of Sultan Muhammad Hassan in the year of 1582-1568, and fully enforced during the reign of Sultan Abdul Jalilul Akbar in the year of 1598-1659, and continued as legacy during Sultan Abdul Jalilul Jabar in the year of 1659-1660.
"This means, these laws were strongly followed before in Brunei until the arrival of the British in 1851," His Majesty said.
His Majesty added, based on research, this law "Hukum Kanun Brunei" was based on Islamic teachings, besides some influences by Malay traditions.
But the arrival of the British undermined the vast influence of Islamic laws, and today the vast influence of these laws is only left with cases related to family matters.
"Compared to the Civil Courts established by the British, (Islamic law) possesses a much wider power and because of this, Brunei inherits two legislative systems and two judicial systems, which is Sharak and Civil," His Majesty said.
In relation to this, His Majesty has consented for the establishment of a working committee to structure a law based on the requirements of the Islamic teachings.
Before this, His Majesty had consented for the establishment of Shariah Court to handle not only family-related cases but at a future time to include criminal cases, or to an appropriate day to establish Islamic criminal act to fulfil the demands of Allah SAW.
In the titah, while addressing members of Islamic Religious Council, His Majesty asked whether the country's existing Sharak judicial system fulfills all the requirements of Hukum Sharak (Sharak Law).
"If not, our question is that this country is an Islamic country, the king is a Muslim, the majority of its people are Muslim, and so its administrative power belongs to Muslims. In this setting, from the perspective of the requirement of Sharak, can we call ourselves that we have fulfilled these requirements, especially in matters of laws? Are we really satisfied to say that we have fulfilled the requirements of Hukum Sharak and need not worry when Allah questions us in the afterlife," His Majesty asked.
"Are we eligible to be free from the torment of Allah as stated from Allah's Firman that says whoever does not provide appropriate punishment laid out by Allah ... those people belong to the Kafir (infidel)," His Majesty stated.
His Majesty quoted another Surah, which was Surah Al Maidah, Verse 45, which says those who do not provide punishment according to what have been laid down by Allah are those people that belong to the Zalim (despotic).
In another Surah, which is Surah Al Maidah, Verse 47, which says those who do not provide punishment according to what have been laid down by Allah, are people who belong to the "Bahir" (stubborn).
His Majesty said can we never be able to reach the level of satisfaction or be sure that we will be free from these warnings given by Allah.
As Brunei only has a basic law, without a Syariah criminal law, His Majesty said we are always on the brink of risking the warnings provided by the above Surah, because in the areas of laws, Brunei has only fulfilled half of the requirements from Hukum Sharak.
"Even though there is clear reminder from Allah as stated in Surah Al Baqarah, Verse 85, which says if it is appropriate for amongst you to only believe some parts of al-Quran, while abandoning the others, then there is no other consequence amongst you other than humiliation (disreputation) as you live in this world, and then in the afterlife will be pushed into agony, and remember Allah always sees whatever you are doing," His Majesty said.
His Majesty added that as Brunei possesses two systems of judiciary and legislative systems - Sharak and Civil - it is not wrong if this can be continued.
Civil Law, His Majesty said, suits Brunei according to the current situation. And, not all of those in the Civil Law contradict with 'Hukum Sharak'.
"Those that do not contradict with Sharak, we will maintain, meanwhile, those that contradict must be aligned with the requirements of Sharak," His Majesty stated.
"Our only aim is to find the very best for us in this world and the life thereafter," His Majesty explained.
His Majesty said it is only criminal law that is left to be assessed. "In my opinion, we do not have a problem following the existing criminal act, besides continuing to maintain the existing acts. We need to assess them through the following reasons; one, because it is Allah's Law, and we are obliged to implement it, we as an obedient people must follow it. Two, Brunei is not new to Allah's Law, but since 16th century, but due to interference of foreign power, we were forced to leave it behind.
"Now, Brunei has reached independence, and has the power to administer itself... then, are we not obliged to re-institute Allah's Law back in our land, if not, we are all sinful and will be asked in the afterlife," His Majesty stated.
His Majesty said when Brunei has its own Syariah criminal law, the country can still practise the existing laws.
In fact, it is important, because His Majesty said requirements to prosecute a criminal case under Sharak Law is not easy to fulfil, as it is under very strict circumstances.
"For example, for adultery, there must be four Muslim male witnesses that witness the actual copulation. If there are only three witnesses, there will be no case," His Majesty said.
"That is how strict the requirements are under Sharak Law, that some have called it impossible to fulfil," His Majesty stated.
"In the meantime, this difficulty is only a blessing from Allah to humankind to cover their own humiliation. Even though, it is not easy to do, or impossible to implement, but it still is an obligation for us to have it - Sharak criminal act," His Majesty added.
"Even we cannot implement it under normal circumstances. We may need it under abnormal circumstances. For example, there is a person who comes to confess to have performed adultery and then ask to be judged accordingly, then that is the time when Hukum Sharak is needed. But, imagine we do not have it, with what can we use to solve the problem," His Majesty further stated.
"But with some of the difficulties under Sharak Law, can it then still be relevant for the existing criminal law to be maintained," His Majesty asked.
His Majesty explained that whatever be the cases, or are suitable, or have all the requirements, they will be handled by Sharak. If not, they can be heard in the Civil Court.
His Majesty said this is different from the current situation, where, if there is case, it will go by the normal law, even though there is a law that can be used from al-Quran, which is obligatory to be followed.
"Is our current way under the Sharak Law, I will give it to members of the Islamic Religious Council to assess," His Majesty said.
In His Majesty's opinion, Brunei needs to have its own Sharak act, that accurately adheres to true Sharak Law, while maintaining the existing law (Civil Law), which is important, if the particular case cannot fulfil the requirement under Sharak Law.
His Majesty said this is important, because if it is not like that, all cases can be cancelled just like that. His Majesty said, this could invite uncertain conditions in society, for example under Chapters 177 and 198 of the Islamic Religious Council Act.
For that, His Majesty asked the existing law (Civil Law) to be maintained, besides having criminal law under Syariah. "I hope by doing this way, Allah will set us free from his punishment for not following Allah's Law."
- Borneo Bulletin
(16th March 2011)