Syariah Penal Code Order, 2013/Part I

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CONSTITUTION OF BRUNEI DARUSSALAM
(Order made under Article 83(3))

SYARIAH PENAL CODE ORDER, 2013

In, exercise of the power conferred by Article 83(3) of the Constitution of Brunei Darussalam, His Majesty the Sultan and Yang Di-Pertuan hereby makes the following Order—

PART I
PRELIMINARY

Citation, commencement and long title.

1. (1) This Order may be cited as the Syariah Penal Code Order, 2013 and shall commence on such date or dates to be appointed by the Minister of Religious Affairs, with the approval of His Majesty the Sultan and Yang Di-Pertuan, by notification published in the Gazette.

(2) Different dates may be appointed under subsection (1) for different provisions of this Order or for different purposes of the same provision.

(3) The long title of this Order is "An Order relating to laws in respect of syariah crimes and any matter connected therewith."

Interpretation.

2. (1) In this Order, unless the context otherwise requires—

"baligh" has the same meaning assigned to it under section 3(1) of the Syariah Courts Evidence Order, 2001 (S 63/2001);

"committee of the Majlis" means the Committee established under sections 41(1) and 44(1) of the Religious Council and Kadis Court Act (Chapter 77) and other committee referred to in the Religious Council and Kadis Courts Act;

"child" includes grandchild and any descendant;

"Court" means the Syariah Courts established under section 6(1) of the Syariah Courts Act (Chapter 184);

"father" includes grandfather and any ascendant;

"ghairu muhshan" means a person who is not married, or married but never had sexual intercourse in the marriage;

"good faith" means honestly and without any enmity or hatred;

"guardian" in relation to a child, means any person who is appointed by deed or will or by the order of a Court to be the guardian of the child or any person who has adopted that child and includes any person who has the lawful custody of that child;

"Hukum Syara'" means the laws of any sect which the Court considers valid;

"ikrar" has the same meaning assigned to it under section 20 of the Syariah Courts Evidence Order, 2001 (S 63/2001);

"injury" means any harm whatever illegally caused to any person in body, mind, reputation, or loss to property.

"mahkum 'alaihi" means a person against whom a judgment or order is made by the Court;

"Majlis" means the Majlis Ugama Islam constituted under section 5 of the Religious Council and Kadis Courts Act (Chapter 77);

"Mufti Kerajaan" means the Mufti Kerajaan for Brunei Darussalam appointed under section 40 of the Religious Council and Kadis Courts Act (Chapter 77);

"mother" includes grandmother and any ascendant;

"muhshan" means a legally married person and had sexual intercourse in the marriage;

"mukallaf" means a person who has attained the age of 15 years qamariah and of sound mind;

"mumaiyiz" has the same meaning assigned to it under section 3(1) of the Syariah Courts Evidence Order, 2001 (S 63/2001);

"Nabi Allah" means any Nabi Allah referred to in the Al-Qur'an and Sunnah;

"part of the body" includes internal organ;

"property" includes all estates, interests, easements and rights, whether equitable or legal, in, to or out of, property and things in action;

"publication" means any of the following—

(a) book, magazine or periodical, whether in manuscript or final form;

(b) sound recording;

(c) picture or drawing, whether made by computer-graphics or otherwise howsoever;

(d) photograph, photographic negative, photographic plate or photographic slide; or

(e) paper, model, sculpture, tape, diskette, article or thing—

(i) that has printed or impressed upon it any word, statement, sign or representation; or

(ii) on which is recorded or stored for immediate or future retrieval any information that, by the use of any computer or other electronic device, is capable of being reproduced or shown as any picture, photograph, word, statement, sign or representation,

and includes a copy of any publication;

"publication relating to religions other than Islam" means a holy book, or a fundamental book or one of the important texts, of a religion other than Islam or if it is in essence a publication that—

(a) contains any excerpts, quotations, citations, or copies whether partly or wholly from any holy book, fundamental book or important texts, of that religion;

(b) states the history, principles, teachings, characteristics, policies, performances, ceremonies, customs, charitable deeds, dogmas, orders or organisations of that religion;

(c) states an entity, spiritual power, person or thing that is worshipped by the believers or the members of that religion;

(d) contains stories, tales, legends, fables or anecdotes originated from the fundamentals of that religion;

(e) purports to persuade, influence or incite people to become believers or members of that religion or to seek knowledge of that religion;

(f) purports to give knowledge or source of knowledge to people relating to any matter mentioned in paragraph (a), (b), (c) or (d); or

(g) contains any combination of characteristics mentioned in paragraphs (a), (b), (c) and (d);

Explanation—Though a publication is a publication relating to religions other than Islam by reason it is included under paragraph (a), (b), (c) or (d), it is not a subject matter of an offence under this Order if that publication is for the best interest of, or benefits, the religion of Islam or Muslims.

"public servant" has denotes a person falling under any of the following description—

(a) any person holding office by virtue of any Commission or Warrant granted by His Majesty the Sultan and Yang Di-Pertuan or by his authority;

(b) any Syar'ie Judge;

(c) any police officer;

(d) any Registrar of a Court;

(e) any officer of a Court whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorised by a Court to perform any of such duties;

(f) any hakam or other person who causes the content or matter which has been referred for decision or report by any Court, or by any other competent public authority;

(g) any person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(h) any Religious Enforcement Officer whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(i) any officer whose duty it is as such officer, to take, receive, keep, or expend any property on behalf of Government or Majlis, or to make any survey, assessment, or contract on behalf of Government or Majlis, or to execute any revenue process, or to investigate or to report on any matter affecting the pecuniary interests of Government or Majlis, or to make, authenticate, or keep any document relating to the pecuniary interests of Government or Majlis, or to prevent the infraction of any law for the protection of the pecuniary interests of Government or Majlis, and every officer in the service or pay of Government or Majlis, or remunerated by fees or commission for the performance of any public duty;

"religion other than Islam" means—

(a) any religion other than Islam or any variation, version, form or branch of any such religion;

(b) any doctrine, belief, ideology, philosophy, or any group or system of practices or performances, where—

(i) one of its natures is the worship of an entity or spiritual power or magic whether it exists or thought to exist; or

(ii) it admits that its purpose or one of its purposes is the attainment of spiritual wisdom or spiritual existence,

which is not recognised by the religion of Islam;

"Religious Enforcement Officer" has the meaning assigned to it under the Syariah Courts Act (Chapter 184);

"repent" means to realise, to regret and to relinquish a wrongful act and intention to correct oneself with a determination not to repeat the same;

"sulh" means a settlement or an agreement;

"syahadah" has the same meaning assigned to it under section 3(1) of the Syariah Courts Evidence Order, 2001 (S 63/2001);

"syahid" has the same meaning assigned to it under section 3(1) of the Syariah Courts Evidence Order, 2001 (S 63/2001);

"Syar'ie Judge" has the same meaning assigned to it under section 2 of the Syariah Courts Act (Chapter 184);

"tazkiyah al syuhud" has the same meaning assigned to it under section 3(1) of the Syariah Courts Evidence Order, 2001 (S 63/2001);

"wali" means wali nasab and includes female;

"wali-ad-dam" means heir or heirs of the victim of a crime who has the right to pardon the offender who has committed an offence against the victim.

(2) All words and expressions used in this Order and not defined therein but defined in the Interpretation and General Clauses Act (Chapter 4), shall have the same meanings assigned thereto respectively to the extent that they do not conflict with Hukum Syara'.

(3) If any conflict or doubt arises when interpreting any word or expression relating to Hukum Syara' it shall be the discretion of the Court to decide the meaning of such word or expression.

(4) For the avoidance of doubt as to the identity or interpretation of any word and expression used in this Order that is listed in the First Schedule, reference may be made to the form in Arabic script with respect to the word and expression shown against it in the Schedule.

Application.

3. (1) Save as otherwise expressly provided therein, this Order shall apply to Muslims and non-Muslims.

(2) Every person shall be liable to punishment under this Order, and not otherwise, for every act or omission contrary to the provisions thereof of which he shall be guilty within Brunei Darussalam.

(3) Any person liable to be tried for an offence under this Order committed outside Brunei Darussalam shall be dealt with according to the provisions of this Order for any act committed outside Brunei Darussalam in the same manner as if such act had been committed within Brunei Darussalam.

(4) For the avoidance of any doubt, it is hereby declared that no court other than a Court established under Part II of the Syariah Courts Act (Chapter 184) shall have jurisdiction to hear or determine any claims or proceedings which relates to any matter arising in this Order.

Criterion for deciding whether person is Muslim.

4. If for the purposes of this Order any question arises as to whether a person is a Muslim, that question shall be decided according to the criterion of general reputation, without making any attempt to question the faith, belief, conduct, behaviour, character or act of disobedience of that person.

Saving of prerogative.

5. Nothing contained herein shall derogate from or affect the prerogative rights and powers of His Majesty the Sultan and Yang Di-Pertuan as the Head of the official religion of Brunei Darussalam.