The constitution states the religion of the country shall be the Shafi’i school of Sunni Islam, but allows all other religions to be practiced “in peace and harmony” by the persons professing them.
The legal system is divided between civil law and sharia, which run parallel systems of both criminal and civil/family law and operate separate courts under a single judiciary department. While the civil courts are based on common law, the sharia courts follow Islamic jurisprudence, including no law of precedence. Sharia courts have jurisdiction over both criminal law and civil/family matters involving Muslims and hear cases brought under longstanding sharia legislation as well as under the SPC. In some cases non-Muslims are subject to sharia courts.
Almost all crimes included in the first phase of the SPC, currently in force, were already prohibited in the country; however, the SPC applies some laws to non-Muslims for the first time, increases penalties such as fines, and broadens some definitions. Phase one of the SPC runs in parallel with the existing common law-based criminal law system and primarily involves offenses punishable by fines or imprisonment. It expands restrictions in longstanding domestic sharia law on drinking alcohol, eating in public during the fasting hours of Ramadan, cross-dressing, close proximity between unmarried people of different genders, and propagating religions other than Islam. It includes a prohibition of “indecent behavior,” which criminalizes any act that “tends to tarnish the image of Islam, deprave a person, bring bad influence, or cause anger to the person who is likely to have seen the act.” The SPC applies to both Muslims and non-Muslims, including foreigners, as well as to offenses committed outside the country by citizens or permanent residents. Non-Muslims are exempted from certain sections, such as requirements for men to join Friday prayers or payments of zakat (obligatory annual alms-giving). It states that Muslims will be identified for purposes of the law by “general reputation.”
The second phase of the SPC, which would include amputating the hands of thieves, is not scheduled to come into effect until one year after the publication of a Sharia Courts Criminal Procedure Code (CPC). The government has not published the CPC. Phase three of the SPC – which includes punishments, in certain situations, such as stoning to death for rape, adultery, or sodomy, and execution for apostasy, contempt of the Prophet Muhammad, or insult of the Quran – is scheduled to be implemented two years after the publication of the CPC. The punishments included in phases two and three include different standards of proof than the common law-based penal code, such as requiring four pious men to witness personally an act of fornication to support a sentence of stoning. Stoning sentences, however, could be supported by a confession in lieu of evidence at the discretion of a sharia judge.
The government describes its official national philosophy as Melayu Islam Beraja (MIB), or Malay Islamic Monarchy, which the government defines as “a system that encompasses strong Malay cultural influences, stressing the importance of Islam in daily life and governance, and respect for the monarchy as represented by His Majesty the Sultan.” The government has said this system is essential to the country’s way of life and its main defense against extremism. A government body, the MIB Supreme Council, seeks to spread and strengthen the MIB philosophy and ensure MIB is enshrined in the nation’s laws and policies. MIB is a compulsory subject for students in both public and private schools, including at the university level.
The Religious Enforcement Division under the Ministry of Religious Affairs (MORA) is the lead agency in many investigations related to religious practices, but other agencies also play a role. MORA’s Religious Enforcement Division leads investigations on crimes that exist only in the SPC and other sharia legislation, such as male Muslims failing to pray on Fridays. Cases involving crimes that are not covered by sharia legislation such as human trafficking are investigated by the Royal Brunei Police Force (RBPF). Cases involving crimes covered by both sharia and the existing civil code are also investigated by the RBPF and referred to the Attorney General’s Chamber (AGC). In these cases, the AGC determines in each case if a specific crime should be prosecuted and whether it should be filed in the sharia or civil court. No official guidelines for the AGC’s determination process have been published.
The government bans several religious groups it considers deviant, including the Ahmadiyya Muslim Community, Al-Arqam, Abdul Razak Mohammad, Al-Ma’unah, Saihoni Tasipan, Tariqat Mufarridiyyah, Silat Lintau, Qadiyaniah, the Bahai Faith, and Jehovah’s Witnesses. The list is based on fatwas made by the state mufti or the Islamic Religious Council – a government body and the sultan’s highest authority on matters on Islam – and is publicly available on the Ministry of Religious Affairs’ website. The SPC also bans any practice or display of “black magic.”
The SPC includes a list of words and expressions, including the word “Allah,” reserved for use by only Muslims or in relation to Islam.
The law forbids the teaching or promotion of any religion other than Islam to Muslims or to persons of no faith. Under the first phase of the SPC, the penalty for propagating religions other than Islam is up to five years in prison, a fine of up to 20,000 Brunei dollars (BND) ($13,840), or both. The SPC includes a provision that makes it illegal to criticize Islam, including the SPC itself, though no cases, arrests, or charges under this provision have been reported.
Muslims are legally permitted to renounce their religion until phase three of the SPC is implemented but must inform the Islamic Religious Council in writing. The law states the conversion of children is not automatic with the conversion of the parent. A person must be at least 14 years and seven months old to convert to Islam. Children are presumed to be of the same religion as their parents.
The law requires all organizations, including religious groups, to register and provide the names of their members. Applicants are subject to background checks for leaders and board members, and proposed organizations are subject to naming requirements. Registered organizations must furnish information on leadership, election of officers, members, assets, activities, and any other information requested by the registrar. Benefits of registration include the ability to operate, to reserve space in public buildings, and to apply for permission to raise funds. The registrar of societies oversees the application process, exercises discretion over applications, and is authorized to refuse approval for any reason. Organizations are prohibited from affiliation with any organization outside the country without written approval by the registrar. Unregistered organizations may face charges of unlawful assembly and may be subject to fines. Individuals who participate in or influence others to join unregistered organizations may be fined, arrested, and imprisoned. The general penalty for violating laws on the registration and activity of organizations is a fine of up to BND 10,000 ($6,920), imprisonment for up to three years, or both.
The law states that any public assembly of five or more persons requires official approval in advance. Under longstanding emergency powers, this applies to all forms of public assembly, including religious. In practice, however, places of worship are viewed as private.
The law establishes two sets of schools: those offering the national or international curriculum and administered by the Ministry of Education (MOE), and those offering supplemental religious education (ugama) that are administered by MORA. MOE schools teach a course on Islamic religious knowledge, which is required for all Muslim children aged seven to 15 who reside in the country and who have at least one parent who is a citizen or permanent resident. Ugama instruction in the MORA schools is a seven to eight-year course that teaches the day-to-day practice of Sunni Islam according to the Shafi’i school and is mandatory for Muslim students aged seven to 14 who hold citizenship or permanent residency. Ugama is studied alongside the national curriculum. Alternatively, MORA also administers a set of schools taught in Arabic that offer the national curriculum combined with ugama religious education. Muslim parents who fail to enroll their children in ugama school may face a BND 5,000 ($3,460) fine, imprisonment for a term not exceeding one year, or both. The law promulgates the officially recognized Shafi’i school and does not make accommodations for Muslims who have non-Shafi’i beliefs.
Public and private schools, including private schools run by churches, are prohibited from providing religious instruction in beliefs other than the Shafi’i school of Islam during school hours. Schools may be fined or school officials imprisoned for teaching non-Islamic religious subjects. The SPC criminalizes exposing Muslim children or the children of parents who have no religion to the beliefs and practices of any religion other than Islam. The law also requires practitioners to obtain official permission before teaching any matter relating to Islam. Churches and religious schools are permitted to offer non-Shafi’i Islam education in private settings.
Laws and regulations limit access to religious literature. The law states it is an offense for a person to import any publication deemed objectionable, which is defined in part as describing, depicting, or expressing matters of race or religion in a manner likely to cause “feelings of enmity, hatred, ill-will, or hostility between different racial or religious groups.” The law also bans distributing materials relating to religions other than Islam to Muslims or persons of no faith.
All parental rights are awarded to the Muslim parent if a child is born to mixed-faith parents. The non-Muslim parent is not recognized in any official document, including the child’s birth certificate, unless that parent has converted to Islam. The law bans any Muslim from surrendering custody of a minor or dependent in his or her guardianship to a non-Muslim.
Under the SPC, non-Muslims may be arrested for zina (fornication or adultery) or khalwat (close proximity between the sexes), provided that the other accused party is Muslim. Foreigners are also subject to these laws.
The country is not a party to the ICCPR.