Beware of Brunei’s vicious new penalties

BANGKOK, 4 April 2019: Gay travellers including transgender dressers visiting Brunei could find themselves on the wrong side of the country’s strict Syariah Penal Code that was introduced 3 April.

In January 2020, around 2,000 travel industry executives and tourism leaders from the 10-nation ASEAN bloc will meet in Brunei for the ASEAN Tourism Forum.

Gay delegates and even transgender dressers who often attend the regional travel show as entertainers should be aware that they will need to strictly comply with the Syariah Penal Code or risk arrest, police harassment and prosecution.

Roundly condemned by the international community for the law’s brutal sentences there are no guarantees that gay travellers visiting the country will be exempt from prosecution or the punishments that may include stoning for gay sex intimacy offences.

Drinking alcoholic beverages is an offence punishable by 40 cane strokes for first-time offenders, while transgender dressers could face a fine of BND1,000 and three months in jail.

Under the law, theft is punishable by amputation of the right hand at the wrist and for a second offence amputation of the left foot at the ankle. It can also include 40 strokes of the cane and a 30-year prison sentence.

A member of the ASEAN, 10-nation bloc, Brunei introduced the first phase of its Syariah Penal Code in 2013.

At the time, Brunei faced widespread criticism and a call for a boycott of hotels owned by the state.  Now with the final phase of the penal code introduced this week, there are more calls to boycott hotels in the US and Europe owned by Brunei’s investment agency.

In response to questions from TTR Weekly, Human Dignity Trust London said the Syariah Penal Code “would appear to apply to virtually everyone within the jurisdiction of Brunei who engage in (or are perceived to engage in) same-sex intimacy, including foreign national LGBT visitors.”

Initially, the law was viewed as exclusively for Muslim residents, but the code states it applies to everyone and that would technically include tourists and temporary visitors.

It should send a warning to LGBT travellers that in theory anyone who engages in male or female same sex intimacy could be at risk of prosecution and ultimately the sentence of stoning to death.

However, Human Dignity Trust added: “There is also no clear evidence in the past that Section 377 (penal code 1951) has been used to actually prosecute and imprison foreign LGBT visitors.

“At least it can be said that the existence of these laws creates a climate in which LGBT foreign nationals could face police harassment or arrest, even if not ultimately subject to these punishments.

“Whether such foreign nationals are actually likely, in practice, to be subjected to death by stoning, or whipping is arguably more of a political question”.

The Trust’s legal experts noted “much of the reason for the delay in implementation was the international outcry when this code was first announced. This might in itself preclude the possibility of foreign nationals being executed or whipped for same-sex intimacy.”

Despite the risk that tourists could be accused and prosecuted during their visits, international travel associations are resisting calls to condemn the brutal punishments described as “barbaric and a throw back to the middle ages”.

Most critics are not directing their anger at Syariah law, but rather the vicious nature of the punishments that Brunei has embraced.

However, associations such as the Pacific Asia Travel Association the United Nations World Tourism Organisation and the World Travel &Tourism Council have so far declined to issue statements.  Brunei is a member of the UNWTO but not PATA.

While there is a lack of clarity from travel trade associations, on Wednesday, Germany joined the chorus of condemnation.

According to the Associated Press German diplomats expressed concern at the introduction of Sharia law penalties and appealed to Brunei’s ambassador Monday to “abide by existing international human rights obligations.”

Trade associations such as PATA fear a statement could alienate its Muslim membership. Four Muslim nations are represented on the association’s executive board and it is very unlikely that PATA would go beyond expressing a sense of regret.

But privately there is a growing sentiment within PATA that individual companies and organisations could effectively protest by not attending the ASEAN Tourism Forum in 2020.

Brunei is not alone in adopting a strict Syariah Penal Code and in some instances prosecution for adultery and same sex intimacy carries the death penalty.

A member of the British Commonwealth, Brunei is one of 72 nations, or territories, worldwide that still criminalise private, consensual sexual activity between adults of the same sex.

Out of that total, 13 territories have the death penalty on the books for consensual same-sex sexual activity. At least eight of them implement the death penalty, including Iran, Saudi Arabia, Yemen and Sudan. Parts of Nigeria and Somalia also apply the death penalty for LGBT people.

The Human Dignity Trust pointed out that “other Islamic countries have notably demonstrated an ability to arrest and even prosecute foreign nationals” under a Syariah penal code.

So there are no guarantees that Brunei would desist from prosecuting and handing down extreme brutal sentences on foreign nationals visiting the country who are found guilty of same sex activities.

Syariah law seriously ups the penalties for same sex intimacy offences when compared with the Pena Code of Brunei 1951.

Section 377 of the 1951 code criminalised male sexual intimacy punishable with up to 10 years’ imprisonment.

However, Brunei’s Syariah Penal Code 2013 effectively replaces Section 377 and additionally criminalises same-sex intimacy between women, while making offences punishable by stoning to death (also applicable for adultery) or whipping with 100 strokes and a year’s imprisonment.

As for the application, section 3 of the Syariah Penal Code states the law shall apply to Muslims and non-Muslims.

“Every person shall be liable to punishment under this order, and not otherwise, for every act or omission contrary to the provisions thereof which he shall be guilty within Brunei Darussalam.”

Brunei has signed, but not ratified, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

(Source: Human Dignity Trust provided analysis of the Syariah law for this report).