Gay Travel Advisory

Brunei Darussalam

Penal Code, Chapter 22, revised edition from 2001

Sources
  1. Text of the law is available at: https://wipolex.wipo.int/en/text/253922

Legal Code Text

Section 377 - “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine.”

ILGA Analysis & Notes

Brunei Darussalam rejected (‘noted’) the five recommendations made in its 2nd cycle Universal Periodic Review in April 2014. Unlike its 1st UPR cycle rejections in 2009 (mostly on non-discrimination), the major concerns of the 2nd cycle were decriminalisation (France, Canada, Spain and Czech Republic), and the revised Penal Code (Cap 22) that reintroduces the death penalty for same-sex sexual behaviour (Spain and Czech Republic). Bangladesh, counter-intuitively to human rights, used the UPR process to encourage (at p.10) Brunei Darussalam to uphold its social policies in line with ‘traditional family values’. In 2014, IGLHRC (now OutRight) submitted a Shadow Report to the Convention on the Elimination of Discrimination Against Women (CEDAW) Committee describing in detail how “the enforcement of SPC Order 2013 is likely to result in even tighter family control and increased violence to force Bruneian lesbians, tomboys, masculine-looking women, bisexual women and transgender women to conform to social norms (and now criminal law) on sexuality and gender”. In para. 13(a) of its Concluding Observations, the CEDAW committee urged the State to, “immediately review the new Sharia Penal Code Order 2013 with a view to repealing its direct and indirect discriminatory provisions affecting women”. Since 2014, Brunei Darussalam has been phasing in its Syariah Penal Code Order (SPC Order 2013), despite learned critiques of its human rights defecits. The second and third phases of it were due to be in place in 2015 and 2016 (at which point the death penalty for consensual same-sex sexual behaviour was due to apply – for both men and women). To date, it appears that Brunei has not produced its procedural code, without which it cannot proceed to the second and third phases. It is also the case that the last execution by the State in Brunei was in 1957. However, Human Rights Watch warn that the current Sultan is particularly ardent. In its Concluding Observations on Brunei Darussalam in February 2016, the Committee on the Rights of the Child) recommends that, repeating earlier recommendations to the State, efforts are stepped up to address, inter alia, discrimination based on SOGI, and it recommended improving awareness-raising on such issues.

Sources
  1. Text of the law is available at: http://www.agc.gov.bn/agc1/images/LAWS/Gazette_PDF/2013/EN/syariah%20penal%20code%20order2013.pdf ; See also, the open letter from International Commission of Jurists to the Prime Minister of Brunei Darussalam at: http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2014/01/Brunei-Open-letter-on-2013-Penal-Code.pdf
  2. The same way as Zina means that he/she may be liable to death by stoning (section 69(1)(a).