TMI: No way Malaysia can imitate Brunei’s move to introduce hudud, says academic

The Shariah capital punishment on serious crimes, or Hudud, was a product of Muslim scholars over the years based on their understanding of the Quran and Hadith, therefore it would be "presumptuous" to claim that one is divinely guided in implementing such laws, said a law professor.

Speaking on the subject on private radio station BFM, Dr Azmi Sharom, associate professor of law at Universiti Malaya, questioned the claim by the Sultan of Brunei that he received guidance from God in announcing the introduction of hudud in the state, reports THE MALAYSIAN INSIDER (2 March 2014).

"Well, I think it's guidance from certain Islamic scholars in the past, but to claim that it's an actual guidance from God is a bit presumptuous.

"It's largely man-made and it's inspired by certain principles which they think has to reflected in this way, but it's open to debate," the report quoted Azmi in the interview on March 1.

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He also said it was no longer a legal system that belonged to this day and age. "It is contextual and probably suitable for those days, but not now anymore."

Last year, Sultan Hassanal Bolkiah, who is the absolute monarch of the tiny oil-rich kingdom, said that with the coming into effect of the legislation, "our duty to Allah is therefore being fulfilled".

Starting next month, Brunei will gradually institute punishments such as flogging, severing of limbs and death by stoning, following the consent for the Shariah Penal Code Order.

Brunei's largely Muslim population have traditionally not questioned royal decrees, although voices of dissent have surfaced on social media criticising the move, prompting a strong warning by the Sultan.

"They cannot be allowed to continue committing these insults, but if there are elements which allow them to be brought to court, then the first phase of implementing the Shariah Penal Code Order in April will be very relevant to them," the 67-year-old ruler said, according to a copy of his speech published by state media.

But the move has earned praise from conservative Islamist politicians in Malaysia, including those from PAS.

Barely two months after the Sultan's announcement, Kelantan Menteri Besar Datuk Ahmad Yakob led a high-powered state delegation to Bandar Seri Begawan in December 2013, to congratulate the sultan on the decision.

They were briefed by the various Islamic authorities in Brunei on the implementation of hudud, a subject which has sparked two decades of debate since the PAS-led state government came out with a state enactment on the legal system.

Azmi, however, said Brunei was an absolute monarchy, and in a democracy such as Malaysia, such moves should be debated.

"The fact that it's absolute monarchy means that the whims of one person can be forced through much easier," he added, while hitting out at a section of Muslim ulama in Malaysia for their claim to have a monopoly on debates involving Islam in the country.

Azmi disagreed with calls for the implementation of hudud, saying that the system was also open to abuse like any other system, only this time it is done in the name of religion.

"Hypocrisy in any sort of legal system is a bad thing. But when you have a legal system supposedly with religious foundations, then the hypocrisy becomes abhorrent.

"Let's be frank, those who are powerful and rich, they are not going to be subject to these things. It's going to be the ordinary persons," said Azmi.

Azmi said approaching the current problem of crime with hudud is regressive, but said everyone has a right to talk about it, including non-Muslims.

"Brunei is a not a democracy, and we still, theoretically, a democracy. So any talk about any change in the legal system has got to be done in the public sphere. It has to be done freely and it has to be done by anybody who wants to talk about it.

"If you really want to have hudud law, if that's what really floats your boat, fine, talk about it, campaign for it, that's your right. But for goodness sake, anyone who disagrees, regardless whether they are Muslims or not Muslims, also has a right to give their point of view. Let's discuss it as openly as possible."

SEE AN EARLIER REPORT ON THIS BLOG ON THE SAME TOPIC.

AFP: Brunei sultan hits back at rare criticism over sharia

Brunei's all-powerful sultan, stung by rare criticism, has ordered social media users to stop attacking his plans to introduce harsh Islamic criminal punishments in the placid oil-rich kingdom, reports AFP [26 Feb 2014].

"They cannot be allowed to continue committing these insults, but if there are elements which allow them to be brought to court, then the first phase of implementing the Syariah Penal Code Order in April will be very relevant to them," he said, according to a copy of his speech published by state media. He did not specify how social media users could be prosecuted under Islamic law, the report added.

See an earlier report HERE.

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Sultan Hassanal Bolkiah -- one of the world's wealthiest men -- announced last October that Brunei would phase in sharia law punishments such as flogging, severing limbs and death by stoning beginning April 1, the report said.

The move has sparked a growing outcry on social media, the only outlet for public criticism of authorities in the Muslim country where questioning the 67-year-old sultan is taboo.

In a weekend speech, the sultan issued a clear threat to the critics.

The sultan remains a revered figure in the tiny realm of 400,000 -- which enjoys some of the highest living standards in Asia -- and his word is unquestioned.

But in recent weeks a heated online debate has erupted in the easy-going country between sharia's supporters and those fearful of it.

"It is truly frightening to think that we might potentially be stoned to death for being lovers, that we may be fined for being of a different sexual orientation, and that what we wear will be regulated," one recent posting said.

Brunei has some of Asia's highest rates ofiInternet penetration and social media use.

Sharia punishments can include stoning to death for adultery, severing of limbs for theft, and flogging for violations ranging from abortion to alcohol consumption to homosexuality.

The country already practices a more conservative form of Islam compared to its Muslim neighbours Malaysia and Indonesia, banning the sale and public consumption of alcohol and closely restricting other religions.

Its dual-track legal system combines civil courts with sharia courts that have typically handled mainly marital, inheritance and other low-key issues.

But Hassanal has increasingly advocated strengthening Islam in the face of potentially harmful outside influences, including the internet, and has warned of rising crime.

In his speech, he called his Islamic monarchy a "firewall" against globalisation.

Officials have previously said sharia cases would require an extremely high burden of proof and judges would have wide discretion applying it.

Overseas human right groups have denounced the move.

The sultan's wealth -- estimated at US$20 billion by Forbes magazine in 2011 -- has become legendary with reports of a vast collection of luxury vehicles and gold-bedecked palaces.

The monarchy was deeply embarrassed by a sensational family feud between the sultan and his younger brother Jefri who allegedly embezzled US$15 billion in the 1990s.

Court battles and exposes revealed salacious details of Jefri's un-Islamic jet-set lifestyle, including allegations of a high-priced harem of Western paramours and a luxury yacht he owned called "Tits".

HUMAYON: Malaysia's Islamic banking needs a big push

Based on the data available on the growth and development of Islamic banking in different parts of the world and with the help of an extensive research undertaking to construct Islamic Finance Country Index (IFCI), this year’s GIFR predicts that by 2020 there will be at least six countries in the world where Islamic banking and finance (IBF) will attain a market share of no less than 50% of the total financial sector in their respective countries.



These six countries, in addition to the Islamic Republic of Iran and Sudan, claims to have fully-fledged Islamic financial systems already in place. It is almost certain that Brunei Darussalam, the Kingdom of Saudi Arabia, Kuwait, Qatar, Malaysia and the United Arab Emirates (UAE) will have their financial sectors dominated by IBF by 2020.



Brunei Darussalam will be the first country to witness the share of IBF in the domestic financial sector exceeding 50% by 2020. Almost 45% of retail banking in the country already fulfills basic Shariah requirements. More impetus is needed for the capital markets, which requires a little guidance and support from the Ministry of Finance.

Given its small and overwhelmingly religious population, it will not be surprising to see Brunei Darussalam emerge as a nation where the IBF share is greater than conventional ones.



Similarly, the Kingdom of Saudi Arabia will have its financial sector predominantly Shariah compliant by 2020 since it currently has over 55% of its retail banking as Shari’a compliant. It will have to streamline Islamic banking and finance with official recognition, by the Saudi Arabian Monetary Agency and the Capital Market Authority. If Brunei Darussalam has not already achieved the milestone, Saudi Arabia could be the first country to boast of having Islamised the bulk of banking and finance practice in the country.



Since the establishment of Kuwait Finance House (KFH) in 1977, Kuwait has been at the forefront of IBF. It is expected that it will still be ahead of Qatar in achie-ving the threshold of 50% share.

With the current market share at 35%, Kuwait’s IBF industry will have to grow by 7.14% annually for the next six years to achieve the milestone of 50% market share. Furthermore, its existing Islamic financial institutions will have to take over 3.15% market share from the conventional financial institutions during the same time period.



Qatar is another country with huge potential for growth in IBF. Unfortunately, the likelihood of IBF reaching the 50% threshold was adversely affected by the government’s decision to disallow conventional banks offering Islamic banking through window operations.



Malaysia is another country that has made tremendous progress in IBF. With strong support from the government and the central bank, Malaysia has certainly taught other countries how government patronage actually brings wider economic benefits to the country.



The weakest link, however, in this list of six countries is the UAE. Despite the government of UAE’s strong support for IBF, the country will be able to just make the 50% mark by the end of 2020.



This brings us to the million-dollar question: How would Malaysia achieve the 50% mark, given that its financial sector currently has only one-fourth of it as Shariah compliant?

According to GIFR research, IBF in Malaysia will have to grow by 16.67% on an annual basis in the next six years (green field growth) in addition to cannibalising 5.56% of the conventional business annually (brown field growth) in order for it to have an equal share of IBF in its financial sector. Is it something achievable?



The table suggests that this is not only achievable but possible as well. Most of the conventional financial institutions involved in IBF have a lot of capacity to further grow their Islamic business. If the likes of Malayan Banking Bhd and CIMB Group Holding Bhd give a big (yet gradual) push to IBF as part of their expansion strategy, it will contribute significantly towards achieving the target of 50% market share for IBF in Malaysia.



Furthermore, this is perhaps the time for the government to consider converting Cagamas into a fully-fledged Islamic financial institution, as almost 50% of its business is already Shariahcompliant.



Agro Bank is already scheduled to convert fully to Islamic. It is worth considering to fully Islamise other banks like SME Bank, MIDF Amanah Investment Bank and similar government-linked financial businesses? Given the track record of the Malaysian government, it will not be surprising to see such a development in the next six years.


Prof Humayon Dar is chairman of Edbiz Corp London and a visiting professor of Islamic Finance at Academy for Contemporary Islamic Studies, UiTM

[This article appeared in THE MALAYSIAN RESERVE, 24 Feb 2014 under the title 'Need to give a big push to Islamic banking and finance in Malaysia']

REUTERS: Brunei to introduce new takaful guidelines by June

Brunei will introduce new guidelines for its Islamic insurance (takaful) sector by June, in order to standardise the way agents are managed by firms. The guidelines will regulate commission rates payable to agents and the qualifications required for them to sell takaful products, Osman Jair, chairman of industry body Brunei Insurance & Takaful Association (BITA), said in an interview with Reuters (19 Feb 2014).

"We will sign an inter-company agreement so companies will be better disciplined," the newswire quoted him.

Brunei, which has southeast Asia's highest per capita income after Singapore, is the latest country to reform its takaful sector in the hope of stimulating growth. Malaysia announced new rules in July 2013 requiring the separation of life and general business lines, while Indonesia will mandate takaful firms to be spun off into independent entities this year, the report added.

Brunei was in the news late alst year when its Sultan, an absolute monarch, decided that the small nation on the Kalimantan island will go the Shariah way, with the promulgation of the Shariah Penal Code 2013. It again made news in Malaysia when a former chief justice alluded that Malaysia could follow suit. Read here.

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BITA was launched in November last year and it is the first to bring all four of Brunei's takaful firms under one roof. "We would like to standardise the industry, this is the main thing," said Jair. The impending guidelines are being reviewed by industry consultants and Autoriti Monetari Brunei Darussalam (AMBD), the country's central bank.

"We want the treatment of agents to be done right. This is so agents can generate serious income, and not take it as part-time work," said a source with AMBD, who did not want to be named as he was not authorised to comment.

The last meeting on the guidelines took place on Feb. 6 and reviewed the different jurisdictions involved in implementation, he added.

With a national population of under half a million people, Brunei's insurance sector is considerably smaller than those of neighbouring Indonesia and Malaysia. Takaful firms own 33 percent of total insurance assets.

Malaysian constitution may allow for Brunei-style Shariah laws

Tun Abdul Hamid presenting his paper at IAIS public talk on hudud law

The planned Brunei-style Shariah laws, with provisions to introduce hudud, could be implemented under Malaysia’s federal law which will also impact non-Muslims, said former Chief Justice of Malaysia Tun Abdul Hamid Mohamad.

In a lengthy speech yesterday on Brunei’s recent move to introduce the Shariah Penal Code 2013, Abdul Hamid said there is no “constitutional impediment” for criminal offences under the Penal Code to be made punishable with hudud, a view that is expected to be hotly contested by some constitutional experts.

“Parliament may choose whatever punishments to be provided for criminal offences, including punishments according to Shariah. If done that way, they may be extended to Muslims and non-Muslims alike.

“Criminal law is under the jurisdiction of the civil courts. Civil courts have jurisdiction over Muslims and non-Muslims alike.

“For Parliament to make such law, no amendment to the Constitution is required and the bill can be passed by a simple majority. This situation is comparable to the law on Islamic banking and finance and takaful,” he said.

Abdul Hamid, who retired as the nation’s top judge in October 2008, made the remarks in his 12-page speech entitled Implementaion of hudud in Brunei: Differrence between Brunei and Malaysia at a public lecture organised by the International Institute of Advanced Islamic Studies (IAIS) in Petaling Jaya recently. The full speech is available on his website at www.tunabdulhamid. my.

Abdul Hamid, who is also a sitting member of Brunei’s Shariah and civil law harmonising committee, was commenting on the move by Brunei, the oil-rich absolute monarchy sandwiched between Sabah and Sarawak, that had on Oct 22, 2013, gazetted the Shariah penal code with a view to introduce the hudud and qisas punishments in the country. The order has yet to be brought into force.

He made the above remarks as to whether such a move could be made in Malaysia purely from a “legal perspective neutrally and professionally like a judge delivering a judgment”.

“Many people think that since the offences are hudud and qisas offences according to Shariah and ‘Islamic law’ which is under the jurisdiction of the State, therefore State Legislature may make such law. At the most, they are partially right. In Malaysia, any law made must be consistent with the Constitution,” he said.

He noted that some of those offences lie within federal and civil courts’ jurisdiction, hence, if they are made state law, clearly they are unconstitutional, null and void.

“We often hear people saying that the law will be made applicable to Muslims only. Again, this is only partially right,” he said, citing three reasons.

“Criminal law is a public law. The offences are offences against the state, not just against the victim. That is why it is the public prosecutor who prosecutes, on behalf of the State,” he said.

When drawing his conclusion on the move, he said: “In my view, any law, no matter how good it is, if it is implemented without proper preparation, without taking into account the relevant factors or implemented inefficiently or unprofessionally, may lead to injustice. Good intention alone is not enough. Technical know-how, expertise and discipline are among the factors essential for the success of the implementation.”

[THE MALAYSIAN RESERVE, 14 Feb 2014]

SOME NEWS/MATERIAL RELATED TO THE ABOVE STORY:

1. Government Gazette from Brunei's Attorney General 's Chamber. Bil S 69.

2. The Malay version for Perintah Kanun Hukum Jenayah Syariah, 2013

3.. PRESS RELEASE: Syariah Criminal Law Officiated

Prime Minister's Office and Ministry of Religious Affairs, Negara Brunei Darussalam held Majlis Ilmu 2013 which was one of the main events in conjunction with the 67th birthday celebration of His Majesty Paduka Seri Baginda Sultan Haji Hassanal Bolkiah Mu'izzaddin Waddaulah ibni Al-Marhum Sultan Haji Omar 'Ali Saifuddien Sa'adul Khairi Waddien, Sultan and Yang Di-Pertuan of Brunei Darussalam. The event was held for 3 consecutive days on 22 October 2013 to 24 October 2013. The event took place at the International Convention Centre (ICC) Berakas, Negara Brunei Darussalam.

4.. BRUNEI RULER'S SPEECH 

I am most grateful to Allah the Almighty, because today's "Majlis Ilmu", that is to say Knowledge Convention, in conjunction with my birthday celebrations is to include historic events, pertaining to the Syariah Penal Code. With the blessings of Allah, this legislation will be gazetted today, the 22nd of October, 2013, and will come into force six months hereafter in phases.

5. Pelita Brunei report on the gazetting of the Brunei Shariah law

'Akta Perinta Kanun Hukuman Jenayah: sya'riah mula digazetkan 22 Oktober 2013'

BANDAR SERI BEGAWAN, Selasa, 22 Oktober. - Negara Brunei Darussalam hari ini melakar sejarah besar apabila mengazetkan Akta Perintah Kanun Hukuman Jenayah Syar'iah yang berkuat kuasa enam bulan selepasnya secara berfasa.

Kebawah Duli Yang Maha Mulia Paduka Seri Baginda Sultan Haji Hassanal Bolkiah Mu'izzaddin Waddaulah ibni Al-Marhum Sultan Haji Omar 'Ali Saifuddien Sa'adul Khairi Waddien, Sultan dan Yang Di-Pertuan Negara Brunei Darussalam mengumumkan perkara itu ketika bertitah pada Perasmian Majlis Ilmu 2013 di Pusat Persidangan Antarabangsa, Berakas.

Bank Islam Brunei signs IT pact with Silverlake sign

Bank Islam Brunei Darussalam (BIBD) has extended its strategic information technology (IT) partnership with Silverlake Sistem Sdn Bhd to further enhance the bank's operations and customer services through the provision of innovative financial solutions.

BIBD's acting managing director, Javed Ahmad, said the continuous relationship with Silverlake was in line with the bank's vision to introduce state-of-the-art financial services in Brunei.

"Together with Silverlake, we are upgrading our existing IT infrastructure and hope this transformation programme will be completed in 16 months," he told reporters after signing the agreement with Silverlake in Petaling Jaya yesterday.

The agreement involves a major upgrade of BIBD's system from the existing Silverlake Axis Integrated Islamic Banking Solution (SIIBS) Core Version 3 to Version 8.

In addition, the new system would house five new modules involving sale and case management, financing origination, enterprise collection, global payment and corporate banking systems. SIIBS is a suite of banking products designed to facilitate and automate syariahcompliant banking products.

"We want to further grow our business in Brunei by expanding our expertise in multiple areas and developing an innovative Islamic finance products to assist the country in realising its financial potential," Javed said.

Islamic banking currently represents 40% of the total banking sector growth in Brunei and the number is expected to grow to 55-60% over the next three-five years. He said BIBD's immediate target was to strengthen its operation in Brunei before expanding its business in South-East Asia.

"We have an aspiration to be in the region, including Malaysia. But at the moment, we will concentrate to grow our business in Brunei," he said.

BIBD is the largest banking provider in Brunei with a total assets of about RM12 billion. With more than 14 branches and 500 staff, the bank's strong business is in Islamic retail banking, contributing 70 per cent of its total revenue. — Bernama

(This story appeared in The Malaysian Reserve on June 2, 2010. The Malaysian Reserve is a daily business/finance newspaper published out of Kuala Lumpur, with a sectoral page on Islamic finance on Mondays, edited by Habhajan Singh)