Governing our genitals: Brunei’s LGBT stoning law and why it wants your privates

By Jasmin Lilian Diab, ABD

Lapidation, more commonly referred to as “stoning”, is a medieval method of capital punishment inflicted upon a person accused or charged with a crime by a designated group of individuals, whereby the accused or charged is hit with stones until the subject dies from blunt trauma.^[1] Through this method, no single individual among the group is identified as the sole killer of the subject. Evidently slower, more barbaric and more inhuman than other forms of execution, stoning within the framework of contemporary international law and human rights standards is categorized as a form of execution by torture.^[2]

In Islamic literature, stoning is referred to as rajm, and is a legal or customary punishment found in countries such as the UAE, Iraq, Mauritania, Saudi Arabia, Sudan, Yemen, Afghanistan, and recently more famously in the Nation of Brunei. In multiple parts of the world, stoning, although declared illegal and in violation of international human rights law by the state, is practiced extra judicially in both cultural and tribal settings and protected to an interpretable extent by customs, norms, and Personal Status Laws.^[3]

The Right to Privacy and Sexual Freedom in International Framework:

Let us take this back to basics. The framework this issue needs to be placed in is not only quite simple, but also regurgitated across all intersections in social, political and cultural contexts. According to the United Nations Human Rights Office of the High Commissioner (UHCHR)’s fact sheet titled “International Human Rights Law and Sexual Orientation and Gender Identity”:

 “[…] the right to equality and non-discrimination are core principles of human rights, enshrined in the United Nations Charter, The Universal Declaration of Human Rights (UDHR) and human rights treaties. The opening words of the Universal Declaration of Human Rights are unequivocal: “All human beings are born free and equal in dignity and rights.” The equality and non-discrimination guarantee provided by international human rights law applies to all people, regardless of sex, sexual orientation and gender identity or other status.”^[4]

Again, quite simple. There is absolutely no fine print, no terms and conditions to accept without reading, no hidden exemption clause, no exceptions and by no means at all any excuses in any international human rights treaties which may justify a government’s decision to guarantee full rights to some of its citizens, but withhold these very same rights from a select few, solely on the basis of sexual orientation, sexual preference or gender identity.

Furthermore, UN human rights treaty bodies have long-established that sexual orientations, sexual preferences as well as the entire spectrum of gender identity are incorporated among “prohibited grounds of discrimination under international human rights law”. Quite simply once more, that it is unlawful to make any distinction in the provision of people’s inherent human rights based on the fact that they are lesbian, gay, bisexual, transgender, queer, etc. (LGBTQ+), just as it is unlawful to do so based on issues the international community has already taken centuries to tackle such as race, sex, religion or any other status. This position has been confirmed repeatedly by the United Nations Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, the Committee against Torture, and the Committee on the Elimination of Discrimination against Women.^[5]

As discussions of LGBTQ+ rights at the United Nations progress and continue to develop, it is noteworthy to mention that since its inception in 1945, the United Nations political bodies had not discussed LGBTQ+ rights until September 1995, when sexual orientation became a central theme of debate and sensitivity in the negotiations on the Draft of the 1995 Beijing Platform for Action.^[6] Despite the fact that the proposed discussions on “sexual orientation” were eventually dropped, it was the first time in the international community’s history where governments took a public and explicit stance for or against the insertion and recognition of sexual orientation as part of women’s right to control their sexuality.^[7]

Whether Brazil’s 2003 attempt topresent a resolution prohibiting the discrimination against individuals on the basis of sexual orientation to the United Nations Commission on Human Rights,^[8] Norway’s 2006 presentation of a joint statement on human rights violations based on sexual orientation and gender identity at the Commission on Human Rights on behalf of 54 states,^[9] Argentina’s 2008 joint statement to the General Assembly in support of LGBT rights prompting an Arab League-led opposition statement,^[10] or the 2011 South Africa-led resolution at the UNHRC requesting a draft report “documenting discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity”, LGBTQ+ rights have undergone tremendous strife in order to preserve consensual people’s choices, private lives, rights to privacy and quite simply once more, their right to love.^[11]

More recently, in 2016, the UNHRC passed a resolution to appoint an Independent Expert to look into the reasons for violence and discrimination against people on the basis of gender identity and sexual orientation, as well as to discuss how to protect these individuals with respected governments. This long-term OHCHR-based mandate has been seen by scholars, policy makers and human rights activists alike, as the United Nation’s “most overt expression of gay rights as human rights”.^[12]

In the same year, the United Nations Security Council condemned the 2016 Orlando nightclub shooting in a public and official statement, marking the first time in the institution’s history that the UNSC explicitly used language identifying and condemning violence targeting the LGBTQ+ community as a human rights violation.^[13]

Does Brunei Understand Privacy?

The oil-rich country of Brunei, with a population of about 400,000 people and ruled by the extravagantly wealthy Sultan Hassan al Bolkiah (who is also the Prime Minister), became the first East Asian country to adopt strict Sharia law in 2014. Brunei has been integrating additions and introducing its new penal code strategically and gradually ever since, with quiet introductions of legal measures which will make Brunei’s Sharia law the harshest in the region.^[14]

Under Brunei’s current laws, whether between two consenting men or an unmarried consenting heterosexual couple, sodomy is punishable by being stoned to death and whipped with 100 lashes. Penalties for women who engage in consensual sexual relations with other women are less severe, but women also face 40 lashes and incarceration for up to 10 years.^[15]

Other fun facts about Brunei’s archaic interpretation of the law include that non-Muslims are not exempt and face exactly the same punishments for adultery or sodomy if their partner is Muslim; armed robbery is punishable with the amputation of the offender’s right hand or left foot; the Muslims caught drinking any form of alcohol will be lashed; and women also face jail sentences for having a child outside of wedlock or having an abortion for any reason.^[16]

While the Sultan and his family have been criticized heavily for their decadent and lavish lifestyles amidst expecting the Bruneian people to live a life of Islamic piety, the royal family does not seem to be too shaken by the hypocrisy – as multiple political analogies attempt to rationalize the drastic legal decision. Perhaps, such as across history, this inhuman law and unlawful behavior is to provoke havoc and induce an overall “shock factor” to mask other upcoming economic, social or political threats to the government stronghold and authoritarian regime. 

One of the most widely discussed possibilities is that as Brunei’s main source of wealth, its abundant oil reserves, begin to dwindle and the economy tempers, there is an overwhelming fear that dissatisfaction would begin to simmer in a nation that has been under one system of oppressive rule and has never held democratic elections.^[17] Despite the fact that generous government subsidies and the complete absence of an income tax have long held the people of Brunei in check, escalating rates unemployment coupled with an uncertain post-oil future, are provoking the theory that Sharia law might be a new way to keep people under control, and more specifically instilling a “culture of fear”.

UN Response and Conclusions:

UN High Commissioner for Human Rights Michelle Bachelet publically urged the Government of Brunei to terminate the entry into force of the 2019 revised Penal Code which, if applied with its current additions and amendments, would give “legal weight” to cruel and inhuman forms of torture and punishments in violation of international human rights law as well as international norms and standards.^[18]

The amendments and additional clauses, which entered into force in April 2019, instruct the death penalty for rape, adultery, consensual sodomy, sexual relations outside of wedlock for Muslims as well as the defamation of the Prophet Mohammad for individuals of any religion. It further introduces public flogging, caning, and whipping as punishment for abortion, and introduces amputation at the wrist and ankle for armed robbery or theft.^[19]

With international outcry and multiple bi-lateral and multi-lateral economic and political relationships between Brunei and other member states of the international community constrained as a result of its new-and-improved Penal Code, one urges the question of the delicate balance between “public” and “private” each and every day – the delicate balance in the statement “your rights end where mine begin”, the absolutely fragile understanding of what it means for your dignity and body to be violated because of your government’s warped understanding of what it means to break a law which violates you. 

For what is the Penal Code to ensure if not the rights and safety of its governed population? And what is a threat to the rights and safety of this very population if their own rights, safety and privacy are taken away from them by the very law which should be in place to protect them? 

With an international trend towards more archaic, medieval and extreme conservatism erupting today, one must beg the question: does the international community move forward? Or does it quite simply loop in circles to distract us from what truly matters? – that we have lost our humanity in our attempts to save it. 

References

^[1]20 Minutes Monde (2019), Brunei instaure la lapidation pour punir les relations homosexuelles, Retrieve at: https://www.20minutes.fr/monde/2488223-20190403-brunei-instaure-lapidation-punir-relations-homosexuelles

^[2]Ibid

^[3]Alasti, S. (2007), Comparative Study of Stoning Punishment in the Religions of Islam and Judaism, Justice Policy Journal, Volume 4(1), Retrieve at: http://www.cjcj.org/uploads/cjcj/documents/comparative_study_0.pdf

^[4]United Nations for LGBT Equality (n.d.), Fact Sheet: International Human Rights Law and Sexual Orientation & Gender Identity, Retrieve at: https://www.unfe.org/wp-content/uploads/2017/05/International-Human-Rights-Law.pdf

^[5]Ibid

^[6]United Nations (1995), Report of the Fourth World Conference on Women, Retrieve at: https://www.un.org/womenwatch/daw/beijing/pdf/Beijing%20full%20report%20E.pdf

^[7]Ibid

^[8]Outright International (2003), Resolution on Sexual Orientation and Human Rights, Retrieve at: https://outrightinternational.org/sites/default/files/213-1.pdf

^[9]ILGA World (2009), Statement by Norway – UNHRC 2006, Retrieve at: https://ilga.org/statement-by-norway-unhrc-2006

^[10]Human Rights Watch (2008), UN: General Assembly Statement Affirms Rights for All, Retrieve at: https://www.hrw.org/news/2008/12/18/un-general-assembly-statement-affirms-rights-all

^[11]Human Rights Watch (2011), Landmark UN Vote on Sexual Orientation, Retrieve at:https://www.hrw.org/news/2011/06/17/landmark-un-vote-sexual-orientation

^[12]Ibid

^[13]UN News (2016), In wake of deadly Orlando attack, UN officials urge stand against spread of hatred and violent extremism, Retrieve at: https://news.un.org/en/story/2016/06/531952-wake-deadly-orlando-attack-un-officials-urge-stand-against-spread-hatred-and

^[14]Infoplease.com (n.d.), Brunei, Retrieve at: https://www.infoplease.com/world/countries/brunei

^[15]Ibid

^[16]Awford, J. (2019), ‘MEDIEVAL’ PUNISHMENT Brunei Sharia law comes into force today that allows gay people and cheating spouses to be stoned to death, The Sun, Retrieve at: https://www.thesun.co.uk/news/8778598/gay-people-stoned-to-death-brunei-sharia-laws/

^[17]Khidir, S. (2018), Brunei is looking to diversify, The Asean Post, Retrieve at:https://theaseanpost.com/article/brunei-looking-diversify

^[18]UN News (2019), Brunei’s new penal code would enshrine ‘cruel and inhuman punishments’ UN rights chief warns, Retrieve at: https://news.un.org/en/story/2019/04/1035831

^[19]Ibid

Jasmin Lilian Diab, ABD is aResearcher at the Faculty of Law and Political Science at Notre Dame University-Louaize, Lebanon