Brunei won’t impose death penalty for gay sex — but it’s still illegal

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Brunei this week appeared to walk back new laws that made it the first East Asian country to make homosexuality punishable by death — but the reality is more complex.

Key points:

  • Brunei clarified its position on the death penalty after weeks of defending its new penal code
  • The country says its moratorium on capital punishment will apply to gay sex convictions
  • But LGBT people still face whipping and imprisonment under Brunei’s sharia law

In April the tiny South-East Asia nation rolled out the final phase of its controversial Syariah Penal Code Order (SPCO) — a strict interpretation of Islamic or sharia law — punishing sodomy, adultery and rape with death by stoning.

But after campaigning by rights groups, Western governments and celebrities, Brunei’s Sultan Hassanal Bolkiah, who is also the country’s Prime Minister, surprisingly announced on Sunday after weeks of defending it that the Government would extend a moratorium on the death penalty to offences under the new penal code.

“I am aware that there are many questions and misperceptions with regard to the implementation of the SPCO. However, we believe that once these have been cleared the merit of the law will be evident,” he said in a speech to mark the start of the Islamic holy month of Ramadan.

“As evident for more than two decades, we have practised a de facto moratorium on the execution of death penalty for cases under the common law. This will also be applied to cases under the SPCO which provides a wider scope for remission.”

Though Brunei retains the death penalty in law, it has not carried out an execution for decades. 

And while harsh anti-gay laws remain in place, observers have been scrambling to unpack what might have prompted the sudden and very public clarification — here are a few possibilities.

Ten countries have introduced the death penalty for being LGBT.

Brunei acts ahead of United Nations review

The Sultan’s announcement comes ahead of Brunei’s appearance before the Universal Periodic Review at the United Nations Human Rights Council this Friday. At the reviews member states examine a country’s human rights record over the past four years.

Four days after the SPCO was introduced, Brunei’s Minister for Foreign Affairs Erywan Pehin Yusof wrote to the Office of the High Commissioner for Human Rights (OHCHR) to defend the policy, claiming the sharia criminal code was “more focused on prevention than punishment”.

Gay rights around the world

Gay rights around the world

Same-sex marriage is legal in Australia after a hard-fought campaign and a voluntary national postal survey. But elsewhere in the world gay people can struggle to simply stay out of jail.

“Its aim is to educate, deter, rehabilitate and nurture rather than to punish,” his letter read. 

“It seeks to strike the right balance between protecting the rights of the accused person and the rights of the victims and their families.”

number of countries, including Australia, have raised concerns with Brunei over the introduction of the penal code, which has also been condemned by UN Human Rights Commissioner Michelle Bachelet as “draconian”.

Brunei, which until now had defended the new laws, is likely to face a rebuke at Friday’s UN review.

According to Paula Gerber, director of the Castan Centre for Human Rights Law, “the Sultan is looking at being able to say ‘hey, lay off, we’ve changed our mind on this, we are now not going to have the death penalty’.”

“But we shouldn’t all be clapping and cheering because he hasn’t repealed the law,” she told the ABC.

“It is still a crime to be gay in Brunei, it is still a crime to commit adultery, to have an abortion.”

Was change sparked by celebrity power or economic needs?

A-list celebrities including George Clooney, Elton John and Ellen DeGeneres have led a boycott of a luxury hotel group owned by the Brunei Investment Company, including the Beverly Hills Hotel California, and The Dorchester in London.

View image on Twitter

“Our voices are louder than you think,” DeGeneres tweeted after the Sultan’s announcement on Sunday.

“Keep them raised”.

A similar boycott was held in 2014, when Brunei first announced the rollout of the laws.

But while celebrities are lauding the success of the recent pressure, ultimately it may have been concerns about deterring foreign investment that spurred Brunei’s move.

In recent years, Brunei’s Government has sought to diversify its oil-dependent economy and attract greater foreign investment in an effort to strengthen it for a post-oil future.

According to the Economist Intelligence Unit, however, these efforts would enjoy only “limited success” and the energy sector would “continue to dominate the economy”, with Brunei’s real GDP forecast to grow just 1.4 per cent in 2019-20.

Brunei has been trying to boost tourism, but with STA Travel ceasing to sell tickets via the country and other Royal Brunei Airlines partners under pressure to cut ties, that could be at risk.

London has also removed advertisements promoting Brunei as a tourist destination from the city’s public transport network.

Anti-gay laws will remain in place

Even if the death penalty is not enforced, men who have sex with other men can still be punished by up to 100 lashes or a lengthy prison sentence in Brunei.

Exorcist-like conversion therapy

Exorcist-like conversion therapy

An Indonesian city has launched a new campaign to “cleanse” LGBT people of their “social sickness” through religious exorcisms.

Meanwhile, gay women face being whipped up to 40 times and jailed for 10 years.

Similar punishments remain in place for adultery and rape, while women also face jail time for giving birth while unmarried or having an abortion.

According to Amnesty International, the last known execution in Brunei was in 1957 but at least one person was sentenced to death in 2017 for drug offences.

Kerstin Steiner, associate professor and acting head of La Trobe University’s law school, said Brunei’s moratorium on the death penalty could be reversed at any time.

“The issue of a moratorium is that it can be re-called. Since the Sultan is an absolute monarch that is a very, very easy process,” Dr Steiner said.

The Brunei Prime Minister’s Office did not respond to a request for comment.

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