Analisa Ikrar di Bawah Perintah Keterangan Mahkamah Syariah, 2001: Ke Arah Penguatkuasaan Perintah Kanun Hukuman Jenayah Syariah, 2013

Abstract

The enforcement of Syariah Penal Code Order, 2013 which provides hadd and qisas offences sets a new tone in Brunei Darussalam’s legal setting and brings with it challenges of its own. Thus to ensure the clarity and comprehensiveness of the law of evidence which is the backbone behind the implementation of this Order, this study will research the position and the concept of ikrar as provided under Syariah Courts Evidence Order, 2001. This approach that this research undertakes is by analyzing the structure of Syariah Courts Evidence Order, 2001 and by scrutinizing the provisions therein which relate to interpretation of ikrar, conditions of ikrar, effect of admissibility of ikrar as evidence against the accused who makes ikrar and against his accomplice in crime, as well as the effect of retraction of ikrar, in order to identify problems and confusion which may arise from such provisions. In addition, this study will also explore the admissibility of ikrar which lacks any of the conditions or contains shubhah, to be used as evidence to secure conviction in ta’zir offences. In order to appreciate the intention behind the provisions under Syariah Courts Evidence Order, 2001, besides referring to Islamic jurisprudence by contemporary authors, reference is also made to Evidence Act (Chapter 108) and Syariah Courts Evidence Act (Federal Territories), 1997 , which have been used as a source of reference in drafting Syariah Courts Evidence Order, 2001. In addition, this study will examine the use of ikrar during the stages of investigation, prosecution and trial in the Syariah Courts to understand the manner how ikrar is being practised under the syariah criminal administration system. It is hoped that this study will be able to identify relevant provisions under Syariah Courts Evidence Order, 2001 which require amendments, adaptations or addition to complete the Order and to ensure its provisions are clear, in harmony with Hukum Syara’, as well as continue to remain relevant and practical especially towards enforcing ixad and qisas offences under the second phase of the implementation of Syariah Penal Code Order, 2013.