الدفاع الشرعي الخاص في الفقه الإسلامي والقانون الجنائي البروناوي: دراسة مقارنة

Abstract

This study highlighted laws that are related to the concept of private defence in accordance with Islamic and Brunei’s Law. The term ‘al-difā al-shārie' which means one’s should save one’s soul, dignity and property with an appropriate strength to prevent an assault, was extensively discussed in this study. For a condition to be ruled as al- difā, several requirements have to be meet for it to be legitimate. Therefore, this study was conducted to find out what is right and what is required of a person in private defence according to Imam al Arbā’ah and Brunei’s law. It is hoped that this study will enlighten the public especially a Muslim, on their rights and duties when defending themselves from an assault, yet knowly the limit of private defence. An analysis of comparison between the content in shariah’s provision and Brunei’s Law was done by collecting the opinions from jurists through books of Fiqh and obtaining information on the concept of a valid defence in Brunei’s Law, for instance, a case that is related to private defence which was filed in the court and acts that is stipulated in the penal code of Brunei. Results show no significant difference in the laws of aldifā according to the Brunei’s Law and jurists, except some of the jurists opine that it is compulsory and others opine that it is not. Meanwhile the Brunei’s law considers aldifā as a right conferred on a person, hence one’s can either to defend oneself or not. Islamic Law divides defence into three types; private defence of body, private defence of dignity and private defence of property, in which only two of them are mentioned in the penal code of Brunei’s law; private defence of body and private defence of property. For a defence to be considered as legitimate, it is found that as long as the private defence does not exceed the limit and follows the conditions described by jurists and law, then it is legitimate. However although there are many cases that are related to private defence in the civil court of Brunei, they are not categorised as legitimate defence, though they are legitimate defence according to Fiqhul Islami.