الإكراه وآثاره في الفقه ا لشافعي والقانون الجنائي الشرعي 2013 بسلطنة بروناي دار السلا م

Abstract

Coercion is one of the necessities in which Allah Subhanahu wa Ta’ala has provided as an alleviation for His Servants. Syariah Penal Code Order (SPCO), 2013 has put it as an exception for Brunei’s citizens committing an offence. Many of the jurisprudential provisions followed in Sultanate of Brunei Darussalam coincide with the Shafi'i school of thought as mandated by the constitution that the official religion of the Sultanate is Islam on the basis of Shafi'i school of thought. Therefore, the research problem lies in the extent to which coercion and its effects applied in the SPCO, 2013 are in line with what is stipulated in the Shafi'i school of thought. Consequently, this research talks about the coercion in the Shafi'i school of thought and what is stipulated in the SPCO, 2013 in comparison. Hence, the researcher relies on the descriptive analytical method by collecting informations from the Shafi'i books and provisions in SPCO, 2013, then conducting interviews as well to ensure the validity of legal provisions in their practical application in Judiciary. Then, comparative studies between Shafi'i school of thought and SPCO, 2013 has been done. The researcher has reached several results, including; The coercion is regarded by al-Shafi'i as the complete coercion and not the others, but in SPCO, 2013, the coercion is divided into two types briefly: complete coercion and incomplete coercion. Then, the conditions of coercion are mentioned in detail in Shafi'i school of thought, whereas briefly in SPCO, 2013. Likewise, SPCO, 2013 mentions the types of coercion in the crime of murder, which is not mentioned in the others, and did not specify the coercion rightly and without a right. In addition, most of the penalties in SPCO, 2013 are in line with Shafi'i school of thought and based on fostering the interest of Bruneian society. Among the most important recommendations of the research: to include in the SPCO in Sultanate of Brunei Darussalam some provisions related to the coercion in order to make it complete.