Jenayah Seksual di Kalangan Pesalah Juvana Menurut Syariah dan Undang-Undang Sivil di Negara Brunei Darussalam

Abstract

This research discusses on sexual crime among young people or commonly termed as juvenile, in Brunei Darussalam. Generally it is not a criminal offence to commit sexual intercourse out of wedlock willingly unless it involves a girl whose age is below 14 years old. It is however an offence if such sexual intercourse was committed by Muslims wherein they can be charged for offences related to zina as provided under the Syariah Penal Code Order, 2013. This research also touches on the definition of juvenile under the legislation of civil law in Brunei as provided under the Children and Young Persons Act, Chapter 219 which is defined as a person who has attained the age of 7 years of age but who has not attained the age of 18 years. While Brunei is now practising dual justice system i.e. civil and Syari'ah laws, offences involving juveniles are only relevant to the legislation of civil law. The Syariah legislation in this country provides that a person who has attained the age of 15 years is considered mukallaf. Issues arise when a person aged 15 to 18 years old who committed a Syariah offence under relevant provisions of the Syariah legislation is considered an adult and charged/executed as an adult. Hence, two (2) main issues will be scrutinised in this research namely sexual offence and category of juvenile under civil and Syari'ah legislations. The researcher will be applying comparative method by giving rise to relevant issues using primary and secondary data. As a result of this research, the researcher will provide evaluation and proposal for the age of mukallaf from the age of 15 to 18 years old to be amended in conformity with the definition of juvenile under civil law. The proposal is not only due to the fact that Brunei is a UNCRC member who defines child as under the age of 18 years but also based on the same recognition by Hanafiyah and Malikiyah sects who are categorised as Ahli Sunnah Wal Jama'ah as provided under Section 3 (1), Part II, Constitution of Brunei Darussalam. The Researcher is also proposing for establishment of a designated Court to specifically deal with Syari'ah offences involving young people (juveniles) in Syari'ah Court.