The Prophet was attributed to have said, “Whoever you find doing the act of the Tribe of Lot [i.e. sodomy], you should kill the doer active partner and the one done-to.” This thus became the strict Sharia legal basis for the execution of gays, which Brunei is seeking to put in place this week.
But there is only one problem – this prophetic saying is deemed unreliable. Besides the fact that the Prophet was not recorded anywhere to have executed any queer Muslims, this alleged prophetic saying was not even included in both Sahih (literally: authentic) Bukhari and Sahih Muslim, regarded by mainstream Islam to be the two most ‘authentic’ compilations of the Prophet’s sayings and practices (or Hadiths).
And here lies the problem, as pointed out by Emory University’s Scott Siraj Kugle in his Homosexuality in Islam — there are no prophetic Hadiths about homosexuality or queerness that are considered to be reliable enough to warrant as a legal basis for the execution of queer Muslims.
More significantly, even the Quran – the first legal source of the Sharia before the prophetic Hadiths – did not stipulate any capital punishments for sodomy. This thus left the most conservative Muslims only the Hadiths for them to argue that queer Muslims should be executed. However, throughout Islamic history, many of these prophetic Hadiths were “forged”, “fabricated”, and “exaggerated” to conform to prejudices towards the queer community.
All of the aforementioned have therefore led to the complexity and ambiguity of the Sharia when it comes to the legal convictions of same-sex sexual transgressions.
Part of what contributed to this complexity and ambiguity is also the “near impossible” preconditions that the Sharia demands for actual legal convictions of same-sex transgressions. As Harvard-based Khaled El-Rouayheb showcases in his Before Homosexuality in the Arab-Islamic World: 1500–1800, there was not even a single form of punishment which has been agreed upon by premodern Muslim scholars.
The fact of the matter is, Muslim scholars who lived in the “medieval” and “dark ages”, pressed the point that a prophetic Hadith that would legitimate the execution of Muslims “had to be not only sound but also impeccable”. When it comes to the execution of queer Muslims, no such Hadiths exist.
This premodern Islamic ideal — which is conveniently cast aside by ‘modern’ Muslim-majority countries like Brunei, Saudi Arabia and until recently, Isis — is based on another saying attributed to Prophet Muhammad: “Ward off capital punishments (hudud) as much as you can.”
This is why the ambiguity and complexity of the Sharia on the legal convictions of sex crimes were considered to be unregrettable in the premodern Islamic period. According to the Medina-based 17th-century scholar Ali al-Qari al-Harawi, for example, the near impossibility of such legal convictions are necessary “because God likes [the vice of] of his servants to remain concealed”. And if God is also merciful and compassionate, then this mercy and compassion should also be reflected in the Sharia.
This act of concealing and overlooking the vices of others then became an established ideal and principle within Islam, and which led to the Ottomans, for example, to create the dual legal system of the sacred Sharia and the “secular” kanun, to govern the private and the public realms respectively.
When the Ottomans convicted sexual crimes among “consenting adults”, they would dispense the Sharia penal codes, paying only lip service to its principles, and would only prescribe punishments like pecuniary fines. This is perhaps why the Ottoman kanun was characterised to have had a “live and let live” attitude. Most significantly, no sex crimes were punishable by death.
Now juxtapose this premodern holistic Sharia with modern Brunei’s alternative version. According to Brunei’s Syariah Penal Code Order – which was drafted in 2013 and which came into effect on Wednesday – those charged with sex crimes (even if both partners are consenting adults) can be convicted to several strokes of the cane, imprisonment of up to seven years, or worse, being stoned to death. The only precondition stipulated in the penal code order is that “the Court is satisfied” with the testimonies of witnesses (tazkiyah al syuhud), which is not only alarmingly vague but also subjected to abuse and prejudices, as we have seen in neighbouring Malaysia and Indonesia.
As one Bruneian gay man told the BBC, “You wake up and realise that your neighbours, your family or even that nice old lady that sells prawn fritters by the side of the road doesn’t think you’re human, or is okay with stoning”.
Some analysts have claimed that this is a mere symbolic gesture to burnish the Sultan’s Islamic credentials to appeal to Brunei’s conservatives, Muslim foreign investments, and Muslim tourists, amidst a weakening oil-dependent economy. Others claimed that the stoning to death in Brunei might “very, very unlikely” happen as there had been no reports of executions under anti-homosexuality laws in the past few years.
When Islamophobia is on the rise, and misconceptions and fallacies about Islam are increasingly prevalent, what does it say about a Muslim ruler who finds no ethical dilemma in religious grandiosity?
However, if Sultan Hassanal Bolkiah is sincere in wanting to strengthen Islamic teachings in Brunei, then all of the Sharia ideals and principles — from concealing the vices of others, warding off capital punishments as much as possible, and to the very fact that the Prophet himself did not stone any queer Muslims — should be holistically taught and practised in Brunei. This selective implementation of the most draconian aspects of the Sharia, particularly upon an already oppressed and repressed queer Malay-Muslim minority only shows that Brunei is closer to Isis than to the Prophet.