Managing Offenders With Mental Disorder in Brunei’s Dual Criminal Procedure System: Challenges and Possible Solutions

ABSTRACT

Aims

This article examines how offenders with mental disorders are managed within Brunei Darussalam’s dual criminal procedure system, which operates through both common law and Sharīʿah frameworks. It seeks to identify the structural and procedural difficulties that arise at the intersection of mental health, criminal responsibility, and religiously grounded legal principles, and to advance practical and doctrinal reforms suited to Brunei’s institutional context.

Methods

The study adopts a doctrinal and comparative approach, analysing the Criminal Procedure Code, Mental Health Act 2014, Sharīʿah Court Criminal Procedure Code, and Sharīʿah Courts Evidence Order 2001. Provisions concerning fitness to plead, insanity, detention, consent to treatment, confidentiality, and expert testimony are examined alongside Islamic jurisprudential concepts such as taklīf (moral accountability) and maqāṣid al-Sharīʿah (the higher objectives of Islamic law). Comparative reference is made to England and Wales to illuminate structural contrasts.

Results

Four interconnected challenges emerge. First, the absence of specialist forensic psychiatric facilities restricts assessment and diversion options and limits compulsory treatment pathways. Second, the Sharīʿah criminal process lacks a dedicated internal mechanism for psychiatric evaluation. Third, statutory safeguards governing detention review and treatment consent remain underdeveloped. Fourth, the absence of a recognised forensic psychiatry specialty and clear guidance on expert admissibility generates uncertainty, particularly in religiously sensitive cases.

Conclusion and Implications

While both legal traditions recognise impaired mental capacity as relevant to criminal liability, effective implementation is constrained by institutional fragmentation. The article proposes coordinated legislative reform, development of forensic psychiatric capacity, structured expert witness guidance, strengthened procedural safeguards, and the establishment of a national advisory framework to ensure a coherent, rights-compliant, and culturally grounded approach to mentally disordered offenders in Brunei.