Conclusion
Brunei entered the 21st century with a clear direction for the nation. It would pursue a course of modernisation[998] but not at the expense of its Brunei Malay traditions, institutions, values, and core beliefs.
The latter would be articulated and promoted through the national ideology of MIB, which was unveiled[999] at independence on 1 January 1984. In the subsequent three decades, MIB has been applied to all aspects of life in the Sultanate including its laws and legal institutions.However, the laws and legal institutions operating in Brunei today are not just an embodiment of MIB but remain a product of the distinctive influences from distant parts of the globe, which intersected one with the other, over time. The result is that there are only remnants today of the earlier animistic practices and adat of the first Borneans. Today the number of non-Malay indigenous people is small and their culture is on the verge of extinction.[1000] The most significant and lasting influence on the Bruneian legal landscape is that of Islam. The arrival of Islam was the genesis of the entity that is today's Sultanate of Brunei. Over the centuries the religious, political, cultural and ethical dimensions of Islam assumed pre-eminence in the Sultanate and directly informed dispute resolution. Yet the institution of Islamic courts with adjudication by Islamic judges (kadis or hakim) was never fully implemented until the 20th century.[1001] Instead the processes for dispute resolution were mainly a continuation of past practices, but with a clearly identified Islamic component. Muslim orthodoxy was blended with indigenous elements. The arrival of the British was equally significant and their impact on the laws and legal institutions of the Sultanate is evident today in the duality of Brunei's legal system with its stream of Islamic legal institutions and laws running alongside those of the common law system.
From 1906 the English common law system - its structure, institutions, laws and jurisprudence - was transplanted into Brunei. The consequences of British colonial rule was not limited to the introduction of this entirely new Western system of law; it also impacted on the operation of Islamic law. Secularisation of law saw Islamic law constricted to personal and religious matters and selective codification reduced Syariah principles into Western statutory form. Formal courts - the Kadis Courts - were set up (albeit with limited jurisdiction) to apply those reformatted laws. While the Kadis Courts were given a distinctly subordinate position, a role for Islamic law was retained which would await revival, as did occur post-Independence, pursuant to MIB.Today, the common law courts continue to operate alongside their Islamic counterparts, functioning in much the same way as they did prior to IndepenÂdence. English is retained as the legal medium and most judges and practitioners were trained in overseas common law jurisdictions. That will change with the opening of the new Islamic university where an integrated Syariah and comÂmon law dual degree has commenced. The common law courts have maintained a high level of public confidence in respect of efficiency and judicial indepenÂdence, which can be contrasted to other court systems in the region where concerns about corruption and external interference[1002] have been noted. The 2004 ouster of judicial review from the jurisdiction of these courts, however, is of concern. In other ways, the common law system has developed a greater Bruneian character,[1003] as seen in the removal of the right of appeal to the Privy Council,[1004] the appointment of Bruneians to the bench, residency requirements for legal practitioners, and abolition of wigs and gowns for practitioners and judges, together with the ongoing revision of the â€?archaic laws of the colonial era'.[1005]
Given the centrality of law in Islam, the I for �Islam’ in MIB has intensified the desire to make Islamic legal institutions and law �the mosteffectivejudicial system in the country’ vis-a-vis the common law.
Tangible restructuring took place to achieve this, through the conversion of Kadi Courts to Syariah Courts, with new appellate and extended original jurisdiction. Also the introduction of university requirements for legal practitioners at all levels of the Syariah Courts together with the restructuring of Syariah legal education were to this end. In substantive law terms, commercial and financial laws are no longer the sole preserve of the common law with a series of statutes on Islamicbanking, finance, investment and insurance and other areas of law have been revised and strengthened, notably the Islamic law of evidence law and family law.Beraja - the â€?B’ inMIB - has had particular impact on the law-making processes in Brunei, with the nation’s Sultan secure as the supreme legislative, as well as executive and religious, authority in the nation. Unlike many of its neighbours in the region, Brunei does not have democratic elections. Laws are passed by its monarch in consultation with an appointed advisory council. When the LegisÂlation Council was reconstituted in 2004, there were natural expectations that this would mark the beginning of a democratisation process, but the changes to the Constitution at that time served to ensure that the Sultan’s legislative powers would remain unfettered. It is ironic too that in Brunei Darussalam - the â€?Abode of Peace’ - legislation can still be passed and amended by EmerÂgency Orders, even though the actual state of emergency ended almost 50 years ago.
The current ideology of MIB has been designed to enable Brunei to enter the 21st century on its own terms. The challenge presented by modernisation has been met not by assimilation of everything �Western’ but by recasting traditional concepts, including that of the Sultan, to act as filters on what is deemed �the inherent norms of our own internal lifestyle that is collectively practiced by our [Bruneian] society’.[1006]