Historical context

in the god-king (raja) as the autonomous ruler of a region.^[904] The raja sat at the apex of social organisation, with a rigid stratified social system descending to a periphery of commoners at the base.^[905] Such stratification still marks Brunei today, with the Sultan at its apex as �God's shadow on earth'.

From the ninth century, Arab traders ventured to Southeast Asia and with them came Islam. Islamwas to change the political, social and legal landscape of Brunei. It is generally but not universally accepted that the Sultanate of Brunei came into existence in 1360 when Brunei's Raja Awang AlakBetatar converted to Islam and changed his name to Sultan Muhammad Shah to honour the Prophet. The present Sultan, Haji Hassanal Bolkiah Mu'izzaddin Waddaulah, is his 29th descendant. Brunei received not just the dissemination of a new religion in the narrow sense of the word, but a comprehensive Islamic ideology in which law was central. However, the adaptability of Islam meant that Islamic law and legal processes were reconciled with indigenous custom, culture and existing social structures. Legal texts, such as the Brunei Code, incorporated local customs and traditions into Islamic principles and processes. And an example of this fusion can be seen in the concept of harta sepencarian.^[906] However, the Religious Courts (Syariah Courts) were not established. Most disputes continued to be dealt with at the kampong (small village) level through mediation of the village headman or family members; however, intervention by an imam (leader of a mosque) or ulama (Islamic jurists and scholars) did provide an additional option for the Muslim Malays.

The third historical influence came from Great Britain. Brunei came to the attention of the colonising European powers in the 19th century, but it was in 1888 that Brunei became a Protectorate of Great Britain and then in 1905, a Residency. During the Residency, the Sultan remained the head of state but was bound to take advice from the British Resident on all matters excepting those dealing with the Islamic religion. Although technically Brunei was not a colony, the difference was semantic, as for all practical purposes Brunei lost its independence. It was during this time that the English common law and courts were introduced and a civil service replaced the traditional roles of the nobles and chiefs. The dissemination of English law, legal institutions and personnel along with British concepts of justice and processes (notably appellate review) introduced a Western and secular foundation for law and jurisprudence. Britain did not, however, introduce any democratic institutions. The State Council, which was established in 1912 to introduce, review and pass laws for the British Protectorate of Brunei, acted as a rubber stamp for the Resident. While it was presided over by the Sultan and was made up of five Brunei nobles and the Chief Kadi (Islamic judge), as well as the Resident and Assistant Resident, the fact that the Resident’s advice had to be taken on all matters, except ones dealing with Islam, meant the Council was devoid of substance.

In 1967 the Sultan abdicated in favour of his son, the current monarch. In 1971 an amendment was made to the 1959 agreement to give Brunei full control over its internal affairs, though Britain retained responsibility for foreign and external affairs. Full sovereign status and independence from Britainwas gained in 1984. A new, revised Constitution further consolidated the power of the Sultan by suspending certain parliamentary institutions such as the Legislative Council.

The fourth and mostrecent influence did not come from outside but arose from within as Brunei began to charter a distinctively Bruneian course for the nation’s future. At the proclamation of independence in 1984, the Sultan announced that â€?Melayu Islam Beraja^, (â€?Malay Islamic Monarchy’), abbreviated to MIB, would be the nation’s national ideology, and that it â€?must be honoured and practiced by all people of Brunei’.^[909] He explained it was â€?a concept which upholds Islamic principles and values based on the Quran and Hadith as the basis of all activities concerning the racial necessity, language, Malay culture and the monarchy insti­tution as the governing system and administration of Brunei Darussalam.'¹⁵ This period is marked by a growth in Islamic law and institutions, a process which can be described as re-Islamisation.

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