Legalculture
traditional Malay state in which the ruler assumes supreme religious, executive and legislative authority but rules wisely in consultation with his advisers and in the best interests of his subjects.
Also, the �Malay’ component in MIB ensures a special place for the Malay peoples and culture in the system and supports traditional approaches to dispute resolution which favour the consensual. The third MIB component - Islam - has facilitated the Islamisation process occurring throughout all aspects of life in the Sultanate, including prioritising the Syariah legal system.[978] Each will be considered in turn.6.1 The Beraja factor
The Sultan is omnipresent in the governance of the state and in the lives of the people. The Sultan makes the laws and is above the law. He controls the courts and councils through his unfettered power of appointment and removal. ReputÂedly one of the world’s richest men, he controls the revenues of the nation, enabling expenditure for all government services. Bruneian citizens pay no taxes,[979] so education, health, infrastructure, welfare and legal services are proÂmoted as coming from the generosity and affection that the Sultan has for his people.[980] This generosity in turn requires the gratitude, love and loyalty of the people. Loyaltyis assured in autocratic regimes such as Brunei through demands for loyalty and ensuring there is no public criticism, dissatisfaction or protest. This can be seen in limitations on debate in the Legislative Council; the cenÂsorship and licensing of media; the silencing of opposition through restrictive legislation such as the Internal Security Act, Cap 133, the Societies Act, Cap 66 and the Sedition Act, Cap 24; as well as limits on the role of political parties and trade unions.
Freedom of expression in the Legislative Council is reduced as a member risks disqualification if, through act or speech, �an intent to be disloyal or disaffected to His Majesty’[981] can be shown.
In addition s 53(1A) of the Constitution states:No member of the legislative Council shall speak or make any comments -
(a) directly or indirectly derogatory of the rights, status, position, powers, privileges, sovereignty or prerogatives of His Majesty the Sultan and Yang Di-Pertuan, his Successors, His Consort or other members of the Royal Family or the National Philosophy of the Malay Islamic Monarchy
(b) which constitute an offence under the SeditionAct (Cap 24).
The Sedition Act, Cap 24 was amended in 2005 to make it an offence to â€?excite disaffection against the Sultan’ or the royal family or to â€?raise discontent or disaffection amongst the inhabitants’ or to â€?promote feelings of ill-will and hosÂtility between different classes of the population of Brunei Darussalam’.[982] This can and has been broadly interpreted so that, for example, satirical images of members of the royal family forwarded by way of mobile phones have led to prosecutions under the Act. The Act does, however, allow for comments that the Sultan or his Government have been misled or mistaken or that there are errors or defects in laws which need remedying.[983]
Censorship laws operate to protect Bruneians from publications which are objectionable, or critical of the royal family or the Government, or provide reliÂgious perspectives other than pro-Islamic ones. Understandably, there is also a practice of self-censorship derived from a culture of respect and loyalty for the Sultan and his Government. Amendments to the Newspaper Act, Cap 24 in 2001 gave the Government increased control over the press, as all newspapers must apply to the Minister of Home Affairs for annual publishing permits.[984] The Minister has sole discretionary power to grant permits, which is not subject to appeal or judicial review.[985] The law also grants the Government absolute power to bar the distribution of foreign periodicals in Brunei.[986] Journalists can be charged for â€?false and malicious’ statements which is linked to the SeditionAct, Cap 24.
Alternate views to that of the Government are limited by restraints imposed on political parties and trade unions. Brunei has its own Internal Security Act,Cap 133 which allows for detention without trial for renewable two-year periods.[987] The law effectively allows the Government to detain individuals indefinitely[988] without charge or a trial on the basis of the Home Minister’s determination. It has been used to detain persons with opposing political and religious views.[989] While there have been bans on the existence of political parties in the past, today they can be approved if registered in accordance with the terms of the Societies Act, Cap 66. Loyalty to the Sultan and MIB appear necessary. In 2008 the Brunei National Solidarity Party (PPKB) was deregistered without explanation, leaving AeNationalDevelopmentParty (NDP) the onlypoliticalpartyapprovedforregis- tration. The NPD’s mission statement[990] gives unequivocal endorsement of MIB, pledging to �serve and support the Sultan and his descendants in upholding and defending Malay-Muslim primacy in Negara Brunei Darussalam.’ As Bruneians lack the democratic right to change their government, there is little reason for political parties to operate in the country but this seems unproblematic for the NDP which claimed a �just and benevolent government is more excellent and universal compared to the various Western concepts of governance which are only meant to benefit their proponents'.[991]
It is argued that MIB promotes as a better and a more traditional alternative to Western forms of democracy the special bond between the monarch and the people, callediSentiasaBeramaRakyat, or�Always TogetherwithHis Subjects'.[992] Through this, the Sultan and his subjects have a symbiotic relationship based on mutual trust and respect for each other's role and contributions. The Sultan can strive for the betterment of his subjects through the personal contact he has with them through meetings in villages, mosques and workplaces in each of Brunei's districts.
6.2 TheMalayfactor
As noted earlier, there appears to be considerable trust and confidence in the court system in Brunei. Allegations and evidence of corruption present in some other jurisdictions in the region is rarely raised as an issue in Brunei.[993] Despite the high level of confidence, the litigation rate in Brunei is comparatively low. Bruneians are generally non-litigious, preferring more consensual modes of addressing disÂpute resolution. Brunei has a small population which allows for the values and ethics which underpin the Malay and local traditions to continue. These include maintaining social harmony through mutual obligation and respect, community effort and cooperation; avoidance of conflict and respecting rank and status; and observing the established rituals of courtesy.[994] The tenacity of the traditional social hierarchy and accompanying rules of appropriate behaviour mitigates against taking action against a person of royal standing or rank. Deferring to persons with higher status extends to commercial dealings where concern for the social relationship is important and is governed by â€?elaborate forms of courÂtesy and standardised rituals calibrated according to the rank of the recipient'.[995] The Brunei Malay mindset is to cooperate or to defer rather than to confront. The assistance of a third party as informal mediator may be used and this will be a person connected to one or both of the disputants through family, friendÂship or business ties. At the local community level it could also be an imam, friend or headman. Going to a lawyer, or to court, is an option when all else fails.
The promotion of Malay values, culture, language, customs, conventions and institutions has other ramifications. Despite the ethnic diversity in the Sultanate, monoculturalism, not multiculturalism, is the goal. Ethnic minorities are encourÂaged to join the Malay. The Constitution has entrenched a form of racial discrimÂination as only Malays can hold key positions in the Government.
Section 84(A) states that no person â€?shall be appointed to any office specified in the Third Schedule unless... of the Malay race professing the Islamic religion.' Among the positions listed are that of the Auditor-General, Attorney-General, Chief Syar’ie Judge, Chairman of the Public Service Commission, Speaker of the Legislative Council, Clerk of the Privy Council and Legislative Council and Secretary to the Council of Ministers. And as noted in section 3.1 above, the Constitution mandates that persons appointed as Ministers or Deputy Ministers be from the â€?Malay race professing the Islamic religion'. There can be exceptions where the Sultan so decides.147 This is a manifestation of MIB and confirms the leaderÂship and perceived superiority of Malays in Brunei. In an endorsement of MIB, the Minister of Home Affairs argued for prioritisation of the Malay language because â€?it is a symbol of identity that mirrors the glory and superiority of our race and nation'.148 Braighlinn also concludes that in Brunei non-Malay culture is regarded as inferior or inconsequential and therefore warranting absorption into the Malay.1496.3 TheIslamfactor
In addition to MIB directing the nation's laws and legal system into closer alignÂment with Syariah law, the Islamic principle of shura, consultation to achieve consensus, informs the wider legal culture. This is the principle which underÂpins the council system through which selected advisory bodies (as outlined in section 3.1) fulfil a consultative role for the Sultan and the nation. As a shura approach accords with a central tenet of Islam, it is seen as a buffer against forÂeign cultural influences, including Western notions of parliamentary democracy and separation of powers. It also responds to fear that a â€?sequel to Brunei's newly found prosperity and modernisation maybe a new generation of Bruneians who ape Western values, especially secularism'.150
A further manifestation of shura is seen in consultative arrangements with vilÂlage and mukim (subdistrict) leaders, described as â€?grassroots' democracy.
This was initiated in1992asa means bywhich â€?government decisions can be explained to the people and inputs received from the grass-roots leadership.'151 Villagers are able to elect their headmen (ketau kampong), who are given the role of mediÂating agents between the Government and the people, so that local grievances can be addressed. The headmen, who number 1000, are to communicate local147 Constitution,s4(5).
148 PehinAdanan speaking at Dewan Serbaguna, reported in BorneoBulletin, 5 August 2005.
149 G Braighlinn, Ideological Innovation under Monarchy: Aspects of Legitimation Activity in Contemporary Brunei,VUUniversityPress, The Netherlands, 1997, p. 19.
150 BA Hussainmiya, �Philosophy for a Rich, Small State', Far Eastern Economic Review, vol. 157, 1994, p. 31.
151 A Mani, �Negara Brunei Darussalam in 1992: Celebrating the Silver Jubilee', South East Asian Affairs, 1993, p. 99. concerns to the Government through the appointed subdistrict heads (penghulu mukimj[996] and to the District Officers. They meet formally once a month through a network of Consultative Councils, at both the kampong and mukim level.[997] On occasion, meetings with the Home Affairs Minister take place. These �grassroots' organisations have provided channels of communication, but the issues tackled fall within local government matters such as road improvement, cleaning rivers, maintaining community halls, parks and hawkers' stalls.
7 New directions and trends
8