Legalinstitutions

4.1 The Sultan as law-maker

Brunei Darussalam is an absolute monarchy. Without an elected democratic legislativebody, it is the Sultanwho fulfils the role of legislator forBrunei.

4.2 Legislative Council

The Legislative Council was reconstituted and reconvened in September 2004. This was 20 years after Brunei had become independent and there was an expec­tation that the decade-long review of the Constitution⁴⁴ would possibly lead to an elected or democratic component in the Legislative Council. As already noted, this had been provided for in the 1959 Constitution. However, when the Council met in 2004, each of the 21 members had been appointed by the Sultan and included the Sultan, his son (Crown Prince Al-Muhtadee Billah), his brother and Cabinet Minister for Foreign Affairs (Prince Mohamed Bolkiah); four other Cab­inet Ministers, including the Attorney-General and the Minister of Religion; five official members who were senior public servants; and 10 nominated members, all of whom were prominent business leaders or state officials. All were male.

39 ChineseMarriageAct,Cap126.

40 A Black, �Survival or Extinction? Animistic Dispute Resolution in the Sultanate of Brunei', Williamette Journal ofInternationalLaw andDisputeResolution, vol.

41 Until amended in 2004, s 39 had included �with the advice and consent of the Legislative Council' with the Sultan's power to make laws for the peace, order and good government of the state.

42 Constitution, ss 3 and 38. Also Religious Council andKadis CourtsAct, Cap 77.

43 Constitution,s3(4).

44 A constitutional review committee was established in 1994.

This Council met, discussed and passed the Constitution (Amendment) Proclama­tion 2004 and was then dissolved. In 2005 a new Council was appointed with 29 members which has since met once a year in March.

The membership of the Legislative Council is found in Schedule 2 of the Constitution. It states the Legislative Council shall consist of not more than 45 members. Up to 30 persons shall be appointed by His Majesty from four cat­egories: ex officio members who are the Prime Minister and Ministers; titled persons; persons with distinguished public service; and distinguished persons from professions, religion, management, trade, arts and agriculture. Up to 15 representatives can come from the four districts of Brunei �in accordance with the laws relating to elections in force in Brunei Darussalam'. However, s 4(2) of the Constitution states that until such time that laws relating to elections for district representatives are in force, a process of nomination and recommenda­tion of candidates shall occur.^[927] To date, election laws have not been enacted. At the 2004 opening of the Legislative Council, the Sultan said the changes were designed to �strengthen the monarchy and to better regulate the relationship between government and people... [They] reflect his sincere wish to provide opportunities to his people to contribute constructively to the nation's develop­ment through a formal structure of consultation'.^[928] The operative word here is consultation and the danger is that an appointed consultative body, rather than a representative body elected by the people, will not be a forum for free debate and scrutiny of legislation.

4.3 Religious Council

The Religious Council and Kadis Courts Act provides that the Religious Council (Majlis Ugama Islam) shall �aid and advise His Majesty on all matters relating to the religion of Brunei, and shall in all such matters be the chief authority in Brunei'.^[931] All members of the Religious Council are appointed by the Sultan for �such a period as he may deem fit'^[932] and must be �male over the age of 21 years, professing the Islamic religion'. There is a President, Vice President and no fewer than six other members. The State Mufti is an ex officio member. The proceedings of the Council are secret, not to be divulged (except to the Sultan) or unless expressly authorised.^[933]

The Judicial Committee of the Religious Council can give opinions on any question of Islamic law or doctrine for the purposes of the courts other than the Religious Courts.⁵²

The Legal Committee of the Religious Council of which the State Mufti is the Chairman provides rulings (fatawa), on â€?any point of Muslim law or doctrine' submitted to it â€?by any person'.⁵³ The Legal Committee prepares a draft ruling and, if unanimously approved by the Religious Council, the fatwa is issued, otherwise the ruling is discussed and determined by the Religious Council. If there are special grounds, the Mufti can request the Religious Council to refer a question to the Sultan for a ruling.⁵⁴ A fatwa is issued in accordance with the orthodox rulings of the Shafeite sect, although â€?less orthodox tenets' may be followed if it is in the public interest to do so. Furthermore, with the â€?special sanction' of the Sultan, the tenets of the three other Sunni sects may be followed â€?with any necessary explanation' given.

Any ruling given by the Majlis [Religious Council], whether directly or through the Legal Committee, in accordance with the foregoing provisions shall, if the Majlis so determines or if His Majesty so directs, be published in the Gazette and shall thereupon be binding on all Muslims of the Shafeite sect resident in Brunei Darussalam, other than Muslims, not being of Malays race, who are subject to a personal law other than that obtaining in Brunei Darussalam.

It is an offence to â€?bring into contempt' any fatwa lawfully issued under the provisions of the Act, with imprisonment for six months or a fine of B$4000.⁵⁵

4.4 Adjudication in the civil courts

The civil courts provide the forum for adjudication of disputes in matters other than those under thejurisdiction of the Religious Courts. The language in these courts is English, with translators provided when needed for Malay and other local languages. Court reports are in English, and the rules of evidence derived from the English common law. Unlike the English system, which has trial by jury as an integral feature, there are no jury trials for criminal offences in Brunei. Magistrates and judges determine questions of both law and fact. Originally, in the 1984 Revised Laws, there were provisions for a judge of the High Court to sit with two assessors in criminal cases;⁵⁶ however, this requirement for assessors has been removed. Today, criminal jurisdiction is exercised by a single magis­trate or judge, except in capital offences where two judges will sit. If the two judges cannot agree on the guilt of the accused, he or she is acquitted. Capital offences include murder, possession of firearms, waging war against His Majesty,

52 Religious Council andKadis CourtsAct, Cap 77, s 44.

53 Religious Council andKadis CourtsAct, Cap 77, s 42.

54 Religious Council andKadis CourtsAct, Cap 77, s 42(2).

55 Religious Council and Kadis Courts Act, Cap 77, s 187.

56 CriminalProcedure Code, Cap 7, ss 200-201. The assessors were not empowered to pass judgment, but where the assessors disagreed with thejudge's opinion, the Court was obliged to order a new trial. trafficking of controlled drugs, and gang robbery.⁵⁷ However, there has not been an execution for some years and Brunei is listed as a de facto abolitionist nation by Amnesty International.⁵⁸ Where a life sentence is imposed, the term of impris­onment is for the remainder of the defendant’s natural life. Brunei has retained corporal punishment, with 24 lashes (whipping or caning) the maximum num­ber a court can impose for adults, with 18 for youths. Women and men above 50 or persons of ill health are not whipped.

Having been given immunity from all legal proceedings, civil or criminal, the Sultan is also above the jurisdiction of these courts.

Judicial Committee of the Privy Council

The right of final appeal to the Judicial Committee of the Privy Council in London was maintained at Independence but has subsequently been reduced. Criminal appeals were abolished in 1995, and in 1997 legislation modified appeals per­taining to civil matters by limiting the avenue of appeal to cases where there was agreement of both parties prior to the hearing of the appeal in the Appeal Court of Brunei Darussalam. The effect is really to have the Court of Appeal as the final appellate court for Brunei, demonstrating the nation’s legal independence, while not totally closing the door where parties voluntarily decide on a further appel­late safeguard. The Attorney-General at the time expressed the view that the Privy Council option should be retained, as it â€?may be useful to foreign investors who are not otherwise familiar with the judicial system in this country’.⁵⁹

Supreme Court

The Supreme Court of Brunei Darussalam was established in 1963, after the dissolution of the joint Sarawak, North Borneo and Brunei Supreme Court.

The Supreme Court exercises a supervisory jurisdiction over the lower courts. However, one significant change to the Constitution in 2004 was the removal of judicial review. Judicial review in common law countries enables the courts to determine the legality of legislation and of administrative or executive decisions - essentially a manifestation of separation of powers. Section 84C(1) of the Constitution provides that �the remedy of judicial review is and shall not

57 Penal Code, Cap 22. Also offences with capital punishment are found in Internal Security Act, Cap 133; Misuse ofDrugsAct, Cap 27; CriminalProcedure Code, Cap 7; and Public OrderAct, Cap 128.

58 Amnesty International, Submission to the UN Universal Periodic Review of the Human Rights Council (13 April 2009) Amnesty International.

59 Speech by Yang Amat Mulia Pengiran Laila Kanun Diraja Pengiran Haji Bin Pengiran Haji Abbas at the Opening of the Legal Year, February 1998.

60 Supreme CourtAct, Cap 5.

61 Supreme CourtAct, Cap 5, s 6(6).

be available in Brunei Darussalam'. The section clarifies that there be �no judi­cial review in any court of any act, decision, grant, revocation or suspension, or refusal or omission to exercise any power, authority or discretion by His Majesty the Sultan' and extends to �any party acting on his behalf or under his authority or in the performance of any public function’ (emphasis added) �under the provision of this Constitution or any written law'. It also specifies that there be no proceedings instituted for the prerogative orders of mandamus, prohi­bition and certiorari; any applications for declarations or injunctions; or for a writ of habeas corpus.^[934] The Sultan is not required to give �any reason for any act, decision, grant, revocation or suspension, or refusal or omission' to exercise any power, authority of discretion conferred on him, or any party acting on his behalf or in the performance of any public function under �the provisions of the Constitution or any written law'.^[935] Clearly, the Sultan, or persons acting on his behalf or performing a public function, are not accountable to any other arm of government.

Supreme Court: Court of Appeal

The President and two judges or commissioners constitute this Court.^[936] If the President is unable to exercise his powers or perform his duties, then the judge, having precedence in terms of appointment after the President, is to act in that capacity. It hears civil and criminal appeals from the High Court.^[937] The Court of Appeal usually sits twice during each legal year, and is comprised of judges and commissioners from other Commonwealthjurisdictions.^[938]

Supreme Court: High Court

The High Court has unlimited original civil and criminal jurisdiction.^[939] The civil jurisdiction is that as exercised by the Courts of Chancery, Family and Queen's Bench divisions of the High Court of England^[940] and any other jurisdiction as conferred by local law. The Court hears civil and criminal cases that exceed the jurisdiction of the Intermediate and Magistrates Courts. The criminal cases usually heard by the High Court are those with provisions for the death penalty or a life sentence and so are heard by two judges. In all other cases, the High Court is presided over by a single judge or commissioner.

Decisions of the Supreme Court in both the High Court and Court of Appeal are to be pronounced at the conclusion of a hearing and the Court �may give reasons for its decision, if it so wishes'^[941] and these may be orally or in writing.

Writtenjudgments of the courts can be purchased and the Brunei Law Reports are available up to 1994.

Intermediate Court

The Intermediate Court was established in 1991.70 Judges are appointed by the Sultan and sit alone.⁷¹ The Court's original criminal jurisdiction is concurrent with that of the High Court but does not extend to cases punishable by death, life or imprisonment exceeding 20 years.⁷² The matters most frequently heard in this Court include criminal breach of trust by public servants, house break­ing, robbery, causing grievous bodily hurt, arson and possession of controlled drugs.

The Court's original civil jurisdiction includes civil cases where the amount claimed or the value of the subject-matter in dispute is more than B$15 000 but does not exceed B$100 000,⁷³ or a sum prescribed by order of the Chief Justice in the Gazette. There must be a connection with Brunei, in that the cause of the action arose in Brunei, the defendant has a business or resides in Brunei, or the facts on which the action is based occurred in Brunei.⁷⁴ The Court does not have jurisdiction over recovery of immovable property or disputes as to title under the Land Code, Cap 40. For criminal matters, the court has jurisdiction to try all offences committed in Brunei or outside Brunei if committed by Brunei nationals. Appeals from this Court in respect of civil and criminal matters go to the Court of Appeal â€?as if it was an appeal from the High Court'.⁷⁵ However, there is no appeal avenue if the parties agreed in writing that the judgment of the Court would be final and conclusive of the matter.⁷⁶ In criminal cases, there can be an appeal, a review of a sentence passed, and reference of a point of law for opinion where a person has been acquitted.

Magistrates Courts

The Subordinate Courts Act 1983⁷⁷ enables the Sultan to establish Courts of Magistrates as the subordinate courts in the state. It abolished the previous different classes of Magistrates Courts⁷⁸ and made provision for the appointment of Coroners. The majority of cases - 85 per cent - are heard in the Magistrates Courts. There are five courts, with two situated in the district ofBelait, at Seria and Kuala Belait, and one in each of Tutong, Bandar Seri Begawan, and Temburong.

The Criminal Procedure Code⁷⁹ provides that a Magistrates Court has the power to impose imprisonment not exceeding seven years or a fine ofB$10 000.

70 Intermediate CourtsAct, Cap 162.

71 Intermediate CourtsAct, Cap 162, s 10.

72 Intermediate CourtsAct, Cap 162, s 13.

73 Intermediate CourtsAct, Cap 162 s 14(1).

74 Intermediate CourtsAct, Cap 162 s 14(1)(a)-(c).

75 Intermediate CourtsAct, Cap 162, ss 26-27.

76 Intermediate CourtsAct, Cap 162, s 27.

77 The Laws ofBrunei Darussalam, Cap 6.

78 Underthe CourtsEnactment (1951) there hadbeenthree classes ofcourts-First, Second and Third Class, each with differentjurisdiction.

79 The Laws ofBrunei Darussalam, Cap 7.

The powers of these courts may be extended by legislation. This can be seen in the Prevention of Corruption Act⁸⁰ and Misuse of Drugs Act⁸¹ which give spe­cial jurisdiction to a Magistrate to impose a higher imprisonment term or fine. The criminal cases more frequently heard in the Magistrates Court include theft, criminal breach of trust, cheating, handling stolen goods, criminal trespass, caus­ing hurt, possession and consumption of controlled drugs, corruption, gambling, immigration cases, customs and excise cases, traffic offences, and municipal, fisheries and forestry cases. Civiljurisdiction is provided for in s 17 of the Subor­dinate CourtsAct, where the amount claimed, or the value of the subject-matter in dispute, does not exceed the appropriate prescribed limit of B$30 000. As provided for under the Act, the Chief Justice with the approval of the Sultan has increased the limit, so that the Senior Magistrate, Chief Magistrate and Chief Registrar have jurisdiction to B$50 000. The same connection with Brunei is also required as outlined for the Intermediate Court.

Civil and criminal appeals from the Magistrates Court are heard by one judge of the High Court. In criminal matters, notice of appeal must be filed within 14 days from the date on which judgment was rendered.⁸² The accused may appeal to the High Court against judgment and sentence for any error in law or in fact, or on grounds of excessive severity or inadequacy of sentence. In civil matters, appeal is of right â€?from a final judgment of a Court of Magis­trate in any proceedings for the recovery of immovable property or in any proceedings where the amount claimed or the value of the subject matter in dispute exceeds B$500'.⁸³ Leave is required where the subject-matter is less than B$500.

The High Court exercises a supervisory role over the Magistrates Court. The High Court may call for and examine the record of any civil proceedings for the purpose of satisfying itself as to â€?the correctness, legality, propriety of any judgment, and as to the regularity of proceedings'⁸⁴ in the lower court. Under this power, the High Court can give orders including directing a new trial to ensure â€?substantial justice' is done.⁸⁵ Also, a magistrate, before or during the hearing of a civil matter, can seek a legal opinion of the High Court.⁸⁶

Further appeals on issues of law are possible to the Court of Appeal, or to the Privy Council, as outlined earlier.

Under the Constitution, the Sultan may exercise powers⁸⁷ of pardon for any person convicted of an offence; may grant respite, either indefinite of specified, of the execution of any sentence; may substitute a lesser punishment than that imposed by a court, or remit any part of a sentence, or any sum imposed as a fine or forfeiture by a court, or order the discharge of any person imprisoned.

80 TheLawsofBruneiDarussalam, Cap 131.

81 The Laws ofBruneiDarussalam, Cap 27.

82 Supreme CourtAct, Cap 5,s56.

83 Subordinate CourtsAct, Cap 6, s 18.

84 Subordinate CourtsAct, Cap 6,s19.

85 Subordinate CourtsAct, Cap 6, s 20.

86 Subordinate CourtsAct, Cap 6,s21.

87 Constitution, s 9(1)(a)-(e).

4.5 Adjudication in the Syariah Courts

For more than a century, Religious Courts have dealtwith a range of interpersonal matters in accordance with Syariah law. The Courts Enactment (1908) estab­lished the Courts of Kathis with jurisdiction over matters concerning the Islamic religion and family law. As the Residency Agreement gave the Sultan control over matters �affecting the Mohammedan religion', appointment of Kathis, and also imams in the mosques, was by the Sultan. In 1956 the Religious Courts were designated Kadis Courts, their expanded jurisdiction and procedure contained in the Religious Council and Kadis Courts Act. After independence and in accor­dance with the MIB ideology, the goal has been to promote Islam in the Sultanate and to strengthen the Islamic legal system. To this end, the Emergency (Syariah Courts) Order was enacted in 1998, and given royal assent for commencement in 2001. This Order was significant in several ways. First, of symbolic importance was change of name for Islamicjudges from kadi to Syar’ie hakim and thus Kadis Courts to Syariah Courts. As well as signalling something new, it demonstrated a strengthening of Syariah law and procedures and negated any arbitrary connota­tions associated with kadi justice.^[942] Second, the Order marked structural change within the Islamic system through the introduction of a hierarchical tiered system of Syariah Courts and with avenues for appeal, akin to those in the civil courts. Third, it allowed greater professionalisation of the Islamic system through new requirements for judicial, prosecutorial and legal qualifications which mirrored those in the civil system. Fourth, legislative change was needed to assign juris­diction to the new Syariah Courts. This meant the repeal of some parts of the Religious Council and Kadis Courts Act and the enactment of new laws such as the Islamic Family Law Order 1999. Lastly, there were changes to the rules of evidence for the Religious Courts. Syariah evidentiary principles contained in the Syariah Courts Evidence Order 2001 and Syariah Courts Civil Procedure Order 2005 replaced the mix of civil rules that had previously applied in the Religious Courts.

The language for oral proceedings in the Syariah Courts is Malay. Written documentation is either in rumi, romanised Malay, or jawi, the Arabic script for the Malay language.^[943] The Syariah Courts remain within the Department of Religious Affairs.

The Sultan and the Religious Council

As noted in section 4.1 above, when discussing the Sultan's law-making powers, the Constitution provides that he is the �Head of the official religion' (Islam)^[944] and can make laws in regard to matters related to Islam with the Religious Council his

advisory body on such matters.^[945] Members of the Religious Council, including the State Mufti, are appointed by the Sultan. The Sultan also retains the right to exercise his prerogative of mercy^[946] and can commute, suspend or remit any sentence.^[947]

Appointments to the Syariah Courts are by the Sultan on the advice of the President of the Religious Council after consultation with the Council.^[948] Syar’ie judges at the level of High Court and the Chief Syar’ie judge are appointed until the age of 65, providing security of tenure. Beyond the age of 65, this is at the discretion of the Sultan.^[949] By comparison, judges on the Syariah Appeal Court are appointed for a period not exceeding three years, which can be renewed. This indicates no security of tenure at this level.

Syariah High Court

The civil jurisdiction of the Syariah High Court is set out in the Syariah Courts Act, Cap 184 and includes matters pertaining to betrothal, marriage, divorce and property arising from such claims; maintenance of dependants, legitimacy, guardianship and custody; division of claims arising from harta sepencarian;^[950] wills and inheritance of property, whether testate or intestate; gifts inter vivos; Islamic trusts (waqaf or nasar); and �other matters in respect for which jurisdic­tion is conferred by written law.'^[951] Its criminal jurisdiction is to try any offence punishable under any written law in Brunei which provides for Syariah criminal law.^[952] Currently Syariah criminal offences are contained in the Religious Council and Kadis Courts Act, Cap X.^[953] These include violations of Islamic morality such as khalwat (suspicious proximity with a person of the opposite sex); Islamic pro­hibitions such as drinking or selling alcohol; breaching Islamic obligations such as attending the mosque on Friday or refraining from food and drink during the Ramadan fast; or usurping religious authority, such as teaching Islamic doctrine without permission of the Majlis, deriding the Quran or issuing an unauthorised fatwa. The Court does not have jurisdiction over offences against the person or against property which are contained in the Penal Code, Cap 22 and heard in the civil courts. Despite this limited criminal jurisdiction, the Syariah CourtsEvidence Order 2001 did introduce classic Syariah evidentiary principles, including those with application only for criminal law, such as provisions stipulating the number and gender requirements of witnesses, in particular for hudud offences.^[954] The Evidence Order makes the distinction between bayyinah and syahadah evidence, withwomen (and non-Muslims) excludedfrom giving syahadah evidence, except in matters pertaining to designated women's issues.^[955] Additionally, the princi­ple that the evidence of a woman is weighted at half that of a man prevails through the Order.

Chapter 22, however, specifies that its application is �only to persons pro­fessing the Islamic religion'.^[956] The two offences in the Act that apply to non­Muslims^[957] are to be heard in the Magistrates Court.

Syariah Appeal Court

The Syariah Appeal Court can hear and determine any appeal from the Syariah High Court exercising its original jurisdiction. A decision from the Syariah Sub­ordinate Court that has already been determined on appeal to the Syariah High Court requires an application for leave of the Syariah Appeal Court. Leave will be granted where it is a question of law and in the public interest.^[958] The Syariah Appeal Court can make any order that the Syariah High Court might have made. This Appeal Court also has been given supervisory and revisionary jurisdiction over the Syariah High Court. Where the interests of justice make it necessary, either on its own motion or on application by any party or interested person, the Syariah Appeal Court may call for and examine the record of the Syariah High Court, thereby suspending those proceedings. The Syariah Appeal Court can give any direction as is needed in the interests of justice to the High Court.^[959]

This appellate court^[960] is constituted by a Chairman (either the Chief Syar’ie judge or the most senior judge on the panel) and two other judges. Any Syariah High Court judge can be appointed to the Appeal Court, providing he was not the judge who made the original decision being appealed against.^[961] An appeal is determined by the decision of the majority of members, and there are provisions for cases where an appeal judge is sick or is unable for other reasons to conclude his function in the proceedings.^[962]

4.6 Arbitration

Arbitration is available to disputing parties. It comes in two forms. The Arbitration Act, Cap 173 was designed to meet the needs of commercial and construction disputes, both domestic and international. It is modelled on English arbitration law. As the Government of Brunei is immune from suit, parties to contracts want arbitration clauses in their contracts. The Act allows for awards to be given in domestic and also international arbitrations under the New York Convention of 1958. Also, there is traditional Islamic arbitration, takhim, which in Brunei has been mainly limited to family and marital disputes, although there is an increasing practice in Islamic nations to apply the Islamic model to commercial disputes. Non-Western or traditional Bornean mediations also are conducted by headmen of kampong and longhouses continue in rural areas.¹⁰⁹

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