Legalprofessions
5.1 Judiciary
The Constitution does not make provision for the operation of the judiciary or courts of law, nor their jurisdiction. The details on the operation of the courts and the process of judicial appointment and the tenure of judges is contained in sepaÂrate legislation.
Nor does the Constitution provide for an independent judiciary, though in practice the courts are considered to operate independently without executive interference. This independence and basic principles of presumption of innocence, legal representation,110 and equality under the law have been seen as implied principles in the administration of justice. Since the Ministry of Law was abolished in 1999, the Sultan, in his capacity as Prime Minister, has assumed responsibility for judicial administration in the civil courts in the country.His Majesty appoints judges to both the civil courts and the Religious Courts; however, the courts are generally regarded as operating independently and without state interference.
With the civil courts, the Supreme CourtAct empowers the Sultan to appoint judges and commissioners. The qualifications for appointment are twofold: either judicial experience in a court of unlimited jurisdiction in civil and criminal matÂters, in another Commonwealth jurisdiction or appellate court; or, alternatively, seven years' experience as an advocate or solicitor in such a court.111 Tenure of appointment is until 65 years,112 although the Sultan can extend this, and there are provisions detailing removal from office for â€?inability to perform the function of the office or for misbehaviour'.113 The mechanism for removal from office is
109 ABlack(2004),op.cit.
110 Legal aid, however, is provided on a very limited basis, mainly reserved for capital offence cases.
111 Supreme CourtAct, Cap 5, s 7(1)-(2).
112 SupremeCourtAct,Cap5,s8(1).
113 Supreme CourtAct, Cap 5, s8(2). a referral of the question of inability or misbehaviour to the Judicial CommitÂtee of the Privy Council in England.[963] Commissioners can also be appointed to the Supreme Court on similar terms to that of judges.[964] While judges have fixed-term renewable appointments, commissioners are appointed on an ad hoc basis. Bothrenewable fixed-term and ad hoc appointments go against safeguards for judicial independence. It allows the executive (the Sultan and his advisers) to not reappoint judges whose decisions they dislike. Accusations of this arise occasionally and did so in 2000 in a dispute involving a government agency and a member of the royal family. There was a submission made that the Chief Justice, Dato Sir Denys Roberts, should recuse himself from hearing a case on grounds of bias given that his tenure as Chief Justice would require extension by the Sultan the following year. While acknowledging that perceptions of judicial independence were vital in a society in which â€?other safeguards were absent', the Chief Justice dismissed the summons, affirming:
There has never been any interference by the Executive within the judiciary which has remained staunchly independent. Nor has His Majesty ever attempted to influence the courts in any way. Nor indeed has the Attorney-General, on His Majesty's behalf or his own.[965]
Despite the absence of constitutional and other safeguards, judges in the comÂmon law courts have established a reputation for independence. Practitioners report confidence in the independence of the courts, particularly the Supreme Court, and international human rights monitoring groups report â€?the judiciary is independent' but add â€?they have yet to be tested in a political case'.[966]
Appointments to the Syariah Courts are by the Sultan on the advice of the President of the Religious Council and in consultation with it.
In addition to Bruneian citizenship, judges of the Syariah Appeal or High Courts require a cumulative period not less than seven years either as judge of a Syariah Court, or as a kadi, or both for the Appeal Court, or seven years as a judge, kadi, Registrar or Syar’ie prosecutor or a mix of these, for the High Court.[967] No period or type of experience is stipulated for Subordinate Court judges.[968] 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.[969] By comparison, judges on the Syariah Appeal Court are appointed for a period not exceeding three years, which can be renewed. The reason for a difference between the Appeal Court and the High Court is not clear. The absence of details on appointments to the Syariah Subordinate Courts indicates no security of tenure at this level. Removal of Syariah Court judges, apart from in the Subordinate Court, requires �misconduct, or disability due to mental or bodily weakness or other causes to perform properly his duty'.[970] A tribunal appointed by the Sultan can make a recommendation to the Sultan on whether the appointment should be terminated. The tribunal consists of not less than three Muslims who are or have been Syar’ie judges or Supreme Court judges, or members of the Judicial Committee of the Religious Council or any person His Majesty thinks fit or is learned in Hukum Syara’.[971] These provisions go much further in protecting the independence of the Islamicjudges than occurred with kadis under the earlier Act.[972]5.2 Lawyers in the civil system
In the civil courts of Brunei, the legal profession is modelled on its English counterpart. The Legal Profession Act, Cap 132 lays down the requirements for admission to practice. Brunei did not retain the traditional common law separaÂtion of solicitors and barristers, mainly because of the small population and the initial scarcity of trained professionals.
Until 2009, Brunei did not have a local law faculty or department nor another system of professional training through a Bar or Solicitors’ Board. This meant that admission to practice in the common law courts was dependent on overseas legal training. The Legal Profession Act, Cap 132 allows â€?qualified persons’ to be admitted to practice.[973] The first qualÂification is admission as a barrister or solicitor in England, Northern Ireland, Scotland, Malaysia or Singapore, which will usually mean a university qualificaÂtion in law and completion of practical training such as completion of articles, pupilage or a certificate of legal practice. The second requirement is to be of good character and to have attained the age of 21 years. The third requirement, introÂduced in 1999, is for Brunei citizenship, a residency certificate, or seven years’ prior experience in legal practice immediately preceding admission.[974] This is part of the policy of promoting Bruneians and the effect here is that recently qualified Bruneians can practise, but that non-Bruneians will need considerable previous experience before they can be admitted to practice. A petition for admisÂsion is made to the Chief Justice. The Attorney-General may raise an objection to an admission; however, the final determination lies with the Chief Justice. Those who have been admitted are issued with a practising certificate that must be renewed annually. Section 7 of the LegalProfessionAct, Cap 132 allows ad hoc admissions for experienced foreign lawyers, mainly English Queen’s Counsel and Singapore Senior Counsel for cases in which local advocates lack the requisite level of legal expertise. An increasing Bruneian character is apparent, with wigs and gowns abolished as not in keeping with Bruneian traditions.A significant local development has been the introduction of a Bachelor of Laws degree at the Sultan Sharif Ali Islamic University (UNISSA) in Brunei. The University states that this degree program is to train and prepare students for the legal profession through integrated teaching of common law and Syariah.
â€?Apart from acclimatising the students to the development of the modern and widely used legal systems and laws based on the English common law, we do not lose sight of the supremacy of the Syariah.'[975]Also of significance was the introduction in 2003 of a law society for advoÂcates in Brunei. One of its objectives is to improve and maintain standards of professional conduct and learning within the profession.
5.3 Lawyers in the Syariah system
In keeping with the post-2000 professionalisation of Syariah legal system, formal qualifications are required for practice as a lawyer or prosecutor in the religious system. The Syariah Court Rules[976] require a Syar’ie lawyer to be Muslim with either a bachelor degree in Syariah from a recognised university or institution; service as a Syar’ie judge, kadi or prosecutor for three years or more; training in Islamicjudicial matters recognised by the Government; a specialist in Hukum Syara,; or a Muslim advocate enrolled as a civil lawyer who has also passed the UNISSA Syar’ie lawyer certificate examination. UNISSA now provides a range of Syariah university qualifications and the certificate course for lawyers wanting rights of appearance in the Syariah Courts. The Sultan pronounced the new Islamic university to �be a symbol of Islamic glory in the country', producing �Muslim scholars and intellectuals needed by the nation'.[977]
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