Sources of law and legal traditions
As outlined in the historical overview, Brunei has been legally pluralistic for cenÂturies and adat (customary law), Syariah and the common law remain the main sources of law in the Sultanate.
The arrival of the British and the establishment of the Residency in 1905 resulted in the creation of two formal parallel legal orders: one known as the civil law system, which has jurisdiction over all peoÂple in Brunei, and the other the Islamic-based legal system, which has limited jurisdiction and applies only to Muslims. During the 20th century, the civil law system was pre-eminent but in the last decade the role for Syariah has become increasingly important. In addition to these formal legal orders, there remains some customary law and dispute resolution processes mainly used in villages and in longhouses, especially among the indigenous non-Malay communities. The Constitution is held to be the superior law for the nation, with the Government of Brunei's website declaring the Constitution and the tradition ofâ€?Malay Islamic Monarchy' to be the â€?twin pillars of the country' which â€?dominate the formal political life of Brunei and its government ethos'.16 However, the raft of amendÂments in 2004 have led some scholars, including Professor Tsun Hang Tey, to conclude that â€?the Constitution is not superior law in Brunei... [as the 2004] constitutional and legislative changes amounted to pedestalling the Sultan as the Grundnorm’.173.1 The Constitution
Brunei's Constitution came into force in 1959, with significant amendments in 1971, 1984 and 2004. It vests the Sultan and Yang di-Pertuan (hereinafter the Sultan) with supreme executive, legislative and religious authority. There is no separation of powers. The position of Sultan is hereditary and for life although abdicationis possible,18 as evidenced by SultanOmarAli Saifuddien's abdication in 1967.
Under the Constitution, the Sultan has royal prerogative powers19 and jurisdiction. Section 84 gives the Sultan power to proclaim further constitutional laws �from time to time as may seem expedient' and s 85 gives to him the power to �amend, add to or revoke any provisions of the Constitution' and confirms15 ibid.
16 ibid.
17 TH Tey, �Brunei's Revamped Constitution', Australian Journal ofAsian Law, vol. 9, no. 2, p. 264.
18 Part IV of the Succession andRegencyProclamation (1959) deals with abdication.
19 The royal prerogative is the legal pre-eminence given to the sovereign over all others. It was a tenet of the common law that �the King could do no wrong'. that it shall not �otherwise be amended, added to or revoked'. Furthermore, s 84(B) confers immunity, declaring that �the Sultan can do no wrong in either his personal or any official capacity' and that His Majesty is immune from legal proceedings in any court.[910] The Sultan's immunity is reaffirmed in s 25 of the Succession and Regency Proclamation (as amended in 2004).
The Constitution provides for councils to assist the Sultan. The members of the councils hold office at the Sultan's pleasure as he holds power of appointment and dismissal. The advice of a council does not need to be taken by His Majesty.[911] These advisory bodies include the Council of Ministers,[912] which functions as the executive and �shall be from among the Malay race professing the religion of Islam';[913] the Privy Council,[914] which when summoned advises the Sultan on matters relating to amendment or revocation of the Constitution, exercise of the royal prerogative of mercy, and the conferral of Malay customary honours and titles; the Council of Regency whose role is to determine the succession to the throne if the need arises;[915] the Religious Council, which advises the Sultan on matters relating to the Islamic religion;[916] the AdatIstiadat Council which advises on matters relating to state custom;[917] and the Legislative Council,[918] a �formal structure for Consultation'[919] advising the Sultan on legislation.
In 2004 the Constitution was amended to decree that the Sultan shall be the Prime Minister[920] and Supreme Commander of the Brunei Armed Forces.[921] This constitutionally entrenches the practice that had been occurring during the reign of the current Sultan.
Beingasultanate, thereligionof Islamis central tolifeandlaw. Section3 ofthe Constitution provides that �the religion of the State shall be the Muslim religion according to the Shafeite sect' but that �all other religions may be practiced in peace and harmony by persons professing them in any part of the State'. The Sultan is designated as �the Head of the official religion' of the state.[922]
3.2 Common law
The Courts Enactment of 1906 introduced English common law and equity to Brunei, with English cases and legislation operating as the applicable law for its civil courts. This common law basis has been retained for the civil courts and was affirmed in the 1951 Application of Laws Act, Cap 2, which provided that �the common law of England and the doctrines of equity, together with statutes of general application, as administered orin force in England at the commencement of this Act, shall be in force in Brunei'.33 The proviso that follows qualifies that this is only as �the circumstances of Brunei and of its inhabitants permit and subject to qualifications as local circumstances and customs render necessary'.
The result has been the English common law remains a primary source of law for the civil courts in Brunei. In addition, the common law method can be seen in the continued application of the principles of stare decisis in the civil courts of Brunei by which decisions of the higher courts bind the lower ones. While not binding, English precedents after 1951 remain highly persuasive, and decisions of other common law jurisdictions, such as Malaysia, Singapore, Australia and New Zealand, are also regularly cited. Admission to practice34 in these courts has required qualifications as a solicitor or barrister from common law CommonÂwealth countries, notably the United Kingdom, Singapore and Malaysia.
Brunei has a long tradition of having visiting judges from Hong Kong and other common law jurisdictions, including Australia, sitting as judges on the High Court and Court of Appeal. The previous Lord President of the Court of Appeal was Justice Noel Power from Australia, with Justice John Barry Mortimer sworn in as the new Lord President of the Court in May 2010.3.3 Legislation
In keeping with the common law method, locally enacted Brunei statutes are a primary source of law. In Brunei, legislation is in three forms: enactments, acts and orders. Enactments are the laws enacted before Independence which were not included in the compilation of the Laws of Brunei as revised for the edition of 1 January 1984. Few remain. Most legislation was revised for the Laws of Brunei which contains Acts consolidated into numbered chapters, of which there are just over 200. The Acts are referenced by title and chapter (abbreviated to Cap), such as the EvidenceAct, Cap 108. They are in English, with translation into Malay an ongoing process. In addition, there are Orders, which are Emergency Orders made pursuant to s 83(3) of the Constitution which sets out the operation and legal effect of a State of Emergency Proclamation. Section 83(3) of the Constitution provides that the Sultan can make any �Orders whatsoever' when a proclamation of Emergency is in force. While s 83(2) of the Constitution requires that a Proclamation of Emergency shall not be �in force for more than two years' it does allow further Proclamations to be made before the expiry of that period. The first Proclamation of Emergency was made in 1962, during the time of the failed rebellion against the Government, and although the rebellion was quickly quashed within weeks, these Proclamations have regularly occurred every two
33 The commencement date for the application ofEnglish laws was 25 April 1951.
34 LegalProfessionAct,Cap132.
years since 1962, mostly recently in 2008. The result is that a significant portion of legislation is by way of Emergency Orders, such as the Emergency (Patents) Order 1999.
Since 2004, these Orders are to be â€?laid before' the Legislative Council which will either resolve to pass the Order, or resolve that it shall cease to have effect (provided the cessation is assented to by the Sultan).[923]Subsidiary legislation, which include Rules, Regulations, Orders, ProclamaÂtions or other documents that have the force of law, are annexed to their relevant parent Acts. The power to make subsidiary legislation is conferred under s 13 of the Interpretation and General ClausesAct, Cap 4. Section 16 further states that the subsidiary legislation should be published in the Government Gazette.
3.4 Syariah
Islam has its own divinely sanctioned laws, the Syariah, derived from the Quran, the Sunnah[924] and a vastbody of Islamicjurisprudence.[925] The scope of the Syariah is fundamentally wider than that of enacted secular laws. Being a �path for life', the laws of Islam regulate the relationship between both �man and man, and man and his Creator'. However, it is only selected areas of Syariah that operate as the applicable official law for Muslims in Brunei today. These are laws relating to the practice of Islam, family and inheritance. They are contained in a range of statutes and implemented by the newly established Syariah Courts. Syariah criminal law is confined to a small range of offences against Islamic tenets which would not be punishable in the secular courts. These are outlined in section 4.5.
The State Mufti is Chairman of the Legal Committee of the Religious Council and is the nation's authority on Syariah law. The Mufti also issues fatawa, or religious rulings, which can become binding on Brunei's Muslims.
3.5 Customarylaw
As noted above, the Islamic model of law adopted by the Brunei Malays blended legal orthodoxy with indigenous adat elements, so that Islamic law has been in a form that was compatible with Bruneian culture.[926] Thus, from the outset, Islamic law in Brunei was imbued with a distinctive Malay, as opposed to Arabic or South Asian, character. In keeping with the practices of Borneo, the Malay cultural tradition was less patriarchal than in the Muslim heartland of the Middle East and SouthAsia. This meant that Muslimwomen in the Sultanate had greater rights than, and were not as confined as, women in the purdah zones of the Middle East and South Asia. This situation has continued to the present. There is also recognition of Chinese customary marriage, with avenues for registration of these marriages.39 Adat continues to inform the non-official dispute resolution process, especially for indigenous non-Malays.40
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