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SP5303 Brunei and ASEAN Legal System

Semester 1 2009/2010

THE SOURCE OF BRUNEI LAWS IS


ENGLISH LAW. DISCUSS.

Student's Name: Dk Hjh Hana Molina binti Pg Hj Mohammad

Registration No. :09d0006

Lecturer's Name: Datin Hjh. Intan


1. Introduction
The beginning of Islam in Brunei Darussalam as the official religion for the
sultanate and the people of Brunei was after Awang Alak Betatar converted to
Islam. Awang Alak Betatar, the first ruler of Brunei, embraced Islam when he
married the princess of Johore1. He changed his name to Sultan Mohammad
Shah and since then Islam slowly spread within Brunei.

Before Brunei came under the British colonial system, Brunei had its own
written legal codes known as the Hukum Kanun Brunei2 or Brunei Customary
Laws relating to rules for conduct of the State and persons and it was the
embodiment of laws based on custom, tradition and Islamic Law. With the
enforcement of this law, Islamic law has been enforced and that it had became
the basic law and policy of Brunei Darussalam at that time 3. At that time,
Brunei only had one legal system and judiciary system that is the Brunei
Sultanate Legal and Judiciary System. The Hukum Kanun Brunei was the basic
law and policy for the administration of the state and religion at that time.

After the British came to Brunei and the acceptance of the first British Resident
in 1906, there were changes in terms of administration as well as the laws of
Brunei. The British not only took control of the Burnei legal and justice system,
they also took control of the government and the administration of Brunei.
From the 1905 and 1906 agreement, the Brunei government must receive and
take action according to the advisory of the British resident except for matters
involving Islamic religious matters. This article discusses how English laws
became the source of Brunei Laws after the British came to Brunei.

2. The history of the British involvement in the Brunei's Legal System


Between 1847 and 1906, there were several agreements signed between
Brunei and the British government. The following is the history timeline in

1 Pehin Jawatan Dalam Seri Maharaja Dato Seri Utama Dr. Haji Awang Mohd. Jamil Al-Sufri,
Tarsilah Brunei: Sejarah Awal dan Perkembangan Islam, Jilid 1, Pusat Sejarah Brunei 2001, p.
33.
2 Dato Dr. Haji Mahmud Saedon Awang Othman, Pentadbiran Undang-Undang Islam di Brunei,
Kertas Kerja, Seminar Antarabangsa Pentadbiran Undang-Undang Islam, IKIM, 23-24 hb. July
1996, hlm. 2.
3 Ibid p.26-27.
relation to the involvement of the British in Brunei's Legal System:
1847: The official relationship between the British government and Brunei
began in 1847 with the Trade and Friendship agreement4. The signing of the
Friendship and Trade Agreement between James Brooke on behalf of Her
Majesty, the queen of United Kingdom of Breat Britain and the Sultan of Brunei
on the 27th May 1847 officially narrowed the jurisdictional powers of the
Hukum Kanun Brunei. The Additional Article stated that where a British citizen
was accused for commiting crimes in the state and the Brunei controlled state
as well as any matters where there are differences or disputes which involved
British citizens, the matter shall be heard and judged by an English Consul
General or other officers appointed for that purpose by Her Britannic Majesty
(SOBAR 1946: 78).

1856: On the 26 November 1856, the Additional Article in the 1847


Agreement had been amended with the British Citizen Criminal Hearing in
Borneo and Dispute Settlement which involves a British citizen. In 1856, the
British was given powers to handle legal matters which arose from disputes
between British citizens or between a British citizen and a foreign citizen in
Brunei.5 This however is not a full power. In carrying out their duties, a British
judge would be assisted by a Bruneian judge 6In the 1856 Agreement, where a
trial proceeding involve a British citizen accused for commiting an offence, an
officer appointed by the Sultan would also sit to judge the trial proceedings.
Whereas in settlement of disputes on matters involving a British citizen, an
officer appointed by the Sultan would also participate in giving judgement in
the trial proceedings based on the rules normally used in Borneo with the
condition that the local penalties passed does not exceed with the penalties
normally used by the British.7 However, Islamic matters is excluded from these
agreements. The British government clearly had set aside the Hukum Kanun
Brunei in criminal matters involving British citizens in Brunei.

4 Maxwell, William George and Gibson, William Sumner, Treaties and Engagements affecting
the Malay States and Borneo, Jas, Truscott and Son Bhd, London, 1924, hlm. 143.
5 Maxwell, William George and Gibson, William Sumner, Treaties and Engagements affecting
the Malay States and Borneo, Jas, Truscott and Son Bhd, London, 1924, hlm. 147.
6 Ibid, hlm. 148.
7 William George Maxwell and William Sumner Gibson, Treaties and Engagement Affecting The
Malay States and Borneo, London: P Jas Truscott and Son. Ltd. 1925, hlm. 148-149.
1888: In the year 1888, Brunei officially came under the British controlled
colonies8. The Agreement between the Brunei Government and the British
Government on the 17th September 1888 had caused Brunei to be under the
full control of the British and thereby Brunei officially became a British
protected colony. This gave the British full powers to handle Civil and Criminal
Justice Courts which only involved British citizens and their property in Brunei.

The Article VII in the agreement provided as follows:


1- Civil and criminal jurisdiction were given to the English Justice committee to
handle their legal proceedings involving British citizen. These special rights
were also given to the foreign citizens who received protection from the British
government.
2- If the prosecutor is a Bruneian, the jurisdiction to judge the legal
proceedings is given to a Bruneian. In a case where the accused is a Bruneian,
the case would then be heard by a local court.9
3- In civil cases involving a British citizen or a foreign citizen protected by the
British with a Brunei citizen, the trial proceedings will be conducted in the local
state court of the accused. An officer appointed by the government for the
prosecution is entitled to be present and participate in the trial proceedings but
10
he has no right in giving a decision

In conclusion, the 1888 Agreement had caused limited jurisdiction of the local
Brunei court to use the Hukum Kanun Brunei. In other words, the powers of
Islamic Laws was reduced. The British authorities had sucessfully took full
control of the legal and justice system in Brunei as a result of this Agreement.

1905 and 1906: In 1905 and 1906, several agreements were signed again
named as Additional Agreements, which officially appointed the first British
Resident in 1906 in Brunei.
The Resident, utilising the advisory clause in the 1905/1906 Supplementary

8 Ibid., hlm. 149


9 Ibid., hlm. 150
10 Ibid. hlm. 50
Agreement, used the Sultan in council to reform the State administration
skilfully avoiding conflicts with the Sultan. The Resident's primary role was to
provide advice but under the terms of the Agreement, Brunei is obliged to
ensure that such advice had to be "acted upon on all questions in Brunei other
than those affecting the Muhammadan religion." The agreement which
appointed for this British Resident declared the Sultan to receive all the advice
11
of the British Resident on all matters except on religious islamic matters

The 1905 Agreement which was signed on the 3rd December 1905 and on the
2nd January 1906 between the British and Brunei had widened the opportunity
for the British remove the Hukum Kanun Brunei. At that time, the Brunei Legal
system was the same as the one which existed in other Malay states which was
under British colonial rule. Within two decades for the British, Islamic law was
reduced to a personal religion and confined to family laws. From the late 18th
century, the British Colonial law rested on the following principle (Act of
Settlement, 1781): English law is the law of general application, subject to the
religions, manners and cultures of the natives, provided these exceptions are
not repugnant to justice, equity and good conscience. ‘Religions, manners and
customs’ come to be defined as family law and charitable trusts and even
within this narrow definition certain practices, valid in religion, were either
restricted or forbidden under the ‘justice, equity and good conscience’
provision (for example, child marriage and aspects of charitable trusts).12

The Brunei traditional administration system was changed and structured


following the western system in terms of finance, the establsihment of courts,
the customs regulations and the establishment of public service institutes and
safety and schools.

Seeing that the position of Brunei custom laws is not clear and as a result of
the limitation in Islamic Laws, the Brunei Government had decided to sent one
petition13 on the 2nd July 1906 to the British Commisioner to Borneo, to

11 Ibid., hlm. 151.


12 M.B Hooker, Islamic Law in South East Asia, trj. Rohani Abd. Rahim, Raja Rohana Raja Mamat
& Anisah Che Ngah, Dewan Bahasa dan Pustaka, Kuala Lumpur, 1991, hlm. 201.
13 Petition to teh British Commisioner to Borneo was sent on the 2nd July 1996. See: Ranjit Singh, Brunei 1939-1983:
demand that: 1- Every case in relation to Islamic matters to be heard by the
14
local judges. 2- Requesting for the customs and local laws to be never
15
repealed, amend or violate .

Based on this petition, the British have agreed to established a Syariah court
which handles legal matters in relation to Islamic laws. The British however
rejected the second request with the reasons that the intention of the 1906
agreement was to improve the custom and local laws as a step to save Brunei
from losing its regions.16 This rejection and the British reasoning gave a
meaning that any renewal or changes which were made on Brunei laws are
within their control. The British have therefore devised a clear and manageable
way to make sure that the Brunei Justice System was changed and follow the
English legal system which is suitable for their importance. In the process of
drafting the new legal system for Brunei, the British have taken steps to
receive part of the local laws as well as declaring new laws and establishing
courts to carry out a more efficient legal system in Brunei.

3. English Law as a source of Brunei Laws


At the early stage, the English Laws was accepted through the drafting of laws
which were made based on the laws carried out by the Malay Associated
States17 such as Law of Contracts and the Strait Settlement States such as
18
Criminal Codes. Most of the laws of the Malay Associated States and Strait
Settlement States were then drafted based on the Indian laws which had taken
its principles from English laws.19

As such, the new Brunei Laws have been drafted based on English Laws which
had been matched with the Strait Settlement States which had a similar
background as the Brunei community. English Laws was then received officially
as Brunei Laws. Section 2 of the Application of Laws Act, Chapter 2 of the
The Problem of Political Survival, hlm. 112.
14 Ranjit Sing, Brunei 1839-1983: The Problems of Political Survival, Singapore: Oxford
University Press, 1984, hlm. 112.
15 Ibid.
16 As a result of the local land laws which enable the land owners to sale or mortgage their land without any
involvement by the others including the ruler. See: this book, hlm. 35-37.
17 Laws of Brunei 1908-1930, E. no. 1. 1908, s. 25
18 Ibid. s. 25
19 Ahmed Mohamed Ibrahim and Ahlemah Joned, Legal System in Malaysia, hlm. 49.
Brunei Laws stated that:
“ Subject to the provisions of this Act and save in so far as other provision has
been or may hereafter be made by any written law in force in Brunei
Darussalam, the common law of England and the doctrines of equity, together
with statutes of general application, as administered or in force in England at
the commencement of this Act, shall be in force in Brunei Darussalam:
Provided that the said common law, doctrines of equity and statutes of general
application shall be in force in Brunei Darussalam so far only as the
circumstances of Brunei Darussalam and of its inhabitants permit and subject
to such qualifications as local circumstances and customs render necessary.”

As a summary, the act stated above provided that if the English Laws is
enforced in England does not conflict with the local cirsumstances and customs
of Bruneian people and there are no provisions made in the written laws, the
laws will automatically become Brunei Laws.

Ever since the British Resident in Brunei took place in 1906, various laws have
been legalised. The powers to make laws was under His Majesty, the Sultan of
Brunei20. In 1907, the British resident had established the Majlis Mesyuarat
Negeri Brunei in which Tuan Imam Mahyddin bin Nakhoda Jambul who was the
religious Minister was appointed to become the member. Usually, the Majlis
Mesyuarat Negeri would formulate a Bill and presented it to His Majesty. The
21
Bill will be considered to be laws after getting approval from His Majesty.

The British Residential system was introduced in Brunei Darussalam by virtue


of the Courts Enactment of 1906. Another enactment was later introduced,
known as the 1908 Enactment and had repealed the 1906 Enactment. The
purpose of this second 1908 Enactment was to amend the law relating to the
constitution and powers of the Civil and Criminal Courts and the law and
procedures to be administered in Brunei Darussalam (hereafter called the
“State”).
By virtue of section 3 of the 1908 Enactment, five courts were constituted in

20 The Brunei Board letters, section 39, appendix 1.


21 Ibid. Section 45 and 46.
the State for the administration of Civil and Criminal justice. There were:
Resident Courts
Courts of Magistrate of the First Class
Courts of Magistrate of the Second Class
Courts of Native Magistrates
22
Kadi Courts

The establishment of these courts was enforced through the amendment in the
Courts Enactment 1920 (No. 7/ 1920). The jurisdiction of the Kadi Court was
restricted only on matters concerning the administration and enforcing of
Islamic laws in relation to marriage, divorce and syariah matters. Whereas, the
Civil Courts has a wider and overall jurisdiction. As such, a dual legal system
and a dual administration of justice and legal system came into existence in
Brunei.23

During the British administration in Brunei, the adoption of Common Law


system, equity and status influenced the Brunei legal system and suited with
the local environment. Islamic Laws was replaced in fields of criminal law,
contract, evidence and procedure and the land law. Principles of equity and
tort were also introduced. Although a system of Kadi Courts was eventually
formed through the years, its scope of application and influence was limited
ony to muslim matrimonial matters. Hence, it is not a suprise, even during the
present day, the Brunei laws are largely influenced by the western law. This
include the state law in general which included the personal law system such
as Family Islamic laws in which the penalties and procedure still follows the
24
western legal system The acceptance of the English legal system as well as
the minimum adoption of Islamic laws caused the way of the law
administration for the Islamic people to be more derivative.

22 Courts Enactment 1908 (No. 1 of 1908), s. 3


23 Dato Dr. Haji Mahmud Saedon b. Awang Othman, Kearah mengemaskinikan Pentadbiran
Mahkamah- Mahkamah Syari’ah Di Brunei, Kertas Kerja, Seminar Sistem Kehakiman Syarak
Negara Brunei Darussalam, Pusat Persidangan Antarabangsa Berakas, Negara Brunei
Darussalam, pada 10-12hb. Jun
1995 M, hlm. 29.
24 Awang Haji Sawas b. Haji Jebat, Kesalahan Jenayah Zina Mengikut Akta Majlis Ugama Dan
Mahkamah- Mahkamah Kadi Brunei Dibandingkan Dengan Undang-Undang Islam, Latihan
Ilmiah, Universiti Kebangsaan Malaysia, Fakulti Undang-Undang, 1992, hlm. 7.
3. Conclusion
It cannot be denied that the British involvement have brought changes to the
administration of the Brunei legal system which is more efficient and
manageable then before. As a result from the British involvement, Brunei until
the present time, practices a dual legal system namely the Civil Courts System
based on the English Common Law and the Syariah Courts System which
deals with Personal Laws mainly in Muslim matrimonial divorce and other
matters in relation to Islamic Laws. Hence, Syariah Courts have a narrow
jurisdiction compared to the Civil Courts System which has a wider
jurisidiction.

BIBLIOGRAPHY

1. Sistem Kehakiman Brunei: Satu Kajian Perbandingan Dengan Sistem


Kehakiman Islam, Siti Zaliha binti Abu Salim. Diterbitkan oleh Institut
Pengajian Islam Sultan Haji Omar' Ali Saifuddien, Universiti Brunei
Darussalam (2006).
2. Ke Arah Pelaksanaan Undang-Undang di negara Brunei Darussalam oleh
Prof. Dato Dr. Haji Mahmud Saedon A. Othman
3. http://www.law.emory.edu/ifl/legal/brunei.htm Time log into website:
Thursday 15, 12.22 p.m.
4. Pentadbiran Undang-Undang Islam di Negara Brunei Darussalam pada
Zaman British oleh Datin Dr. Hajah Saadiah DDW Hj Tamit Akedemi
Pengajian Brunei Universiti Brunei Darussalam
5. Challenges to Legal Education in A Changing Landscape – Brunei by Haji
Nabil Daraina Badaruddin
6. Islamic Law in South-east Asia by MB Hooker