24 - The Syariah Factor

Summary

Since 1906, when the British colonial Residency commenced, Brunei Darussalam has had a dual legal system in which common law courts operated alongside Islamic courts. In keeping with the Sultan’s post-independence ideological policy for Islamisation of law and legal institutions, the jurisdiction and importance of the Islamic courts has increased. However, the higher echelons of common law courts, including the Court of Appeal, remain constituted by non-citizen, foreign judges from the British Commonwealth. This chapter evaluates the current role and purpose of foreign judges in the Sultanate. Whilst these judges cannot engage in constitutional interpretation or in judicial review, their distinguished careers outside Brunei Darussalam enable their presence to bring independence, impartiality, and experience to Brunei Darussalam’s civil courts. The chapter reflects on the impact on the dual system court from creating a zikir (fully-Syariah compliant) nation, and consequences of duplication and jurisdictional uncertainty that have arisen.