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Ideology and Law: The Impact of the MIB Ideology on Law and Dispute Resolution in the Sultanate of Brunei Darussalam

Published online by Cambridge University Press:  16 April 2015

Ann Black
Ann Black*
Affiliation:
University of Queensland
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Abstract

Since 1984, the Sultanate of Brunei Darussalam has chartered its post-independence course through its proclaimed ideological compass of MIB (Melayu, Islam, Beraja). All three pillars of MIB - Malay culture, the religion of Islam, and the institution of an absolute Monarchy - are traditional, long standing Bruneian features, which have been expertly crafted in the last two decades to act as the filter by which modernisation and development can occur. As the ideology is all-encompassing, law has not only been one of the vehicles for implementation, but is being shaped to accord with the tenets of MIB. This can be seen in legislation, legal institutions and processes for dispute resolution with the promotion of a more distinctive Malay character as well as a discernible Islamization agenda. The paper explores each of these as well as processes of enacting laws in this Sultanate where, in the absence of an elected democratic parliament, all law emanates from the monarch.

Keywords

BruneiMIBlawdispute resolution
Type
Research Article
Information
Asian Journal of Comparative Law , Volume 3 , 2008 , pp. 1 - 41
Copyright
Copyright © Faculty of Law, National University of Singapore 2008

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References

1 Extract from the titah (Royal speech) at the promulgation of Brunei's independence in 1984.

2 Brunei became a British Protectorate in 1888. In 1905, a Supplementary Treaty introduced the British Residential System. Under the terms of the Residency, the British appointed Resident advised the Sultan on all matters, excluding Malay religion and custom. Japanese Occupation was from 1941 -1945 and Brunei (Miri Shyu) was administered by a Japanese military governor. After the war ended Brunei was placed under British Military Administration. In the process of decolonisation there was a range of options canvassed for Brunei, including full independence, merger with the other States of Borneo as Kalimantan Utara, or joining an entity such as Malaysia. Before this was determined, the Residency agreement was revoked and the powers of the Resident were transferred to the Sultan in 1959 and a written Constitution giving internal self-rule was promulgated. The British High Commissioner continued in an advisory role to the Sultan. During the 1960s, Brunei's political future was uncertain and the failure of the Sultan to heed the demands of the democratically elected Partai Rakyat Brunei led to an armed uprising in 1962. Although the rebellion was quickly quashed, the Sultan declared Brunei to be in a state of emergency. This state of emergency has been renewed every two years since 1962 and the episode underlines the continuing concern for regime stability and consolidation. In 1971, an amendment was made to the 1959 Agreement giving Brunei full control over its internal affairs, though Britain retained responsibility for foreign and external affairs. On 1 January 1984, the fully independent nation of Brunei Darussalam was proclaimed.

3 Nation of Brunei, the Abode of Peace. Daru'L-Salam is an honorific Arabic title.

4 A prevailing view in Southeast Asia is that modernisation inevitably means westernisation or globalisation. See Thumboo, Edwin, ed, Culture in ASEAN and the 21st Century (Singapore, University Press Singapore, 1996) at xx. [Thumboo]Google Scholar.

5 The “law of Islam” is transliterated from Arabic to English as Shari'ah or Sharia, and literally means the path to be followed. In Brunei, legislation and texts transliterate the word as Syariah and this spelling is adopted for this paper.

6 This is a recurring theme in post-colonial Asian countries. President Sukarno of Indonesia used the traditional concept of “bapak” or father to justify his “guided democracy”. President Suharto drew on Javanese traditions and former Prime Minister Mahathir of Malaysia drew on kerajaan fwhich obliges the ruler to act justly, which in turn brings unquestioning loyalty and deference from the subjects). Singapore employed concepts of traditional Confucian values in a similar way. All have tried to modernise their countries through strong leadership wielding power in a traditional manner.

7 French philosopher, Count Destutt de Tracy, first employed the term in his treatise Elements d'ideologie , 1801-5. For an analysis of Tracy's d'ideologie see: Head, Brian William, Ideology and Social Science: Destutt de Tracy and French Liberalism (The Netherlands: Matinus Nijhof, 1985)CrossRefGoogle Scholar.

8 Including ideologies focusing on ethnicity and nationality; economic systems; political systems; individualistic and collectivist goals; religion; social and environmental goals.

9 Clifford Geertz quoted by Siddique, Sharon, “Conceptualizing Contemporary Islam: Religion or Ideology?” in Ibrahim, Ahmad, Siddique, Sharon & Hussain, Yasmin, eds, Readings on Islam in Southeast Asia (Singapore: Institute of Southeast Asian Studies, 1985) at 338 Google Scholar.

10 A royal address to the people of Brunei Darussalam, in which policy directions are announced. Most titah can be accessed in Malay, with some translated into English, from the Government of Brunei's website: <www.rtb.gov.bn/Titah/>.

11 Extract of the 1984 independence titah is in Borneo Bulletin Brunei Yearbook 2000 (Brunei, Brunei Press, 2000) at 92 Google Scholar.

12 Ibid.

13 Indonesia has the Pancasila, Malaysia has Rukun Negara with its “the Five Pillars” and Singapore promulgates Confucianism to define its national values.

14 In 1995, the Minister of Religious Affairs, Zain bin Hj Serudin, announced that civil (secular) law was under review in order to strengthen Syariah laws and that “Brunei is eagerly pursuing a move to make Islamic law the effective judiciary (sic) system in the country” Borneo Bulletin (14 June 1995). Note, that references to the Borneo Bulletin are used because in the absence of other sources, these reports and commentary can give insight to local practices and perceptions. Krausse and other researchers, such as Menon, have acknowledged that: “the information generated by the news media should not be dismissed as useless, especially in Brunei where nothing else might be available.” Krausse, Gerald H, “An Inquiry into the Status of Research and Literature on Brunei” in Mulliner, Kent & Lent, John, eds, Brunei and Malaysian Studies: Present Knowledge and Research Trends (USA: Studies in Third World Societies, Department of Anthropology, College of William and Mary, 1994) at 18 Google Scholar.

15 MIB has been a compulsory annual subject at the University of Brunei Darussalam and at all schools since 1991.

16 Policies to implement Islamic banking and finance systems are a priority. The definition of Islamic banking under the International Banking Order (2000) is “banking businesses are those that do not offend against the religion of Islam.” The Islamic Bank of Brunei, has been joined by the Islamic Trust Fund, the Takaful (Islamic Insurance System) and the Development Bank of Brunei have been converted from conventional banking to a riba free (interest free) Islamic banking system. Islamic bonds have been issued for infrastructure projects since 2005, see Anwar, MK, “Brunei's Capital Market Vision” Borneo Bulletin (15 March 2006)Google Scholar; and individuals and families are requested to adhere to Islamic financial planning, see Kon, James & Sonia, K, “Islamic Financial Planning for All” Borneo Bulletin (31 December 2006)Google Scholar.

17 Sulaiman, Ayu & Lim, Jock, “Armed Forces Unveil Vision” Borneo Bulletin (12 May 2001)Google Scholar; “Call for Cooperation and Sincerity in the Military”, online: <www.brudirect.com/DailyInfo/News/Mar01/310301/rtb04.htm>.

18 Minister of Youth, Culture and Sport, Matussin bin Omar, stated that all departments under the auspices of the Ministry of Youth, Culture and Sport are geared towards the development of MIB. “The goal is to fortify attachment and loyalty in the rakyat towards MIB concept” Borneo Bulletin (12 July 1996).

19 Malai Hassan Othman & Laila Rahman, “Islamic Strategy to Reform Administration” Borneo Bulletin (4 May 2001). It aims to employ a style of administration similar to that of Umar, the second Caliph of Islam and create leadership teams similar to the “Companion of Leaders” formed by the Prophet. See also, “Focus on Islamic Management and Administration”, online: <www.brudirect.com/DailyInfo/News/Mar 01/280301/rbt05.htm>.

20 Muslim codes of dress and behaviour must be strictly adhered to at the University of Brunei Darussalam, government schools and departments.

21 Hussin, Haji, “Islamic Values prevail in Brunei House” Borneo Bulletin (5 August 2005)Google Scholar.

22 In 2002, Islamic education entered the portfolio of the Ministry of Education but was returned to the Ministry of Religious Affairs in 2006.

23 Section 53(1A), Constitution of Brunei Darussalam (Amendment) Proclamation, 2004.

24 Braighlinn, G, Ideological Innovation under Monarchy: Aspects of Legitimation Activity in Contemporary Brunei (The Netherlands: VU University Press 1992) [Braighlinn]Google Scholar.

25 Gunn, Geoffrey, Language, Power and Ideology in Brunei Darussalam (USA: Center for International Studies Ohio University, 1997) [Gunn]Google Scholar.

26 Saunders, Graham, A History of Brunei (England: Oxford University Press, 1994) at 187–90Google Scholar; Cleary, Mark & Wong, Shuang Yann, Oil, Economic Development and Diversification in Brunei Darussalam (New York: St Martins Press, 1994) at 128–131 CrossRefGoogle Scholar; Talib, Naimah S, “A Resilient Monarchy: the Sultanate of Brunei and Regime Legitimacy in an era of Democratic nation-states” (2002) 4 N.Z. J of Asian Studies 134 at 142 Google Scholar.

27 Titah commemorating the Prophet's Birthday, reported in Borneo Bulletin (3 October 1990).

28 Online: <http://www.brunei.gov.bn/government/mib.htm>.

29 Matussin bin Omar, “The Making of a National Culture: Brunei's Experience” in Thumboo, supra note 4 at 16.

30 Two month after Independence in 1984 the Sultan suspended Parts VI and VII of the Constitution, which dealt with elections for, and operation of, the Legislative Council. Brunei Darussalam is the only ASEAN nation that does not have national elections. However, Brunei does have managed elections (the government vets and approves the candidates) at the local village level, see later under section V, Avenues for Consultation.

31 Director of Information, Ustaz Badaruddin, is credited by Braighlinn, as laying the ideological foundations in 1983, the year prior to independence. See Braighlinn, supra note 24 at 19.

32 Ibid at 29.

33 Kershaw, Roger, “Constraints of History: the eliciting of Modern Brunei” (1998) 29 Asian Affairs 312 at 315 CrossRefGoogle Scholar

34 Braighlinn, supra note 24 at 5.

35 For example, the Islam in Brunei today is quite different in its formalisation, external manifestations, and proselytising mission, than in the pre-Residency period, when religious laxity was noted by early visitors to Brunei. See Gunn, supra note 25 at 216.

36 Titah of the Sultan in November 2006 reported by Lyna Mohamad, “Royal Call to Preserve Brunei's Unique Identity” Borneo Bulletin (6 November 2006).

37 Matussin, supra note 29 at 12.

38 Malay monarchy is also present in nine of the Malay states: one Yang di-Pertuan Besar in Negri Sembilan, one Raja in Perlis and a Sultan in each of the seven Malay states (Sultanates) of the peninsula of Malaysia.

39 South and North Korea especially under the era of Neo-Confucian dominance.

40 Brown states that linguistically they belong to one language family but speak mutually unintelligible languages. See Brown, Donald E, Principles of Social Structure: Southeast Asia (USA: Westview, 1976) at 132 Google Scholar.

41 Animistic religions often identified as pagan were present prior to the arrival of Hinduism in the 13th and 14th centuries, and Islam from the 15th century. A small number of Christian conversions occurred under British colonial rule especially in the non-Muslim indigenous population. Buddhism and Taoism came with Chinese settlement.

42 According to the official government site, the Chinese population is 11.2%; indigenous non-Bruneians 6%; “other races” make up 11.8%.The latter comprised expatriates from Europe, Asia, Australia and New Zealand, who are employed in the professional areas, and people from the Philippines and Thailand who are in the construction and service sectors. Unlike the Chinese who settle permanently in the country, these immigrants tend to be in Brunei for short-term stays. See: Government of Brunei Darussalam Official Website, “land and people”, online: <http://www.brunei.gov.bn/about brunei/land.htm>.

Other sources claim the Chinese population to be approximately 15%, “online: Brudirect <http://www.brudirect.com/BruneiInfo/info/brudirect_brunei_at_a_glance.htm>.

43 On “Melayu” generally see Reid, Anthony, “Understanding Melayu (Malay) as a source of diverse modern identities” (2001) 32 (3) J. of Southeast Asian Studies 295 CrossRefGoogle Scholar.

44 Bujang, Abdul Ghani, “Education for Nationhood” (1987) 24 Southeast Asian J. of Education Studies, 39 at 43 Google Scholar.

45 Matussin, supra note 29 at 12.

46 Brown, Donald E, “Patterns in Brunei History and Culture” (1984) 16 (1) Borneo Research Bulletin, 31 Google Scholar.

47 Pehin Adanan speaking at Dewan Serbaguna reported in Borneo Bulletin (5 August 2005).

48 Section 4 (1), Brunei Nationality Act, Cap 15, Laws of Brunei Darussalam.

49 Braighlinn, supra note 24 at 19.

50 Adat can be described as an all encompassing system of customary law, beliefs, rules and principles.

51 See Black, Ann, “Survival or Extinction? Animistic Dispute Resolution in the Sultanate of Brunei” (2005) 13 Willamette J. Int'l L & Disp.ute Resol. 1 Google Scholar.

52 An-Na'im, Abdullahi Ahmed, “Towards an Islamic Reformation: Islamic Law in History and Society Today” in Othman, Norani, Shari'a Law and the Modern Nation-State (Malaysia: SIS Forum, 1994) at 17 Google Scholar. In orthodox Muslim communities the subjects are classified as Muslims, Dhimmis, “People of the Book” because they believed in revealed scriptures from God, and kafirs or “unbelievers”. Dhimmis were granted some rights of citizenship, provided they paid a special tax (jizyh), and could practise their religion provided they did so in private and did not attempt to convert Muslims. They could not hold positions of authority over Muslims, Unbelievers had fewer rights and at times were killed unless granted safe conduct (aman) by Muslims.

53 Bernstein, Jay, “The Deculturation of the Brunei Dusun” [Bernstein] in Winzeler, Robert L, Indigenous Peoples and the State: Politics, Land, and Ethnicity in the Malayan Peninsula and Borneo (USA: Yale University Southeast Asian Studies, 1997) at 167 [Winzeler]Google Scholar.

54 Braighlinn, supra note 24 at 21.

55 AVM Horton, “British Administration in Brunei” (1986) 20 Modern Asian Studies, 353 at 354 Google Scholar; Ellen, Roy & Bernstein, Jay, “Urbs in Rure: Cultural Transformations of the Rain forest in Modern Brunei” (1994) 10 (4) Anthropology Today, 16 at 18 CrossRefGoogle Scholar; Brown, DE, “Brunei in Comparative Perspective” (1978) 26 Sarawak Museum J. 135 at 158 Google Scholar; King, Victor, ed, Essays on Borneo Societies (England: University of Hull, 1978) at 5 Google Scholar. The process of conversion is also masukIslam.

56 Othman, Azlan, “Nearly 10,000 Embrace Islam in 10 Years” Borneo Bulletin (5 April 2005)Google Scholar.

57 Bernstein indicates that the figure of B$200 per month is given to each convert. See Bernstein, supra note 53 at 174.

58 Zaide, Haji Mohd Damit, Haji, Six Muslim Converts to get Special Houses, Borneo Bulletin (5 August 2005)Google Scholar. Azaramy H Hasib quotes Awang Hj Jaman bin Ali, a Religious Propagation Officer from the Ministry of Religious Affairs, as stating homes valued at around $42,000 are built and given to converts in the hope of improving “their well-being and living quality”, together with “water tank supply and power generators which may cost around $2500 to $5500 each”. See Azaramy H Hasib, “Brunei Takes Giant Strides towards Islamic Conversions”, online: <http://www.brudirect.com/DailyInfo/News/Mar01>.

59 Section 134, Religious Council and Kadis Courts Act (1984) Cap 77 required both parties to profess the Islam religion, however, The Emergency (Islamic Family Law) Order (1999) section 10 states that: “A marriage shall be void unless all the necessary conditions, in accordance with Hukum Syard” have been satisfied.

60 School students frequently convert to Islam. Bernstein's research amongst Dusun in Brunei reports that a significant number of conversions to Islam involve students at boarding schools where they are influenced by peers and teachers. See Bernstein, supra note 53 at 174. Once fourteen and a half a non-Muslim can convert to Islam without parental consent. All students can attend Government schools but non-Malays, such as the Ibans, Dusun, Muruts have to take subjects on Islam, MIB and wear Malay dress, including the tudong or veil for girls. There is no prescribed coverage of non-Malay indigenous culture or practices.

61 Media reports give details of the name change. For an example, see “Dusun Family Embraces Islam” Borneo Bulletin (14 May 2005).

62 Dress of tudongs (veils) and angle-length loose gowns for women and girls, and songkit or MIB shirts for men.

63 A Muslim is required to observe the five pillars of Islam, which include prayers five times a day, and fasting during the month of Ramadan, as well as the annual payment of zakat, a pilgrimage to Mecca during one's lifetime, and belief in God and Mohammad as his messenger.

64 Wild and reared pigs were a staple part of the diet of many indigenous groups on the island of Borneo.

65 Rice wine was integral to many ceremonies and festivals of the indigenous peoples such as the Iban.

67 In 2005, it was reported that there had been almost 10,000 converts in the last decade with the largest group beings being Iban and Dusun. The report added that the target group for propagating Islam was the Iban, Dusun, Punan, Murat and Belait indigenous people and incentives given are also listed, see Azlan Othman, “Nearly 10,000 Embrace Islam in 10 Years” Borneo Bulletin (13 April 2005). However, some Iban suggested to the author that a percentage of conversions take place in order to receive the monetary advantage, but in practice, earlier beliefs (animistic or of another religion) continue to operate. This is not unlike the notion of the “rice Christian” conversions in Asia. In 2006, it was reported that 200 people in Brunei converted to Islam, Borneo Bulletin (2 December 2006).

68 Prediction of Maxwell cited in Bernstein, supra note 53 at 177. Professor Allen Maxwell (PhD Yale) is a cultural anthropologist who has conducted extensive field research in Brunei Darussalam and Sarawak for over 35 years.

69 Judicial Committee of the Privy Council is at the apex of the court structure. Next is the Supreme Court which consists of the Court of Appeal with appellate criminal and civil jurisdiction and the High Court, which has original and some appellate jurisdiction. See Supreme Court Act, Cap 5 (1984 Rev Ed). Exercising original criminal and civil jurisdiction are the Intermediate Court and the five Magistrates courts. See Intermediate Courts Act (1991) Cap 162 and Subordinate Courts Act (1983) Cap 6.

70 Patrick Parkinson, Tradition and Change in Australian Law, 2d ed (Australia: Law Book Company, 2001) at 4; Mason, Anthony, “An Australian Common Law?” (1996) Law in Context, 81 Google Scholar.

71 The Chief Justice at the time was not consulted on this.

72 This appointment was not contradictory to general Islamic principles as her judicial function was limited to secular issues. A similar appointment to the Syariah Courts is less likely, given the general consensus that women should not be judges in Islamic courts. However, Brunei's Islamic neighbour, Indonesia, does appoint female judges to its Syariah Courts.

73 Section 18, Legal Profession Act, Cap 132.

74 Colin Ong & Dk Siti Nurbani, “Cross Border Legal Services Within ASEAN Under the WTO: the law and Practice Brunei Darussalam”, online: <http://www.aseanlawassociation.org/docs/w2 brunei.pdf>.

75 Section 11, Legal Profession Act, Cap 132.

76 Borneo Bulletin Brunei Yearbook 2000 (Brunei, Brunei Press, 2000) at 101 Google Scholar.

77 Arbitrations are governed by Arbitration Act (1994) Cap 173. Whilst arbitration agreements are typically found in commercial contracts and in contracts with the Government of Brunei (for the Government, noting its agencies have immunity from suit), in practice most parties prefer to waive their rights under the arbitration agreement. See Black, Ann, “Alternative Dispute Resolution in Brunei Darussalam: the Blending of Imported and Traditional Processes” (2001)13 Bond L. Rev. 305. [Black]Google Scholar

78 The ADR movement first came to prominence in common law countries - USA, United Kingdom, Australia.

79 However proselytising is prohibited. Detentions (without trial) under the Internal Security Act (1960) Cap 133 have been given for “attempting to spread Christianity” and for engaging in activities “aimed to deviate the belief of the Muslim population”. There are also restrictions on the importation of religious materials such as bibles and religious Buddhist and Christian icons.

80 Abdul Latif, “Cultural and Counter Cultural Forces in Contemporary Brunei Darussalam” in Thumboo, supra note 4 at 30.

81 See Hussainmiya, B, “Philosophy for a Rich, Small State” (1994) 157 Far Eastern Economic Review, 31 [Hussainmiya]Google Scholar. Ustaz Awang Haji Yahya, Deputy Minister of Religion, warned that the Sultanate was increasingly coming under the undesirable spell of foreign culture on Radio Television Brunei (4 November 2004). The Sultan stated in a 2004 titah that as globalisation brings positive and negative ideas, “we need to make efforts to strengthen our values in accordance with our national philosophy, Malay, Islamic Monarchy” see Mahathir, Lena & Zaini, Zalia, “Sultan Calls to meet Globalization Challenges through Bruneian Identity” Borneo Bulletin (24 September 2004)Google Scholar.

82 For discussion and overview of dispute resolution in the Sultanate, see Black, supra note 76 at 305.

83 For example, titahs are given to mark events such as Isra Me'raj, the Prophet's miraculous flight from Mecca to Jerusalem; Nuzul Al Quran, the revelation of the Quran; awal Muharram, the beginning of the Hijrah (migration to Medina). This cements the nexus between religion and state policy.

84 Report of the MIB message in Hari Raya'Aidil fitri prayers and sermons, See Othman, Man, “His Majesty Attends Aidi fitre Prayers” Borneo Bulletin (26 October 2006)Google Scholar.

85 Building regulations require that no structure rise above the height of the minaret of the Sultan Omar Ali Saifuddien Mosque. An office block that exceeded the height of the minaret had to demolish the top five storeys to be two metres lower than the minaret. See Azmi, A, “Merging religion and development” Borneo Bulletin (17 May 2001)Google Scholar.

86 Online: <http://www.brunei.gov.bn/government/mib.htm>.

87 “Administration is to be modeled on a companion of leaders” similar to that formed by the Prophet Mohammad, with an “action-orientated drive for the glory of Islam”, see Othman, Malai Hassan & Rahman, L, “Islamic strategy to reform administration” Borneo Bulletin (4 May 2000)Google Scholar. Also see Ya'akub, Izam “Workshop on Islamic Management” Borneo Bulletin (2 August 2005)Google Scholar.

88 Haj Management Department is part of the Ministry of Religious Affairs.

89 Papers regularly write of such contests and laud the benefit of Quran reading generally. The Sultan, the Mufti of Brunei and officials of the Department of Religious Affairs advise that high priority must be given to reading the Quran. Mahmod, CT Hj, “His Majesty Urged Youth to Maintain MIB Spirit to Become World Players” Borneo Bulletin (9 April 2005)Google Scholar.

90 Undesirable Publications Act (1982) Cap 25, Censorship of Films and Public Entertainments Act (1984) Cap 69, Internal Security Act (1960) Cap 133, The Local Newspaper Order (2001) Cap 105.

91 “Life Foundations: For the New Millennium” broadcast 31 December 1999.

92 Borneo Bulletin (4 January 2000).

93 Representative of viewer concerns was the following extract from one letter:

“I saw the last 15 minutes of the programme and was shocked, when I realised what the contents were. Our magazines are always censored with lots of black ink. Anyone wearing anything, which resembles a cross, is blotted out and so are the winning lottery numbers. But this programme on Star World managed to escape censorship. I find this very strange, more so during the month of Ramadan.”

94 Borneo Bulletin (4 January 2000).

95 There are many reported prosecutions and convictions with resulting incarceration for persons selling or having non-halal products in their possession are numerous. See: Hassan, Syed, “Authorities catch public off-guard and confiscate ‘Dubious Meat’” Brunei Times, 30 December 2007 online: <http://www.bt.com.bn/en/home news/2007/12/30/>Google Scholar.

96 Ministry of Industry and Primary Industries, “Brunei Premium Halal Brand Highlighted at World Forum - Saturday, 12 May 2007”, online: <http://www.industry.gov.bn/wps/portal>. In 2006, Brunei hosted the International Halal Products Expo which was opened by the Sultan. “Brunei to be Halal Food Centre” Borneo Bulletin (6 December 2006).

97 Ya'akub, Izam, “Islamic Banking Poised to Grow” Borneo Bulletin (14 September 2005)Google Scholar. The University of Brunei Darussalam with support of the Ministry of Finance with an assistance loan from the Saudi Arabia based Islamic Development Bank established the Centre for Islamic Finance, Banking and Management in late 2006. Islamic banking licences are issued under the International Banking Order (2000) and regulated by the Islamic Banking Act (1999) Cap 168.

98 Attorney-General, Kifrawi bin Dato Paduka Hj Kifli, in a speech for the opening of the Legal Year 2001, Supreme Court. Othman, Malai Hassan & Mohammad, Lisa, “Call on lawyers to Learn Islamic Laws” Borneo Bulletin (14 February 2001)Google Scholar.

99 Speech entitled “Syariah law for Brunei” given by Zain bin Hj Serudin (Minister for Religious Affairs). Reported in Borneo Bulletin (16 June 1995).

100 The second primary source of law is the Sunnah, meaning “beaten track”. It fulfils a supplementary but also authoritative role. Sunnah is law originating from the life of the Prophet, on the rationale that “whatever he said or did was according to the teachings of the Qur'an”. So the Sunnah comes from recollections and accounts, Ahadith, of activities, deeds, letters, teaching, prophecies, and sayings of the Prophet Mohammed recorded by verifiable eyewitnesses and accepted as true from the earliest time after his death.

101 The juristic scholars invoke a methodology whereby they, as jurists, responded to a specific question of law by giving a specific solution to it, based on the Quran, Sunnah and other sources, rather than laying down general principles. This methodology allowed for development and innovation in Islamic jurisprudence. The most respected of these scholars attracted followers and developed into derivative schools or madhahib of jurisprudence and law.

102 Khalid El-Mahdi, I, Highlights on some Legal Aspects of the Shari'ah (Brunei: Universiti Brunei Darussalam, 1990) at 26 Google Scholar.

103 Abdul Qadir Audah quoted in ibid at 26.

104 A religious or charitable tax paid usually during Ramadan.

105 Ibrahim, Ahmad, “Superiority of the Islamic System of Justice” (1994) 4 IIUM L.J 11 Google Scholar.

106 1984 Titah, supra note 11 at 92.

107 Ibid.

108 The Ministry of Law was abolished in 1998 and its role absorbed by the Prime Minister's Department.

109 “Syariah law for Brunei: a need to return to Islamic law” Borneo Bulletin (16 June 1995). It also reports that the Minister of Law and the Minister of Religious Affairs had both stated that very effort must be taken to reverse the existing predominance of the civil system in this Islamic state.

110 See supra note 98.

111 Borneo Bulletin (16 June 1995).

112 Muzaffar, Chandra, “Islamisation of State and Society: Some Further Critical Remarks” in Othman, Norani, ed, Shari'a Law and the Modern Nation State: A Malaysian Symposium (Malaysia: SIS Forum Berhad, 1994) at 113 Google Scholar.

113 Schacht, Joseph, Introduction to Islamic Law (England: The Clarendon Press, 1964) at 1 Google Scholar.

114 The Sultan's brother Prince Mohamed's QAF Group owns the Borneo Bulletin.

115 The exception is that non-Muslims can bring into Brunei a small quota of alcohol, for personal consumption, which is declared on entry.

116 Non-Muslims have access to some imported pork products.

117 This provides services to clients free from the giving or taking of “interest”. Interest may be classified as riba, which is prohibited under the Quran and Sunnah. Business activities are to be based on halal profit, that is, profit from activities allowed and not forbidden in Islam, and must not involve gharar, unreasonable uncertainty or speculation. Financial transactions must accord with Islamic principles or social justice, and banks have obligations to pay zakat (tithe) to assist disadvantaged persons in the local community. For a detailed analysis, see Saeed, Abdullah, Islamic Banking and Interest (The Netherlands, E.J. Brill, 1999)Google Scholar; Ariff, Mohammad, ed, Islamic Banking in Southeast Asia (Singapore: Institute of Southeast Asian Studies, 1988)Google Scholar.

118 1996 the Branch at Seria opened.

119 This operates on similar principles to Islamic banking set out at note 116.

120 This bank merged with the Islamic Bank of Brunei. “Big Bank merger Boost in Brunei to Benefit Public” Borneo Bulletin (8 July 2005). However, the legal status of the merged entity remains problematic due to some aspects of the Companies Act, Cap 39.

121 “Imams praise Islamic Banking” Borneo Bulletin (5 August 2000).

122 Pakistan, Sudan, Iran, and several northern states in Nigeria. The Malaysian state of Kelantan passed a Syariah Criminal Code Act in 1993 but it was not implemented due to contravention of provisions of the Federal Constitution.

123 Forte, David, “Islamic Law and the Crime of Theft: an Introduction” (1985–1986) 34 Clev. St. L. Rev. 48 Google Scholar.

124 Hudud punishments, for example, are ones specified in the Quran, which obligate Muslims to impose the ordained punishment. These include theft (Al-sariqa), robbery, (Al-hirabah) adultery or unlawful sexual intercourse (Zina), false accusation of adultery (Al-Qazf), drinking alcohol (Al-Khamr), and in some cases apostasy (Al-Ridden). See the book written by a legal drafter in the Department of Religious Affairs, Anwarullah, Criminal Law of Islam (Brunei: Islamic Da'wah Centre, 1995).

125 For example, the much critiqued rule that the evidence of two women is equal to that of one man, and that only the evidence of Muslim male witnesses can be used for syahadah testimony, required for hudud offences. See generally Anwarullah, , Islamic Law of Evidence (Brunei, Islamic Da'wah Centre, 1994) [Anwarullah]Google Scholar. See also discussion of changes to the evidence law in the Syariah Courts later in this section.

126 Titah delivered from the Throne Room at Istana Nurul Iman (Royal Palace) on 16 July 1996. Reported in Borneo Bulletin (16 July 1996).

127 Ibid.

128 Typically present when legislation is enacted in common law jurisdictions. As there was no Parliament until the appointment of Legislative Council members in 2004, records such as second reading speeches introducing new legislation and other speeches in parliamentary sessions contained in Hansard have not been available. The proceedings of the September 2004 sitting of the Legislative Council are available online: <http://bruneiresources.com/ahlidewanmailis.html> but not for subsequent sittings of the expanded Legislative Council.

129 Minister for Law and Attorney-General, Hj Bahrin, quoted in Borneo Bulletin (16 June 1995).

130 Negeri Sembilan Administration of Islamic Laws Enactment (1991), Pahang Administration of Islamic Law Enactment (1991), Selangor Administration of Islamic Laws Enactment (1989), Sabah Syariah Courts Enactment (1992), Johore Administration of Islamic Laws Enactment (1978), Kelantan Administration of Syariah Court Enactment (1982).

131 Malaysian spelling of Syariah. Syariah is currently used in Brunei.

132 Ibrahim, Ahmad, “Superiority of the Islamic system of Justice” (1994) 4 IIUM L.J 10 Google Scholar.

133 Ibid at 11. Also Ahmad Ibrahim wrote that the Islamic judges had lost their confidence and self-respect as protectors of Islamic law, in Ibrahim, Ahmad, “The Shariah Court and its place in the Judicial System” (1989) 5 Shariah L.J. 8 Google Scholar. However, there were sectors in the Malaysian legal profession that were hostile to the upgrading of the Islamic system, it being an “unworthy competitor to the secular system”. See Horowitz, Donald L, “The Qur'an and the Common Law: Islamic Law Reform and the Theory of Legal Change” (1994) 42 Am. J. Comp. L. 253 CrossRefGoogle Scholar.

134 Esposito, John L, ed, The Oxford Encyclopedia of the Modern Islamic World, vol 3 (New York, Oxford University Press, 1995) at 374 Google Scholar.

135 This was because the ruler assumed supreme judicial authority, making the courts subject to the limits he prescribed. Reasons for restricting the kadi's administration of criminal law include the limited number of crimes and punishments in the Syariah, leaving many ill-defined as ta'zir; the laws of evidence in Syariah were restrictive; and rulers needed to control mechanisms for law and order rather than leaving state security in the hands of religious scholars. See Sachedina, Abulaziz, “The Ideal and Real in Islamic Law” in Khare, Ravindra S, Perspectives on Islamic Law, Justice, and Society (USA: Rowman & Littlefield, 1999) at 25 Google Scholar. See also, Anderson, John, “Law as a Social Force in Islamic Culture and History” in Edge, Ian, Islamic law and Legal Theory (England: Dartmouth Publishing, 1996) at 495 Google Scholar.

136 Barakbah, Syed Agil, “Judges and Judicial Function” (1994) 4 IIUM L.J. 49 Google Scholar.

137 337 US 1 at 11, 1949. Also Clark v Harleyville Mutual Casualty Co, 123 F 2d 499 at 502: “We sit after all as an appellate court, administering justice under the law, not as an ancient cadi, dispensing a rough and ready equity according to the dictates of his own unfettered discretion”.

138 Merry, Sally Engle, “The Culture of Judging” (1990) 90 Colum. L. Rev. 231 CrossRefGoogle Scholar; Makdisi, John, “Legal Logic and Equity in Islamic Law” in Edge, Ian, ed, Islamic Law and Legal Theory (England: Dartmouth Publishing, 1996) at 64 [Makdisi in Edge]Google Scholar.

139 Max Weber used “Kadijustiz” or kadi justice as a typology of what he called “irrational law”, that is law based on ethical, patriarchal, religious postulates, rather than the fixed rules of formally rational law. He asserted that inferior courts of England, for example, operated in the form of kadi courts. Weber, Max, “Law in Economy and Society” in Rheinstien, Max, ed, On Law in Economy and Society (USA: Harvard University Press, 1954)Google Scholar. Weber's system for classifying legal reasoning is also discussed in Makdisi, John, “Formal Rationality in Islamic Law and the Common Law” (1985–1986) 34 Clev. St. L. Rev. 97 [Makdisi]Google Scholar.

141 Shapiro, Martin, “Islam and Appeal” (1980) 68 Cal. L. Rev. 353 CrossRefGoogle Scholar.

141 Rosen argues that judicial decision-making is a cultural phenomenon, and kadis like all judges use the cultural categories of their society in their adjudications. The legal realm is just a small part of the wider cultural context. He criticises western lawyers for seeing cultural factors as irrelevant to their formal legal processes. See Rosen, Lawrence, The Anthropology of Justice: Law as Culture in Islamic Society (England: Cambridge University Press, 1989)Google Scholar. See also Makdisi, supra note 138 at 231 and Makdisi, supra note 139 at 112. where he concludes that hasty conclusions should not be made in classifying Islamic law, as a study of legal reasoning in Islamic contract law shows it to be, in Weber's terms, logically formal rationality.

142 Section 45, Religious Council and Kadis Court Act (1984) Cap 77.

143 Ibrahim, Ahmad, “Superiority of the Islamic system of Justice” (1994) 4 IIUM L.J. 54 Google Scholar.

144 Islamic knowledge or jurisprudence.

145 Mahmud Saedon Awang Othman has been an Islamic Legal Specialist in the Ministry of Religious Affairs since 1994. For his comments on legal training, see Mahmud Saedon Awang Othman, “Undang-Undang Keterangan Mahkamah Kadi: Satue Keperluan”: Paper presented at Seminar Sistem Kehakiman Syara (June 1995) at 20 [Mahmud Saedon Awang Othman].

146 Section 9 for Appeal Court, and section 10 for High Court, Syariah Courts Act (2000) Cap 184. Appointments to the Subordinate Syar'ie Courts are by the Sultan on the advice of the Majlis -section 10 of the Act.

147 Section 57(1), Religious Council and Kadis Courts Act (1984) Cap 77: “The court shall observe all provisions of Muslim law relating to the number, status or quality of witnesses or evidence required to prove any fact. Save as aforesaid, the Court shall have regard to the law of evidence for the time being applicable to the Supreme and Magistrates. Courts of Brunei, and shall be guided by the principles thereof, but shall not be obliged to apply the same strictly.”

148 Cap 108. The British first introduced this Act in 1939, and is essentially the same as the rules of evidence employed in Malaysia, Singapore and India. It is worth noting that the Evidence Act (section 2) states that it shall not apply to the Muslim Religious Courts. However, as the Religious Council and Kadis Courts Act was a later enactment, it abrogates the former to the extent of the repugnancy.

149 Islamic law is very precise about the number of witnesses required. For example, in a matter of property, a will or a divorce the evidence of at least two male witnesses is required, or one male and two female.

150 This is dependent on the type of evidence required. In Islam, there are two types of evidence: Syahadah (or Shahadah) is a special type of oral evidence, which if it meets the requirements must be accepted by the kadi. Only certain persons can give Syahadah: adult, Muslim, sane, adil (good repute), male (for hudud offences), and unbiased. Bayyinah evidence is much wider and includes the evidence of persons unable to give Syahadah. The kadi had discretion as to whether this evidence is to be accepted or rejected.

151 Witnesses must be adil or credible, and if the kadi has doubts he must enquire further in any mode he sees fit and not accept the evidence until credibility is established.

152 Mahmud Saedon Awang Othman, supra note 144 at 21.

153 Ibid at 22.

154 Anwarullah, “Law of Evidence Applicable to the Shariah Courts in Brunei Darussalam”: Paper presented at Seminar Sistem Kehakiman Syara (June 1995) at 14.

155 Section 165, Syariah Courts Evidence Order (2001).

156 Bayyinah means evidence which proves a right or interest. See also supra note 149.

157 Syahadah is oral evidence given in court by a syahid (a person who meets the Islamic requirements for giving this type of evidence as set out supra note 149) which must conclude with the word “asyhadu” (I bear witness). It is direct evidence that proves or disproves any fact before the court. This evidence must be accepted by the judge. Sections 103-106 Syariah Courts Evidence Order (2001). See Anwarullah supra note 124 at 6-65.

158 Qarinah is a fact connected with other facts, from which a logical inference can be drawn. It is similar to circumstantial evidence in the common law. Sections 7-19, Syariah Courts Evidence Order (2001). See Anwarullah, supra note 124, at 87-105.

159 Ikrar is a written, oral or gestured confession that he or she is under an obligation to another in respect of a right. Sections 20-25, Syariah Courts Evidence Order (2001).

160 Section 103, Syariah Courts Evidence Order (2001) provides that they be of sound mind, have attained the age of puberty in accordance with Hukum Syara, adil (a Muslim who performs the prescribed religious duties, abstains from committing capital sins and is not perpetually committing minor sins), and have good memory. In hudud cases, they shall be able to speak, see and hear.

161 Section 106(5), Syariah Courts Evidence Order (2001).

162 Ibid.

163 Al Yamin is a solemn pronouncement or oath in the name of Allah that can be used as proof alone where there is no other admissible evidence, or to strengthen the testimony of others. As Hussain notes this oath plays a much greater role in Islamic law because of its religious basis, than in the common law. See Hussein, Jamila, Islam: Its Law and Society (Australia: Federation Press, 2004) at 156 Google Scholar.

164 Mohamad, Lyna, “New Islamic University” Borneo Bulletin (1 January 2007)Google Scholar. The university is named after the third Sultan of Brunei, known also as Sultan Berkat (Blessed Sultan) because of his piety.

165 Section 43, Religious Council and Kadis Courts Act.

166 For a general overview of religious freedom in Brunei see: United States Department of State, 2007 Report on International Religious Freedom - Brunei, 14 September 2007. Online. UNHCR Refworld, available at: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=46ee676d5e

168 Mohamad, Lyna, “Vigilance on Deviant Teachings” Borneo Bulletin (31 December 2006)Google Scholar.

169 The sect was declared unlawful under the Societies Act for promoting a belief contrary to those based upon the officially endorsed Ahli Sunnah Waljamaah creed. In the same titah (for Israk Mikraj) in which it was announced that this sect was to be banned, authorities were also ordered to ban any foreigner who could be a threat to the country's religious harmony. See Borneo Bulletin (13 February 1991). There are regular warnings against people who attempt to meddle with the meaning and words of the Quran. For statements from the Director of Mosque Affairs, that the number of foreign Islamic preachers in Brunei must be reduced, see News Express (1 September 2000) and Borneo Bulletin (15 May 2001). From His Majesty, see Lyna Mohamad, “Vigilance on Deviant Teachings” Borneo Bulletin (31 December 2006).

170 Gunn, supra note 25 at 218. The movement was also banned in Malaysia three years later, which led the Sultan to inform his people that his vigilance against deviationist teachings outpaced others in the region. See Case, William, “Brunei Darussalam in 1995” (1996) 36 (2) Asian Survey, p 133 CrossRefGoogle Scholar.

171 The Sultan's titah for Aidil Adha, 7 March 2001, reminds Muslims not to let “deviants influence them”.

172 Anwar, MK, “Ex-Al-Arqam Member Freed” Borneo Bulletin (24 May 2005)Google Scholar.

173 Ibid.

174 This view is expressed by Bernstein in Winzeler, supra note 53 at 171, with support from Kessler who wrote of the paradox in modern Southeast Asian States where Islam is being used to support oligarchical structures, when Islamic teachings could be interpreted as encouraging Muslims to resist a society based on such inequality. Kessler, Clive, Islam and Politics in a Malay State: Kelantan 1838-1969 (USA: Cornell University Press, 1978)Google Scholar.

175 Braighlinn, supra note 24, at 43. n7 Ibid at 22.

177 Abode of Peace (Singapore: Shell Companies, Singapore, 1993) at 19 Google Scholar.

178 Matussin bin Omar, supra note 29 at 18.

179 There are conservative Muslims who take the model of the Prophet Mohammad, who united religious and political authority in his person, as normative. This provides the rationale for requiring union of the religious and political ruler. Institutions such as legislatures, political parties, popular elections are thus regarded as secular creations of the western civilisation which are incompatible with Islam. In contrast, liberal Muslims hold that Islam is compatible with these institutions and principles, which could be adopted without contravention of Islamic tenets. See Mayer, Ann Elizabeth, “Islam and the State” (1991) 12 Cardozo L. Rev. 1015 Google Scholar. Also Kamali holds that the Syariah validates the will and endorses consensus of the people, concluding that hereditary succession as occurs in Brunei (which was first established under Umayyad rule) is “anomalous and contrary to the precedent of the khulafa rashidun” (the rightly guided caliphs). See Kamali, Mohammad Hashim, “The Islamic State and Its Constitution” in Othman, Norani, Shari'a Law and the Modern Nation-State: A Malaysian Symposium (Malaysia: SIS Forum (Malaysia) Berhad, 1994) at 59 Google Scholar.

180 The most recent Proclamation of Emergency was made on 8 March 2006. See supra note 2.

181 Supra note 1.

182 The Local Newspapers Order (2001) requires all newspapers to apply to the Minister of Home Affairs for annual publishing permits. He has sole discretionary power to grant permits, which is not subject to appeal or judicial review. The Minister has unfettered discretion to bar the distribution of any foreign publications in Brunei. Any non-Bruneian requires prior approval from the office of the Prime Minister before writing for the press in Brunei. The Borneo Bulletin is owned by Prince Mohammed. A new newspaper Brunei Times commenced mid-2006. The News Express closed in 2002 after being successfully sued for defamation by a local law firm. The government-run Radio Television Brunei is the main local broadcast media operating although satellite channels are available. Editions of overseas newspapers or other publications with contents that are found “objectionable”, embarrassing, or critical of the Sultan, the Royal family, or government are not allowed into Brunei. Similarly censored are publications with a Christian theme. The country's internet service provider is state owned and there are reports of persons being monitored whilst on-line and chat rooms subsequently closed. Several people have been detained under the Internal Security Act Cap 133 for making anti-government comments in an internet chat room. See the material on the 2006 Freedom House Report on Press Freedom for Brunei: online <http://www.worldaudit.org/presstext.htm>

183 Noting the fate of those advocating free elections and democratic reforms when outside Brunei, infra note 202. Menon believes the Brunei History Centre was established “to rewrite” Brunei history from a “purified local perspective”: KU Menon, “Research on Brunei's politics - A Closed Activity” in Mulliner, Kent & Lent, John A, eds, Brunei and Malaysian Studies: Present Knowledge and Research Trends (USA: Studies in Third World Societies, College of William and Mary, 1994)Google Scholar. Additionally, the University of Brunei Darussalam requires adherence to MIB from its academic employees.

184 The 1969 Proclamation of Emergency in Malaysia (instituted at a time of race riots) was held to be not justiciable by the Federal Court of Malaysia, on the ground that it was incumbent upon the court to assume that the Malaysian Government was acting in the best interests of the State. Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 122 Google Scholar. The dissenting view of Ong Hock Thye J, at 126, considered the Constitution did not give an “untrammelled discretion” to the cabinet to declare a state of emergency at their “mere whim and fancy”. The Privy Council avoided a decision on the justiciability of emergency proclamations on the basis that the present state of authorities meant the issue was unsettled and debatable. Stephen Kalong Ningkan v Government of Malaysia [1970] AC 379.

185 Observer, “Negera Brunei Darussalam in 1991: Relegitimising Tradition” (1992) 32 (2) Asian Survey, p 128 [an Observer]Google Scholar.

186 For a discussion of issues pertaining to women in Brunei see Black, Ann, “Islamization, Modernity and Re-positioning of women in Brunei” in Evans, Carolyn & Whiting, Amanda, eds, Mixed Blessings: Law, Religion and Women's Rights in the Asia Pacific (USA: Martinus Nijhoff, 2006) at 211 Google Scholar.

187 See infra note 190.

188 Othman, Azlan, “His Majesty Announces Big Changes for Brunei” Borneo Bulletin (16 July 2004)Google Scholar.

189 “News, online: The Government of Brunei Official Website” <http://www.brunei.gov.bn/hotnews/year%202006/0906/21/HMSpecial_Forum.htm>

190 Raja Nazrin Shah's speech was entitled "Excellence in the Monarchy System” see MK Anwar, “Monarch must be Multi-faceted person”, online: <http://www.brudirect.com/DailyInfo/News/y2k/Sept06/210906.htm>

191 Sonia, K & Zaini, Za'im, “In Knowledge Lies Truth” Borneo Bulletin (6 September 2006)Google Scholar.

192 This was not reported in the main stream press but received considerable reaction from Brunei blogs: Brunei Daily Resources:online: <http://bruneiresources.blogspot.com/2006/09/surprises-at-mib-forum.html>; Global Voices: <http://www.globalvoicesonline.org/2006/09/23/blog-roundup-mib-forum/>; Emma, Good Egg: <http://emmagoodegg.blogs.com/thebeehive/2006/09/emma_wants_a_wo.html>.

193 “Lectures on Constitution” Borneo Bulletin (3 September 1999).

194 Malai Hassan Othman, “Free Press Trailblazers” Borneo Bulletin (4 September 2000). The establishment in 2000 of a licensed internet site, Brudirect, has provided some comment on controversial issues such as the Prince Jefri trial.

195 “Press Release (12 September 2005), online: <http://www.brudirect.com/DailyInfo/News/Archive/Sept05/130905/nite01 1.htm>.

196 Ibid.

197 Bujang, Abdul Ghani, “Education for Nationhood” (1987) 24 Southeast Asian J. of Educational Studies 39 at 43 Google Scholar.

198 Ibid.

199 Borneo Bulletin (4 February 2000). This was also echoed in the mission statement of NDP.

200 Ibid.

201 Brown, Donald E, “Patterns in Brunei History and Culture” (1984) 16 (1) Borneo Research Bulletin, at 29 [Brown]Google Scholar.

202 One source claims its membership was at 4,000 when the 1985 population was 230,000. See Suhaini Aznam, “Image Polishing” Far Eastern Economic Review (18 January 1990) at 9.

203 For infringement of the Societies Act (1984) Cap 66.

204 The arrest and detention under the Internal Securities Act (1960) Cap 133 was in response to a visit of its President, Abdul Latif Hamid, and Secretary-General, Abdul Latif Chuchu , and others in the leadership to Kuala Lumpur. During their time in Kuala Lumpur, it was alleged they called for the lifting of the State of Emergency, return of a constitutional democracy, and called on the Sultan to stand down as Prime Minister so that the free elections could be held. See A Mani, “Brunei” in Sachsenroder, Wolfgang & Frings, Ulrike, eds, Political Party Systems and Democratic Development in East and Southeast Asia, Vol 1 (England: Ashgate, 1998) at 85 Google Scholar. Also, an Observer, supra note 183 at 127.

205 Neher, Clark D & Marlay, Ross, Democracy and Development in Southeast Asia: the Winds of Change (USA: Westview Press, 1995) 145 Google Scholar.

206 Brunei Darussalam has no personal income tax. There are no export, payroll, sales or manufacturing taxes. Companies are subject to income tax.

207 A recurring theme in Brunei is to personalise the relationship of the ruler and subject in this “top-down” approach. For example, a newspaper report on Islamic banking contains the line: “The caring ruler issued this noble decree in his birthday titah, the Imams noted with high gratitude”. Othman, Malai Hassan, “Imams praise Islamic banking” Borneo Bulletin (5 August 2000)Google Scholar.

208 Davies postulates that in countries where citizens pay no taxes, that the converse of the principle “no taxation without representation” may be applied so that it becomes “without taxation it is possible to do without formal representation altogether”. See Davies, John, Libyan Politics: Tribe and Revolution (USA: University of California Press, 1986) at 18 Google Scholar. Also discussed in Bernstein in Winzeler, supra note 53 at 163.

209 “A Caring Monarch”, online: The Government of Brunei Website >http://www.bruneisultan.com>. The relationship is described as “a living moment which is cherished and valued by every Bruneian from every walk of life. The close relationship between His Majesty and his rakyat spontaneously and naturally comes to life whenever His Majesty mingles with His subjects - a mutual expression of utmost satisfaction, happiness and respect.”

210 Sudden inspections of government agencies have been known to occur leading to changes in personnel as a result of exchanges in meetings of this type.

211 Mani, A, “Negara Brunei Darussalam in 1992: Celebrating the Silver Jubilee” (1993) Southeast Asian Affairs at 99 Google Scholar. Also Cleary, Mark & Wong, Shuang Yann, Oil, Economic Development and Diversification in Brunei Darussalam (England: Macmillan, 1994) at 126 CrossRefGoogle Scholar.

212 Brown, Donald E, “Brunei in Comparative Perspective” (1978) 26 Sarawak Museum J. 135 Google Scholar.

213 Hussainmiya, supra note 80 at 31. District officer, Hj Dani outlined their role as ensuring “harmony and peace is attained in their respective communities”, listening “carefully to grievances”, and “implementing government guidelines and policies at the grass root level” - see Hamzah, Bahreen, “New Village heads appointed” Borneo Bulletin (28 January 2001)Google Scholar.

214 Appointed by the four District Officers. They are required to have a set level of education, be resident in the Mukim for three years, be Muslim, and not be a member of a political party.

215 Kampong Consultative Council (Majlis Perundingan Kampong) and Mukim Consultative Council (Majlis Perundingan Mukim).

216 Department of Information.

217 Law and customs of the Palace.

218 Traditional Brunei society was stratified into two groups, nobles and non-nobles, with the nobles at the apex of society in terms of social standing, power, influence and wealth.

220 Crane, Cheryl, Gillen, Mark & Dorman, Ted Mc, “Parliamentary Supremacy in Canada, Malaysia, and Singapore” in Johnston, Douglas M & Ferguson, Gerry, Asia-Pacific Legal Development (Canada, UBC Press, 1998) at 208–215 Google Scholar.

221 This is consistent with low litigation rates in Asia generally, and particularly in small countries (size and population) like Nepal and the Solomon Islands.

222 Black, supra note 76 at 311-319.

223 See Goh, Bee Chen, Negotiating with the Chinese (England: Dartmouth, 1996)Google Scholar.

224 This preference has been seen as culturally determined. For analysis see Black, supra note 76 at 306-311.

225 Historically, the Sultanate was classified into ethnic groupings which were arranged hierarchically, with the Malay nobles at the top and at the bottom the various non-Muslim ethnic groups such as the Dusun and Muruts. See Brown, supra note 200. Ethnicity determined rank within society and even today, King believes rank consciousness still remains vigorous and strong. King, Victor T, “What is Brunei Society? Reflections on a Conceptual and Ethnographic Issue” (1994) 2 Southeast Asia Research pp 176–198 Google Scholar.

226 Notably the position of “Kapitan Cina” as the titular head or representative for Chinese Bruneians in the Sultanate. Also some persons in business and Government have been accorded the title of Pehin (the highest title awarded to a commoner) and an entrée into the Royal court.

227 Blomqvist, Hans C, “The endogenous state of Brunei Darussalam: the traditional society versus economic development” (1998) 11(4) Pacific Review, p 545 [Blomqvist]CrossRefGoogle Scholar.

228 Respect for authority is identified as a traditional core cultural value in Singapore, Indonesia and Malaysia. See supra note 6. See Kessler, Clive, “Archaism and Modernity: Contemporary Malay Political Culture” in Wah, Francis Loh & Kahn, Joel, eds, Fragmented Vision: Culture and politics in Contemporary Malaysia (Australia: Asian Studies Association in association with Allen and Unwin, 1992) at 133, 148 Google Scholar.

229 Blomqvist, supra note 224 at 555.

230 Winzeler comments generally about Malaysia and Borneo, including Brunei, and notes discouragement of practices which are regarded as primitive or backward (adat ritual and practices, traditional clothing, animistic practices, and communal living in longhouses) because they are seen as embarrassing to national prestige. See Winzeler supra note 53 at 12, 13.

231 Government policies are facilitating this process in the Orang Asli (indigenous non-Malays) such as the Semelai, and Dayak people of Malaysia. Also threatened are the Dayaks in Kalimantan, Indonesia. The Thai Government also has a policy to relocate its tribal mountain people (Hmong), as does the Government of India.

232 Winzeler, supra note 53 at 1 and Bernard Nietschmann, “The Third World War” (1987) 11 Cultural Quarterly Survival pp.1-16.

233 Robert K Dentan, “How the Malaysian Ruling Class constructs Orang Asli” in Winzeler, supra note 53 at 98-134.