Brunei (Negara Brunei Darussalam)


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

 

For Muslim Bruneians, Islamic law particularly influential in area of family law. Sources of law are legislation (imperial statutes, common law, equity, etc.), Islamic law (Shafi’i views, or opinions of other three Sunni schools with the Sultan’s approval), ancient custom and Malay custom.

In 19th century, Sultan of Brunei sought British aid in defending coasts from piracy and by late 19th century accepted protectorate status under Britain, formalised by 1906 treaty providing that Sultan would seek advice of British Resident on all matters outside of local custom and religion. Constitution adopted in 1959 allowing for internal self-rule; 1971 agreement ended Brunei’s protectorate status; full independence in 1984.

Kathis’ courts maintained under British rule. 1955 Religious Councils, Kathis’ Courts and State Customs Act contains provisions on marriage and divorce applicable to marriages where both parties are Muslim and which were solemnised according to Muslim law. Act also regulates judicial application of Islamic law, provides penalties for breach of its terms, etc.

School(s) of Fiqh

Majority of Muslims are Shafi’i; Buddhists, Christians and followers of indigenous religions also constitute significant minority communities.

Constitutional Status of Islam(ic Law)

Constitution promulgated 29th September 1959. Article 3 affirms Islam as state religion, "according to the Shafi’i sect". Also provides that "the Head of the religion of Brunei Darussalam shall be His Majesty the Sultan and Yang Di-Pertuan (Head of State)."

Court System

Separate shari’a and regular court system maintained, former having jurisdiction over Muslim personal status. Shari’a courts decide personal status cases or cases relating to religious offences following Shafi’i opinion, then legislation by Religious Council (Majlis). Council may have recourse to non-rajih Shafi’i interpretations or positions from other schools of fiqh if required by maslaha and approved by Sultan.

Relevant Legislation

Religious Councils, Kathis’ Courts and State Customs Enactment 1955 (no. 20/55)

Notable Features

Marriage Age: no minimum marriage age specified; Act does provide that marriage shall be void unless all conditions of validity are met according to tenets of sect to which marrying parties belong

Marriage Guardianship: consent of wali requirement of validity of marriage contract and registration; marriage is also void if both parties have not given consent

Marriage Registration: obligatory; registration through kathi authorised as registrar, or solemnised by kathi in presence of registrar

Polygamy: governed by classical law

Obedience/Maintenance: obedience governed by classical law, and nashiza also liable to penal sanctions; wife may apply to kathi for maintenance order during marriage (amount and time period for which arrears might be claimed are not specified)

Talaq: legislation specifies that husband may divorce wife with one, two or three talaqs in accordance with Muslim law; divorcing husband must report divorce to Registrar within seven days

Judicial Divorce: legislation specifies that woman may apply to kathi for divorce in accordance with Muslim law, and kathi will summon husband; if husband consents, divorce is registered; if husband refuses, kathi may propose cherai tebus talak (khul’), with court assessing sum payable by wife to husband according to status and means of the parties; if husband does not agree to grant khul’ kathi will appoint two arbitrators who may be given authority to decree divorce if parties agree to such settlement; wife may also be issued certificate of presumption of death if husband is believed to have died or has not been heard from for extended period of time

Post-Divorce Maintenance/Financial Arrangements: woman divorced by her husband may apply to kathi for mattah (muta’ al-talaq) consolatory gift or maintenance (of sum and for such period as court sees fit)

Child Custody and Guardianship: governed by classical law

Succession: governed by classical law

Notable Cases

 

Law/Case Reporting System

Case reporting through Law Reports of Brunei, continued by Judgements of the Courts of Brunei Darussalam from 1986.

International Conventions (with Relevant Reservations)

CRC – accession 1995, with reservation to Arts. 14, 20 & 21 to the extent that they may be contrary to Brunei’s Constitution and to the beliefs and practices of Islam

Legal History:

For Muslim Bruneians, Islamic law is particularly influential in the area of family law. Sources of law are legislation (imperial statutes, common law, equity, etc.), Islamic law (Shafi’i views, or opinions of other three Sunni schools with the Sultan’s approval), ancient custom and Malay custom.

During the 15th and 16th centuries, the Brunei Sultanate controlled the north-western coast of Borneo and parts of Kalimantan and the Philippines. European expansion from the 16th century led to the loss of Brunei’s possessions to the Spanish and Dutch. In the 19th century, the Sultan of Brunei sought British aid in defending his coasts from piracy. The British explorer James Brooke was made Rajah of Sarawak in 1839 and the British annexed the island of Labuan in 1846. The Sultan accepted protectorate status under Britain by the late 19th century, formalised in 1906 by a treaty providing that the Sultan would seek the advice of the British Resident on all matters outside of local custom and religion. The Constitution was adopted in 1959 allowing for internal self-rule and establishing a Legislative Council, with the powers of the British Resident transferred to the Sultan and his appointed officials. A 1971 agreement ended Brunei’s protectorate status, with Britain retaining control over defence and foreign relations. Brunei gained full independence in 1984.

The Mohammedan Laws Enactment 1912 promulgated under British rule was based on both custom and Islamic law. The Enactment covered limited aspects of family and criminal law and delineated the jurisdiction of Kathis’ Courts. It was followed by the Mohammedan Marriage and Divorce Enactment 1913 providing for registration through kathis. Both Acts were repealed by the 1955 Religious Councils, Kathis’ Courts and State Customs Act. Section VI of Act contains provisions on marriage and divorce applicable to marriages where both parties are Muslim and which were solemnised according to Muslim law. The Act also regulates the judicial application of Islamic family law, provides penalties for breach of its terms, etc.

 Schools of Fiqh: The majority of the population are Shafi’i Muslims. There are also Buddhist and Christian minorities, as well as segments of the population adhering to indigenous religions.

 Constitutional Status of Islam(ic Law): The Constitution was promulgated 29th September 1959 (with some provisions suspended under the State of Emergency since December 1962 and others since independence on 1st January 1984). Article 3 declares Islam the state religion, "according to the Shafi’i sect". Article 3 also provides that "the Head of the religion of Brunei Darussalam shall be His Majesty the Sultan and Yang Di-Pertuan (Head of State)."

 Court System: Brunei maintains separate shari’a and regular court systems, with the former having jurisdiction over Muslim personal status. Shari’a courts decide personal status cases or cases relating to religious offences following Shafi’i opinion, then legislation by the Religious Council (Majlis) under the terms of the 1955 Religious Council, State Customs and Kathis’ Courts Enactment. The Council may have recourse to non-rajih Shafi’i interpretations or positions from other schools of fiqh if required by maslaha and approved by the Sultan.

 Notable Features: The minimum marriage age is not specified, but the legislation does provide that validity of marriage requires meeting all the conditions of validity according to the sect to which the parties belong. The wali’s consent is also a requirement for validity of marriage. A marriage is void if both parties have not given consent. Marriage registration is obligatory, through kathis authorised as registrars, or solemnised by a kathi in the presence of a registrar. Polygamy is governed by classical law. Obedience and maintenance are governed by classical law, and a wife deemed to be nashiza is also liable to penal sanctions. In case of the husband’s failure to maintain, the wife may apply to a kathi for a maintenance order, but sums and the time period for which the wife may claim arrears is not specified.

The legislation specifies that the husband may divorce his wife with one, two or three talaqs in accordance with Muslim law. The divorcing husband must report the divorce to the registrar within seven days. A woman may obtain a judicial dissolution according to Muslim law by applying to the kathi who will summon the husband. If the husband consents, the divorce is registered. If the husband refuses, the kathi may propose cherai tebus talak (khul’), with the court assessing the sum payable by the wife to the husband according to the status and means of the parties. If the husband does not agree to granting a khul’ the kathi will appoint two arbitrators who may be given the authority to decree a divorce if parties agree to such a settlement. The wife may also be issued a certificate of presumption of death if husband is believed to have died or has not been heard from for an extended period of time. A woman divorced by her husband may apply to the kathi for mattah (muta’ al-talaq/consolatory gift) or maintenance (of a sum and for such period as the court sees fit). Child custody and guardianship is governed by classical law.

Succession is governed by classical law.

Notable Cases:

Law/Case Reporting System: Case reporting is through the Law Reports of Brunei, continued in Judgements of the Courts of Brunei Darussalam from 1986.

 International Conventions (with Relevant Reservations): Brunei acceded to the CRC in 1995, submitting that Brunei "expresses its reservations on the provisions … which may be contrary to (Brunei’s) Constitution and to the beliefs and principles of Islam, the State religion, and without prejudice to the generality of the said reservations, in particular expresses its reservations on articles 14, 20 and 21". (Article 14 relates to the child’s freedom of religion and conscience and Articles 20 and 21 relate to adoption.)

Background and Sources: Hooker, Islamic Law in South-East Asia, Singapore, 1984; Ibrahim, The Status of Muslim Women in Family Law in Malaysia, Singapore and Brunei, Singapore, 1965; Mahmood, "Brunei" in Statutes of Personal Law in Islamic Countries, 2nd ed. New Delhi, 1995; Redden, "Brunei" in Modern Legal Systems Cyclopedia, vol. 9, New York, 1990.