Monday, March 31, 2008

Citizenship Law - Final Thoughts

Can a citizenship, once acquired, be lost? A citizen can choose to renounce his citizenship by making a declaration and once the declaration is registered, his citizenship terminates.
A citizen who absented himself from Brunei Darussalam for a continuous period of 5 years and is unable to provide proof to the satisfaction of His Majesty that he has maintained substantial connection with this country during that period will lose his citizenship.

A person will also lose his status as a citizen if he voluntarily acquires the nationality or citizenship of another State or country (no dual citizenship allowed) or in the case of a woman who acquired her citizenship through marriage with a Bruneian, if she acquires the nationality of her new foreign husband in a subsequent marriage.
His Majesty may also "tarik balik"or deprive the citizenship by registration or naturalisation of a person who has shown himself by act or speech to have the intent to be disloyal or disaffected towards His Majesty or has exercised any right, power or privilege to which he may be eligible by reason of any nationality or citizenship, for example by voting in an election in a foreign country.

Wednesday, March 26, 2008

Citizenship Law 2

A person is eligible to apply to be a citizen by registration as follows:
(a) He is above 18, born in Brunei and has within the period of 15 years immediately preceding the date of his application for registration resided in this country for periods amounting in the aggregate to not less than 12 years; and has resided here throughout the 2 years immediately preceding the date of his application. He will also need to pass an examination by a Language Board on his proficiency of the Malay language.
(b) She is a non citizen woman married to a citizen (no language proficiency requirement)
(c) A child under 18 years if a parent is a citizen. "Parent" here includes his mother or an adopted parent.
In any other case a person may apply for citizenship by naturalisation (in Malay penuangan) if he has within the period of 25 years immediately preceding the date of his application resided in Brunei for periods amounting in the aggregate to not less than 20 years and has resided here throughout the 2 years immediately preceding the date of his application. The language proficiency requirement also applies. Incidentally, unless this requirement is waived by His Majesty, the period does not include a period during which a person is allowed to remain temporarily here under the authority of any Immigration pass or permit issued. For example, in the case of a contract officer who has been in this country for the purpose of employment , the employment period is excluded.

Monday, March 24, 2008

Citizenship Law

The issue of acquiring the Brunei citizenship is an issue of concern to many especially those who were born in Brunei and has no other national status. There are three ways of being a subject of His Majesty: by operation of law, by registration and by naturalisation.
The following categories of persons are subjects of His Majesty by operation of law i.e. automatically (I'm summarising here):
(a)he is born in Brunei Darussalam and who is commonly accepted as belonging to one of the following indigenous groups of the Malay race, namely, Belait, Bisayah, Brunei, Dusun, Kedayan, Murut or Tutong or if he was born outside Brunei Darussalam and his father is, at the time of birth , a subject of His Majesty by operation of law. In the latter case, the birth must usually be registered with a Brunei consulate within 6 months;

(b) he is born in Brunei Darussalam and his father and mother were both born in Brunei Darussalam and are members of any of the groups of people specified namely Bukitans, Dayaks (sea), Dayaks (land), Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Melanaus, Penans, Sians,Tagals, Tabuns and Ukits (never knew there are that many!)

(c) any person born outside Brunei Darussalam —
(i) whose father was, at the time of birth of such person, a person born in Brunei Darussalam and was a person commonly, accepted as belonging to one of the indigenous groups of the Malay race, or
(ii) whose father and mother were both born in Brunei Darussalam and were members of any of the groups specified above;

(d) any person born in Brunei Darussalam whose father was, at the time of his birth, a subject of His Majesty; and any person outside Brunei Darussalam whose father was, at the time of birth of such person, a subject of His Majesty and was employed outside Brunei Darussalam if the birth of such person was registered at a Brunei Consulate or in Brunei Darussalam within 6 months of its occurrance;
(e) any person born outside Brunei Darussalam whose father was at the time of birth of such person a subject of His Majesty by registration or by naturalisation , if the birth was registered at a Brunei Darussalam Consulate or in Brunei Darussalam within 6 months of its occurrence.
Satisfy any one of the above and conratulations, you are a citizen.
Next-Citizenship by registration and naturalisation

Wednesday, March 19, 2008

Opening of Legal Year

It was the Opening of the Legal Year yesterday. Such a ceremony is held in many countries practicing the common law system usually in the beginning of the year. In Brunei, it is usually held in the first quarter of each year so the new legal year here begins much later than in other jurisdictions.
The ceremony gives a chance for members of the bench ( the judges) and the bar (the lawyers) to gather together fully robed with wing collars and bands. It has been said that the attire is intended to show a lawyer's importance above mere mortals. To me from afar, they merely look like penguins. The Chief Justice, the Attorney General and the president of the Law Society will give speeches reviewing the achievements of the past year and being lawyers, sometimes engage in some verbal sparring.
Yesterday, the move by UNISSA to introduce a local undergraduate law course was warmly welcomed by the Government and private lawyers. UBD has run the Post graduate diploma on Syariah Law and Legal Practice for many years. With the establishment of UNISSA, unfortunately this course is no longer being offered (I stand corrected on this). I am simply curious about how much local content the new course will offer. Books on Brunei laws are not exactly filling the shelves of bookshops. As far as I know the only Brunei law books are related to syariah law. A typical law course will at least offer Criminal Law, Contract Law, Law of Trusts, Property Law and Administrative Law. And where will the lecturers and tutors come from? So called "knowledgeable persons" in local laws aren't exactly raining down from the sky.
My guess is that initially it will be like the time when I was at school. I was able to draw a map of Australia, Malaysia or Singapore without any problem. On history, I could give details about the emperors of China. But ask me to draw a map of Brunei or talk about Brunei Sultans, then you should look elsewhere.
Let me make this clear. In no way whatsoever do I intend to belittle UNISSA's initiative and I applaud the institution for its effort. I really look forward to our own law graduates with knowledge of local laws as well as the laws of other countries.

Monday, March 17, 2008

Address Me

In Brunei, the proper form of address is quite important and any transgression is not just a social faux pas but can cause much discomfort to all concerned. I must admit I only knew about the "pehin-kaola", "pengiran-peramba" etc. stuff when I started work. Before that I used the rather inapproriate "kau-aku". I haven't had the chance to use "Hamba Kebawah Duli Tuan Patik" yet but I live in hope of actually conversing with His Majesty one day.
Court etiquette also demands the proper address when speaking to Judges and other lawyers. Your opponent will always be referred to as a "learned friend" even if he/she is not learned and is not your friend. Some lawyers I know manage to make it sound as "laknat friend" and getting way with it!
Judges in the High Court and the Court of Appeal are referred to as "His Lordship" or "His Ladyship". When addressing the court, a sentence will usually begin with "My Lord / My Lady" or if the lawyer feels rather posh "M'Lud / M'Lady". This is of course a legacy from when actual Law Lords sat to hear cases. When local judges are referred to in this way, it does sound rather strange.
Magistrates on the other hand are referred to as "Your Honour". If one speaks in Malay, judges and magistrates may be universally referred to as "Yang Arif". I often wonder how to address a "Pehin" sitting as a High Court judge. Will it be "My Lord Pehin" or "My Pehin Lord" or "Kaola Lord Pehin" or something else?

Saturday, March 15, 2008

I hear, I say

When a person is called to court as a witness, he is said to be summoned to give evidence. This does not mean that he can say what he likes in court. Generally, he can only give evidence on what he himself has seen or heard and not otherwise. This is known as the hearsay rule. For example, a person who witnessed a theft can give evidence as to the identity of the thief and what he did. If he did not so witness but was only told about the theft by another, he cannot then state in court that "so and so told me that the defendant is the thief". In other words, an out of court statement made by a person other than the person giving evidence is not admissible.
There are exceptions. Suppose A was attacked by B which caused injuries eventually leading to his death.. Before he died, A told C that B was the one who attacked him. C can give this evidence in court if B is prosecuted for murder even if C did not see the actual attack.
Another exception is a confession. A police officer who records or hears the confession can give evidence of it if the person is subsequently charged. However, before this is done, the court must be satisfied that the confession was given voluntarily, that is without inducement, threat or promise. Obviously if the accused person confesses after having been beaten up, his confession will be excluded. Not so obvious examples of extracting an involuntary confession include recording of statements without breaks, statement taking in an extremely cold room or promising that the accused person can see his family after confessing. From experience, I am proud to say that our courts are quite diligent in ensuring that confessions are truly voluntarily before admitting them into evidence. Many criminal cases (including capital cases) simply faltered after confessions by the defendants were thrown out for being involuntary.

Thursday, March 13, 2008

Race Matters

The aftermath of the recent Malaysian elections threw up a legal quandary in one of the states. That state's constitution requires the Mentri Besar to be a Malay Muslim. However the party winning the largest number of seats in the state legislature is Chinese based. So the Chief Minister will have to be chosen from one of the smaller parties.

The Brunei Constitution also imposes such a requirement in respect of certain office. Clause 5 of Article 4 states "Ministers and Deputy Ministers shall be from among the Malay race professing the Islamic religion, save where His Majesty otherwise decides". We have of course one Chinese Minister in the cabinet.

And there's more. Certain office requires the holder to be a citizen of Brunei Darussalam of the Malay race professing the Islamic Religion. The list includes the Auditor General, Clerk to the Privy Council, Clerk to the Legislative Council, Chief Syar’ie Judge, Mufti Kerajaan, Attorney General, Chairman of the Public Service Commission, Yang Di-Pertua Adat Istiadat, Speaker of the Legislative Council and Secretary to the Council of Ministers.

Tuesday, March 11, 2008

Elect Me

I followed with great interest the recent elections in our neighbouring state. Brunei had her own elections in the 60s.Will we have elections in the future?
The answer is a resounding "Yes, but not yet".
The Constitution provides that the Legislative Council shall consist of not more than 45 members. Up to 30 members will be appointed by His Majesty comprising of ex-officio members, titled persons, community leaders and distinguished personages. The Council will have in addition up to 15 representatives, from Brunei and Muara District (up to 7 members), Belait District (up to 3), Tutong District (up to 3) and Temburong District (up to 2) "who shall be elected in accordance with the laws relating to elections in force in Brunei Darussalam".
The laws relating to elections are not yet in force. Until this is done, under the Constitution, Penghulus, Ketua Kampong and Ketua Rumah Panjang are to select from amongst themselves candidates for appointment by His Majesty as District Representatives.There are at present 4 District Representatives (one from each district) selected in this manner. Despite the small number, the district representatives are often the most vocal during the debates. Kudos to them!
Although elections for Ketua Kampongs are usually greeted with apathy with generally low voter turnout, such elections do in some way allow the public to have a say (though indirectly) in Leg Co as the village leaders will get to choose their representatives in the Council.
I certainly look forward to the time when we have direct elections to choose district representatives. A blogger or two in the Leg Co will certainly liven things up!

Sunday, March 9, 2008

Lost at Legco

Having followed the (limited) reports of the Legco proceedings since it began its current session, I finally made the effort to watch the proceedings live recently. "Effort" is unfortunately the right word if you want to do the same. First of all, getting into the building is a trying experience in itself. If you are not a "somebody" then the front entrance is not for you. Members of the public must use the entrance at the rear of the building, that is the gate at Jalan Kebangsaan. You need to register with the security and hand over your IC. Having parked your car, the great hunt for the entrance into the building itself begins. After several false leads which involved a lot of walking around the building and following other lost souls (the blind leading the blind), I finally found that elusive portal. You need to find the service road which leads to the underground car park and from there you need to go through the big doors to enter into the foyer. Inside the rather elegant building there were a lot of helpful staff to guide visitors to the main chamber. Pity not even one was stationed outside.
As I was mopping off my sweat after my unintended exercise, I was ushered to the first floor. I have visited the legislative buildings in London, Singapore and Japan. In terms of opulence, the new Legco building is right up there. It is like entering a rather posh hotel. Rather like Empire meets ICC.
There was further uncertainty as to the entrance to the public gallery. One need not be an architect to expect it to be somewhere near the front staircase for easy access. But no. The public have to walk through the corridors all the way to the back of the building. The reason for this still defies me. Perhaps it is a subtle way to encourage people to exercise more. Well it worked. Even before entering the main chamber, I managed to burn off the calories from the 'mee mamak' I had for breakfast.

Wednesday, March 5, 2008

Making Laws

The Leg Co session is currently in full swing. It is of course primarily a law making body though the only bill it discusses in full this session is the Supply Bill. So how are laws made during the time it is in hiatus i.e. most of the year?
Come to think of it, you may also wonder how laws were made when the Council was suspended from 1984 until 2004.
Well, the Constitution provides an alternative avenue for making legislation. Under Article 83, His Majesty the Sultan may by proclaimation (known as "the Proclaimation of Emergency") declare a state of emergency in Brunei. The Proclaimation may be renewed every two years. Brunei has been under a state of emergency since 1962. Now, this is the important bit. This same Article also provides that while a Proclaimation of Emergency has been made and so long as it is in force, His Majesty may make any Orders he considers desirable in the public interest. These Orders will form the laws of the country.
In practice, the relevant Ministry, if it intends to introduce a new piece of legislation or amend an existing one, will prepare a draft Order with the assistance of the Attorney General's office. Often, interested third parties such as other Ministries and the private sector are also consulted. Once completed, it may be presented to His Majesty for consent.
All such Orders must however be presented to the Legislative Council at its next meeting. The Council may choose to pass or reject the Orders.
Another form of law is known as subsidiary legislation. A primary law may designate a person (usually a Minister) to make subsidiary legislation which deal with details such as procedure and fees payable. Such legislation need not be approved by the Legislative Council but usually require the consent of His Majesty.