PaPa Law on Brunei Law

Yikes! It's still alive!

2010-02-19T19:53:00.000-08:00

Haven't visited let alone updated this site for a year. Didn't expect it to still be around but to my surprise, it's still here and still get the odd visitor. Thanks for dropping by but just like Mr BR nowadays, finding time to update is difficult. Thanks again!

Thou Shalt Not...Steal

2009-03-01T18:28:00.000-08:00

Do you know that you can steal your own property? Theft is a common offence and usually understood to involve the taking of someone else's property without permission. The law however does not make a distinction between ownership and possession and theft is defined as dishonestly taking any movable property out of the possession of any person without that person's consent.

In law therefore, if I send my car to the workshop for it to repaired and then simply take it away without paying the repair charges, I am committing theft. The workshop has legal possession of the car at the time even though I have ownership. Therefore to remove it out of the possession of the workshop is theft.

It is not theft if I ask my friend to send the car to the workshop but instead he sells the car. He was in lawful possession of the car but by selling it, he is committing a criminal breach of trust. Similarly, if a person finds a diamond bracelet lying on a public road, by taking it he is not committing theft since it was not in anyone’s possession. If however, he simply keeps it without trying to find its owner or handing the bracelet to the police, he is committing criminal misappropriation of property.

Under the law, simple theft is punishable with imprisonment for up to 3 years. More serious forms of theft such as theft from a building or theft by a servant attract a more severe penalty which is imprisonment for up to 7 years.

Another aggravated form of theft is robbery. Robbery occurs when theft is accompanied by violence or threat of violence. The violence or threat must be in order to commit theft. If a thief pushes a person to the ground in order to take the victim's wallet, then that is robbery. If however he pickpockets the wallet from the victim but later kicked him "for fun", then that is not robbery because the violence was not inflicted to commit the theft. He can however still be charged for theft and causing hurt. Robbery is punishable with a maximum of 30 years' imprisonment and mandatory whipping. If a weapon is used, there is a minimum sentence of 7 years' imprisonment and 12 strokes of whipping. Incidentally a lot of people had gone into trouble for their aggressive tactics in debt collection. Remember that though you are entitled to be paid, you cannot "persuade" the debtor to make payment by force. Otherwise, instead of being paid, you have to pay a lawyer to defend you on a charge of extortion or robbery.

Merdeka!

2009-02-24T18:29:00.000-08:00

I was at the Stadium on Monday to witness the National Day Silver Jubilee celebrations. I also attended the first National Day celebration at the same place in 1984 (I'm feeling really old now!). Maybe my memory is a little hazy but I sort of remember that the first National day celebration was a much grander affair. His Majesty in his Titah this year recalls the developments in this country not only for the past 25 years but beyond. I think it is therefore appropriate to reflect on the developments in the legal field to see what had been achieved and where we are heading.

To understand the current legal system, we need to go back over 100 years. No surprise, the 1906 agreement with Britain not only brought a new system of administration, the whole legal system was totally overhauled- orang putih Resident using orang putih laws in orang putih courts. Never mind the locals who had been applying a Syaria derived code known as Kanun Brunei at the time. The Courts Enactment 1906 in essence established the legal system as we know it today. The highest court for Brunei at the time was the Courts of Straits Settlement. The highest local court was the Court of the Resident followed by the Magistrate Court First Class, Magistrate Court Second Class and the lowest in the tier the Kathi Court. Thus began the parallel system of civil courts and the religious court which exists until today. The same enactment also imported the laws from the Straits Settlements derived from English common law and no surprise that our legal system is still based on the common law. Most of our written laws are similar to those countries sharing the common law heritage in particular Malaysia and Singapore.

So what has changed in the last 25 years? There has been a marked increase in the number of locals in the Judiciary-0 local High Court Judges in 1984, 3 now. All the Magistrates are now local. But the Chief Justice, the President of the Court of Appeal and the Court of Appeal Judges are still foreigners. We had less than 10 lawyers in the Attorney General's office then, we have over 80 now. The majority of private lawyers are now locals compared with just a tiny minority before. Some things changed but a little. As stated above, we still have a parallel system of courts. The jurisdiction of the Syariah courts, the reincarnation of the old Kadi courts, is still in general restricted to Islamic family law matters. We have His Majesty's commitment to a unified legal and judicial system eventually but the progress is slow. Will there be much progress in the next 25 years? The legal system is notoriously slow to change. I simply hope to see a local Chief Justice and appeal court judges in my lifetime. That would be progress indeed.

Get Set Go-PaPa Law Second Season

2009-02-22T05:36:00.000-08:00

After a really lengthy hiatus, I am ready to begin again for a second season. Think of this blog as American Idol or Akademi Fantasia. Those shows only last for 10 weeks or so and then zilch, nada! Just like those shows, I will (fingers crossed) post at least once a week until the end of the current season.The first post is tomorrow, so stay tuned!

More Traffic Woes

2008-04-21T01:29:00.000-07:00

Q- I drive a Kancil but I want to buy a Hummer (the real one not the toy). Can I drive it using my existing class 3 licence? Md.Yuppie, Mentiri

A-Your class 3 driving licence will entitle you to drive all private motor vehicles no matter the weight. If however you want to ride a Harley or a Vespa, you will need a class 1 licence.

Q- I have a foreign driving licence. Can I drive in Brunei?Mas Supir, Bokok

A- All drivers must have a Brunei driving licence to drive here with the exceptions of temporary visitors. So if you intend to reside here because of employment or study, you may use your foreign licence as a basis to apply for a Brunei licence. You may or may not have to undergo a driving test. You can however use your existing foreign licence in the mean time unless you are driving a commercial vehicle.

So what is the deal with tinted glass on vehicles? The law requires that all glass and any transparent material fitted to a motor vehicle shall be maintained in such condition that it does not obscure the vision of the driver while the vehicle is being driven on a road. Under the law, a windscreen or window of a motor vehicle shall be deemed to be obscured if any curtain, blinds, stickers, any material or thing whatsoever whether similar or not are fixed to the windscreen or window whether or not such curtains, blinds, stickers, material or thing do in fact obscure the vision of the driver while the motor vehicle is being driven on a road. So take off those Awang Budiman stickers already.

The law also states that no tinted glass shall be used as part of or fitted to the windscreen or window of a motor vehicle except with the prior written permission of the Commissioner of Police or the Director of Land Transport. Now before you go running to apply for permission from the two chaps, it is worth noting that in 1981, permission was already given to all drivers to use or fix tinted glass (whether originally manufactured or retrofitted with plastic film or paint) provided that such tinted glass has a degree of light transmission of 70 % and above and supported by test report form the British or Japanese Institute of Standards. So there you go. Your car can look cool and be in compliance with the law.

Traffic Woes

2008-04-17T17:02:00.000-07:00

Papa Law anwers your traffic law questions

Q. Can I drive on the beach? Baywatch Babe, Gadong

A.Except with the permission of the Commissioner of Police or the Director of Land transport, most beach areas in Brunei are off limits to motor vehicles, with the notable exception of Serasa beach as it is not really a beach but a spit (if I recall my O level Geography correctly - got an A you know!).

Q. I ride a Harley and I want to wear those cool German Army style helmets. Surely it is ok? Too Fast to Live, Too Young to Die, Labi

A. Ha, you think? The law requires a rider to use a helmet which conforms to the Singapore Standard Specification S.S. 9:1970 or the British Standard B.S 2001:1972. Anything else is illegal to use or sell. So check the helmets before you buy.

Q. I am still confused as to the law regarding seat belts and child seats. I have 7 childern. Explain. Big Momma, Rimba

A. Adults who sit in the driver's and front passenger's seats must wear seat belts. Children under the age of 6 or below 1.3 cannot sit in the front passenger seat. Children under 12 must wear seat belts or other appropriate restraining devices such as child seats or baby cots wherever they are seated. Might be difficult if you have 7 children in the car but hey, don't shoot the messenger. I'm only stating the law.

Q. Tinted car windows are just the thing. I also takut hitam. Can use or not? Fair Lady, Kupang

A. Good news for you but more next time...

An Accidental Driver

2008-04-14T17:26:00.000-07:00

A lot of us drive everyday. But how many know the legal position if a driver is involved in an accident?
The law requires the driver involved in an accident whereby damage or injury is caused to any person, property, or animal to stop, and, if required so to do by any person having reasonable grounds for so requiring, give his name and address, and also the name and address of the owner and the identification marks of the vehicle.
If as a result of the accident, the driver has injured any other person on a road, whether by negligence or not, he must stop such vehicle and render such assistance to the injured person as he may be capable of rendering and as the injured person may need. An excuse that "blood will ruin my leather seat" is NOT acceptable.
The driver of the motor vehicle must also report the accident to a police station or to a police officer within 24 hours. Remember that a "runding luar" scenario will not absolve the driver from this obligation.
Can the vehicles involved be moved after the accident? If the accident causes loss of life or serous injury to persons or serious damage to property , then "no person shall, except with the authority of a police officer, move or otherwise interfere with any vehicle involved in the accident or any part of such vehicle or do any other act so as to destroy or alter any evidence of the accident". However the law allows for a vehicle or any part thereof may be moved so far as may be necessary to extricate persons or animals involved, prevent fire or prevent damage or obstruction to the public.
So there you go. If it is just a minor fender bender (langgar belakang), please move your car and don't block the road whilst waiting for the Police. We will still menyibok and stare but at least we can drive through eventually.

Blast from the Past-The Unkindest Cut

2008-04-12T00:11:00.000-07:00

"Wife slashes off Husband's Genitals" was one of the headlines in yesterday's BB. A Filipino wife apparently severed her husband's private parts because she believed he was having exta marital affairs. The husband fortunately (or unfortunately, depending on whose point of view) survived. In the USA, the famous Bobbitt case with similar facts demonstrates clearly that hell hath no fury like a woman scorned.

11 years ago, we had our own local Bobbitt case involving a Filipino couple working here although with more tragic consequences. A quarrel with her boyfriend left the lady full of grief and anger as the boyfriend wanted to leave her. When the man went to sleep, the lady concerned still smoldering in anger took a piece of wood and began hitting the man on the head. She then in a feat of superhuman strength threw a television set on to the poor guy. Not satisfied with these assaults, she then took a knife and cut off the boyfriend's genitals. Ouch! She then threw the "anu" outside the house as she ran off. The man later died from his injuries. The lady is still serving mandatory life imprisonment in Jerudong Prison for manslaughter. Incidentally, she is the last person to be sentenced to such punishment for such offence. The sentence for manslaughter (or more correctly, culpable homicide not amounting to murder) is now maximum life in prison instead of mandatory life.

Applying for Adoption

2008-04-10T23:20:00.000-07:00

A child to be adopted must be under 18 years of age. I recall a case where an applicant tried to "adopt" his adult friend to obtain social welfare benefits. That's a no-no!If the child is an abandoned child (anak laqid) whose parents are unknown, then he is deemed to be a Muslim. A non Muslim child adopted by Muslims is also to be regarded as a Muslim. The application to adopt is to be made to the Syariah High Court for Muslims and the civil High Court for non Muslims.
The applicant must be at least 25 years old and is at least 18 years older (21 years for non Muslims) than the child. This requirement may be waived if the child is related to the applicant, for example, a grandparent and grand child,or an uncle and a nephew or neice. A sole applicant will usually not be allowed to adopt a child of the opposite sex. Consent of the natural parents will be required before an adoption order is made though the consent may be waived if the parent has abandoned or ill treated the child or physically or mentally incapable of taking care of the child.
One last matter. No payment may be made in respect of the adoption without sanction of the court (remember it's an adoption not jual anak).

I Adopt Thee

2008-04-07T20:54:00.000-07:00

The status of an adopted child differs according to his religion. It is worth noting that in Islam, adoption, although greatly encouraged, is no different than caring for a child. There is no change in the child's status. The child is not considered to be the natural child of his adoptive parents. He may not be named (dibinkan) as the child of the adoptive father and he has no rights of inheritance. In other words, an adoption order does not transfer the nasab of the child to the adopter and the adopted child remains the child of his natural parents. However an adopted child can only be returned to the natural parents with a court's permission. Also under the law, the name given to the child by the natural parents also could not be changed. Therefore in order for property to pass to an adopted child, there must be a gift (hibah) during the lifetime of the adoptive parents (known as an inter vivos gift) or through a will (though the value of the gift must not exceed one-third of the estate).
By contrast, an adopted child of a non Muslim couple is regarded as a child of the adopter born in lawful wedlock He will therefore treated as natural child of the couple with full legal rights including inheritance. The rights of the natural parents will be extinguished. The child and the adoptive parent of the opposite sex will also be deemed to be within the prohibited degrees of consanguinity i.e. they cannot get married even if the child was subsequently adopted by another.

Next-Applying for an adoption order

Citizenship Law - Final Thoughts

2008-03-31T20:00:00.001-07:00

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.

Citizenship Law 2

2008-03-26T23:28:00.000-07:00

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)

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.

Citizenship Law

2008-03-24T22:42:00.000-07:00

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

Opening of Legal Year

2008-03-19T16:48:00.000-07:00

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.

Address Me

2008-03-17T23:30:00.000-07:00

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?

I hear, I say

2008-03-15T21:54:00.000-07:00

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.

Race Matters

2008-03-13T18:25:00.000-07:00

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.

Elect Me

2008-03-11T18:10:00.000-07:00

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!

Lost at Legco

2008-03-09T17:16:00.000-07:00

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.

Making Laws

2008-03-05T22:41:00.000-08:00

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.

Your Cheating Heart

2008-02-29T01:37:00.000-08:00

Following on from the last post, what is the offence of cheating? If I borrow money from you and I fail to pay despite promising to do so, this is not necessarily cheating. Similarly, If I sell you my land then refuse to sign the transfer form after you paid me, again this may not be cheating. You may sue me for the loan or for the purchase price. If you report the matter to the Police however, you may be advised not to bother.

But why, you may ask? Well, in law a breach of promise on its own is not sufficient to make the conduct an offence. The law requires that when the promise or representation was made, there was also an intention to deceive. To put it simply, it would be cheating if the land I'm selling does not exist or if when I get the loan, I have already booked a one way ticket to Bora-Bora. Paying a bounce check is only an offence when I know that balance in my account is insufficient to cover the amount stated in the cheque. Now you know why many shops refuse to accept personal cheques. Cash wins every time.

Civil or Criminal?

2008-02-27T03:09:00.000-08:00

In a previous post I have touched on the doctrine of double jeopardy which states that a person cannot be punished twice for the same offence. It must be noted however that an act may be both a crime and a civil wrong and the responsible person may be liable for both. A common example is a car accident resulting from the carelessness of a driver. The driver may be charged in a criminal court for careless driving. This action is brought by the state (in Brunei, the Public Prosecutor). The driver will be known as the defendant. If the prosecutor proves the case, the defendant will be convicted and may be punished as provided for under the law with fine or imprisonment.

If injuries are caused to another person due to the same accident, the careless driver might also be sued (brought action against). The injured person will be known as the plantiff and the driver is referred to as a defendant. A successful civil action will result in judgement for the plantiff and the plantiff is usually ordered to pay a sum of money or damages.

Both action are distinct from each other and the outcome of one does not in law affect the other. You may recall the case of OJ Simpson in the USA. He was acquitted of murdering his wife and her friend but was still found to be liable for their wrongful deaths and ordered to pay a substantial amount of money to the deceased persons' families.

A civil wrong is not necessarily a criminal offence and vice versa. For example, I agree with person to buy his car and paid a deposit. He subsequently changes his mind and sells the car to someone else. Although this is a civil wong (the seller may be sued), this is not a criminal offence even if I claim to the Police I was "kena tipu"(cheated). The definition of cheating in criminal law is quite different.

Latin Lovers

2008-02-25T07:24:00.000-08:00

If the use of fancy English words such as "Hereuntobefore" does not confuse the lay person, lawyers will resort to using archaic legal words, preferably in Latin. The previous post brought back memories of my time at law school whereby latin words were thrown at us constantly.

One of the most well known phrases is caveat emptor which means "buyers beware". This is a warning to buyers to be aware that in most cases, they get what they pay for. That nice gleaming second hand car is usually sold without any warranty as to its condition. So if it breaks down as soon as you pay for it and drives it out of the stockyard, you're out of luck mate.

Suppose you signed a document without reading it. This is unfortunately quite common. I have known people who became guarantors for loans without realising its implications. When asked, the common reply is "aku mana tahu, aku sain saja". This is in law a plea known as scriptum predictum non est factum sum which translates to"he did not in truth consent to what he has done". Nowadays this plea is very rarely successful to deny liability. The law expects a a resonable person to take care what he signs. If he does not understand a legally binding document, then he should not sign first but seek legal advice. This is also true for a person who signs a blank document which the other party will fill in. So don't be too trusting. Read before you sign.Don't sign a blank document.That one signature might be a one way ticket to a whole lot of trouble and aggravation.

Double Jeopardy

2008-02-23T03:25:00.000-08:00

Does anyone recall a movie by this name? If I am not mistaken, the story goes like this. The husband faked his own death to be with his mistress and the wife was convicted for his "murder". Ater serving her imprisonment sentence, the wife killed the husband for real. But here's the catch. She cannot be punished again for the real murder as she had already been convicted previously. That is the doctrine of double jeopardy. You can only be convicted once for the same offence. The fancy phrase for this doctrine is autrefois convict.

Similarly if a person has been acquitted of an offence, he cannot be re-tried for the same offence even if subsequently there is new evidence to show that he did commit the offence. He can claim legal immunity through the doctrine of autrefois acquit. This prevents a kalah-kalahan (vindictive) prosecutor from bringing the same charges time and time again until he gets a conviction. You only have one bite of the cherry Mr. Prosecutor!

It must be noted that this doctrine only applies to the matters arising from the same fact. If a person charged for murder is acquitted, he cannot be charged subsequently for causing the death of the same person.However if during the killing, he commits robbery, he can still be charged for that offence.

You're Forgiven

2008-02-21T19:47:00.000-08:00

Will all criminal cases go to court? Under the law certain offences can be compounded. There are two types of composition (the fancy name for "kompaun"). The one many of us is familiar with( especially you fast drivers along Damuan) is the payment of a penalty. For certain road traffic offences such as speeding, illegal parking and failure to comply with the directions of a police officer, the offender may choose to compound the case by paying a penalty which is usually $50 but which may be up to $500. If the penalty is paid, then the case will not go to court. Of course if the driver thinks he is not guilty, he may choose to fight his case in court though he risks being fined a higher amount if found guilty. Other offences which may be compounded include certain immigration offences for example overstaying and some customs offences such as importing certain prohibited items into the country.

Another type of compound is actually the forgiving of the offender by the victim. This is usually done in court for a limited number of offences such as causing hurt and causing damage to property. Both the offender and the victim will appear before a Magistrate. If the victim indicates his or her intention to withdraw the complaint, the offender will be acquitted. The type of compound is quite common in spousal abuse cases.

For other offences, the victim's forgiveness will not end the case. A thief maybe forgiven by the person from whom he stole but he can still be charged nonetheless. A "runding luar" (outside settlement) in a traffic case will similarly not make the offender immune to prosecution. So you will end up paying for the damages you caused and also a fine. You have been warned.

I agree

2008-02-19T05:33:00.000-08:00

In criminal law the concept of agreement or consent is an important one. For example, if a person were to punch another, it would usually be an offence. However if this is the case everytime, Muhammad Ali would have a long list of criminal record for assault. In a boxing match or indeed any physical sport, the law recognises that there is implied consent by the participants to harm being inflicted. This consent is of course not to all harm but harm inflicted in fair play. If during a football match, the striker is tackled as he approaches the goal with the ball, that would be fair play. If the bintih occurred as he was walking to the dressing room then there cannot implied consent.

A "consent" is obtained under fear of injury or under misrepresentation of facts is not a valid consent in law. Thus a bogus bomoh, promising a micracle cure by "special urut "cannot claim that the victim has consented as clearly the consent was obtained by fraud. There was once a local so called bomoh who placed daun sireh on "no go"areas of his victims. Despite this rather unusual(to say the least) "treatment" he was apparently quite popular! A word of advice. Go to a proper doctor or healer and save yourself a lot of grief.

We will catch you

2008-02-18T02:39:00.000-08:00

In Brunei, it is an offence to buy lottery tickets. Never mind, you can always buy them in Miri during your weekend shopping trip right? Err, no. Well not if you are a Bruneian that is. The jurisdiction of the criminal courts in this country extends to all offences committed by a citizen, wherever the offence may be pepetrated.

This law of course does not apply to non citizens . There are exceptions. Say a foreigner gives a bribe to a Brunei official in relation to a project here. The bribe is paid in a foreign country. Our courts will still have jurisdiction in this case in respect of the foreigner as the subject matter of the offence relates to this country even though the offence is committed overseas.

Brunei courts also have jurisdiction if the offence is committed on Brunei registered aircrafts and ships. Even if the RBA plane is flying 20000 feet over Turkey or the Brunei LNG ship is berthing in Japan, the offender of any air rage or sea rage(?) can still be hauled to our court. So don't hit our female cabin crew. If you are married, don't hit on her as well. And keep the "jangkau saja" joke to yourself. She would have heard it a thousand times before.

Can't touch me

2008-02-17T04:01:00.000-08:00

Is anyone above the law? The legal jargon is "legal immunity". Heads of States are traditionally immune to any legal action. Under the Vienna Convention on Diplomatic Relations, diplomatic agents properly accredited to a country are in general immune to any criminal, civil or administrative jurisdiction of the host country. A "naughty" diplomat can only be prosecuted or sued if his immunity is waived by the sending country. Otherwise the only real action is to request for him to be removed. Some years back, a local bank was unable to recover credit card debts incurred by a foreign diplomat despite going to court because of this immunity. Free money!

The law also excludes a child under 7 from criminal liability. Children between 7 and12 can only be liable if he has "attained sufficient maturity of understanding to judge of the nature and consequences of his conduct". The malay word for the rather convoluted language would be "berakal". If he is "berakal" then he is criminally liable.

Does this mean it is ok if you ask your little 6 year old nephew to steal a phone from Incomm? After all Papalaw says there is no offence. Well, shame on you. He cannot be charged but under the law you can be charged for instigating the offence. It is as if you are stealing the phone yourself. Leave that kid alone and teach him good things instead!

Whip 'em

2008-02-15T21:45:00.000-08:00

One of the more controversial punishments still practiced today in Brunei is whipping (also known as caning in Singapore). We retain this form of punishment with our neighbours, Malaysia and Singapore as as a legacy from Britain. Another legacy is capital punishment by hanging though in Brunei no convict has been hanged for over 10 years. The British have of course practically banished such punishments from its statute books deeming them "cruel".

In Brunei, whipping is imposed as a mandatory sentence for a number of offences such as drug trafficking, robbery and rape. Some offences provide for a minimum number of strokes to be imposed, for example, in the case aggravated rape a minimum of 12 strokes is mandated. The maximum number of strokes to which an adult offender may be sentenced is 24. All the lashes will be inflicted in one session subject to any medical advice to the contrary. Ouch!

Some people cannot be whipped. Women, males sentenced to death and males over 50 are excluded.

From time to time, the Prison Department holds demonstrations in schools on how whipping is conducted. The responsible prison officer half spins as if he is hitting a baseball and lashes the half inch in diameter rattan on the bare buttocks of the convict (a mannequin in this case) with all his might. It sounds like thunder. Something certainly not forgotten in a hurry by the shocked audience.

Legal Jargons Defined

2008-02-15T01:18:00.000-08:00

Lawyers are well known for using at least 10 words when 1 is sufficient and even then the meaning may still be unclear. From time to time, I will attempt to explain the legal jargons so beloved by lawyers and still used in legislation and in the courts.

Let us start with the word "and". Sounds simple right? Even a primary 1 kid knows what it means. However, if you see it in relation to the punishment for a criminal offence, it can mean either "and" or "or". For example, the punishment for cheating is imprisonment for 3 years and a fine. This means that the convicted person can either be imprisoned or fined or punished with both imprisonment and fine.

Confused? There's more. The punishment is to be read as the maximum punishment. In the example above, 3 years' imprisonment is not a fixed sentence but the maximum a court may impose. In other words, a court may imprison a cheat for a period ranging from 1 day to 3 years. Got it? Even after all these years, the absurdity still astounds me.

Hands up ! - Part 2

2008-02-14T19:21:00.000-08:00

A thief breaks into your house. All the years of watching 'Stone Cold' Steve Austin on TV will be put into good effect. You are ready to give the penyamun your version of the "Stone Cold Stunner". For added protection, you also carry your new Nike Sumo driver with the really massive club head (more forgiving, the ad says but you are not in a forgiving mood). Then what? Well it depends.

If you are built like Andre the Giant (remember him?) and the thief immediately surrenders in fear, he may be confined until the Police arrive. Keep the driver in the golf bag Tiger! If however you are more 'Cicakman' than 'Superman' and he tries to escape or beat you up with his kungfu, the law allows you "all means necessary" to effect the arrest. However, the person arrested is not to be subjected to more restraint than is necessary to prevent his escape.

So much for the law. A word of advice. You can always replace your property. A few years back, a foreign doctor was killed when he confronted thieves who broke into his house. He was killed with his own knife. The reality is that desperate people will react desperately. Violence begets violence. Your Ferrari (or Vios) is really, really not worth dying for.

Hands up!

2008-02-14T12:35:00.000-08:00

Can someone other than a police or an enforcement officer arrest another person? Remember that a wrongful arrest may be a crime. You may arrest a person who in your presence has committed a "non bailable and seizable" offence. This category includes offences such as murder, rape, robbery or theft but not offences such as assault, cheating or careless driving. You cannot arrest a person if you did not actually see him commiting the offence, so don't go round knocking on doors just because your cousin told you that 'Penyamun Tarbus' stole his Ipod. The person arrested MUST without any unnecessary delay be handed over to a police officer or taken to the nearest Police station. So none of the 'waterboarding' or 'dikerajakan' nonsense or you will be the one facing arrest. Got that Dirty Harry?

Next post- How is an arrest made?

Oh no! Another blog?

2008-02-14T11:13:00.000-08:00

Want to know more about Brunei laws? Lots of local blogs but none that I can find which deals with this topic. Why is the system based on English common law? Has Islamic law any place at all in the current system? Can you arrest another person? What are your rights if you are arrested? Can killing another person ever be legal? Can the Police enter a house without a search warrant? How are court proceedings conducted? Do you need a lawyer everytime? Want to know more about the offences you read in the papers? Please bookmark this page!