Administration of Law and Justice in Brunei before the British Part I

Administration of Law, Justice in Brunei Darussalam before coming of the Britsh

B A Hussainmiya, Borneo Bulletin 9 November 2013

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IN VIEW of my involvement with Brunei historical topics, many people have been asking me to furnish some ideas about the historical antecedents of legal system and practice in Brunei in the ancient and medieval periods. With some trepidation, I have taken courage in this series to fulfil my obligation as a historian to delve into a grey area with the hope that other scholars will be able to add or amend my observations on the implementation of Adat (Customary), Kanun and Syariah laws in Brunei in the olden times. At the outset I must reiterate that fact that I claim no expertise in any aspect of Syariah Law whatsoever, and this paper is not going to focus on the intricacies of Islamic Laws as such. This is going to be an exercise in historical outline to what went on in the area of legal practice in the old kingdom of Brunei since its legendary founding in the 14th Century CE.

In fact, I am not a historian of ancient Brunei which is another problematic subject in view of paucity of critical source materials. Brunei’s History Centre has produced several books dealing with this period and a few foreign scholars, especially late Robert Nicholl have also conducted research and written works to explain many salient facts about pre-colonial Brunei History. This series of articles is a reproduction of a paper I read at a Seminar on Social and Economic History of Brunei, organised by the Department of History, Universiti Brunei Darussalam, Nov 14-15, 2006, which was later published in the ‘Journal of Southeast Asian Studies’ in UBD.

My specialisation is in modern Brunei history, especially the period after the accession to the throne of Sultan Haji Omar Ali Saifuddien III (r1950-1967) whose political biography I dealt with in my 1995 book published by the Oxford University Press. As the readers of this newspaper may be aware that I have written extensively on the background politics and circumstances leading to the making of the 1959 Brunei Constitution, first in a series of weekly articles published in the Weekend Borneo Bulletin a decade ago which were later compiled and published as a separate book in two editions by the Brunei Press (Sdn) Bhd in 2000.

Like many other aspects of Brunei’s past, a comprehensive study of the Sultanate’s legal history is yet to be undertaken. Given the importance of the Brunei kingdom as the foremost sultanate in the Borneo Island, it is to be anticipated that a firm foundation for a legal system had had been laid reinforcing other characteristics of a strong state. In fact, few incidental references to Brunei in the medieval Portuguese and Spanish records point in that direction because the kingdom seemed to have practised a reasonably well-entrenched legal system. For instance, Ludovico Varthema of Bologna, one of the early visitors to Brunei in about the year 1505 mentioned that justice was well administered in the island of Borneo/Brunei (cited in Robert Nicholl 1975: 3). Similarly Tome Pires, a resident in Melaka from 1512 until 1515 and a supervisor of spice trade referred to the Borneans as seemed to be peaceable men. Antonio Pigafetta who visited Brunei in 1521 and wrote a comprehensive and authentic account of Brunei, although did not go into details of legal matters, yet referred to adherence of Islamic practices including not eating pork, ritual killing of animals, aspects of personal cleanliness, circumcision etc., (Robert Nicholl 1975: 8-13). Apparently Brunei’s emergence as an Islamic power in South China Sea in the medieval period was an important factor that transformed a minor port polity into a strong state. The ascendancy of the state as an economic power as well as an Islamic missionary state required a good legal foundation. The official history of Brunei generally traces the foundations of Islam from the middle of the 14th century when a local tribal leader known as Alak Betatar became a Muslim and assumed the name of Sultan Muhammad (Pehin Mohd Jamil al Sufri 2000: 72-74) . The third Sultan in the official Brunei genealogy was a foreigner Syarif Ali presumed to have hailed from Taif in Arabia and was a descendant of the Prophet Muhammad’s  (pbuh) nephew and son-in-law, Ali, the fourth Caliph in the Islamic history. The Brunei chronicles ie (Silsilah Raja-raja Berunai) refers to the introduction of Islamic Syariah law during his period. The 9th Sultan of Brunei, Sultan Hassan is credited with other achievements in writing down the legal texts in Brunei such as the Hukum Kanun.

Without getting into controversies about the dates or the names of the early rulers of Brunei, it is safe to conclude that by the early 16th century, Brunei emerged as a rich, prosperous and stable Sultanate in the region, a fact well illustrated by the writings of Antonio Pigafetta in 1521. Another Spanish document, referred to as the Boxer Codex, written in 1599 by a Spanish official who had been resident in Brunei highlights an elaborate and organised form of a state and government of Brunei (John S Carroll 1982) Apart from many authentic observations by the writer of the Boxer codex, his description of the legal system in Brunei is quite stunning. It indicated above all a very systematic administration of justice in the kingdom. The document also delineates details of court proceedings, law of evidence, and various forms of punishments including the capital punishment meted out for wrong doers. The 19th century foreign references, particularly by the British observers, also help in understanding the practice of law in Brunei. However, it appears the system was not as ideal as it was during the 17th century, the glorious days of Brunei.

The 19th century witnessed a decline in Brunei’s power and status. This seemed to have resulted in a corresponding laxity in the way justice was administered. At any rate, law is not a static subject; it mutes into various forms in keeping with the needs of the time and exigencies. As might be expected the Brunei laws must have undergone changes throughout the period of under study until the arrival of the British in the scene. By that time Brunei was on the verge of extinction. M S H McArthur, a British official who was sent to Brunei in 1904 to report on the conditions of state and government in Brunei, for instance, highlighted the impotence of the Brunei legal system when the authorities were dilatory in punishing the wrong doers. McArthur concluded that (in Brunei) there is the semblance of a judicature, but little justice. (McArthur’s Report of 1904, A V M Horton Ed; 1987: 128).

This article intends to highlight features of the pre-colonial legal system and practice in Brunei based on references from foreign sources. Original Brunei was comprised a much larger territory including most parts of the present day Sarawak, and Sabah which are now Malaysian territories. After 1890, when Charles Brooke annexed the Limbang territory, the Brunei kingdom was reduced to the present borders of two separated enclaves of Brunei, Muara and Tutong on the one end, and Temburong on the other end covering about 5,000km in extent. Much of the discussion in this article is relevant to the practice of law close to the centre of power in Brunei, ie; Brunei (city) proper where the Sultan held court. It is obvious that in the outlying provinces courts, if any were, held under his authority by especially nominated officials. In fact, as the Boxer Codex mentions that the indigenous tribes such as Visayas who lived inland submitted themselves to the law of the Sultan, though not always voluntarily.

(To be continued)

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(ourtesy of Borneo Bulletin)