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

Why did Westerners look down upon Brunei's judiciary during 19th century?

BA Hussainmiya, Borneo Bulletin 16 November 2013

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Note:
Continuation of ‘Administration of law, justice in Brunei before coming of the British’, published on Page 18 of the November 9, 2013 edition of the Weekend Bulletin

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ANY historical analysis of pre-colonial Brunei laws of must refer to two opposing points of view- the first is an idealistic one favoured by the local experts while the other is a negative one expressed by colonialist administrators.

Several local scholars paint a romanticist yet an uncritical view of Brunei’s laws as being in force in the old Sultanate. Thus there is much emphasis laid on the significance of a legal compendium such as Hukum Kanun Brunei and Syariah laws in addition to Adat laws (customary laws) as sources for resolving disputes of various offences involving civil and criminal cases.

Although, these studies are valuable, needless to say that the idealistic presentation of the pre-colonial legal history would bear more validity  if it could be supported by painstaking research which can supply solid evidence or proof of actual case studies from the past. Instead the local scholarship in most parts is content to provide references to a few incidental examples, and that too culled from some early British reports.

For example, there are repeated citations in local scholarship of Sultan Abdul Mumin who sentenced to death a certain Pengiran Mohamed for a murder offence but was protected by the inhabitants of the Kampung Ayer ward of Brunei Pingai. (Spenser St John Cited in Asbol Mail: 150). Also a former British Consul, W H Treacher, mentioned in 1876 of a death by hanging of another murderer, one Pengiran Maidin by the orders of Sultan Hashim Jalilul Alam.

Similarly, W H Treacher, a British Consul, also mentioned the cutting of hands on the Sultan’s orders of three thieves alleged to have broken into a British ship anchored in the Brunei harbour.

It needs to be reiterated here that the Brunei law codes such as Hukum Kanun Brunei, like its equivalent canon laws in Malaya, were the work of learned scribes at the court of the Sultans. One doubts if they actually served as guidance in settling disputes. Referring to the Malayan example, a leading European authority on Malay law, R J Wilkinson (1908) has therefore warned against taking ‘the so-called codes too seriously’.

Similarly Hugh Clifford, the first British administrator sent to Pahang confirmed that ‘hardly anyone except a few Malay scholars know the contents of the ‘Kanun, and that it is never followed in dealing with offences…’. I will follow up this aspect more in the coming weeks.

Western critics of Brunei laws

In the 19th century the European observers generally held negative views about Brunei’s judicial system besides being quick to condemn the Brunei legal practices (Peter Leys) at a time of the diminishing sovereign powers of Sultan Abdul Mumin and Sultan Hashim Jalilul Alam.

The White Rajah of Sarawak, Charles Brooke was hell bent to annex the entire Brunei kingdom. Moreover, self-seeking Brooke, behaved as the paragon of justice, ruling over a people who were peace loving and happily living with least governmental interference as opposed to Brunei which he caricatured as ‘a blot on civilisation’.

It was during this phase in particular that the visiting foreign observers accused that law and order in Brunei had broken down to the point that the Sultan and rudimentary court systems, if any, hardly or effectively exercised their jurisdiction over much of their subjects.

The most blatant criticism of the Brunei justice system came from M S H McArthur sent to report on Brunei in 1904 (Hussainmiya 2006) and was expected to recommend the dissolution of Brunei.

MSH McArthur as a student in Oxford University, 1890

What irked McArthur most was the fact that the Sultan would not punish culprits – from murderers (if only a handful of cases) to petty thieves – in his kingdom. He faulted the Sultan for being too ‘weak and too prone to treat offenders, even against his own laws, leniently.’

The Sultan, however, was not totally to blame.

If he overdid his role, the chiefs as powerful as him would be alienated from him. In other instances when he made his best effort to perform his duty, he was held back ironically by the British over lordship that restrained him from pursuing miscreants in his kingdom. (For details, see Hussainmiya, ‘Brunei: Revival of 1906’, Brunei Press, 2006).

The visiting Consul McArthur, however, did admit the dilemma faced by a hapless Sultan Hashim.

McArthur realised that the Sultan scarcely wished to cross swords or sit on judgment with his own kin and the privileged pengirans or the nobles for their wrong doings lest being politically isolated.

Moreover, by ‘the constitution and custom of Brunei’, the Sultan could not interfere in other peoples domains, as underscored in the McArthur’s Report (Hussainmiya 2006).

It will also be of interest to note that McArthur was surprised to find much less crime in Brunei during his brief visit and, impressed by the fact that ‘… (T)he offence against person and property are not more frequent, when it is remembered that there is no police system, and that the public peace is allowed to look after itself.’ This was the crux of the Brunei justice system, attributable to the checks and balances that prevented people from committing blatant crimes. Brunei people by nature were law abiding.

Returning to contemporary British reports about the failing justice system, they were not just confined to Brunei. Similar strident criticisms had been leveled by the Europeans about the judicature in the Malay sultanates in the Peninsula as well.

In general they were comparing the justice system in their own developed countries with that of fledgling Brunei Sultanate in its weakest stage.

But were they correct? Why did they run down the legal standing of the Malay indigenous societies? How could they compare the ‘human rights’ record of mature bureaucratised governments of Europe as against personalised governments in the Malay Sultanates?

In order to answer these questions some explanation is needed on the evolution of the Western legal system or more specifically the English Legal system upon which much of Brunei’s legal principles were based ever since the British Residency system was introduced in 1906.

The concepts of justice in the European societies had evolved out of long historical experience and experiments. Their societies have moved from feudalism to national States after lengthy periods of struggle in which hundreds had perished due to actions of megalomaniac rulers and religious wars, etc. The French revolution of 1789 was a clear turning point that wiped out royal despotism, and Napoleonic wars that followed helped to nurture new nation States away from arbitrary rules of despotic regimes.

England’s case was still more exemplary. Since the declaration of the charter of rights of common people in Magna Carta of 1215, the English Parliament, despite the continuation of monarchic rule, albeit constitutional, evolved with its own traditions and unwritten laws. More importantly the institutions of law giving thrived in a healthy environment under a system of separation of powers and passing of much reformist legislation, not solely on the directives of the British crown.

What is important for this discussion is the fact that the strength of the English mechanism of justice lies in the application of a fixed code of law in accordance with the laws of precedence and without fear or favour to any whom an independent judiciary have to adjudicate upon. Experience has shown that this mechanism was the most effective way to mete out justice impartially.

However it is a product of an unusual sequence of conditions and events. However, European or more specifically the British exportation of their justice system to their colonial territories did not always work well. Nevertheless, the post-colonial innovations in criminal justice system brought revolutionary improvements to indigenous judicial practices.

A classic summary of this development can be found in K M Panikkar’s ‘Asia and Western Dominance’ (1953: 497) who was a foremost critic of European influence in Asia. “The establishment of the great principle of equality of all before law in a country where under Hindu doctrines a Brahmin could not be punished on the evidence of a Sudra (low caste), or even punishments varied according to caste, and where, according to Muslim law, testimony could not be accepted against a Muslim was itself a legal revolution of the first importance … the Indian penal code (under British impetus) was a great improvement on the previous systems.”

Despite the merits of the English common law introduced in Brunei, the foreign derived laws based on equity, equality and magnanimity would not have been able to comprehensively address the needs of an Islamic Sultanate.

Historically an essential function of law and order in Malay societies is not just to safeguard individual’s rights but more importantly as a means to preserve social cohesion.

An attempt to elevate justice into something absolute and not something relative to the society in which it exists crates its own problems. Let us see how Brunei’s indigenous legal framework then functioned in rudimentary ways before the coming of the British.

(To be continued)

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(Courtesy of Borneo Bulletin)