ADR in Brunei Darussalam the meeting of
ADR Bulletin
ADR Bulletin
Volume 4 | Number 8
3-1-2002
ADR in Brunei Darussalam: the meeting of three
traditions
Ann Black
Recommended Citation
Black, Ann (2002) "ADR in Brunei Darussalam: the meeting of three traditions," ADR Bulletin: Vol. 4: No. 8, Article 2.
Available at: htp://epublications.bond.edu.au/adr/vol4/iss8/2
his Article is brought to you by ePublications@bond. It has been accepted for inclusion in ADR Bulletin by an authorized administrator of
ePublications@bond. For more information, please contact Bond University's Repository Coordinator.
Article 2
Black: ADR in Brunei Darussalam
The ADR B ulletin
Comparative ADR
ADR in Brunei Da russa la m:
the meeting of three tra ditions
Ann Black
Brunei Da russa la m is a n ind ep end ent
M alay Islamic Sultanate w hich is situated on
the northw est corner of Borneo. O utside the
country, it is best know n for its oil and gas
w ealth, and for its Sultan, Hassanal Bolkiah,
w ho ranks as one of the w orld’s w ealthiest
men and is famous for his luxurious palace
and lifestyle.
In this small affluent nation, the processes
used for dispute resolution are as much the
legacy of events and influences from the
past as they are of the contemporary ADR
movement that the w est has been exporting
to Asia. The diverse ethnic mix in Brunei 1
ensures that there w ill be a multiplicity of
culturally preferred w ays of resolving conflict
and disputes. There are, how ever, three
tra d itio ns, ea ch w ith its o w n d istinctive
dispute resolution processes, that continue to
shape and direct dispute resolution in the
Sultanate. These three traditions are that of
the c o mmo n la w , Isla mi c la w a nd
indigenous Bornean beliefs and practices.
Common la w
From the time Brunei became a British
( 2001)
Residency in 1 9 0 5 , the English common
law has played a dominant role, particularly
in disputes arising in the commercial and
b usi ness secto r. Thi s w a s b eca use the
priorities of a colonial g overnment w ere
‘law and order’ and providing security and
certa i nty fo r tra d e a nd co mmerce. The
colonial rulers w ere content to allow the
p e o p le o f Brune i to ma na g e fa mi ly ,
succession and other interpersonal law s in
their ow n w ay.
Although litigation as a dispute resolution
process has been firmly cemented for almost
a century, the numb er of ca ses coming
before the courts in Brunei is comparatively
low . The litigation rate of 1 9 8 per 1 0 ,0 0 0
persons2 is less than that of Japan, w hich is
generally regarded as a less litigious society
than its w estern counterparts. The low rate in
Brune i i s no t b e c a use o f a la c k o f
confidence in the common law courts as
institutions of integ rity, b ut d ue to loca l
cultural factors that bring about settlement in
other w ays.
The vast majority (9 4 per cent) of civil
cases registered in the courts settle prior to
trial, and the introduction of mandatory pretrial conferences for all intermediate and
High Court cases maintains this trend. M ore
significantly, the collectivist nature of Brunei
society means there is an innate resistance
to direct confrontation w ith others and a
general dislike of adversarial processes.
This also has consequences for arbitration.
After the country became a signatory to
the N ew York C onvention, the Arbitration
A ct 1 9 9 4 w a s ena cted to p ro vi d e the
country w ith a leg isla tive fra mew ork for
resolution of civil disputes by arbitration.
The Act does not adopt the United N ations
C o nference o n Interna tio na l Tra d e La w
(UN CITRAL) model law but does not prevent
parties from doing so. It distinguishes in its
p ro vi si o ns b e tw e e n d o me sti c a nd
international arbitrations. The law applied is
that determined by the parties, but more
often than not, it is the law of Brunei; the
language of the arbitration is customarily
English. It allow s for conciliation w here this
ha s b e e n w ri tte n i nto the a rb i tra ti o n
agreement.
A ltho ug h a rb i tra ti o n a g reements a re
contained in 9 0 per cent of contracts in the
c o nstruc ti o n i nd ustry a nd i n a la rg e
percentage of commercial contracts, it has
been estimated that possibly only four to six
d i sp utes a yea r w o uld b e d eci d ed b y
a rb itra tio n a nd three times tha t numb er
w ould threaten to use arbitration as
a me a ns to b ri ng a b o ut
settlement.
➣
4(8) AD R ....................................................................................................................................................................................
Published by ePublications@bond, 2002
107
1
ADR Bulletin, Vol. 4, No. 8 [2002], Art. 2
The ADR B ulletin
➣
‘The tenacity of the
traditional social hierarchy
and its accompanying
rules of behaviour w hich
prioritise respect, loyalty
and mutual co-operation,
mitigates against taking
action against a person
of royal or high social
standing. Settling a dispute
by direct or facilitated
negotiation, or an informal
mediation w here the
intervener is connected
by family, friendship or
business ties to the
disputants, is preferred.’
There are many possible reasons for
the li mi ted ro le fo r a rb i tra ti o n. O ne i s
inadequate know ledge and familiarity w ith
the process generally, and in addition, there
i s o nly a sma ll numb e r o f fi rms w i th
experience in the field.
As mentioned earlier, cultural factors are
also important. For some local Bruneian
businesses and companies, arbitration is
seen as being as rule-bound, inflexible and
adversarial as litig ation. There is added
concern tha t like litig a tion, a rb itra ting a
dispute may impact neg atively on future
commercial dealings. The tenacity of the
tra d i ti o na l so c i a l hi e ra rc hy a nd i ts
accompanying rules of behaviour, w hich
prioritise respect, loyalty and mutual cooperation, mitigates taking action against a
person of royal or hig h social standing .
Settling a dispute by direct or facilitated
negotiation, or an informal mediation w here
the i ntervener i s c o nnec ted b y fa mi ly,
friendship or business ties to the disputants,
is preferred. The latter is possible given the
sma ll p o p ula tio n o f 3 3 0 , 0 0 0 w ith just
2 0 0 , 0 0 0 p e rso ns i n the c a p i ta l a nd
c o mme rc i a l c e ntre — Ba nd a r Se ri
Begaw an. As a result, it is the international
comp a nies op era ting in Brunei tha t a re
more w illing to arbitrate than the local ones.
The limited use of arbitration is consistent
w ith findings in some other Southeast Asian
c o untri e s (e xc lud i ng H o ng Ko ng a nd
Singapore) w here Asia Pacific Economic
C o-operation (APEC ) research has found
that ‘resort to arbitration has not grow n as
rapidly as expected given the grow th in the
numbers of transactions in the region’. 3
Isla mic la w
As Brunei is an Islamic Sultanate, Islamic
law has alw ays played a central role in the
daily lives of the Brunei M alays. Through
the institution of the Kadis Courts, law s on
family, succession and matters of religion
and morality have been applied to M uslims
resident in Brunei throughout the last century.
Since independence, how ever, there has
been a national commitment to ‘making the
Islamic system the most effective judicial
system in the country’ . 4 This ha s mea nt
significant reforms to the religious courts,
w hich have been restructured as Syariah
C ourts, w ith increased jurisdiction. 5 There
108
ha s a lso b een leg isla tive cha ng e in the
a rea s o f fina nce a nd b a nking , 6 fa mily
la w , 7 a d o p ti o n 8 a nd e vi d e nc e . 9 In
a d d i ti o n, the sma ll ro le tha t Isla mi c
arbitration1 0 had been playing in marital
and family disputes has been revitalised by
the Emergency (Islamic Family Law ) O rder
(the O rder). The O rder requires the hakam
or arbitrators to intervene in certain cases of
marital discord, 1 1 to facilitate (if possible) a
reconciliation. W here the hakam consider
this unlikely, they can decide that the parties
are to divorce. This is then referred to the
Sy a ri a h C o urt w he re the d i vo rc e i s
registered and certified. 1 2 In cases of family
disputes, the hakam must be qualified for
the role, a nd (w here p ossib le) b e close
relatives of the husband and w ife having
kno w led g e o f the circumsta nces o f the
case. 1 3
Islamic arbitration is used more w idely in
other M uslim countries, particularly in the
M iddle East, for commercial, administrative
and contractual disputes. Although it gives
a utho rity to the a rb itra to rs to imp o se a
decision, aspects of conciliation (suhl) are
incorporated into the process, so that an
a mi c a b le se ttle me nt i s the p re fe rre d
outcome. G iven the increasing Islamisation
of commercial and administrative practices
throughout Brunei Darussalam, it is likely that
traditional takhim may become an option
for commercial and financial disputes, as
w ell as for family matters.
Tra ditiona l Bornea n
pra ctices a nd beliefs
The third tradition that informs the w ay
d i sp utes a re settled i s the i nd i g eno us
traditional forms of mediation that evolved
o n the i sla nd o f Brunei centuri es a g o ,
before the establishment of courts. In those
earlier times, a ‘ mediated’ outcome that
ma i nta i ned ha rmo ny a nd co -o p era ti o n
betw een its members w as an imperative for
group or village survival. The person w ho,
by tradition, intervened as mediator w as
the hea d ma n, either of the ka mp ong or
village for the M alays or of the longhouse
for Iban and other non-M uslim indigenous
peoples. These forms of mediation w ere,
a nd sti ll a re, rela ti vely i nfo rma l; o ccur
w ithin a short time frame after notification;
are educative in that social norms can
..............................................................................................................................................................
http://epublications.bond.edu.au/adr/vol4/iss8/2
➣
vol 4 no 8, D ecember 2001
2
Black: ADR in Brunei Darussalam
The ADR B ulletin
➣ be articulated; can be coercive; and
any outcome needs to be appropriate for
the community as a w hole, not just for the
disputants.
Today in Brunei, particularly in the more
rural and remote areas w here the complex
ki nshi p a nd ec o no mi c ti es sti ll exi st,
mediations of this type continue. But in the
to w ns w he re so c i a l a nd e c o no mi c
independence and greater anonymity have
rep la c ed fo rmer so c i a l netw o rks, thi s
practice has lessened. How ever, as the
headmen now receive remuneration from
the G o vernment, a nd li a i se w i th the
G overnment in implementing policy at the
lo c a l le ve l, the i r ro le a s c o mmuni ty
med ia tors in the rura l p a rts could a lso
change.
Even w hen mediation by a headman is
no t a n o p ti o n, the va lues a nd ethi c s
underpinning those traditions — including
maintaining social harmony through mutual
obligation and respect, community effort,
co-operation and avoidance of conflict —
are still features of M alay culture. They
favour a non-adversarial form of dispute
resolution. The mindset is to co-operate
rather than to confront, and the assistance
o f a thi rd p a rty a s i nfo rma l med i a to r,
w hether headman, imam, friend or family
member, is culturally conditioned to feel
right. G oing to a law yer, or to court, is an
option w hen all else fails.
means of dispute resolution, cultural and
structura l fa cto rs co mb i ne to ma i nta i n
traditional avenues for this, so far restricting
the
sc o p e
fo r
mo re
w e ste rn,
professionalised mediation. W hether the
i nc re me nta l
mo d e rni sa ti o n
a nd
w esternisa tion in Brunei w ill imp a ct on
culture and tradition in a w ay that lessens
the relational and collective foundations,
seems unlikely. W hile Brunei is adopting
mo d ern tec hno lo g i c a l a d va nc es, i t i s
trying selectively to resist w hat are seen
a s the c o unte r c ultura l fo rc e s o f the
w est, prioritising instead retention of the
‘inherent norms of our ow n internal lifestyle
tha t i s c o lle c ti ve ly p ra c ti c e d b y o ur
society’. 1 4
By rejecting the concept of individualism
on the basis that in the w est ‘it has been
the p rime ca use o f mo ra l d eca d ence,
degradation of social values and cultural
demoralization, disrespect of elders, family
and authority’, 1 5 Brunei is turning to Islam
to enhance its M alay culture and illuminate
its future d irectio n. This mea ns tha t a s
w ell a s streng theni ng the ro le o f the
Sy a ri a h C o urts, a lte rna ti ve me a ns
compatible w ith Islamisation w ill be more
accepted than offerings from the modern
ADR movement. ●
Ann Black is a Senior Lecturer, Faculty of
Law , University of Q ueensland. She can be
contacted at [email protected].
Conclusion
The mixing o f the three tra d itio ns in
Brunei Darussalam has created concurrent
streams of dispute resolution for different
sectors of the society. The common law ’s
legacy of litigation and, to a lesser extent,
a rb i tra ti o n, ha s the co nfi d ence o f the
commercial and investment sector, w here
the level of satisfaction is generally high.
The ro le p la y e d b y Isla mi c la w i s
streng thening , a nd the revita lisa tion of
Islamic arbitration for marriag e disputes
ma y lea d to ta khim b eing extend ed to
commercial and other disputes, as in the
M iddle East. M ost disputes occur in local
communities and continue to be resolved
there through informal means.
Although Brunei’s M alays, Chinese and
the ind ig enous non-M a la ys a ll sha re a
p reference for informa l a nd consensua l
( 2001)
Endnotes
1 . The nation is also home to almost
3 4 0 ,0 0 0 people, w ho are a mix of many
i nd i g eno us ethni c g ro up s, w i th Brunei
M alays in the majority, and a substantial
C hinese community w hich dominates the
business and commercial sector. C hinese
a lso a re w ell rep resented in the leg a l
profession. There are smaller numbers of
Indians, and expatriates from Australia and
Euro p e w ho a re emp lo yed ma i nly i n
professional areas, and others w ho are
given temporary w ork visas for labouring
and construction w ork.
2 . Based on court figures for 1 9 9 9 .
3 . A PEC Re p o rt o n Inte rna ti o na l
C o mme rc i a l Di sp ute s a t < w w w .
arbitration.co.nz/ apec/ introduction.htm>.
4 . Zain bin Haji Serudin, M inister for
Religious Affairs ‘Syariah law for Brunei’
(1 9 9 5 ) June Borneo Bulletin 1 4 .
5 . Emerg ency (Syariah C ourts) O rder
1999.
6 . Isla mi c Ba nki ng A c t 1 9 9 2 ;
Perbadanan Tabung Amanah Islam Brunei
Act 1 9 9 1 .
7 . Emergency (Islamic Family Law ) O rder
1999.
8 . Islamic Adoption of C hildren O rder
2001.
9 . Sya ri a h C o urts Evi d enc e O rd er
2001.
1 0 . The process is takhim and it w as
d erived from the Prop het M oha mma d ’ s
practices.
1 1 . Emerg ency (Isla mic Fa mily La w )
O rder 1 9 9 9 ss 4 2 , 4 3 (2 ) and 4 3 (3 ).
1 2 . Emerg ency (Isla mic Fa mily La w )
O rder 1 9 9 9 s 4 3 (7 ).
1 3 . Emerg ency (Isla mic Fa mily La w )
O rd er 1 9 9 9 s 4 3 (3 ). The o rd er uses
the term qarabah qarib w hich means a
fa mily memb er b a sed o n la w ful b lo o d
lineage.
1 4 . Abdul Latif bin Haji Ibrahim ‘Cultural
and counter-cultural forces in contemporary
Brunei Darussalam’ in Thumboo E Cultures
in ASEAN and the 2 1 st Century University
of Singapore Press Singapore 1 9 9 6 p 2 3 .
1 5 . As above.
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4(8) AD R ....................................................................................................................................................................................
Published by ePublications@bond, 2002
109
3
ADR Bulletin
Volume 4 | Number 8
3-1-2002
ADR in Brunei Darussalam: the meeting of three
traditions
Ann Black
Recommended Citation
Black, Ann (2002) "ADR in Brunei Darussalam: the meeting of three traditions," ADR Bulletin: Vol. 4: No. 8, Article 2.
Available at: htp://epublications.bond.edu.au/adr/vol4/iss8/2
his Article is brought to you by ePublications@bond. It has been accepted for inclusion in ADR Bulletin by an authorized administrator of
ePublications@bond. For more information, please contact Bond University's Repository Coordinator.
Article 2
Black: ADR in Brunei Darussalam
The ADR B ulletin
Comparative ADR
ADR in Brunei Da russa la m:
the meeting of three tra ditions
Ann Black
Brunei Da russa la m is a n ind ep end ent
M alay Islamic Sultanate w hich is situated on
the northw est corner of Borneo. O utside the
country, it is best know n for its oil and gas
w ealth, and for its Sultan, Hassanal Bolkiah,
w ho ranks as one of the w orld’s w ealthiest
men and is famous for his luxurious palace
and lifestyle.
In this small affluent nation, the processes
used for dispute resolution are as much the
legacy of events and influences from the
past as they are of the contemporary ADR
movement that the w est has been exporting
to Asia. The diverse ethnic mix in Brunei 1
ensures that there w ill be a multiplicity of
culturally preferred w ays of resolving conflict
and disputes. There are, how ever, three
tra d itio ns, ea ch w ith its o w n d istinctive
dispute resolution processes, that continue to
shape and direct dispute resolution in the
Sultanate. These three traditions are that of
the c o mmo n la w , Isla mi c la w a nd
indigenous Bornean beliefs and practices.
Common la w
From the time Brunei became a British
( 2001)
Residency in 1 9 0 5 , the English common
law has played a dominant role, particularly
in disputes arising in the commercial and
b usi ness secto r. Thi s w a s b eca use the
priorities of a colonial g overnment w ere
‘law and order’ and providing security and
certa i nty fo r tra d e a nd co mmerce. The
colonial rulers w ere content to allow the
p e o p le o f Brune i to ma na g e fa mi ly ,
succession and other interpersonal law s in
their ow n w ay.
Although litigation as a dispute resolution
process has been firmly cemented for almost
a century, the numb er of ca ses coming
before the courts in Brunei is comparatively
low . The litigation rate of 1 9 8 per 1 0 ,0 0 0
persons2 is less than that of Japan, w hich is
generally regarded as a less litigious society
than its w estern counterparts. The low rate in
Brune i i s no t b e c a use o f a la c k o f
confidence in the common law courts as
institutions of integ rity, b ut d ue to loca l
cultural factors that bring about settlement in
other w ays.
The vast majority (9 4 per cent) of civil
cases registered in the courts settle prior to
trial, and the introduction of mandatory pretrial conferences for all intermediate and
High Court cases maintains this trend. M ore
significantly, the collectivist nature of Brunei
society means there is an innate resistance
to direct confrontation w ith others and a
general dislike of adversarial processes.
This also has consequences for arbitration.
After the country became a signatory to
the N ew York C onvention, the Arbitration
A ct 1 9 9 4 w a s ena cted to p ro vi d e the
country w ith a leg isla tive fra mew ork for
resolution of civil disputes by arbitration.
The Act does not adopt the United N ations
C o nference o n Interna tio na l Tra d e La w
(UN CITRAL) model law but does not prevent
parties from doing so. It distinguishes in its
p ro vi si o ns b e tw e e n d o me sti c a nd
international arbitrations. The law applied is
that determined by the parties, but more
often than not, it is the law of Brunei; the
language of the arbitration is customarily
English. It allow s for conciliation w here this
ha s b e e n w ri tte n i nto the a rb i tra ti o n
agreement.
A ltho ug h a rb i tra ti o n a g reements a re
contained in 9 0 per cent of contracts in the
c o nstruc ti o n i nd ustry a nd i n a la rg e
percentage of commercial contracts, it has
been estimated that possibly only four to six
d i sp utes a yea r w o uld b e d eci d ed b y
a rb itra tio n a nd three times tha t numb er
w ould threaten to use arbitration as
a me a ns to b ri ng a b o ut
settlement.
➣
4(8) AD R ....................................................................................................................................................................................
Published by ePublications@bond, 2002
107
1
ADR Bulletin, Vol. 4, No. 8 [2002], Art. 2
The ADR B ulletin
➣
‘The tenacity of the
traditional social hierarchy
and its accompanying
rules of behaviour w hich
prioritise respect, loyalty
and mutual co-operation,
mitigates against taking
action against a person
of royal or high social
standing. Settling a dispute
by direct or facilitated
negotiation, or an informal
mediation w here the
intervener is connected
by family, friendship or
business ties to the
disputants, is preferred.’
There are many possible reasons for
the li mi ted ro le fo r a rb i tra ti o n. O ne i s
inadequate know ledge and familiarity w ith
the process generally, and in addition, there
i s o nly a sma ll numb e r o f fi rms w i th
experience in the field.
As mentioned earlier, cultural factors are
also important. For some local Bruneian
businesses and companies, arbitration is
seen as being as rule-bound, inflexible and
adversarial as litig ation. There is added
concern tha t like litig a tion, a rb itra ting a
dispute may impact neg atively on future
commercial dealings. The tenacity of the
tra d i ti o na l so c i a l hi e ra rc hy a nd i ts
accompanying rules of behaviour, w hich
prioritise respect, loyalty and mutual cooperation, mitigates taking action against a
person of royal or hig h social standing .
Settling a dispute by direct or facilitated
negotiation, or an informal mediation w here
the i ntervener i s c o nnec ted b y fa mi ly,
friendship or business ties to the disputants,
is preferred. The latter is possible given the
sma ll p o p ula tio n o f 3 3 0 , 0 0 0 w ith just
2 0 0 , 0 0 0 p e rso ns i n the c a p i ta l a nd
c o mme rc i a l c e ntre — Ba nd a r Se ri
Begaw an. As a result, it is the international
comp a nies op era ting in Brunei tha t a re
more w illing to arbitrate than the local ones.
The limited use of arbitration is consistent
w ith findings in some other Southeast Asian
c o untri e s (e xc lud i ng H o ng Ko ng a nd
Singapore) w here Asia Pacific Economic
C o-operation (APEC ) research has found
that ‘resort to arbitration has not grow n as
rapidly as expected given the grow th in the
numbers of transactions in the region’. 3
Isla mic la w
As Brunei is an Islamic Sultanate, Islamic
law has alw ays played a central role in the
daily lives of the Brunei M alays. Through
the institution of the Kadis Courts, law s on
family, succession and matters of religion
and morality have been applied to M uslims
resident in Brunei throughout the last century.
Since independence, how ever, there has
been a national commitment to ‘making the
Islamic system the most effective judicial
system in the country’ . 4 This ha s mea nt
significant reforms to the religious courts,
w hich have been restructured as Syariah
C ourts, w ith increased jurisdiction. 5 There
108
ha s a lso b een leg isla tive cha ng e in the
a rea s o f fina nce a nd b a nking , 6 fa mily
la w , 7 a d o p ti o n 8 a nd e vi d e nc e . 9 In
a d d i ti o n, the sma ll ro le tha t Isla mi c
arbitration1 0 had been playing in marital
and family disputes has been revitalised by
the Emergency (Islamic Family Law ) O rder
(the O rder). The O rder requires the hakam
or arbitrators to intervene in certain cases of
marital discord, 1 1 to facilitate (if possible) a
reconciliation. W here the hakam consider
this unlikely, they can decide that the parties
are to divorce. This is then referred to the
Sy a ri a h C o urt w he re the d i vo rc e i s
registered and certified. 1 2 In cases of family
disputes, the hakam must be qualified for
the role, a nd (w here p ossib le) b e close
relatives of the husband and w ife having
kno w led g e o f the circumsta nces o f the
case. 1 3
Islamic arbitration is used more w idely in
other M uslim countries, particularly in the
M iddle East, for commercial, administrative
and contractual disputes. Although it gives
a utho rity to the a rb itra to rs to imp o se a
decision, aspects of conciliation (suhl) are
incorporated into the process, so that an
a mi c a b le se ttle me nt i s the p re fe rre d
outcome. G iven the increasing Islamisation
of commercial and administrative practices
throughout Brunei Darussalam, it is likely that
traditional takhim may become an option
for commercial and financial disputes, as
w ell as for family matters.
Tra ditiona l Bornea n
pra ctices a nd beliefs
The third tradition that informs the w ay
d i sp utes a re settled i s the i nd i g eno us
traditional forms of mediation that evolved
o n the i sla nd o f Brunei centuri es a g o ,
before the establishment of courts. In those
earlier times, a ‘ mediated’ outcome that
ma i nta i ned ha rmo ny a nd co -o p era ti o n
betw een its members w as an imperative for
group or village survival. The person w ho,
by tradition, intervened as mediator w as
the hea d ma n, either of the ka mp ong or
village for the M alays or of the longhouse
for Iban and other non-M uslim indigenous
peoples. These forms of mediation w ere,
a nd sti ll a re, rela ti vely i nfo rma l; o ccur
w ithin a short time frame after notification;
are educative in that social norms can
..............................................................................................................................................................
http://epublications.bond.edu.au/adr/vol4/iss8/2
➣
vol 4 no 8, D ecember 2001
2
Black: ADR in Brunei Darussalam
The ADR B ulletin
➣ be articulated; can be coercive; and
any outcome needs to be appropriate for
the community as a w hole, not just for the
disputants.
Today in Brunei, particularly in the more
rural and remote areas w here the complex
ki nshi p a nd ec o no mi c ti es sti ll exi st,
mediations of this type continue. But in the
to w ns w he re so c i a l a nd e c o no mi c
independence and greater anonymity have
rep la c ed fo rmer so c i a l netw o rks, thi s
practice has lessened. How ever, as the
headmen now receive remuneration from
the G o vernment, a nd li a i se w i th the
G overnment in implementing policy at the
lo c a l le ve l, the i r ro le a s c o mmuni ty
med ia tors in the rura l p a rts could a lso
change.
Even w hen mediation by a headman is
no t a n o p ti o n, the va lues a nd ethi c s
underpinning those traditions — including
maintaining social harmony through mutual
obligation and respect, community effort,
co-operation and avoidance of conflict —
are still features of M alay culture. They
favour a non-adversarial form of dispute
resolution. The mindset is to co-operate
rather than to confront, and the assistance
o f a thi rd p a rty a s i nfo rma l med i a to r,
w hether headman, imam, friend or family
member, is culturally conditioned to feel
right. G oing to a law yer, or to court, is an
option w hen all else fails.
means of dispute resolution, cultural and
structura l fa cto rs co mb i ne to ma i nta i n
traditional avenues for this, so far restricting
the
sc o p e
fo r
mo re
w e ste rn,
professionalised mediation. W hether the
i nc re me nta l
mo d e rni sa ti o n
a nd
w esternisa tion in Brunei w ill imp a ct on
culture and tradition in a w ay that lessens
the relational and collective foundations,
seems unlikely. W hile Brunei is adopting
mo d ern tec hno lo g i c a l a d va nc es, i t i s
trying selectively to resist w hat are seen
a s the c o unte r c ultura l fo rc e s o f the
w est, prioritising instead retention of the
‘inherent norms of our ow n internal lifestyle
tha t i s c o lle c ti ve ly p ra c ti c e d b y o ur
society’. 1 4
By rejecting the concept of individualism
on the basis that in the w est ‘it has been
the p rime ca use o f mo ra l d eca d ence,
degradation of social values and cultural
demoralization, disrespect of elders, family
and authority’, 1 5 Brunei is turning to Islam
to enhance its M alay culture and illuminate
its future d irectio n. This mea ns tha t a s
w ell a s streng theni ng the ro le o f the
Sy a ri a h C o urts, a lte rna ti ve me a ns
compatible w ith Islamisation w ill be more
accepted than offerings from the modern
ADR movement. ●
Ann Black is a Senior Lecturer, Faculty of
Law , University of Q ueensland. She can be
contacted at [email protected].
Conclusion
The mixing o f the three tra d itio ns in
Brunei Darussalam has created concurrent
streams of dispute resolution for different
sectors of the society. The common law ’s
legacy of litigation and, to a lesser extent,
a rb i tra ti o n, ha s the co nfi d ence o f the
commercial and investment sector, w here
the level of satisfaction is generally high.
The ro le p la y e d b y Isla mi c la w i s
streng thening , a nd the revita lisa tion of
Islamic arbitration for marriag e disputes
ma y lea d to ta khim b eing extend ed to
commercial and other disputes, as in the
M iddle East. M ost disputes occur in local
communities and continue to be resolved
there through informal means.
Although Brunei’s M alays, Chinese and
the ind ig enous non-M a la ys a ll sha re a
p reference for informa l a nd consensua l
( 2001)
Endnotes
1 . The nation is also home to almost
3 4 0 ,0 0 0 people, w ho are a mix of many
i nd i g eno us ethni c g ro up s, w i th Brunei
M alays in the majority, and a substantial
C hinese community w hich dominates the
business and commercial sector. C hinese
a lso a re w ell rep resented in the leg a l
profession. There are smaller numbers of
Indians, and expatriates from Australia and
Euro p e w ho a re emp lo yed ma i nly i n
professional areas, and others w ho are
given temporary w ork visas for labouring
and construction w ork.
2 . Based on court figures for 1 9 9 9 .
3 . A PEC Re p o rt o n Inte rna ti o na l
C o mme rc i a l Di sp ute s a t < w w w .
arbitration.co.nz/ apec/ introduction.htm>.
4 . Zain bin Haji Serudin, M inister for
Religious Affairs ‘Syariah law for Brunei’
(1 9 9 5 ) June Borneo Bulletin 1 4 .
5 . Emerg ency (Syariah C ourts) O rder
1999.
6 . Isla mi c Ba nki ng A c t 1 9 9 2 ;
Perbadanan Tabung Amanah Islam Brunei
Act 1 9 9 1 .
7 . Emergency (Islamic Family Law ) O rder
1999.
8 . Islamic Adoption of C hildren O rder
2001.
9 . Sya ri a h C o urts Evi d enc e O rd er
2001.
1 0 . The process is takhim and it w as
d erived from the Prop het M oha mma d ’ s
practices.
1 1 . Emerg ency (Isla mic Fa mily La w )
O rder 1 9 9 9 ss 4 2 , 4 3 (2 ) and 4 3 (3 ).
1 2 . Emerg ency (Isla mic Fa mily La w )
O rder 1 9 9 9 s 4 3 (7 ).
1 3 . Emerg ency (Isla mic Fa mily La w )
O rd er 1 9 9 9 s 4 3 (3 ). The o rd er uses
the term qarabah qarib w hich means a
fa mily memb er b a sed o n la w ful b lo o d
lineage.
1 4 . Abdul Latif bin Haji Ibrahim ‘Cultural
and counter-cultural forces in contemporary
Brunei Darussalam’ in Thumboo E Cultures
in ASEAN and the 2 1 st Century University
of Singapore Press Singapore 1 9 9 6 p 2 3 .
1 5 . As above.
C O N F E R E N C E S
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