Constitutionalism in Brunei Darussalam. pptx
Constitutionalism in Brunei
Darussalam: A Critical Survey
B.A.Hussainmiya
Historical Studies
Universiti Brunei Darussalam
1
What is a Constitution?
• That which Constitutes- A Broader term with
several semantic Connotations
• But in political parlance • A framework for legitimizing the State by
regulating instruments of governance and
institutions.
• Brunei’s case is a particularly unique one in
the way it has evolved as we witness today
2
Types of Constitution
Broadly
Written
• Eg:, England, the U.S.A., India and Sri Lanka
Unwritten
• Eg:, England and Israel: Conventions and Traditions
and Common acceptance are the norms
• Ideal Constitutional States
• Among Others, The U.S.A and England
3
Evolution of Constitutions
• England- A long process in History starting
from the Magna Carta of 1215; Increasingly
lessening the royal absolutism and broadening
the people’s participation in the decision
making process
• India and Sri Lanka: A Colonial Construct- BUTUndergoing transformation or revisions to suit
people in power
4
The Early Malay Constitutions:
• 1895: Johor
• 1911: Trengganu
• 1948 : Every Malayan State adopted
Constitutions as part of the Federation of Malays
Schemes
• 1957: The Malaya Constitution (following Reid
Commission) more liberal than the previous ones
• Sarawak Constitution in 1955
5
Origins of the Brunei Constitution
Did Brunei have a Constitution in the pre-British
period?
• See, Sultan Hashim Jalilul Alam’s letter to the
Colonial Office in 1885.
• Brunei idolised an ‘ancient Constitution’ , so to
say, largely determined by land rights, viz;
Kerajaan, Kuripan
• R. H. Hickling’s mission in 1954 to Brunei was to
determine ‘the [existing]Constitutional’ practice
in Brunei
6
Brunei’s Constitution- a colonial
construct?
• When did the need for a written Constitution for Brunei
arise? An historical imperative
• The 1905-06 Brunei-British Agreement gave very early a
new meaning for a creative ‘constitutional’ status for the
Sultan and the palace. He to abide by the Resident’s advice
in all matters accepting ‘Mohammedan’ religion
• The Resident’s rule in Brunei was smooth except for small
hiccups in the latter part of Sultan Ahmad Tajuddin’s rule.
(r.1925-1950)
• The accession to throne by Al Marhum Sultan Haji Omar Ali
Saifuddin in 1950 was a turning point
7
A gift by the Sultan or a British invention?
• Which came first, the chicken or the Egg?
• Nationalist historians may argue it was a gift from Sultan
Omar. Is it true? Yes and No
• But the idea to launch a Constitution was gathering
momentum in the British circles at least since 1951
• The Sultan’s assertive behavior vis-à-vis the Resident’s
advisory authority precipitated the need for a Constitution
• But Brunei was a British protected State and not a Colony,
therefore only the Sultan can grant a Constitution
• The 1890 FJA (Foreign Jurisdiction Act) did not extend to a
sovereign Brunei
8
Rationale for the British to introduce a
Constitution
• The Existing Brunei-British Agreement was becoming a dead letter
• To reform the existing and outdated State Council
• Difficult to work with the conservative palace Pengirans sitting on
the State Council
• Resident’s troubles in dealing with an assertive and a recalcitrant
Sultan
• To bring Brunei in line with similar political developments in the
three British-Borneo territories
• To follow the British democratic ideals through a separation of
powers between executive, legislative and legal branches of the
Government
9
The 1953 announcement by the Sultan
The initial planning stage
• The Hickling Mission in late 1954
• Brunei Malay Constitutional Committee or
Tujuh Serangkai : Travelling round Malaya to
prepare the Report from local point of View
• Two versions on opposing but mutually
complementary objectives. See my latest Book
10
The Complications and Implications of the
Constitution Making
• Conflict of approaches between the British and indigenous
expectations
• The British wanted to introduce institutions of governance ‘a la
Barat-West’ and to Bring Brunei into the proposed North-Borneo
Federation
• The Sultan and Party preferred a model Malayan type Constitution
with authority invested on a local Menteri Besar
• The British wanted to retain the post of a High Commissioner with
powers reserved in Finace, Defence and Public administration
• The Seasaw of negotiations between the Colonial authorities and
Brunei delegations- The 1957, 1958 and 1959 talks between the
Brunei delegations and the Colonial Office
11
What complicated the Process further?
• The emergence of a third power- The Partai Rakyat Brunei in 1956
• Fitted in very well with the British schemes to devolve power to the
people’s representatives through a legislature and a an executive by
diluting the monarchic power
• The defiant attitude of Al Marhum Sultan Omar as the rightful Monarch
to determine the political future of his country
• Sheikh Azahari’s wish to repeat the Malayan model of becoming Brunei’s
Tunku Abdul Rahman--to lead a party in power, win the elections and to
form a cabinet form of Government with him as helm in the apex of
power as the Prime Minister
• The intransigence of the palace party
• Covert operations of the Shell company executives—to form a King’s
Party
12
The Course of the Negotiations
• The palace visits by the local British authorities- The
Residents and at times by the British High
Commissioner- Sir Anthony Abell based in Sarawak
• The Sultan and his advisers talking with the Colonial
Office Pundits
• Occasional State visits of the British dignitaries to
convince the Sultan
• The Partai Rakyat’s unitary visits to London
• The Reticence of Colonial Authorities to conduct direct
dealings with the Azahari’s delegation
13
The impasse and deadlock- 1958 The Annus
Horribilis
• The original proposals watered down by the
District Councils representatives
• Failure to hold DC elections on secret ballot as
promised by the Sultan in London
• The PRB’s rejection of the Elections too
• The main promoter of the ConstitutionAnthony Abell becomes disheartened
14
Views of three British Key Players
• Eugene Melville [if sultan’s motive, as Gilbert and
Abell had imputed, was] ‘to gain power vis–à–
vis the people’ then the British were helpless, and
since it has caused a deadlock it would be
advisable to leave the sultan alone. On the other
hand, “if the sultan intended to gain power for
himself vis–à–vis Her Majesty's government, then
there is still some room for negotiation and
hope for settlement.”
15
Anthony Abell’s desperation
• “It has been hard and so far unrewarding
work. The ignorance and prejudice are of
depth and darkness which are never
encountered in Sarawak and unless the ballot
box can produce an entirely new type of
politician unlike any we have so far seen, I
have great doubts of Brunei’s capacity to make
much progress in the political or
administrative field.”
16
Sir Dennis White, the incoming Resident in
1958
• “The constitution was “a Western concept
which he [the sultan] was persuaded to accept
and, unless he can so manipulate negotiations
that any failure to implement a Constitution
can be blamed on the British government, he
is committed to granting one.”
17
Promulgation of the Constitution
• 29 September 1959
• A new Regency and Succession Enactment
• A new Brunei-British Agreement abrogating
the old one-the 1905-1906 Agreement
18
The Menteri Besar
• General administrative duties were to be
taken over by a mentri besar, who would hold
office according to the sultan’s pleasure.
Under the mentri besar were to be a state
secretary, state financial officer (replacing the
state treasurer), and attorney general
(replacing the legal adviser.)
19
The COUNCILS
• Provision was made for the hierarchy of
government, with His Highness The Sultan and
Yang Di-Pertuan as the supreme executive
authority of the land, followed by a privy
council (majlis mesyuarat di-raja), executive
council (majlis mesyuarat kerajaan, later
known as the council of ministers, majlis
mesyuarat mentri-mentri), and a legislative
council (majlis mesyuarat negri).
20
The Privy Council
• The function of the privy council was mainly to
advise the sultan in the exercise of his
prerogative of mercy, in matters relating to the
amendment of the constitution, and in
conferring Malay customary honours and
titles, etc.
21
The Legislative Council
• The legislative council, the principal law-making
body in the country, was to have eight ex-officio
members—seven of them being the same as on the
executive council, together with another official to
be designated by the sultan. In addition there
would be six official members, three unofficial
members nominated by the sultan, and sixteen
elected members chosen from the district
councillors. Thus the unofficial members
outnumbered the official members by one vote.
22
The Executive Council
• The executive council, presided over by the sultan, was to be the most important
body in the state, as all matters of policy would be referred to it. Its functions would
include the approval of the annual estimates and supplementary estimates for
presentation in the legislative council. It could be summoned only by the sultan and
might consider only matters tabled by the sultan and the mentri besar. The sultan, in
the exercise of his powers and duties in the state, would be obliged to consult the
council, unless the law required him to consult another authority. He might disregard
the council’s advice, provided he explained in writing his reasons for doing so. The
council was to include seven ex-officio members—the two wazirs (duli pengiran
bendahara and duli pengiran pemancha), mentri besar, state secretary, attorney
general, state financial officer, and the religious advisor. Other members were to be
the high commissioner and seven unofficial members, six of whom had to be elected
members of the legislative council and one a nominated member of that council. The
council was thus set up to have a fine balance between official members and
unofficial members, leaving the sultan or the high commissioner to cast the decisive
vote on matters in dispute.
23
Other Bodies
• a public service commission, with control of the public service being
vested in the sultan, who would be required to act in accordance with
the recommendations of the commission. In addition, however, a
Brunei Overseas Officers Agreement, 1959, gave control to Her
Majesty’s government over appointments to certain “key posts” in
the state. These key posts included the state financial officer, attorney
general, state engineer, state education officer, chief police officer,
state medical officer, and officer-in-charge of the special branch. The
agreement safeguarded the terms and conditions of service, including
pension rights, of all British overseas officers who served in the
Brunei administration, and provided for payment of appropriate
compensation if the services of overseas officers were terminated on
other than specified grounds.
24
Other Provisions
• In addition to the new British–Brunei treaty and
the Brunei Overseas Officers Agreement, 1959,
another important agreement came into effect.
This was the Brunei and Sarawak
Administration Separation Agreement, 1959,
which revoked the agreement of 1948 by which
Brunei had been administered by Sarawakbased British officials on secondment.
•
25
Darussalam: A Critical Survey
B.A.Hussainmiya
Historical Studies
Universiti Brunei Darussalam
1
What is a Constitution?
• That which Constitutes- A Broader term with
several semantic Connotations
• But in political parlance • A framework for legitimizing the State by
regulating instruments of governance and
institutions.
• Brunei’s case is a particularly unique one in
the way it has evolved as we witness today
2
Types of Constitution
Broadly
Written
• Eg:, England, the U.S.A., India and Sri Lanka
Unwritten
• Eg:, England and Israel: Conventions and Traditions
and Common acceptance are the norms
• Ideal Constitutional States
• Among Others, The U.S.A and England
3
Evolution of Constitutions
• England- A long process in History starting
from the Magna Carta of 1215; Increasingly
lessening the royal absolutism and broadening
the people’s participation in the decision
making process
• India and Sri Lanka: A Colonial Construct- BUTUndergoing transformation or revisions to suit
people in power
4
The Early Malay Constitutions:
• 1895: Johor
• 1911: Trengganu
• 1948 : Every Malayan State adopted
Constitutions as part of the Federation of Malays
Schemes
• 1957: The Malaya Constitution (following Reid
Commission) more liberal than the previous ones
• Sarawak Constitution in 1955
5
Origins of the Brunei Constitution
Did Brunei have a Constitution in the pre-British
period?
• See, Sultan Hashim Jalilul Alam’s letter to the
Colonial Office in 1885.
• Brunei idolised an ‘ancient Constitution’ , so to
say, largely determined by land rights, viz;
Kerajaan, Kuripan
• R. H. Hickling’s mission in 1954 to Brunei was to
determine ‘the [existing]Constitutional’ practice
in Brunei
6
Brunei’s Constitution- a colonial
construct?
• When did the need for a written Constitution for Brunei
arise? An historical imperative
• The 1905-06 Brunei-British Agreement gave very early a
new meaning for a creative ‘constitutional’ status for the
Sultan and the palace. He to abide by the Resident’s advice
in all matters accepting ‘Mohammedan’ religion
• The Resident’s rule in Brunei was smooth except for small
hiccups in the latter part of Sultan Ahmad Tajuddin’s rule.
(r.1925-1950)
• The accession to throne by Al Marhum Sultan Haji Omar Ali
Saifuddin in 1950 was a turning point
7
A gift by the Sultan or a British invention?
• Which came first, the chicken or the Egg?
• Nationalist historians may argue it was a gift from Sultan
Omar. Is it true? Yes and No
• But the idea to launch a Constitution was gathering
momentum in the British circles at least since 1951
• The Sultan’s assertive behavior vis-à-vis the Resident’s
advisory authority precipitated the need for a Constitution
• But Brunei was a British protected State and not a Colony,
therefore only the Sultan can grant a Constitution
• The 1890 FJA (Foreign Jurisdiction Act) did not extend to a
sovereign Brunei
8
Rationale for the British to introduce a
Constitution
• The Existing Brunei-British Agreement was becoming a dead letter
• To reform the existing and outdated State Council
• Difficult to work with the conservative palace Pengirans sitting on
the State Council
• Resident’s troubles in dealing with an assertive and a recalcitrant
Sultan
• To bring Brunei in line with similar political developments in the
three British-Borneo territories
• To follow the British democratic ideals through a separation of
powers between executive, legislative and legal branches of the
Government
9
The 1953 announcement by the Sultan
The initial planning stage
• The Hickling Mission in late 1954
• Brunei Malay Constitutional Committee or
Tujuh Serangkai : Travelling round Malaya to
prepare the Report from local point of View
• Two versions on opposing but mutually
complementary objectives. See my latest Book
10
The Complications and Implications of the
Constitution Making
• Conflict of approaches between the British and indigenous
expectations
• The British wanted to introduce institutions of governance ‘a la
Barat-West’ and to Bring Brunei into the proposed North-Borneo
Federation
• The Sultan and Party preferred a model Malayan type Constitution
with authority invested on a local Menteri Besar
• The British wanted to retain the post of a High Commissioner with
powers reserved in Finace, Defence and Public administration
• The Seasaw of negotiations between the Colonial authorities and
Brunei delegations- The 1957, 1958 and 1959 talks between the
Brunei delegations and the Colonial Office
11
What complicated the Process further?
• The emergence of a third power- The Partai Rakyat Brunei in 1956
• Fitted in very well with the British schemes to devolve power to the
people’s representatives through a legislature and a an executive by
diluting the monarchic power
• The defiant attitude of Al Marhum Sultan Omar as the rightful Monarch
to determine the political future of his country
• Sheikh Azahari’s wish to repeat the Malayan model of becoming Brunei’s
Tunku Abdul Rahman--to lead a party in power, win the elections and to
form a cabinet form of Government with him as helm in the apex of
power as the Prime Minister
• The intransigence of the palace party
• Covert operations of the Shell company executives—to form a King’s
Party
12
The Course of the Negotiations
• The palace visits by the local British authorities- The
Residents and at times by the British High
Commissioner- Sir Anthony Abell based in Sarawak
• The Sultan and his advisers talking with the Colonial
Office Pundits
• Occasional State visits of the British dignitaries to
convince the Sultan
• The Partai Rakyat’s unitary visits to London
• The Reticence of Colonial Authorities to conduct direct
dealings with the Azahari’s delegation
13
The impasse and deadlock- 1958 The Annus
Horribilis
• The original proposals watered down by the
District Councils representatives
• Failure to hold DC elections on secret ballot as
promised by the Sultan in London
• The PRB’s rejection of the Elections too
• The main promoter of the ConstitutionAnthony Abell becomes disheartened
14
Views of three British Key Players
• Eugene Melville [if sultan’s motive, as Gilbert and
Abell had imputed, was] ‘to gain power vis–à–
vis the people’ then the British were helpless, and
since it has caused a deadlock it would be
advisable to leave the sultan alone. On the other
hand, “if the sultan intended to gain power for
himself vis–à–vis Her Majesty's government, then
there is still some room for negotiation and
hope for settlement.”
15
Anthony Abell’s desperation
• “It has been hard and so far unrewarding
work. The ignorance and prejudice are of
depth and darkness which are never
encountered in Sarawak and unless the ballot
box can produce an entirely new type of
politician unlike any we have so far seen, I
have great doubts of Brunei’s capacity to make
much progress in the political or
administrative field.”
16
Sir Dennis White, the incoming Resident in
1958
• “The constitution was “a Western concept
which he [the sultan] was persuaded to accept
and, unless he can so manipulate negotiations
that any failure to implement a Constitution
can be blamed on the British government, he
is committed to granting one.”
17
Promulgation of the Constitution
• 29 September 1959
• A new Regency and Succession Enactment
• A new Brunei-British Agreement abrogating
the old one-the 1905-1906 Agreement
18
The Menteri Besar
• General administrative duties were to be
taken over by a mentri besar, who would hold
office according to the sultan’s pleasure.
Under the mentri besar were to be a state
secretary, state financial officer (replacing the
state treasurer), and attorney general
(replacing the legal adviser.)
19
The COUNCILS
• Provision was made for the hierarchy of
government, with His Highness The Sultan and
Yang Di-Pertuan as the supreme executive
authority of the land, followed by a privy
council (majlis mesyuarat di-raja), executive
council (majlis mesyuarat kerajaan, later
known as the council of ministers, majlis
mesyuarat mentri-mentri), and a legislative
council (majlis mesyuarat negri).
20
The Privy Council
• The function of the privy council was mainly to
advise the sultan in the exercise of his
prerogative of mercy, in matters relating to the
amendment of the constitution, and in
conferring Malay customary honours and
titles, etc.
21
The Legislative Council
• The legislative council, the principal law-making
body in the country, was to have eight ex-officio
members—seven of them being the same as on the
executive council, together with another official to
be designated by the sultan. In addition there
would be six official members, three unofficial
members nominated by the sultan, and sixteen
elected members chosen from the district
councillors. Thus the unofficial members
outnumbered the official members by one vote.
22
The Executive Council
• The executive council, presided over by the sultan, was to be the most important
body in the state, as all matters of policy would be referred to it. Its functions would
include the approval of the annual estimates and supplementary estimates for
presentation in the legislative council. It could be summoned only by the sultan and
might consider only matters tabled by the sultan and the mentri besar. The sultan, in
the exercise of his powers and duties in the state, would be obliged to consult the
council, unless the law required him to consult another authority. He might disregard
the council’s advice, provided he explained in writing his reasons for doing so. The
council was to include seven ex-officio members—the two wazirs (duli pengiran
bendahara and duli pengiran pemancha), mentri besar, state secretary, attorney
general, state financial officer, and the religious advisor. Other members were to be
the high commissioner and seven unofficial members, six of whom had to be elected
members of the legislative council and one a nominated member of that council. The
council was thus set up to have a fine balance between official members and
unofficial members, leaving the sultan or the high commissioner to cast the decisive
vote on matters in dispute.
23
Other Bodies
• a public service commission, with control of the public service being
vested in the sultan, who would be required to act in accordance with
the recommendations of the commission. In addition, however, a
Brunei Overseas Officers Agreement, 1959, gave control to Her
Majesty’s government over appointments to certain “key posts” in
the state. These key posts included the state financial officer, attorney
general, state engineer, state education officer, chief police officer,
state medical officer, and officer-in-charge of the special branch. The
agreement safeguarded the terms and conditions of service, including
pension rights, of all British overseas officers who served in the
Brunei administration, and provided for payment of appropriate
compensation if the services of overseas officers were terminated on
other than specified grounds.
24
Other Provisions
• In addition to the new British–Brunei treaty and
the Brunei Overseas Officers Agreement, 1959,
another important agreement came into effect.
This was the Brunei and Sarawak
Administration Separation Agreement, 1959,
which revoked the agreement of 1948 by which
Brunei had been administered by Sarawakbased British officials on secondment.
•
25