The Committees towards the Implementation of Islamic laws in

In executing the full implementation of Islamic laws in Brunei, the MUIB has established two important Committees namely the Committee on the Modification of

195 _{According to the Declaration of Independence as proclaimed by HM the Sultan on the eve of}

independence on 31st _{December 1983 at Padang Sir Muda Omar Ali Saifuddien, Bandar Seri Begawan} 196 _{Melayu Islam Beraja, accessed 5}th _{October 2012, http://en.wikipedia.org/wiki/Melayu_Islam_Beraja,} 197 _{Hj Nabil Daraina Badaruddin, Challenges to Legal Education in a Changing Landscape, accessed 02}nd

October, 2012, http://www.aseanlawassociation.org/docs/w3_brunei.pdf,

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Brunei Laws in accordance with Hukum Syara’ (Jawatankuasa Mensesuaikan Undang- Undang Brunei Dengan Kehendak Ugama Islam), and the Committee on the Drafting of

Islamic Law (Jawatankuasa Penggubalan Undang-Undang Islam).199

The Committee on the Modification of Brunei Laws in accordance with Hukum Syara’

The Committee on the Modification of Brunei Laws in accordance with Hukum Syara’ was created in 1988 to examine all the existing laws in Brunei and plays a number of important roles in carrying out works towards the enactment of Islamic law. Initially, it was headed by the Chief Kadhi assisted only by a few members including those from the

Attorney General Chambers. At present the Committee is comprised of a President,200

Vice-president201 and a prescribed number of others202 appointed on the recommendation

of the MUIB.203 _{Specifically, this Committee is to examine all the Brunei legislation in}

practice and to highlight whether or not they are in contradiction with Syariah injunctions, wholly or partly. Should any of them be found to be contrary to Syariah, an amendment would be proposed or if necessary a new draft law would be prepared based on Syariah tenets. Accordingly, all the drafts would be passed to MUIB for perusal and

199 _{Author’s own translation}

200 _{According to the MUIB, the president of the said committee shall be a holder of the rank of Deputy}

Minister of Ministry of Religious Affairs (MORA) position and currently it is occupied by Pg DP Hj Bahrom Pg Hj Bahar

201 _{Pehin Siraja Khatib Dato Seri Setia (PSKDPSS) Ustaz Hj Yahya Hj Ibrahim}

202 _{At this time, seven other members were part of the Committee including Deputy Mufti, Islamic legal}

Expert, representatives from AGC, High magistrate Court Judge, Chief Syar’ie Prosecutor, Chief Registrar of Syariah Court Appellate.

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onward submission to His Majesty through the Attorney General for final approval and enactment.204

As discussed earlier, given the long history of being a British Empire’s Protectorate prior to its independence in 1984, the major Acts of Brunei legislation are mainly based on English law and English Statutes. Currently, approximately more than 200 Acts are still in place, which contain constitutional, civil, criminal, fiscal, personal, procedural and administrative laws and are applicable to both Muslims and non-Muslims. Since its formation the Committee has been thoroughly analysing about 170 Acts and has

revealed that about one-fifth of the Acts205 contain provisions that are incompatible with

the requirement of the Syariah.206 To bring those acts in conformity with Syariah, an

Islamization process then should be performed by the Committee to suggest replacements for those ‘un-Islamic’ provisions or Acts. As for those Acts which are not contrary to Syariah principles, they are retained without amendment and continue to serve as prevailing legislation. There are also some Syariah non-compliant laws that are

maintained for the purposes of non-Muslims’ use such as the Banking Act (Cap. 95).

Accordingly, as and when required, the Committee also has authority to draft new Syariah laws. This has led the formation of another Committee specifically designed to prepare laws drafted upon Syariah principles, beginning with the work to draft a comprehensive Islamic Family Law for the Muslim community in Brunei.

204 _{DSS Anwarullah Safiullah, “Islamization of Brunei Darussalam Law”, Sejarah Penubuhan Mahkamah} Syariah Negara Brunei Darussalam (A History of the Institution of Syariah Courts of Brunei), (Brunei: Jabatan Kehakiman Syariah, 2005), 152

205 _{As the work of law islamization is still on-going process, the author prefers not to state the precise total}

number even though according to Anwarullah Shafiullah in Shariah Laws: Implementation and

harmonization (See footnote170), the Committee found about 39 laws to be partly non-Syariah compliance. 206 _{It includes whether they are wholly or partly in contrary to Syariah principles}

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The Committee on the Drafting of Islamic Law

The Committee on the Drafting of Islamic Law was primarily in charged with preparing drafts of family laws based on Syariah tenets that are to be administered by the Syariah Courts. It was set up in 1995 by the MUIB with the consent of His Majesty the Sultan and is chaired by the first local Islamic Legal Expert.207 The initial duty of the Committee was to draft a more organized and comprehensive Islamic family legislation to meet the needs of modern Muslim marriages and family matters of Bruneians. Over time, the role of the Committee has been effectively extended to enact other substantive and procedural Syariah laws in other matters in keeping with the evolving role of the Syariah courts since 1998, when they were first established to replace the Kadhi’s courts.

This Committee, as it presently operates has ten members comprising government legal professionals and representatives from private law firms chaired by the High

Syariah Court Judge208 and assisted by another judge of the same court.209 All the

Committee members210 are appointed by the MUIB with the consent of His Majesty the

Sultan. In making changes in the existing laws, reference shall be made by following the principles of the Syafi’i School of Islamic law. However, the Committee can depart from this and may resort to other Schools of Islamic interpretation provided there is no lead found in the school of Syafi’i or if the Committee considers the following of the tenets of the Syafi’i School of Islamic law to be contrary to the public interest. Once a draft is

207 _{The late DPSS Prof. Dr. Hj Mahmud Saedon Othman}

208 _{Pehin Orang Kaya Seri Utama Dato Paduka Seri Setia (POKSUDPSS) Hj Salim Hj Besar} 209 _{Dato Seri Setia (DSS) Hj Metussin bin Haji Baki}

210 _{Other members include Director of Syariah Affairs, Subordinate Syariah Court Judge, Registrar of}

Marriage, Divorce, Revocation and Reconciliation for Muslim, Director of UPI and representatives from Attorney General Chambers and also private law firm.

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completed, it has to go through a pre-approval stage (like that in the Islamization of laws process) such as a perusal by the MUIB followed by the consent of His Majesty the Sultan and finalisation by Attorney General Chambers before it passes for implementation.