ADR Bulletin
ADR Bulletin
Volume 4 | Number 8
Article 2
3-1-2002
ADR in Brunei Darussalam: the meeting of three
traditions
Ann Black
his Article is brought to you byePublications@bond. It has been accepted for inclusion in ADR Bulletin by an authorized administrator of ePublications@bond. For more information, please contactBond University's Repository Coordinator.
Recommended Citation
Black, Ann (2002) "ADR in Brunei Darussalam: the meeting of three traditions,"ADR Bulletin: Vol. 4: No. 8, Article 2.
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 leg acy 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 Brunei1 ensures that there w ill be a multiplicity of culturally preferred w ays of resolving conflict a nd d isp utes. There a re, 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 l a w , Isl a mi c l a w a nd indigenous Bornean beliefs and practices.
Com m on la w
From the time Brunei b eca me a British
Residency in 1 9 0 5 , the Eng lish common law has played a dominant role, particularly in disputes arising in the commercial and b usi ness sec to r. Thi s w a s b ec a use the p riorities of a colonia l g overnment w ere ‘law and order’ and providing security and certa i nty fo r tra d e a nd co mmerce. The colonia l rulers w ere content to a llow the p e o p l e o f Brune i to ma na g e fa mi l y , 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 o f ca ses co ming 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 l a c k o f confidence in the common law courts as institutio ns o f integ rity, b ut d ue to lo ca 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 pre-trial 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 co untry w ith a leg isla tive fra mew o rk fo r resolution of civil disputes by arbitration. The Act does not adopt the United N ations C o nference o n Interna ti o 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 tha t d etermined b y the p a rties, b ut more often than not, it is the law of Brunei; the lang uag e 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 l a 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 ec i d ed b y a rb i tra ti o n a nd three ti mes tha t numb er w ould threaten to use arbitration as a me a ns to b ri ng a b o ut settlement.
The ADR B ulletin
(2001) 4(8) AD R ... 11 00 77
C o m p a r a t i v e A D R
ADR in Brunei Da russa la m:
the meeting of three tra ditions
Ann Black
➣
1
Black: ADR in Brunei Darussalam
‘The tenacity of the
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 nl y a sma l l numb e r o f fi rms w i th experience in the field.
As mentioned earlier, cultural factors are a lso imp orta nt. For some loca l Bruneia n businesses and companies, arbitration is seen as being as rule-bound, inflexible and a d versa ria l a s litig a tion. There is a d d ed concern tha t like litig a tion, a rb itra ting a d isp ute ma y imp a ct neg a tively on future commercial dealing s. 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 p rioritise resp ect, loya lty a nd mutua l co-operation, mitigates taking action against a p erson of roya l or hig h socia l sta nd ing . 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 ti o n o f 3 3 0 , 0 0 0 w i th j ust 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 co mp a nies o p 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 l ud i ng H o ng Ko ng a nd Sing apore) w here Asia Pacific Economic C o-op era tion (APEC ) resea rch ha s 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 m ic 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 Isla mic system the most effective jud icia l system in the co untry’ .4 This ha s mea nt sig nificant reforms to the relig ious courts, w hich have been restructured as Syariah C ourts, w ith increased jurisdiction.5 There
ha s a lso b een leg isla tive cha ng e in the a rea s o f fi na nce a nd b a nki ng ,6 fa mi ly l a w ,7 a d o p ti o n8 a nd e vi d e nc e .9 In a d d i ti o n, the sma l l ro l e tha t Isl a 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 ci rcumsta 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 ri ty to the a rb i tra to rs to i mp o se a decision, aspects of conciliation (suhl) are incorporated into the process, so that an a mi c a b l e se ttl e 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 c enturi es a g o , before the establishment of courts. In those ea rlier times, a ‘ med ia ted ’ outcome tha t ma i nta i ned ha rmo ny a nd c o -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
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 e c o no mi c ti e s sti ll e xi 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. H ow ever, as the headmen now receive remuneration from the G o ve rnme nt, a nd li a i se w i th the G overnment in implementing policy at the l o c a l l e ve l , the i r ro l e a s c o mmuni ty med ia to rs in the rura l p a rts co uld a lso change.
Even w hen mediation by a headman is no t a n o p ti o n, the va lue s a nd e thi c s underpinning those traditions — including maintaining social harmony through mutual obligation and respect, community effort, co-operation and avoidance of conflict — a re still fea tures of M a la y culture. They favour a non-adversarial form of dispute resolution. The mind set is to co-op era te 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.
Conclusion
The mi xi ng o f the three tra d i ti o ns i n 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 c o nfi d enc e o f the commercial and investment sector, w here the level of satisfaction is generally high. The ro l e p l a y e d b y Isl a mi c l a w i s streng thening , a nd the revita lisa tio n o f Isla mic a rb itra tion for ma rria g e d isp utes 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, C hinese and the ind ig eno us no n-M a la ys a ll sha re a p reference for informa l a nd consensua l
means of dispute resolution, cultural and struc tura l fa c to rs c o 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 tio n in Brunei w ill imp a ct o n 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 ul tura 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 l l e c ti ve l y 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 ri me 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 i ts future d i recti o n. Thi s mea ns tha t a s w e ll a s stre ng the ni ng the ro le o f the Sy a ri a h C o urts, a l te 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].
Endnotes
1 . The na tion is a lso home to a lmost 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 i n the leg a l profession. There are smaller numbers of Indians, and expatriates from Australia and Euro p e w ho a re e mp lo y e d ma i nly i n p rofessiona l a rea s, a nd others w ho a re 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 D i 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 .
7 . Emergency (Islamic Family Law ) O rder
1 9 9 9 .
8 . Islamic Adoption of C hildren O rder
2 0 0 1 .
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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