| The Old Brunei 'Constitution'
It was true that the State Council formed in 1907 did
revive the legacy of a traditional royal consultative
council. The 19th century British sources refer to several
documents signed under the aegis of the old Council and an
occasional list of its members indicates that its
composition was not fixed, at times excluding some of them.
A modern authority on Brunei, DE Brown, opines that " there
was a conception of a [State] council, but it appears to me
to have been ill-defined either in theory or in practice."
But the new Council certainly differed from the old in
significant ways as will be explained below.
So what was the constitutional basis and powers of the
old Council? Which was the (traditional) constitution of
Brunei which McArthur referred to in 1904? Even before the
1959 Constitution was introduced, a leading British legal
authority, R. Hugh Hickling acknowledged the fact that the
Brunei Government had its own constitutional theory and
practice of old vintage, a fact borne out by the title of
his special report prepared in 1955.
Such opinions were based on historical evidence throwing
light on Brunei polity from time immemorial as conducted in
accordance with a traditional 'Constitution', albeit an
unwritten one. Brunei practiced a definitive form of
Government based on Malay Islamic Monarchy, although only in
1959 in the preamble of the first written Brunei
Constitution that the slogan entered official State
vocabulary.
Way back in 1599, an authentic Spanish account of Brunei
delineated details of the customs and traditions that formed
the core of Brunei government that practiced Hukum Shar'a,
the Islamic form of law. The archetypal Melakan legal code -
Undang-undang Melaka - drawn up during the heydays of the
Melakan empire in the 15th century, also gave rise to
Brunei's own legal codes known as the Hukum Kanun Brunei, or
Brunei Customary Laws relating to rules for conduct of the
State and persons. In 1881, Brunei Sultan Abdul Mumin sent a
special envoy, Pengiran Bendahara Anak Besar Muhammad to
meet the British Consul General CC Leys in Labuan to explain
the Brunei 'Constitution' dealing with the territorial and
personal administration in vogue in the Sultanate.
Indeed when Sultan Hashim Jalilul Alam agreed to accept a
British adviser, he must have hoped that the traditional
Brunei 'Constitution' would safeguard Brunei's interests. He
was also the real hero of Brunei who saved it for posterity
by his pragmatism to accept British intervention as much as
McArthur advocated it. But Sultan Hashim died in May 1906
soon after the Agreement was signed. And it was up to the
incoming administration to make the best of the existing
laws and institutions and the State Council was the best
instrument they had to add, amend or cancel them.
As such the State Council formed under the British
administration went beyond the principle of consultation.
The major difference was in the presence of a foreign
adviser - a most powerful one at that - during the
proceedings of the Council. In any case, as it was meant to
soothe the Resident administering. Whereas in the
traditional council(s) the Pengiran Bendahara or other
leading local potentates guided the proceedings invoking the
Sultan's pleasure, now the initiative to summon and to
conduct the sessions lay solely in the hands of the
Resident. It may be useful to bear in mind also that already
in the neighbouring Sarawak there existed a State Council,
formed on 8 September 1867 in Bintulu originally known as
the Sarawak General Council that consisted of 21 members
made up of 6 British Officers and 16 nominated leaders of
local communities with Rajah Brooke presiding. It was later
named as Council Negeri in 1903. Probably Brunei's example
was also one factor that induced Sarawak Rajah to hold
Council.
Functions of the Council
The actual functions of the SC had never been defined, as
much as the role and functions of the Resident himself. Yet
in Brunei, the British found in the SC a most convenient
instrument to 'manufacture consensus' among the ruling elite
for major decisions pertaining to the running of the State.
It was the Resident who fixed the agenda, and even using
coercive powers to push through legislation. In the SC, all
the actions of the British Resident were justified and
legitimised in the name of the Sultan, the supreme and
sovereign ruler of Brunei.
All the decisions thus taken in the Council were in the
name of the Sultan and codified as decisions of the
Sultan-in-Council regardless of the fact that the Sultan had
been present or not during the Council deliberations.
Instruments of government and documents of title bore the
Sultan's seal. Regulations and orders in Council were issued
in his name. They were drawn up in most part in the
Resident's office and presented to the Sultan for formal
ratification. The Resident, utilising the advisory clause in
the 1905/06 Supplementary Agreement, used the Council to
reform the State administration skillfully avoiding
conflicts with the Sultan. The conduct of the Councils, like
most other aspects of government in the Malay states, was
established by practice and not by proclamation. The SC came
to perform many functions of significance as the occasions
demanded.
These functions encompassed legislative, executive and in
certain cases, judicial matters. Interrelated as these
functions were, no serious problems arose as long as the
Resident was in full control of the administration of the
State.
Naming the members for the First Council Meeting
A first major task of the Resident in summoning the
Council was to determine its composition of membership. This
he left to the prerogative of the Sultan. But after the
death of Sultan Hashim Jalilul Alam and when McArthur went
on furlough temporarily since mid-1906, this local nobility
delayed the formal inauguration of the new Council. Again
the unwritten 'Constitution' of old Brunei became handy in
naming the members of the Council when the new sultan,
Muhammad Jamalul Alam II (r.1906-1924) was just nine years
old, elected to the throne under the supervision of the two
Regents Pengiran Bendahara and Pengiran Pemancha. Apparently
the Regents were reticent to name the members of the
Council; an institution that they knew would certainly go to
undermine their powers. Finally after persuasion the new
Bendahara released the list to the Resident, in accordance
with the existing constitutional practice viz; The Sultan,
the two Wazirs, two Chetetrias, and three Menteris to start
with.
The first Council meeting took place on the 29th June
1907 with the following members in attendance i.e. the
Sultan Muhammad Jemalul Alam, the Acting Resident H
Chevallier, the Pengiran Bendahara Pengiran Muhammad bin
Pengiran Tajuddin, the Pengiran Pemancha, the Pengiran
Shahbandar bin Pengiran Anak Ismail, the Pengiran
K[erm]aindera bin Pengiran Suma, Dato Perdana Menteri H.
Abdul Rahman bin H. Othman, Jawatan Abubakar, and the acting
assistant resident JC Sugars. The two absentees on the day
were Tuan Imam bin Jambul and Orangkaya Laksamana bin H.
Nuruddin.
What the Brunei nobles feared became a bitter reality in
the very first meeting convened by the Resident, and all
hell was about to break loose when the Resident gave an
ultimatum to surrender individual property rights that
affected the interest of the Sultan himself. |
