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Introduction 1. Brunei's Present Constitution Is Based on the Original

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Introduction 1. Brunei's Present Constitution Is Based on the Original WT/TPR/S/84 Trade Policy Review Page 16 II. TRADE AND INVESTMENT POLICY REGIME (1) GENERAL CONSTITUTIONAL AND LEGAL FRAMEWORK (i) Introduction 1. Brunei's present Constitution is based on the original Constitution drawn up in 1959 and amendments made between 1971 and 1984; in 1984, Brunei resumed full political independence and took over responsibility for its own defence and foreign relations from the United Kingdom. The Constitution provides for the Sultan of Brunei as the Head of State, with full executive authority. Under the Constitution, the Sultan is assisted and advised by five councils, including the Council of Ministers or the Cabinet, and the Legislative Council, although, in practice, the Legislative Council has been suspended (in accordance with the Constitution) since 1984.1 As a consequence, the power to promulgate new laws is currently vested solely in the Sultan; all new laws are now made under the provision of Section 83(3) of the Constitution as "Orders". (ii) The Executive 2. Executive authority rests with the Sultan of Brunei assisted and advised by five councils: the Religious Council, the Privy Council, the Council of Ministers, the Legislative Council, and the Council of Succession. 3. The Religious Council, at present consisting of 17 members, provides advice on matters relating to Islam; the Privy Council, which has 34 members, advises the Sultan on any amendment or revocation of any constitutional provisions, the Sultan's power to grant mercy, and the award of honours; the Council of Succession determines succession to the throne, in the event that this is required; the Legislative Council was dissolved in 1984 (section (iii) below). 4. The Council of Ministers, or Cabinet, consists of the Prime Minister and the Ministers, all of whom are appointed by the Sultan. The term of office held by Cabinet members is determined by the Sultan. At present, there are eight ministers; the Prime Minister's post is held by the Sultan.2 Provision is also made in the Constitution for the Sultan to appoint Deputy Ministers, the Attorney General, and the Auditor General. There are seven Deputy Ministers at present. (iii) Legislative process 5. The section of the Constitution dealing with the formation of the Legislative Council was suspended in 1984.3 The Council, which under the Constitution consists of six ex-officio, five official, and ten nominated members, was dissolved.4 In the absence of the Legislative Council, the Sultan promulgates laws. As the section in the Constitution dealing with legislative procedures was suspended in 1984, new legislation in Brunei Darussalam, called "Emergency Orders" rather than "Acts", are drafted by the relevant government ministries in cooperation with the Attorney General's Chambers or directly by the Attorney General's Chambers, if instructed to do so. The draft 1 The appointment and functions of the Council of Ministers is described under Part V of the Constitution of Brunei Darussalam; Parts VI and VII of the Constitution, dealing with the Legislative Council and Legislative Procedures, were suspended in 1984. All other provisions of the Constitution continue to apply. 2 In addition, the Sultan currently holds the Finance and Defence portfolios. 3 Parts VI and VII of the Constitution were temporarily suspended in 1984. 4 Government of Brunei Darussalam (undated a). The six ex-officio members were to include the Prime Minister, the Attorney General and the Religious Adviser. Both official and nominated members were to be appointed by the Sultan. Brunei Darussalam WT/TPR/S/84 Page 17 legislation, or Order, is then presented to the Sultan by the relevant ministry or agency for signature. All new "Emergency Orders" must be consented to (signed and approved) by the Sultan in order to have the force of law. In some cases, where the principle legislation enables this, individual ministers may sign new subsidiary legislation. Upon the Sultan's consent, all Bills become law and must be gazetted, although there is no minimum time-period within which laws have to be gazetted. 6. Laws in Brunei consist of Acts, followed by "Regulations", which are subsidiary laws enacted subsequently. Laws passed after 1984, as mentioned, are called Emergency Orders or Orders. Emergency Orders carry the force of law and do not lapse unless incorporated into the laws of Brunei as "Acts" by the power of the Attorney General under the Brunei Law Revision Act. (iv) The Judiciary 7. The highest judicial authority in Brunei is the Sultan.5 He appoints all of the judges in the courts. 8. Brunei's legal system is based mainly on English common law. The highest court in Brunei is the Supreme Court, which comprises the High Court and the Court of Appeals. The Subordinate Court consists of the magistrates courts. Appeals resulting from decisions taken by the magistrates courts are examined by the High Court, which forms a court of first instance for criminal and civil cases. For appeals relating to decisions on civil cases taken by the High Court the final court of appeal is the Court of Appeals, unless all the parties to the case agree before the commencement of any civil proceedings that the final court of appeal would be the Judicial Committee of the Privy Council, based in London.6 The High Court may not overrule any provisions of the Constitution of Brunei Darussalam, but can deal with issues relating to the Constitution insofar as interpreting them. 9. A separate Sharia (Islamic Law) Court exists for matters relating to religious disputes. There is no proper appellate process as such; according to the authorities, at present, all appeals are heard by the Judicial Committee, which rarely sits in practice. The new Syariah Courts Act (Cap. 184) provides for a court hierarchy and appellate process similar to that for civil cases; the proposed date for enforcement of this Act is 25 March 2001. 10. WTO-related issues may be raised in a domestic court of law between private parties, if the relevant WTO Agreements have been incorporated in national law through enabling legislation; however, the State of Brunei Darussalam cannot be brought before the domestic courts on cases relating to the WTO Agreements. (2) DEVELOPMENT AND ADMINISTRATION OF TRADE POLICY (i) Policy formulation and implementation 11. Responsibility for trade policy formulation and implementation rests with the Ministry of Industry and Primary Resources in cooperation with other government agencies, including the Ministries of Finance, Development, and Communications (Table II.1). In this regard, the authorities also consult with the private sector. 5 Under section 9 of the Constitution, the prerogative of majesty is vested in the Sultan. 6 Government of Brunei Darussalam (undated b). WT/TPR/S/84 Trade Policy Review Page 18 Table II.1 Ministerial/Departmental responsibility for trade-related issues Ministry/Agency Competence Prime Minister's Office Petroleum Unit Petroleum policy, pricing, and exploration contracts Attorney General's Chambers Registry for Company's Act and Business Names Act Intellectual property rights policy issues; registry of trade marks and patents; enforcement of all IPR laws except copyright Ministry of Industry and Primary Resources Department of Agriculture Agriculture policy and incentives; sanitary and phytosanitary standards Department of Forestry Forestry policy and incentives Department of Fisheries Fisheries policy and incentives; sanitary and phytosanitary standards Brunei Industrial Development Authority Industrial development; management of industrial sites; investment (BINA) promotion and approval; training Economic Development Board Foreign investment approvals Investment Services Section Investment incentives; administers the Brunei Economic Development Board Act, the Miscellaneous Licences Act; Secretariat for the Projects Implementation and Technical Committees for investment approval Tourism Development and Promotion Division Tourism regulation and development Ministry of Development Infrastructure development; standards and conformance; housing development; land management Ministry of Finance Royal Customs and Excise Customs tariff; valuation; rules of origin; duty drawback Treasury State budget; taxes Brunei Investment Agency Outward foreign investment Economic Planning and Development Economic planning; formulation of five-year national development plans The Department of Information Technology and Government procurement and procurement of food products such as salt, State Store sugar, and rice Financial Institutions Division Insurance and banking supervision Ministry of Communications Department of Civil Aviation Air transport regulation Land Transport Department Land transport regulation Marine Department Maritime transport regulation; and maritime safety Ports Department Management of shipping and Muara Port and management of Muara export zone Jabatan Telekom Brunei Telecommunications services regulation and provision of local and international telecommunications services Source: Government of Brunei Darussalam [Online]. Available at: http://brunei.sultanate.com/ [16 August 2000]; and information provided by the authorities. 12. In formulating and drafting trade policy, and depending on circumstances, the opinions of non-governmental bodies may be solicited although Brunei does not appear to follow a regular process of consulting with such bodies. One such recent example was the formation of a new body, the Brunei Darussalam Ministerial Economic Council, which was established in September 1998 to
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