The court of appeal of brunei darussalam



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Privy Council Appeal No 69 of 2006
His Royal Highness Prince Jefri Bolkiah

and Others Appellant

v.
(1) The State of Brunei Darussalam

(2) Brunei Investment Agency Respondents

FROM
THE COURT OF APPEAL OF



BRUNEI DARUSSALAM
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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL


Delivered the 8th November 2007
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Present at the hearing:-
Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Scott of Foscote

Lord Mance



Lord Neuberger of Abbotsbury

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[Delivered by Lord Bingham of Cornhill]



  1. On 12 May 2000 a Settlement Agreement was formally executed by the respondents, the Government of the State of Brunei Darussalam and the Brunei Investment Agency, on the one side, and the appellants, His Royal Highness Prince Jefri Bolkiah and members of his family, on the other. The Settlement Agreement compromised proceedings brought by the respondents against the appellants and was scheduled to a consent order made in the High Court on 13 May 2000 staying the proceedings except for the purpose (relevantly) of carrying the terms of the Settlement Agreement into effect. The parties will hereafter, for convenience, be referred to as the Government, the BIA and Prince Jefri.




  1. On 11 October 2004 the BIA issued a summons in the High Court seeking to enforce the Settlement Agreement. Prince Jefri countered on 29 March 2005 by issuing his own summons. The relief claimed in this was later described by the Court of Appeal as “unusually worded”, but its basic object was to obtain a stay of the BIA application until Prince Jefri could be assured that the issues which he sought to raise would be dealt with by a judge other than any currently serving on the High Court bench and that the hearing of the issues would be in public. These summonses gave rise in the courts below to argument on two issues. The first, conveniently but not very aptly called “the procedural issue”, was directed primarily to the question whether the Chief Justice of Brunei Darussalam (Saied CJ) and other judges of the High Court were disqualified from adjudicating on the BIA’s application by an appearance of bias, or because there could be no fair trial of the application. The second issue (“the substantive issue”) was whether the BIA was entitled on summary application to an order that the Settlement Agreement be enforced. The first issue was resolved in favour of the BIA and adversely to Prince Jefri in a judgment of the Chief Justice given on 2 November 2005, upheld by the Court of Appeal (Cons P, Power and Mortimer JJA) in a judgment given on 20 May 2006. The second issue was resolved in favour of the BIA and adversely to Prince Jefri in a judgment of the Chief Justice given on 1 March 2006, also upheld in the judgment of the Court of Appeal given on 20 May 2006. This is the judgment of the Board on the first issue. Its judgment on the second issue is given separately in a second judgment of the Board: [2007] UKPC 63.


The agreed facts

  1. In 1959 Brunei Darussalam, formerly administered by the United Kingdom, gained limited powers of self-government and adopted a Constitution which has since been amended. The state now enjoys full independence. It is a Malay Islamic state of which His Majesty the Sultan and Yang Di-Pertuan has been Head since 1967. Since 1962 the State has been ruled under a State of Emergency. Under the Constitution the Sultan possesses supreme executive authority and wide legislative powers, and during the State of Emergency the Sultan may pass any legislation he deems expedient by Order. Under the Constitution the Sultan is immune from suit and there may be no judicial review (as defined) of any act or omission of his.




  1. Prince Jefri is the youngest brother of the reigning Sultan. He is one of the three Wazirs of Brunei. In 1984 he was appointed by the Sultan to be Minister of Culture, Youth and Sports and also Deputy Minister of Finance. From October 1986 until his resignation in February 1997 Prince Jefri was Minister of Finance. He was Chairman of the BIA from its establishment in July 1983 until July 1998. The BIA was established by the Brunei Investment Agency Act (Ch 137). It is a body corporate that may sue and be sued (section 3). It holds and manages funds for the Government.




  1. Between 1983 and mid-1998 some US $40 billion of what were called “special transfers” were made from the accounts of the BIA. In 1998 an independent investigation was undertaken into the circumstances of these special transfers. Following that investigation the Government concluded that, in round figures, US $14.8 billion were paid to the accounts of Prince Jefri, US $8 billion to accounts of the Sultan and US $3.8 for Government purposes. The destination, purpose and recipients of the remaining transfers, some US $13.5 billion, were not established.




  1. In 1998 protracted negotiations began between representatives of the Government and the BIA and representatives of Prince Jefri concerning the transfer to the Government and the BIA of assets acquired by Prince Jefri with funds allegedly drawn from the BIA. Further reference is made to the course of these negotiations in the second judgment of the Board. On 21 February 2000 the Government and the BIA obtained Mareva relief against Prince Jefri in Brunei and in England, and proceedings were issued against him. The proceedings were based on the allegation that Prince Jefri, whilst Minster of Finance and Chairman of the BIA, had misappropriated state funds in such of the special transfers as had been made otherwise than to the Sultan or for Government purposes. These proceedings were resisted by Prince Jefri on a number of grounds. He also issued a summons seeking an order that the trial of the action and all interlocutory proceedings should not be listed for hearing before the then Chief Justice (Sir Denys Roberts) but before an independent judge from outside Brunei. That application was dismissed by the Chief Justice on 24 April 2000 and an appeal against his decision was dismissed by the Court of Appeal (Fuad P, Cons and Silke JJA) on 11 May 2000: [2000] JCBD 175, 305.




  1. Following the issue of proceedings, the pace of negotiation intensified: see the second judgment of the Board. The negotiations culminated in the Settlement Agreement of 12 May and the consent order of 13 May 2000.


The legal background

  1. Appeals to the Board from the Supreme Court of Brunei are governed by the Brunei (Appeals) Order 1989 (SI 1989/2396) as amended by the Brunei (Appeals) (Amendment) Order 1998 (SI 1998/255). The effect of these orders is that the Board has no jurisdiction in criminal matters nor in respect of any appeal from the Supreme Court or from the Interpretation Tribunal established under section 86 of the Constitution “on any question involving the meaning, interpretation, construction or effect of any of the provisions of that Constitution”. It has jurisdiction in respect of appeals from the Supreme Court to the Sultan by leave of the Supreme Court or (as here) the Board in a civil matter where the matter in dispute exceeds a specified monetary limit, the case is from its nature a fit one for appeal and the parties have at any time before the hearing of the case on appeal by the Supreme Court consented to be bound by an appeal to the Sultan in that case.




  1. The application of the English common law in Brunei is governed by section 2 of the Application of Laws Act. This provides that “the common law of England and the doctrines of equity, together with statutes of general application, as administered or in force in England at the commencement of this Act, shall be in force in Brunei Darussalam”. But such law shall only apply “save in so far as other provision has been, or may hereafter be made by any written law in force in Brunei Darussalam”. By section 3(1) of the Interpretation and General Clauses Act “written law” includes all “Acts, Enactments and Proclamations, and subsidiary legislation, or any part thereof”. Thus the rules of the English common law and equity may be displaced or superseded by local legislation in Brunei, just as they may ordinarily be displaced or superseded by local legislation in England. Section 2 of the Application of Laws Act further provides that the English common law, equity and statutes of general application shall have force in Brunei “so far only as the circumstances of Brunei Darussalam and of its inhabitants permit and subject to such qualifications as local circumstances and customs render necessary”. This provision recognises that English law, developed to meet the needs of what is now a liberal western democracy, may have to be adapted in its application to a non-democratic Islamic Malay monarchy.




  1. On 18 September 2004, shortly before the BIA issued its summons to enforce the Settlement Agreement, the Sultan made certain statutory amendments to which attention has been drawn in argument. The first was to section 15 of the Supreme Court Act, to which five subsections were added. Subsection (4) required the Supreme Court (unless the Sultan directed otherwise) to hold proceedings in camera if any party or the Supreme Court in any judgment made reference to any act, decision or exercise of power by the Sultan or referred to any issue pertaining to the inviolability, sanctity or interests of the position, dignity, standing, honour, eminence or sovereignty of the Sultan. Subsection (5) empowered the Sultan to direct the Supreme Court to sit in camera. Subsection (6) empowered the Sultan to direct that proceedings in the Supreme Court should be held at such time and venue as the Sultan might determine. Subsection (7) provided that no direction by the Sultan under subsections (4), (5) or (6) should be open to question by judicial review or appeal. Subsection (8) prohibited, on pain of criminal penalty, the reproduction of any judgment in any proceedings that might have the effect of lowering or adversely affecting the position, dignity, standing, honour, eminence or sovereignty of the Sultan. This prohibition was somewhat qualified by a further amendment made on 13 October 2004. Pursuant to this provision, the Chief Justice and the Court of Appeal sat in camera, and judgments on the substantive issue were not publicly promulgated. No directions were given under subsections (5) and (6).




  1. The second amendment added a new section 34 to the Supreme Court Act. By subsection (1) it was declared for the avoidance of doubt that the Sultan should not be compellable to attend any proceedings in or be summoned before the Supreme Court. This amendment gave effect to an old rule of the common law (R v Mylius, The Times, 2 February 1911) and had been reflected in the written law of Brunei since 1959: see section 25(1)(b) of the Succession and Regency Proclamation 1959. Section 34(2) empowered the Sultan, in a manner that could not be challenged, to exempt any person required to attend any proceedings in or summoned before the Supreme Court from the duty to comply with such requirement or summons. This power has not been exercised.




  1. The third amendment added a new section 3 to the Application of Laws Act. This declared for the avoidance of doubt that the Crown Proceedings Act 1947 was not and never had been in force in Brunei. Section 25(1)(b) of the Succession and Regency Proclamation left little room for doubt on this point in any event.




  1. The fourth amendment was by addition of a new section 6A to the Specific Relief Act. This provided that the remedy of judicial review, broadly defined, should not be available in respect of any act or decision done or made by or on behalf of the Sultan. This section is in the same terms as article 84C of the Constitution which, by virtue of paragraph 2(3) of the 1989 Order, the Board may not consider.


Bias

  1. It is a general rule of the common law, applicable in Brunei as in the United Kingdom, that judges must apply the law as they understand it to the facts of individual cases as they find them without fear or favour, affection or ill-will, that is, without partiality or prejudice: Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, para 2. Thus a judge will be disqualified from adjudicating on a case if he has a personal interest in the outcome or if it is shown that his capacity for objective judgment is liable to be swayed by partiality or antagonism towards any of the parties. This is described in the case law as actual bias. No accusation of actual bias has at any time been made on behalf of Prince Jefri against any of the judges involved or potentially involved in these proceedings.




  1. The common law has recognised that a judge may be disqualified from adjudicating on a case where, even though no actual bias on his part is shown, the circumstances are such as to give rise to an appearance of bias, that is, to an impression that the judge may be influenced for or against one or other party for reasons extraneous to the legal or factual merits of the case. But who is to judge whether such an appearance exists? The answer is now clear. The court must judge. It must do so having ascertained all the circumstances which bear on the suggestion that the judge was (or would be) biased. And it must then ask itself whether those circumstances would lead a fair-minded and informed observer to conclude that there was (or would be) a real possibility that the judge was (or would be) subject to bias. Following some development of judicial thinking and expression in R v Gough [1993] AC 646, 670, and In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, 726-727, this is now the accepted test: Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, para 103, Kearney v HM Advocate [2006] UKPC D1, 2006 SC (PC) 1, para 22. This gives effect to the principle memorably expressed in R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, 259.




  1. The concept of the fair-minded and informed observer has been discussed in cases such as Johnson v Johnson (2000) 201 CLR 488, 509, para 53 and Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187, para 14. It is not in any way obscure. The requirement of fair-mindedness means that the observer must be taken to have a balanced approach, neither naïve or complacent nor unduly suspicious or cynical. The requirement that the observer be informed means that he does not come to the matter as a stranger or complete outsider; he must be taken to have a reasonable working grasp of how things are usually done.




  1. On Prince Jefri’s application to the Chief Justice it was submitted on his behalf that “this court should recuse itself from further hearing of these proceedings and the same should apply to other judges of the Brunei Supreme Court”. The primary ground relied on was apparent bias, and in his judgment the Chief Justice considered whether the court should follow the test in R v Gough, applied by the Brunei courts on Prince Jefri’s earlier application in 2000, or the test in Porter v Magill. He concluded, wrongly as the Court of Appeal later ruled, that he should follow R v Gough. The Chief Justice described the qualities of judicial independence and impartiality as well known and absolute, permitting no compromise. He recognised the absence of apparent bias as included in the impartiality and independence of a judicial officer. He also recognised, quoting a passage of Mason J in In re JRL, Ex p CJL (1986) 161 CLR 342, 352 cited in Locabail, para 22, and by Roberts CJ on the earlier application, that judicial officers should

“discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour”.


The Chief Justice acknowledged “the insidious nature of bias”, citing Locabail, para 19, but regarded his own position and his relationship with the Sultan, as no different from that of the former Chief Justice. Having listed the matters relied on as giving rise to an appearance of bias, he agreed with his predecessor that what needed to be considered was the quality of the relationship between a judge and a person involved in the proceedings in the prevailing circumstances. He had occasionally met the Sultan briefly on ceremonial occasions attended by many other people (meeting Prince Jefri on one such occasion), and at the swearing in of judicial officers. There had never been any interference of any kind with the performance of judicial functions. He continued:
“Having ascertained the relevant circumstances and considering the issue of security of tenure, I do not see how it could possibly call for any comment, particularly in such cases as that of the former Chief Justice and myself, both having retired from their respective service in various countries abroad upon attaining the age of retirement, drawing reasonably adequate pension and being of good health, subject to being asked by the appointing authority to stay on in office, unlike a younger person having his career in front of him and in whose case the outcome of the case could realistically affect his interest.”
The Chief Justice concluded that having regard to the outcome of the earlier application the issue before him was res judicata. He went on to consider the statutory amendments noted above, but did not regard these as bearing on the independence and impartiality of the court.


  1. The Court of Appeal differed from the Chief Justice, holding that the test in Porter v Magill should be applied and that Prince Jefri’s argument was not precluded by the doctrine of res judicata. It considered that knowledge of certain matters should be imputed to the fair-minded and informed observer: that there was a dispute between the Sultan and Prince Jefri; that resolution of that dispute would involve an attack on the credibility of the Sultan vis-à-vis Prince Jefri; that the Sultan wished the subject matter of the dispute to be kept out of the public eye; that the Sultan had recently enacted legislation which effectively achieved that result; and that the structural independence of the judiciary in Brunei was not as robust as it might be in other jurisdictions. The court then summarised Prince Jefri’s submission:

“The argument then is that with these matters in mind the observer might well think that His Majesty, being content to interfere, as he has, with long standing and well established procedure of the court – i.e. to hold its hearings in public – would be tempted to go further and interfere in the particular decision itself; alternatively that the reverence and respect in which His Majesty is held by the entire community might predispose the judge, even unconsciously, in His Majesty’s favour.”


The court went on to express its conclusion on this submission:
“We find, on consideration, that we are unable to accept this submission. Court proceedings are generally held in public for obvious and, sometimes, strongly expressed reasons. But there have for long been exceptions. Experience does not show that in these exceptions judges have been less impartial than they should. Nor is there any reason to expect that they would. As to improper approach, even if the observer should think that His Majesty had been to some extent influenced by the present proceedings to make the legislative enactments in question, in our view to go from keeping matters private to active interference with the Judge is too great a leap for the thought even to have crossed the observer’s mind.
As to a possible predisposition of the judge in His Majesty’s favour, we think the observer would take the view earlier expressed by this court that “judicial experience, by its nature, conditions the mind to independence of thought and impartiality of decision”. He would know that any judge appointed to the High Court would not be lacking in experience. We see no room for unconscious predisposition.
We have considered this question, as it was argued, in relation to the judges and commissioners generally. If in the present instance triable issues are found to arise, a judge or commissioner will be assigned to deal with them. It may then be necessary to look at any special considerations peculiar to that particular judge or commissioner. For the moment we are concerned with the present Chief Justice. We are satisfied he was quite right not to recuse himself.”


  1. The submissions made to the Board on apparent bias fell very broadly under three heads. The first head of submission related to the personal position of the Chief Justice. He (Mohammed Saied CJ) had served as a puisne judge in Hong Kong, retiring at the statutory retiring age. He was recruited to serve on the bench of Brunei and was appointed to serve as Acting Chief Justice on 1 June 2001. On 31 July 2001 he was appointed as Chief Justice for a term of three years until 31 July 2004. His appointment was then renewed for a further period of two years, and has since been again renewed for the same period. Appointments to the Supreme Court of Brunei are, by section 7 of the Supreme Court Act, made by the Sultan. Those appointed hold office until the age of 65, or such later time as the Sultan may approve (section 8(1)). They may be removed from office only for inability to perform the functions of the office or misbehaviour (section 8(2)), and then only if the question of removal has been referred to this Board and it has advised that the judge ought to be removed from office for inability or misbehaviour (section 8(3)). The remuneration of Supreme Court judges is prescribed by the Sultan in Council and charged upon the Consolidated Fund. At the time when the Chief Justice declined to recuse himself he was aged about 74. When he granted the BIA’s substantive application seeking enforcement of the Settlement Agreement his then current term had five months to run: he was willing to accept appointment for a further 2-year term, which he has since accepted.




  1. The thrust of Prince Jefri’s argument on this point, briefly put, is that the fair-minded and informed observer, appreciating that the Chief Justice’s prospects of further appointment depended on the goodwill of the Sultan, and that the Sultan could procure a reduction of his salary (against which there was no statutory protection), would apprehend a real possibility that the Chief Justice would be biased in favour of the Sultan in any matter in which his interests conflicted with those of Prince Jefri.




  1. The Board has no hesitation in dismissing this submission. The fair-minded and informed observer must be taken to understand that the Chief Justice was a judge of unblemished reputation, nearing the end of a long and distinguished judicial career in more than one jurisdiction, sworn to do right to all manner of people without fear or favour, affection or ill-will and already enjoying what he described as “reasonably adequate” pension provision. Such an observer would dismiss as fanciful the notion that such a judge would break his judicial oath and jeopardise his reputation in order to curry favour with the Sultan and secure a relatively brief extension of his contract, or to avoid a reduction of his salary which has never (so far as the Board is aware) been made in the case of any Brunei judge at any time. The Chief Justice must be seen as a man for whom all ambition was spent, save that of retiring with the highest judicial reputation.




  1. The second head of submission, relating only to the Court of Appeal, was directed to what in Prince Jefri’s written case was called the “manipulation” of the Court of Appeal’s list and in argument “executive interference” with the list. The argument was based on the decision, promulgated by the Chief Registrar of the Supreme Court on 30 March 2006, that the two appeals in this matter be heard by the court consecutively, at its session beginning on 1 May 2006, and that the appeals then listed for the May session be deferred until the court’s November session. The appeals so deferred included criminal, including capital, appeals. This listing arrangement was not, it was said, something which would be done to accommodate the ordinary litigant, and would help to persuade the fair-minded and informed observer that the processes of justice in Brunei were responsive to pressure by the executive. Such an observer would, however, note the complete absence of any evidence of intervention at all by the executive in this matter. If more fully informed, the observer would further note that the suggestion of consecutive hearings, following the first appeal (fixed for 1 May some months before, on an application by Prince Jefri for an early hearing date), came from the President of the Court of Appeal, then in Europe, on 6 March. There followed a constructive discussion between the parties’ respective solicitors of how, taking account of counsel’s availability and the time needed, the hearings could be most conveniently programmed. It is not surprising that little was made of this point in the Court of Appeal.




  1. The third head of argument was directed to the legislative amendments made on 18 September 2004. Particular stress was laid on the timing of the amendments, shortly before the BIA issued its summons to enforce, giving rise (it was said) to the inference that they were made with reference to this litigation. The BIA challenged this inference, adducing evidence that amendments had been under consideration for many years. This is not an issue the Board can resolve. It may well be that some changes had been under consideration for a long time but that the imminent issue of the summons precipitated action which would otherwise have been further delayed. Thus it is fair to assume, in favour of Prince Jefri, that the particular amendments were not unconnected with the forthcoming issue of the summons.




  1. On the issue of apparent bias, the question is whether the fair-minded and informed observer, knowing of these legislative amendments, made when they were, would apprehend a real possibility that the Chief Justice (and, it would seem, the members of the Court of Appeal) might be thereby encouraged to lean in favour of the BIA and against Prince Jefri. It is not at all clear why this should be so. The observer would be likely to see the requirement to sit in camera and the restriction on reporting as the most practically significant of the changes, and Prince Jefri’s argument focused on these. But no inference of bias could possibly be drawn from a judge’s compliance with the law of the land which he was bound to obey. The fact that allegations critical of the Sultan had been made at an in camera hearing and, if accepted, would not be reported could scarcely be thought to make a judge more reluctant to accept them. Put crudely, the submission has to be (as the Court of Appeal said) that if the Sultan were willing to interfere with the long established procedure of public hearings, he might be willing to go further and put pressure on the court to decide the proceedings in his favour. This is not a possibility which would be entertained by the fair-minded and informed observer, for the reason given by the Court of Appeal. It is one thing to seek to preserve a degree of privacy concerning a regrettable dispute, with obvious public implications, between two very senior members of the Royal Family. It is quite another to seek to pervert the course of justice, something which the Sultan is not said ever to have done.




  1. The Board is satisfied that the Chief Justice and the Court of Appeal were not disqualified from ruling on the BIA’s summons by an appearance of bias.


Fair trial

  1. Prince Jefri relies on the legislative amendments noted above to mount also an altogether different argument: that there can be no fair trial of the BIA’s claim, and that the proceedings should accordingly be stayed. In making this submission reliance is placed on a number of principles which are very well known, amply vouched by authority and very widely accepted. They include the principles that civil rights should be determined by an independent and impartial tribunal at a fair and public hearing, that judgment should be pronounced publicly, that there should be equality of arms between litigants and that legislation should lay down general rules and not be directed to particular cases. It is unnecessary to cite authority to support these principles, the general validity of which the Board readily accepts. It is, however, necessary to adopt a more particular approach to this question.




  1. It is necessary first to identify the nature of the proceeding which is said to be incapable of fair trial. In this case, pursuant to the consent order of the court made on 13 May 2000, the proceeding is an application by the BIA to enforce summarily against Prince Jefri the Settlement Agreement into which he admittedly entered. The issue to be decided, if it is shown that the Agreement has not been fully performed by Prince Jefri, is whether (put simply) there is any arguable ground for not enforcing it. That is an issue to be decided on the affidavits submitted by the parties and such documentary material as they exhibit. It is a proceeding which could culminate, theoretically, in any one of four possible outcomes: that the BIA’s claim for relief is dismissed (an outcome which could possibly follow if the Settlement Agreement were clearly shown to be invalid, or to have been fully performed by Prince Jefri); that the court finds arguable grounds for not enforcing the agreement, such as can only be determined at a full trial with discovery, oral evidence and cross-examination (the outcome for which, as appears from the second judgment of the Board, Prince Jefri contends); that the court finds no arguable grounds for not enforcing the Agreement and grants the BIA’s application (the outcome for which the BIA contends); or that the court finds no arguable grounds for not enforcing the Agreement but decides, in the exercise of its discretion, not to grant equitable relief to the BIA. The application is not a proceeding in which judicial review, however broadly defined, is claimed or could be granted against the Sultan, or in which any finding of wrongdoing could be made against him. Thus the amendments adding sections 3 of the Application of Laws Act and 6A of the Specific Relief Act could not be thought to be relevant to the proceeding, to which article 84C of the Constitution would be equally irrelevant. Since the application would not in any event involve the calling of oral evidence, the non-compellability of the Sultan under the amended section 34(1) of the Supreme Court Act could not affect the fairness of the hearing, any more than could his unexercised power under section 34(2). No inequality of arms between the parties is shown to exist in relation to the hearing of this application.




  1. It is necessary, secondly, to recall that the Board sits, subject to the terms of the 1989 Order as amended, as the highest court of Brunei. Its duty, subject again to the terms of the amended Order, is to apply the law of Brunei. It has no discretion to apply any other law, and would indeed act unlawfully were it to do so. Unlike many other Constitutions, that of Brunei contains no chapter on human rights. The European Convention on Human Rights was extended to Brunei by the United Kingdom in 1967, but the state is no longer party to the Convention. It has not been suggested that domestic effect has been given in Brunei to any other relevant international human rights convention, and it is not a party to the International Covenant on Civil and Political Rights. Even if it had acceded to such a convention, effect must be given by a national judge sitting in a national court to unambiguous national legislation even if it conflicts with a treaty obligation (Salomon v Commissioners of Customs and Excise [1967] 2 QB 116, 143). As Lord Hoffmann observed in R v Lyons [2002] UKHL 44, [2003] 1 AC 976, para 40:

“In domestic law, the courts are obliged to give effect to the law enacted by Parliament. The obligation is entirely unaffected by international law.”




  1. Asked for the legal source of the right to a public hearing and a publicly reported judgment which he asserted, Mr James Lewis QC for Prince Jefri appealed to customary international law. But this answer encounters a number of problems. The first is already noted, that international law cannot override an unambiguous national statute. The second problem is that the right to a public hearing and to a judgment pronounced publicly, even where such a right exists, is not always an unqualified right. Both the European Convention (in article 6) and the ICCPR (in article 14) permit exclusion of the public from all or part of the hearing in the interests of public order or national security among other grounds, and the law of many states (including the United Kingdom) makes provision for closed hearings in specified circumstances. The third problem is that there is no single and uniform standard of fairness applicable everywhere irrespective of circumstances. As stated in R v H [2004] UKHL 3, [2004] 2 AC 134, para 11,

“Fairness is a constantly evolving concept … it is important to recognise that standards and perceptions of fairness change, not only from one country to another but also, sometimes, from one decade to another.”


When interpreting the European Convention the Strasbourg court has not laid down hard-edged and inflexible statements of principle from which no departure can be sanctioned in any circumstances: Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, 704. The clear intention of section 2 of the Application of Laws Act is to preclude the importation of foreign principles wholly alien to the culture and traditions of Brunei. The fourth problem is to show why a hearing of this application in private should on the facts here be seen as unfair. The Board would not question in any way the high authority in favour of administering justice under the critical scrutiny of the public, nor challenge the abhorrence widely and properly felt for secret trials conducted behind closed doors. But the task of the Board is to pay very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree (ibid, p 704). There is no good ground for holding that the hearing of these proceedings in the manner mandated by section 15(4) and (8) of the Supreme Court Act should operate unfairly to Prince Jefri.


  1. Little need, in the Board’s opinion, be said on the issue of judicial independence. Judges in Brunei below the retirement age enjoy security of tenure not inferior to that enjoyed by their counterparts in the United Kingdom. Judges invited to sit after retirement enjoy greater security: Kearney v H M Advocate, above, para 27. The lack of statutory protection against a reduction of salary such as is enjoyed by United Kingdom judges cannot be regarded as significant, given that the UK provision could, theoretically at least, be repealed and Brunei judges have never in practice suffered any deduction. Little need be said, either, of the principle that legislation should not be directed to particular cases, since the statutory amendments in this case, even if prompted by the imminent issue of the BIA’s summons, laid down general rules applicable to all cases.




  1. The grant of a stay of civil proceedings on the ground that there cannot be a fair trial is relief rarely granted. The Board is not aware that such relief has ever been granted or contemplated save where a defendant in defamation proceedings is precluded by the rules of parliamentary privilege from defending himself: see generally Hamilton v Al Fayed [2001] 1 AC 395. No comparable argument is open to Prince Jefri in this case. Nothing suggests that he is denied access to material which he needs to resist the BIA’s application.




  1. In closing, the Board wishes to emphasise, as should be clear, that its observations on the fair trial issue in this judgment are directed solely to resolution of the issue identified in paragraph 27 above. If that issue is resolved in favour of Prince Jefri and a full trial is called for, different questions might arise, whether prospectively or retrospectively, and questions of justiciability might have to be considered. The Board should not be understood as expressing any opinion on those matters.




  1. For these reasons the Board will report to His Majesty the Sultan and Yang Di-Pertuan that the appeal of His Royal Highness Prince Jefri Bolkiah and his family against the decision of the Court of Appeal on the procedural issue should be dismissed with costs.




[2007] UKPC 62


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