Bolkiah and Others v The State of Brunei Darussalam
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill,Lord Scott of Foscote,Lord Mance |
| Judgment Date | 08 November 2007 |
| Neutral Citation | [2007] UKPC 62,[2007] UKPC 63 |
| Court | Privy Council |
| Docket Number | Appeal No 69 of 2006 |
| Date | 08 November 2007 |
and Others
[2007] UKPC 62
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
Lord Mance
Lord Neuberger of Abbotsbury
Privy Council
[Delivered by Lord Bingham of Cornhill]
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.
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
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.
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.
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.
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.
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
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.
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.
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...
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