State the reservations to the Government implied in every title issued under sections 3 and 6 of the Land Code (Cap 40).
[Section 9 (2), Conditions on which land shall be held]
- (2) There shall be implied in the absence of any express provision to the contrary in every such title issued under section 3 or 6 of this Code the following reservations to the Government. The implied reservations on any land are:
1) Right to all minerals and mineral products (including mineral oil) and all necessary facilities for exercising such right, actual damage will be compensated (on payment of actual damage) (Oil found in the ground)
2) Right to resume for public purposes as determined by His Majesty in Council. Compensation will be paid (Ripas Shell Station)
3) Right to remove earth, clay, gravel, sand stone or any other material required for the roads, public buildings or other public purposes. Compensation only for actual damage done to growing crops, fruit trees or buildings (things that you can see)
4) Right to control all water courses for irrigation, navigation and mining or industrial purposes and for all purposes of general utility (e.g river going through land)
5) Right for the government to:
a. Make a road upon and over land alienated after the 1st of July 1955 and;
b. Cross and re-cross such lands on such road on foot or in carriage with or without animals and with or without vehicles of any size or description whatsoever; and.
c. Construct pipelines and telegraph and telephone lines, posts and wires. Provided that in respect of any title only one strip of land no more than 150 links wide at any point may be used.
Reasonable compensation is paid for any damage done to crops or the surface of the land.
Mariah is the registered owner of a piece of land in Lumapas. Her sister, Maryam, claims that she is the rightful owner. Advise Mariah on how the Land Register can be rectified.
[Section 27 & 29]
No claim to or interest in any land shall be valid unless it has been registered in the Land Office. [Section 27]
Per Section 29, if Mariah wishes to rectify the register, the process is as follows:
(i) she can apply to the High Court for an order that the register be rectified
(ii) the High Court will give notices to persons involved as it may think fit
(iii) the High Court may refuse the application or make such order as it thinks just
(iv) The officer in charge of the Land Office shall rectify the Register and extract of title according to such order.
Under what circumstances can land be acquired in accordance with the provisions of the Land Acquisition Act (Cap 41)?
[Section 3]
- (1) Land may be acquired whenever it is needed:
(a) for a public purpose; or
(b) for a residential site area; or
(c) for a factory area; or
(d) for any person, association of persons or company undertaking a work of public utility.
For (d), there are additional preliminary conditions:
(i) After thorough investigation and inquiry, His Majesty in Council is satisfied that such acquisition is needed for the construction of some work which is likely to prove useful to the public;
(ii) the person, association of persons or company has executed an agreement to the satisfaction of His Majesty in Council for all or any the following matters:
a) payment to Government of all or of any specified portion of the cost of acquisition;
b) the transfer of the land to such person, association of persons or company or his or its nominee on such payment:
c) the terms on which the land shall be held;
d) the time within which and the conditions on which the work shall be executed and maintained;
e) the terms on which the public shall be entitled to use the work.
The Government intends to acquire Wahid’s land for further development and intends to acquire the land under the Land Acquisition Act (Cap 41). Wahid is offered $120,000 as compensation for his land. An independent surveyor has valued his land at $400,000.
Advise the Land Department whether Wahid can appeal against the compensation and what considerations will be taken by the court in order to determine the amount of compensation.
[Section 13]
Any person interested who has not accepted the award or any person paying the cost of acquisition may require objections be referred by the Land Officer for the determination of the Court. Objections must be by written application to the Land Officer and on payment of the prescribed fee.
Objections can be on:
(i) measurement of the land
(ii) the amount of the compensation
(iii) the persons to whom it is payable, or
(iv) the apportionment of the compensation among the persons interested
Grounds for objections must be included.
Deadlines for objections are as follows:
(a) within 6 weeks from the Land Officers award, if the person objecting was present before the Land Officer when the award was made; or
(b) within 6 weeks of the receipt of the copy of award from the Land Officer or within 6 months of the date of the Land Officer’s award, whichever shall expire first.
[Section 17]
In determining the amount of compensation to be awarded for land acquired, the Court shall take into consideration 6 factors:
(1) the market value at the date of the publication of the notification that His Majesty in Council has resolved that the land is likely to be acquired, or if no such notification is made, the date of the declaration made by the Minister that the land will be acquired;
(2) increase in value of other land of person interested resulting from use of acquired land;
(3) damage sustained by person interested due to the Land Officer’s action of severing the land acquired from his other land;
(4) damage sustained by the person interested due to the acquisition effecting his other property or his actual earning;
(5) reasonable expenses due to change in residence or change of business;
(6) any improvements to the land made with the prior consent of the Land Officer after the date in respect of which the market value is taken
Describe the conditions to be satisfied before the Lembaga Tabung Amanah Pekerja can authorise the withdrawal of contributions from the Funds under the Tabung Amanah Pekerja Act (Cap 167), including when the withdrawal is:
a) by a member who is 51 years old
b) needed to build a house
c) for medical treatment
[Section 17]
Before the Lembaga TAP can authorise the withdrawal of contributions, the Lembaga must be satisfied that the member –
- has died
- has reached 55 years of age
- is unable to work anymore due to physical and mental incapacity
- is of unsound mind or incapable of performing his duties before reaching age of 55 years
- leaving Brunei for good
When the withdrawal is made to purchase or build a house, despite the above, the Board may approve if a member has entered into an agreement to build or purchase a house, with the amount not exceeding the prescribed percentage of the purchase price or the member’s balance, whichever is less. In addition, the amount withdrawn shall not exceed 45 percent of the member’s total contribution.
When the withdrawal is made by a member who has attained the age of 50, the Board may approve one withdrawal not exceeding 1/4 of the total contribution in the beginning of the year of application.
Describe the tenure of office, termination and removal of service of Syariah Courts Judges.
[Section 12]
- Chief Syarie Judge and Syariah Court Judges hold office until the age of 65 or until such time as may be approved by HM.
- A judge may resign by writing a resignation letter under his name to HM through the Majlis or the Chief Syarie Judge.
- A Syariah court judge may only be removed if the Majlis or the Chief Syarie Judge makes a representation to HM that he should be removed or terminated on grounds of:
(i) misconduct; or
(ii) disability to conduct duties due to mental or bodily weakness or other causes.
HM will appoint a tribunal and refer the representation to it and terminate the judge’s service upon the tribunal’s recommendation.
State the civil and criminal jurisdiction of the Syariah High Court, established under the Syariah Courts Act, Chapter 184.
[Section 15]
- Criminal jurisdiction. Offences punishable under 4 as follows:
(a) the Syariah Penal Code Order, 2013
(b) any written law which provides for syariah criminal offences;
(c) any written law relating to Islamic family law; or
(d) any other written law which confers on the Syariah High Court jurisdiction to try any offence,
and may impose any punishment provided therefor.
- Civil jurisdiction (10 proceedings):
- *(a) matrimonial matters** (e.g. marriage and divorce)
(b) disposition or claim to property arising from matrimonial matters
(c) maintenance of dependants, legitamacy or guardianship or custody of infants
(d) divisions of or claims to ‘harta sepencarian’
(e) wills or gifts during maradal maut of a deceased person
(f) gift inter vivos or settlement made without adequate monetary consideration or value by a muslim
(g) waqah or nazar
(h) division of and inheritance of property, testate or intestate
(i) determination of persons entitled to all or any part of the estate of a deceased Muslim and the parts of which they are entitled
(j) other matters where jurisdiction is conferred to the Syariah Court by written law
Note: Amended by Syariah Courts Act (Amendment) order, 2014
State the civil and criminal jurisdiction of the Syariah Subordinate Courts, established under the Syariah Courts Act, Chapter 184.
[Section 16]
The Syariah Subordinate Courts shall –
(a) in their criminal jurisdiction
(i) try any offence punishable under the Syariah Penal Code Order, 2013 where the maximum punishment provided for does not exceed $28,000, imprisonment for a term not exceeding 7 years or both, and to whipping, and may impose any punishment provided therefor; or
(ii) try any offence punishable under any written law which provides for syariah criminal offences, relating to Islamic family law or confers on the Syariah Subordinate Courts jurisdiction to try any offence, where the maximum punishment provided for does not exceed $10,000, imprisonment for a term not exceeding 7 years or both, and may impose any punishment provided therefor;”
(b) in their civil jurisdiction, hear and determine all actions and proceedings which the Syariah High Court is empowered to hear and determine, where the amount or value of the subject-matter in dispute does not exceed $500,000 or is not capable of estimation in terms of money.
Societies Act, Cap 203
Describe powers of the Registrar of Societies to refuse and to cancel the registration of a society.
[Section 11 & 13]
Section 11 - Refusal to register
- (1) The Registrar may refuse to register a society where –
(a) he is satisfied that it is a branch of a society
(i) whose registration has been cancelled under section 13(1)(c);
(ii) all or any of whose activities have been suspended under section 17(1); or
(iii) whose registration has previously been refused;
(b) he is satisfied that it has failed to comply with any provision of this Act or of any regulations made thereunder;
(c) a dispute exists among the members of the society as to the persons who are to be the office-bearers or to hold or administer any property, of the society; or
(d) the name under which the society is to be registered includes –
(i) any name, title or description in respect of any order, decoration, award or honour bestowed by His Majesty the Sultan and Yang Di-Pertuan;
(ii) the words “Royal”, “Di-Raja” or, in the opinion of the Registrar, any words which suggest or are calculated to suggest the patronage of His Majesty the Sultan and Yang Di-Pertuan or any connection with the Government or any department thereof; or
(iii) the words or abbreviations “BD”, “Brunei”, “Brunei Darussalam” or “Negara Brunei Darussalam”.
(2) The Registrar shall refuse to register a society where –
(a) the society is or is declared unlawful under the provisions of this Act or of any other written law;
(b) in his opinion, the society is being used or is likely to be used for any unlawful purpose or for any purpose prejudicial to or incompatible with the peace, public order, security or public interest of Brunei Darussalam;
(c) the society has been declared to be unlawful under section 31(1);
(d) the Registrar is satisfied that the society does not exist; or
(e) the name under which the society is to be registered –
(i) appears to the Registrar to be misleading or is likely to mislead the public as to the true character or purpose of the society or resembles the name of such other society as is likely to deceive the public or members of either society;
(ii) is identical to the name of any other existing society; or
(iii) is, in the opinion of the Registrar, undesirable.
- *Cancellation of registration.**
13. (1) Subject to subsection (2), the Registrar may cancel the registration of any registered society in any of the following cases –
(a) upon dissolution by the Registrar under this Act or upon dissolution by the society, which dissolution shall be verified in such manner as the Registrar may determine;
(b) where the society has been declared unlawful under section 31(1);
(c) if the Registrar is satisfied –
(i) that the registration was effected as the result of fraud, mistake or misrepresentation in any material particular;
(ii) that the society is being used or is likely to be used for any unlawful purpose or for any purpose prejudicial to or incompatible with the peace, public order, security or public interest of Brunei Darussalam;
(iii) that the society is pursuing objects other than the objects for which the society is registered;
(iv) that the society has wilfully failed to comply with or contravened any provision of this Act or of any regulations made thereunder or of any rules of the society;
(v) that any member of the society has contravened section 4 of the Sedition Act (Chapter 24); or
(vi) that the society has ceased to exist;
(d) upon the failure by the society to comply with section 22(1).
Societies Act, Cap 203
S’ wishes to set up a charitable organisation in Brunei Darussalam. Its head office is in Indonesia.
a) What is the definition of a society under the Act?
b) Would ‘S’ be required to register her charitable organisation?
[Sections 2 & 6(1)]
a)
Section 2 – Interpretation
“society” includes any club, company, partnership or association of 10 or more persons, but does not include the 8 below:
(a) any company incorporated or registered under the Companies Act (Chapter 39);
(b) any body corporate incorporated or constituted under any written law;
(c) any trade union registered or required to be registered under the Trade Unions Act (Chapter 128);
(d) any company, association or partnership formed for the sole purpose of carrying on any business that has for its object the acquisition of gain by the company, association, partnership or by the individual members thereof;
(e) any co-operative society registered under the Co-operative Societies Act (Chapter 84);
(f) any organisation or association that forms part of the curriculum of a school;
(g) any school, management committee of a school, parents’ association or parent-teachers’ association registered or exempted from registration under any written law;
(h) any organisation or association formed by any Government department or ministry whose members wholly consist of public servants.
b)
Yes. Under Section 6 (1), a society is deemed to be established if any person in Brunei Darussalam manages or assists in the management of the society or collect or solicits money or subscriptions in its behalf.
“Homeowners Association” wishes to register in Brunei Darussalam.
a) Please advise on the selection of the name of the society to the applicants.
b) Describe the procedure for registration of the society under the Societies Order, 2005 and the provisions to be included in the constituting documents of the association.
c) Advise what actions the Registrar of Societies may take upon receipt of the application.
[Section 11 (d), 8 (2) & 8(3)]
a) [Section 11 (d)]
The name under which the society is to be registered should not include —
(i) any name, title or description in respect of any order, decoration, award or honour bestowed by His Majesty the Sultan and Yang Di-Pertuan;
(ii) the words “Royal”, “Di-Raja” or, in the opinion of the Registrar, any words which suggest or are calculated to suggest the patronage of His Majesty the Sultan and Yang Di-Pertuan or any connection with the Government or any department thereof; or
(iii) the words or abbreviations “BD”, “Brunei”, “Brunei Darussalam” or “Negara Brunei Darussalam”.
The Register shall refuse to registrat (i) appears to the Registrar to be misleading or is likely to mislead the public as to the true character or purpose of the society or resembles the name of such other society as is likely to deceive the public or members of either society;
(ii) is identical to the name of any other existing society; or
(iii) is, in the opinion of the Registrar, undesirable.
b)
[Section 8(2)]
Every such application shall be made in such form and manner and accompanied by such documents and particulars, as the Registrar may determine.
c)
[Section 8(3)]
Upon being satisfied with the application and upon payment of the fee prescribed in the First Schedule, the Registrar shall, subject to such conditions as he may impose, register and enter the name of the society and the particulars furnished under subsection (2), in the register.
Subsequently, pursuant to Section 9 (1), where a society has had its name entered in the register pursuant to section 8(3), the Registrar shall issue it a certificate of registration in such form as he may determine.
Describe the factors that must be considered in the adoption of a child under the Islamic Adoption of Children Act, Chapter 206.
[Section 7-8, Cap 206]
Factors to consider in the adoption of a child:
- Maslahah of the child, considering:
(a) wishes of the parent, guardian or person responsible for the maintenance of the child
(b) wishes of the child if he is in the age capable to express his own opinion - Religion requirement:
Only a muslim may adopt a child if:
(a) both or one of the parents of the child is a Muslim;
(b) or both of the parents are unknown. If both of the parents are unknown, the child is deemed to be Muslim for the purpose of this Act. - Age requirements:
(a) The applicant has attained age of 25 years qamariah (i.e. according to Hijrah calendar) and at least 18 years qamariah older than the child. Under special circumstances, the judge may still make the adoption order if this requirement is not met.
(b) If the applicant is a relative, is at least 18 years old qamariah. - Consent requirement:
(a) both parents, guardian or person who is responsible for the child’s maintenance. Consent is not required if the person from which consent is required has abandoned the child, persistently neglected to provide maintenance or unfit to take care of the child. Consent is also not required if the judge deems that it is reasonable for the maslahah of the child.
(b) both husband and wife, in the case of a married couple. Consent not required if the person whose consent is required cannot be found, incapable of giving consent or if consent is unreasonably withheld.
5. Gender requirement: An applicant may only adopt a child of the same gender, unless they have connection by nasab under which they are haram to marry forever.
6. Child already adopted: An adoption order can only be made if the child has not already been adopted, unless the judge is satisfied that the earlier adoption order has been revoked or requires change.
7. Resident in Brunei: Both the applicant or child is must be ordinarily resident in Brunei Darussalam.
8. Only one applicant can adopt a child: Two spouses will be treated as one applicant.
9. Custody requirement pre-application: Child must be in the custody and care of the applicant for 6 continuous months before the application is made.
What is the implication of a child’s parents being unknown under the Islamic Adoption of Children Act, Chapter 206?
[Section 8, Cap 206]
If the child’s parents are unknown, the child is deemed to be a Muslim under the Act. Therefore, the child cannot be adopted by a non-Muslim.
What act is Chapter 40?
Land Code
What act is Chapter 41?
Land Acquisition Act
What act is Chapter 167?
Employee Trust Act
What Act is Chapter 184?
Syariah Courts Act
What act is Chapter 203?
Societies Act
What act is Chapter 206?
Islamic Adoption of Children Act
