{"title":"向文莱输出宪法法院?好处和前景","authors":"Ann N. Black","doi":"10.31078/consrev826","DOIUrl":null,"url":null,"abstract":"Negara Brunei Darussalam (Brunei) is Asia’s only, and one of the world’s few remaining, absolute monarchies. Brunei’s much-venerated Sultan and Yang Di Pertuan Agong is accountable to only Allah as his “shadow on earth”. Within the Sultanate he is head of religion, Prime Minister, and as Sultan he appoints all members to the nation’s six advisory Councils. He is above the law and is the country’s legislator. He can amend the constitution and bypass the Legislative Council without court oversight. Judicial review was formally abolished in 2004. The accrual of power – judicial, religious, legislative, and executive – in the hands of one man is only possible by the continued renewal of a state of emergency. Since 1962, the state of emergency has been renewed every two years and once Brunei is in a state of emergency, all powers devolve to its Sultan. There is an absence of any effective checks and balances mechanism such as a democratically elected Legislative Council, a free and open media, a judiciary with powers of constitutional review, an accountable executive government, or an engaged civil society. Because the constitutionality of sixty years of emergency rule in Brunei has never been judicially determined, this paper argues it would be the first task for an independent Constitutional Court. The need for such determination on the legitimacy of Brunei’s biennial emergency proclamations is set out and a case made as to why a Constitutional Court could be the circuit breaker for a return democratic participation, rule of law, and fundamental human rights in the Sultanate. There is reflection on the obstacles to any reform which make the prospects for this unlikely in the lifetime of the current Sultan.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":"1 1","pages":""},"PeriodicalIF":0.0000,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"1","resultStr":"{\"title\":\"Exporting a Constitutional Court to Brunei? Benefits and Prospects\",\"authors\":\"Ann N. Black\",\"doi\":\"10.31078/consrev826\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"Negara Brunei Darussalam (Brunei) is Asia’s only, and one of the world’s few remaining, absolute monarchies. Brunei’s much-venerated Sultan and Yang Di Pertuan Agong is accountable to only Allah as his “shadow on earth”. Within the Sultanate he is head of religion, Prime Minister, and as Sultan he appoints all members to the nation’s six advisory Councils. 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引用次数: 1
摘要
文莱达鲁萨兰国(文莱)是亚洲唯一的,也是世界上仅存的几个君主专制国家之一。文莱备受尊敬的苏丹和杨迪·佩尔图安·阿贡(Yang Di Pertuan Agong)只对安拉负责,因为安拉是他在地球上的“影子”。在苏丹国内,他是宗教领袖、总理,作为苏丹,他任命全国六个咨询委员会的所有成员。他凌驾于法律之上,是这个国家的立法者。他可以在没有法院监督的情况下修改宪法和绕过立法会。司法审查在2004年被正式废除。司法、宗教、立法和行政等权力的累积,只有在紧急状态持续延续的情况下,才有可能掌握在一个人手中。自1962年以来,紧急状态每两年延长一次,一旦文莱处于紧急状态,所有权力都移交给苏丹。香港缺乏任何有效的制衡机制,例如民主选举产生的立法会、自由开放的媒体、拥有宪法审查权力的司法机构、负责任的行政政府或积极参与的公民社会。由于文莱六十年的紧急状态统治的合宪性从未得到司法裁决,本文认为这将是一个独立的宪法法院的首要任务。报告指出,有必要对文莱两年一次的紧急公告的合法性作出这样的确定,并说明为什么宪法法院可以成为苏丹国恢复民主参与、法治和基本人权的障碍。人们对任何改革的障碍进行了反思,这些障碍使得在现任苏丹有生之年实现改革的前景不太可能。
Exporting a Constitutional Court to Brunei? Benefits and Prospects
Negara Brunei Darussalam (Brunei) is Asia’s only, and one of the world’s few remaining, absolute monarchies. Brunei’s much-venerated Sultan and Yang Di Pertuan Agong is accountable to only Allah as his “shadow on earth”. Within the Sultanate he is head of religion, Prime Minister, and as Sultan he appoints all members to the nation’s six advisory Councils. He is above the law and is the country’s legislator. He can amend the constitution and bypass the Legislative Council without court oversight. Judicial review was formally abolished in 2004. The accrual of power – judicial, religious, legislative, and executive – in the hands of one man is only possible by the continued renewal of a state of emergency. Since 1962, the state of emergency has been renewed every two years and once Brunei is in a state of emergency, all powers devolve to its Sultan. There is an absence of any effective checks and balances mechanism such as a democratically elected Legislative Council, a free and open media, a judiciary with powers of constitutional review, an accountable executive government, or an engaged civil society. Because the constitutionality of sixty years of emergency rule in Brunei has never been judicially determined, this paper argues it would be the first task for an independent Constitutional Court. The need for such determination on the legitimacy of Brunei’s biennial emergency proclamations is set out and a case made as to why a Constitutional Court could be the circuit breaker for a return democratic participation, rule of law, and fundamental human rights in the Sultanate. There is reflection on the obstacles to any reform which make the prospects for this unlikely in the lifetime of the current Sultan.