The Awesome (Curious) Powers of the Registrar-General of Births And Deaths

 

The Awesome (Curious) Powers of the Registrar-General of Births and Deaths: 

Some Observations on the Bin Abdullah Case

Alima Joned*

* Alima Joned, JSD (Yale), LL.M (Lon), LL.B (Mal); Of counsel, Medel Sanfilipo, Washington, D.C. USA; Adjunct Professor, Faculty of Law, University of Malaya. 

First of Four Parts

[MBM’s note:  In early 2012 a Muslim couple sought the late registration of their child born on April 17, 2010. They were married on October 24, 2009, six months before the birth. On March 6, 2012 they were issued a birth certificate, but with the child’s name not what the parents had chosen. Instead it had the generic “bin Abdullah” appended, the traditional name given to a Muslim child born out of wedlock, together with the notation “Section 13 Application,” the provision pertaining to an illegitimate child.

Three years later on February 2, 2015 the couple sought to correct the error. On May 8, 2015 the Registrar-General (RG) of the National Registration Department (NRD) rejected their request “on religious grounds.” The couple sought judicial review, and on August 4, 2016 the High Court denied their request. They appealed, and on May 25, 2017 the Court of Appeal unanimously decided in the parents’ favor. It held that the Registrar-General’s actions were outside his statutory duty of simply registering births and deaths. The Registrar-General had neither reason nor justification to ascribe “bin Abdullah” and no authority to add the notation “Section 13 Application” in the child’s birth certificate. 

 

Among other things, the Appellate Court ruled that the law does not empower NRD’s Registrar-General to either override the Muslim father’s wish to have his name used as his child’s patronym, or to decide on his own that the child’s patronym should be ‘Abdullah,’ stressing that a ‘fatwa’ (religious edict) is “not law and has no force of law and cannot form the legal basis” for the decision on an illegitimate child’s patronym. It directed the Registrar to delete the “bin Abdullah” and substitute the child’s father’s name instead, as per the parents’ initial entry.

 

            The Registrar and the government appealed. On February 13, 2020 the highest court of the land, The Federal Court, decided in a 4:3 decision to reverse the Appeals Court decision. Meaning, that parent cannot give their child the name they (parents) had chosen but to accept one assigned by the bureaucrats. In a meaningless victory, the Federal Court allowed the “bin Abdullah” appellation be excised from the child’s birth certificate.

            The following is a commentary by Alima Joned, an attorney in Washington, DC. To her, this was a straightforward case of Administrative Law regarding the conduct of an official whose duties are clearly defined by statutes. Had the Federal Court focused on this, the crux of the case, namely whether in his performing the registration of births of Muslim children, the Director-General may refer to and rely on Islamic law on legitimacy, the remaining questions would have been answered, and answered correctly. The Court of Appeal and the Federal Court’s minority opinion correctly observed that the child’s illegitimacy was not an issue in this judicial review. Apart from the constitutional basis of the BDRA’s (Birth and Death Registration Act of 1957) enactment, this case involved no other constitutional law issues. 

Courts should compel bureaucrats to observe the law, not create more confusion, especially along the sensitive boundaries between secular and religious that had been deliberately drawn in the Constitution

 

Alima Joned received her undergraduate law degree from the University of Malaya, and her Masters and Doctorate in Law from London University and Yale respectively. She is currently Adjunct Professor of Law, University of Malaya. The following is her full commentary as published in the Malaysian Law Case Journal, June 2020. Reprinted with her kind permission.]

 

Abstract:

The majority of the judges of the Federal Court in the case of Jabatan Pendaftaran Negara, Ketua Pengarah Pendaftaran, Kerajaan Malaysia v  Seorang Kanak-Kanak, MEMK, and NAW 2020 2 MLJ 277 [commonly referred to as the “bin Abdullah” case] held that the Registrar-General of Births and Deaths Department can apply Islamic law on the naming of illegitimate children when discharging his duty under the Births and Deaths Registration Act (BDRA) 1957.  According to the majority decision, the refusal of the Registrar-General to make corrections under Section 27(3) of this statute was a proper exercise of his discretion because the parties [parents] were Muslims and thus Islamic law was applicable.

[new para] This Note argues that the majority on the Federal Court misapplied the standard of judicial review, paid lip service to landmark cases, and ultimately rendered an absurd and cruel outcome with far-reaching implications.  This case, the Note further argues, should have been approached solely as an administrative law question where the focus of the analysis should be on the statute that created the public official, the Registrar-General.  Approached in that manner, the legality of the Registrar-General’s conduct for possible errors of law, not just for his abuse of discretion, could then be fully examined. 

1.     Background

In Jabatan Pendaftaran Negara, Ketua Pengarah Pendaftaran, Kerajaan Malaysia v  Seorang Kanak-Kanak, M.E.M.K, and N.A.W., the National Registration Department, the Registrar-General of National Registration Department (the “Registrar-General”), and the Government of Malaysia (collectively, the “Appellants”) appealed to the Federal Court against the Court of Appeal’s decision on A Child & Ors v Jabatan Pendaftaran Negara & Ors [2017] 4 MLJ 440 that set aside the High Court’s decision and held that the Registrar-General acted outside his statutory duty under the Births and Deaths Registration Act 1957 (the “BDRA”). The respondents were one Child and his father, MEMK, and his mother, NAW (collectively, the “Respondents”).  

Below are the events that took place that prompted the Respondents to seek several forms of relief in the High Court: 

§  24 October 2009, MEMK and NAW were married.

§  17 April 2010, the child was born.

§  In early 2012 MEMK and NAW registered the child’s birth pursuant to the provision regarding late registration of births, Section 12(2) of the BDRA.

§  6 March 2012, the Registrar-General issued the child’s birth certificate with the child’s full name “Child bin Abdullah” and not “Child Bin MEMK,” along with a notation “Section 13 Application.” 

§  2 February 2015, MEMK made an application to correct “bin Abdullah” to “bin MEMK” pursuant to the provision concerning the correction of records, Section 27(3) of the BDRA.

§  8 May 2015, the Registrar-General rejected MEMK’s Section 27(3) application, affirming his decision to ascribe “bin Abdullah” on religious grounds. 

Unhappy with the Registrar-General’s refusal to make the correction, the Respondents applied for judicial review in the High Court for several forms of relief, including a declaration that the Registrar-General had no power under the BDRA to ascribe the patronymic surname “bin Abdullah” and a mandamus to remove the notation “Section 13 Application” and to replace “bin Abdullah” with “bin MEMK” on the child’s birth certificate.  After the application was rejected, the Respondents appealed to the Court of Appeal that allowed the appeal and held that the Registrar-General’s actions were outside his statutory duty. 

The Registrar-General’s statutory duty, according to the Court of Appeal, was simply to register births and deaths.  Because MEMK’s name had been entered in the birth registry, according to the Court of Appeal, the Director-General had neither reason nor justification to ascribe “bin Abdullah.” Similarly, the Court of Appeal held that the Registrar-General had no authority to add the notation “Section 13 Application” in the birth certificate; he had no authority to do so under Section 13 or under any other provision of the BDRA.   

A panel of seven judges on the Federal Court heard the government’s appeal and decided by a 4/3 majority for the Appellants (government and Director-General). Meaning, the highest court of the land denied the couple the right to name their child as they so wished.

For easy reference, this Note uses the term “Majority” to refer to the majority of the judges on the Federal Court and the term “Minority,” the dissenting judges.  The term “Court” refers to the Federal Court.

The questions before the Court are listed as follows: 

-       Whether in performing the registration of births of Muslim children, the Director-General may refer to and rely on sources of Islamic law on legitimacy. 

-       Whether the civil court may determine questions or matters on the legitimacy of Muslim children in respect of naming and ascription of paternity. 

-       Whether Section 13A of the BDRA applies to the registration of births of illegitimate Muslim children, enabling the children to have the personal names of the persons acknowledging to be their fathers. 

It is the author’s view that by addressing the first question, namely whether in his performing the registration of births of Muslim children, the Director-General may refer to and rely on Islamic law on legitimacy, the remaining questions would have been answered, and answered correctly. The Court of Appeal and the Minority correctly observed that the child’s illegitimacy was not an issue in this judicial review. Apart from the constitutional basis of the BDRA’s enactment, this case involved no other constitutional law questions. 

Next:  Errors of Law by NRD’s Director-General