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.

 

Last of Four Parts

 

1.     The Ultimate Decision, The Consequential Order

 

The Majority left undisturbed the Registrar-General’s decision to reject the Respondents’ application to substitute “bin Abdullah’ for “bin MEMK” because that part of the decision was the correct application of Islamic principles set forth in Islamic Family Law (State of Johor) Enactment 2003 (Johor was the state of the Respondents’ residence).  The Majority also left the notation “Section 13 Application” undisturbed, holding that the Registrar-General was merely reflecting the record and dismissed the Respondents’ discrimination claims. However, the Majority quashed the Registrar-General’s decision to ascribe “bin Abdullah” because that decision was not based on the correct application of the Johor enactment. The Majority made a consequential order for the Registrar-General to remove “bin Abdullah” from the child’s birth certificate. The final outcome resulted in the child’s personal name being the only name on his birth certificate along with the notation “Section 13 Application.”

 

It is unclear if the consequential order was the correct exercise of the court’s power in judicial review in this case. In Pengarah Tanah dan Galian, the Federal Court held that it was inappropriate for the High Court to make a consequential order and that the correct cause of action for the court was to remit the case back to the Executive Land Committee for reconsideration in line with the court’s ruling.[1]

 

Although the foregoing is still the general rule, it appears Malaysian courts have also been ready to make consequential orders when justice so requires. Justice may require the court, for example, to make such order in an industrial relations case in order to prevent further harm and injustice on the claimant.[2] In situations such as this, quicker justice trumps the separation-of-powers doctrine at the heart of the general principle.  

 

It is unclear what kind of justice entered the mind of the Majority for it to break with the general principle.  The consequential order was more like injustice without further delays.  Without proper name and family identity, the child (and other illegitimate children) must face a new form of discrimination and further stigmatization, a condition no civilized society should condone. 

 

 

2.     Conclusion

 

MEMK and NAW were more than upset to discover their son’s name on the birth certificate was “Child bin Abdullah,” and not “Child bin MEMK.”  Thinking there was an honest error on the part of the Registrar-General, they requested the mistake be corrected.  The Registrar-General denied the application because the son, according to his calculation, was conceived out of wedlock. Disappointed and distraught, MEMK and NAW asked the Registrar-General to show his powers to change their son’s name. The Registrar-General showed the BDRA.  MEMK and NAW then asked where exactly that provision is in the BDRA.  The Registrar-General was unable to so.  Nor could the Majority help him. 

 

What the Majority did instead was to review the Registrar-General’s action from the standpoint of Islamic law, a new standard unsupported by the object of the BDRA and judicial review cases. The approach enlarges the powers of the Registrar-General far beyond those provided specifically by the BDRA.  It emboldens bureaucrats, many with personal agendas and who, as the bin Abdullah case demonstrated, would (mis)apply their own understanding of areas where Islamic law has no application.

 

Forty years ago in 1979, Raja Azlan Shah made the following observation regarding the arrogance of the government departments of his time and the duty of the courts to intervene when discretionary power is wrongly exercised. He wrote: 

 

The Courts are the only defense of the liberty of the subject against department aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law.  I would once again emphasize what has often been said before, that “public bodies must be compelled to observe the law and it is essential that bureaucracy should be kept in its place”’ (per Danckwerts L.J. in Bradbury v London Borough of Enfield [1967] 3 All ER 434 443).[3]

 

In the same vein, we must call upon the courts to compel the bureaucrats to observe the law, and for the courts not to create more confusion, especially confusion along the line between secular and the Islamic drawn carefully in the Federal Constitution. 

 

 

 

 

 

 

 

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[1] Pengarah Tanah dan Galian at Page 686.

[2] For example, the Federal Court in Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, made a consequential order because remitting the case back to Industrial Court would do great harm and injustice to the claimant given his age and personal situation.    

 

[3] Pengarah Tanah dan Galian, at 148.