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. 

Second of Four Parts

1.     Errors of Law by the Director-General of National Registration Department

It is trite administrative law that every challenge to the power of a public official begins with the statute that creates the office. That statute may confer the official with absolute duties or discretionary powers, authorizing a specified action in certain circumstances.  The BDRA is no different.  Having stipulated, in Section 3(1), for the appointment of the Registrar-General with the responsibility of carrying out the BDRA’s provisions, the statute then directs how this responsibility is to be carried out.  These are mandatory directions, expressed in terms such as “shall,” addressed to the Registrar-General.

The BDRA also confers discretion to the Registrar-General couched in specific language to convey the degree of discretion and how it should be exercised. Together, the statutory directions and the discretionary powers of the Registrar-General ensure an accurate repository of statistical births and deaths in Peninsular Malaysia—the only purpose intended by Parliament.  Unfortunately, the Majority failed to engage in this crucial analysis of the Registrar-General’s statutory duties. In fact, as far as administrative law is concerned, the Majority focused only on the discretion of the Registrar-General under Section 27(3), which is addressed below in subheading (3) of this Note.

Judicial review in Malaysia generally involves cases of public authorities with wide discretionary powers.  Cases involving public officials with a simple administrative function, as with recording prescribed particulars in a registry and to issue an extract of those particulars in a certified document commonly called a “certificate,” specifically, are less common. One recent Federal Court decision where this issue arose is Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] MLJ 545. 

One of the issues in the Indira Gandhi case was whether Perak’s Registrar of Mualaffs acted legally when he issued certificates of conversion of three minor children without their parents’ written consent. The Federal Court examined the Administration of the Religion of Islam (Perak) Enactment 2004 and found that the consent was a specific requirement before the issuance of a conversion certificate. Since the registrar did not obtain this consent, the certificates were held null and void. It was clear, according to the Federal Court, that the registrar had acted outside his statutory duty under the Perak enactment; the registrar had stepped out of the “four corners” of that statute. 

 

Although the Indira Gandhi case was not referred to by the Court of Appeal, the case was cited favorably by the Minority to highlight the administrative function of the Registrar-General, a function to be discharged pursuant to specific directives.  There was no mention of this case in the Majority’s opinion.

 

Indeed, the Federal Court’s approach to its judicial review function in Indira Gandhi should have been instructive to the bin Abdullah case.  The registrar in Indira Gandhi acted outside his statutory duty because he did not do what the statute required him to do.  Meanwhile the Registrar-General in the bin Abdullah case acted outside of his statutory duty because he performed acts the statute did not authorize him to do.  In both situations, the actions were ultra vires of the empowering statutes. 

 

Under the BDRA, the duty of the Registrar-General is to register births in Peninsular Malaysia. This duty is set forth in Section 7(1) read together with Rule 3 of the Births and Deaths Registration Rules 1958 (the “Rules”).[1]  These Rules were promulgated by the Minister pursuant to his powers under Section 39 of the BDRA.  Under these provisions, the Director-General is required to register every birth in Malaysia and he is to do so by entering particulars concerning the birth set out in Form JPN.LM01.  

 

Section 7(1) reads in pertinent part:

 

…. [T]he birth of every child born in Malaysia shall be registered by the Registrar in any registration area by enteringin a register such particulars concerning the birth as may be prescribed; …. [emphasis supplied]

 

“Such particulars” in the language of Section 7(1) are particulars in Form JPN.LM01, a form developed pursuant to Rule 3 of the Rules. 

 

Having obtained the prescribed particulars, the Registrar-General’s task next in the registration process is to provide the child’s parents, assuming they are the registrants under Section 7(2), an extract of Form JPN.LM01’s particulars in the prescribed format called a birth certificate.[2]

 

Nowhere during the entire process i.e. from the filling up of Form JPN.LM01 with the prescribed particulars to the issuance of the birth certificate, is the Registrar-General empowered to substitute “bin Abdullah” for “bin MEMK” as the child’s patronymic surname.  Such power is nowhere to be found in the BDRA. The power to substitute the “bin Abdullah” patronymic surname or to make any changes to the contents of a birth certificate only lies with the Minister pursuant to Section 39.[3]  By doing so on his own, the Registrar-General has clearly committed an error of law.  What the Registrar-General had done was no different from what the registrar in the Indira Gandhi case did. Because he acted beyond the scope of his statutory duty, his action should be declared null and void.

 

The same argument applies to the Registrar-General’s action of entering the notation “Section 13 Application” in the birth certificate. 

 

Indeed, the Majority in the bin Abdullah case did not and could not pinpoint to any specific provisions in the BDRA that could justify the action of the Registrar-General to substitute the child’s patronymic surname to “bin Abdullah” or to make the notation “Section 13 Application.”   

The simple administrative function of the Registrar-General, expressed in mandatory and clear language in Section 7(1), along with the implementing Rules, received no attention from the Majority.  Instead, the Majority focused on the reasonableness of the Registrar-General’s conduct in the context of Section 27(3) application, an application the Respondents had to make to correct legal errors committed by the Registrar-General in the first instance.

Section 27(3) reads:

Any error of fact or substance in any register may be corrected by the Registrar-General upon payment of prescribed fee and upon production by the person requiring such error to be corrected of a statutory declaration setting forth the nature of the error and the true facts of the case, and made by two persons required by this Act to give information 

 

concerning the birth, still-birth or death with reference to which the error has been made, or in default of such persons then by two creditable persons having knowledge to the satisfaction of the Registrar-General of the truth of the case; and the Registrar-General may if he is satisfied of the facts stated in the statutory declaration cause such entry to be certified and the day and the month when such correction is made to be added thereto.

 

Next:  Section 27(3) Application and the Registrar-General’s Discretion

 

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[1] The BDRA specifies no other duty to the Registrar-General as evident from Section 2 that defines the term “Registrar” to mean the registrar appointed under the act “whose duty it is to register particulars of a birth.” 

[2]See Section 14, which requires the Registrar-General to issue a birth certificate at the time of the registration of the birth. Although in practice a birth certificate will not be issued on the day of the registration itself (that it will take time to process the document), the idea of Section 14 is that once all the particulars of the birth are obtained and entered in the registry, what is left to be done by the Registrar-General will simply be to issue the certificate reflecting the extracts from the registry. The provision does not expect the Registrar-General to incur time do perform an unrelated task. 

[3] Section 39(a) reads in relevant part: “Subject to the provisions of this Act the Minister may make rules in respect for all or any of the following matters: (a) the form and contents of the registers, Certificates of Birth, Certificates of Death, forms, certificates, notices and other documents and the information to be supplied for carrying out the purposes of the Act.” [Emphasis added.]