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.

Third of Four Part

1.     Section 27(3) Application and the Registrar-General’s Discretion

Pursuant to Section 27(3), the Respondents must pay a prescribed fee and submit a statutory declaration meeting the elements prescribed.  For his part, according to Section 27(3), the Registrar-General may make the requested correction if he is satisfied with the facts set forth in the statutory declaration.  As evident from his rejection letter, the Registrar-General denied the application not because the Respondents failed to meet Section 27(3)’s requirements, but because the child was illegitimate.[1]  The issue then was whether the Registrar-General had abused his powers under Section 27(3) for basing his rejection on religious reasons. 

The Court of Appeal found that the Registrar-General’s rejection of the Respondents’ Section 27(3) application in the context of Section 13A(2) was irrational and in excess of power.

Section 13A concerns the surname that is to be ascribed to a child.  If the child is legitimate, according to Section 13A(1), the surname shall normally be the surname of the father.  On the other hand, if the child is illegitimate, according to Section 13A(2), the surname may be the surname of the mother unless the person acknowledging himself to be the father requests that his surname should be ascribed as the child’s surname.

To the Court of Appeal, the word “surname” naturally would include the patronymic surname; in its view, a surname was nothing more than the name borne in common by members of a family. Upon concluding that a surname would include a patronymic surname, the Court of Appeal proceeded to review the reasonableness of the Registrar-General’s rejection of the Respondents’ Section 27(3) application.  It held that the Registrar-General had acted irrationally and in excess of his power because the Respondents had met the requirements of Section 13A(2).  It was an abuse of power on the part of the Registrar-General to refer to Muslim name convention as there was nothing in the BDRA that allowed him to do so, the Court of Appeal reasoned. 

The Majority, however, arrived at a different conclusion. After several testimonials from experts showing that Malays did not have surnames as the term is understood in its narrow and traditional meaning, the Majority concluded that the term did not include a patronymic surname; a surname was not the same as a personal name. The Majority maintained that the word’s plain meaning be adhered to, and that purposive approach to statutory interpretation was unnecessary to construe the term.. Construed as such, the Majority concluded that Section 13A had no application to Muslim children.[2]

The Majority found the child’s surname was never an issue to the Registrar-General and irrelevant in addressing the question at hand: whether the Registrar-General had acted for a proper cause and was reasonable when he applied Islamic law in the performance of his statutory duty under the BDRA. 

According to the Majority, looking generally at Islamic law and looking specifically at Islamic naming convention, was reasonable conduct by the Registrar-General under the standard for judicial review of executive discretion.  This has to be so, the Majority reasoned, due to the fact that Islamic law was the personal law of the Respondents. 

The Court of Appeal referred to Nitaben Nareshbhai Patel v State of Gujarat & Ors [2008] 1GLR 884, an Indian case that construed Section 15 of India’s Births and Deaths Registration Act, a provision regarding the correction of any errors in birth registry similar to Section 27(3).  

At issue in Nitaben was whether the Registrar could refer to certain guidelines when exercising his powers to make the corrections under Section 15. There, the court held that the Registrar was not justified to refer to these guidelines and to read them so as to limit his powers to make corrections.[3]  

The Majority, however, was not persuaded. It held Nitaben had no application to the bin Abdullah case because the facts were different and the Indian statute had no equivalent to Malaysia’s Section 13A(2). More importantly, continued the Majority, the Registrar-General was not dealing with some guidelines, but rather the Respondents’ personal law.  

The point of Nitaben was lost to the Majority.  The point of Nitaben was that the Registrar-General’s powers under Section 27(3) are so constrained that he could not look at any sources outside the statute to exercise his discretion.  Applying the reasoning in Nitaben, the Registrar-General must only look within the statute, the BDRA, to guide the exercise of his corrective powers.  Indeed, Section 27(3) itself was clear on how he should exercise the discretion – upon payment of the prescribed fee and upon satisfying himself of the truth of facts in the accompanying statutory declaration. 

We need not go to India to assess the legality of the Registrar-General’s exercise of his discretion. We only need to apply the principles in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1MLJ 135, a celebrated Federal Court case on judicial review of executive discretion.

In Pengarah Tanah dan Galian, the respondents, proprietors of a parcel of land in Kuala Lumpur, applied for the subdivision of the land to the Land Executive Committee.  Their application was approved subject to certain conditions, one of which was an exchange of the title of the land in perpetuity for a 99-year lease. The respondents challenged this specific condition as invalid on the ground that the committee went beyond its powers and the condition was ultra vires.  The committee argued that the condition was valid because Section 124(5)(c) of the National Land Code allowed the committee to approve a conversion of land use subject to “such other requirements as the state authority may think fit.” Relying on English cases decided under the United Kingdom town and country planning legislation that empowered planning authorities to refuse permission or to grant permission unconditionally or to impose such conditions “as they think fit,” Raja Azlan Shah Ag CJ (Malaya) (as his late Royal Highness then was) held that the committee’s discretion was not unfettered so as to permit it to impose whatever conditions it likes; the conditions imposed must relate to the permitted development. Since the condition objected to had no relation to the permitted development, the condition was ultra vires.

 

Applying the foregoing standard to the bin Abdullah case, the issue then was whether the basis of the rejection of Respondents’ Section 27(3) application had any connection with the purpose of the BDRA.  

 

As fully explained by the Minority, the BDRA is a statute enacted pursuant to Item 12 of the Federal List in the Ninth Schedule of the Federal Constitution, which relates to the census and statistics of the country.  The statute’s object, made even clearer by its long title, is to provide a census of all citizens through a national system of registration of births and deaths.  Using the statute for a purpose other than its intended purpose, no matter how desirable, was an abuse of his powers. What the Registrar-General did was no different from what the Executive Committee did in Pengarah Tanah and Galian.  

 

That the executive with discretionary powers would be acting unlawfully if he failed to exercise his discretion in furtherance of the objects and policy of the empowering statute was reaffirmed by several cases under the Industrial Relations Act cited by the Majority. 

 

For example, in National Union of Hotel, Bar and Restaurant Workers v Minister of Labour and Manpower [1980] 2MLJ 189, the issue was whether the minister abused his discretion under Section 26(2) of the Industrial Relations Act to refer a trade dispute to the Industrial Court.  The Federal Court approached the review of the minister’s discretion by taking into account the policy and objects of the Industrial Relations Act. Having so construed, the court held that the minister had not abused his discretion.  The court said the minister would have abused his discretion if he had misconstrued the statute or his actions defeated the statute’s policy and objects. 

 

In Minister of Labour Malaysia v Lie Seong Fatt [1990] 2MLJ 9, another case cited by the Majority, the question was whether the minister abused his discretion pursuant to Section 20(3) of the Industrial Relations Act when he refused to refer the respondent’s complaint to the Industrial Court.  The minister had broad discretion under Section 20(3) because the Section empowered the minister to refer complaints to the Industrial Court if he “thinks fit” to do so.  Nonetheless, the court held that it would be proper for the court to intervene if the minister’s decision “militates against the object of the statute.” 

 

The same principle was applied in another case referred to by the Majority.  In Menteri Sumber Manusia v Association of Bank Officers [1999] 2 MLJ 33, at issue was whether the threshold jurisdiction of the Minister under Section 9(1A) of the Industrial Relations Act covered only employee–employer disputes. There, again, the Federal Court construed the minister’s discretion in light of the object of the empowering statute and held that the plain reading of the statute authorized the minister to also refer disputes involving “a trade union of workmen or an employer or a trade union of employers.” 

 

To sum up, Pengarah Tanah dan Galian and other cases the Majority cited demanded that judges construct executive discretion in the context of the objects of the empowering statute. 

 

The Majority cited Lina Joy v Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585 to show that the practice of applying Islamic law on the part of the National Registration Department was not new. Without commenting on the correctness of Lina Joy, it must be recalled that Lina Joy did not involve BDRA, but rather the National Registration Act 1959 and its implementing regulations, the National Registration Regulations 1990.  One statute cannot be used to construe another.  In National Union of Hotel, Bar, Restaurant Workers, (supra) which quoted Lord Wilberforce’s statement in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] 3 All ER 665, 682, the court reiterated the fundamental rule that each statute should be individually construed because “there is no universal rule as to the principles on which the exercise a discretion may be reviewed; each statute or type of statute must be individually looked at.”  

 

The practice of the National Registration Department under a different statute, not the objective of the BDRA, also explains the Majority’s approach to its analysis of the Registrar-General’s discretion. 

 

The Majority seemed to appreciate the stringent standard that was called for.  It quoted, and it quoted approvingly, the famous statement of Raja Azlan Shah in Pengarah Galian dan Tanah. According to Raja Azlan Shah: 

 

Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper cause, and that it should not be exercised unreasonably.  In other words, every discretion cannot be free from legal constraints; where it is wrongly exercised, it becomes the duty of the courts to intervene. [At page 148]

 

What the foregoing statement meant by “reasonableness” and “proper cause” must relate to the purpose of the statute that conferred the discretion, as explained earlier.[4]  The meanings of these terms were not to be colored by the personal beliefs of the Registrar-General.  Put differently, these terms are terms of legal constructs of Pengarah Tanah dan Galianand the cases referred to earlier. 

 

No one questions the special status of Islam under the Federal Constitution. No one questions that Islamic law is the law of the land.[5] No one questions the personal law of the Respondents. 

 

 

 

But one questions whether the Majority appreciated the limits of executive discretion as Pengarah Tanah dan Galian and its progeny would require us to do. 

 

 

Next: Last of Four Parts:  The Ultimate Decision, The Consequential Order

 

 

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[1] The Director-General’s rejection letter in full reads: 

2. Dukacita dimaklumkan bahawa permohonan pembetulan maklumat dalam Daftar Kelahiran anak tuan/puan telah DITOLAK kerana TEMPOH KELAHIRAN DAN TARIKH PERKAHWINAN TIDAK MENCUKOPI BAGI SABJEK DINASABKAN KEPADA BAPA. 

Translation:  We regret to inform you that your application to correct the information on your child’s birth certificate is REJECTED because the TIME FRAME BETWEEN BIRTH AND DATE OF MARRIAGE IS INSUFFICIENT TO ATTRIBUTE LINEAGE TO THE FATHER.

 

 

 

[2] What the word “surname” meant was addressed extensively by the Court.  In the author’s view, the Minority’s construction of the term was strongly supported by legislative history of Section 13A and the Minority’s criticism of the use by the Majority of experts in statutory interpretation was well supported. Moreover, the expert testimonials in this case merely confirmed what is generally known – that Malays do not have “surnames” as the term is traditionally understood and that they use patronymic surnames.  The author also supports the use of purposive approach to construe the term and of the view that the application of this approach was persuasively argued by the Minority.After all, the Registrar-General did not ascribe bin Abdullah because he was unclear as to what “surname” meant.  In fact, he understood surnames as including patronymic surnames. As the Minority noted, the naming convention involving a child’s personal name followed by the father’s personal name after “bin” or “binti,” as appropriate, has long been part of the culture of the Malays and other races (part from the Chinese) in Malaysia.

 

[3] The Nitaben court referred to the decision in Registrar, Birth and Death Rajkot Municipal Corporation v. Vimal M Patel Advocate in Letters Patent No. 231/2001 dated 30.3.2001 that construed Section 15 of the Act of 1969. The Vimal court at Paragraph 4.1 addressed the Registrar’s Section 15 powers to make corrections as follows: 

 

4.1 It will be seen from the above provision that the registrar is empowered to correct the entries or cancel them by suitable entry in the margin without any alteration of the original entry and he shall sign the original entry and add thereto the date of the correction or cancellation. Such correction can be made when the registrar is satisfied that any entry of a birth or death in any Register kept by him under the Act is erroneous in form or substance or has been fraudulently or improperly made. Such power has to be exercised subject to the rules that may be made by the State Government with respect to conditions on which and the circumstances in which the entries may be corrected or cancelled. Since the powers if the Registrar are wide enough to ensure that the entry made in the Register does 

 

 

[4] While Raja Azlan Shah in this passage called for the “proper cause and reasonableness” standard to check executive discretion, other courts have used different terms.  In one case, for example, the court required the discretion be exercised “without improper motive.” In another, the court demanded the executive to “act bona fide, fairly, honestly and honorably.” Notwithstanding the language, the discretion must be exercised to advance the objects of the empowering statutes.

[5] The special status of Islam under the Federal Constitution does not elevate the status of Islamic law as the supreme law of Malaysia, a status only the Federal Constitution enjoys. The “law of the land” means the law of the country, and in Malaysia, it means Malaysian law as opposed to foreign law.  If the law in question is local law as opposed to foreign law, the judge is not competent to allow evidence to inform him what that law is.  The judge is said to take judicial notice of that local law, to propound that law. This is the meaning of the famous statement “Muslim law is the law of the land” in Ramah v Laton [1927] 6FMSLR 28 quoted by the Majority. 

The question in Ramah v Laton concerned the application of a local law relating to harta syarikat in a dispute between the surviving widows. At the trial, witnesses were called to give their opinions regarding harta syarikat.  Thorne J held that it was not competent for the trial judge to allow evidence to prove what the law was because the law before the court was local law, the law of the land, and not foreign law for which the use of expert opinions would be appropriate.  Thus, the famous statement of Thorne J in its entirety reads: 

 

The local law [Muslim Law] is a matter of which court must take judicial notice. The Court must propound the law, and it is not competent for the Court to allow evidence to be led as to what isthe local law…. For these reasons the books and the oral testimony of the witnesses who quoted from those books were wrongly admitted….” the local law…. For these reasons the books and the oral testimony of the witnesses who quoted from those books were wrongly admitted….”

 

The famous statement should not be taken out of context and be given beyond what was intended.