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M. Bakri Musa

Seeing Malaysia My Way

My Photo
Location: Morgan Hill, California, United States

Malaysian-born Bakri Musa writes frequently on issues affecting his native land. His essays have appeared in the Far Eastern Economic Review, Asiaweek, International Herald Tribune, Education Quarterly, SIngapore's Straits Times, and The New Straits Times. His commentary has aired on National Public Radio's Marketplace. His regular column Seeing It My Way appears in Malaysiakini. Bakri is also a regular contributor to th eSun (Malaysia). He has previously written "The Malay Dilemma Revisited: Race Dynamics in Modern Malaysia" as well as "Malaysia in the Era of Globalization," "An Education System Worthy of Malaysia," "Seeing Malaysia My Way," and "With Love, From Malaysia." Bakri's day job (and frequently night time too!) is as a surgeon in private practice in Silicon Valley, California. He and his wife Karen live on a ranch in Morgan Hill. This website is updated twice a week on Sundays and Wednesdays at 5 PM California time.

Sunday, October 25, 2020

Parliament Must Reject Muhyiddin


Parliament Must Reject Muhyiddin


M. Bakri Musa (www.bakrimusa.com)


The Agung’s rebuff to Prime Minister Muhyiddin’s request for declaration of a State of Emergency is but an expression of his lack of confidence in Muhyiddins’s leadership. If he has any sense of responsibility, Muhyiddin should resign. However in his over 40 years in politics, Muhyiddin had never shown any sense of public accountability. Do not expect him to have any now.


It is Parliament’s turn to drive home the Agung’s message (shared by the people) by rejecting Muhyiddin’s upcoming budget, if not a formal “no confidence” vote, thus forcing him to resign. The Agung would then be free to select one who in his opinion would command the confidence of the House. Meaning, he would have to accept Anwar’s presentation of October 13, 2020 and appoint him as Prime Minister. If as the Agung indicated, protecting people from this Covid-19 is his highest priority, a general election would not be a wise option.


Let’s be clear. The Agung rejecting the advice of an elected Prime Minister is no small thing and could be a dangerous precedent. Muhyiddin however is far from one. He is but an illegitimate “backdoor” prime minister; Parliament never ratified his leadership.


If however, Muhyiddin were to succeed in Parliament, as with bribing every UMNO MP with a cabinet position or GLC directorship, he would have won his battle but the nation would lose the war. It would forever be established that the King could dispense with his Prime Minister’s advice. There would be no turning back once that bridge is crossed. This should weigh heavily on those inclined to vote for Muhyiddin.


Muhyiddin should take no comfort with the Agung’s proforma expression of confidence hidden deep in the Council of Rulers’ statement. To be noted, Muhyiddin’s name was not mentioned, only the office.


The message from the Agung and the Council of Rulers was not even subtle. As a distracting aside, but one not missed, is that the four Governors were not in the decision. Ever wonder why the secessionist movement in East Malaysia is gaining traction or that citizens in Penang and Malacca feel left out?


Muhyiddin never indicated or even hinted on why he would need the sweeping powers of the Emergency Ordinance to fight Covid-19. If he did, then the Agung, like the rest of Malaysia, was not impressed.


The most egregious violators of the current public health measures on Covid-19 are Muhyiddin’s ministers and party officials. Emergency Rule would not change his ability to deal with that.


The obvious but unacknowledged fact is that Muhyiddin is an ineffectual leader; he could not lead even his ministers. All he knows is how to buy their loyalty through bribery, with public money. His cabinet is bloated for a reason.


Being weak is bad enough but Muhyiddin is also incompetent. He is not even Peter Principles personified (being promoted beyond one’s competence). Muhyiddin has been incompetent all along.


            Muhyiddin faces two choices:  Resign with grace, or face the prospect of an ugly and highly divisive “no-confidence” vote in Parliament and then be hauled out. No Malaysian Prime Minister, save perhaps the first, has ever gone out with any sense of class.


Mahathir deluded himself as being indispensable. He thought he had performed a class act back in February 2020 by resigning. He had expected an outpouring of support, a reprise of his June 2001 decision. Instead he plunged Malaysia into her present unneeded, distracting, and divisive crisis. Welcome to his Vision 2020!


His predecessor Najib tried to escape to Indonesia in a private jet on the night of his May 9, 2018 election mauling. Vigilant citizens mobilized though social media thwarted his “planned vacation.”


Before him was sleepyhead Abdullah; he woke up and found himself out of office. Before him was Mahathir, Version 2001, with his staged melodrama that succeeded in his delaying his departure for two years.


We know what happened to Hussein Onn (ill health) and Tun Razak (death).


Only the first Prime Minister exited with a modicum of grace. As Tunku Abdul Rahman wrote in his memoir, had he known his Deputy, Razak, was desperate for the job, he (Tunku) would have resigned sooner. There was no need for Razak’s behind-the-back scheming that triggered the May 1969 riot. That was the first and only time Parliament was suspended and emergency rule by decree instituted.


Going by history, Muhyiddin would have to be chased out. On the other hand as per Muslims’ belief, everything is in Allah’s hands. We propose; He disposes. Malaysia might get that divine intervention.


Sunday, October 18, 2020

Race, Religion, and Royalty: The Barnacles On Malay Society



Race, Religion, And Royalty:  The Barnacles On Malay Society

M. Bakri Musa








Available at all Amazon on line stores 


Race, religion, and royalty are the toxic triad of today’s Malaysian identity politics. That is a combustible combination for a multiracial nation. No surprise then that contemporary commentators focus on this aspect only.


Less noticed but far more consequential is that race, religion, and royalty are also the barnacles encrusting Malay society, impeding its progress and undermining the culture. There cannot be stability in Malaysia if Malays, her majority population, were to be fractured or left behind as the consequence of their obsession with three major distractions.


In this collection of essays the writer examines this second far more critical preposition, tracing the deterioration of race relations in Malaysia, the oppressive as well as pernicious rise of Islamism, and the increasing assertiveness as well as feudalistic behaviors of the Sultans.


Ketuanan Melayu (Malay Hegemony), the rallying cry of the hitherto ruling party, United Malay National Organization (UMNO), is one manifestation of this racism. That ugly aspect aside, this Ketuanan obsession distracts Malays from facing our most daunting challenge–of being competitive and productive. Ketuananvirulence has only increased in tandem with increasing Malay laggardness in matters social, economic, and educational. This is quite apart from Ketuanan Melayu chauvinism poisoning race relations and social harmony.


Malays are also increasingly preoccupied and obsessed with Islam. The faith is being exploited crudely but effectively by the other major Malay political party, Parti Al Islam Se-Malaysia (PAS). The Islamic cachet sells with Malays. Islam, at least the variation approved and propagated in Malaysia, exerts its most destructive influence in politics, economics, and education. Islamism is now deeply rooted in all institutions and the public sphere.


Increasing Islamization has turned Malaysian national schools from being less educational institutions and more indoctrination centers. Non-Malays have long abandoned the system. Now they are being joined by an ever increasing number of Malays, to the chagrin of the Islamists and champions of Ketuanan Melayu. Perversely, Malaysian schools which once played a major role in integrating the young are today being exploited as instruments to divide and segregate Malaysians.


Malaysia is cursed and burdened not by one but nine hereditary Sultans, with each taking turns to be King for the whole Federation. At least his tenure is restricted to five years, the only monarch in the world with term limits! Then there are four non-hereditary governors who are no less regal and expensive in their tastes and demands, all at taxpayers’ expense.


Instead of acting as a buffer and mediator of conflicts among Malaysians, especially Malays, these Sultans aggravate those divisions through their sly engagement in the old tried and true triangulation scheming. Today the Sultans align themselves with the ulama against the nation’s secular leaders. Earlier the Sultans were in cahoots with the politicians against the religious class to exploit business opportunities and to be able to frolic at their favorite casinos.


These critical essays are descriptive as well as prescriptive. The writer advocates focusing on making Malays competitive through improving the schools and other educational institutions. Curtail if not remove the influence of Islamism, and instead emphasize English and STEM subjects. Reducing the oppressive role of Islam in the public sphere would also be a positive development; likewise with reining in the ruling class and the Sultans with respect to their corruption and rent-seeking activities.


It is difficult to wean Malays of our special privileges crutch when Malay Sultans squat at the top of the special privileges heap, and swagger with their most golden of crutches. Curtailing that would be a good first step. Improving national schools by focusing on making young Malaysians fluently bilingual in Malay and English, as well as competent in science and mathematics would be another.


The changes advocated here are small and incremental in nature to avoid being disruptive and destabilizing, but cumulatively they would be transformative and revolutionary.



Next:  Introduction – The treacherous troika of Malaysian Identity Politics 


Wednesday, October 14, 2020

Muhyiddin Yassin: Resign Or Recall Parliament

 Muhyiddin Yassin – Resign Or Recall Parliament!


M. Bakri Musa (www.bakrimusa.com)


Anwar Ibrahim has given the Agong the assurance of his (Anwar’s) majority support in Parliament. The ball is now not at the palace but with Prime Minister Muhyiddin Yassin. He has to prove that he has the people’s support by securing a parliamentary vote of confidence. Failing that, he must resign. That is the only right and honorable course, for him and the nation. Amateurish press conference with put-on bonhomie is no substitute.


            With the Covid-19 threat and the tanking economy, the nation does not need this added leadership crisis.


            Parliament can meet virtually within days and end this divisive, unnecessary, and distracting issue. Parliament should not be allowed to drag this crisis like a debilitating cancer upon the nation. In a democracy, sovereignty lies with the people, meaning parliament, not the palace.


Parliament was scheduled to meet last August to pass the 2021 Budget but was postponed many times. Malaysia is now well into her new fiscal year and without a budget. What a way to run the country in crisis!


Had that Budget been approved as scheduled, Muhyiddin’s legitimacy would not have been questioned, and there would be no leadership issues. Tengku Razali had sought that vote of confidence back in August but was denied. Speaker Azhar Harun’s excuse was that it did not have a minister’s consent! Typical civil service mindset of Kami menunggu arahan! (I await instructions!) This character may have a law degree but functionally he is but a minister’s peon.


            If there is one critical factor in a leadership crisis, it is this:  Citizens want certainty and assurance now, not weeks or months later. Anything that does not help that or worse, muddles it and thus delays its resolution only aggravates the problem.


            The bland palace statement issued following Anwar’s visit falls into this category. Far from clarifying the matter, it muddled it even more. If the Agong was not satisfied with what Anwar had presented, as the palace statement implied, then he (Agong) should have raised it with Anwar right there and then, not issue a useless press statement hours later. Anwar’s meeting with the Agong was a business one, and very serious at that, not the usual ceremonial sembah menyembah bit with everyone obsequiously bowing and grinning, with nothing accomplished.


            That meeting lasted over 30 minutes. Was Agong not prepared to ask tough questions of Anwar at the time? That did not reflect well on the palace advisors.


            In that statement the Agong expressed concerns over the Covid-19 pandemic. Had he resolved the leadership matter there and then he would have made his greatest contribution towards controlling this pandemic. Anything else, no matter how heartfelt the message, depth of concern, or eloquent the prose, pales in comparison.


Now the Agong is reduced to being a Director of Human Resources seeking references for his top hire. Quit the parade of MPs to the palace. While the constitution is clear on the Agong’s function to appoint the nation’s top executive (the individual must have or believe to have the confidence of parliament), less clear is his power to dismiss. That should be the prerogative of and only of Parliament, if Muhyiddin refuses to resign.


            It is praiseworthy for Agong to have met Tengku Razali. As the longest serving MP, he is the repository of that body’s history, wisdom, and tradition. As for meeting UMNO leader Ahmad Zahid Hamidi, those facing criminal charges have no privileges of a royal audience. Innocent till proven guilty is fine in the court of law, but not at the palace. It must demand a much higher standard, as without even a hint of impropriety. As for Mahathir, he started this mess; dispense with him.


            In meeting every MP the Agong reduces himself to a royal interviewer-in-chief. The crucial point here is not the individual MP’s decision expressed in private to him but the MPs’ collective resolution after deliberating in Parliament where the proceedings are open. Democracy demands such transparency.


Meanwhile Anwar should set up his team, ready to go. Let us pray for Malaysia’s sake that will be soon. Malaysia has had enough of decades of corrupt and incompetent leadership. Malays have a special reason for wanting this to end now. We are fed up of our race and culture being equated with those loathsome traits and detestable characters.


Sunday, October 11, 2020

Anwar As "Wartime" Prime Minister


Anwar As "Wartime" Prime Minister


M. Bakri Musa (www.bakrimusa.com)



When the Agung meets Anwar Ibrahim on Tuesday, October 13, 2020, he should be treated in the same manner as Muhyiddin Yassin was back in February 2020. Then, recognizing the current public health emergency, the Agung should appoint Anwar as the equivalent of a Wartime Prime Minister.


If Anwar were to be denied the opportunity to lead Malaysia despite his documented majority support in Parliament, then the Agung would risk becoming entangled in the nation’s current toxic political bickering by his favoring one politician over another. He would also have to bear the heavy responsibility for unnecessarily exposing Malaysians to Covid-19 should he opt for a general election. The recent experience with Sabah should sober the Agung on that point.


A wartime leader has precedents within and outside Malaysia. Britain had one during both World Wars. Canada invoked its War Measures Act in 1970 following the riots in Quebec. A recent American Library of Congress survey found that many countries including such bastions of democracy as Sweden, Australia, and Germany have already adopted special legislative measures in response to the unprecedented challenges of Covid-19.


In May 1969 the then Agung suspended Parliament following the race riots. He appointed Tun Razak as the de facto Wartime Prime Minister, with the National Operations Council, also appointed, as his cabinet. The Agung sidelined the leader of the winning coalition Alliance, Tengku Abdul Rahman. Today, unlike in 1969, Agung need not suspend Parliament. It could still continue its oversight functions as with authorizing Bills.


Although the number of deaths from Covid-19 thus far is much lower than with the 1969 riot, nonetheless the uncertainties and number of livelihoods adversely affected already far exceeded that of the 1969 incident, and fast climbing. Make no mistake, this Covid-19 pandemic is war – against the smallest and toughest adversary. An effective weapon has yet to be developed. A wartime-type leader is exactly what Malaysia needs now.


As a Wartime Prime Minister, Anwar would be spared parochial party considerations and petty political obligations that now plague Parliament and the government. He could pick the best in and outside of Parliament or his party to be in his cabinet without having to worry about the political and other ramifications. Witness the current obscenity of Prime Minister Muhyiddin’s bloated cabinet, and his appointing scores of MPs to head GLCs or as special envoys. Those are but crude schemes to buy the loyalty of these yahoos in Parliament. The public pays twice, one through their incompetence and two, the exorbitant associated costs.


As for Covid-19, Muhyiddin is but a pathetic figure of an ineffectual abah (father) with a cane to effect his quarantine measures. That is kampung leadership of my youth, well over sixty years ago! His Health Minister Adham Baba is no better. All he could offer is air suam (warm water). And this character is a doctor!


In picking his cabinet, Anwar should exclude those who had served in the Najib Administration. Their allowing the 1MDB debacle to happen is disqualification enough. So out with Mustapa Mohamed, Hishammuddin Hussein, and the rest. Zahid Hamidi and Tengku Adnan are awaiting criminal trials while Najib Razak is a convicted criminal. He should not even be in Parliament.


Spared the threat of endless “no-confidence” votes in Parliament, the attendant distracting and destructive political jockeying would be gone. The current army of noisy jumping frogs would have their legs cut off, and Malaysians spared their ceaseless croaking.


Why jump parties when that would have no effect on the country’s leadership, or more precise, your political position? Slimy characters and jumping frogs like Azmin Ali would now have to divert their backroom skills and posterior apertures elsewhere outside of politics and government.


Calling for a voluntary political ceasefire or for the Agung and Council of Rulers to have these politicians work together, as a few have suggested, is the height naivety. These are political animals to their core.


This “wartime” appointment should last till the end of the current parliamentary mandate. Imagine, Malaysians spared the threats of jumping frogs, Sheraton moves, Meridien maneuvers, and other yet to be exposed backroom shenanigans! All, including Anwar and his cabinet, could then focus on their work and the challenges at hand. That would be a welcomed and refreshing relief, quite apart from being productive.


This would also give the various leaders time to strengthen their parties for the 2023 elections. UMNO for example, could begin the difficult but much-needed task of ridding the corrupt, racists, and incompetent from within its ranks. Currently those political parties are distracted from undertaking these necessary tasks because of the never-ending drama and uncertainty in Parliament. Clean, strong, and stable political parties are the backbone of a robust democracy.


For Anwar, focus on Covid-19, corruption, and education while grooming the next generation of leaders. Execute those well and he would have achieved under three years what Mahathir could not in his nearly a quarter of century leadership.


For Malaysians, a wartime-like leader would be a welcomed and much-needed reprieve from the current endless scheming. The burden of Covid-19 is heavy enough on everyone.

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. 









[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.

Wednesday, October 07, 2020

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



[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. 




Sunday, October 04, 2020

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


[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.]