By Danial Ariff Shaari
The polemics arising from the Court of Appeal decision with respect to the father’s name given an illegitimate Muslim child – hereinafter referred to as ‘bin Abdullah’ case – presents us an instance to look into the federal constitution for a just resolution.
I also found some legal opinions on the matter, expressed by learned lawyers Aidil Khalid and Lukman Sheriff, to be quite illuminating in helping me understand the judgment of Justice Abdul Rahman Sebli.
Integral to the issue is of course the Births and Deaths Registration Act 1957 (BDRA).
From my reading and to the best of my understanding, here are a few areas of concern which I’ve highlighted below:
(1) The Court of Appeal may have erred in failing to consider the division of powers between the federal and states’ legislative arm of government.
(2) The Court of Appeal may have erred by taking less precaution with regard to the distinctive jurisdiction between civil and syariah courts.
(3) The Court of Appeal may have erred in the application of various sections of the BDRA.
(4) The Court of Appeal may have usurped the policy-making powers, and decisions of parliament and the executive when the bench set aside the policy currently adopted by the National Registration Department (NRD).
Division of legislative powers and the harmony of federalism
The federal constitution is a testament to an ideal of federalism under which parliament as well as the state legislative assemblies – both the lawmakers of their respective territories – are granted exclusive powers to legislate on various matters.
This division of legislative powers is very well prescribed under Schedule 9, whereby parliament enjoys exclusive power to make laws with respect to the matters enumerated under List I whereas legislative power on matters under List II is exclusively granted to the states’ legislative assembly.
While national security, including national registration under item No.3 of List I falls under federal (i.e. parliament), the matters of marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship and other personal and family matters pertaining to Muslims are exclusive to state under item No.1 of List II.
Thus I believe it is unjust, unconstitutional and far from reason therefore that in order to determine a case before a civil court pertaining to the action of a civil authority, the harmonious application of both federal and state laws is deemed unnecessary.
It is similarly unreasonable to deem the state laws as irrelevant and having no basis nor bearing in the direction of the civil court decision.
Why should it be even suggested that there will be conflict of laws if both federal and state laws were to be applied concurrently?
In reality, the framework of the federal constitution is crafted so that all the laws can be applied harmoniously. Hence I submit that there is no conflict of laws in the ‘bin Abdullah’ case.
This is because, the federal law, i.e. the BDRA is a procedural law which takes into account the customs and practices governing different ethnicities and/or religions, particularly with respect to the naming of a person.
The NRD does not dictate or decide the customs, the practices or even the law.
For Muslims, the naming of an individual as the father (or the ascribing of a person as the father of an illegitimate child, more specifically), is governed by the states’ enactments.
States’ enactments in turn have recognized the relevance and the force of fatwa.
When the Court of Appeal in ‘bin Abdullah’ case view with contempt the relevance and the force of the states’ enactments and fatwa in any state in which both apply, it is a mockery of the states’ constitutional and legal authority to legislate.
Furthermore such a view would impute an unjust erosion of the division of powers, under which the states’ enjoy the authority stated above.
Distinctive jurisdiction of civil and syariah courts
The federal constitution provides in unambiguous terms that civil and syariah courts enjoy distinctive jurisdictions.
Civil courts derive their jurisdiction from Article 121(1) while the jurisdiction of syariah courts is bestowed under Article 121(1A).
Notwithstanding the extremely cautious, strict and isolated application of the BDRA, the Court of Appeal has insinuated itself into the discourse in which subject matters pertaining to Islamic personal laws, and the application of states’ enactments more specifically regarding the legitimacy of the child, are being disputed and decided.
It must be borne in mind that the civil court is not entitled to engage in the substantive discussion and application of the states’ enactments pertaining to the naming of the father or the ascribing of a person as the father which falls under the exclusive jurisdiction of syariah courts.
It is understandably controversial to Muslims when the Court of Appeal dismisses the authority submitted by the senior federal counsel acting for the respondents.
In retrospect, we can see that the case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan and others  4 MLJ 585 is suggestive of the issue recently before the present bench.
The dismissal is made on the grounds that there is no dispute as to the illegitimacy of the child in comparison to the dispute on Lina Joy’s religious status. Whether she was still a Muslim or was an apostate was never decided by the Syariah Court at the time of Lina Joy’s application to delete the word ‘Islam’ from her identity card.
I find this reasoning rather odd and contrary to the Court of Appeal’s own reasoning and position in that earlier case. (Nonetheless, I agree that Lina Joy’s case involved a different matter and the facts of both cases are not identical.)
Regardless, the assessment of Lina Joy’s case should not have been used to invalidate the argument by the senior federal counsel when it was argued that NRD was relying on the Islamic law or states’ enactments.
The Lina Joy case, as should have the ‘bin Abdullah’ case, relied on the Islamic law whether the subject matter is in dispute or not.
When the bench decisively stated that there is no dispute as to the illegitimacy of the child, it is only befitting that the Islamic law which recognizes fatwa prohibiting the ascribing of a person as the father of the illegitimate child, should be applied and complied with by NRD.
This compliance, surprisingly, did not occur.
On the other hand, the learned judge also overlooked Section 53 of the Administration of the Religion of Islam (State of Johor) Enactment 2003 which states that when there is an issue pertaining to hukum syarak, any other courts aside from the Syariah Court may request for the scholarly opinion of the fatwa committee regarding the issue. This oversight also did not take place in the ‘bin Abdullah’ case.
Error in construction of various BDRA provisions
It is important for the court to consider the purpose of a piece of legislation and the reason behind any amendments made thereafter.
As aptly put by Lukman Sheriff:
“The BDRA was not meant to address the interest of an illegitimate child. The provision of the act is wholly inadequate if one wants to argue that the act seeks to protect the children”, and
“The BDRA is about how to register a child’s name. Who is responsible for registration and obligations of the registrar. The whole BDRA is about that”.
The introduction of Section 13A is an amendment which has been in force since 30 May 1975 and dating another 18 years from the BDRA formulated in 1957 − from which Section 13 and 14 originate.
This amendment means that it needs to be treated as a more specific provision or an exemption to the generality of Section 13. This is similar to the insertion of Article 121(1A), pertaining to syariah courts in relation to civil courts, coming right after Article 121(1) of the federal constitution.
The intention, purpose and meaning of this amendment, however, was not addressed and given sufficient consideration by the bench in the ‘bin Abdullah’ case.
Not only was the intention, purpose and meaning of this amendment not considered by the learned judges in the ‘bin Abdullah case, the judgment fails to pay attention to the wording of the statutory provisions.
Section 13 reads:
“Provisions as to father of illegitimate child
- Notwithstanding anything in the foregoing provisions of this Act, in the case of an illegitimate child, no person shall as father of the child be required to give information concerning the birth of the child, and the Registrar shall not enter in the register the name of any person as father of the child except at the joint request of the mother and the person acknowledging himself to be the father of the child, and that person shall in that case sign the register together with the mother.”
Section 13 is concerned with the entry of particulars in the ‘register’ and not the entry of particulars in the certificate of birth.
The BDRA provides for the interpretation of the word ‘register’, which was also not given any weight by the learned judges.
So, what does the BDRA say about the ‘register’? Section 2 provides the interpretation of certain terms, including the word ‘register’ which means:
“…any register required to be kept under the provisions of this Act and includes—
(a) any register of births and deaths kept or required to be preserved under any written law repealed by this Act;
(b) all documents recording particulars of births and deaths and books of record compiled therefrom in existence upon the coming into force of this Act and in the custody of the Registrar-General or of any other public officer;
(c) any new register reconstituted under subsection 4(3); and
(d) any microfilm or computer tape made in pursuance to subsection 4(4).”
It is clear that Section 13 is not concerned with the entry of particulars in the certificate of birth, which was the issue before the court (as the ‘bin Abdullah” appears on the birth certificate).
Throughout the BDRA, the Act makes a distinctive reference to both the ‘register’ and the ‘Certificate of birth’ that are clearly two different things.
However, the judgment also did not even consider Section 14 and subsection 32(2) as clearly provided by the BDRA for the issuance of certificate of birth, which is the crux of the issue before the court.
What does Section 14 say? It is fairly simple. It says:
“Certificate of Birth
- At the time of registering the birth of any child, the Registrar shall give to the informant a Certificate of Birth in the prescribed form and certified as required by subsection 32(2).”
From this section, what is indicated is that certificate of birth is not included or regarded as the ‘register’.
In addition, it would be more accurate for the learned judges to go through Sections 14 and 32(2) with regard to the issuance of certificate of birth containing ‘bin Abdullah’ and observe as to whether NRD has strictly complied with the said sections.
The Court of Appeal, nonetheless, merely made reference to other irrelevant sections of the BDRA and instead putting more emphasis on the substantive issues rather than the procedural aspect of the law, and thus erred in their application.
The judgment may have also erred in applying Section 27(3) of the BDRA because the “error of fact or substance” required by the section only warrants the rectification of such error “in any register” and not in the certificate of birth.
Section 27(3) provides that:
“(3) Any error of fact or substance in any register may be corrected by entry (without any alteration of the original entry) by the Registrar-General upon payment of the 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 credible persons having knowledge to the satisfaction of the Registrar-General of the truth of the case;….”
Therefore, it is possible that the learned judges may have erred in applying the law, i.e. the provisions of the BDRA.
‘bin Abdullah’ refers to father’s name, not surname
As I have explained earlier, the addition of Section 13A as an amendment to the BDRA reflects a need to cater for a specific issue that required it to be addressed by the federal parliament at the time the law was made.
In the legislative arm’s view and as it had been applied, Section 13 deals with the naming of a person as the father of an illegitimate child whereas Section 13A is clearly intended to cater for those names, of any person from any Malaysian communities having or using surnames rather than the father’s name (for a legitimate child or otherwise).
The Court of Appeal had the courtesy of producing the definition of the word “surname” by the Oxford Dictionary of Law (Seventh Edition) that says:
“A legitimate child, by custom, takes the name of his father and an illegitimate child that of his mother (although the father’s name may be entered on the birth registration if both parents agree or an affiliation order names the man as the putative father).”
It is surprising that even with the quote, the learned judges did not seem to notice the difference between the definition and the passage of Section 13A regarding the surname of child and even more strangely suggested that it is “consistent”.
Section 13A stipulates:
“13A. (1) The surname, if any, to be entered in respect of a legitimate child shall ordinarily be the surname, if any, of the father.
(2) The surname, if any, to be entered in respect of an illegitimate child may where the mother is the informant and volunteers the information, be the surname of the mother; provided that where the person acknowledging himself to be the father of the child in accordance with section 13 requests so, the surname may be the surname of that person.”
Aidil Khalid, writing an article on the decision, aptly stated that:
“…the surname (in Section 13A) refers to the surname of the father, and not the first name of the father.”
He also produced an extract of the judgment in the case of Dato’ Menteri Othman bin Baginda & Anor v Dato’ Ombi Syed Alwi bin Syed Idrus  1 MLJ 29 where the Late Royal Highness Raja Azlan Shah (as HRH then was) mentioned that “[r]espect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language.”
Lukman Sheriff, further clarified how Section 16 should be read in a “sensible way”.
Section 16 reads:
“Registration of objectionable or undesirable names
- Where it appears to the Registrar that the name of a child sought to be entered in a register of births is objectionable or undesirable he shall refer the matter to the Registrar-General and the Registrar-General may cause such name to be registered or not to be registered as he shall deem fit.”
“In registering a name the registrar must necessarily and I submit have to take into account the customs and personal laws of each ethnic. Thus if a non-Muslim Chinese or Indian wants to register their child using ‘bin’ and ‘binti’, the Registrar has a right to object”, and
“And by the same token, though section 16 gives wide powers to a registrar to register any name at its discretion, the registrar cannot force a non-Muslim Chinese to use ‘bin’ or ‘binti’. Or force Indian and Muslims to use Chinese family name instead of attributing it to the father.”
Therefore, it is evident that Section 13A pertaining to the surname of a child should not apply to Muslims or any segments of the community that do not have or use surname by their customs, traditions or Muslim personal law.
Usurping the policy decision-making powers
It is rather disappointing to read the judgment where it says:
“Specifically, section 13A(2) does not say that in the case of a Muslim child, his surname must be ‘Abdullah’.”
It is normally the intention of lawmakers not to unnecessarily complicate matters when they make laws, especially in the event that the subject matter of the law requires attention to be paid to detail, such as the ‘bin Abdullah’ policy of the NRD.
Otherwise, so doing will render the legislative process ineffective, unjust and non-compliant with customary practices, and will moreover eradicate the flexibility and dynamics of the operation of the law by the relevant authorities created to carry out their respective statutory duty.
On the other hand, does the court mean to say that the federal lawmakers should also specify the use of Syed, Che, Sharifah, Megat, Sheikh, or al-[something] to warrant the use and registration of these surnames by NRD?
Even worse, such an exercise to stipulate the substantive essence of the naming of the father of, and ascribing a name as the father of an illegitimate child in an act of parliament will definitely encroach into the realm of states’ jurisdiction over the same matter.
This is why the BDRA must correctly be understood as a predominantly procedural law for Muslims, whereby the BDRA will still depend on the substantive laws, i.e. states’ enactments, and in its policy-making and execution, on fatwas too.
This consideration also extends to people of other faiths or ethnicities whose reliance on their customs and traditions arise still maintained and great respect must be paid.
Domino effect of the error in the judgment
I believe the Court of Appeal may have erred in its judgment by claiming that states’ laws are irrelevant because the BDRA is silent on whether it must take into account the states’ laws. This is an oxymoronic premise to take onboard.
The issue of federal law being merely procedural, and the states’ law encompassing the substantive aspects, can also be seen in the issue of the proposed amendment to Syariah Courts (Criminal Jurisdiction) Act 1965 known as RUU355. It is an amendment to an act of parliament pertaining to the limits of penalties/sentences that syariah courts can impose.
Laws governing crimes under syariah are enacted based on the notion that certain acts or omissions are against the precepts of Islam. This is exclusively the states’ jurisdiction as granted by Schedule 9, List II, States List. This forms the substantive laws because the states get to decide what should be made syariah crimes.
The domino effect of the judgment in ‘bin Abdullah’ case will give the impression or even provide a precedent that the Syariah Courts (Criminal Jurisdiction) Act 1965 must also specify what are the sentencing limits for syariah crimes that the Syariah Court can impose.
It comes as no surprise that the above argument is brought up by the opponents of RUU355 such as former Bar Council chairman Ambiga Sreevenasan.
The argument put forth, however, by proponents of RUU355 to debunk Ambiga’s argument is exactly similar to that in the ‘bin Abdullah’ case with respect to the BDRA, that is, the Act 355 merely functions as a procedural law whereas the States’ syariah criminal enactments are the substantive laws.
Therefore, RUU355 does not need to specify the types of syariah crimes where syariah courts can impose the penalties/sentences as limited by the federal law.
If the federal law were to make such specification, it will grossly encroach on the states’ authority over the matter. And it will jeopardize the states’ authority to legislate without the need to obtain an official endorsement of the federal parliament via an act of parliament.
The domino effect will also affect application of the recent amendment to Law Reform (Marriage and Divorce) Act 1976 (Act 164) whose controversy lies in the amendment to Sections 3 and 51 of Act 164.
Section 3 grants an exclusive jurisdiction to the civil courts in cases where one spouse has converted to Islam while Section 51(1)(a) allows the converting spouse to file a petition for divorce with the civil courts to dissolve his/her marriage.
Through the amendment, the civil courts then will acquire the exclusive power to decide on matters pertaining to the rights of the mualaf, his or her property and even the religion of his or her children as well as the custody thereof.
The existing Section 51(2) already prescribes that the civil courts have the powers to decide on the welfare and custody of the children together with any other conditions following the dissolution of the marriage.
While the personal, family and property matters of the mualaf is subject to Islamic laws which fall under the jurisdiction of the states’ and syariah courts, there could be an argument saying that the Islamic laws will now be irrelevant simply because Act 164 does not make any reference to the Islamic laws.
This clearly deprives the states of their legislative authority as well as the exclusive jurisdiction of syariah courts over the same matters and persons professing the religion of Islam.
Even though it is arguable that Act 164 is applicable to non-Muslims, yet needless to say, the civil courts and many non-Muslim judges will place greater reliance on civil laws and principles to resolve the inter-religious marital issues because they are not personally equipped with or possess an adequate knowledge of Islamic laws and jurisprudence.
The syariah courts, in my opinion, would be the better and proper forum to resolve the contentions.
The ‘bin Abdullah’ judgment must be appealed
In conclusion, the government and NRD as well as the respective Islamic departments of the various states, I feel, have made the right decision to appeal to the Federal Court to resolve the contentious matter of the ‘bin Abdullah’ case.
Such an appeal put before the court could be among the landmark cases to reiterate the pillar of federalism that props up the supreme law of our land.
A positive and correct judgment will also go a long way towards reiterating the states’ legislative autonomy as well as emphasize the importance of syariah courts and Islamic laws vis-a-vis the civil courts and civil laws.
Danial Ariff Shaari is an Isma activist trained in law