CAN the courts in Malaysia or the National Registration Department (NRD) force a Chinese not to use a surname and instead use a "son of" (s/o) or "bin/binti"?
I was in a discussion on the effect of the "Bin Abdullah" case on Sunday and gave my view.
My position is that it should not have been about a conflict of shariah and civil laws, as the ramification of the case is wider to apply to non Muslims.
The argument of such narrowed conflict is wrong and cannot be sustained, and lead to absurdities in interpretations and injustices to various communities.
If Islamic laws can't be considered, then none of the personal laws and customs of other ethnics can be considered. Let me explain.
First the Birth and Death Registration Act (BDRA) does not and cannot operate in isolation. When we bear our children, each ethnic group in our country have their own custom and personal law on how they name their children.
The Chinese use the husbands family surname. The Indians use attribution to the dad. Similarly with Malays, with the bin or binti, meaning the son or daughter of a person.
The BDRA was thus never meant to dictate the customs we have. It sets out the procedure of process of registration of names and how and when to register in section 15 (of the Act).
And when section 16 gives the registrar the right to reject a name, it should be read in similar fashion.
Section 16 states that:
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.
There are wide powers and discretion given to the registrar. Does this mean the registrar can do whatever he likes?
That whatever civil action taken by the registrar prevails over personal laws and customs?
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.
Similarly with a Muslim who doesn't want to use 'bin' and 'binti'. Section 16 allows the registrar not to register.
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.
This is the only sensible way to read the BRDA, i.e in that the NRD must consider customs and personal laws in registering the names. Interpreting otherwise would allow an unfettered abuse of power disregarding other laws.
So in this case it came as a surprise to me that suddenly the customs and personal laws are not considered. The whole Act should be and has been interpreted as such.
And the relevant Section 13 and 13A cannot be about conflict of shariah and civil laws for in the first place as it would render a ridiculous interpretation.
Section 13 and 13A allows illegitimate children to use a surname of the father. Now, Muslim Malays here don't have a surname however you want to construct. Muslims that have surnames, the surnames are related to a place like the Syed's surnames of "al-something" which mostly relate to places in Middle East. But we don't have family name "al Kuala Lumpur" or "al Petaling" or the like. Never kan?
The law thus cannot force Muslims and was never intended to force Muslims to have one. So in this manner I think the argument that it's a conflict of civil and Islamic law is not correct.
Instead BDRA should be looked at as a whole. It's meant to register names according to personal laws and customs of each ethnicity. And in this regard the "bin Abdullah" case must be seen in this light. If we take a position that for Muslims, personal law cannot be applied then other races' customs and personal laws cannot also be applied. This is a preposterous interpretation leading to injustices.
I have read the judgement and think it's a well reasoned judgement. But my view is that it was wrongly argued in failing to see the context of a whole Act.
A narrow interpretation disregarding personal laws and customs will, in my view, lead to absurdities and preposterous interpretations and in turn injustices to each ethnic group that the parliament could not have intended.
It is for this reason the judgement cannot stand and should be appealed.
And one more thing. 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.
This is a typical 'red herring' argument similar to child marriage 'not okay' but child sex 'okay' argument. The BDRA is about how to register a child's name.
Who is ultimately responsible for the registration and obligations of the registrar? The whole BDRA is about that.
Argument within that small confine basis is wrong and is without basis.
* Lukman Sheriff is from the Malaysian lawyers circle **Editors reserve the right to edit original piece for clarity.