BER: A [2020] SLRAU 44

Syariah Appeal Court of Federal Territories (Kuala Lumpur)

Application to Amend Name on Identity Card

1.    This case is an application for judicial review filed by the Legal Advisor of the National Registration Department against an order by the Syariah High Court Judge on 12 September 2019 [“the Court’s Order”].

2.    The Court’s Order reads:

(a)    The Court declared that AX is the biological child and/or offspring of XX.

(b)    The Court ordered the National Registration Department to amend the identity card, birth certificate, and any other related documents on the identity of AX to reflect his new name, A.

(c)     The Court ordered all other relevant agencies to amend any related documents pertaining to the identity of AX to reflect his new name, A.

3.    Through a letter dated 9 June 2020, the Legal Advisor of the National Registration Department made an application for a judicial review against paragraph 2 of the Court’s Order, as it was contrary to the provisions of subsection 27(3) of the Births and Deaths Registration Act 1957 [Act 299] and Regulation 14(2) of the National Registration Regulations 1990.

1.    Whether the application for judicial review should be allowed?

Ratios

1.    Whether the application for judicial review should be allowed?

(a) Subsection 53(1) of the Administration of Islamic Law (Federal Territories) Act 1993 [“Act 505”] provides for the power of the Syariah Court of Appeal to judicially review the decision made by the Syariah High Court. Subsection 53(1) reads-

(1)   The Syariah Appeal Court shall have supervisory and revisionary jurisdiction over the Syariah High Court and may, if it appears desirable in the interest of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceedings, whether civil or criminal, in the Syariah High Court, call for and examine any records thereof and may give such directions as justice may require.

(b) In line with this, the Department of Syariah Judiciary Malaysia Practice Direction No. 13 of 2003 explicitly authorizes review applications for both civil and criminal matters, regardless of procedural stage.

(c)  The Court in this case had referred to the decision of the Syariah Court of Appeal in the case of MY v. NA [2013] 36(2) JH, whon 7 March 2012, which stated:

“The review process was solely for reviewing any errors in the decision-making process that had prejudiced justice or decisions that violated clear Islamic texts or were contrary to the law in force.”

(d) In this case, the Court had referred to Regulation 14(2) of the National Registration Regulations 1990 which stated that-

“Any person registered under these regulations who applies to change his name under sub-regulation (1) shall submit to the registration officer with a statutory declaration which:

(a)   certifies the fact that he has renounced and abandoned the use of his former name in lieu thereof and has assumed a new name; and

(b) contains the reason for such change of name, other than a conversion of religion”.

(e)  With reference to the above-mentioned authorities, the Court in this case agreed with the view of the Legal Advisor of the National Registration Department that paragraphs 2 and 3 of the Order dated 12 September 2019 contravened the provisions of subsection 27(3) of Act 299 and Regulation 14(2) of the National Registration Regulations 1990.   There was a defect in the Court’s Order.  Such a defect enabled a review to be made as outlined in Practice Direction No: 7 of 2014: “Rules of Review of Cases in the Syariah High Court or the Syariah Court of Appeal ” in paragraph 5 which stated-

5. “If a case has been decided and it is subsequently raised that there was a defect in the trial process or that the Judge’s decision materially contradicted the law or Hukum Syarak, then a review process may be initiated”.

(f)   Consequently, the Court found that there had been a material defect in paragraphs 2 and 3 of the order, which contradicted established legal principles.

(g) Nonetheless, the Court in this case held that the Syariah High Court Judge had correctly decided the matter following paragraph 1 of the Court Order on lineage verification, as prescribed by Act 505.

2.    Paragraph 1 of the Court’s Order dated 12 September 2019 was affirmed, while paragraphs 2 and 3 thereof were set aside.

Key Take Away

1.    This case underscores the boundaries of Syariah Court jurisdiction. While the Syariah Court has exclusive jurisdiction over matters of personal status, its powers are circumscribed by the overall legal framework.

2.    This decision highlights the need for a careful balance between the authority of the Syariah Court in matters of Hukum Syarak and the role of civil authorities in managing administrative functions like identity registration.