PUTRAJAYA, 13 Feb 2020:
The Federal Court, in a majority 4-3 verdict, ordered the National Registration Department (NRD) director-general to remove the word ‘bin Abdullah’ from the birth certificate of a Muslim illegitimate child – but ruled against the decision that allowed the child to take his father’s name.
The seven-member bench led by Court of Appeal president Datuk Rohana Yusuf ruled the NRD director-general cannot impose the fatwa of the National Fatwa Committee on the Johor-born child as there was no fatwa on how to name an illegitimate child gazetted in that state (Johor).
The National Fatwa requires a Muslim Illegitimate child to ascribe to ‘bin Abdullah’.
“The opinion of the National Fatwa Committee or a fatwa will become law in the state of Johor and would be legally binding only if it is gazetted in the State Gazette pursuant to Section 49 of the Administration of the Religion of Islam (State of Johor) Enactment 2003.”
The court had allowed partly the appeal brought by NRD, its director-general and the government to set aside the appellate court’s decision in 2017 that allowed a Muslim illegitimate child to bear his father’s name instead of using ‘bin Abdullah’.
“Consequential order is made for the director-general of the NRD to remove ‘bin Abdullah’ from the birth certificate of the first respondent (the child),” said Justice Rohana who delivered the majority Federal Court decision.
She said the child’s name will remain in the birth certificate, but without the words ‘bin Abdullah’.
In her judgment, Justice Rohana said the NRD director-general had acted unreasonably in imposing a particular fatwa on the child and the child’s parents and in doing so the NRD director-general had indeed usurped the power of the Royal Highness the Sultan of Johor.
She said the NRD director-general, in performing registration of births of Muslim children, may refer to and rely on Islamic laws on Section 111 of the Islamic Family Law (State of Johor) Enactment 2003 on ascription of paternity.
She also ruled that Muslim child cannot take his father’s name as the law – Section 13A of the Births and Deaths Registration Act 1957 (BDRA) – does not apply to registration of births of Muslim children as Malays do not carry any surnames.
Justice Rohana said the NRD director-general was correct in law to disallow the father’s application to attach his name to his child’s name.
She said the provision of Section 13A has no application to the Malay naming system and did not enable the children to be named with the personal name of a person acknowledged to be the father of the children.
The other three judges – Chief Judge of Malaya Tan Sri Azahar Mohamed and Federal Court judges Datuk Mohd Zawawi Salleh and Tan Sri Idrus Harun – concurred with Justice Rohana’s decision.
Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah and Federal Court judges Datuk Abang Iskandar Abang Hashim and Datuk Nallini Pathmanathan dissented.
The child was born less than six months after the parents’ marriage, which is seen as being illegitimate under syariah law.
The child’s parents (whose identities have been withheld by the court) applied to the NRD under section 13 of the BDRA to have the father’s name on their child’s birth certificate but the NRD refused to replace it with the father’s name on grounds that the child was illegitimate despite the application was made.
The parents then filed a judicial review application at the High Court but it was dismissed on 4 Aug 2016.
On 25 May 2017, the Court of Appeal allowed their judicial review to compel the NRD director-general to replace the child’s ‘bin Abdullah’ with the name of the child’s father in the birth certificate.
Justice Nallini, in her judgment, said Section 13A applies to the registration of births of Muslim children enabling the children to be named with the personal name of a person acknowledging to be the father of the children.
She said the BDRA was applicable to all persons in the country, regardless of race and religion.
Meanwhile, lawyer Datuk Ikbal Salam – representing Johor Islamic Religious Council – told reporters the fatwa relating to illegitimate child for Johor state to be ascribed ‘bin Abdullah’ have already been gazetted on 21 May 2018.
He said although the fatwa was gazetted after this case started, the position of an individual in the future would be clear as there is already a fatwa gazetted in Johor relating to illegitimate children.