PUTRAJAYA: The Court of Appeal said the National Registration Department (NRD) had acted outside its powers when it used the surname “Abdullah” to register a Muslim child born out of wedlock, against the mother’s wish to use the father’s name.
In a written judgment, delivered two months after the court ruled in favour of the parents of the child, it also questioned the practice of adding the surname “bin Abdullah” to such children.
“We believe Islam does not condone such open and public humiliation of an innocent child,” wrote Justice Abdul Rahman Sebli, one of the three members of the bench, in the 28-page judgment issued two days ago.
Other members of the bench were Tengku Maimun Tuan Mat and Zaleha Yusof.
Abdul Rahman said the NRD director-general had acted irrationally when it registered the child with the surname “Abdullah” in the birth certificate, against the wishes of the mother.
He also said the Births and Deaths Registration Act 1957 (BDRA) makes no distinction between a Muslim child and a non-Muslim child.
“Section 13A(2) does not say that an illegitimate Muslim child must be treated differently from a non-Muslim child when it comes to the registration of a surname,” he wrote.
The identity of the parents and their child, who is now seven years old, was kept anonymous following an application by their lawyers.
The child was born on April 17, 2010, five months and 27 days after the couple tied the knot on Oct 24, 2009. This, according to the Islamic lunar calendar, was short of three days before the six month period to legitimise the birth to the couple. The birth was registered with NRD two years later.
The judicial review was filed on Sept 3, 2015 and the High Court dismissed the application on Aug 4 last year.
The NRD had refused the parents’ request to use the father’s names in the birth certificate, based on a 1981 fatwa.
Intention of fatwas
Abdul Rahman said although the NRD’s decision to add the name “bin Abdullah” was based on two fatwas issued by the National Fatwa Committee in 1981 and 2003, it was in conflict with Section 13A(2) of the BDRA, which allows the father of the illegitimate child to make his name as the child’s surname.
According to the 2003 fatwa, an illegitimate child (“anak tak sah taraf”) shall not be surnamed (“tidak boleh dinasabkan”) to the father of the child or to the person who claims to be the father of the child.
But Abdul Rahman said the fatwa was to reaffirm the child’s status in questions of inheritance and family links in matters related to marriage, and not to “announce to the whole world” that the child is illegitimate.
He said while the fatwa has force of law in shariah jurisprudence, it has nothing to do with the NRD director-general’s statutory duty under the BDRA to register births and deaths in the states of Peninsular Malaysia.
“The 2nd respondent (NRD director-general) must act within the confines of his powers. If he acts beyond the limits of his powers, he acts in excess of his jurisdiction,” he said.
Abdul Rahman said a surname was nothing more than the name borne in common by members of the family, and is distinct from a first name.
“Under the law, therefore (and we are here talking about civil law and not Syariah law), a child derives his surname either from his mother’s name or his father’s name.
“If he is a legitimate child, section 13A(1) applies. If he is an illegitimate child, section 13A(2) applies. It cannot be more straightforward than that,” he said.
He said there was no reason to ascribe a surname to a child’s name when the father’s name is already stated in the birth certificate.
“If at all the entry is necessary, it is in the identity card that will be issued later when the child comes of age,” he said, adding that the same rule applies whether or not the child is legitimate.