PUTRAJAYA: A seven-member Federal Court bench today unanimously ordered the National Registration Department (JPN) director-general to remove the word “bin Abdullah” from the birth certificate of a Muslim boy from Johor who was born out of wedlock.
The Federal Court also ruled that the boy, born out of wedlock, cannot use his biological father’s name.
In a majority ruling, four of the judges, consisting of Rohana Yusof, Azahar Mohamad, Mohd Zawawi Salleh and Idrus Harun, held that the boy could not use his biological father’s name.
Judges David Wong Dak Wah, Abang Iskandar Abang Hashim and Nallini Pathmanathan, who dissented, took the position that the boy could use the father’s name.
The bench was also split in their views on the three broad questions of laws posed to them.
Rohana said Section 13A of the Births and Deaths Registration Act (BDRA) Act did not apply to registration of births of Malay-Muslim children.
“It does not enable the children to be named with the personal name of a person acknowledging to be the father of the children because it is not a surname as envisaged by section 13A of the BDRA,” she said.
Rohana, who delivered the majority ruling, said the director-general could rely on section 111 of the Islamic Family Law (State of Johor) Enactment to reject the application to amend the birth certificate of the child to replace “bin Abdullah” with “bin MEMK”, referring to the initials of the father’s name, whose identity was withheld by the court.
“In our view, he had not acted unreasonably in taking into account the personal law of the respondents in rejecting the application to have the name of the child as ‘bin MEMK’, she said.
Rohana said in performing registration of births of Muslim children, the director-general may refer to and rely on sources of Islamic law on legitimacy.
Wong said the boy could use his father’s name because Section 13A of the BDRA on the use of surnames included both Muslims and non-Muslims.
“THe JPN director-general has an administrative function and this has nothing to do with Islamic law or jurisprudence,” he said.
Wong said in coming to his ruling, he had taken into account the welfare of the child and that he should not be discriminated against.
“There is no reason for the illegitimacy of the child to be ‘broadcast’ (in the birth certificate),” he said.
Nallini said federal agencies could not apply Islamic law at all as Malaysia is a plural state and the BDRA is a secular law.
“The structure in the Federal Constitution shows clear demarcation between state and federal law,” she said, adding that a Johor state enactment governing Muslims could not be imported into the BDRA.
In this case, the child’s birth was registered two years later in 2011 under Section 12 of the BDRA.
Both parents applied to the JPN to register the father’s name on the birth certificate under Section 13 of the BDRA but it carried the “bin Abdullah” instead.
JPN refused to substitute it with the father’s name, despite an application made to remove the “bin Abdullah”, on the grounds that the child was illegitimate.
This resulted in the parents filing an application for a judicial review in the High Court in 2016.
The couple lost their case in the High Court but the Court of Appeal in 2017 reversed the decision.
Justice Abdul Rahman Sebli, who delivered the judgment, said the JPN director-general’s jurisdiction was a civil one and was confined to determining whether the child’s parents had fulfilled the requirements under the BDRA.