Court of Appeal: Out-of-wedlock children can bear father’s name

A man filling up the application form for MyKad before going to the NRD. The Court of Appeal has ruled that a child conceived out of wedlock may bear the father's name. — Picture by Choo Choy May
A man filling up the application form for MyKad before going to the NRD. The Court of Appeal has ruled that a child conceived out of wedlock may bear the father's name. — Picture by Choo Choy May

KUALA LUMPUR, July 27 ― The Court of Appeal has ruled that a child conceived out of wedlock may bear the father's name in a landmark decision that also clearly outlined the legal limitation of the National Fatwa Committee.

Online news portal Malaysiakini reported Justice Datuk Abdul Rahman Sebli asserting that the National Registration Department (NRD) director-general is a civil officer and that he is bound under civil law, meaning the NRD should have referred to Section 13A (2) of the Births and Deaths Registration Act (BDRA) for any decisions relating to a child's surname.

The ruling, made unanimously by the three men panel led by Abdul Rahman, was made in an appeal involving a seven-year-old child, who was born five months and 24 days (or five months and 27 days according to the Islamic Qamariah calendar) after his parents married.

The child was registered with the NRD two years after birth and at the time of doing this, the parents had jointly applied to have “MEMK” named as the father, but the NRD registered the child as “bin Abdullah” instead, Malaysiakini reported.

In 2003, the National Fatwa Committee declared that a child conceived out of wedlock (“Anak Tak Sah Taraf”) cannot carry the name (“tidak boleh dinasabkan”) of the person who claims to be the father of the child, if the child was born less than six months of the marriage.

The ruling could effectively allow all Muslim children born out of wedlock to finally bear their father's name.

In making the court ruling, Justice Abdul Rahman said the NRD director-general is not obligated to apply, let alone to be bound by a fatwa issued by a religious body such as the National Fatwa Committee.

“For him (the NRD director-general) to do so would amount to an abrogation of his power under the BDRA and surrendering it to the religious body. That would in effect be to take away the statutory right accorded to the father by Section 13A(2) to have his name ascribed as the child's surname in the birth certificate,” he said.

“Such abrogation of power will render Section 13A (2) of the BDRA completely otiose and gives the impression that Parliament had enacted the provision in vain, a proposition that has no place in legislative interpretation.

“A fatwa or a religious edict issued by a religious body has no force of law, unless the fatwa or edict has been made or adopted as federal law by an Act of Parliament,” he added.

Justice Abdul Rahman was further quoted saying that such an application of the fatwa violates the legislative process.

Section 13A (2) of the BDRA states “the name, if any, to be entered in respect of an illegitimate child may, where the mother is the informant and volunteers the information, be the name of the mother; provided that where the person acknowledging himself to be the father of the child, in accordance with Section 13 requests so, the name may be the surname of that person.”

Section 13 of the same Act also states “notwithstanding anything in the foregoing provisions of this Act, in the case of an illegitimate child, no person shall, as a father of the child, be required to give information concerning the birth of the child, and the registrar shall not enter in the register the name of any person as the father of the child except at the joint request of the mother and the person acknowledging himself to be the father of the child, and that person shall, in that case, sign the register together with the mother.”

The appeal was granted in May but Justice Abdul Rahman's 28-page grounds of judgment was made available just recently, Malaysiakini reported.

In recognition of the stigma faced by children without a father's name, the judge explained that by putting “Äbdullah” as the name would only expose them to humiliation.

“It is generally understood that if a Muslim child is given “Abdullah” as his name when his father’s name is not, in fact, Abdullah, he will be exposed as a child that is born out of wedlock,” he said, adding that it would just be a matter of time before the child discovers he was conceived out of wedlock by looking at his birth certificate.

“His identity card that will be issued later will also retain 'Abdullah' as his name and all official documents involving him will likewise, bear the same name. One can imagine the child's grief, not to mention the feeling of shame that he has to bear throughout his existence.”