KUALA LUMPUR, Feb 7 ― In a rare move, 41 parents recently tried to join a court case challenging the National Registration Department’s (NRD) policy of registering illegitimate Muslim children with the “bin Abdullah” or “binti Abdullah” patronym.
Lokman Hakim, the lawyer for the 41 parents (20 married couples and a single mother from Pahang), said he had asked his clients to go straight to the Federal Court, instead of wasting their time and money by going to the Perlis Shariah court for court orders in his clients’ favour that would not be complied with.
“All these matters, before this I bring to the Perlis Shariah court, even though not from Perlis, but I bring also to Perlis. But when I have the order from the Perlis Shariah High Court, my clients got the order but JPN didn't comply with the order, so I [diverted] all the clients to intervene in the proceedings in Federal Court,” he told Malay Mail in a recent interview, referring to the NRD by its Malay initials.
“JPN's reason is they want to wait until the decision of the Federal Court on February 7,” he said, referring to today's hearing at the Federal Court.
Today, the Federal Court will hear the NRD's appeal against a Johor Muslim couple's successful bid to have the “bin Abdullah” entry for their son declared unlawful.
Lokman's 41 clients had filed last December 14 an application to be interveners or parties of this Federal Court case. In court documents sighted by Malay Mail, the parents said they wanted to be part of the lawsuit as they felt the issues raised there will directly affect their interests, adding that their children's interests will be prejudiced if their bid was denied.
On January 23, the Federal Court rejected the application by the 41 to be interveners, but said they may seek to appear as amicus curiae or as friends of the court.
“My concern is all the parents have the same problem with that case, so the decision that will be made will affect my clients. That is my concern, but for us to be amicus should be okay also,” he said
The Perlis fatwa and Perlis Shariah courts
Malay Mail sighted a brief written judgment by the Perlis Shariah court in one of Lokman's cases, where it ruled that the child be allowed to use the father's name as a patronym.
Additionally, the Perlis Shariah court also ruled in that case that the applicant “cannot be a wali to this daughter forever” and that the “applicant and child cannot inherit each other's inheritance”. A wali is a guardian that is required for a Muslim marriage to be solemnised, with a wali raja or wali authorised by the state ruler or the Yang di-Pertuan Agong (for the Federal Territories, Malacca, Penang, Sabah and Sarawak) to give away in marriage a woman who has no guardian of lawful blood relationship.
Lokman said he has three cases ― one each from those residing in Perlis, Selangor and Melaka ― which had received such a court order from the Perlis Shariah court that allowed the child to use the father's name as patronym. He has five other ongoing cases in the Perlis Shariah court.
He suggested that the NRD's refusal to comply with the Perlis Shariah court order was due to the government body following federal laws and federal institutions, instead of state laws.
While the Perlis Shariah court order sighted by Malay Mail did not elaborate on the grounds for its decision, Lokman explained that this was due to a Perlis fatwa or religious edict.
“In Perlis, this fatwa was gazetted by the Perlis state government in 2013, that a child born less than six months (from the marriage date) can be 'bin' to the father; can be 'bin' to the husband after the mother marries unless denied by the husband. If there are marriage ties, the father admits, then can 'bin'.
“That's why the Shariah High Court gave approval to 'bin' (the father's name) because that is the law under the Perlis state government. The Shariah courts follows state laws, not federal laws,” he said.
The Perlis fatwa referred to here is a 2008 fatwa which unusually states that “The child that is born less than six months from the date of the mother's marriage, can be 'bin' to the mother's husband, unless denied by the husband”, which is a rare departure from the stance and approach taken by other local fatwas.
In an August 1, 2017 compilation by the Federal Territories Mufti, the Federal Territories has a 2001 fatwa that says children born less than six months from the parents' marriage are illegitimate, while Selangor has an 2005 fatwa with definitions for illegitimate children including a similar category. Sarawak was said to have accepted the national-level fatwa body's stand that illegitimate children has to be bin or binti Abdullah, regardless of whether their birth was followed by their parents' marriage. Negri Sembilan had in 2002 issued a fatwa that said the authorities that register births are “ditegah” (barred) from using the father's or husband's name for children born less than six months from the marriage date.
The 21 cases handled by Lokman are from all over Malaysia ― Kuala Lumpur and nine states ― with the children's ages ranging from those who will be one year old and those turning 19 years old this year. This means they were born during the 1999-2017 period.
Not all of the 21 children use the “bin Abdullah” or “binti Abdullah” patronym. In their birth certificates sighted by Malay Mail, some use only the child's name alone (e.g. Adam*), while some combine the child's name and the father's name but without the word 'bin' that denotes their lineage (e.g. Adam Ali*), and another three do not use “Abdullah” but instead use one of the 99 names of 'Allah' in Islam (e.g. Adam bin Abdul Rahman*).
In any case, the absence of the words “bin Abdullah” will not shield the child from the stigma of being officially declared as an illegitimate child, as the public can easily tell by comparing their names in official records to that of their fathers.
A bigger problem
Speaking to Lokman, one gets the sense that the 21 cases are merely scraping the tip of the iceberg of Muslim children condemned to a life of not having their fathers' name in their IC, or having telltale details of their illegitimate birth status revealed in official records.
He currently has over 50 active cases involving Muslim children facing the “bin Abdullah” problem, and his law firm alone has received over 200 such cases in a short span of time.
“If you ask me how many cases, since 2015, the cases that come to my firm are around 200 over. But some of them want to continue, some of them don't want to continue, because of the cost,” he said.
The NRD's statistics showed that the births of 542,363 illegitimate children in Malaysia were registered during the 2006 to June 30, 2017 period, according to a Home Ministry's written parliamentary reply during the Dewan Rakyat's July-August 2017 meeting.
The parliamentary reply did not provide a breakdown of the NRD statistics based on the parents' religion or the different categories for illegitimate children ― such as for those born out of wedlock, those born to parents whose marriages were not registered according to local laws or whose marriages abroad were not registered locally again, or those found abandoned with parents unknown.
In 2010, local daily Berita Harian reported the racial breakdown of NRD's statistics of the births of illegitimate children in Malaysia during the 2005 to 2009 period, with those from other races being the highest at 91,922 cases, while Malays account for the group with the second highest numbers at 74,723 cases, followed by Indians (23,696 cases) and Chinese (23,692 cases).
It was also reported in 2010 that the number of illegitimate births recorded in 2007 was 16,100 cases, and 16,541 in 2008 and 17,303 in 2009. According to the Home Ministry's May 17, 2016 written parliamentary reply, there were 263,691 illegitimate births recorded during the 2011-2015 period, with the annual breakdown being 49,470 (2011), 54,496 (2012), 53,942 (2013), 54,614 (2014) and 51,169 (2015).
Lokman himself believes that the NRD started implementing the “bin Abdullah” policy from 2010 onwards. Malay Mail could not verify this at the time of writing. The NRD had in court documents only cited two fatwa or religious opinion by a national-level body (National Fatwa Committee) in 1981 and 2003 to back their “bin Abdullah” policy.
The 1981 fatwa says that illegitimate children has to be bin or binti Abdullah regardless of whether their birth was followed by their parents' marriage. The 2003 fatwa defines an illegitimate child and states that such a child cannot have the lineage of the father, which means they cannot be the guardian or mahram (kin) or inherit each others' inheritance.
More than a name
Lokman spoke of the practical difficulties that his clients have to face in life, including a particular case last year where both parents received an offer to further their studies in the US, but were unable to obtain a visa as well for their three-year-old boy due to the latter's different name in official papers.
“He needs to bring his child to the US. The problem is the US Embassy didn't allow the child (to have a visa), because the US Embassy said it's not your son...They apply for visa, the father and mother okay, but the kid cannot get the visa,” he said.
In the end, both parents gave up the opportunity to pursue their studies in the US and remained in Kuala Lumpur.
The challenges continue in school for Muslim children who are denied this crucial part of their identity, where they have to face probing questions from inquisitive friends.
“The children ― at school, they know their status already. When they are ‘bin Abdullah’, sometimes friends ask 'why is your father's name not the same as your name in IC'. When asked that, he will have a question mark for himself, when he goes home, he will ask the parents.
“It's unfair for those parents to explain that 'last time I was bad', it's unfair for parents to share again what happened the previous 12 years,” he said, saying that Islam should not be about opening up past embarrassment.
Because of the NRD's “bin Abdullah” policy, some of Lokman's clients have yet to apply for a MyKad for their children even though they have turned 12.
But with MyKad being a mandatory requirement for the Form 3 examination in secondary school, Lokman said he has to write to the Education Ministry to seek approval for the children to sit for it without a MyKad.
Lokman had to apply for two or three such children last year, and another two more this year. So far he has been successful in getting approval, noting that his clients would have to explain the situation to the schools' principals.
“When it comes to PT3, the Education Ministry needs IC. If don't have IC, they cannot register to enter the exam. That is the big problem. When you have 'bin Abdullah', let's say he pass and then want to change 'bin Abdullah' to father's name; all the certificates, the passport, the bank account must change,” he said.
He has yet to encounter a situation where he has to apply for his clients to be allowed to sit for the Form 5 examination without a MyKad.
In response to those who defend the “bin Abdullah” policy as aimed at reducing baby-dumping cases, adultery and rape cases, Lokman insisted that these arguments were not logical.
He pointed out for example that the internet and the widespread use of smartphones, even among schoolchildren, meant that access to pornographic materials cannot be controlled, saying that religious education should instead be the solution.
He noted that the high number of children with “bin Abdullah” would instead make illegitimate births a common and ordinary scenario for Malaysians and ironically increase the numbers of illegitimate children, arguing that such a policy would destroy the Muslim family institution instead of restore it.
Lokman questioned why Malaysia was allegedly the only country that insists on Muslim illegitimate children using “bin Abdullah” or “binti Abdullah”, rubbishing the justification that this was due to Malaysia following the Shafie school of Islamic jurisprudence under Sunni Islam.
He said Malaysia itself does not follow Shafie jurisprudence completely, including where the latter uses rice for the payment of zakat fitrah or tithes for religious alms. “But Malaysia makes it easier by paying using money. So my question is why this issue, they don't want to facilitate it?”
“It seems as what is happening is as if NRD is putting a mark (on the forehead) that this is an anak zina (a child born of illicit sexual relations),” Lokman further said.
He said it appeared as if the NRD was taking the role of being a judge that decided on how Muslim illegitimate children should be named, instead of fulfilling its administrative duty of “recording births and deaths”.
A majority of the birth certificates for the 21 children carried the seemingly innocuous phrase “Permohonan Seksyen 13” (Section 13 application), which has been used by the NRD to bar Muslim illegitimate children from using their father's name as patronym, as in a case highlighted by Malay Mail last month.
The phrase refers to Section 13 of the Births and Deaths Registration Act (BDRA), which Lokman pointed out does not bar Muslim children born less than six months from the parents' marriage from using their father's name as patronym. It does not mention the need to use “bin Abdullah” or “binti Abdullah” in place of their fathers’ names.
The section only states that the father of an illegitimate child is not required to provide information on the child’s birth, and allows the name of the person acknowledging himself to be the father to be registered as such if it is at the joint request of him and the mother.
All eyes on appeal
This afternoon, the Federal Court is expected to hear the case that is expected to have a far-reaching implication on the fate of illegitimate Muslim children in Malaysia.
Because of this Federal Court hearing, the NRD was allowed to temporarily stay the effect of the Court of Appeal's May 2017 landmark ruling ― which said the NRD's decision to use “bin Abdullah” and the “Permohonan Seksyen 13” phrase was unauthorised by law ― until the end of this appeal.
* Names used for illustration purposes only.