PUTRAJAYA, Nov 14 — The National Registration Department (NRD) acted wrongfully when it refused to let a Johor Muslim child bear his father’s name, and when it decided on its own to put “bin Abdullah” instead, the Federal Court heard today.
Lawyer K. Shanmuga, who represented the Muslim child and his parents, noted that the NRD had not only rejected both parents’ joint request to have the father’s name included in the son’s name in official records, but had went on to unilaterally impose the name “Abdullah”.
“They infringed the law by imposing ‘bin Abdullah’. There is no provision in the Act that empowers the NRD to impose this name,” he told the Federal Court, referring to the Births and Deaths Registration Act (BDRA).
The Johor child in this case is considered to be an illegitimate child based on local fatwas or Islamic religious opinions, as he was born less than six months from his Muslim parents’ marriage.
The lawsuit was filed by the Johor Muslim couple given the initials of M.E.M.K and N.A.W and their child on September 3, 2015 against the NRD, the NRD director-general and the government of Malaysia.
The Johor child and his parents had in 2017 succeeded at the Court of Appeal in getting court orders to remove the “bin Abdullah” name which can often indicate illegitimacy for Muslim children, and also orders to have the child take on his father’s name “bin M.E” instead.
But the NRD had appealed against the decision which ruled its actions as illegal, and the Federal Court was hearing the appeal today.
Shanmuga today pointed out that it is the right and responsibility of parents to name their child.
“Can the Registrar of Births and Deaths exercising powers limited under the BDRA refuse to register, or more importantly impose a name not chosen by the parents?” Shanmuga asked.
Noting that the BDRA law governing the registration of children’s names only gives limited powers under Section 16 for the registrar to refuse to register “undesirable names”, Shanmuga pointed out that this did not apply to the Johor Muslim child’s case whose parents only wanted him to have his father’s name included.
Shanmuga concluded that the Registrar could not choose to insert a name not chosen by the Muslim parents such as “bin Abdullah”, based on the federal law of BDRA.
Shanmuga today also highlighted that Section 13A(2) of the BDRA allows an illegitimate child to carry the father’s surname in official records if the latter requests for it, saying that the NRD should have recorded the Johor Muslim child’s name with the father’s name “M.E.”.
Senior federal counsel Suzana Atan however argued that the father’s name “M.E.” in this case is not a surname or family name, also saying that Malays in Malaysia do not have surnames or family names except for those with Arabic lineage.
Suzana argued that for Malay Muslims without surnames, the NRD was right to have referred to two fatwas issued in 1981 and 2003 to decide to impose “bin Abdullah” on the Johor Muslim child’s name due to his illegitimacy.
Shanmuga in turn argued that many Malaysians except for those who are Chinese or Eurasians would not have surnames, and that the term “surname” should be interpreted as including the second name or patronymic names derived from the father’s name.
Shanmuga also noted that the fatwas relied on for the naming of the Johor Muslim child were not gazetted as law in Johor, and argued that there were differing views by Islamic scholars and even a Terengganu Shariah court on the matter, including a Perlis fatwa that allow for an illegitimate Muslim child to carry the name of the mother’s husband.
The appeal at the Federal Court today was heard by a seven-member panel chaired by Chief Judge of Malaya Tan Sri Azahar Mohamed.
The other judges on the panel are Chief Judge of Sabah and Sarawak Tan Sri David Wong, Federal Court judges Datuk Rohana Yusuf, Datuk Mohd Zawawi Salleh, Datuk Abang Iskandar Abang Hashim, Tan Sri Idrus Harun, Datuk Nallini Pathmanathan.
The panel will be delivering its decision on a date yet to be fixed.
The three legal questions that are before the Federal Court include whether the Births and Deaths Registration Act 1957’s Section 13A applies to the registration of births for Muslim children and enables them to take their father’s personal name.
The two other questions were whether the Registrar of Births and Deaths may refer and rely on sources of Islamic law on legitimacy when registering the birth of a Muslim child, and whether the civil court may determine questions on the legitimacy of Muslim children for the naming and ascribing of paternity.