PPUTRAJAYA, Feb 13 — Other states in Malaysia should emulate Johor by gazetting a religious edict to impose “bin Abdullah” or “binti Abdullah” as part of the names of Muslim children born outside marriage or considered illegitimate under Islamic law, lawyers for the Johor Islamic Religious Council (MAIJ) said today.
The lawyers said doing so is necessary for the fatwa to take legal effect, in the wake of a Federal Court ruling today declaring that the National Registration Department (NRD) director-general had been wrong in unilaterally deciding to impose “bin Abdullah” on a Johor-born Muslim illegitimate child in 2012.
In a majority ruling, the country’s apex court said Johor had no gazetted fatwa at that time which provided for the “bin Abdullah” patronym to be imposed.
The landmark case concerned a Johor-born Muslim child’s bid to be able to take on his father’s name with “bin MEMK” instead of being forced to carry “bin Abdullah” in his birth certificate, as had been customary for those born out of wedlock or deemed illegitimate under Islamic law.
Although the child was born about five months after his parents had married, he was deemed illegitimate under Islamic law based on the length of time from the time of his parents' marriage to his birth.
The Federal Court ordered the removal of “bin Abdullah” from the child’s name as there was no legally-binding fatwa in Johor for it to do so even as it remarked that the NRD director-general was correct to reject the use of the father’s name due to an existing related Johor state enactment.
The Johor child and his parents in this case had filed their lawsuit to challenge the “bin Abdullah” imposition in the boy’s name, with his lawyers previously explaining that they were not seeking to remove the child’s illegitimacy status but merely wanted to remove indicators of his illegitimacy to prevent stigma.
Johor’s gazetted fatwa
Datuk Ikbal Salam, a lawyer for MAIJ which had joined the lawsuit as an intervener to oppose the child’s bid, said the Federal Court’s decision today had actually provided “reinforcement and recognition” of Islam’s legal position in states.
“The Federal Court today clearly stated that government agencies have to comply with state laws that have been determined, including Islamic laws stated in fatwa that have been gazetted,” he told reporters later.
He noted that Johor had gazetted a fatwa on May 21, 2018 to state that illegitimate children can take on either “bin Abdullah” or “binti Abdullah” or any of the 99 other names of Allah.
“Including Abdullah, there are 100 names they can use. Meaning that the choice is broad, this fatwa was not done to affect or to embarrass the child. No, but to take care of the child’s dignity, because of the broad fatwa, can use any of the 99 names of Allah plus bin Abdullah,” he said.
“It means for this case, although the fatwa was gazetted after this case was initiated by the respondent, but for the future, I believe Johor’s position is very clear,” he added, referring to the Johor Muslim child who had filed the legal challenge back in 2015.
Ikbal noted that the status of fatwa as law was previously unclear, but argued that the Federal Court had today made it clear that fatwa can be applied as law if such religious opinion have been gazetted.
“For this case, we take the lesson of the importance for fatwa to be gazetted, but in the future, we are clearer about the status of fatwa in future cases,” he said.
In a separate statement on how to improve illegitimate Muslim children's dignity, Ikbal suggested that the National Registration Department could discuss with state Islamic authorities to review the implementation of the "bin Abdullah" naming policy.
Ikbal said this could include not limiting the naming of such children to feature "bin Abdullah", but to also allow the use of any of the 99 names of Allah otherwise known as Asmaul Husna.
"When the child is bin to one of the names of Asmaul Husna, then simultaneously to take care of the illegitimate child's dignity, the National Registration Department can consider the proposal for the name of the child's father to be added with alias (@) to the name that was chosen from Asmaul Husna and this would then make the child's bin in line with the father's additional name.
"This is more practical as while acknowledging the sanctity of the child's status, the one who committed wrong is the father," he suggested.
Datuk Zainul Rijal Abu Bakar, another lawyer for MAIJ, said that the Johor fatwa will apply on Muslim illegitimate children in Johor who have their births registered after the gazetted fatwa date of May 21, 2018.
Zainul said there were a few states in Malaysia that have similarly gazetted fatwa in their respective states to impose “bin Abdullah” on illegitimate Muslim children, and that the Federal Court’s decision today does not apply to those states as their fatwa have legal effect.
“Based on the decision by the court, we as lawyers plead and recommend to any state that still don’t have such fatwa to enact the same fatwa. And if they already have such fatwa but not yet gazetted, we urge those states to gazette those fatwa so that they have legal effect,” he told reporters.
“We are happy that at least the Federal Court has determined that fatwa if gazetted becomes law that has to be recognised by government agencies and the court placed fatwa in such a high position, that is the 4-3 ruling today. I think that is very clear to be followed by all Muslims in Johor,” he said, referring to the majority judgment.
Effect on illegitimate Muslim children?
Speaking on the Federal Court’s majority ruling which would mean that the Johor-born child would only have his existing name without “bin Abdullah” and without his father’s name “bin MEMK”, Zainul said that the effect may not be big as there is a trend where some Malays do not include their father’s name in their own names.
Zainul also argued that letting an illegitimate Muslim child know of his or her status from an early age could be better than having them discover this at a later stage of their lives.
He said he was referred to several cases where Muslim illegitimate daughters carried their biological father’s name, only to discover when they are about to wed that their father could not give them away in marriage due to their illegitimate status.
“So she is forced to go to court to get wali hakim, so when at that time she wants to marry, only then she knows. It creates a big trauma to this daughter, this is what we want to take care of actually. If from the start they know they are illegitimate child, but are treated well and no discrimination, it won’t cause trauma to this daughter,” he said.
“It’s not that we want to impose ‘bin Abdullah’ to insult them [as] second-class family. No, but to avoid the trauma from deepening when they want to marry or when their biological father passes away, then only they know they are illegitimate children, they don’t get any inheritance, that will cause greater anger in the family,” he said.
Those advocating for the removal of "binti Abdullah" or "bin Abdullah" from illegitimate Muslim children's names have however previously argued that children would be subject to stigma and exposed to embarrassment and risk of bullying in school, due to the patronym's obvious signalling of their illegitimacy status.