PUTRAJAYA: The National Registration Department (NRD) director-general is not bound by any fatwa or religious edict issued by the National Fatwa Committee to decide on the surname of a Muslim child conceived out of wedlock.
In a 29-page landmark judgment, Justice Datuk Abdul Rahman Sebli said the director-general's jurisdiction was a civil one and confined to determining whether the child's parents had fulfilled the requirements under the Births and Deaths Registration Act 1957 (BDRA) which covered all illegitimate children, Muslim or non-Muslim.
He said the director-general was guided by procedure under the BDRA and his duty was to allow the registration application if all requirements under the BDR were met.
Abdul Rahman said the BDRA did not envisage the application of any substantive principle of Islamic law in the registration process, adding that Section 13A (2) of the Act allowed for the surname of the illegitimate child to be in the name of the person acknowledging himself to be the father of the child.
He said the NRD director-general acted irrationally in refusing to alter a child's surname from "Abdullah" to the name of the child's father in the birth certificate on the purported ground that according to the fatwa issued by the National Fatwa Committee, the child could not be ascribed with his father's surname as he is a illegitimate child.
"A fatwa, we reiterate, is not law and has no force of law and cannot form the legal basis for the National Registration director-general to decide on the surname of an illegitimate child under Section 13A (2) of the BDRA.
“A fatwa 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, otherwise a fatwa would form part of federal law without going through the legislative process.”
He said Section 13A (2) of the BDRA did not give the power to the NRD director-general to override a father's wish to have his name ascribed as his child's surname.
"Nor is it a provision that empowers him to decide upon himself that the child's surname should be ‘Abdullah’,” the judge said, in allowing the appeal brought by a couple and the child whose names the court withheld to protect the child's identity.
He said: “The BDRA makes no distinction between a Muslim child and a non-Muslim child and Section 13A(2) of the Act does not say that an illegitimate Muslim child must be treated differently from a non-Muslim child when it comes to the registration of a surname.
“And it does not say that in the case of a Muslim child, his surname must be ‘Abdullah’.
"A fatwa issued by a religious body involves purely the administration of Islamic law or Hukum Syarak and has nothing to do with the National Registration director-general's duty under the BDRA to register births and deaths in the states of Peninsular Malaysia.”
A three-man appellate court bench comprising Justices Datuk Tengku Maimun Tuan Mat, Abdul Rahman and Puan Sri Zaleha Yusof had on May 25 allowed the couple's appeal.
The couple had asked the court to compel the NRD director-general to replace the surname "Abdullah" with the name of the child's father in the birth certificate.
The couple, both Muslims, were legally married in 2009 and the child born in Johor in April the following year, which was five months and 24 days (five months and 27 days, according to the Islamic Qamariah Calendar) which was less than six months from the date of their marriage.
The child's birth was only registered two years later as late registration under Section 12 (1) of the BDRA and the couple jointly applied for the father's name to be entered in the register as the father of the child.
However, in the child's birth certificate issued on March 6, 2012, his surname was given as “Abdullah” instead of the father's surname.
In February 2015, the father's application to correct his child's surname was rejected based on a fatwa by the National Fatwa Committee, which states that an illegitimate child cannot have as surname, the name of the father of the child or to the person who claims to be the father of the child.
This prompted the couple to file a judicial review at the court.
The judicial review application was filed by the child through his next friends, who are his parents, and named the NRD, its director-general, and the Government of Malaysia as respondents.
In his judgment, Abdul Rahman said it was not a requirement of the law that the birth certificate of an illegitimate child must be endorsed with information from Section 13 of the Act, as this section merely sets out the procedure for the father to be registered as the father of the illegitimate child and did not mandate the insertion of the information in the birth certificate.
"It is therefore superfluous and completely unnecessary to ascribe any surname to the child in the birth certificate unless, in the case of a Muslim child, the purpose is to announce to the whole world that the child is an illegitimate child by tagging the surname ‘bin Abdullah’ to his name in the birth certificate.
"We believe Islam does not condone such open and public humiliation of an innocent child," he said.
"Unfair as it may appear to be, the 1st appellant (the child) will have to carry the stigma of being an illegitimate child for the rest of his life, a classic case of being punished for the sins of his parents, who had in fact legally married before he was born.”
He said the couple remained the child's parents to this day and the child's grief would be compounded if he compared his birth certificate with the birth certificates of his brothers and sisters (if any), which will carry their own father's name as their surnames, unlike his birth certificate.
"One can imagine the 1st appellant's (the child) grief, not to mention the feeling of shame that he has to bear throughout his existence.
“A birth certificate serves as a poignant reminder of one's birth into this transitory world. It should not be turned into an instrument of shame," he said. – Bernama