(Mar. 6, 2020) On February 13, 2020, Malaysia’s Star news media outlet reported that the Federal Court of Malaysia (Malaysia’s highest court) had held, by a 4-3 majority, that the National Registration Department (NRD) cannot register the father’s last name for a Muslim child who was born or conceived out of wedlock. It also held, however, that the NRD does not necessarily have to register the last names commonly applied to such children: “bin Abdullah” or “binti Abdullah,” meaning son or daughter of a servant of Allah.
In Malaysia, a 2003 fatwa issued by the Fatwa Committee of the National Council for Islamic Affairs forbids Muslim children from carrying their father’s name, or inheriting from him, if they are born out of wedlock or within the first six months of their parents’ marriage. According to a 1981 fatwa, illegitimate children should be given one of the above last names.
In the case before the Federal Court, the parents of a child born in the state of Johor in 2010, five months and 24 days after their marriage, had applied to the NRD in 2015 to change the child’s last name on his birth certificate from “bin Abdullah” to the father’s last name. The application was made under section 13 of the Births and Deaths Registration Act 1957 (BDRA), which reads as follows:
Notwithstanding anything in the foregoing provisions of this Act, in the case of an illegitimate child, no person shall as 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 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.
Section 13A provides that the surname of a legitimate child will ordinarily be that of the father, while the surname of an illegitimate child may be the surname 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 surname may be the surname of that person.”
The NRD refused to register the father’s name for the child on grounds that the child was illegitimate. After the parents lost a bid to challenge this decision in the High Court in 2016, the Court of Appeal ruled in 2017 that the child could bear his father’s name instead of “bin Abdullah.” It held that the relevant fatwa “had no force of law and so could not form a legal basis for the authorities to decide on the surname of a child conceived out of wedlock, and that the “bin Abdullah” moniker would lead to “open and public humiliation” of a child.” It further stated that the NRD director-general’s jurisdiction “was a civil one and was confined to determining whether the child’s parents had fulfilled the requirements under the BDRA, which covers all illegitimate children, Muslim and non-Muslim.”
The NRD appealed the decision to the Federal Court, which subsequently issued a stay of the Court of Appeal’s order with respect to the child.
Federal Court Decision
The majority of the Federal Court held that section 13A of the Births and Deaths Registration Act 1957 “does not apply to the registration of births of Malay Muslim children as Malays do not carry any surnames.” Thus, the provision “has no application to the Malay naming system and did not enable the children to be named with the personal name of a person acknowledged to be the father of the children.”
With respect to the “bin Abdullah” and “binti Abdullah” last names, the Court held that since Johor had not gazetted the relevant national fatwa at the time of the child’s birth registration, the NRD could not unilaterally impose such a name on a child born in that state. Johor has since gazetted the fatwa in May 2018, and allows illegitimate children to use the two last names “or any of the 99 other names of Allah.”
The three dissenting judges in the case were of the opinion that “the NRD should not have unilaterally used “bin Abdullah” for the child’s name — but for different reasons, and that the NRD was wrong to refuse the father’s application to have his name be part of the child’s name.”
The 2017 Court of Appeal decision “sparked fierce protest from conservative Muslims, who insist the ruling was unconstitutional. Other Muslim groups however … lauded the decision for protecting children born out of wedlock from social stigma.” Following the Federal Court’s decision, there were similarly mixed reactions. Sisters in Islam, an organization that promotes the rights of Muslim women, viewed the decision with “mixed concerns,” welcoming the ruling to remove “bin Abdullah” from the child’s birth certificate, but viewing “with great distress and concern” the decision to disallow the father’s name from being part of the child’s name.
Sisters in Islam noted that some religious leaders in Malaysia support “a compassionate approach to this issue so as to take into account the welfare and best interest of the child.” Such leaders include a mufti from Penang, Wan Salim Wan Mohd Noor, who said following the ruling that it was “probably time” to review the old fatwa and that “Islamic teachings are based on justice, wisdom, honour and goodwill. And in meting out justice in this issue, the innocent children born out of wedlock should not bear their parents’ sins.”
Following the Federal Court’s ruling, the child commissioner at Malaysia’s Human Rights Commission (Suruhanjaya Hak Asasi Manusia Malaysia, SUHAKAM) called for law changes in order to give Muslim and non-Muslim children equal rights, saying that the child would be stigmatized and suffer discrimination, and that “[a]ll children have equal rights to name, identity and nationality.”
Lawyers for the Johor Islamic Religious Council, which was permitted by the Federal Court to intervene in the case and opposed the bid for the child to be given his father’s last name, called for other states to follow the approach of Johor and gazette the relevant fatwa. One lawyer said that the Court’s decision provided “reinforcement and recognition” of Islam’s legal position in the states and made clear that “government agencies have to comply with state laws that have been determined, including Islamic laws stated in fatwa that have been gazetted.” Another lawyer argued that “letting an illegitimate Muslim child know of his or her status from an early age [i.e., through the use of “bin Abdullah” or its alternatives] could be better than having them discover this at a later stage of their lives.”