Lawyer: Couple not trying to legitimise illegitimate child, just removing ‘bin Abdullah’ stigma

By Ida Lim

PUTRAJAYA, Feb 8 — A Johor Muslim couple are not trying to change their child’s illegitimate birth status to legitimate by asking the National Registration Department (NRD) to change his name, but merely wanted the “bin Abdullah” patronym dropped, the couple’s lawyer said.

Lawyer K. Shanmuga, who represented the Johor Muslim couple and their child, said his clients wanted the indicators of illegitimacy removed from the child’s birth certificate to prevent stigma.

“But we are not asking for the Federal Court or High Court or judicial review process to legitimise the first respondent (the child).

“All we are asking for is two things — do not impose ‘bin Abdullah’ on the birth certificate; do not put ‘Permohonan Seksyen 13’ on birth certificate,” he told the Federal Court yesterday.

“We say so for very simple reasons, it is ultra vires the statute. Section 13 and Section 13A when read together imposes a duty on appellants to include the father’s name,” he added, referring to two provisions in the Births and Deaths Registration Act.

He also said the NRD’s registrar has no power to insert “bin Abdullah” into the child’s name, noting that there were many court cases where naming of the child was held to be a “parental right”.

Yesterday was the hearing of the NRD’s appeal against the Court of Appeal’s decision that the NRD’s was wrong to use “bin Abdullah” in the name of the Johor Muslim couple’s child and should have allowed the father’s name to be included.The NRD also appealed against the ruling that the NRD’s “Permohonan Sekysen 13” entry in the child’s birth certificate was unlawful.

Shanmuga said his clients’ case was not about personal laws, also noting that the Shariah court would be able to tell for itself if a Muslim child was illegitimate by comparing the child’s birth certificate and the parents’ marriage certificate.

“We are not saying by virtue of naming the child, illegitimacy becomes legitimate. That is not the case.

“If the child were to go to the Shariah court for succession and wali, they will ask for marriage certificate and birth certificate. The Shariah court will do its job and satisfy itself whether the child is legitimate or not legitimate,” he said.

A wali or a guardian such as the father is required in Islam to give away a woman for marriage and to solemnise the marriage.

Local fatwas or religious opinion have defined illegitimate children in Islam to include those born out of wedlock or those born less than six months from their parents’ marriage.

Datuk Sulaiman Abdullah, the lawyer for the Johor Islamic Religious Council which had intervened in the lawsuit, responded in court to Shanmuga’s argument that the issue of naming does not legitimise illegitimate children.

“But in Islamic law, we are very precise about terms that we use. Shariah means putting things into its place, so a child is not entitled to use the father’s name,” he said of illegitimate Muslim children.

Chief Justice Tun Md Raus Sharif, who chaired the Federal Court panel yesterday, said the decision will be delivered on another date which has yet to be fixed.

On September 3, 2015, the Johor Muslim couple — given the initials of MEMK and NAW — and their child had filed the lawsuit against the NRD, the NRD director-general and the government of Malaysia to seek the change of the “bin Abdullah” patronym to the father’s name in the birth certificate.

The Kuala Lumpur High Court had on August 4, 2016 dismissed the Johor Muslim couple’s lawsuit and ruled that the NRD director-general’s refusal to change the “bin Abdullah” patronym in the child’s birth certificate was lawful.

The Court of Appeal had on May 25, 2017 unanimously delivered a landmark ruling that quashed the NRD director-general’s decision to use the “bin Abdullah” patronym, also ordering him to correct the patronym in the birth certificate as he cannot override the father’s wishes to have his name used.

Noting that the NRD had based its decision on the National Fatwa Committee’s two fatwas dated 1981 and 2003, the Court of Appeal had said a fatwa is not law and has no force of law and cannot be the legal basis for the NRD D-G’s decision on the surname of illegitimate Muslim children.