The Borneo Post

‘D-G not bound by fatwa on naming child’

-

PUTRAJAYA: The National Registrati­on Department ( NRD) director- general is not bound by 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 and 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 directorge­neral 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 his father’s surname as he is illegitima­te.

“A fatwa, we reiterate, is not law and has no force of law and cannot form the legal basis for the National Registrati­on directorge­neral 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

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.

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 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, this year allowed the couple’s appeal who sought 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, was legally married in 2009 and the child born in Johor in April the following year, which was five months and 24 days 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 be surnamed to 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 directorge­neral 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 Section 13 of the Act informatio­n, as this section merely set out the procedure for the father to be registered as the father of the illegitima­te child and it 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 first 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 first 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

Datuk Abdul Rahman Sebli, Justice

 ??  ?? Mohd Chee Kadir
Mohd Chee Kadir

Newspapers in English

Newspapers from Malaysia