‘bin Abdullah’ case: Amend laws to meet apex court ruling
On Feb 13, the Federal Court made an important ruling on the ‘bin Abdullah’ case. With a majority decision of 4-3, the court set aside the decision by the Court of Appeal, made on July 25 2017, to allow a Muslim child conceived out of wedlock to bear his father’s name.
In general, I agree with the Federal Court”s decision that a Muslim child conceived out of wedlock cannot bear his father’s name.
The apex court gave two reasons for its decision.
One is, it took into consideration of Islam’s position in the Federal Constitution through Schedule Nine List II of the State List which grants the state assemblies to amend laws related to Islam and Muslims, including code of conduct, criminal law (within their jurisdiction) and to ascertain whether a person is a Muslim or otherwise.
Considering the parties involved in the case are Muslims and married under Islamic laws in Johor and the child was conceived in the state, therefore they fall under the purview of the Johor Islamic laws.
According to Section 111 of the Johor Islamic Family Law Enactment 2003, a child conceived out of wedlock cannot bear the father’s name.
Therefore the National Registration Department (JPN) disallowed the child from bearing the father’s name and affix ‘bin Abdullah’ into it, which is according to Johor Islamic laws.
Furthermore, there is an edict in Johor that disallowes a Muslim child conceived out of wedlock to bear his or her father’s name. However, teh edict was not gazetted when the case was on trial. It was only gazetted on May 21, 2018. However, the Federal Court took a universal approach towards the edict.
The second reasoning is that the Federal Court did not enforce Section 13A of the Birth and Death Registration Act 1957, where it requires a child born within the framework of a matrimony to bear the father’s surname.
However Section 13A (2) of the same Act allows a child born out of wedlock to bear the mother’s surname of they they testify to its motherhood. The child would continue to bear the mother’s surname unless the father declares his paternity of the child, which will allow the child to carry the father’s surname under Section 13.
The Federal Court ruled that a Muslim, especially a Malay in Malaysia, does not use surname. Therefore Section 13A Birth and Death Registration Act is not applicable to this case.
Federal Court also ruled that a surname is just an additional information and is not a necessity. If the applicant has a surname, it can be applied. Furthermore Section 13A does not discriminate between a Muslim and a non-Muslim.
However, the legislation does discriminate when it involves people who do not have a surname. Moreover, name and surname are two different matters that was not deliberated by the Court of Appeal earlier. So NRD director general was instructed to remove the affix ‘bin Abdullah” from the child’s birth certificate.
Third reasoning: The Federal Court disputed the national level edict which disallows Muslim children born out of wedlock to use the affix “bin Abdullah”, which was enforced by the NRD director general .
Generally, Islamic laws state that a child born out of wedlock cannot use the father’s name, which a matter enforced under state Islamic laws. However, from the fiqh perspective, there are differing opinions among Fuqaha about the matter. It means, the Islamic laws and views can differ from one state t another.
For example, an edict in Selangor is different from Perlis and the Federal Territories. Taking into account Siyasah Syariah doctrine, states can determine which opinion would be suitable for the local community. This means the edict must be gazetted first so it would be legally binding.
Therefore, an edict bythe National Fatwa Committee will only be binding in Johor if it was gazetted in the state under Section 49 of the Johor Islamic Enactment 2003.
So in this case, the NRD’s action in enforcing an edict issued by the National Fatwa Committee for the respondents is baseless. Moreover, the NRD director general went beyond his authority as only the Johor Sultan can gazette the edict, which would later become legally binding.
Considering there were gazetted edicts on the child born out of wedlock in Johor at that particular time, the NRD cannot whimsically enforce the National Fatwa Committee’s edict on the respondents. The edict can only be binding in Johor if it falls under Section 52(1) of the Johor Islamic Enactment 2003. The director general, cannot on his own, determine which edicts to enforced. Therefore, NRD does not have the authority in the “bin Abdullah” case and on other decisions related to it.
Looking at the Federal Court’s ruling, I feel there is a need to fine tune the Islamic laws at each states. It is also important to gazette edicts made to make it legally binding. The effort to streamline edicts across the states would decrease problems like this. This can be done by the Muzakarah Committee, which would present their case to the Council of Rulers.
Streamlining Islamic laws among states are being done with the increasing efforts by Syarak-Civil Technical Laws Committee to reduce the recurring of such cases. Once again it must be forwarded to the Muzakarah Committee and presented to the Councils of Rulers.
For this matter, I urge the authorities to deliberate this matter with tact so not to offend the Rulers, who are the supreme authority on Islamic matters in their respective states.
The next question is, will the Federal Court’s decision resolve the ‘bin Abdullah’ or ‘binti Abdullah’ issue? Even though the court questioned the usage of surnames among Muslims and its usage among the community, I suggest the government to amend Section 13A Birth and Death Registration Act to include the decision of the court.
This will be in line with the government’s concept of Rahmatan Lil Alamin.
Associate Professor Dr Mohamed Azam Mohamed Adil is the deputy chief executive officer of International Institute of Advanced Islamic Studies (IAIS) Malaysia
