'Bin Abdullah' case: NRD right in following fatwa, says lawyer

Senior federal counsel Suzana Atan told a five-member Federal Court bench today that the National Registration Department could refer to a fatwa or religious edict when registering the name of the child according to Islamic precepts.

In making submissions in the case of children born out of wedlock in what is known as the “bin Abdullah” case, Suzana, appearing for the NRD and the government said the definition of “illegitimate child” differs according to Muslims and non-Muslims.

However, the Birth and Death Registration Act (BDRA) does not define what constitute an illegitimate child.

Hence, she said, for Muslim citizens the registrar needs to refer to the fatwa regardless of whether it is gazetted or otherwise by the state authorities.

"It is reasonable for the registrar to refer to the fatwa to determine this," she said.

She said in the case before the court, the parents got married in Johor in 2009 but the child was born five months later from the marriage date while the registration of the child was done only two years later under Section 12 of the BDRA.

The application to register the child was made under Section 13 of the Act and upon completion of the process, the child's name bore the suffix “bin Abdullah”.

According to Suzana, the parents filed for a correction under Section 13A but this was rejected by the NRD and hence the parents' current judicial review application.

The senior federal counsel said Section 111 of the Islamic Family Law Enactment 2004 on the ascription of paternity stated:

“Where a child is born to a woman who is married to a man more than six “qamariah” months from the date of the marriage or within four “qamariah” years after dissolution of the marriage either by the death of the man or by divorce, and the woman not having remarried, the “nasab” or paternity of the child is established in the man, but the man may, by way of “li’” and/or imprecation, disavow or disclaim the child before the Court.”

She also pointed to the national and the Johor state fatwa regarding this where a child born less than six qamariah months is considered illegitimate and hence the child cannot bear the father's surname.

For the review, three questions were posed to be decided by the apex court namely:

Whether in performing the registration of birth of a Muslim child, the registrar of birth and death may refer and rely on sources of Islamic law.

Whether the civil court may determine questions or matters on the legitimacy of Muslim children in respect to naming and ascription of paternity.

Whether Section 13A of BDRA applies to registration of birth for Muslim children, enabling the children to be named with the personal name of a person acknowledging to be the father of the children.

Suzana argued the first question should be answered in the affirmative while the second and third should be answered in negative.

'Fatwa has force of law'

The parents of an eight-year-old child sought the judicial review as their child is deemed to have been born out of wedlock by the authorities and hence not allowed to bear the father’s name as part of his or her own name.

Instead, the name ends with the term “bin Abdullah” or “binti Abdullah”, which some argue would mean that the child would have to carry the stigma of being identified as an illegitimate child for the rest of his or her life.

Senior lawyer Sulaiman Abdullah for the Johor Islamic Council which has been allowed to intervene in this case said the fatwa should be seen as having the force of law as it binds on all Muslims in the state regardless of it being gazetted or otherwise.

At this junture, the bench led by Chief Justice Mohd Raus Sharif said the issue was that the fatwa was not gazetted by Johor and should not have a legal binding effect.

Sulaiman then said the court should look at it as having a binding effect as soon as it was announced and that it applied to all Muslims in the state.

"Fatwa shall be binding and it is to be upheld when it is made according to “hukum syarak”," he said.

If it is not gazetted it would be referred to the fatwa committee for determination, the senior lawyer added.

He said that in this case, the NRD registrar referred to the committee for advice and this was proven in the facsimile exchange with an officer by the name of “Hassan”.

Sulaiman described the Court of Appeal decision as “imaginary and sympathetic to the child”.

"The COA totally lost the plot in terms of Islamic law," he said adding that a civil court should not get involved in deciding religious matters as it should be dealt with by experts of Islam as stipulated under Article 121 (1A) of the Federal Constitution,” he submitted.

Besides the Johor Islamic council, the Federal Territory Islamic Council and Selangor Islamic Council have also been granted amicus curaie (friends of the court) status.

'Question 1, 2 should not be answered'

Counsel for the family K Shanmuga (photo) said his clients acknowledged that the child was an illegitimate child and are not questioning that but only the manner in which the child is named in the birth certificate.

"How can you insert a different name than the father's?" he asked.

He said the court should not answer the first two questions posed to it as these had nothing to do with Islam but should answer the third question in the affirmative.

Counsel argued that this was because not all states followed the national fatwa as in the case of Perlis which gazetted a fatwa which ruled an illegitimate child could bear the father's name.

Shanmuga said the courts have always looked after the interests of the child and should continue to do so by maintaining that the current practice of placing “bin Abdullah” would cause stigma to the child.

He said his clients were not bringing up the issue of inheritance or anything else but solely the issue of name.

Shanmuga also said that the NRD had no power in law to change names as specified by parents.

The other members of the bench were Chief Judge of Malaya Justice Ahmad Ma'arop and Federal Court judges Justice Hasan Lah, Justice Balia Yusof Wahi and Justice Aziah Ali.

Today's proceedings ended at 7 pm with the court reserving judgment.

It was previously reported that the appellate court in a landmark judgment ordered the NRD to change the name of the seven-year-old child to bear the father's name as the Johor fatwa had no legal effect as it was not gazetted.- Mkini