Court orders 'bin Abdullah' removed from adopted Muslim child's name

 

The Sarawak government was directed by a court to remove “bin Abdullah” from the official records of a child adopted in the state.

The Malay Mail today reported that, through an April 6 written judgment, the  High Court in Sibu ordered the state government to implement the removal for the best interest of the three-year-old boy and in accordance with the wishes of the adoptive Muslim parents.

The online news portal reported that judicial commissioner Christopher Chin Soo Yin directed the Sibu district officer and the National Registration Department (NRD) to ensure that the child “should be named as intended by his parents”.

The order encapsulates that the district officer and NRD must amend the child’s name in the special register (which is the official records for adoption in the state), certificate of adoption, birth certificate, by removing “bin Abdullah” from his name.

In Malaysia, the words “bin Abdullah” or “binti Abdullah” for male and female Muslim names are primarily as an indicator that a child was born out of wedlock.

According to the written judgment, the boy was born in 2018 with a pre-adoption name that carried the words “bin Abdullah”.

The child’s adoptive parents adopted him in November 2018 at the Sibu District Office, and the adoption certificate was released the same day. They gave the child a new name that had the adoptive father’s name.

However, when the boy’s birth certificate was issued later, the document stated his new name carrying the words “bin Abdullah” instead of the adoptive father’s name.

In January last year, the parents filed a lawsuit against the Sibu District officer, seeking to remove the words “bin Abdullah” from the boy’s name in all official records.

In his ruling, Chin said that a Sarawak fatwa on “bin Abdullah” does not apply in the present case involving the boy as the religious edict has no retrospective effect.

Under the law, retrospective effect refers to a law or any form of regulation that has effect, even on events that took place before the law or regulation was made or formalised.

Chin made reference to a 2020 Federal Court case, involving a similar issue involving a child in Johor, which ruled that a fatwa needs to be gazetted in a state before it could become legally binding.

In the present Sarawak case, the district officer justified the insertion of “bin Abdullah” in the boy’s name by relying on the Sarawak Mufti Department’s name guideline for illegitimate/adopted persons, as well as a February 2021 fatwa.

In regard to the Sarawak fatwa titled “Fatwa on the naming of illegitimate child” dated Feb 18 this year and gazetted on Feb 24 the same year, it is stated as taking effect from Feb 1 this year.

Section 37(4) of the Majlis Islam Sarawak Ordinance 2001 states that a gazetted fatwa shall be binding on all Muslims in the state, from the specified date in the gazette.

The judicial commissioner ruled that the Majlis Islam Sarawak Ordinance does not contain anything to suggest the state Islamic Religious Council has powers to issue a fatwa with retrospective effect.

'Laws should not take away or impair a person's rights'

He cited two legal precedents laid by the Court of Appeal and the Federal Court respectively, which stated that laws should not be interpreted or applied to retrospectively take away or impair a person’s rights.

“Henceforth, the gazetted fatwa shall and will only bind the naming of an illegitimate child for an application after the gazetted fatwa has come into force,” Chin noted, adding that the fatwa gazetted in February this year could not have retrospective effect. The parents’ suit was filed on Jan 16 last year.

The judicial commissioner then surmised that the district officer had wrongly enforced the fatwa (then yet to be gazetted) by adding the words “bin Abdullah” to the boy’s name for the adoption.

In regard to the issue of what is in the best interest of the child, Chin pointed out that in 1995, Malaysia ratified the United Nations Convention on Rights of the Child (UNCRC), whereby the international treaty’s Article 3(1) states that the “best interests of the child shall be a primary consideration” in all acts by public or private bodies and courts as well as administrative authorities in relation to children.

The judicial commissioner then referred to a dissenting judgment by then chief judge of Sabah and Sarawak David Wong Dak Wah in the same Federal Court involving a “bin Abdullah” matter in Johor.

Chin noted that Wong had said in the dissenting ruling that the inclusion of the words “bin Abdullah” is discriminatory as it tells the world that the child is illegitimate, and would cause the child to suffer stigma for circumstances the child is not responsible for, and have “serious repercussions to any child’s emotional well-being and future”.

The judicial commissioner also noted that Wong stated that the children’s best interest must be the primary concern in all laws, policies and decisions that affect them.

In reference to the present Sarawak case, Chin emphasised that the intention expressed by the boy’s adoptive parents is the clearest expression of what would be the child’s best interest.

“They have expressed this intention in this application as parents. They have the first right to decide what is in the best interest of the child. This is so as they are now both legally and morally responsible for this child and his welfare, emotions, health, education and generally, his upbringing,” Chin said.

He pointed out that Section 2(2) of the Sarawak Adoption Ordinance supports the argument for the best interest of the child, whereby the provision states that “Such adopted child shall stand in the same relation to the adopting parent or parents as would a child born in wedlock and shall have all the rights and privileges of a legitimate child in respect of the obligations and estate of the adopting parents.”

The judge added: “It is not in the child’s best interest to grow up, go to school, socialise and then go to work carrying a stigma that he was either illegitimate or adopted. He has committed no sin to justify such a lifetime of social, emotional and psychological punishment.

“Such a label would also deprive him of his fundamental right of being equal in the eyes of the law under Article 8(1) of the Federal Constitution.”

Article 8 enshrines the fundamental right to equality before the law.

“In this case, the wishes of the parents of the child, who are the applicants, are given serious consideration as they are the parent of the child,” Chin said.

According to the written judgment, the adoptive parents were represented by counsel Belinda Hii, while the district officer was represented by counsel Hisyamudin Roslan.

It is understood that the Sibu District Office has appealed this decision to the Court of Appeal on May 4. - Mkini