Of late, there have been a number of legal issues that have been taken to court surrounding Islamic matters. While the issues of unilateral child conversions through Indira Ghandi and reconversions through Rooney Rebit may sound familiar, we now have the issue of “bin Abdullah” children that is fast becoming a hot topic of its own.
The question you may have now is why is it an issue for Muslim kids to be given the “bin Abdullah” surname? The reason simply is that the “bin Abdullah” surname can indicate that the child was born illegitimate or born out of wedlock. While this typically means the same thing, it has different connotations in Islam due to a fatwa that defines illegitimate children as:
- Child born out of wedlock
- Child born less than 6 months from the wedding
Based off statistics provided to us by Sisters in Islam (“SIS”), in 2014, out of 474 cases reported, 27 cases involved the issue of illegitimate children. In 2016, it jumped up to 48 cases out of 419 cases. In particular, we’ll be looking at two cases – one in Johor, who took the NRD to court, and another in KL who we had the chance to interview.
To give you a better idea of the problem faced by “bin Abdullah” children and their parents, SIS arranged an interview where we spoke to Rahman and his wife, Aisyah about the plight of their 13 year old son, Adam. Their names have been changed for purposes of privacy.
The family caught in the middle
Rahman and his wife are both in their thirties. He looks rather tired, and slightly uncomfortable. She, on the other hand, is a determined looking woman but equally gives off a hint of discomfort. Adam is a gangly 13 year old who stayed in the waiting area throughout the interview as his parents have decided to keep him in the dark until the matter has been resolved.
Their story starts in 2003 when Adam was born 3 months after Rahman married Aisyah. As is usual for the birth of every child, Rahman and Aisyah proceeded to the NRD to record the birth of their son. Rahman and Aisyah have heard stories of children in similar situations being given the “bin Abdullah” surname and were surprised when the birth certificate came back with the name...Adam bin Rahman and the words, “Permohonan s. 13” was on it. While they didn’t think these words carried much weight, it would come back to haunt them 12 years down the line.
Since they were prepared to have their son named Adam bin Abdullah due to the circumstances of his birth, they were overjoyed that Adam would carry his father’s name, figuring that stories of children being given “bin Abdullah” surnames were because their fathers refused to acknowledge them.
Fast forward years later and Adam is now 12 years old. After his birthday in December, Rahman takes his son to the local NRD to get his identity card (“IC”) done. As normal, Rahman fills in the form and submits it at the counter. His application was accepted by the officer in charge and Rahman leaves NRD with Adam in tow. Three hours later, Rahman receives a call from NRD telling him that he has to come back and withdraw his application. Stunned, Rahman asks why and the officer says that because his case is classified as an application under section 13 (the same section mentioned on the birth certificate), he must cancel his current application and reapply with the his son’s name listed as...Adam bin Abdullah.
Rahman asks for further details or an explanation but the officer is persistent that there is nothing he can do and just keeps asking Rahman to return to the NRD to cancel his application and reapply with the “bin Abdullah” surname. Worried about Adam’s emotional wellbeing over suddenly not being able to carry his father’s name anymore, Rahman cancelled his son’s IC application as directed but did not reapply with the “bin Abdullah” surname.
He fretted over this decision as he knew that his son would face difficulties without an IC but at the same time, he knew Adam wouldn’t understand why he had to have a new name suddenly. Aside from that, Rahman knew that his son would face the brunt of social stigmatization faced by children who carry the “bin Abdullah” surname. As Aisyah succinctly puts it:
”If our son had been given the bin Abdullah surname from the start, we would have accepted it and we could have explained to Adam why he doesn’t carry his father’s name but after 12 years, it is difficult for us to explain the situation to Adam. It would be difficult for him to deal with the questions from his friends.
Our only worry is how this would affect our son because we believe that our mistakes should not be borne by Adam.” – Aisyah, mother of Adam, in an interview with ASKLEGAL, translated from Bahasa Malaysia
You can read more about the story of Rahman’s family from the Malay Mail’s article here who jointly interviewed the family with ASKLEGAL.
So this leads us to the crux of the problem, which is...
The clash between religion and secularism
In order to see how the problem came about, we first have to see how secular civil law treats an illegitimate child, and how such a child is dealt with in the Islamic context.
Remember how Rahman was told that his son had to carry the bin Abdullah surname because it was a section 13 application? This refers to section 13 of the Births and Deaths Registration Act 1957 (“BDRA 1957”) and it reads as follows (emphasis added):
“...in the case of an illegitimate child, no person shall as father of the child be required to give information concerning the birth of the child, and the Registrar shall not enter in the register the name of any person as father of the child except at the joint request of the mother and the person acknowledging himself to be the father of the child, and that person shall in that case sign the register together with the mother.”
Section 13 means that when there is a registration of birth of an illegitimate child, the Registrar does not have to record down the details of the father unless and until the mother and the person claiming to be the father of the child requests for the father’s name to be recorded. Section 13 must be read with section 13A(2) which states that (emphasis added):
“The surname, if any, to be entered in respect of an illegitimate child may where the mother is the informant and volunteers the information, be the surname of the mother; provided that where the person acknowledging himself to be the father of the child in accordance with section 13 requests so, the surname may be the surname of that person.”
Section 13A(2) means that illegitimate children can only take their father’s surname if the man acknowledges himself as the father of the child as per section 13 and requests for the child to carry his surname.
A point to note is that the definition of an illegitimate child under the BDRA is simply the every day definition of a child born out of wedlock. It does not take into account the time of marriage (which you will see in the Islamic definition).
An example of how these two sections work together is as follows:
Ali marries Siti and a son (Abu) is born to them 4 months after their marriage.
Ali and Siti proceed to the NRD to register their child’s birth and both request that Ali is to be recorded as the father of Abu (section 13).
Since Ali has acknowledged himself as the father of Abu, Abu’s surname would be Ali’s name (section 13A(2)).
Therefore, Abu’s name would be Abu bin Ali.
The National Registration Department (NRD) referred to two fatwas (yes we know the plural for fatwa is fatawa) as a basis for their decision to register these children as “bin Abdullah”. These are:
1981 Fatwa (emphasis added)
“Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan bagi Hal Ehwal Ugama Islam Malaysia Kali ke 1 yang bersidang pada 26-29.1.1981 telah membincangkan Penamaan Anak Tak Sah Taraf (Anak Luar Nikah). Muzakarah telah memutuskan bahawa:
Anak zina atau luar nikah (anak tak sah taraf) sama ada diikuti dengan perkahwinan kedua pasangan ibu bapanya atau tidak hendaklah dibinkan atau dibintikan kepada Abdullah.”
2003 Fatwa (emphasis added)
“Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan bagi Hal Ehwal Ugama Islam Malaysia Kali ke 57 yang bersidang pada 10.6.2003 telah membincangkan mengenai Anak Tak Sah Taraf. Muzakarah telah memutuskan seperti berikut:
a. Anak Tak Sah Taraf ialah:
1. Anak yang dilahirkan di luar nikah sama ada akibat zina atau rogol dan dia bukan daripada persetubuhan syubhah atau bukan daripada anak perhambaan.
2. Anak dilahirkan kurang dari 6 bulan 2 lahzah (saat) mengikut Takwim Qamariah daripada tarikh tamkin (setubuh).
b. Anak tak sah taraf tidak boleh dinasabkan kepada lelaki yang menyebabkan kelahirannya atau kepada sesiapa yang mengaku menjadi bapa kepada anak tersebut. Oleh itu, mereka tidak boleh pusaka mempusakai, tidak menjadi mahram dan tidak boleh menjadi wali.”
Basically, the 1981 fatwa states that an illegitimate child must carry the “bin Abdullah” (or “binti” if it is a girl) surname while the 2003 fatwa clarifies the definition of an illegitimate child as a child that is born out of wedlock or a child that is born less than 6 months from the date of sexual intercourse.
Perhaps some of you are beginning to see why the NRD rejected Adam’s IC application – Adam was born a mere 3 months after Rahman and Aisyah’s wedding. According to the fatwas, he has the status of an illegitimate child and must be given the “bin Abdullah” surname.
This of course leads to the crux of the issue, which is...
Syariah, fatwas, and where they stand in Malaysian law
As Malaysia is a multi-cultural and multi-religious country, we often times have to accommodate the varieties of beliefs and practices present. Sometimes, this creates a bit of a conundrum especially when it becomes enmeshed with legal issues. This is where Rahman’s problem comes in because the 2 Islamic fatwas are in conflict with the Births and Deaths Registration Act 1957.
Before we move into the legalities, let’s clarify what a fatwa is and its legal position in Malaysia.
A fatwa is an Islamic legal pronouncement, issued by an expert in religious law (mufti), pertaining to a specific issue, to resolve an issue where Islamic jurisprudence (fiqh), is unclear.
In Malaysia, reference has to be made to the Federal Constitution to understand the position of fatwas in the law. Specifically, attention must be paid to Articles 3, 75, and the State List (Ninth Schedule).
Article 3 makes mention of Islam as the official religion of Malaysia and sets out that Islamic law is a matter of State law under the governance of the Sultan of each State. This must be read in conjunction with Article 75 which states that if a State law is in conflict with a Federal law, the State law will be void.
The State List found in the Ninth Schedule lays out the areas which falls under State jurisdiction where laws can be made by the Dewan Undangan Negeri of respective States, as opposed to the Federal List which states down areas which Parliament legislates on. As you may suspect, Islamic law falls under the State list and specifically, Muslims in each State can be subjected to Islamic laws on matters relating to succession, marriage, divorce, maintenance, adoption, legitimacy, guardianship etc.
We know that this is all pretty confusing but just bear in mind these few points:
- The Sultans and muftis of each States can issue their own fatwas and it can be made into State law if gazetted
- The muftis of each State can choose whether or not to adopt the fatwas made by the National Fatwa Committee
- Fatwas can only be gazetted (given legal status) if it falls within the area that Islamic law has power over e.g marriage, divorce, succession etc.
- If the fatwa (which has been gazetted and made into State law) contravenes any Federal law, it will be void
- State laws are usually known as enactments or ordinances
As we mentioned in the beginning of the article, Adam isn’t the only child affected by the “bin Abdullah” issue. In fact, the family is actually waiting for the final outcome of a lawsuit that took place in early 2017.
A family in Johor sued the NRD for this very reason
As a quick overview on the Johor case, the father (known to the media as MEMK) and mother (known as NAW) had a child who was born 5 months and 24 days after the date of their marriage. MEMK then decides to register his child’s birth and despite the NRD approving MEMK and NAW’s joint application to register MEMK as the father under section 13, their child was given the “bin Abdullah” surname in his birth certificate.
MEMK then applies to the NRD to correct his child’s birth certificate to reflect his surname but it was rejected. MEMK and NAW then sued the NRD.
In the High Court, the judge sided with the NRD and said that what the NRD did was lawful as it was in line with Islamic law. Dissatisfied with the decision, MEMK appeals his case and the Court of Appeal overturned the High Court’s decision. To make the judgment digestible, these are the few questions that were posed to the Court:
- Whether the Director General of the NRD has to power to give illegitimate Muslim children the “bin Abdullah” surname?
- Does section 13 have to be written on the child’s birth certificate to highlight his illegitimate status?
- Whether the fatwas can be used as a source of legal authority for determining an illegitimate child’s surname under section 13A(2)?
- Whether the fatwas have force of law?
- Whether there was a basis to invoke a religious element in the NRD’s decision making process?
In short, the Court of Appeal disagreed with the High Court because it ruled that the language found in section 13A(2) was clear and unambiguous. It sets out that an illegitimate child’s surname can be either:
(i) the mother’s, if she volunteers the information or
(ii) the father’s, if he registers himself as a father under section 13 and requests for the child to bear his surname. There is no mention of the use of the “bin Abdullah” surname.
Further to that, the court stated that the BDRA 1957 does not make a distinction between the registration of Muslim or non-Muslim children. The NRD’s decision to refer to the fatwas was wrong as the 2003 fatwa was in direct contravention (violation) of section 13A(2). Beyond that, the judge also stated that (emphasis added):
“The [NRD’s] jurisdiction is a civil one...For that purpose, he is not obligated to apply, let alone be bound by a fatwa issued by a religious body...That would in effect be to take away the statutory right accorded to the [MEMK] by s. 13A(2) to have his name ascribed as the [child’s] surname in the birth certificate. A fatwa or a religious edict issued by a religious body has no force of law...in the absence of any express provision in the BDRA to import the application of Islamic law on legitimacy in the registration of a surname under s. 13A(2), there was no basis to invoke any religious element in the decision-making process.” – Abdul Rahman Sebli JCA, A Child & Ors v Jabatan Pendaftaran Negara & Ors, 25th July 2017
The quotation above answers questions 1, and 3-5 and in short, states that fatwas cannot be used as a source of legal authority, they do not have force of law and there was no basis for invoking a religious element in the NRD’s decision making process.
The court goes on to explain that even if the fatwa has a force of law, it is only confined to matters relating to hukum syarak and has nothing to do with the NRD’s duties, which is to register all the births and deaths in Peninsular Malaysia. Should the Director General go beyond that duty, he would be acting in excess of his powers.
Finally, the court clarified that section 13 merely sets out the procedure for a father to be registered as the father of an illegitimate child. It does not require the insertion of the section 13 information on their birth certificate. Hence, it is not a legal requirement.
At the end of the day, the court found that the father’s right to have his name used as his child’s surname was a statutory right given to him by law and the NRD had no right to deny him of his rights.
If you guys are rejoicing for this Johor family as well as for Rahman and his family, hang on.
The battle is not over… yet.
The NRD has appealed their case to the Federal Court and they are now awaiting their hearing which has been set for February. If the Federal Court sides with MEMK and NAW, then Rahman and Aisyah can breathe a sigh of relief. This would mean that they would be able to apply for Adam’s IC in time for him to sit for his PT3 examinations.
If the Federal Court sides with the NRD then Rahman and Aisyah have one of three options open to them:
- To register their son’s name as Adam bin Abdullah and deal with the aftermath that comes
- To carry out the process of tabbani – to adopt Adam as a son (since he is not considered as Rahman’s son legally) and then nasabkan (to make Adam part of Rahman’s lineage, as a matter of speaking) Adam
- To change Rahman’s name to one of the 99 names of God and let Adam carry that surname (apparently the NRD gave Rahman a choice of giving his son a “bin Abdullah surname or one of the 99 names of God)
Obviously none of these options are appealing to Rahman and Aisyah as Adam would still have to deal with a state of confusion and emotional upheaval. Their frustrations at the bureaucracy and confusing state of law is best surmised by Aisyah:
“Kalau pihak JPN kata mereka merujuk kepada fatwa untuk menbin Abdullahkan anak saya sekarang, saya nak tanya pihak JPN, anak saya kafir lah dari masa bayi sampai umur 12?” – Aisyah, mother of Adam, in an interview with ASKLEGAL
Adam is now entering Form 2. He still doesn’t have an IC and, worst of all, he is beginning to suspect that something is amiss as he constantly questions Aisyah and Rahman about when he would be receiving his IC. His parents are still trying to keep Adam out of the loop because they are worried that the news would adversely affect his emotional wellbeing. All conversation stopped as we exited the interview room and saw Adam curiously staring at us. We then said our goodbyes to the parents who appeared utterly downtrodden.