The untold story of the "bin Abdullah" children in Malaysia nonoNot published yet ago Denise C.
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 an issue of its own.
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.
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, which we will explain later on in the article.
The ongoing court case in Johor is what sparked the attention on this issue. A father challenged the validity of the National Registration Department’s (“NRD”) decision to affix the “bin Abdullah” surname on their child despite the express wishes of him and his wife. While the Johorean family is probably waiting anxiously for their hearing in the Federal Court (set for for some time in February 2018), they aren’t the only family in such a bind.
ASKLEGAL was invited to a closed interview organised by SIS, 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 fierce looking woman but equally gives off a hint of discomfort. Adam is a gangly 13 year old who looked curious at the ongoing proceedings and was banished to outside the room. We breezed over the standard formalities and settled down to listen to their narrative. It took a bit of prompting and assurances on our side as they both confessed to feeling nervous and at a bit of a lost but the narrative finally started to flow.
Their story starts in 2003 when Rahman married Aisyah and Adam was born to them 3 months after their marriage. 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.
Slightly perplexed but nonetheless overjoyed with the birth certificate, Rahman and Aisyah thought nothing further of it. They figured that those stories of children being given “bin Abdullah” surnames were when 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 tells us that he 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, 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 and the confusion that he would have if he was told that he couldn’t 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 that after 12 years of identifying with Rahman’s name, Adam wouldn’t understand why he had to have a new name suddenly. Aside from that, Rahman knew that his son would be stained with society’s stigmatisation of 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 and it would be difficult for him to deal with the questions from his friends. Our only worry is how this would affect our son and we believe that our mistakes should not be borne by Adam.” – Aisyah, mother of Adam, in an interview with Asklegal, translated from Bahasa Malaysia
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.
The question now is what is section 13 and how does it affect certain Muslim children in Malaysia?
The clash between the civil and the syariah
As Malaysia is a multi-cultural and multi-religious country, we often times have to
Section 13 which was quoted by the NRD officer refers to section 13 of the Births and Deaths Registration Act 1957 (“BDRA 1957”). This section states (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.
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.
If you are thinking that the law seems pretty straightforward and you are confused as to how a controversy arose or even how the “bin Abdullah” surname came into the picture, hang tight.
Rahman was only informed that as his application fell under section 13, his son could not be given his name. He was not given any explanation but we dug deeper and read the Court of Appeal’s judgment in the Johor case and found that the NRD relied on two fatwas issued by the National Fatwa Committee to give the “bin Abdullah” surname to Adam.
Before we move into the two fatwas, the first question is what is a fatwa?
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 Articles 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
Now that you have a brief understanding on what a fatwa is, the fatwas that were referred to by the NRD are:
“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.”
“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.
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. [MOVE UP]
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.
However, remember those 5 points we told you to bear in mind? They might make you wonder why the fatwas (which at best, have the status of a State law), can trump the BDRA 1957? Wasn’t the BDRA passed by Parliament, thus making it a Federal law?
Well, your questions are the exact reasons the Johorean family took their case to court.
The courts are in a conundrum of their own
As a quick overview on the Johor case, the father (MEMK) and mother (NAW) were married in 2009 and their child was born 5 months and 24 days after the date of the marriage in 2010. MEMK then decides to register his child’s birth in 2012 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.
In 2015, MEMK applies to correct his child’s birth certificate to reflect his surname but it was rejected. MEMK and NAW then sued the NRD.
The High Court ruled in favour of the NRD.
The court found that the registration of the “bin Abdullah” surname was allowed by law and the insertion of the section 13 information on the child’s birth certificate did not contravene any of the child’s rights given by the Federal Constitution.
The judge reasoned that the NRD was allowed to refer to Islamic law when making this decision.
MEMK and NAW then appealed their case to the Court of Appeal.
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?
- Whether it is a legal requirement for the birth certificate of an illegitimate child to be endorsed with section 13 information?
- 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 COA 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 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 Rahman and his family, hang on.
The battle is not over
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
Asklegal ended the interview soon after. As we filed out to the room where Adam was waiting, we stopped speaking about the issue and said our goodbyes to the parents who appeared utterly downtrodden.