Federal Court orders ‘bin Abdullah’ removed from Johor illegitimate Muslim child’s name, but reverses use of father’s name

Lawyers Nizam Bashir (left) and K. Shanmuga speak to reporters at the Federal Court in Putrajaya February 13, 2020. ― Picture by Choo Choy May
Lawyers Nizam Bashir (left) and K. Shanmuga speak to reporters at the Federal Court in Putrajaya February 13, 2020. ― Picture by Choo Choy May

PUTRAJAYA, Feb 13 ― The Federal Court today in a majority ruling ordered for the government to remove the words “bin Abdullah” from a Johor-born illegitimate Muslim child’s name from his birth certificate, but also reversed a previous ruling that allowed the father’s name to be part of the boy’s name.

This was the majority decision by four of the seven judges on the Federal Court panel in this case, where the National Registration Department (NRD) was appealing against the Court of Appeal’s 2017 decision that had favoured the Muslim child.

In the majority ruling read out today by Court of Appeal President Datuk Rohana Yusuf, the Federal Court allowed the NRD’s appeal partly and set aside the Court of Appeal’s decision.

“Consequential order is made for the Director-General of National Registration to remove ‘bin Abdullah’ from the birth certificate of the first respondent,” she said.

She added that the child’s existing name will remain in the birth certificate, but without the words “bin Abdullah” attached.

The Federal Court’s majority ruling also said the Muslim child cannot carry his father’s name, as it was of the view that Malays do not have a surname and that a law allowing fathers to request for their surnames to be registered as the child’s “surname” does not apply to Malays.

The Court of Appeal had previously applied Section 13A of the Births and Deaths Registration Act to this Johor child’s case, and said the father should have been allowed to attach his name to the child’s name.

The Court of Appeal had also in its unanimous ruling said that Section 13A does not empower the National Registration director-general to override the father’s wish to have his name attached to the child’s surname, and also does not empower the director-general to decide himself that the child’s surname should be “Abdullah”.

But in the Federal Court’s majority judgment, Rohana said the Court of Appeal had no legal or factual basis to allow this child’s name to carry his father’s name or “bin MEMK” by considering it to be a “surname”.

She cited expert opinion by three academics when saying that it is “clear as daylight that Malays do not carry any surname”.

“Thus, Section 13A of the BDRA has no application to the Malay naming system, hence it is not applicable to the Malays in Malaysia,” she said.

She then added the National Registration director-general was correct in law to disallow the father’s bid to have “bin MEMK” used in the child’s name, reiterating the majority judges’ view that this was due to Section 13A not applying to them due to Malays’ lack of surname.

“Section 13A of the BDRA does not apply to registration of births of Malay Muslim children. It does not enable the children to be named with the personal name of a person acknowledging to be the father of the children because it is not a surname as envisaged by section 13A of the BDRA,” she concluded.

When asked by senior federal counsel Suzana Atan to clarify if an entry for “Permohonan Seksyen 13” on the child’s birth certificate will remain, Rohana confirmed this by saying “The only thing to remove is bin Abdullah.”

The Johor Muslim couple given the initials of M.E.M.K and N.A.W and their child had filed their legal challenge via judicial review on September 3, 2015 against the National Registration Department, the NRD director-general and the government of Malaysia.

The Johor family had sought for the removal of the words “bin Abdullah” from his name in the birth certificate and also the removal of the “Permohonan Seksyen 13”, as both were indicators that gave away his illegitimate status to the public. They had not disputed the child’s illegitimate status, but merely wanted to remove such indicators.