The Right of Illegitimate Muslim Child to Carry Father’s Surname
Background:
The National Registration Department (NRD) uses the term “illegitimate child” for child born to unmarried couples. “Illegitimate child” also includes child born within six months of their Muslim parents’ marriage date, OR for child born to couples who married abroad and did not subsequently register their marriages locally.
For illegitimate Muslim children, it is a long-established practice that NRD will not allow him/her to use the actual father’s name, but need to use “bin Abdullah” as surname instead.
Where does the law stand now?
On 25 July 2017, the Court of Appeal allowed an illegitimate Muslim child conceived out of wedlock (ie: marriage) to be given his father’s name instead of Abdullah. The court held that the NRD’s jurisdiction was a civil one confined to fulfilling the requirements under Section 13 of the Births and Deaths Registration Act 1957 (BDRA), which allows the father of an illegitimate child to be registered with the mother’s consent, and the illegitimate child’s surname to be that of the registered father if requested by the father. Specifically, section 13A(2) BDRA reads: “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 (…), the surname may be the surname of that person” (emphasis added).
The Court of Appeal held that s.13 BDRA applies equally to Muslim and non-Muslim children within the civil birth registration process, in line with Article 8(2) of the Federal Constitution which states, “All persons are equal before the law”. This principle of non-discrimination is also guaranteed by Article 2 of the Convention on the Rights of the Child (CRC) ratified by Malaysia Government in 1995. The court had held that fatwa (religious edict) could not form the legal basis for the NRD to decide on the surname of an illegitimate child.
However, the NRD had obtained leave to appeal this decision. The Federal Court has fixed 7 Feb 2018 to hear the appeal, deciding these three legal questions:
- Whether in performing the registration of birth of a Muslim child, the Registrar of Births and Deaths may refer and rely on sources of Islamic law on legitimacy?
- Whether the Civil Court may determine questions or matters on legitimacy of Muslim children in respect of naming and ascription of paternity?
- Whether Section 13A of the Births and Deaths Registration Act 1957 (BDRA) applies to registration of births for Muslim children, enabling the children to take their father’s surname?
The Federal Court’s upcoming clarifications are very much awaited. In the author’s view, there shouldn’t be differential treatment to children on the basis of religion. It is akin to a public humiliation of an innocent Muslim child by announcing to the whole world the child’s illegitimate status through the “bin Abdullah” tag.
