ii. Jabatan Pendaftaran Negara & Ors v.

A Child & Ors (Majlis Agama Islam Negeri Johor,

intervener) [2020] 2 MLJ 277 (Federal Court)

SUMMARY OF THE CASE

The first respondent known as "A child" is the Muslim son of NAW ("the third
respondent") and MEMK ("the second respondent"). The child is indisputably an illegitimate
child in accordance with Islamic law. In the application, the parents applied for the second
respondent’s name to be entered in the birth register as the father of the child. Although the birth
certificate issued entered the second respondent’s name in the column on particulars of the
father, the child’s full name was given as ‘bin Abdullah’, instead of ‘bin MEMK’.The child’s birth
certificate also contained a notation that indicated that the application is for the registration of
birth, for an illegitimate child (‘the s 13 entry’). The respondents applied under s 27(3) of the Act
for the first appellant to delete ‘bin Abdullah’ and substitute it with the second respondent’s
name i.e. the child’s birth father’s name, and for the removal of the s 13 .The application was
denied on the grounds that the first respondent was born illegitimate (the "invalid decision").
This was done by the National Registration Department (the "first appellant") and its Director
General of National Registration (the "second appellant"). After the court of appeals accepted
the respondent's claim, the appellant then appealed on three legal issues.

MUFTI

A mufti is a professional jurist who interprets Muslim law.In the case of the Federal Territory an
illegitimate child may be named as ‘bin’ any of the persons enumerated. Various of mufti come
out with fatwa regarding this case :

The fatwa was gazetted by the Warta Kerajaan Jil 56 on 17

January 2013, that an illegitimate child can be named or ‘bin’ of
Perlis his biological father. That fatwa states that a child born less than
6 months after the mother's marriage, can be given to
her mother's husband, unless denied by the husband.

Illegitimate children whether followed by the couple's marriage or

Pulau Pinang not should be addressed to 'Abdullah.

An illegitimate child cannot be passed down to a man, whether a

man who caused his birth or who claimed to be the father of the
Kedah child. Therefore, they cannot inherit from each other, never
become mahram and the father cannot be the guardian of the
child.

If a baby is born less than 6 months from the date of the

Negeri Sembilan marriage contract then the child is forbidden to be assigned to
the mother's husband or a man who causes the pregnancy of
 the child.

FATWA

The national-level fatwa body’s stand is that illegitimate children have to be named ‘bin’ or ‘binti’
Abdullah regardless of whether his birth was followed by their parents’ marriage.

The issue relevant to fatwa in this case is “whether the second appellant usurped the power of
the authority given to the fatwa Committee of Johor in the imposition of “bin Abdullah” on the
child?”

The federal court held that the child cannot use “bin Abdullah” in his name and the court also
decided to remove "bin Abdullah" from the child's name.

Reasons for decision :

The Director General of National Registration's (DGNR's) decision to deny a Malay Muslim
illegitimate child the right to list his biological father on his birth certificate is lawful, logical, and
reasonable; it has no bearing on the intent of section 13A (2) of the Births and Deaths
Registration Act of 1957 (BDRA) or the child's fundamental constitutional rights. Section 13A
BDRA, which allows a child's surname to be stated in his birth certificate, cannot apply to a
Malay Muslim child, since a Malay Muslim child, in reality and by culture and tradition, never
carries a surname, and also because the biological father's name by definition does not
constitute a surname. Be that as it may, and whilst the DGNR in so registering the birth may
apply the child's Islamic personal law to the registration process, his decision to ascribe "bin
Abdullah" to the child's name upon the adoption of a fatwa issued by the National Fatwa
Committee (NFC) is wrong in law and devoid of any legal basis. As the child was born in the
State of Johor, and the State has not adopted nor gazette the NFC's fatwa, the same cannot
apply to the State, and consequently, the DGNR, in imposing the fatwa on the child, has
usurped the power of the Fatwa Committee of Johor and violated ss. 49 and 52 of the
Administration of the Religion of Islam (State of Johor) Enactment 2003. Consequently, the
words "bin Abdullah" must be removed from the child's birth certificate.

The significance of the ruling that can be drawn from this case is that the application of fatwas
may be distinguished clearly. Since the Act does not expressly address the fatwa, the courts
must make this determination. Additionally, this case shows that, because Islamic law is also
governed in Malaysia, fatwas can be included in the legislation. In addition, this ruling indicates
that the court may consider our traditions and way of life while making decisions. For instance,
unlike Chinese custom, Malay culture does not apply the use of a surname.
2. With reference to the case of Jabatan Pendaftaran Negara & Ors v. A Child & Ors [2020], 2
MLJ 277 (Federal Court)

i. briefly discuss the majority judgment & the dissenting judgment of the case.

Prior to the Federal Court’s decision, the Court of Appeal’s judgment in the case of A
Child & Ors v Jabatan Pendaftaran Negara & Ors [2017] 4 MLJ 440 reversed the High
Court’s decision in A Child & Ors v Jabatan Pendaftaran Negara & Ors [2016] MLJU 1579 in
unanimously allowing the illegitimate child to bear the name of his or her biological father and
for the biological father’s name to be registered in the birth certificate of the illegitimate child.
However, the Court of Appeal’s decision was put to an end by the Federal Court in Jabatan
Pendaftaran Negara & Ors v A Child & Ors (Majlis Agama Islam Negeri Johor, intervener)
[2020] 2 MLJ 277, which reversed the said Court of Appeal’s decision in the sense that it held
that an illegitimate child could not bear the biological father’s name. The Court of Appeal
overturned the High Court's judgement and accepted the respondents' (the applicants') appeal.
It was ruled that the language of Section 13A (2) must be read in conjunction with Section 27(3)
of the Act, which allows the illegitimate child to bear children in either the mother's or father's
name. As a result, the appellants were incorrect in dismissing the respondents' application. The
Court of Appeal also held that the essence of the Births and Deaths Registration Act of 1957
established no discrimination between Muslim and non-Muslim children. The Court of Appeal
further emphasized that the statutory duty of the second appellant as the Director General of the
National Registration Department is to merely register the births and deaths.

Moving on to the Federal Court's decision, the majority permitted the appellants' (NRD,
DGNR, and the government) appeal in part, holding that the child should not be assigned to the
father's name and that the appellants' refusal was justified. Simultaneously, the child was
instructed to be given or attributed solely his name, without the name of his father, with his
name reading simply 'Child' rather than 'Child bin Abdullah'. As a result, the insertion of 'bin
Abdullah' will be erased. The majority of the judges believe that Section 13A should not be
enforced in all circumstances and is solely applicable to people with surnames. Hence the word
‘if any’ is written in the provision. It solely discriminates between those with and without
surnames, not between Muslims and non-Muslims. Furthermore, because the respondents are
all Muslims who will be subject to Islamic Family Law in accordance with List II Ninth Schedule
of the Federal Constitution, the second appellant acted reasonably in referring to Islamic law
when registering the birth of an illegitimate Muslim child. The rejection made by the second
appellant to replace 'bin Abdullah' with 'bin MEMK' was valid and not tainted with illegality,
irrationality, or even procedural impropriety sufficient to require court intervention. On the point
of the fatwa, it was found that since the Fatwa Committee had not adopted the fatwa of the
National Fatwa Committee and no fatwa on how to name an illegitimate child was gazetted in
Johor, the second appellant could not necessarily impose the fatwa of the National Fatwa
Committee on the Appellants.

Nevertheless, the dissenting judges of the case affirms that Parliament intended for Section 13A
of the Act to apply to all Malaysians, irrespective of their race or religious background. The
appellants' decision to ascribe the surname "bin Abdullah" to the child, rather than the
patronymic surname, is deemed to be in contravention of the clear provisions of the Act. The
Court of Appeal's judgment, which ordered the removal of the Section 13 endorsement, is
considered entirely correct. The judgment emphasizes the principle that experts cannot
conclusively provide opinions on questions of law or decide them for the court. It also highlights
that administrative discretion, even when the word "may" is used, must be exercised in
accordance with the law, taking into account all relevant considerations and disregarding
irrelevant ones. In this case, since the use of the "bin Abdullah" surname was unfounded in law,
the appellants were only entitled to exercise their discretion under Section 27(3) of the Act to
correct the mistake as per the respondents' application.

Furthermore, the Court of Appeal's decision to remove the Section 13 endorsement is

considered to be in the best interest of the child. The judgment applies the purposive rule of
interpretation to conclude that the term "surname" encompasses the patronymic surname.
Therefore, Section 13A applies to all individuals in Malaysia, regardless of their cultural or
religious background, until and unless Parliament amends the law to state otherwise. The
judgment asserts that it is not within the court's purview to rely on expert evidence to tailor
statutes to accord with local circumstances. While the expert opinions presented in the majority
judgment argue that Malays do not possess surnames in the traditional English language and
cultural sense, it is deemed illogical to conclude that Section 13A becomes inapplicable to an
entire segment of society. Instead, a purposive approach to statutory interpretation suggests
that "surname" should be construed in the context of the Act's objective, which is to enable an
illegitimate child to have their father's name added to their own, explicitly stating the identity of
the biological father.

The judgment also rejects the argument that the non-ascription of paternity in the birth certificate
determines the status of legitimacy before the Shariah Court. It states that the appellants'
reference to external sources of law in their registration powers goes beyond the scope
permitted by the Federal Constitution and the Act. There is no legal authority to support the
correctness of the patronymic surname "bin Abdullah" or the reflection of the child's name alone.
To only ascribe the child's name without the father's name as their full name implies an implicit
recognition of the State-promulgated Islamic law declaring the child illegitimate. Ultimately, the
judgment concludes that the Court of Appeal considered the correct legal principles and made
the appropriate orders based on the circumstances of the case.
ii. give your opinion on which judgment you prefer and provide your reasons.

In our opinion, we agree with the majority judgment as it emphasizes that the issue at hand
does not discriminate between Muslims and non-Muslims but rather between individuals with
and without surnames. The majority of the judges in the Federal Court case held the view that
Section 13A should not be applied universally and that it specifically pertains to individuals with
surnames. Moreover, the provision does not discriminate based on religious affiliation but rather
on the presence or absence of surnames. This interpretation aims to avoid any potential
discrimination between different religious groups. Furthermore, the Federal Court's decision, as
outlined, permitted the appellants' appeal partially and held that the child should not bear the
father's name. Instead, the child was instructed to be given a name without the father's name,
specifically as 'Child' without the additional 'bin Abdullah' component. Additionally, considering
that the respondents are Muslims subject to Islamic Family Law, the second appellant's
reference to Islamic law when registering the birth of an illegitimate Muslim child was deemed
reasonable. The rejection to replace 'bin Abdullah' with 'bin MEMK' was deemed valid, with no
significant legal, rational, or procedural flaws warranting court intervention.Then, the court found
that the fatwa issued by the National Fatwa Committee had not been adopted by the relevant
Fatwa Committee and no gazetted fatwa on naming illegitimate children existed in Johor, thus
limiting the second appellant's ability to impose the National Fatwa Committee's fatwa on the
appellants.