Marion who is interning with the MCCHR writes about the ‘bin Abdullah’ case, from a rights-based perspective as well as the social and cultural dimensions. Marion does not realise that becoming an intern with the MCCHR is a pledge to serve the MCCHR for life.
On 25th July 2017, the Court of Appeal dismissed the High Court decision allowing the National Registration Department (NRD) to ascribe the surname “Abdullah” on an illegitimate Muslim child’s birth certificate, against the parents’ wish to give the father’s name to the child.
After the decision, various NGOs such as HAKAM and Sisters in Islam (SIS) expressed their approval. SIS applauded this landmark decision stating that to have “bin Abdullah” in illegitimate Muslim children’s name could lead to “serious and unjust repercussions on the children’s well-being”.
However, the NRD has obtained leave to appeal this decision, with what appears to be the support of the Deputy Prime Minister Ahmad Zahid Hamidi. The NRD is relying on two fatwas issued by the National Fatwa Council that do not allow illegitimate Muslim children to carry their fathers’ surnames. The Federal Court has also stayed the Court of Appeal ruling.
Essentially relying on section 13A(2) of the Births and Deaths Registration Act 1957 (BDRA), the Court of Appeal allowed the illegitimate Muslim child to be given his father’s name. The section states, “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 said Court further added that the NRD is a civil authority acting under the BDRA and has no power to use “any substantive principle of Islamic law” while registering Muslim children.
By ensuring that the BDRA applies equally to Muslim and non-Muslim children within the civil birth registration process, the Court gave effect to 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 the Government of Malaysia in 1995. Disallowing the parents of a Muslim child to carry his father’s name would create a different treatment made on the basis of religion.
Whilst not all different treatment amounts to discrimination, in this case, the different treatment between illegitimate Muslim and illegitimate non-Muslim children is unnecessary and irrelevant, particularly that the BRDA, a civil registration process, has been put in place to govern the registration of all children in Malaysia regardless of his or her religion. In addition, by refusing the illegitimate (Muslim) child to carry his father’s name, the NRD would cause a stigma to the child for the rest of his life.
In the social and cultural dimensions, the birth registration process “acknowledges the person’s existence before the law, establishes family ties and tracks the major events of an individual’s life, from live birth to marriage and death” (emphasis added). In addition, this process attests the family organisation, which is considered as the “fundamental building block of society”3. In that sense, the surname given to a child does not only serve administrative goals, it also inscribes the child into a particular history and family.
From a rights perspective, carrying the family name for a child appears as a right related to the right of birth registration. The importance of belonging to a specific family has been reminded by the Committee on the Rights of the Child, where it stated that, “young children should be recognised as members of families”. As such, where circumstances allow it, i.e., where the father of the child has recognised the child as his progeny, the birth registration as a right guaranteed under article 7 of the CRC should ensure this principle by assigning the family name to the child. The birth certificate, which fulfils this guarantee, will assure that a child can grow up within this particular group of socialising agents and as a member of this family. Naming an illegitimate Muslim child “bin Abdullah” where the father is known, avoids the genealogical aim of a child’s surname.
Through its whole judgement, the Court of Appeal considered the child as a rights holder and put his interest as a paramount consideration beyond religious matters. Now, it is for the Federal Court to decide whether child’s rights would prevail or not upon a would-be conflict of laws.
The judgement of the Court of Appeal can be accessed here. The Federal Court has fixed the hearing of this case on 7 February 2018.
 A Passport To Protection: A Guide To Birth Registration Programming, United Nations Children’s Fund, 2013
 General Comment No. 7 (2005) Implementing child rights in early childhood, Committee on the Rights of the Child, fortieth session, September 2005 http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGC%2f7%2fRev.1&Lang=en