The Court of Appeal may have erred in the Bin Abdullah case – Aidil Khalid

The narrative of setting ‘secular’ or civil laws at odds with the sharia in this country, and vice versa, is a dangerous narrative to pursue. 

It is dangerous because we risk destructing and destroying the framework of the Federal Constitution, being the grundnorm or the foundation upon which our society is built, as imparted by the great wisdom of our forefathers. 

The recent decision of the Court of Appeal pertaining to the name of a Muslim child who was conceived illegitimately, and the polemics that have ensued immediately thereafter, is but one of such example. 

By holding that the child could have as his patronym his father’s name, despite the former’s illegitimate status, the Court had effectively held that Muslims in this country could in fact act against a fatwa issued by religious authorities, with impunity – the edict that illegitimate children cannot legally be identified as the progeny of the father. 

It is important to stress from the outset, that discussions into the intricacies of the legal issues involved — on whether to allow or disallow illegitimate children to bear their father’s name — is not meant to subject innocent children to the sins of their parents. 

It is a given that children are precious gifts from God, and they should not be made to suffer for the past mistakes of their parents. 

The discussion, especially when it concerns religious rulings, must be strictly understood in the context of safeguarding the integrity of progeny from being inadvertently compromised, which would have far reaching effects on other substantive issues involving the administration of various branches of sharia, including on inheritance, marriage, guardianship, and others. 

The practice of having surnames vis-à-vis patronyms Reading through the 29-page judgment of the Court of Appeal in A Child & 2 Ors v National Registration Department & 2 Ors penned by Justice Abdul Rahman Sebli, one would note that the thrust of the reasoning in the decision lies on the interpretation of section 13A(2) of the Births and Deaths Registration Act 1957 (BDRA), wherein the Court held that the provision allows for an illegitimate child to bear the surname of the father if he acknowledges himself to be the father of that child. 

Therefore, the Court found that the National Registration Department (NRD) had acted irrationally and outside the scope of its power when the latter refused to register the father’s name as the child’s patronym and inserted instead “bin Abdullah”, simply because the child was illegitimate. But a closer scrutiny of section 13A(2) would reveal that the Court of Appeal had not been fully circumspect in reading of the same. 

The section, verbatim, reads as follows:- “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.” (emphasis added) Note that the surname refers to the surname of the father, and not the first name of the father. 

This is important, because In Dato’ Menteri Othman bin Baginda & Anor v Dato’ Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29, the Late Royal Highness Raja Azlan Shah (as HRH then was) cautioned that “[r]espect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language.” 

The learned judges of the Court of Appeal however seem to had taken it for granted, and without deeper or matured consideration, assumed that the term ‘surname’ used therein include the practice of the Muslims in Malaysia to have patronyms “bin [followed by the father’s first name]” after the child’s first name. 

Whereas, that is neither the natural nor the legal meaning of the word. A surname refers to a family name that is common to all family members, not to the use of a father’s first name. Section 13A(2) would only be applicable to families that follow the practice of the use of family names, and that is why it is stated clearly that the provision is applicable to surname of illegitimate child, if any. It is not a provision that applies to all, particularly not to Muslims in Malaysia, unless they have family names. 

It is interesting to note that when the issue of the definition of the term “surname” cropped up in a British Colombian Court, the Court there, in Bienkowski (Guardian ad litem of) v Hersom [1985] B.C.J. No. 101 had had the wisdom to refer to several dictionaries to gather the authoritative meaning of the term, and held as follows: 

“Recourse to the Concise Oxford Dictionary Sixth Edition, 1976, for the word ‘surname’ gives: ‘Name common to all members of a family’. Black’s Law Dictionary (fifth edition, 1979) gives for ‘surname’: ‘The family name; the name over and above the Christian name. The part of a name which is not given in baptism. The name of a person which is derived from the common name of his parents. The last name; the name common to all members of a family’.” 

Reference to fatwas and religious authorities Another glaring and potentially fatal mistake that the learned judges of the Court of Appeal had made in the course of deciding the case, is when they held that since the BDRA does not clearly spell out the practice of having ‘bin Abdullah’ for illegitimate Muslim children, the NRD is therefore not empowered to introduce such policy by reference merely to the fatwa issued by the religious authorities. The Court in fact went on to say that for NRD to do so “would amount to an abrogation of his [i.e. the NRD] power under the BDRA and surrendering it to the religious body.” 

The above position taken by the Court is problematic on several fronts. First, because it is in direct contradiction to what was authoritatively decided by the Federal Court in the year 2006, being the highest judicial rank in the country. 

In the landmark case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Yang Lain, it was contended that it is wrong for the NRD to seek reference from religious institutions. But the Court disagreed, and held as follows:-

“Rujukan kepada sesuatu pihak yang berkuasa atas perkara undang-undang Islam adalah diperuntukkan oleh undang-undang dan justeru demikian ianya tidaklah bersalahan dengan undang-undang seperti mana yang dihujahkan oleh perayu … Berpandukan dari keputusan ini nanti, adalah dalam budibicara JPN untuk memutuskan….” 

[Reference to the authorities on matters concerning Islamic law is provided for under the law, and therefore is not against the law as purported by the appellant … Based on the decision [of the said authorities], it would then be within the NRD’s discretion to make a decision….”

Secondly, the Court of Appeal also failed to take into consideration of the NRD Order 8/2009 about the procedure of registering the birth of illegitimate children for Muslim couples under the provision of section 13 of the BDRA specifying the use of bin and binti for illegitimate children can only be followed by Abdullah or other 99 known names of God in Islam. 

While the NRD Order 8/2009 is not law, it is a policy that was issued based on reference to the position of Islamic law. This is in fact a fulfilment of the NRD’s constitutional duty to uphold the position of Islam as the religion of the Federation at all times. 

Lest we forget, there is a precedent in Menteri Dalam Negeri & Ors v Titular Roman Catholic Arcbishop of Kuala Lumpur, that the powers that be owe a positive obligation to take appropriate state action to facilitate and encourage people to hold their life to the Islamic principle. 

The Court of Appeal went beyond its competence While the Court of Appeal admonished the NRD for supposedly unnecessarily minding itself on religious issues which the court is of the opinion falls not within the NRD’s competence, in the same breath the Court seem to have overstepped its own authority when it offered its unsolicited opinion on a matter that falls within the exclusive jurisdiction of Islamic authorities: “[I]n the case of a Muslim child,” said the Court, “the purpose is to announce to the whole world that the child is an illegitimate child by tagging the surname ‘bin Abdullah’ to his name in the birth certificate. We believe Islam does not condone such open and public humiliation of an innocent child.” 

With due respect, whether that is the purpose, or whether Islam condones or not a certain thing is not within the competence of the learned judges of the Court of Appeal. Such argument, if at all, can only be argued in Sharia Court being the proper forum as provided for under Article 121(1A) of the Federal Constitution, because it relates to the administration of Islamic law. Since judges of the civil Courts are not properly trained on the jurisprudence of the sharia, they are not in any position to determine questions concerning Islam. 

A balanced approach Ultimately, the Sharia and Civil Courts, like the so called ‘secular’ and religious laws, should not be seen to be at odds or to be competing against each other, but instead must be construed as complement to each other. 

This is the approach that should be taken by our Courts, be that the Civil or the Sharia Courts at all level. The oath of office of the Yang di-Pertuan Agong under Article 37(1), as the Supreme Head of the Federation, provides that the YDPA “shall at all time protect the Religion of Islam and uphold the rules of law and order in the Country.” This oath is taken in the name of God Almighty, “Wallahi, Wabillahi, Watallahi.” It is to this oath that all the three branches of the Government – comprising of the Executive, the Legislature and the Judiciary — owe their allegiance to.

The distinction between the Sharia and the Civil Courts, like the division of powers between the Parliament and the State Legislative Assembly, is administrative, in the sense that the Federal Constitution has spelled out the distribution of powers and jurisdiction between them, for administrative purposes – Article 121(1A) for Sharia and Civil Courts; and the 9th Schedule for the Federal and State powers. 

It is necessary for judges to accord religious edicts due respect and deference, in administering civil laws, in order to maintain the delicate fabric of our society. 

On this note, it would be most apt to conclude with a very enlightening passage from the luminous dissenting judgment of Hamid Sultan JCA in Pathmanathan Krishnan v Indira Gandhi Mutho & Other Appeals [2016] 1 CLJ 911: “Islamic Jurisprudence was already in place in Malaysia for more than five centuries and that too even before the British colonized Malaya.… 

In truth, dwelling into hair splitting arguments is unnecessary in a blessed land where bread, butter and honey pour to those who are industrious. Every Malaysian must take a balanced approach to maintain social order that is part of the public role in subscribing to rule of law which I repeat is part of Rukun Negara.” * 

Aidil Khalid is a lawyer practising in Kota Damansara and activist member of the Concerned Lawyers for Justice (CLJ). Views are of the writer and do not necessarily represent the position of Menara.my in a particular issue.

Read more at: https://www.menara.my/the-court-of-appeal-may-have-erred-in-the-bin-abdullah-case-aidil-khalid/