Jabatan Pendaftaran Negara & Ors v Seorang Kanak-Kanak & Ors (Majlis Agama Islam Negeri Johor, intervener) [2020] MLJU 328

Jabatan Pendaftaran Negara & Ors v Seorang Kanak-Kanak & Ors (Majlis Agama Islam Negeri Johor, intervener) [2020] MLJU 328

Federal Court (Putrajaya)

Ascription of Paternal Surname to Illegitimate Muslim Child

Facts 1.     The First Respondent (“the Child”) is the son of MEMK (“the Second Respondent”) and NAW (“the Third Respondent”).   The Second and Third Respondent are both Muslims.

2.     The Child was born in Johor on 17.04.2010, around 5 months and 24 days after the Second and Third Respondent’s marriage on 24.10.2009.

3.     According to Islamic law, a child is considered illegitimate if born less than 6 qamariah months after the parents’ marriage.  The Child unfortunately falls into this category.

4.     The birth of the Child was registered two years later through a late application under Section 12(1) and Section 13 of the Births and Deaths Registration Act 1957 (“Act 299”).  Section 13 of Act 299 pertains to illegitimate children.   During the application, the Second and the Third Respondent sought to have the Second Respondent’s name entered as the father in the Birth Register.

5.     The Birth Certificate, issued by the Appellant which is the Director General of National Registration (“DGNR”) on 06.03.2012, recognized the Child as illegitimate, with the Second Respondent listed as the father. However, the Child’s full name was recorded as “bin Abdullah” instead of “bin MEMK.”

6.     Approximately three years later, on 02.02.2015, the Second Respondent applied to correct the Child’s name from “bin Abdullah” to MEMK under Section 27(3) of Act 299.

7.     The application was rejected, asserting that an illegitimate Muslim child cannot be named after the biological father which is the Second Respondent) and must be named “bin Abdullah” according to a fatwa.

8.     The trial judge in the High Court dismissed the Respondents’ application, citing that DGNR’s decision to maintain the Child’s name as “bin Abdullah” was in accordance with the law.  The High Court judge justified DGNR’s reliance on Islamic law concerning legitimacy in rejecting the application to amend the Child’s full name to “bin MEMK”.

9.     The Court of Appeal found that the High Court Judge missed considering a rule in the law which is Section 13A (2) of Act 299.   This rule, along with another one, Section 27(3) of Act 299, allows an illegitimate child to have either the mother’s or father’s name.

10.  It was also found by the Court of Appeal that the law does not require an illegitimate Muslim child to have the father’s name as “bin Abdullah.” Since the father’s name was already in the Birth Certificate, there was no need to insist on naming the child “bin Abdullah.”

11.  The Appellant made an appeal to Federal Court thereafter.

Issue 1.     Whether Section 13A of Act 299 applies to the registration of births of Muslim child enabling the Child to be named with the personal name of a person acknowledging to be a father of the Child?

 

Ratios 1.     Section 13A of Act 299 read as follows:

Surname of child

(1)   The surname, if any, to be entered in respect of a legitimate child shall ordinarily be the surname, if any, of the father.

(2)   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]

2.     Following the above proviso, in the case of a legitimate child, the father’s last name is typically used while an illegitimate child, the mother’s last name should be used if she provides the information.  Yet, if a person claiming to be the father requests, his last name can be used.

3.     The Federal Court found that Section 13A is not a mandatory provision to be applied to all cases.   This rule applies specifically to individuals with a surname, as indicated by the inclusion of “if any” in the law.

4.     The proviso also considered situations where a person being registered does not have a surname.   Importantly, it does not differentiate between Muslims and non-Muslims; it simply distinguishes between those with a surname and those without.

5.     It was also generally understood by the Federal Court that the word “bin” or “binti” in Malay culture typically means the son or daughter of someone, linked to an individual’s personal name, not a family name. Section 13A aims to include a surname in the Birth Register and Certificate, but it does not apply if someone lacks a surname.

6.     The argument that had the Federal Court in entanglement was that a surname is a family name, while the individual’s name in question (MEMK) is not a shared family name but a personal one.   The disagreement lies in the Court of Appeal’s interpretation of Section 13A in relation to the Respondents.

7.     There was never a dispute regarding the father’s identity in this case. MEMK’s name had already been recorded in the Birth Register as the father of the child. The Federal Court was solely addressing the matter of additional information, as outlined in Section 13A of Act 299, which permited the inclusion of a surname.

8.     Following this, Majlis Agama Islam Johor and the Attorney General’s Chamber, representing the Appellant, presented an additional written submission. This submission focused on the question of whether Malays have surnames, citing three experts whose views aligned as follows:

(a)  Malay names are similar to Icelandic naming conventions.   For men, the patronym consists of the title bin (from the Arabic, meaning ‘son of’) followed by his father’s personal name. The example given is if Osman has a son called Musa, Musa will be known as Musa bin Osman. For women, the patronym consists of the title binti (from the Arabic, meaning ‘daughter of’) followed by her father’s name. Thus, if Musa has a daughter called Aisyah, Aisyah will be known as Aisyah binti Musa;

(b)  Upon marriage, a Malay woman does not change her name, as is done in many cultures, especially in Western cultures;

(c)  In the context of Malaysia, the Malaysian Chinese are the only major ethnic group in Malaysia to use family names as surname. The other ethnic group like the Malays or the Indian do not carry any surname. Again, the following example has been cited; the name “Leung Chun-ying”, with the family name “Leung” placed in front of the given name, “Chun-ying”. The surname “Leung” will be passed down from a father to all his children and their children; and

(d)  The view also opined that the Malay naming convention is poles apart from the Western or Chinese. A Malay only answer to his personal name and do not have surname, hence calling a Malay by his father’s name is inappropriate in a Malay culture and in the Malaysian context. Any attempt to rely on the naming in the western culture in giving surname to the local practice will be a total misplace.

                                                                                       [Emphasis Added]

9.     Solidified by the views of the experts and credible authorities brought by the Appellant which is DGNR, the Federal Court found that Malays clearly do not have surnames.   Section 13A is straightforward and does not require any additional rules of interpretation.  Thus, Section 13A does not apply to Malays in Malaysia, and the Court of Appeal was mistaken in applying it to the Respondents.

10.  Therefore, it was held that labeling the Child as “bin MEMK” based on it being a father’s surname under Section 13A of Act 299 has no legal or factual basis.

1.     Section 13A of Act 299 does not apply to registration of births of Malay Muslim children.   It does not enable the Child to be named with the personal name of a person acknowledging to be a father because the personal name of the father is not a surname.

2.     The appeal was allowed.

Key Take Away

1.     According to experts and credible authorities, Malays do not have surnames, and their naming convention is distinct from Western or Chinese practices.

2.     The Federal Court, supported by these views, concluded that Section 13A, which deals with adding surnames in birth records, does not apply to Malays in Malaysia.

3.     Additionally, Section 13A of Act 299 was clarified, stating that it does not apply to the registration of births of Malay Muslim children. Furthermore, it explicitly disallows naming a child with the personal name of a person who acknowledges being the father, as the father’s personal name is not recognized as a surname in the Malay context.

 

 

 

 

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