Facts of the case:

The First Respondent (the “Child”) is the son of the Second Respondent (MEMK) and the Third
Respondent (NAW). MEMK and NAW are both Muslims. The Child was born 5 months and 24
days (5 months and 27 days according to the Islamic Qamariah calendar) from the date of the
marriage of MEMK with NAW which deemed the “Child” as illegitimate as according to Muslim
law, a child is illegitimate if he is born less than 6 qamariah months from the date of his parents’
marriage. The parents then jointly applied for MEMK’s name to be entered in the Birth Register
as the father of the Child, in which the application was accepted, however, the Child’s full name
was given as “bin Abdullah'' instead of ‘bin MEMK’. The Child’s Birth Certificate also contained a
notation “Permohonan Seksyen 13” which was an explicit acknowledgement that the application
for the registration of birth, is for an illegitimate child. MEMK then applied to correct the Child’s
name from “bin Abdullah” to that of his name, MEMK under Section 27(3) of Births and Deaths
Registration Act 1957 but was rejected by the Director General of National Registration (DGNR)
on the basis that the Child, being an illegitimate Muslim child cannot be ascribed to the name of
his biological father, in line of the fatwa issued on the subject. The decision of the DGNR was
challenged by way of judicial review at the High Court, but it was dismissed. In reversing the
decision of the High Court, the Court of Appeal found that the learned High Court Judge had
failed to address the existence of section 13A(2) of the Births and Deaths Registration Act 1957
(BDRA) in arriving at its decision, and further held that an illegitimate child can bear either the
mother’s name or the father’s name. Hence, this appeal.

Issue:

● Whether Section 13A of the Births and Deaths Registration Act 1957 applies to the
registration of births of Muslim children enabling the children to be named with the
personal name of a person acknowledging to be a father of the children?
● Whether the DGNR was correct in giving consideration to the personal law of a Muslim
person?
● Whether the DGNR was correct in following the National Fatwa published by the
National Fatwa Committee which requires an illegitimate Muslim child to ascribe to ‘bin
Abdullah’ in ascribing the “Child” with “bin Abdullah” instead of “bin MEMK”?
● Whether the civil court may determine questions or matters on the legitimacy of Muslim
children in respect of naming and ascription of paternity?
● Whether the notation ‘Permohonan Seksyen 13’ is discriminatory against illegitimate
children?

Judgement and Ground of Judgement::

In this case, the decision is split 3:2, that is 3 judges agreed that the appeal should be allowed
while the other 2 judges dissented from this decision.

In the majority judgement, the appeal is allowed in part and the Court Of Appeal decision
was set aside, the Court ordered the Director General of National Registration (DGNR) to
remove “bin Abdullah” from the Birth Certificate, and maintain the Child’s name without it. The
Federal Court held that Section 13A of the Births and Deaths Registration Act 1957 does not
apply to registration of births of Malay Muslim children as Malay do not have any surname.
Hence, it does not enable the children 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.
Therefore, DGNR was correct in law not to allow the application to name the first respondent as
‘bin MEMK’.

Furthermore, the Federal Court held that in performing registration of births of Muslim
children, the DGNR may rely on Islamic law applicable to the person on the ground that both
MEMK and NAW are Muslims and were married under Islamic law, and the birth of the child
occurred in Johor. According to the State List of the Ninth Schedule of the Federal Constitution,
the matters of Islamic personal law which include legitimacy are under State power. Thus, they
are subjected to Islamic law as found in the State of Johore that is Section 111 of the Family
Law (State of Johore) Enactment 2003 which provides that an illegitimate Muslim child cannot
be ascribed to the name of his father. Hence, DGNR’s decision in refusing to ascribe the father’s
name MEMK to the child was in compliance with the law and is therefore valid.

Moreover, the Federal Court held that since there is no fatwa on how to name an
illegitimate child gazetted under Section 49 of the Administration of the Religion of Islam (State
of Johor) Enactment 2003 in Johor, the DGNR cannot unnecessarily impose the fatwa of the
National Fatwa Committee on the Respondents. Plus, a National Fatwa can only be binding
towards the people of Johore if it is adopted in accordance with Section 52 of the Administration
of the Religion of Islam (State of Johor) Enactment 2003.

The Federal Court also held that it is the jurisdiction of the Syariah Court to hear cases
involving questions or matters on the legitimacy of Muslim children in respect of naming and
ascription of paternity as it is matters relating to Islamic personal law which is provided in the
State List of the Ninth Schedule of the Federal Constitution.

In addition, the Federal Court held that the notation ‘Permohonan Seksyen 13’ cannot be
held to be discriminating as it only gives a true reflection of the surrounding fact.

As for the dissenting judgement, David Wong CJ stated that the appellants had acted in
contravention of the clear provisions of the Births and Deaths Registration Act 1957, specifically
under s 13A when the respondents’ application under s 27(3) was rejected. He opines that
reading ‘surname’ to include ‘patronymic surnames’ would be in accord with the object and
purpose of the BDRA 1957 as it would be illogical to read the word ‘surname’ in the restrictive
manner proposed by the appellant as it will deny a vast majority of Malaysians who do not have
a surname.

Plus, he opines that the appellants’ impugned decision is purely untenable and
unsustainable in law on the ground that the Federal Government, that is the appellants, have no
jurisdiction to apply Islamic law as far as the registration of births and deaths in the context of
item 12(a) of the Federal List is concerned. The registration of births and deaths is a
subject-matter falling exclusively within the Federal List without any necessary correlation to the
State List.

Other than that, Nallini Pathmanathan FCJ opines that the appellants were under the
legal obligation to ascribe to the child the name ‘Child bin MEMK’ representing the MEMK’s
personal name as a patronymic surname on the ground that Section 13 and Section 13A apply
to apply to all persons. This is because she opines that if the word “surname” is read to not
include “patronymic surnames” it would lead to the exclusion of a vast majority of the Malaysian
populace and would bring about an incongruous result.

She also opines that the appellants had acted ultra vires the BDRA 1957 by referring to
external sources of law when exercising their powers of registration under that law, which the
Federal Constitution and the BDRA 1957 do not otherwise permit them to do. According to
Article 74 of the Federal Constitution, which provides for the demarcation of powers of the
Federal and State Legislatures, Islamic law has no application insofar as the registration of
deaths and births is concerned as the registration of births and deaths is a subject-matter falling
exclusively within the Federal List, hence cannot be interrupted by the State Law.

Legal Critique:

In this case, I mostly agree with the judgement made by the majority of judges that is to allow
the appeal in part and setting aside the decision of the Court Of Appeal. I also agree with the
Federal Court decision in ordering the Director General of National Registration (DGNR) to
remove “bin Abdullah” from the child Birth Certificate, and maintain the Child’s name without it.

First and foremost, I agree with the Court decision that Section 13A of the Births and
Deaths Registration Act 1957 does not apply to registration of births of Malay Muslim children
as Malay do not have any surname. In my humble opinion, I believe that “surname” refers to
family name which is inherited from generation to generation, hence, in Malay Muslim context,
Section 13A of the Births and Deaths Registration Act 1957 cannot be applied to them as most
of them do not have a family name. However, I disagree with the DGNR decision in naming the
child with “bin Abdullah” without the parents consent as the child can still be ascribed with the
mother’s name that is “bin NAW”.

Furthermore, I agree with the Court decision that in performing registration of births of
Muslim children, the DGNR may rely on Islamic law applicable to the person. This is because I
believe that a Muslim of that particular state should be bound by the Islamic law of that
particular state which in this case the respondents should be bound by the Johor State Islamic
law. Plus, in this case, the issue is revolving around legitimacy, hence according to the State List
of the Ninth Schedule of the Federal Constitution, it is within the power of the State to enact law
for it which in this case is Section 111 of the Family Law (State of Johore) Enactment 2003.
Hence, it is clear that the respondents are bound by the State law as they are resident of the
Johor state and the issue arose in that state, therefore, the child cannot be ascribed with “bin
MEMK”.

Moreover, I agree with the Court that the jurisdiction of the Syariah Court to hear cases
involving questions or matters on the legitimacy of Muslim children in respect of naming and
ascription of paternity. This is because according to the State List of the Ninth Schedule of the
Federal Constitution it is provided that the legitimacy of a Muslim child is related to Islamic
personal law, hence it is within the power of the State to hear cases involving those matters.

However, I have to disagree with the Court decision that states the DGNR cannot
unnecessarily impose the fatwa of the National Fatwa Committee on the Respondents as the
fatwa is not properly adopted in accordance with Section 52 of the Administration of the Religion
of Islam (State of Johor) Enactment 2003. In my humble opinion, I believe that it is quite illogical
for the National fatwa to need to be adopted by the State Fatwa Committee for it to be binding
towards the people of the State. In my opinion, I think that the National Fatwa that is gazetted
should automatically be binding towards all Muslims in Malaysia as the National Fatwa
Committee consists of representatives from the fatwa committee of every state. This means that
the opinion of every state is heard and taken into account in making the fatwa, hence, the fatwa
should be fair and is applicable to the locality of every state.

I also have to disagree with the Court decision in deeming the notation ‘Permohonan
Seksyen 13’ to be not discriminatory on the ground that it only gives a true reflection of the
surrounding fact. It is true that it gives true reflection of the surrounding fact, however, the
notation is going to affect the life of the child as he or she might be subjected to being bullied or
discriminated against by the public if the notation is made known to the public. In my opinion,
this notation should not be included in the child birth certificate as it can bring many problems to
the child, instead, the information that the child is illegitimate should be made confidential and
can only be known by the government office which is needed to allow them to deal with the
issues of inheritance, maintenance, perwalian, marriage, death, citizenship, lineage and others.
This is important to protect the interest of the child as it is not his or her fault that her parents
made the mistake of having sexual intercourse out of wedlock.