NRD’s illegitimate indicator for Muslim children against secrecy law, Federal Court told

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http://hakam.org.my/wp/2018/02/07/nrds-illegitimate-indicator-for-muslim-children-against-secrecy-law-federal-court-told/
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Source: The Malay Mail Online

PUTRAJAYA, Feb 7 — The National Registration Department’s (NRD) practice of indicating Muslim children’s illegitimate status in birth certificates is against a local law requiring such information to be confidential, the Federal Court was told today in the high-profile “bin Abdullah” case.

Lawyer K. Shanmuga, who represented a Johor Muslim couple, said the NRD should have removed the “Permohonan Seksyen 13” (Section 13 Application) entry in the birth certificate of his client’s child.

“The reason why we don’t want it there is it will cause stigma to the child,” he told the Federal Court when referring to the Permohonan Seksyen 13 phrase that immediately gives away a child’s illegitimate status.

While acknowledging that his clients had indeed made an application under Section 13 of the Births and Deaths Registration Act, Shanmuga said there was no legal requirement for the phrase to be included in the birth certificate when such information was already recorded in the NRD’s own register.

“It is in the register and Section 6 of the Act says the Registrar is secret and it is not open to the public,” he said.

“We submit it is contrary to Section 6 to tell the world it is Permohonan Seksyen 13,” he said, noting that the Births and Deaths Registration Act (BDRA) does not have any express provisions to permit the inclusion of the phrase in the birth certificate.

Shanmuga said the act of including the phrase would be ultra vires or go beyond the scope of the BDRA as it does not grant the power to the NRD to do so.

“So there is no rational basis of shaming the child by putting Permohonan Seksyen 13 in birth certificate,” he said, having noted that government bodies that need to know whether a Muslim child is illegitimate or not would “know anyway” by referring to documents such as the marriage certificate of the child’s parents and the child’s birth certificate.

Section 6 of the BDRA states that registers and indices shall not be open to inspection by the public. Register is defined in the same law as including register of births and deaths that are kept, and also all documents recording the particulars of births and deaths in this country.

Today was the hearing of the NRD’s appeal against the landmark Court of Appeal’s order for it to drop “bin Abdullah” from the name of the child of a Johor Muslim couple.

In its appeal, the NRD asked three legal questions, including whether or not the Registrar of Births and Deaths may refer and rely on sources of Islamic law on legitimacy when registering the birth of a Muslim child.

The two other questions were: whether or not the civil court may determine questions on the legitimacy of Muslim children for the naming and ascribing of paternity, and whether the Births and Deaths Registration Act 1957’s Section 13A applies to the registration of births for Muslim children and enables them to take their father’s surname.

Chief Justice Tun Md Raus Sharif who chaired the five-judge Federal Court panel today said the decision will be delivered on another date to be fixed.

The other judges in the coram were the Chief Judge of Malaya Tan Sri Ahmad Maarop, Federal Court judges Tan Sri Hasan Lah, Datuk Seri Balia Yusof Wahi, and Tan Sri Aziah Ali.

On September 3, 2015, the Johor Muslim couple — given the initials of M.E.M.K and N.A.W — and their child had filed the lawsuit against the NRD, the NRD director-general and the government of Malaysia to seek the change of the “bin Abdullah” patronym to the father’s name in the birth certificate.

The High Court had on August 4, 2016 dismissed the Johor Muslim couple’s lawsuit and ruled that the NRD director-general’s refusal to change the “bin Abdullah” patronym in the child’s birth certificate was lawful.

The Court of Appeal had on May 25, 2017 unanimously delivered a landmark ruling that quashed the NRD director-general’s decision to use the “bin Abdullah” patronym, also ordering him to correct the patronym in the birth certificate as he cannot override the father’s wishes to have his name used.

Noting that the NRD had based its decision on the National Fatwa Committee’s two fatwas dated 1981 and 2003, the Court of Appeal had said a fatwa is not law and has no force of law and cannot be the legal basis for the NRD D-G’s decision on the surname of illegitimate Muslim children.

The Johor Islamic Religious Council is an intervener in the lawsuit, while the Federal Territory Islamic Religious Council and the Selangor Islamic Religious Council were amicus curiae or friends of the court.

The 41 parents who faced similar problems involving the NRD’s policy — of using “bin Abdullah” or barring Muslim illegitimate children from using their father’s name as part of their patronym — were also amicus curiae.

Today, lawyer Goh Siu Lin held a watching brief for the Bar Council, while lawyers Hafez Zalkapli and Ilyani Noor Khuszairy held a watching brief for the Muslim Lawyers Association of Malaysia (PPMM).

Infographic by MMO