KUALA LUMPUR (June 3): The High Court has allowed the removal of "bin Abdullah" from the name of an adopted child of a Muslim family, stressing that it is not in the child’s best interest to carry a stigma that he was either illegitimate or adopted.
The decision was made by Judicial Commissioner Christopher Chin Soo Yin of the High Court in Sabah and Sarawak in Sibu. The written grounds of the decision dated April 6, 2021 were sighted by The Edge today.
The lawsuit was initiated by the adoptive parents of the child, naming the district officer of Sibu as the respondent.
The couple, aged 34 and 32, adopted the child on Nov 16, 2018. When the birth certificate was issued, they noted that the boy's name (which includes the adoptive father's name as part of his name) also included "bin Abdullah" at the end, although that was not their intention.
In his judgement, Chin said the child should be named as intended by his parents, and that the district officer and the National Registration Department (JPN) should amend the name in the special register accordingly.
The judicial commissioner justified his decision by contending that in Malaysia, the universal principle of the best interests of the child should prevail in cases such as this, and that a child should not be punished for the choice of his parents, whether biological or adoptive.
"It is not in the child’s best interest to grow up, go to school, socialise and then go to work carrying a stigma that he was either illegitimate or adopted. He has committed no sin to justify such a lifetime of social, emotional and psychological punishment. Such a label would also deprive him of his fundamental right of being equal in the eyes of the law under Article 8(1) of the Federal Constitution," Chin said.
"All facts peculiar to this case must be considered in determining what is in the best interest of the child. The fatwa, even if not gazetted at the relevant time, is only one of such facts. In this case, the wishes of the parents of the child, who are the applicants, are given serious consideration as they are the parents of the child," he added.
Chin was referring to the fatwa (ruling on a point of Islamic law) on the naming of illegitimate children by the Majlis Islam Sarawak Ordinance 2001 which stated that "any illegitimate child that is adopted by any person should be given the name of Abdullah, which means 'servant of Allah', after the child’s name".
On this, Chin relied on the fact that the fatwa had not been gazetted when the child's named was recorded by the respondent and when the suit was filed, and as such is not legally binding.
In 2020, the Federal Court ruled in a separate case that a Muslim child born out of wedlock cannot bear the father's name. The court also held that a fatwa becomes law in the state and would be legally binding only if it is gazetted in the state gazette.