Apex court to decide if out-of-wedlock kids can use father’s surname

newbornPUTRAJAYA: The Federal Court will decide whether the National Registration Department (NRD) can exclude Muslim children who were born out of wedlock from bearing their father’s surname instead of “Abdullah”.

This follows the decision of a three-man bench led by Chief Justice Raus Sharif today to allow leave to appeal the application by Putrajaya.

Lawyer K Shanmuga, who is appearing for a Muslim couple and their son, had objected to the leave application, saying Section 13 of the Births and Deaths Registration Act 1957 (BDRA) applies to all illegitimate children, irrespective of race or religion.

However, Raus who sat with justices Zulkefli Ahmad Makinudin and Aziah Ali, said the apex court would decide on the matter.

The three questions to be answered by the bench during the appeal are:

  • Whether in the true interpretation under Islamic jurisprudence, the term “bin” or “binti” in the name of a Muslim person refers to ascription of paternity;
  • Whether a civil court may determine questions on the legitimacy of Muslim children in respect to naming and ascription of paternity; and
  • Whether Section 13A of the BDRA applies to the registration of birth for Muslim children that enables them to be given the personal name of a person acknowledging himself as the father.

The court also allowed the Selangor and Federal Territories Islamic Religious Councils to hold a watching brief.

On Aug 21, the Federal Court allowed the Johor Islamic Religious Council to be made an intervener, meaning that the council can make submissions to the judges.

The application was allowed as the parents, whose identities are being withheld, are from Johor.

Lawyer Sulaiman Abdullah represented the Johor council while Suzana Atan appeared for Putrajaya.

The NRD, its director-general and the federal government had filed leave to appeal against the Court of Appeal ruling on the couple and their son, who had filed a judicial review to compel the NRD director-general to replace the child’s surname “Abdullah” with the name of the child’s father in the birth certificate.

In the written judgment released on July 25, Justice Abdul Rahman Sebli had said that the NRD director-general was not bound by the fatwa or religious edict issued by the National Fatwa Committee to decide on the surname of a Muslim child born out of wedlock.

The court said the director-general’s jurisdiction was a civil one and was confined to determining whether the child’s parents had fulfilled the requirements under the BDRA, which covers all illegitimate children, Muslim and non-Muslim.

The court had held that a fatwa had no force of law and could not form the legal basis for the NRD director-general to decide on the surname of an illegitimate child under Section 13A (2) of the BDRA.

Abdul Rahman said the NRD director-general had acted irrationally when the department registered the child with the surname “Abdullah”, against the wishes of the mother.