Ex-judge: Fatwas are not equivalent to laws passed by legislatures


KUALA LUMPUR: Any fatwa (religious edict) issued by the National Fatwa Council does not have the same legislative force as a law passed by Parliament, a retired judge said.

“Fatwa is advisory in nature,” Gopal Sri Ram said in response to a question by lawyer Andrew Khoo at forum on the “Bin Abdullah” decision of the Court of Appeal — “The Impact of Fatwas under the Federal Constitution”.

Khoo asked Sri Ram what was the effect of the fatwas issued by the council since Islam is a state matter.

Sri Ram said for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, it was Parliament that passed laws that governed Muslims in these localities.

He said it was the state legislatures that passed religious laws to regulate Muslims.

Sri Ram said Parliament could make any laws it wanted but they were subjected to the federal and concurrent lists.

“Parliament can pass religious laws for the Federal Territories but it must also ensure they are not in conflict with the constitution and other legislation,” he said.

Therefore, he said, in respect of publication of fatwas, these did not enjoy the same force as a federal law.

“It is the Act of Parliament that has legislative authority. A national fatwa cannot be a federal law,” Sri Ram later told FMT.

Otherwise, the former Federal Court judge said there would be two “legislatures”.

Sri Ram cautioned that he could not dwell into the case as the Federal Court would hear the merits of the government’s appeal.

The apex court will now 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”.

The NRD and the federal government had filed leave to appeal against the Court of Appeal ruling on a 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, 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 Council 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 Births and Deaths Registration Act (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.

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.

Sri Ram said the Court of Appeal had delivered a succinct judgment in setting aside the High Court ruling.

“Rahman had made it clear that Islamic law applied to Muslims but not in the case before the bench,” he said, adding that the child in question was treated differently by the High Court from a non-Muslim minor.