PETALING JAYA: Twenty couples and two single parents have filed an intervener application to be made parties in a Federal Court appeal that will decide whether a Muslim child conceived out of wedlock can take his or her father’s surname instead of “Abdullah”.
The applicants, who are from Johor, Melaka, Selangor, Perlis and Pahang, filed their legal papers on Dec 14 but their identities could not be revealed due to the sensitivity of the issue.
Lawyer Lokman Hakim, who is appearing for the applicants, said they wanted to participate in the case as the court’s outcome would have an effect on their children.
He said a 2003 fatwa issued by the National Fatwa Committee that an illegitimate child (“anak tak sah taraf”) should not be given the surname (“tidak boleh dinasabkan”) of the father or the person claiming to be the father was invalid.
“A total of 23 people are supposed to deliberate on the matter. However, only four decided, with one dissenting,” he told FMT.
Since Islam is a state matter, Perlis did not follow the fatwa, he added.
He said although the Sunni Islam of the Shafi’i school of thought is the official legal form in Malaysia, it was not strictly adhered to.
“In a number of Arab Muslim nations which follow the Shafi’i school, the illegitimate child can use the name of the biological father.”
The Federal Court has fixed Jan 23 to hear the application. The appeal hearing will be on Feb 7.
On Sept 8 last year, a three-man bench led by Chief Justice Raus Sharif allowed the government leave to appeal the application.
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 Births and Deaths Registration Act 1957 (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 in the case, whose identities are being withheld, are from Johor.
The federal government had appealed against the Court of Appeal ruling on the couple and their son, who wanted the National Registration Department (NRD) and its director-general to replace the child’s surname “Abdullah” with the name of the child’s father in the birth certificate.
In a written judgment released on July 25, Justice Abdul Rahman Sebli said 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 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.