PUTRAJAYA: Twenty couples and a single parent have failed to become 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”.
However, a five-court bench led by Chief Justice Raus Sharif allowed them to become amicus curiae (friend of the court) to assist parties in the appeal which will be heard on Feb 7.
Raus said the appeal came by way of judicial review and it was not fair for the applicants to be made interveners.
“There are various steps to follow. If we allow it, it will be side-stepping the procedures,” he said.
Senior federal counsel Shamsul Bolhassan, who appeared for the National Registration Department (NRD), its director-general and the government, was not invited to make his submission.
Lawyer Azahar Azizan Harun, who represented the applicants, later told reporters he would appear as a friend of the court.
Interveners appear as parties to the appeal and, as such, can make submissions as of right. Those with “friend of the court” status only have the privilege of addressing the court at the invitation of the bench.
The Federal Court had earlier allowed the Johor Islamic Religious Council to be made an intervener as the parents in the appeal are from the state.
The Selangor and Federal Territories Islamic religious councils were only allowed permission to hold a watching brief.
Shamsul said they had filed a rebuttal to object to the application by the couples and the single mother.
“Our stand is that they are not affected parties by the decision of the NRD or its director-general,” he told FMT.
He said the couples and the mother had yet to make applications to the NRD to change the children’s names from Abdullah to that of their biological fathers.
The applicants from Johor, Melaka, Selangor, Perlis and Pahang filed their legal papers on Dec 14 but their identities cannot be revealed due to the sensitivity of the issue.
Lawyer Lokman Hakim, who is assisting Azahar, said the applicants wanted to participate in the case as its 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.
He said since Islam was a state matter, Perlis had not followed the fatwa since 2011.
Lokman said although the Sunni Islam of the Shafi’i school of thought was 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.”
Lokman today said two of the parents from Perlis had approached the NRD to change their children’s names but were refused due to the pending appeal in the Federal Court.
“Their applications were supported with a certificate of approval from the Perlis Shariah Court but this was not accepted,” he said.
One of the questions to be decided by the Federal Court is 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 federal government had appealed against the Court of Appeal ruling on the couple and their son, who wanted the 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.