PUTRAJAYA: A seven-member Federal Court bench will rehear an appeal on whether a Muslim child conceived out of wedlock can carry the father’s name.
Lawyer Nizam Bashir said apex court deputy registrar Norhafizah Zainal Abidin had informed the parties that judge Ahmad Maarop, the only remaining member of the bench which heard the appeal last year, would not deliver judgment.
“The rehearing has been fixed for Aug 16 but another case management will be held on June 28,” he told reporters after case management before Norhafizah today.
Nizam represented the parents of the boy in question while federal counsel Mazlifah Ayod appeared for the National Registration Department (JPN) and the government.
Lawyers Zulsyami Hussaini Kamarulzaman and Halimatul Saadiah appeared for the Johor and Selangor Islamic religious councils respectively.
On Feb 7 last year, a five-member bench chaired by then-chief justice Raus Sharif heard the appeal but adjourned its decision.
Others on the bench were Ahmad, Hasan Lah, Aziah Ali and Balia Yusof Wahi. All except Ahmad have since retired.
Under Section 78 (2) of the Courts of Judicature Act 1964, a minimum of two judges are required to deliver a judgment of the Federal Court.
The central issue before the apex court is whether Section 13 of the Births and Deaths Registration Act 1957 (BDRA) applies only to non-Muslims.
The second issue is whether the surname applies to the patronym, that is, the father’s name.
The Federal Court was also asked to decide whether a decree on the naming of children by the National Fatwa Council is binding on JPN, and whether the civil or shariah court should determine the naming of a Muslim child.
According to a 1981 fatwa, illegitimate children must carry the surname of “bin Abdullah” or “binti Abdullah”.
A fatwa in 2003 ruled that illegitimate children cannot carry the name of the father or the person claiming to be the father.
In 2017, the Court of Appeal ruled that the JPN director-general’s jurisdiction is a civil one and confined to determining whether the child’s parents fulfil the requirements under the BDRA.
Justice Abdul Rahman Sebli, who delivered the judgment, said the BDRA, as a federal law, covers all illegitimate children whether Muslim or non-Muslim.
In the present case, the child was born less than six months after the parents’ marriage, which is considered illegitimate under shariah law.
The child’s birth was registered two years later in 2011 under Section 12 of BDRA.
The parents, both of whom are from Johor, applied to JPN under Section 13 of the BDRA to have the father’s name on the birth certificate.
However, the document carries the name “bin Abdullah” instead.
JPN refused to replace this with the father’s name on grounds that the child was illegitimate.
The parents, whose identities have been withheld, filed an application for judicial review at the High Court in 2016.
They lost their case in the High Court, but the decision was reversed by the Court of Appeal in 2017.
The Court of Appeal ruled that the language in Section 13A (2) of the BDRA is clear and does not make a distinction between the registration of Muslim and non-Muslim children.
It also said JPN’s decision to refer to the fatwas was wrong as the 2003 fatwa was in direct violation of Section 13A (2).
This states that the surname of an illegitimate child can be either the mother’s, if she volunteers the information, or the father’s, if he registers himself as the father under Section 13 and requests that the child bear his surname.
There is no mention of the use of the “bin Abdullah” surname.