PUTRAJAYA: The National Registration Department (NRD) and two others were unable to reach an out-of-court settlement in the case of a Muslim child born out of wedlock whose parents sought to change the “Abdullah” patronym to the father’s surname in the birth certificate.
Lawyer Nizam Bashir, representing the Muslim couple and the child whose names are being withheld by the court, said there was a negotiation for settlement but they were informed this morning by senior federal counsel Mazlifah Ayob, representing the government, that the settlement was unsuccessful.
“The AGC (Attorney-General’s Chambers) wants to proceed with the appeal,” said Nizam.
Following this, the appeal by the NRD, its director-general and the government, will proceed as scheduled on Aug 16 before a Federal Court seven-member bench.
The matter came up for case management before deputy registrar Norhafizah Zainal Abidin through e-Review, whereby parties need not meet physically but instead the matter is conducted online.
A Federal Court five-man bench, led by the former Chief Justice Raus Sharif, had heard the appeal on Feb 7 last year and subsequently reserved the court’s decision.
The appeal was then set for rehearing before a seven-member bench led by then Chief Justice Richard Malanjum (now retired) on Oct 18 last year after Justice Raus resigned and Justice Hasan Lah retired.
However, the hearing did not proceed on that day as the court decided that three judges from the previous panel — the then Chief Judge of Malaya Ahmad Maarop (now Court of Appeal president) and Federal Court judges Balia Yusof Wahi and Aziah Ali — were still present and could deliver the decision.
The matter was subsequently fixed on Nov 22 last year for the three remaining judges to deliver the decision, but they deferred their decision after the government requested for an adjournment to enable it to find other solutions than through the court to resolve the dispute.
As of now, Justice Ahmad is the only remaining judge as Justice Balia and Justice Aziah have also retired.
Under Section 78 (2) of the Courts of Judicature Act 1964, a minimum of two judges is required to deliver a judgment of the Federal Court.
On May 25, 2017, a Court of Appeal three-man panel ruled in favour of the couple and their child, who 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.
The child was born less than six months after the parents’ marriage, which is considered illegitimate under shariah law.
Justice Abdul Rahman Sebli, who delivered the judgment, held that a Muslim child conceived out of wedlock can bear his or her father’s surname instead of “Abdullah”.
He ruled that the NRD director-general was not bound by the fatwa (religious edict) issued by the National Fatwa Committee to decide the surname of a Muslim child conceived out of wedlock.
The fatwa states that a child conceived out of wedlock or one of indeterminate paternity cannot carry the name of the person who claims to be the father if the child was born less than six months into a marriage.
On Sept 8, 2017, the Federal Court granted the NRD, its director-general and the government leave to appeal against the appellate court’s decision.