Out-of-wedlock child case: Apex court allows NRD's stay bid

The Federal Court today allowed a stay application by the National Registration Department (NRD) on the Court of Appeal's decision to order its director-general to register a child conceived out of wedlock under his father's name, instead of a "bin Abdullah."

A three-member bench led by Chief Justice Md Raus Sharif said the stay is allowed from today until the apex court hears the NRD, its director-general and the government's application for leave (permission) to appeal, and should leave be granted, the order would last until the disposal of the case in the Federal Court.

The Federal Court has to grant leave for civil cases before the full merits of them matter are heard on questions of law posed.

Justice Md Raus also allowed the Johor Islamic Council's application to intervene in the matter - but dismissed the Federal Territory Islamic Council's bid to intervene as well

The other two judges on the bench were Court of Appeal president Justice Zulkefli Ahmad Makinudin and Court of Appeal judge Alizatul Khair Othman.

The hearing for NRD's application for leave is scheduled for Sept 8. 

The application for stay was made by senior federal counsel Ahmad Teriruddin Mohd Said, who appeared for the Attorney-General's Chambers.

Lawyers K Shanmuga and Nizam Bashir who appeared for the boy's family indicated they would not object to the stay until the leave stage. 

Earlier, senior lawyer Sulaiman Abdullah led the two councils to make the application (to intervene) and Justice Md Raus asked why the two entities could  not hold watching briefs on the case, instead of becoming parties to the matter. 

"If the court allows the council, then it would not stop other Islamic councils from intervening. This is a judicial review application. We want this case to be disposed of quickly," he said. 

To this, Sulaiman pointed out that the Johor council was affected as the parents of the seven-year-old boy involved in the legal tussle are from Johor. 

"It is a situation of conflict between state and federal laws, thus turning it into administrative law," he said. 

Johor did not adopt the fatwa edict

It is learnt that Johor did not adopt the national fatwa (edict) that says children born within six months from the marriage of a Muslim couple would bear their Muslim name with a "bin or binti Abdullah". 

Last month, Justice Abdul Rahman Sebli of the Court of Appeal ruled that a fatwa is not enforceable in law on the NRD and hence children born out of wedlock can bear the father's surname if it is applied to the NRD.

In making the ruling, the COA said the NRD director-general is not obligated to apply, let alone to be bound, by a fatwa issued by a religious body such as the National Fatwa Committee.

The child was registered with the NRD two years after birth and at the time of doing this, the parents jointly applied to have father's name, but the NRD registered the child as "bin Abdullah" instead.

“For him (the NRD director-general) to do so would amount to an abrogation of his power under the BDRA (Births and Deaths Registration Act 1957) and surrendering it to the religious body.

"That would in effect take away the statutory right accorded to the father under Section 13A(2) to have his name ascribed as the child's surname in the birth certificate,” Justice Abdul Rahman wrote.

“Such abrogation of power will render Section 13A (2) of the BDRA completely otiose (serving no practical purpose) and gives the impression that Parliament had enacted the provision in vain, a proposition that has no place in legislative interpretation.

"A fatwa or a religious edict issued by a religious body has no force of law unless the fatwa or edict has been made or adopted as federal law by an Act of Parliament.

“Otherwise a fatwa issued by a religious body will form part of federal law without going through the legislative process,” Justice Abdul Rahman said. -Mkini