KUALA LUMPUR: A Muslim child conceived out of wedlock can now take his or her father’s surname following the Court of Appeal’s latest landmark decision.
The appellate court ruled that the National Registration Department (NRD) director-general is not bound by a fatwa or religious edict issued by the National Fatwa Committee to decide on the surname of a Muslim child conceived out of wedlock.
In the judgment, Justice Abdul Rahman Sebli 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 Births and Deaths Registration Act 1957 (BDRA), which covers all illegitimate children, Muslim and non-Muslim.
He said the director-general acted irrationally in refusing to alter a child’s surname from “Abdullah” to the name of the child’s father in the birth certificate on the purported grounds that the fatwa did not allow it.
“A fatwa, we reiterate, is not a law and has no force of law and cannot form the legal basis for the director-general to decide on the surname of an illegitimate child under Section 13A (2) of the BDRA.
“A fatwa 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 would form part of federal law without going through the legislative process.”
He said the Act did not give the power to the director-general to override a father’s wish to have his name ascribed as his child’s surname.
“Nor is it a provision that empowers him to decide upon himself that the child’s surname should be Abdullah,” the judge said, in allowing the appeal brought by a couple and the child. Their names were withheld by the court to protect the child’s identity.
The couple had sought an order from the civil court to compel the director-general to replace the surname “Abdullah” with the name of the child’s father in the birth certificate.
The couple, both Muslims, were legally married in 2009 and the child born in Johor in April the following year, which was less than six months from the date of their marriage.
The child’s birth was only registered two years later as late registration and the couple jointly applied for the father’s name to be entered in the register as the father of the child.
However, in the child’s birth certificate issued on March 6, 2012, his surname was given as “Abdullah” instead of the father’s surname.
In February 2015, the father’s application to correct his child’s surname was rejected based on the fatwa.
The couple then filed a judicial review and named the NRD, its director-general and the Government as respondents.
The case was dismissed by the High Court.
The couple then appealed and on May 25 this year, Justice Abdul Rahman, together with Justices Tengku Maimun Tuan Mat and Zaleha Yusof, allowed their appeal.
In his judgment, Justice Abdul Rahman added: “A fatwa issued by a religious body involves purely the administration of Islamic law or Hukum Syarak and has nothing to do with the National Registration director-general’s duty under the BDRA to register births and deaths in the states of peninsular Malaysia.
“We believe Islam does not condone such open and public humiliation of an innocent child.
“Unfair as it may appear to be, the child will have to carry the stigma of being an illegitimate child for the rest of his life, a classic case of being punished for the sins of his parents, who had in fact legally married before he was born.”
From The Star Online