PUTRAJAYA (May 27): In a very rare occasion, the highly-sensitive "bin Abdullah" case will be re-heard by the Federal Court, this time before a new seven-member bench.
The apex court's deputy registrar Norhafizah Zainal Abidin told parties during case management today that the judiciary's no. 2, Court of Appeal president Tan Sri Ahmad Ma'arop, would not be delivering his judgement on the case after it was heard before a five-member bench early last year.
Nizam Bashir, the lawyer for the affected family, said Norhafizah indicated this and that the case will be heard de novo (a new trial).
Senior federal counsel Mazlifah Ayob, who appeared for the National Registration Department (NRD), its director-general and the Malaysian government, who are the appellants in the case, concurred with what had transpired.
A hearing date for the case has been fixed at the Federal Court on Aug 16, with case management fixed on June 28, said both lawyers.
Lawyer Halimatun Saadiah appeared as amicus curaie (friend of the court) for the Selangor Islamic Religious Council while Zulsyahmi Husaini Kamaruzaman came for the Johor Islamic Religious Council, which is an intervener or an affected party in this matter, as the affected boy is from Johor.
A decision with far-reaching effects
A decision by the apex court in this case is expected to affect thousands of Muslim children who are faced in the same predicament as the nine-year-old boy whose name is kept anonymous by the court following a court directive.
Children are named bin or binti Abdullah by the NRD if they are conceived out of wedlock, but the child's father agreed to marry the mother before the child was born.
In this case, the boy was registered by the NRD with the patronym "bin Abdullah".
However, the parents want him to bear the father's name and hence filed a judicial review to compel the NRD to make the name change.
While the parents may have lost the case at the High Court, the Court of Appeal, chaired by Justice Datuk Tengku Maimun Tuan Mat, in a landmark decision in 2017 unanimously ruled the NRD director-general was not bound by a fatwa (religious edict) issued by the National Fatwa Committee to decide on the surname of a Muslim child conceived out of wedlock.
The NRD, the appellate court decision ruled, was only confined to determining whether the father had fulfilled the requirements under Section 13A(2) of the Births and Deaths Registration Act 1957.
With the appellate court's judgement, the NRD was ordered to change the child's patronym from "bin Abdullah" to that containing the father's name.
The fatwa referred here is the 2003 National Fatwa Council edict, which states that a child conceived out of wedlock (anak tak sah taraf) or one of indeterminate paternity (tidak boleh dinasabkan) 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.
Justice Tengku Maimun was promoted as the new Chief Justice this month, while the judge who wrote the unanimous appellate court decision was Justice Datuk Abdul Rahman Sebli.
Why the ruling was delayed
In February last year, a five-member Federal Court bench that heard the NRD and government's appeal led by then Chief Justice Tun Md Raus Sharif, reserved their judgement on the matter.
However, in October last year when CJ Tan Sri Richard Malanjum wanted to hear the case again before a seven-member bench, the parties told the court that three of the five original members of the bench (Justice Ahmad, and then Federal Court judges Justice Tan Sri Balia Yusof Wahi and Justice Tan Sri Aziah Ali) could still deliver their decision.
On Nov 22, just when Justice Ahmad wanted to deliver his decision, then senior federal counsel Datuk Amarjeet Singh asked for an adjournment telling.
The lawyer had informed the apex court that the executive branch of the government wanted to address the matter carefully and consult a wide range of stakeholders.
"The government is of the view that the delicate nature of the subject matter has far-reaching implications and required solutions by other means," Amarjeet had said.
"Other means", he had reiterated, was not through the courts, but either through executive or legislative means and that efforts to achieve a solution will begin.
As a result, the highly-anticipated verdict was not delivered. Amarjeet is now a High Court judicial commissioner.
Now that Justices Balia and Aziah have retired, Justice Ahmad remains the sole judge but he cannot by law deliver the decision as an apex court decision has to be delivered by a bench of at least two judges.
This led to today's decision that a new seven-member bench would be convened.
However, as Justices Tengku Maimun and Ahmad had sat in the case, the new seven-member bench may not comprise the two of them but other judges.