This article first appeared in The Edge Financial Daily on February 14, 2020

PUTRAJAYA: The Federal Court ruled 4-3 yesterday that a Muslim child born out of wedlock cannot bear the father’s name, but a 10 year-old boy from Johor, who is the respondent in a highly charged case, will carry his father’s name as the southern state has yet to gazette the national fatwa on this issue.

The judgement came after the case was heard for a second time by the apex court at the end of last year — as the first panel that heard the case in 2018 did not deliver the decision before most of the judges on it retired.

The decision by the highest court is expected to ease the feelings of Muslims who had criticised the unanimous decision by the Court of Appeal, requiring the National Registration Department (NRD) director-general to register the child’s name bearing the father’s name on the basis that the fatwa (religious edict) on the matter had no legal effect.

The name of the child and his parents have been withheld to protect the identity of the child.

Court of Appeal President Justice Datuk Rohana Yusuf, who formed part of the majority decision on the seven-member Federal Court bench, ruled that the NRD should recognise Islamic law in the exercise of its duty as in the Lina Joy vs Federal Territory Islamic Council case.

“We find that the director-general of the NRD acted reasonably in referring to the applicable personal law as enacted by the state legislature to the respondents (the parents of the child and the child). It follows that the director-general’s decision in refusing to ascribe the father’s name to the child was in compliance with the Johore state enactment and was not tainted with illegality, irrationality or procedural impropriety such as to warrant interference by the courts.

“The refusal by the director-general to have the child’s name ascribed to his father was well supported by a statute in the state enactment applicable to him as envisaged by the Federal Constitution. Indeed, the director-general’s exercising of his administrative duty could not be faulted for relying and applying the personal law to the respondents,” said Justice Rohana in the majority judgement.

However, the Court of Appeal president, who is the No 2 in the judiciary, noted that the NRD director-general seemed to have usurped the authority given by the Johor Fatwa Committee in the imposition of “bin Abdullah” on the child since the national fatwa on this issue had not been gazetted.

“The NRD director-general also acted in contravention because the Royal Highness the Sultan of Johor must assent to the publication of a fatwa. Since the Johor Fatwa Committee had not adopted this fatwa of the National Fatwa Committee, the NRD [director-general] cannot on his own decide which of the differences in views was applicable to the respondents.

“Thus, the NRD director-general had no basis in law to impose the naming of ‘bin Abdullah’ in this case and such a decision is subject to be impugned. Hence, the name of the first respondent (the child) without ‘bin Abdullah’ shall so remain,” Justice Rohana said.

The fatwa referred to here is the 2003 National Fatwa Council edict, which 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.

The other members of the seven-member bench who decided to allow the appeal by the Johor Islamic Council in part and maintain the boy’s name were Chief Judge of Malaya Tan Sri Azahar Mohamed, and Federal Court Judges Datuk Mohd Zawawi Mohd Salleh and Tan Sri Idrus Harun.

The minority judgement was held by Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah, along with Federal Court Judges Datuk Abang Iskandar Abang Hashim and Datuk P Nalini who upheld the Court of Appeal’s decision.

It was reported in 2017 that the Court of Appeal, in which Justice Datuk Abdul Rahman Sebli (now a Federal Court judge) sat, had ruled that the NRD and its director-general are not bound by the fatwa (religious edict) issued by the National Fatwa Committee to decide on the surname of a Muslim child conceived out of wedlock.

The NRD, Justice Abdul Rahman ruled, is only confined to determining whether the father had fulfilled the requirements under Section 13A(2) of the Births and Deaths Registration Act 1957.