NRD appeals to Federal Court and will continue with current surname procedure

PETALING JAYA: The National Registration Department will continue with its current procedure of giving a surname to a child conceived out of wedlock, amid a landmark decision made by the Court of Appeal today.

NRD director-general Datuk Mohd Yazid Ramli (pix) said the department had already filed an appeal to the Federal Court against the decision.

The appeal was made through the Attorney-General's Chamber, Mohd Yazid added.

"Any amendments to the current implementation would only be considered after a decision from the Federal Court is received," he said in a statement.

Mohd Yazid said a High Court had previously made a ruling stating that under Islamic law, a child cannot carry the surname of his or her father if the child was born less than six months of the Islamic calendar from the date of their parents' marriage.

He added the current procedure taken by NRD was in accordance of the National Fatwa Committee's decision.

In a landmark decision on Thursday by a three man bench, the Court of Appeal ruled that a child conceived out of wedlock can take on his or her father's surname. The ruling covers all children conceived out of wedlock, whether Muslim or non-Muslim.

The court made the ruling in an appeal involving a seven-year-old child (MEMK), who was born five months and 24 days (or five months and 27 days according to the Islamic Qamariah calendar) after his parents married.

Justice Abdul Rahman Sebli, who wrote the unanimous decision in the 29-page judgment, said the jurisdiction of NRD's director-general is a civil one and is confined to determine whether the father had fulfilled the requirements of Section 13A(2) of the Births and Deaths Registration Act (BDRA).

This ruling essentially reads that the edict on such matters by the National Fatwa Committee does not have the force of law.

In 2003, the National Fatwa Committee decided that a child conceived out of wedlock ("Anak Tak Sah Taraf") cannot carry the name ("tidak boleh dinasabkan") of the person who claims to be the father of the child, if the child was born less than six months of the marriage.

Justice Abdul Rahman 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 MEMK's name as the father, but the NRD registered the child as "bin Abdullah" instead.

Justice Abdul Rahma said the NRD director-general acted irrationally in refusing to use the child's father in the birth certificate on the purported ground that according to the fatwa issued by the National Fatwa Committee, the child could not be ascribed with his father's surname as he is an illegitimate child.

He pointed out that for the NRD director-general to do so would amount to an abrogation of his power under the BDRA and surrendering it to the religious body.