PUTRAJAYA: The Federal Court will rehear this Aug 16 an appeal by the National Registration Department and two others on whether a Muslim child conceived out of wedlock can bear his or her father’s surname.
Lawyer Nizam Bashir who is representing a couple and their child in the appeal to be heard by a seven-man bench said the appeal has been fixed for case management on June 28.
“Court of Appeal president Tan Sri Ahmad Maarop will not deliver the decision as previously indicated,“ he told reporters after attending a case management on the appeal before deputy registrar Norhafizah Zainal Abidin.
He said the direction given was for a de novo hearing.
On Feb 7, last year, a Federal Court panel of five led by then chief justice Tun Raus Sharif heard the appeal but reserved its decision.
Raus eventually resigned while federal court judge Tan Sri Hasan Lah retired.
The appeal was then set for a fresh hearing before a seven-member bench led by then chief justice Tan Sri Richard Malanjum on Nov 22, last year.
However, the hearing was adjourned when the court confirmed that three judges from the previous panel (Ahmad who was then Chief Judge of Malaya, Datuk Seri Balia Yusof Wahi and Tan Sri Aziah Ali were still present and could deliver the decision.
Under Section 78 (2) of the Courts of Judicature Act 1964, a minimum of two judges are required to deliver a judgment of the Federal Court.
But the case was deferred on the appellants’ request.
Justice Ahmad is the only remaining judge now as Balia and Aziah have since retired.
At the case management today, senior federal counsel Mazlifah Ayob represented the NRD, its director-general and the government.
Halimatunsa’diah Abu Ahmad was the lawyer for Selangor Islamic Religious Council while counsel Zulsyahmi Husaini Kamarulzaman represented Johor Islamic Religious Council.
On May 25, 2017, the Court of Appeal panel ruled in favour of the couple and their child who filed a judicial review to compel the NRD director-general to replace the child’s surname “Abdullah” with the name of the child’s father in the birth certificate.
Justice Datuk Abdul Rahman Sebli who delivered the judgment held that a Muslim child conceived out of wedlock can bear his or her father’s surname instead of “Abdullah”.
It (the Court of Appeal) said the NRD director-general was not bound by the “fatwa” or religious edict issued by the National Fatwa Committee to decide the surname of a Muslim child conceived out of wedlock.
The court held that a fatwa had no force of law and could not form the legal basis for the NRD director-general to decide on the surname of an illegitimate child under section 13A (2) of the Births and Deaths Registration Act 1957 (BDRA).
On Sept 8, 2017, the Federal Court granted the respondents leave to appeal against the decision. — Bernama