THE civil courts are not to interfere in matters pertaining to Islamic laws, such as the “bin Abdullah” case, the Federal Court was told today. 

The National Registration Department is appealing the Court of Appeal’s ruling on July 27 last year that the illegitimate offspring of a Muslim father may with the consent of the mother bear the father’s name, instead of the “bin Abdullah” that is accorded to children born out of wedlock. 

The Johor Islamic Religious Council (MAINJ) was the intervener in the case. 

In today’s hearing, MAINJ’s lawyer Sulaiman Abdullah argued that to arrive at its verdict, the appellate court had set aside “a basic tenet of Islamic law” that was part of the constitutional framework. 

“The approach of the Court of Appeal is to totally ignore this salient feature of our constitutional set up,” he said.

Sulaiman said in its place was instead “an appeal to emotion”.

“What the Court of Appeal has done is to set aside (Islamic) law in pursuit for an imaginary equalisation or better treatment of the child.”

The  unanimous decision of the appeal court’s three-man bench led by Abdul Rahman Sebli asserted that the NRD director-general who had refused to allow an illegitimate child to bear the father’s name was a civil officer bound under civil law.

The case relates to a seven-year-old child in Johor who was compelled to register as “bin Abdullah” in 2012 after the NRD, in obedience to a 1981 and 2003 fatwa on illegitimate children, refused the parents’ request to let the child use the father’s name in the birth certificate.

A panel of five judges led by Chief Justice Raus Sharif today heard the appeal. The other judges are Ahmad Maarop, Hasan Lah, Balia Yusof Wahi and Aziah Ali.

“We all come to this world subject to various forces and unfairness. We have to take it as it is,” Sulaiman told the apex court today.

“And here it is that the Court of Appeal has totally lost the picture of the status of Islamic law in our jurisprudence.

“What they are saying is that it’s just an Islamic law, or just a custom, but the fact of the matter is that this religious custom has an overwhelming force in half of the population of Malaysia, and they have to respect the jurisdiction of Article 121(1A) of the federal constitution that the civil court should not get involved in Islamic law matters, which has been held by several judges.

“Islamic laws have to be dealt by the experts themselves, ie the shariah courts,” Sulaiman said.

NRD’s lawyer, Suzana Atan, today argued it was “reasonable” for her client to obey fatwa regarding illegitimate children. 

She argued that a child conceived out of wedlock may not bear the father’s name as the relevant section of the registration law only provides for surnames, the Federal Court was told today. 

She told the court that Section 13A of Births and Deaths Registration Act (BDRA) 1957 required only a surname and made no mention of the use of a patronym. 

That law could only those who did not use surnames, who were Malays and most Indians, she said. 

Section 13A(1) states that “the surname, if any, to be entered in respect of a legitimate child shall ordinarily be the surname, if any, of the father”. 

Suzana said that the law gave “no definition” for Muslim illegitimate children, but  the National Fatwa Council advisory had in 1981 and 2003 stated that an illegitimate Muslim child could not carry his father’s name but must carry the surname “bin Abdullah”.

The lawyer, however, acknowledged that Johor had not duly gazetted the national fatwa. 

“It is not gazetted. So it is not binding, is it not? It doesn’t exist,” Chief Justice Raus said.  

Lawyer for the family of the child in the case, K. Shanmuga argued that NRD’s assignment of the “bin Abdullah” patronym to chld was ultra vires Section 13 and 13A of the BDRA.

Section 13 states that “in the case of an illegitimate child, no person shall as father of the child be required to give information concerning the birth of the child, and the Registrar shall not enter in the register the name of any person as father of the child except at the joint request of the mother and the person acknowledging himself to be the father of the child, and that person shall in that case sign the register together with the mother.”

Shanmuga argued that “surname” was “common language” for the father’s name. He said  lawmakers who amended the law in 1987 to include Section 13A likely did not mean to exclude those who used   patronyms, such as the Malays.

“Otherwise you are talking about discriminating against over 60 to 70% of the population (who use patronyms). The section must have been allowed with all Malaysians in mind. You must presume that it is a statute that is non-discriminatory,” he said. 

Shanmuga concluded that civil law was “clear” and enabled the children to be named with the personal name of the person acknowledging paternity of the child, and that no further reference was needed to decide whether Section 13A of the BDRA applied to Muslim children.

He also said there was no need to answer the two questions of law raised by the NRD and the government in their appeal as the questions were irrelevant because the illegitimacy of the child was not being challenged .

The questions are whether the registrar of births and deaths may refer and rely on sources of Islamic law when registering the birth of a Muslim child; and whether the civil court may determine questions and matters on the legitimacy of Muslim children in respect to naming and ascription of paternity;  

The child in the case was born on April 17, 2010, five months and 27 days after the couple married on October 24, 2009, three days short of the full six months required for the baby to be recognised as legitimate,  according to Islamic law. 

An application for a judicial review was filed on September 3, 2015, which was dismissed by the High Court on August 2016, a decision that was later overturned by the Court of Appeal.

The Federal Court will fix a date for its decision. Raus maintained the order that the child and the parents shall not be named. – February 7, 2018.