THE Court of Appeal has ruled that a child conceived out of wedlock can take on the father’s name, in a landmark decision that outlines the National Fatwa Committee’s legal limitations, reported Malaysiakini.

Justice Abdul Rahman Sebli, who wrote the unanimous decision by a three-man panel, said the jurisdiction of the National Registration Department (NRD) director-general was a civil one, bounding the latter to civil law.

This means the department is to refer to Section 13A(2) of the Births and Deaths Registration Act (BDRA) when making decisions relating to a child’s surname.

The ruling, which covers both Muslim and non-Muslim children conceived out of wedlock, was made in an appeal involving a 7-year-old child born five months and 24 days (or five months and 27 days according to the Islamic Qamariah calendar) after his parents married.

The child was registered with NRD two years after birth and the parents jointly applied to have “MEMK” named as the father, but the department registered the child as “bin Abdullah” instead.

In 2003, the National Fatwa Committee had declared that a child conceived out of wedlock could not carry the name of the person who claimed to be the father if the child was born less than six months into the marriage.

Rahman said the NRD director-general was not obligated to apply, let alone be bound by, a fatwa issued by a religious body like the National Fatwa Council.

“To do so would amount to an abrogation of his power under BDRA and surrendering it to the religious body.

“That would, in effect, be to take away the statutory right accorded to the father by Section 13A(2) to have his name ascribed as the child’s surname in the birth certificate.

“Such abrogation of power will render Section 13A (2) completely otiose and gives the impression that Parliament had enacted the provision in vain.

“A fatwa or religious edict issued by a religious body has no force of law, unless the fatwa or edict has been made or adopted as federal law by an act of Parliament.”

He said such an application of a fatwa violated the legislative process.

Section 13A (2) of BDRA states that “the name, if any, to be entered in respect of an illegitimate child may, where the mother is the informant and volunteers the information, be the name of the mother; provided that where the person acknowledging himself to be the father of the child, in accordance with Section 13 requests so, the name may be the surname of that person”.

It also states that “notwithstanding anything in the foregoing provisions of this act, in the case of an illegitimate child, no person shall, as a 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 the 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”.

The appeal was granted in May, but Rahman’s 28-page grounds of judgment was made available just recently. – July 27, 2017.