Federal counsel Suzana Atan said there was no definition of an illegitimate child under the Births and Deaths Registration Act 1957 (BDRA) although the legislation applied to Muslims and non-Muslims.
“In the circumstances, the NRD can rely on a fatwa that a Muslim child conceived out of wedlock is prohibited from carrying the name of the biological father,” she said.
Suzana said there was no dispute on the illegitimacy of the child born to Muslim parents.
“It reasonable for the NRD to rely on a fatwa in Islamic law to achieve the objectives of the BDRA,” she said in her submission before a five-member bench chaired by Chief Justice Raus Sharif.
Suzana is appearing for the NRD, its director-general and the government, which is appealing against the Court of Appeal (COA) ruling last year which held that a fatwa had no force of law and could not form the legal basis for the NRD to decide on the surname of an illegitimate Muslim child.
In this case, the child was born less than six months after the parents were married, which is considered illegitimate according to shariah law.
The child’s birth was registered two years later in 2011 under Section 12 of the BDRA.
Both parents from Johor applied to the NRD to register the father’s name on the birth certificate under Section 13 of the BDRA but it only stated “bin Abdullah.”
The NRD refused to substitute it with the father’s name, despite an application made to remove the “bin Abdullah”, on the grounds that the child was illegitimate.
This resulted in the parents, whose identity is being withheld, filing an application for a judicial review in the High Court in 2016.
Suzana said Section 111 of the Johor Islamic Family Enactment 2003, applied to Muslims and as such the fatwa was also binding on the couple and the child.
Lawyer Sulaiman Abdullah, who is representing the Johor Islamic Religious Council, said the COA ignored the tenets of Islam in the Federal Constitution and instead appealed to emotions.
“The COA lost the plot. Civil courts should not get involved in Islamic matters that are under the purview of the shariah courts,” he said.
He said the NRD was correct to rely on the fatwa issued by the Johor Islamic authorities.
“This fatwa may not have been gazetted but it has the force of law provided it is not a threat to national security and public order,” he said.
Sulaiman said it was common knowledge that Perlis did not follow the fatwa although the state followed the Shafie school of teaching.
Since Islam is a state matter, Perlis had not followed the fatwa since 2011.
According to a 2003 fatwa by the National Fatwa Council, an illegitimate child (“anak tak sah taraf”) shall not be surnamed (“tidak boleh dinasabkan”) to the father of the child or to the person who claims to be the father of the child.
Lawyer K Shanmuga, who appeared for the parents and the child, submitted that the COA decision should be upheld as it took into consideration the dignity and best interests of the minor.
“The legislature clearly intended that Section 13A of the BDRA should apply to both Muslims and non-Muslims,” he said.
Shanmuga said the NRD must apply the BDRA, a federal law which was very clear.
“If there is to be a change in the law, it is for Parliament to amend it,” he added.
Lawyer Azahar Azizan Harun, who appeared for 20 couples and a single parent of illegitimate children, said some of his clients obtained clearance from the shariah court in Perlis to use the name of their biological fathers but the NRD refused to remedy the matter.
The Federal Court has reserved judgment.
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