A three-member bench will deliver the verdict after reserving judgment on Feb 7.
The central issue before the apex court is whether Section 13 of the Birth and Death Registration Act 1957 (BDRA) only applies to non-Muslims.
The second issue is whether the surname applies to the patronym (the father’s name).
The Federal Court is also expected to decide whether a decree on naming of children by the National Fatwa Council was binding on NRD and whether it was the civil court or the shariah court which should determine the naming of a Muslim child.
According to a 2003 fatwa by the National Fatwa Council, an illegitimate child (“anak tak sah taraf”) shall not carry the name of (“tidak boleh dinasabkan”) the father of the child or the person who claims to be the father of the child.
Last year, the Court of Appeal ruled that the NRD director-general’s jurisdiction was a civil one and was confined to determine whether the child’s parents had fulfilled the requirements under the BDRA.
Justice Abdul Rahman Sebli, who delivered the judgment said the BDRA, being a federal law, covered all illegitimate children, whether Muslim or non-Muslim.
In the present case, the child was born less than six months after the parents’ marriage, which is seen as being illegitimate under shariah law.
The child’s birth was registered two years later in 2011 under Section 12 of the BDRA.
The parents, both of whom are from Johor, applied to the NRD under Section 13 of the BDRA to have the father’s name on the birth certificate. However, the document carries the name “bin Abdullah” instead.
The NRD refused to replace this with the father’s name on grounds that the child was illegitimate, despite the application made.
The parents, whose identities have been withheld, filed an application for judicial review at the High Court in 2016.
They lost their case in the High Court, but the decision was reversed by the Court of Appeal (COA) last year.
Senior federal counsel Suzana Atan had submitted that the NRD was reasonable in relying on a fatwa from Johor to refuse a Muslim illegitimate child from carrying the father’s name.
She said there was no definition of an illegitimate child under the 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,” said Suzana, who appeared for the NRD, its director-general and the government.
Lawyer Sulaiman Abdullah, who represented the Johor Islamic Religious Council, said the appellate court ignored the tenets of Islam in the Federal Constitution and had 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 the 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.
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.
Lawyer Azahar Azizan Harun, now the Election Commission chairman, who appeared as a friend of the court for 20 couples and a single parent of illegitimate children, said his clients had obtained clearance from the shariah court in Perlis to use the name of their biological fathers but the NRD refused to remedy the matter.
Lawyer Fahri Azzat said the government should stay away from the affairs of parents who want to use the father’s name or bin/binte Abdullah.
“This is a private matter of at least two individuals (parents). The Court of Appeal applied the law correctly and its decision should be upheld,” Fahri told FMT.