Federal counsel Suzana Atan said the inclusion of a surname under Section 13A of the BDRA was only applicable to the Chinese and Eurasian communities as they went by family names.

“However, this provision cannot be applied to Muslims and Hindus,” she said in her submission before a seven-member bench chaired by Chief Judge of Malaya Azahar Mohamed.

Others are Chief Judge of Sabah and Sarawak David Wong Dak Wah, and Federal Court judges Mohamed Zawawi Salleh, Rohana Yusof, Abang Iskandar Abang Hashim, Idrus Harun and Nallini Pathmanathan.

Suzana is appearing for the National Registration Department (JPN), its director-general and the government, which are appealing against a 2017 Court of Appeal (COA) ruling which held that a fatwa has no force of law and cannot form the legal basis for the agency to decide on the surname of an illegitimate Muslim child.

Today, she identified the father, a Malay Muslim from Johor, only as ME. She said ME is not a surname unlike those for the Chinese and Eurasians.

She said it was also reasonable for the JPN to rely on a fatwa from Johor to refuse an illegitimate child from carrying the father’s name.

Suzana said there was no definition of an illegitimate child under the BDRA although the legislation applied to Muslims and non-Muslims.

“In the circumstances, JPN 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.

In any event, she said even without relying on the fatwa, the child was born less than six months after the parents were married, which is deemed illegitimate under shariah law.

In this case, the child’s birth was registered two years later in 2011 under Section 12 of the BDRA.

Both parents applied to the JPN to register the father’s name on the birth certificate under Section 13 of the BDRA but it carried the “bin Abdullah” instead.

JPN 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.

The couple lost their case in the High Court but the Court of Appeal reversed the decision.

Justice Abdul Rahman Sebli, who delivered the judgment, said the JPN director-general’s jurisdiction was a civil one and was confined to determining whether the child’s parents had fulfilled the requirements under the BDRA.

He said the BDRA, being a federal law, covered all illegitimate Muslim or non-Muslim children.

Lawyer K Shanmuga, who represented the couple, said the BDRA, which was amended in 1975, did not discriminate between Muslim children or parents and the Hansard revealed this from the speeches of MPs who participated in the debate.

He said JPN had no business to identify the father as Abdullah when both the parents agreed to use ME (the father’s name).

“We consider JPN’s conduct as being unreasonable and irrational as it does not consider the best interests of the child,” he said.

Shanmuga said fatwas (religious decree) from Perlis and Terengganu allowed an illegitimate child to use the father’s name.

He said Johor accepted two fatwas issued by the National Fatwa Council in 1981 and 2003 but these were not gazetted by the state religious authorities.

“In any event, our case in this civil court is about the paternity of the child and not legitimacy,” he said.

He said legitimacy only comes into play when it involved marriage and the distribution of property under the Faraid principle.

Lawyer Sulaiman Abdullah, who appeared for the Johor Islamic Religious Council, said the shariah court in Johor was the avenue to settle the matter as it involved legitimacy.

“This case was wrongly brought to the civil court, which has acted emotionally without considering the Islamic law,” he said.

He said the best interests of the child and his parents must conform with Islamic law and everything else is secondary.

“The best interests of the nation and sanctity of Islam must be protected as the religion is very clear on the position of a child born out of wedlock.”

He said the parents should have thought of the consequences to the child before they entered into a sexual relationship.

The court has reserved judgment.