PUTRAJAYA – The Births and Deaths registrar can refer to Islamic law when registering the birth of a Muslim child to define its legitimacy,” the Federal Court was told today.
Senior federal counsel Suzana Atan submitted before the five-man bench led by Chief Justice Tun Md Raus Sharif that the law that governed legitimacy of a Muslim child was provided for under the respective States’ Islamic Family Law Enactments.
She said under Islamic law, only paternity could give legitimacy status to the child, adding, the legitimacy of persons of Islamic religion were matters of Islamic law that fell under the purview of state laws.
“In this matter, reference was made to section 111 of the Johor Islamic Family Law Enactment 2003 which stated that in order to determine legitimacy or ascription of paternity of a Muslim, the child must be born more than six qamariah months from the date of marriage or within four qamariah years after dissolution of the marriage either by death of man or divorce.
“It is reasonable or nothing unreasonable for the National Registration Department (NRD) director-general to make reference to the National Fatwa Committee or Muzakarah Fatwa,” she said.
Suzana who was representing the NRD, its director-general and the Government of Malaysia, said under the Births and Deaths Registration Act 1957 (BDRA), there was no definition of illegitimate child.
The position of Islamic law in respect to paternal ascription was clarified by scholars of Islamic jurisprudence through “Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan bagi Hal Ehwal Ugama Islam Malaysia kali ke-1” which ruled that illegitimate Muslim children were not permitted to take their father’s name, she said.
She said the Federal Constitution vested the State Legislature the power to makes laws relating to Islamic law and personal and family law of persons professing the religion of Islam including Islamic law relating to legitimacy.
The registrar was correct to register the child’s name with “bin Abdullah” and in refusing to the application for correction of error in the birth registry, she said.
Suzana was presenting her submission in the appeal brought by NRD, its director-general and the Government of Malaysia against the appellate court ruling that a Muslim child conceived out of wedlock could bear his or her father’s name instead of “Abdullah”.
On May 25, last year, the Court of Appeal allowed the judicial review of a couple and their son to compel the NRD director-general to replace the child’s surname ‘Abdullah’ with the name of the child’s father in the birth certificate.
The Court of Appeal, in a written judgment released on July 25 last year, said the NRD director-general was not bound by the ‘fatwa’ or religious edict issued by the National Fatwa Committee to decide the surname of a Muslim child conceived out of wedlock.
In the judgment, the court said the director-general’s jurisdiction was a civil one and was confined to determining whether the child’s parents had fulfilled the requirements under BDRA, which covers all illegitimate children, Muslim and non-Muslim.
The court had held that a fatwa had no force of law and could not form the legal basis for the NRD director-general to decide on the surname of an illegitimate child under section 13A (2) of the BDRA.
During the proceeding, the family’s counsel K. Shanmuga urged the Federal Court to uphold the appellate court’s decision, saying, the dignity and best interests of the young child should be the paramount consideration.
“The underlying matter does not concern the issue of legitimacy. It solely concerns the naming of the 1st respondent (the child),” said Shanmuga.
During the appeal proceeding, the bench also heard submission from counsels representing the Johor Islamic Religious Council, the Federal Territory Islamic Religious Council, the Selangor Islamic Religious Council and counsel who was representing 20 couples and a single mother.
Raus said the court reserved its decision on the appeal to a date to be fixed.
Presiding with him were Chief Judge of Malaya Tan Sri Ahmad Maarop and Federal Court judges Tan Sri Hasan Lah, Datuk Sri Balia Yusof Wahi and Tan Sri Aziah Ali. – BERNAMA