'Bin Abdullah' case: Federal Court to hear NRD appeal again

The Federal Court will rehear on Aug 16 an appeal by the National Registration Department and two others on whether Muslim children conceived out of wedlock can bear their father's surname.

Lawyer Nizam Bashir, representing a couple and their child in the appeal to be heard by a seven-member bench, said case management has been fixed for June 28.

"Court of Appeal president Ahmad Maarop will not deliver the decision as previously indicated," he told reporters after attending case management on the appeal before deputy registrar Norhafizah Zainal Abidin.

Nizam said the direction given was for a de novo hearing.

On Feb 7 last year, a five-member Federal Court panel led by then chief justice Md Raus Sharif heard the appeal, but reserved its decision.

Raus eventually resigned while Federal Court judge Hasan Lah retired.

The appeal was then set for a fresh hearing before a seven-member bench led by then chief justice Richard Malanjum on Nov 22 last year.

However, the hearing was adjourned when the court confirmed that three judges from the previous panel (Ahmad, who was then chief judge of Malaya, Balia Yusof Wahi and Aziah Ali) were still present and could deliver the decision.

Under Section 78 (2) of the Courts of Judicature Act 1964, a minimum of two judges is required to deliver a judgment of the Federal Court.

But the case was deferred on the appellants’ request.

Ahmad is the only remaining judge now as Balia and Aziah have since retired.

At case management today, senior federal counsel Mazlifah Ayob represented the NRD, its director-general and the government.

Halimatunsa'diah Abu Ahmad represented the Selangor Islamic Religious Council, while Zulsyahmi Husaini Kamarulzaman appeared for the Johor Islamic Religious Council.

On May 25, 2017, the Court of Appeal panel ruled in favour of the couple and their child who filed a judicial review 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.

Justice Abdul Rahman Sebli, who delivered the judgment, held that a Muslim child conceived out of wedlock can bear his or her father's surname instead of "Abdullah".

The Court of Appeal said the NRD director-general was not bound by the fatwa issued by the National Fatwa Committee to decide the surname of a Muslim child conceived out of wedlock.

The court 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 Births and Deaths Registration Act 1957.

On Sept 8, 2017, the Federal Court granted the respondents leave to appeal against the decision.

- Bernama