Chief Justice Tan Sri Md Raus Sharif, chairing a Federal Court three-man bench, today granted leave to the National Registration Department (NRD), its director-general and the Government of Malaysia to appeal against an appellate court ruling allowing a Muslim child conceived out of wedlock to carry the father's surname.
"Let the apex court decide on this issue. Then everybody will have to abide by it. We allow the appeal on three (legal) questions," said Raus, who presided with Court of Appeal President Tan Sri Zulkefli Ahmad Makinudin and Federal Court judge Datuk Aziah Ali.
He ordered that the matter be referred for case management before the court registrar for a date to be fixed to hear the appeal as soon as possible.
Raus allowed three of four legal questions posed by the applicants, namely NRD, its director-general and the Government of Malaysia.
The questions are:
* Whether in performing the registration of birth of a Muslim child, the Registrar of Births and Deaths may refer and rely on sources of Islamic law on legitimacy?
* Whether the Civil Court may determine questions or matters on legitimacy of Muslim children in respect of naming and ascription of paternity?
* Whether Section 13A of the Births and Deaths Registration Act 1957 (BDRA) applies to registration of births for Muslim children, enabling the children to take their father's surname?
In civil cases, a party has to obtain leave from the Federal Court before it can proceed with an appeal.
On May 25 this year, the Court of Appeal allowed the appeal brought by a couple and their son 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.
The Court of Appeal, in a written judgment released on July 25 this 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 the Births and Deaths Registration Act 1957 (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.
Senior federal counsel Suzana Atan, representing the applicants, submitted that the three questions required further arguments because it was the first case of this nature before the Federal Court.
She said the applicants should be granted leave to appeal as they had fulfilled the requirements under Section 96 of the Court of Judicature Act 1964.
Lawyer K. Shanmuga, appearing for the child and his parents, whose names have been withheld, objected to the leave-to-appeal application, saying the matter has been decided by the Court of Appeal.
Lawyer Datuk Sulaiman Abdullah represented the Johor Islamic Religious Council which has been allowed to intervene in the matter while the Federal Territory Islamic Religious Council and the Selangor Islamic Religious Council were allowed to hold a watching brief.