PUTRAJAYA: The National Registration Department (NRD) and two other parties have failed to reach an out-of-court settlement in the case of a Muslim child born out of wedlock.
The parents had sought to change the ‘Abdullah’ patronym to the father’s surname in the birth certificate.
Lawyer Nizam Bashir, who represented the couple and the child whose names were withheld by the court, said there was a negotiation for settlement but they were informed by senior federal counsel Mazlifah Ayob that it was unsuccessful.
“The AGC (Attorney General’s Chambers) wants to proceed with the appeal,” said Nizam.
Following this, the appeal by the NRD, its director-general and the government, will proceed as scheduled on Aug 16 before a Federal Court seven-member bench.
The matter came up for case management before deputy registrar Norhafizah Zainal Abidin via e-Review, under which parties need not meet physically as the matter is conducted online.
A five-member Federal Court bench led by then Chief Justice Tun Raus Sharif had heard the appeal on Feb 7 last year and subsequently reserved decision.
The appeal was then set for re-hearing before a seven-member bench led by the then Chief Justice Tan Sri Richard Malanjum on Oct 18 last year after Justice Raus resigned and Justice Hasan Lah retired.
However, the hearing did not proceed on that day as the court decided that three judges from the previous panel – the then Chief Judge of Malaya Tan Sri Ahmad Maarop (now Court of Appeal President) and Federal Court judges Datuk Seri Balia Yusof Wahi and Tan Sri Aziah Ali – were still present and could deliver the decision.
The matter was subsequently fixed for Nov 22 last year for the three remaining judges to deliver their decision, but they deferred it after the government requested for an adjournment to enable it to find other solutions to resolve the dispute.
As of now, Justice Ahmad is the only remaining judge as Justice Balia and Justice Aziah have also retired.
Under Section 78 (2) of the Courts of Judicature Act 1964, a minimum of two judges are required to deliver a judgment of the Federal Court.
On May 25, 2017, a three-member 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.
The child was born less than six months after the parents’ marriage, which is considered illegitimate under Syariah law.
Justice Datuk 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’.
He ruled that 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.
The fatwa states that a child conceived out of wedlock or one of indeterminate paternity cannot carry the name of the person who claims to be the father if the child was born less than six months into a marriage.
On Sept 8, 2017, the Federal Court granted the NRD, its director-general and the government leave to appeal against the appellate court’s decision. — Bernama.
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