PUTRAJAYA - Malaysia’s top court on Monday (Aug 21) stayed a controversial judgment allowing Muslim children conceived out-of-wedlock to take their father’s name.
The stay application was made by the National Registration Department (NRD), which had in May been ordered by the Court of Appeal to ignore fatwa, or religious edicts, that specified illegitimate children should carry the generic “Abdullah” surname.
A Muslim couple from Johor had brought the case against the NRD, so that their child, born five months into the marriage, could take her father’s name.
The Federal Court’s decision on Monday means the NRD does not have to comply with the Court of Appeal’s order for now.
The apex court also on Monday allowed an application by Johor religious authorities to intervene in the case, after the council's lawyer Datuk Sulaiman Abdullah convinced the court that the case was first filed in Johor and thus the state and its laws were related, the Malay Mail Online reported.
“The Federal Court granted a stay from today onwards ... The Johor Islamic Council is allowed to intervene,” Mr Nizam Bashir, the lawyer for the couple, told The Straits Times.
The NRD had earlier argued that it was adhering to a 2003 Malaysian fatwa declaring a child cannot carry the name of the father, if he or she is was born less than six months after marriage. According to the fatwa, the child should be named ‘bin Abdullah’ or ‘binti Abdullah’ - meaning son or daughter of a servant of Allah - instead of carrying the father’s name.
In its grounds of judgment released in July, the Court of Appeal said that “a fatwa, we reiterate, is not law and has no force of law and cannot form the legal basis for the National Registration director-general to decide on the surname of an illegitimate child”.
The Court of Appeal decision had sparked fierce protest from conservative Muslims, who insist the ruling was unconstitutional. Other Muslim groups however have lauded the decision for protecting children born out of wedlock from social stigma.
Meanwhile, the application by the Federal Territories Islamic Council to intervene in the case was struck out on Monday.
“I do not want multiple parties to intervene and argue on the same points. Why should [the Federal Territories Islamic Council] want to be a party in this application?” said Chief Justice Raus Sharif, who chaired the three-man panel.
The Federal Court will on Sept 8 consider the NRD’s application for leave to appeal the Court of Appeal ruling.