The government and the National Registration Department has filed an application for leave to appeal to the Federal Court over the Court of Appeal's landmark decision that children conceived out of wedlock can bear the surname of the father.

The appellate court also decided that an edict on this by the National Fatwa Committee does not have the force of law.

Lawyer Nizam Bashir, who represents the child and his parents, said the government had already filed the application for leave (permission).

“That is where the case stands now. Let us see how it goes,” he told Malaysiakini today, adding that he thought it was a "reasonable judgment" by the Court of Appeal.

Although Nizam and counsel K Shanmuga did bring up constitutional issues in the matter, the bench did not enter into it.

It was reported that a seven-year-old child and his parents, all of them Muslims, had named the NRD, its director-general and the government as respondents in the case after they filed the judicial review application after the child had to bear "Abdullah" as the surname. 

The child's parents got married on Oct 24, 2009, while the boy was born on April 17, 2010. However, they registered the child to have his birth certificate two years later.

Despite the father and mother agreeing to put their names as the boy's parents, the NRD registered the child as "bin Abdullah".

Justice Abdul Rahman Sebli who wrote the Court of Appeal's unanimous decision said that a fatwa or edict by the National Fatwa Committee on the issue does not have a force of law.

In the 28-page grounds of judgment, he said the NRD director-general is not obligated to apply, let alone to be bound by a fatwa issued by a religious body.

“For him (the NRD director-general) to do so would amount to an abrogation of his power under the BDRA and surrendering it to the religious body.

"That would in effect be to take away the statutory right accorded to the father by Section 13A(2) to have his name ascribed as the child's surname in the birth certificate.”

“Such abrogation of power will render Section 13A (2) of the BDRA completely otiose and gives the impression that Parliament had enacted the provision in vain, a proposition that has no place in legislative interpretation.

"A fatwa or a religious edict issued by a religious body has no force of law, unless the fatwa or edict has been made or adopted as federal law by an Act of Parliament.

“Otherwise a fatwa issued by a religious body will form part of federal law without going through the legislative process,” Justice Abdul Rahman said.