The government today failed to obtain a stay of execution on the Court of Appeal's landmark decision concerning children born out-of-wedlock.

The National Registration Department (NRD) had sought to stay the decision which ruled an edict by the National Fatwa Committee did not have the "force of law" and therefore does not need to be complied with by the NRD.

A child, which the court refused to name for the minor's protection, had challenged the NRD's rule that Muslim children born out-of-wedlock must comply with the fatwa disallowing them from carrying their father's name.

The Court of Appeal's three member bench led by Justice Tengku Maimun Tuan Mat refused to grant the stay application.

The other judges were Justice Zaharah Yusof and Justice Abdul Rahman Sebli who wrote the 28-page landmark judgment.

Despite being denied a stay, the lawyers representing the child's family told Malaysiakini that they agreed not to enforce the Court of Appeal decision until the Federal Court motion for leave to appeal is resolved.

The government has already filed an application for leave of appeal at the Federal Court but no dates have been fixed.

This was confirmed by lawyers K Shanmuga and Nizam Bashir who are acting for the family. 

It was reported last week that Justice Abdul Rahman in his written judgment ruled that the fatwa is not enforceable in law on the NRD and hence children born out of wedlock can bear the father's surname if it is applied to the NRD.

No plan to institute contempt

In making the court ruling, the COA said the NRD director-general is not obligated to apply, let alone to be bound by a fatwa issued by a religious body such as the National Fatwa Committee.

The child was registered with the NRD two years after birth and at the time of doing this, the parents jointly applied to have father's name, but the NRD registered the child as "bin Abdullah" instead.

“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 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,” Justice Abdul Rahman wrote.

“Such abrogation of power will render Section 13A (2) of the BDRA completely otiose (serving no practical purpose) 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.

However, the NRD had indicated it will not comply with the Court of Appeal's decision pending an appeal at the Federal Court. This was similar echoed by Home Minister Ahmad Zahid Hamidi.

Nizam told Malaysiakini that the family will not moving to cite parties for contempt (following various comments made). 

The NRD director-general Mohd Yazid Ramli said last week following the written grounds was out that the procedure to name a child born out of wedlock will remain the same despite the decision.

The director-general added that NRD's decision not to allow the child conceived out of wedlock not to bear the father's name if they are born less than six months after their parents' marriage was consistent with the decision made by the National Fatwa Committee.

“Hence, we will continue to implement the present status quo in relation to such cases. Any amendment to the present practice would only be considered after the decision is made by the Federal Court,” he said in the statement.

Zahid had called on Muslims to unite against individuals or "different legal systems" that opposed the fatwa committee's edicts.