The Federal Court has rejected an application by 41 parents to intervene in the case pertaining to the names of Muslim children born out of wedlock, which will be heard by the apex court on Feb 7.

However, the applicants’ lawyers will be allowed to appear during the hearing as amici curiae (friends of the court).

This would allow them to address the court during the hearing, but not with the same standing as the parties of the case.

“The court today is of the opinion that this is a judicial review matter and it would be unfair to allow us to just come in and intervene, because in judicial review matters there are various steps we need to follow before we can be heard.

“So if they allowed us to intervene, we would have sidestepped all those mechanisms. That was the point that was brought up by the Chief Justice (Md Raus Sharif) just now.

“But he said that I could always appear on Feb 7 and apply to be amicus curiae and be heard. So that was the order made: That I will appear on the Feb 7 and apply to be amicus curiae,” lawyer Azhar Azizan Harun told reporters after the hearing today.

Azhar, together with the lawyers Aniza Aziz and Lokman Hakim Abdullah, are representing 20 couples and a single mother whose children are deemed to be born out of wedlock and were hence not allowed to bear their father’s name as part of their own name.

Instead, their names end with the term “bin Abdullah” or “binti Abdullah”, which some argued would mean that the child would have to carry the stigma of being an illegitimate child for the rest of his or her life.

Apart from Justice Raus, members of the five-member panel sitting in today’s hearing are Justices Zainun Ali, Balia Yusof Wahi, Jeffrey Tan and Alizatul Khair Osman Khairuddin.

According to Azhar, the court had taken the same stance towards the Federal Territories Islamic Religious Council, which had also applied to intervene.

In a landmark decision on July 27 last year, the Court of Appeal had ruled that a child conceived out of wedlock can take on his or her father's surname, whether Muslim or non-Muslim. 

It said the National Registration Department (NRD), a civil institution, is confined to determine whether the father had fulfilled the requirements of Section 13A(2) of the Births and Deaths Registration Act (BDRA), whereas a National Fatwa Council edict on the same matter does not have the force of law.

However, the NRD appealed against the decision, and the Federal Court hearing is slated for Feb 7. 

The Federal Court is expected to address three questions of law in the hearing:

  1. 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; 
     
  2. Whether the civil court may determine questions or matters on the legitimacy of Muslim children in respect to naming and ascription of paternity; and,
     
  3. Whether Section 13A of BDRA applies to registration of birth for Muslim children, enabling the children to be named with the personal name of a person acknowledging to be the father of the children.