A five-member bench of the Federal Court is expected to hear an appeal by the National Registration Department, its director-general and the government regarding the controversial "bin Abdullah" case.

Besides affecting the parents and their eight-year-old child from Johor, the decision of this case would also be binding on children who are in a similar situation.

This includes 20 couples who were granted amici curiae (friends of the court) status by the apex court last month.

The 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.

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

Justice Abdul Rahman Sebli, in leading a three-member panel, also ruled that the fatwa or religious edict on this matter had no legally binding effect.

The appellate court judge said the NRD, a civil institution, was only confined to determining whether the father had fulfilled the requirements under Section 13A(2) of the Births and Deaths Registration Act (BDRA) and a National Fatwa Council edict on the same matter did not have the force of law.

The National Fatwa Committee in 2003 decided that a child conceived out of wedlock (anak tak sah taraf) cannot carry the name (tidak boleh dinasabkan) of the person who claims to be the father of the child if the child was born less than six months into the marriage.

Justice Rahman, in recognising the possible stigma faced by the child, said a fatwa or a religious edict issued by a religious body had no force of law, unless the fatwa or edict had 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,” he said.

Three questions of law have been raised by the NRD and government in their appeal to the Federal Court:

  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 the 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.