The highly-charged "bin Abdullah" surname case, where the appeal by the Johor Islamic Council was heard on Feb 7 this year, is going for a retrial.

This time, it will be reheard from scratch by the Federal Court before a seven-member bench.

This was disclosed by the family's lawyer Nizam Bashir when contacted by Malaysiakini today.

The earlier February appeal hearing lasting until late evening was conducted before a five-member bench led by the chief justice (CJ) Md Raus Sharif.

Justice Richard Malanjum has since replaced Raus as the CJ.

"The matter will be heard de novo (fresh from the beginning) on Oct 18. Although the court did not explicitly say so, we know Raus has left," said the lawyer.

Now, the case will be heard before a seven-member bench, Nizam added.

When Malanjum (photo) was appointed CJ, he announced that public interest cases would be heard before a Federal Court sitting on a seven-member bench, while cases relating to the Constitution would be heard before a nine-member bench.



Besides Raus, the other members of the bench were the Chief Judge of Malaya (now Court of Appeal president) Justice Ahmad Maarop, and Federal Court judges Justice Hasan Lah, Justice Balia Yusof Wahi and Justice Aziah Ali.

The appellate court in a landmark judgment last year, which was only released earlier this year, ordered the NRD to change the name of the eight-year-old child to bear the father's name as it ruled the Johor fatwa had no legal effect as it was not gazetted.

A decision in the apex court would not only affect the parents of this case would also be binding on children who are in a similar situation.

This includes 20 couples who are in the same boat and were granted amici curiae (friends of the court) status.

Their children are deemed to be born out of wedlock and hence not allowed to bear their fathers’ name.

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

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, 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 if the child was born less than six months into the marriage.

Justice Rahman, also recognised 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.