SOMETHING is wrong with Malaysia’s legal system if a judge does not know the basic principles of law, prominent lawyer and former judge Gopal Sri Ram said in a forum today on the “bin Abdullah” issue.
Sri Ram pointed out that the High Court should ensure that the National Registration Department (NRD) obeyed the court decision in the “bin Abdullah” case instead of a fatwa (edict), which was not law.
“Look at the Birth and Death Registration Act (BDRA), you won’t find the word fatwa mentioned anywhere.
“Therefore, he (NRD director-general) took into account an irrelevant consideration. Therefore his decision is wrong,” Sri Ram said at the Bar Council forum on bin Abdullah held today at Kuala Lumpur.
Sri Ram added lawyers should look at the statute and determine what the statute required of them.
“We say right, at the end of the day, the decision-maker took into account irrelevant considerations then his decision is quashed.
“What is amazing is that the High Court judge did not know that, that tells a lot about the quality of judges we have at the High Court.
“If a judge does not know this basic principle then something is seriously wrong with our system.”
On May 25, the Court of Appeal allowed an appeal brought by a couple and their son to compel the director-general of NRD to replace the child’s surname “Abdullah” with the father’s name in the birth certificate.
The Court of Appeal then released a written statement on July 25 which stated that the director-general of NRD was not bound by the fatwa or religious edict issued by the National Fatwa Committee on deciding the surname of a Muslim child conceived out of wedlock.
In the judgment, the court said the director-general’s jurisdiction was a civil one and confined to determining whether the child’s parents have fulfilled the requirements under BDRA, which covers all illegitimate children, Muslim and non-Muslim.The Federal Court is to hear and decide on the legal questions arising from whether a Muslim child conceived out of wedlock can take his or her father’s surname instead of “Abdullah”.
Last month, the NRD announced it would continue to register the births of illegitimate children in the usual manner, pending an appeal against the Court of Appeal’s decision to allow such children to take the father’s name.
NRD director-general Mohd Yazid Ramli said any changes to how things were done at the department would only be made after the Federal Court ruled on the appeal filed by the Attorney-General’s Chambers.
Sri Ram also said everyone regardless of Muslim or non Muslim is entitled to equal protection of the law.
“Does the Birth and Deaths Act draw distinction between Muslims and non? (It) Does not.
“Then it’s irrelevant what the religion of the child is. If you take away from a child the protection of law, you offend article 8(1) and this is now a challenge on constitutional grounds,” he said.
Islamic Renaissance Front director Dr Ahmad Farouk Musa also added fatwa is not binding and it is not a law.
“Since the fatwa has no force of law, and bearing in mind that this country is still secular in nature, the decision of the Court of Appeal should be upheld,” he said.