Article contributed by James Low, Member, Bar Council Constitutional Law Committee; photos by Muhammad Bazli Naim b Abdul Azid, Administrative Assistant, Bar Council Secretariat
This public forum on the “Bin Abdullah” decision of the Court of Appeal, jointly organised by the Bar Council Constitutional Law Committee (“ConstiLC”) and the Bar Council National Young Lawyers and Pupils Committee, was scheduled to be held at the Bar Council Raja Aziz Addruse Auditorium in the Straits Trading Building. However, a blackout sent the auditorium into darkness on a cloudy Wednesday evening on 20 Sept 2017, and the forum had to be relocated to the Kuala Lumpur Bar Auditorium in Wisma Hangsam on short notice.
The new venue was soon alight with incisive thoughts from the speakers of the day — Dato’ Seri Gopal Sri Ram, former Federal Court Judge and Member of the Bar; and Dato’ Dr Ahmad Farouk Musa, Chairman and Director of the Islamic Renaissance Front. The knowledgeable speakers shared their views on the recent Court of Appeal decision in A Child & Ors v Jabatan Pendaftaran Negara & Ors (Civil Appeal No: W–01(A)–365–09/2016) (“Court of Appeal Decision”).
The moderator, the Co–Deputy Chairperson of ConstiLC, Lim Wei Jiet, started off by summarising the Court of Appeal Decision. In this case, a Muslim child had been born out of wedlock. Despite the child’s parents having made an application to register the child’s surname using the father’s name, the National Registration Department (“NRD”) inserted “bin Abdullah” (not the father’s name) as the child’s surname, relying on two fatwas issued by the National Fatwa Committee. The parents then initiated judicial review but the High Court affirmed the NRD’s decision. On appeal, the Court of Appeal sharply disagreed with the High Court and quashed the decision of the NRD.
With that introduction, Dato’ Dr Farouk took the floor and talked about fatwas. Referring to an Islamic scholar, Dato’ Dr Farouk explained that a fatwa is a reply given by an expert to a legal question in the form of words, action or approval. There are two essential elements regarding a fatwa:
(1) A fatwa can only be delivered by a mujtahid — a person who can perform ijtihad (independent reasoning) based on sources of Islamic law; and(2) A fatwa must be formulated in the context of life, the environment and the specific situation at hand. In short, a mujtahid must be well–versed in text and context.
Dato’ Dr Farouk next addressed the critical question on whether a fatwa is legally binding, to which he answered “no”, as there are differences in opinion among the mujtahid, resulting in different fatwas on any specific legal question. With respect to the Court of Appeal Decision, Dato’ Dr Farouk noted that a different fatwa on the same issue has been declared by the Mufti of Perlis. Given that fatwas may be contradictory, they cannot be legally binding.
Dato’ Seri Gopal commenced his remarks by noting that since the Court of Appeal Decision is in the process of being appealed to the Federal Court, care must be taken to avoid sub judice. With this cautionary statement, he proceeded to advance two basic propositions, based on the Court of Appeal Decision, which are of general application.
The first proposition is that the only lawmaking authority at the federal level is the Parliament. So, a public decision–maker must not contravene the federal law made by Parliament and the Federal Constitution. To determine whether a decision–maker contravened the federal law, the basic question is whether the public decision–maker took into account irrelevant considerations, or failed to take into account relevant considerations. Since the word “fatwa” is nowhere found in the Births and Deaths Registration Act 1957 (“BDRA”), which is a federal law, the NRD took into account irrelevant considerations by relying on fatwas.
The second proposition is that everyone is entitled to equal protection of the law, a principle housed under Article 8(1) of the Federal Constitution. The BDRA does not differentiate between Muslim and non–Muslim children, and so mirrors the equal protection principle. However, the NRD’s refusal to register the father’s name as the child’s surname meant that the child was denied equal protection under the BDRA simply because the child is a Muslim. This act contravenes the Federal Constitution, and so the Judges must perform their oath to preserve, protect and defend the Federal Constitution.
After the speakers ended their presentations, a question–and–answer segment ensued. A member of the audience brought to the attention of the panel, section 49 of the Administration of the Religion of Islam (State of Johor) Enactment 2003, which seems to suggest that a fatwa becomes legally binding once it is gazetted. On whether such reading is correct, Dato’ Seri Gopal responded in two parts.
First, he cast the attention back to the Federal Constitution, in which Article 75 provides that “if any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void”. Coupled with his earlier point that the BDRA does not differentiate between Muslim and non–Muslim children, the former Judge opined that state law must give way to federal law. In other words, the child’s name must be registered according to the provisions of the BDRA.
Secondly, Dato’ Seri Gopal commended the clarity with which YA Dato’ Abdul Rahman Sebli, Judge of the Court of Appeal, dealt with the Court of Appeal Decision. Although the latter conceded that Muslims are subject to the Islamic law of the respective states, his lucid judgment made it clear that the issue was the procedure laid down by the BDRA, and the BDRA does not differentiate between Muslim and non–Muslim children.
With no other questions being raised in respect of the Court of Appeal Decision, after discussion on other issues of interest the forum ended with the presentation of tokens of appreciation to the speakers.