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JABATAN PENDAFTARAN NEGARA & ORS v. SEORANG KANAK-KANAK & ORS; MAJLIS AGAMA ISLAM NEGERI JOHOR (INTERVENER)
FEDERAL COURT, PUTRAJAYA
ROHANA YUSUF PCA; AZAHAR MOHAMED CJ (MALAYA); DAVID WONG DAK WAH CJ (SABAH AND SARAWAK); MOHD ZAWAWI SALLEH FCJ; ABANG ISKANDAR FCJ; IDRUS HARUN FCJ; NALLINI PATHMANATHAN FCJ
[CIVIL APPEAL NO: 01(f)-43-09-2017(W)]
13 FEBRUARY 2020


The decision of the Director General of National Registration (DGNR) in declining to allow a Malay Muslim illegitimate child to bear his biological father's name in his birth certificate is legal, rational and reasonable, and does not in any way militate against the purport of s. 13A(2) of the Births and Deaths Registration Act 1957 (BDRA) or the child's fundamental constitutional liberties. Section 13A BDRA, which allows a child's surname to be stated in his birth certificate, cannot apply to a Malay Muslim child, since a Malay Muslim child, in reality and by culture and tradition, never carries a surname, and also because the biological father's name by definition does not constitute a surname. Be that as it may, and whilst the DGNR in so registering the birth may apply the child's Islamic personal law to the registration process, his decision to ascribe "bin Abdullah" to the child's name upon the adoption of a fatwa issued by the National Fatwa Committee (NFC) is wrong in law and devoid of any legal basis. As the child was born in the State of Johor, and the State has not adopted nor gazetted the NFC's fatwa, the same cannot apply to the State, and consequently, the DGNR, in imposing the fatwa on the child, has usurped the power of the Fatwa Committee of Johor and violated ss. 49 and 52 of the Administration of the Religion of Islam (State of Johor) Enactment 2003. Consequentially, the words "bin Abdullah" must be removed from the child's birth certificate.
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ARTICLE
CHIEF JUDGE: MALAYSIAN SHARIAH COURT HAS NO JURISDICTION OVER APOSTASY CASES OUTSIDE COUNTRY
The country’s Islamic judicial system only has authority over Muslims in Malaysia and cannot act on cases of apostasy outside the nation, a senior Shariah court official said. Berita Harian reported Shariah Judiciary Department director-general Datuk Seri Mohd Na’im Mokhtar as saying the Islamic court here could take action against Muslims of any nationality but only if their religious offences are committed locally. “As it is known, the Shariah court is limited to only Muslims. But its jurisdiction does not take into consideration the Muslim individual’s nationality when looking at charges. “As long as the charge is said to have occurred within the country, then anyone including Muslim foreign citizens can face action per the Shariah Criminal Offences Enactments,” he said after a preliminary court proceedings in Perak’s Chief Shariah Court.
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THE PRINCIPLE OF LEGALITY IN SHARIAH LAW
by MOHAMMAD HASHIM KAMALI
The principle of legality in crime and punishment is an entrenched aspect of modern constitutional law, and what it basically means is that there shall be no crime and no punishment unless the text of the law says so. Hence no one can be arrested nor punished unless the conduct at issue constitutes a crime under the applied law. Another aspect of the same principle is that of non-retroactivity, which means that the law cannot be applied retroactively to acts which are committed before the law came into force – unless Parliament specifically says so.
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SHARIAH CRIMINAL OFFENCES IN SYNDICATE MARRIAGE FROM THE PERSPECTIVE OF ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984
by Haliza A. Shukor, Intan Nadia Ghulam Khan, Hasnizam Hashim & Nabilah Yusof
Islamic jurisprudence has clearly set forth the laws in regulating matters pertaining to Muslim family institutions. Among the issues related to family institutions is syndicate marriage. According to a report in 2019, 70% of syndicate marriages are regarded as invalid due to its failure to fulfill the pillars of nikah. As such, it attracts various penalties under the Islamic Law Acts/Enactments. By referring to the Islamic Family Law (Federal Territories) Act 1984 (IFLA 1984), there are provisions which can be used to penalise parties who conduct or enter into a syndicate marriage.
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LEGISLATION UPDATE