SOLV­ING THE ’BIN AB­DUL­LAH’ DILEMMA

New Straits Times - - Letters -

IN Is­lam, mar­riage is re­garded as an im­por­tant in­sti­tu­tion, which as­cribes, in­ter alia, the pa­ter­nity and identity of child, among oth­ers. Adul­tery and for­ni­ca­tion are con­sid­ered de­spi­ca­ble, and a heavy pun­ish­ment is pre­scribed, namely, death penalty and hun­dred lashes, re­spec­tively. All le­gal schools of Is­lam are unan­i­mous that the min­i­mum ges­ta­tion pe­riod is six months.

The Syariah Crim­i­nal Of­fences (Fed­eral Ter­ri­to­ries) Act 1997 pro­vides that a woman who gives birth to a fully de­vel­oped child within a pe­riod of six qa­mariah months from the date of her mar­riage shall be deemed to have been preg­nant out of wed­lock.

If a child is born less than the afore­said pe­riod, or a child is born out of wed­lock, the lin­eage is not es­tab­lished to the pu­ta­tive fa­ther.

Hence, Is­lam em­pha­sises le­git­i­mate off­spring from a valid mar­riage, where in a child will have rights, such as the right to in­herit, main­te­nance, the fa­ther’s right to act as a guardian of the child and prop­erty un­til ma­tu­rity, as well as pro­hi­bi­tion of its mar­riage with his sib­ling, among oth­ers.

Fur­ther, birth regis­tra­tion and the right to a name and na­tion­al­ity is a civil right of ev­ery child as pro­vided in na­tional and in­ter­na­tional in­stru­ments, such as the United Na­tions Con­ven­tion on the Rights of the Child, which Malaysia rat­i­fied in 1995 and the Child Act 2001, among oth­ers.

An il­le­git­i­mate child can only be re­lated to his mother and has no re­la­tion­ship with the bi­o­log­i­cal fa­ther.

The Is­lamic Fam­ily Law (Fed­eral Ter­ri­to­ries) Act 1984 pro­vides that the cus­tody of il­le­git­i­mate chil­dren ap­per­tains ex­clu­sively to the mother and her re­la­tions.

Even the cit­i­zen­ship sta­tus of the il­le­git­i­mate child de­pends on the cit­i­zen­ship of the mother. An il­le­git­i­mate child can still be ac­knowl­edged by the fa­ther pur­suant to the Le­git­i­macy Act 1961 pro­vided that cer­tain con­di­tions set therein are ob­served.

This act, how­ever, does not ex­tend its ap­pli­ca­tion to Mus­lims.

The con­flict be­tween civil and Is­lamic law has resur­faced with the re­cent Court of Ap­peal rul­ing that al­lowed an il­le­git­i­mate child born to a Mus­lim cou­ple to use his bi­o­log­i­cal fa­ther’s name as the sur­name.

This runs con­trary to the fatwa is­sued by the Na­tional Fatwa Com­mit­tee of the Na­tional Coun­cil for Is­lamic Af­fairs in 2003, which pro­vides, in­ter alia, that a child con­ceived out of wed­lock can­not be as­cribed the name of his fa­ther, but must be as­cribed the sur­name “Ab­dul­lah”. This is so even when his par­ents had al­ready been legally mar­ried at the time of his birth.

The court noted, in­ter alia, that the Births and Deaths Regis­tra­tion Act

1957 (BDRA) makes no dis­tinc­tion be­tween a Mus­lim child and a nonMus­lim child; the act does not say that an il­le­git­i­mate Mus­lim child’s sur­name must be “bin Ab­dul­lah”; a fatwa can­not pre­vail over the BDRA, which is a fed­eral law; there is noth­ing in the act that en­vis­ages the ap­pli­ca­tion of any sub­stan­tive prin­ci­ple of Is­lamic law in the regis­tra­tion process and that the Na­tional Regis­tra­tion De­part­ment (NRD) di­rec­tor-gen­eral’s ju­ris­dic­tion is a civil one and he is not ob­li­gated to ap­ply, let alone to be bound bya fatwa is­sued by a re­li­gious body.

The de­ci­sion was also partly grounded on the ba­sis that the child has the right to live with dig­nity, an in­vi­o­lable right of ev­ery in­di­vid­ual.

As­crib­ing “bin Ab­dul­lah” to a Mus­lim child born out of wed­lock in the of­fi­cial doc­u­ments, such as a birth cer­tifi­cate and iden­ti­fi­ca­tion card, car­ries a stigma where the in­no­cent child would be sub­jected to hu­mil­i­a­tion, em­bar­rass­ment and pub­lic scorn for the rest of his life.

It is note­wor­thy that this coun­try as­cribes to a “mixed le­gal sys­tem” or “plu­ral­is­tic sys­tem”, namely, the com­mon law sys­tem and Is­lamic le­gal sys­tem, and this is sanc­tioned by ar­ti­cle 121(1A) of the Fed­eral Con­sti­tu­tion. Both sys­tems func­tion within the lim­its set by the Con­sti­tu­tion and there is no one sys­tem su­pe­rior to the other. Hence, the fatw a,a for­mal le­gal opin­ion given by syariah ex­perts with ref­er­ence to au­thor­i­ties from Is­lamic text should not be side­lined.

One pos­si­ble so­lu­tion to the is­sue sur­round­ing the regis­tra­tion of a Mus­lim child born out of wed­lock is by way of amend­ment to the Births and Deaths Regis­tra­tion Act.

It is re­it­er­ated that an il­le­git­i­mate child un­der Is­lamic law is not at­trib­ut­able legally to his bi­o­log­i­cal fa­ther and this rul­ing can­not be al­tered by a mere ar­gu­ment of pos­si­ble stigma an in­no­cent child would be sub­jected to.

In the mean­time, un­less a stay of ex­e­cu­tion is ob­tained against the Court of Ap­peal’s de­ci­sion pend­ing its de­ter­mi­na­tion on ap­peal by the apex court, the NRD has to ex­e­cute the or­der therein. Any fail­ure to com­ply with the court de­ci­sion may be in con­tempt.

PRO­FES­SOR DR ASHGAR ALI ALI MO­HAMED

In­ter­na­tional Is­lamic Univer­sity Malaysia

One pos­si­ble so­lu­tion to the is­sue sur­round­ing the regis­tra­tion of a Mus­lim child born out of wed­lock is by way of amend­ment to the Births and Deaths Regis­tra­tion Act.

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