Court ruling on illegitimate kids divides Muslims in Malaysia

Civil court rules such kids can take their dad's name, sparking debate over legality of fatwas

A ruling by Malaysia's Court of Appeal that Muslim children conceived out of wedlock can take their father's name has sparked a debate over whether the country's civil court can set aside a fatwa (Islamic edict).

The court decided on Thursday that the National Registration Department (NRD) - which records births and deaths - is bound by civil law to follow this ruling.

Justice Abdul Rahman Sebli wrote in the 29-page landmark judgment: "A fatwa, we reiterate, is not law and has no force of law and cannot form the legal basis for the National Registration director-general to decide on the surname of an illegitimate child."

Conservative Muslims quickly responded that the court's ruling was unconstitutional.

The debate comes amid concern among moderate Malaysian Muslims that their views are being snuffed out by those who lean towards more conservative interpretations of Islam. Just this week, Home Minister Ahmad Zahid Hamidi banned as "deviant" a book of essays by Malaysian public intellectuals on Islam's role in the constitutional democracy.

In the Court of Appeal case, the ruling came about after a Muslim couple in Johor, who had a child five months into their marriage, applied to have the child's name reflect that of her father.

A 2003 Malaysian fatwa declared that a child is considered "illegitimate" and cannot carry the name of the father if the child is born less than six months after marriage. The child would be named "bin Abdullah" or "binte Abdullah" - meaning son or daughter of a servant of Allah - instead of having the father's name in the patronymic convention used by Malaysian Muslims.

Groups like Sisters In Islam (SIS), which champions the rights of Muslim women, lauded the court ruling which would effectively reverse the NRD's policy of naming Muslim children according to the fatwa.

SIS said: "The practice... leads to serious and unjust repercussions on the children's overall upbringing and well-being, including their right to receive maintenance from paternal family members, ability to inherit and not to mention the emotional trauma of having to face social stigma at a very tender age and as they grow up."

But the Mufti of Perak Harussani Zakaria said Muslims are obliged to abide by fatwas. "Islam is the religion of the country, so Islamic laws must be followed. How can they not be bound by it when the individual involved is Muslim?" the influential cleric said.

The Malaysian Muslim Lawyers Association (MMLA) claimed the court's reasoning did not take into account that the legitimacy of children is to be determined by existing state Islamic family law, and not federal powers. Malaysia's Constitution allows for the 13 state governments to administer Islamic matters.

MMLA president Zainul Rijal Bakar called on the federal government to amend the law to "respect Islam as the federal religion" by making "all provisions on the legitimacy of children that are against Islamic law not applicable to Muslims".

There were more than half a million children born out of wedlock between 2005 and 2015, or just over 10 per cent of registered births.

A version of this article appeared in the print edition of The Straits Times on July 29, 2017, with the headline 'Court ruling on illegitimate kids divides Muslims in Malaysia'. Print Edition | Subscribe