JULY 28 — Referring to the latest polemic following the ruling of the Court of Appeal decision that allowed the appeals of an illegitimate child of Muslim couples to ascribe to his or her father’s surname instead of using ‘bin or binti Abdullah’:

There are several basic issues that need to be understood before we get carried away debating this matter based on sentiment and emotion:

1. The Islamic law, in the case of naming the child conceived out of wedlock, is very clear as stated in the Syarak (Islamic Law) Guidelines on the Naming and Status of a child conceived out of wedlock ("Anak Tak Sah Taraf”) as decided and issued by the 44th Muzakarah of the Fatwa Committee, of the National Council for Islamic Affairs (MKI) on June 25, 1998.

2. According to the guidelines, a child conceived out of wedlock (Anak Tak Sah Taraf) shall ascribe to Abdullah or other names of Asma Al-Husna (99 names of Allah) that started with ‘Abdul’ as his or her surname.

This is due to the fact that Islamic Law and Maqasid Syariah are very concerned on the preservation of ancestry that will give effect to other laws pertaining to the aspect of legality of association, guardianship, division of inheritance, marriage, maintenance and others.

3. The general public see the recent Court of Appeal’s decision solely based on the legal point of view and perspective of Civil Law without taking into account of the spirit of the Syariah principles and Sharia Maqasid.

4. At the same time, we must also understand and acknowledge the limitations of the fatwa issued by the Muzakarah of the Fatwa Committee, of the National Council for Islamic Affairs, at the national level which does not have the legal binding power because the religious authority as enshrined in the Constitution, is the power of the states.

5. However, the fatwa that have been decided by the state committee after the approval of the Sultan and subsequently gazetted, still need to be taken into account when the dispute has any relation with the Islamic Law that had been passed under the purview of the state according to the Ninth Schedule of Article 74 of the Federal Constitution.

6. More importantly, when it involves the interests of Muslims, the court has legal, religious and moral obligations to refer to the Islamic law.

7. The individual rights of the disputing parties should also be taken into consideration by the Civil Courts. Government agencies such as the National Registration Department must act as an agency to implement all legal laws including those relating to Islamic law.

8. The fatwa issued by the Muzakarah of the Fatwa Committee of the National Council for Islamic Affairs, and gazetted at the federal and state levels is a valid Islamic law and should be used as a reference and guide in making judgments involving the overall interest of Islam.

This is also to uphold the spirit of the Federal Constitution that places Islam in the highest position as the Religion of the Federation as set out in Article 3.

9. Therefore, it is very desirable for the Attorney-General to represent the federal government and its agencies, especially the Attorney-General’s Chambers to raise this case for appeals at the Federal Court.

10. Holistic debate should also be made, to evaluate this case without ever turning away from the laws and principles of Islam that have been the core of the country thus far as it is firmly enshrined in the Federal Constitution.

* Datuk Asyraf Wajdi Dusuki is Deputy Minister in the Prime Minister’s Department (Religious Affairs).

** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.