KUALA LUMPUR, Sept 9 — The Births and Deaths Registration Act 1957 (BDRA) that allows an illegitimate child to bear the father’s name applies to all Malaysian citizens including Muslims, lawyer Ahmad Munawir Abdul Aziz said today.
Ahmad Munawir, who practises both civil and Shariah law, pointed out that other legislations, like the Adoption Act 1952 and the Law Reform (Marriage and Divorce) Act 1976, specifically state that they do not apply to Muslims.
“The Births and Deaths Registration Act doesn’t state, which means it applies to Muslims; it applies to all Malaysian citizens,” Ahmad Munawir told a forum organised by Muslim women’s group Sisters in Islam here titled “Illegitimate children: Bin Abdullah — Between stigma, rights and religion”.
He also said he did not believe the BDRA should be amended to exclude application to Muslims, noting that there is a diversity of opinion among jurists in the religion on whether a child conceived out of wedlock can receive the father’s name.
“Islamic law, Islamic family law, has always been concerned with the welfare of the child. The paramount concern of the courts has always been the welfare of the child,” he said.
Section 13A(2) of the BDRA states “the name, if any, to be entered in respect of an illegitimate child may, where the mother is the informant and volunteers the information, be the name of the mother; provided that where the person acknowledging himself to be the father of the child, in accordance with Section 13 requests so, the name may be the surname of that person.”
Section 13 of the same Act also states “notwithstanding anything in the foregoing provisions of this Act, in the case of an illegitimate child, no person shall, as a father of the child, be required to give information concerning the birth of the child, and the registrar shall not enter in the register the name of any person as the father of the child except at the joint request of the mother and the person acknowledging himself to be the father of the child, and that person shall, in that case, sign the register together with the mother.”
Ahmad Munawir also pointed out that the court currently hearing the case of a seven-year-old Muslim child born less than six months from the date of his parents’ marriage, who is seeking to bear his father’s name instead of the “bin Abdullah” patronym, was a civil court.
“They are not in a position to interpret Islamic law,” said the lawyer.
The Federal Court yesterday granted leave to the National Registration Department (NRD), its director-general and the Government of Malaysia to appeal against an appellate court ruling allowing a Muslim child conceived out of wedlock to carry the father’s name.
“The child should not be punished for the sins of the parents,” said Ahmad Munawir.
Former Terengganu Mufti Datuk Ismail Yahya, who also spoke at the forum, said the "fatwa" (religious edict) by the National Fatwa Committee that the NRD had cited in its decision to ascribe the child the "bin Abdullah" patronym in defiance of the parents' wishes to give the child his father's patronym, did not follow Islamic rules.
"The opinions of contemporary experts like Dr Abdul Karim Zaidan and Prof Dr Wahbah Al-Zuhayli must be taken into account," he said.
"The Court of Appeal's decision was correct."
In 2003, the National Fatwa Committee declared that a child conceived out of wedlock (“Anak Tak Sah Taraf”) cannot carry the name (“tidak boleh dinasabkan”) of the person who claims to be the father of the child, if the child was born less than six months of the marriage.