THE Court of Appeal’s decision to allow a Muslim child conceived out of wedlock to take on the father’s name has drawn polarising reactions, with a civil lawyer insisting that the fatwa on the matter is not binding and a mufti saying civil courts should abide by the fatwa in cases involving Muslim families.

Constitutional lawyer Syahredzan Johan said the appellate court’s decision was “correct and on point” as it was a civil court with jurisdiction to decide on the matter.

He said the National Registration Department (NRD) was a government body and not an Islamic one, therefore, it was not bound to the fatwa disallowing children conceived out of wedlock to bear their father’s name.

“Fatwas are not binding. They are more advisory or persuasive in nature.

“If NRD wants to adopt the fatwa, it is an administrative decision. But, it cannot overwrite constitutional and legal provisions and considerations.

“Now, with the court’s decision, it has no choice but to follow the ruling,” he told The Malaysian Insight.

Yesterday, it was reported that justice Abdul Rahman Sebli, who wrote the unanimous decision by a three-man bench, said the jurisdiction of the NRD director-general was a civil one, bounding the latter to civil law.

This means NRD is to refer to Section 13A(2) of the Births and Deaths Registration Act when making decisions relating to a child’s surname.

The ruling, which covers both Muslim and non-Muslim children conceived out of wedlock, was made in an appeal involving a 7-year-old child born five months and 24 days (or five months and 27 days according to the Islamic Qamariah calendar) after his parents married.

The child was registered with NRD two years after birth and the parents jointly applied to have “MEMK” named as the father, but the department registered the child as “bin Abdullah” instead.

Muftis, however, insist that the matter falls under the fatwa as it involves Muslims.

Penang Mufti Dr Wan Salim Wan Mohd Noor said Islamic authorities had to heed the decision made by the National Fatwa Committee several years ago on the matter.

According to the decision, which was gazetted and approved by the Yang Di-Pertuan Agong, children born to Muslim mothers fewer than six months from the date of marriage are considered to be conceived and born out of wedlock.

Wan Salim said fatwas should be respected by all parties, even civil courts, as the matters they covered involved religion.

“If it is a matter involving Islam and Muslims, like this, we should follow the fatwa.

“As far as the state Mufti Department is concerned, we have to follow the decision made at the national level.

“We cannot make our own decisions. It will cause confusion,” he told The Malaysian Insight.

But, Syahredzan said there was no confusion in the case, adding that national fatwas were less potent in individual states.

“National fatwas are not binding unless adopted by states as religion is a state jurisdiction.

“While it can be an offence for Muslims not to follow fatwas, NRD is not a person who professes Islam. It’s a government department.”

Parit Buntar MP Dr Mujahid Yusof Rawa noted the views of both sides, saying he had reservations on the issue.

“We need to understand how the court came to the decision that the child can carry the father’s name, although in Islam, a baby has to be born six months from the date of their parents’ marriage to be considered legitimate.

“A child born fewer than six months from their parents’ marriage raises doubt and suspicion,” he said, adding that there were cases of couples quickly tying the knot after discovering they were expecting.

He said there were also many cases of babies born out of wedlock, and due to shame, their mothers left them to be adopted, leading to the children being registered with the surname “Abdullah”.

“In this case, I assume the court has reasons behind its ruling to let the child, whose birth came early, bear the father’s name.”

The Amanah vice-president acknowledged that the issue was a sticky one, with the fatwa prohibiting illegitimate children from taking on their father’s name.

“The reason for the fatwa is also to protect the institution of marriage.

“How will the authorities coordinate? Is there a caveat for this?”

Penampang MP Darrel Leiking said parents should not be denied their rights to care for their children.

“In this instance, the parents should also not be divided by registration laws and the fatwa.

“Every parent needs to care for their child, and denying the child the right to take on their father’s surname could be damaging for them in the future,” said the Parti Warisan Sabah deputy president.

Sabah DAP secretary-general and Sri Tanjong assemblyman Chan Foong Hin said: “When Sabah and Sarawak joined, it was not because we wanted to form an Islamic country.

“However, we do respect Islam as the nation’s official religion.

“The Court of Appeal has made it clear that civil law must be abided by.” – July 28, 2017.