QUESTIONS over the right of the government to force names on out-of-wedlock Muslim children arose from a lack of clear constitutional separation between the civil and shariah courts, former attorney-general Abu Talib Othman said.

Abu Talib said the recent ‘bin Abdullah’ controversy can also be put down to indecisive judges who heared child custody cases where at least one parent was Muslim.

“They don’t want to make a clear cut decision. They’re very evasive, that’s why you have conflicting decisions,” he told The Malaysian Insight.

The Court of Appeal, in a landmark judgment on July 27, allowed an appeal by a couple to make the National Registration Department (NRD) director-general replace the patronymic surname of their child from “Abdullah” with that of the child’s father in the birth certificate.

NRD director-general Mohd Yazid Ramli said the department would continue is current practices pending a Federal Court decision on the appeal. 

Malaysian Islamic Development Department (Jakim) director-general Othman Mustapha said it would also continue with its current practice on tracing the genealogy of illegitimate Muslim children, in line with the decision of the National Fatwa Council.

The Malaysian Bar, lawmakers and civil rights groups have condemned both statements, saying they were in contempt of court. 

The country’s longest serving A-G, now 79, also commented on the Law Reform (Marriage and Divorce) (Amendment) [LRA] Bill 2017, which was passed on Wednesday night without a clause that would have defined more clearly the religion of the child following the conversion of one of the parents to Islam.

Minister in the Prime Minister’s Department Azalina Othman, who tabled the bill, denied the bill was rushed through. 

“It is precisely because of this dual system and conflicts that we recommended that the constitution should be amended to clearly state that the civil court shall not have jurisdiction on matters falling within the scope of the shariah court,” said Abu Talib who served as A-G between 1980 to 1983.

He also agreed with the Bar’s statement in condemning the statements by Yazid.

“It is unfortunate that the registrar does not seem happy to accept the judgment. To me, his action is clearly contempt of court. 

“How can you not respect the decision of the court when the government pledged to respect the rule of law,” he said.

Below are excerpts of the interview. 

Q: When Clause 88A was left out  the LRA Bill, the religion of the child following the conversion of one of the parents to Islam has been left unanswered. Don’t you think the law should be less vague on this matter?

Abu Talib: The issue now is that Malaysia recognises a dual judicial system: shariah and civil. It has caused a lot of confusion. To overcome that, when I was attorney-general, I recommended an amendment to the constitution to the effect that the civil court does not have jurisdiction over matters within the jurisdiction of the shariah court. 

Q: But what about cases where one of the parents is not Muslim?

Abu Talib: Well, unfortunately, the judges sitting on these cases are very evasive. They don’t want to make a clear cut decision. They’re very evasive, that’s why you get conflicting decisions. 

Q: Do you think this bill was rushed through? 

Abu Talib: I don’t know. I’d thought they had deliberated on it for a long time. Consulted experts and whatever. That’s what I read in the newspapers. They had consulted shariah judges… there’s a lot of consultation. Jakim conducted a lot of consultation before they came up with the recommendation to amend the law. That’s what I read in the newspapers. 

Q: If they strengthen Islamic laws just like the bill proposed by PAS president Hadi Awang, the amendment to Act 355, doesn’t this present a problem of an expansion of the scope of the shariah court’s jurisdiction?

Abu Talib: It depends on what are the provisions because our country recognises a dual system. Shariah is not as wide as civil. It depends. Like theft. We have provisions that state that if it’s under the civil law, then it cannot apply. But the constitution is very clear what the shariah can apply. It’s limited scope. It’s clearly provided in the constitution. It cannot be expanded if it is against the prohibitions provided in the constitution. 

Q: Sarawakian lawmakers opposed Hadi’s bill, saying they were fearful shariah would be expanded to have its own penal code.  

Abu Talib: I don’t think that would be the case. Islamic law is a state law. The state law cannot go against the federal constitution. There are limits where shariah can be applied. And that’s why, in the ‘bin Abdullah’ case, the (civil)) court says it’s wrong. – August 12, 2017.