A prominent Muslim lawyer has described the Court of Appeal's landmark decision that children conceived out of wedlock can be registered with their father's name, as "simplistic" and could potentially destroy the Muslim family institution. 

In a statement, Muslim Lawyers Association president Zainul Rijal Abu Bakar said this was based on his study of the judgement by Justice Abdul Rahman Sebli, that jurisdiction of the National Registration Department (NRD) director-general is a civil one and is confined to determine whether the father had fulfilled the requirements of Section 13A(2) of the Act.

"The simplistic approach to only consider powers under the Act could trigger various polemics and destroy a Muslim family institution. 

“The Act cannot be read separately with other laws, including the Federal Constitution and other existing Islamic laws,” he stressed. 

Among others, Zainul cited definitions of a child’s legitimate status under Section 110 to Section 119 of the Islamic Family Law (Federal Territory) Act 1984 as provisions that should serve as a guide for other related laws. 

“This is because the Islamic Family Law is a specific law for Muslims, while the Births and Deaths Registration Act 1957 is a more general law,” he said. 

Zainul, as such, called on the federal government to amend the Births and Deaths Registration Act 1957 to respect the position of Islam as the religion of the federation, in line with Article 3 of the Federal Constitution. 

This is apart from exempting Muslims from certain provisions of the Act which goes against Syariah law.  

“All provisions on the legitimate status of a child which contradicts Syariah law must be amended as to not be applicable to Muslims,” he said. 

At the same time, he also questioned the constitutionality of Section 13 under the Births and Deaths Registration Act 1957 as cited in the grounds of judgement, arguing that impact of the decision will touch on matters that are under the jurisdiction the states and Syariah Court. 

“I raise the question whether Section 13A of the Act is constitutional because the issue on a child’s legitimate status is under the jurisdiction of the state through state laws. 

“Although it was explained in the judgement that it is only confined to matters related to registration, the impact will still touch on the child’s legitimacy status, inheritance and other matters that undeniably are under the jurisdiction of the Syariah Court,” said Zainul. 

The ruling was made in an appeal involving a seven-year-old child, who was born five months and 24 days (or five months and 27 days according to the Islamic Qamariah calendar) after his parents married.

On a related matter, Perak mufti Harussani Zakaria had reportedly expressed outrage over the decision, which also stated that an edict by the National Fatwa Committee does not have the force of law. 

“What has the court decided? Why is it opposed to the Constitution? 

“It has already been decided by a fatwa, (so) why didn’t the court follow the fatwa ruling?,” he was quoted as saying by NGO Ikatan Muslimin Malaysia (Isma) on its website. 

Harussani also insisted that Islamic laws will remain supreme and all Muslims are obliged to abide by the laws, even under circumstances where it had been rejected by “worldly laws”. 

“Islam is the religion of the state, so Islamic laws must be followed, furthermore in cases involving Muslims. 

“How can they (the court) say it (fatwa) does not apply when the individuals involved are Muslims?” he stressed. 

In 2003, the National Fatwa Committee had decided 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.

The government is appealing the decision at the Federal Court.