Rights group Sisters in Islam (SIS) today said the best interests of the child must be the primary concern in all laws, policies and decisions which affect them.
Ahead of a judgement for the 'bin Abdullah' case heard at the Federal Court, SIS in a statement today urged for parties to uphold a child's right to a name, identity and their family.
SIS further urged the Federal Court to duly recognise the man who claims parentage jointly with a child’s mother - in the case of Muslim children born out of wedlock - to be the child's registered father on formal identification documents, instead of 'bin or binti' Abdullah.
"The practice of registering Muslim children surname as 'bin/binti Abdullah' when they are born within six months of the date of marriage leads to serious and unjust repercussions for the children's emotional well-being and future," said SIS.
Under Syariah Law, a child born less than six months after the parents' marriage is considered illegitimate.
The group argued that in such cases, the Muslim child is being punished and labelled "illegitimate" for what is assumed to be the parents' sin of conceiving the child before marriage.
At the same time, SIS also claimed that the biological father is denied the duty to exercise all parental responsibilities, as well as to confirm the rights that the child is entitled to.
"Over the years, SIS has received complaints about the rights of children born out of wedlock, and children conceived out of wedlock but born within a marriage.
"Not just at the time of birth registration, but also (later) when they apply for identity cards, begin school, when they get married and upon the deaths of their parents," SIS said in a statement.
Based on its records, SIS said it recorded a lower number of complaints in 2017 after a Court of Appeal landmark decision that the National Registration Department was not bound to follow a fatwa for children born out of wedlock to be identified with "bin/binti Abdullah" in their official documents.
Instead, the Court of Appeal at the time held that it may be possible to ascribe the father’s name as the child’s surname if the father and mother so agree.
SIS described the initial decision as being one made in the interest of the child and lamented the subsequent appeals filed against it.
"It is therefore unfortunate that this verdict was immediately rejected by conservative Muslim proponents who branded this as a move towards legitimising zina (sexual intercourse outside of marriage).
"The best interests of the child must be the primary concern in all laws, policies and decisions that affect them," said SIS.
"This principle is upheld by Islamic teachings, universal human rights and Malaysia's law-making process.
"To label a child 'illegitimate' and deprive them of their rights and entitlements as a member of a family cannot be justified," SIS further said.
In May 2017, the Court of Appeal allowed the couple and their child in their judicial review to compel the NRD to replace the child’s 'bin Abdullah' surname with the name of the father in the birth certificate.
The NRD, its director-general and the government filed an appeal to overturn the decision.
Chief Judge of Malaya Azahar Mohamed, who presided other a seven-person apex court bench yesterday, said the panel reserved their judgment to a date yet to be fixed as time is needed due to parties having raised issues that require serious deliberation.