landmark ruling this week allowing a Muslim child the right to bear his father’s name though he was conceived before his parents married has once again exposed the conflict between civil and Muslim laws in Malaysia.KUALA LUMPUR, July 29 ― The Court of Appeal’s
Perak Mufti Tan Sri Harussani Zakaria was reportedly outraged by the appellate court decision, claiming it had gone against the Federal Constitution which recognises Islam as the religion of the federation and should have followed a 2003 National Fatwa Committee’s decision on Muslim children conceived out of wedlock.
Harussani went on record to say that Muslims are obliged to obey Islamic laws even if “worldly laws have rejected them”.
This throws up two questions: Are civil courts legally bound to obey fatwas? Secondly, can or should civil laws be amended to be Shariah-compliant, failing which Muslims should be exempted from them?
Three Muslim lawyers responded to Malay Mail Online’s query for their views on this thorny subject.
“A fatwa is a legal opinion on a matter which is in controversy or which is connected to hukum syarak. As for whether a civil court is legally obliged to give credence to a fatwa, strictly speaking the fatwa ought to be gazetted first for it to be considered law, which the civil court must enforce.
“In the present instance, the national fatwa was not gazetted and seemed to conflict even with a state enactment on the issue,” said Nizam Bashir.
He agreed that there may be some civil laws and Shariah laws which conflict with one another, and believes that effort must be made to harmonise the laws.
“This does not mean that Muslims are entitled to disregard laws which may continue to apply to regulate a particular situation in spite of that conflict,” he added.
Lawyer Latheefa Koya chose to limit her comments to the case at hand and told Malay Mail Online that the Court of Appeal was right to say the National Registration Department (NRD) ― which was the respondent in the appeal case initiated by the parents of the affected seven-year-old Muslim child ― cannot be bound by such fatwas.
“There is nothing Islamic about fatwas denying a child to live with dignity. In this case, parading him through his birth certificate as an illegitimate child has absolutely nothing to do with Shariah here,” she said.
She explained that a birth certificate is a “modern tool” for identification and certifying one’s birth as a citizen of a nation state, which she added is also a modern concept.
“For the Perak mufti to insist that a ‘fatwa’ that will end up punishing the child, is not only cruel and unjust but unIslamic. It’s a gross abuse under the name of religion,” Latheefa said.
She said fatwas must and should take into account broader views.
“There is no justification to make such pronouncement and claiming to be Islamic and therefore all Muslims are bound,” she said, referring to Harussani’s reported remark that all Muslims are bound by fatwas.
Latheefa also noted the NRD’s latest statement in the wake of the landmark judgment that it would continue with its practice of not letting Muslim children bear their father’s name if they were born less than six months into a marriage.
She noted that the appellate court order is binding, adding that she did not recall the NRD requesting for a stay of judgment pending its challenge to the Federal Court.
“It’s unprecedented and it’s illegal for a government department to refuse to comply with a court order and thus defy. It's an inexcusable public defiance,” she said.
Fahri Azzat also shared Latheefa’s view.
“They have basically announced that they are going to behave illegally. They are not interested in obeying the law but a Fatwa Committee. Their statement shows a complete lack of respect for the law and due process,” he said.
He called on the NRD director-general to resign from his position “for issuing a statement that is in defiance of the law”.
The majority of Muslims in Malaysia, like elsewhere in the world, do not have surnames but use patronyms instead, ie, the child takes on the father’s name.
But 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.
This essentially means that Muslim children conceived out of wedlock here will have a “bin” or “binti Abdullah”, or any of the other 99 names attributed to Allah as their last name. And this often invites questions, even ridicule from others, on the child’s parentage.