Uphold the child’s right to a name, identity and family

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Sisters in Islam (SIS) urges the Federal Court to duly recognise the man who claims parentage jointly with a child’s mother, to be registered father of the child and for the child to be given his surname.

The practice of registering Muslim childrens’ 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 wellbeing and future. The Muslim child is being punished and labelled “illegitimate” for what is assumed to be the parents’ sin of conceiving the child before marriage, and the biological father is denied the duty to exercise all parental responsibilities and to confirm the rights that the child is entitled to.

Over the years, SIS has received complaints over 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 at the time when they apply for identity cards, begin school, when they get married and upon the deaths of their parents.

While we have noticed a pronounced increase in the number of these cases in 2015 (23%) and 2016 (38%), we have also observed a drop in complaints in 2017 (19%). This correlates to the year that the Court of Appeal issued a landmark decision that the National Registration Department was not bound to follow the fatwa on children born out of wedlock by adopting the “bin/binti Abdullah” in the naming of such children in their birth certificates and identification cards. Instead, the court held that it may be possible to ascribe the father’s name as the child’s surname, if the father and mother so agree.

This decision was issued on the grounds of compassion and in the interest of the child. This decision also supports the dominant opinion in classical fiqh relating to paternity, which allows a man to admit paternity of a child born out of wedlock through the procedure of irqar (ie he acknowledges that the child is his).

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). Ignoring the court decision, the National Registration Department said it would continue to register such births as “bin/binti Abdullah” and proceeded to file an appeal to the Federal Court.

The best interests of the child must be the primary concern in all laws, policies and decisions that affect them. 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.

The Quran states that no one bears the burden of another nor passes one’s burden to another (Surah Fatir, verse 18). This injunction should guide us towards compassionate care and enable us to fulfil our obligation to always provide for the best interests of the child. This is also in line with the merciful and compassionate spirit of Islam which extends to all beings or “Rahmatan lil Alamin” as promoted by Mujahid Yusof Rawa.

Some classical jurists are deeply concerned with the need to protect a child against the stigma of illegitimacy. They went as far as setting the possible duration of pregnancy as long as seven years under the Maliki school of law and four years under the Shafie school.

SIS is disturbed by the continuing discriminatory and unjust rulings governing the personal status of Muslims in this country. Given all the social problems disproportionately affecting the Muslim community, enforcing the fatwa leads to more emotional and social harm to the children. It also affects their status in the family and society.

This discriminatory practice towards Muslim children also violates a child’s right to a name, an identity and family, thereby constituting a violation of Article 8 of the Convention on the Rights of the Child (CRC) that Malaysia ratified in 1995.

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