WAFIQ believes that the best interests of a child should be for him or her to have a legitimate father and mother, and to be born with love and with utmost respect for Islamic values within the family.
The essence of having biological parents recognized by law should be the paramount consideration as it is grounded on the sense of taking responsibility and reflecting maturity of the hopeful parents with secured future of their children.
WAFIQ reiterates that we need to continue to emphasize this message to the society to tackle the root cause rather than “curing the symptoms”, particularly by conveniently amending the laws and by extension the religious edicts or fatwa vaguely on the pretext of “protecting the best interests of the child”.
The recent case of a biological father applying to have his illegitimate Muslim child ascribed to his name instead of bin Abdullah is referred to and of relevance.
WAFIQ is concerned with the calls to amend laws that insofar have caused no problems to the majority of the public who have complied with local culture and religious values. Furthermore, the Births and Deaths Registration Act 1957 has been all these while assisting our National Registration Department (NRD) in recording actual facts with full objectivity without prejudices.
WAFIQ therefore welcomes the decision of the Federal Court having ruled that Section 13A(2) of the BDRA has no application to the Malay naming system and that to name an illegitimate child to the biological father on the basis it is a surname of the father pursuant to section 13A, as previously held by the Court of Appeal, is without basis either legally, factually and linguistically.
The Federal Courts have rightfully reached the decision by referring to the three experts’ views namely Associate Professor Dr Kassim Thukiman, Associate Professor Dr Mohd Rosli Saludin and Professor Dr Teo Kok Seong.
It is a generally well accepted notion that Muslims in this country are subjected to the laws enacted by the Parliament as well as Islamic State laws enacted by the Legislature of each state, consistent with Item 1 of the Ninth Schedule, List II, State List of the Federal Constitution.
Therefore, WAFIQ also applauds the Federal Court decision that the NRD has acted and exercised its discretion reasonably by referring to the Islamic Law on Legitimacy. This important principle not only concerns the case of legitimacy, but also has considerable bearing over various other issues such as Female Circumcision, Abortion and Sex Reassignment Surgery.
WAFIQ acknowledges that there have been criticism leveled against reference to fatwas and Islamic laws by the Ministry of Health and the NRD pertaining the said issues, with some arguments based on secular principle in policy making and governance.
However, it must be impressed that the complexity of the case should be a reminder to society to not take zina lightly and that the best interests of children would be better served by implementing concerted efforts in curbing zina and sex outside wedlock.
Furthermore, the NRD is correct in documenting the actual record that helps explain lineage. Lineage should not be ‘obscured’ through manipulations of registration procedure. If it is not documented properly then the family would have to rely on words of mouth to explain about lineage instead of having a conclusive proof thereof from the relevant authorities.
Assoc. Prof. Dr Rafidah Hanim Mokhtar
International Women’s Alliance for Family Institution & Quality Education