PETALING JAYA: A child advocate has lauded the Court of Appeal’s ruling in recognising the legal rights of an illegitimate child.
Lawyer Goh Siu Lim said the ruling was also in line with the Convention of Rights of the Child which Malaysia had ratified.
“One of the objectives of the international agreement is that any decision that is taken must be in the best interests of the child,” she told FMT.
Goh, who is also the Kuala Lumpur Bar committee chairman, said the ruling also recognised that no child should be discriminated against, based on race, religion or gender.
The lawyer, who is also the immediate past president of the Women Lawyers’ Association, said a Muslim illegitimate child in Malaysia was discriminated against if not given the father’s name as surname despite the consent of the biological parents.
“This court decision has given the affected child an identity and it is in accordance with the wishes of the child.”
She said illegitimate children, whether Muslim or non-Muslim, did not have the right of inheritance under existing shariah and civil law.
Goh said this in response to the court ruling censuring the National Registration Department (NRD) which acted outside its powers by using the surname “Abdullah” to register a Muslim child born out of wedlock.
The boy’s biological parents had written to NRD to rectify the matter but the application was rejected.
The three-man bench, which ruled in favour of the parents of the child, also questioned the practice of adding the surname “bin Abdullah” to the names of such children, identifying them as illegitimate to the world.
“We believe Islam does not condone such open and public humiliation of an innocent child,” wrote Justice Abdul Rahman Sebli, one of the three members of the bench, in the 28-page judgment.
Other members of the bench were Tengku Maimun Tuan Mat and Zaleha Yusof.
Rahman also said the Births and Deaths Registration Act 1957 (BDRA) makes no distinction between a Muslim child and a non-Muslim child.
“Section 13A(2) does not say that an illegitimate Muslim child must be treated differently from a non-Muslim child when it comes to the registration of a surname,” he wrote.
The identity of the parents and their child, who is now seven years old, was kept anonymous following an application by their lawyers.
The child was born on April 17, 2010, five months and 27 days after the couple tied the knot on Oct 24, 2009.
This, according to the Islamic lunar calendar, was three days short of the six-month period to legitimise the birth of the child to the couple.
Rahman said although the NRD’s decision to add the name “bin Abdullah” was based on two fatwas issued by the National Fatwa Committee in 1981 and 2003, it was in conflict with Section 13A(2) of the BDRA, which allows the father of the illegitimate child to use his name as the child’s surname.
He said while the fatwa has force of law in shariah jurisprudence, it has nothing to do with the NRD director-general’s statutory duty under the BDRA to register births and deaths in the states of Peninsular Malaysia.
Meanwhile, lawyer Nizam Bashir, who appeared for the parents and child, said the government had filed a leave application to appeal against the Court of Appeal ruling.
“They have filed four legal questions in order to obtain leave from the Federal Court to hear the merits of the appeal,” he said.