Here is a news report from The Star
KUALA LUMPUR: The fatwa that the name of a child's father may not be recorded in the child's birth certificate if the Muslim baby is born within six months of the parents' marriage is not binding on the National Registration Department, a forum here heard.
“The NRD is an administrative body and has no business delving into other matters,” Perlis Mufti Dr Juanda Jaya said at a forum, Ada Apa Pada Nama (What's in a name), organised by Sisters In Islam here yesterday.
The fatwa, made at the third muzakarah (conference) of the Fatwa Committee of the National Council of Islamic Religious Affairs in January 1971, ruled a woman who is illegitimately pregnant is allowed to get married but the man, however, cannot be recognised as the father of the unborn baby, the baby cannot inherit from him, cannot be considered his mahram (close blood relative) and the man cannot be the baby's guardian.
Dr Juanda said the fatwa was not enforceable unless the states concerned gazetted it.
He added that it would be different if the Conference of Rulers ordered the National Fatwa Council to discuss the matter and the fatwa formally endorsed by the rulers.
States that had reportedly gazetted the fatwa are Negri Sembilan (in 2002), Terengganu (2005) and Malacca (2005). The Federal Territory gazetted it in 2001.
Last November, the Terengganu government proposed to allow children born less than six months of their parents' marriage to carry the father's name.
Perlis issued a state fatwa allowing this in 2009.
Dr Juanda questioned a ruling in some states, where a woman wanting to marry must produce her parents' marriage certificate.
He encouraged affected parents to challenge the NRD in court if it refused to record the father's name.
Dr Juanda and Terengganu Syariah Chief Judge Justice Ismail Yahya said a distinction must be drawn between punishing for zina (having sex out of wedlock) and denying a child his nasab (lineage).
When asked whether affected parents from a state where the NRD had refused to record the father's name could get the deed done in Perlis and Terengganu, the two men said “yes”.
Fellow panellist Nizam Bashir, a civil law and syariah law practitioner, said the NRD practice contravenes Articles 5 and 8 of the Federal Constitution, which give a child the right to life, privacy, identity to equal treatment under the law and to non-discrimination."
End of article.
My comments begin here :
Dr Juanda Jaya, a Sarawakian, is the very young and outspoken Mufti of Perlis, similar to his predecessor Dr Mohd Asri Zainal Abidin.
Nizam Bashir, originally from Malacca is a lawyer who is now practising in Kuala Lumpur. Both Dr Juanda Jaya and Nizam Bashir are also members of a Quranic Studies group on Facebook which I moderate.
First of all Dr Juanda Jaya, Nizam Bashir and Terengganu Syariah Chief Judge Justice Ismail Yahya should be congratulated because they are speaking up to defend the rights of innocent children to have their father's names properly recorded in their Birth Certificates.
The issue here is that some of the religious authorities do not want babies who are born six months or less from the date of their parents marriage to be recognised as legitimate children. They want to label these children 'illegitimate'.
In other words they want to punish innocent babies if they had been conceived before their parents got legally married. This is typical of the confused version of religion that some of these religious people uphold. To me this is a very cruel thing to do to innocent babies. I think this is also why the Mufti, the Chief Syariah Judge and the lawyer were speaking up at this forum.
Needless to say, the Quran does not say any such thing. This is just another example of extra Quranic ideas that have crept into their religion from outside the Quran.
Any decent human being with civilised views will agree that it is most unfair to punish innocent babies who have absolutely no say over when or how they were conceived by their biological parents.
I am glad that enlightened Muslims like the Mufti Of Perlis Dr Juanda Jaya, Terengganu Syariah Chief Judge Justice Ismail Yahya and Nizam Bashir are standing up for the rights of the innocent babies. Here is that paragraph again :
"Dr Juanda and Terengganu Syariah Chief Judge Justice Ismail Yahya said a distinction must be drawn between punishing for zina (having sex out of wedlock) and denying a child his nasab (lineage).
When asked whether affected parents from a state where the NRD had refused to record the father's name could get the deed done in Perlis and Terengganu, the two men said “yes”.
The Star also reports on Dr Juanda : "Dr Juanda questioned a ruling in some states, where a woman wanting to marry must produce her parents' marriage certificate. He encouraged affected parents to challenge the NRD in court if it refused to record the father's name."
And also the statement by the lawyer Nizam Bashir : "Fellow panellist Nizam Bashir, a civil law and syariah law practitioner, said the NRD practice contravenes Articles 5 and 8 of the Federal Constitution, which give a child the right to life, privacy, identity to equal treatment under the law and to non-discrimination."
What is being argued here is not Islam per se but the F'iqh (pronounced 'fake' in English) or Fiqah in Malay. Fiqh means jurisprudence. I do not know how many more centuries it is going to take for Muslims to realise that it is high time they critically re examine the Fiqh or jurisprudence that often makes their lives so difficult.
This is what the Mufti of Perlis, the Terengganu Syariah Chief Justice and Nizam Bashir were really trying to grapple with at that forum. The problem is not just a 'Made in Malaysia' fatwa dating back to just 1971. 1971 was just yesterday.
If the Muslims really want to progress (and get closer to the real Islam that is found in the Quran) they have to question the very sources of these Fiqh or jurisprudence. They will have to go back six hundred years, eight hundred years or a thousand years and critically re-examine what was written down at that time. Because that is the time period in Islamic history when all these strange ideas first began to be written down. Mesti ada satu penilaian semula.
Sometimes the Fiqh is downright nasty. For example please read this part of the news report again carefully. The Fiqh actually legalises incest. Here it is :
"The fatwa, made at the third muzakarah (conference) of the Fatwa Committee of the National Council of Islamic Religious Affairs in January 1971, ruled a woman who is illegitimately pregnant is allowed to get married but the man, however, cannot be recognised as the father of the unborn baby, the baby cannot inherit from him, CANNOT BE CONSIDERED HIS MAHRAM (CLOSE BLOOD RELATIVE) and the man cannot be the baby's guardian."
What it means is that a baby girl (for example) that is born out of wedlock or is conceived before the parents got married is deemed illegitimate. Because the baby is deemed illegitimate therefore the baby is not recognised as the lawful child of the baby's own biological father.
Because the baby girl is not recognised as the lawful child of its own biological father, therefore when the baby girl grows up, it is lawful - according to the fiqh of the Madhab of Shafie (the Syafie sect) - for the biological father to marry and have sexual intercourse with his own illegitimate daughter.
This is exactly what is meant by the fatwa passed by the Fatwa Committee of the National Council of Islamic Religious Affairs in January 1971 when they said that the illegitimate daughter "CANNOT BE CONSIDERED HIS MAHRAM (CLOSE BLOOD RELATIVE)".
It is lawful under the Fiqh of the Shafie Sect (Madhab Syafie) for a man to marry his own biological but illegitimate daughter.
I first heard about this really incredible Fiqh of Imam Syafie from my wife who studied Law at the International Islamic University in the early 90s. I was shocked.
The English dictionary definition of incest is as follows :
1. sexual intercourse between closely related persons.
2. the crime of sexual intercourse, cohabitation, or marriage between persons within the degrees of consanguinity or affinity wherein marriage is legally forbidden.
Folks, I think we all know what this means. You cannot have sexual intercourse with your father, mother, brother, son, daughter, sister, uncle, aunty and so on. And you dont have to be a Muslim to know this. Even if you are half civilised I think you will know this.
And all this is already inside the Quran. This English dictionary definition of incest that I quote above is no different from the Quran's definition of people with whom you should not marry or have sexual intercourse. Here is the Quran :
Surah 4:22 Do not marry the women who were previously married to your fathers - existing marriages are exempted and shall not be broken - for it is a gross offense, and an abominable act.
Surah 4:23 Haram for you are your mothers, your daughters, your sisters, the sisters of your fathers, the sisters of your mothers, the daughters of your brother, the daughters of your sister, your nursing mothers, the girls who nursed from the same woman as you, the mothers of your wives, the daughters of your wives with whom you have consummated the marriage - if the marriage has not been consummated, you may marry the daughter. Also haram for you are the women who were married to your genetic sons. Also, you shall not be married to two sisters at the same time - but do not break up existing marriages. GOD is Forgiver, Most Merciful.
Here the Quran refers to the biological relationship. It is incest if you have sexual relations or marry with anyone as per the list above.
It does not refer to a piece of paper known as a "legal" marriage certificate issued according to the Fiqh of any Madhab, or whether the baby was born six months or less from the date of the parents' marriage acording to the same Fiqh of the same Madhab.
If you are the biological father of a baby, it means you are the father. You cannot deny that at all.
Even without the Quran many civilisations already know this. The Chinese still have the belief that couples who share the same surname should not marry each other. A 'Wong' cannot marry a 'Wong' even though they are not biologically related. The reason they do this is because they wish to avoid any risk of incestuous relationship.
Why are people so afraid of incest? Why does the Quran make incest haram in the two verses quoted above?
Because we all know that incest causes biological problems in the offspring. It is also called "in breeding". Creatures (humans and animals) that are born of in breeding can suffer various genetic disorders.
The famous case was the inbreeding among the Royal families of Europe in the 19th century. Royal cousins from Queen Victoria's household kept marrying their royal cousins in Russia, Prussia and Spain. Although not incestuous it really restricted their gene pool. Quite a few of them suffered haemophilia - a hereditary genetic disorder which was passed by marrying close cousins and relatives. Their blood would not clot. In worse cases they would suffer bleeding through the ears, nose etc and die.
But according to the Fiqh of Imam Shafii, it is ok for a father to marry and have sexual intercourse with his own biological daughter - as long as the Fiqh says his daughter is illegitimate.
That is why I always keep saying - the Muslims must return back to the true Islam which is inside the Quran. If the Muslims keep abandoning the Quran (by ignoring it, by not reading and understanding it, by listening to the confused religious scholars' fairy tales) then that is how long we will need silly, time wasting public forums where we have to fight for the right to write a father's name on a simple birth certificate.
Orang lain dah naik ke langit, dah belah bulan. Kita pula nak isi borang "Birth Certificate" pun tak tahu.
Surah 25:30 "The messenger said, "My Lord, my people have deserted this Quran."
Indeed the Muslims have deserted the Quran
