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UN panel queries why Fatwas now override civil laws
Published on: Thursday, February 22, 2018

Kuala Lumpur: The Malaysian Government should state the legality of Islamic edicts or fatwas and why they take precedence over civil laws despite not being legally binding, a United Nations (UN) committee has said.

The question was posed by Ruth Halperin-Kaddari, the Vice-Chair of the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) committee in Geneva, Switzerland during a review of Malaysia's progress on women's rights which was broadcast live.

The committee had referred to the National Registration Department's (NRD) refusal to allow Muslim children born within six months of their parents' marriage, to take their father's names and instead using the "bin Abdullah" suffix often associated with illegitimate children.

It pointed out that if the child cannot take the father's name, it would also mean that she may not be conferred with Malaysian nationality — thus contravening Article 9 of CEDAW that regulates equal rights on nationality.

"Why does the government not abide by the state laws that obligates the registration of every child upon birth, and conferring nationality, when it is a Malaysian man [who is the father]?

"And why does the government with administrative powers over the national registration department, prefer the religious fatwa rather than the civil law?" Halperin-Kaddari asked.

She also questioned the Malaysian delegation if the situation would change following the landmark Federal Court's verdict in the M. Indira Gandhi case, which ruled that the civil courts still hold the final say, even in matters concerning Islamic laws.

Halperin-Kaddari then pointed out that issues pertaining to children's nationality and birth registration is therefore "obviously a constitutional issue".

Arik Sanusi Yeop Johari from the Attorney-General's Chambers however said that the team was unable to deliberate or explain the matter, claiming subjudice as the "bin Abdullah" case is currently pending in the Federal Court.

Halperin-Kaddari then again pressed the delegation to answer as a mere matter of "principle", the possibility of challenging a religious edict by way of a judicial review.

However, Arik maintained his initial reply, which frustrated another committee member who then questioned the Malaysian delegation on the actual position of Malaysia — whether it is a secular or theocratic nation.

"Malaysia is supposed to be a republican state. Not a theocratic state, and it must be made very clear that laws of the state prevail over religious laws," Philippine representative and rapporteur, Rosario G. Manalo said, lamenting that Arik's reply was not acceptable.

"If it's a theocratic state, that's the end of a democratic state, but it claims to be a republic.

Therefore the state law prevails. So give me a clear answer, otherwise I put you in doubt," she added.

Malaysia is a constitutional monarchy state.

The committee had earlier also questioned a fatwa against women's rights group Sisters in Islam, asking whether it is in line with Putrajaya's obligation to provide for peaceful and pluralist public spheres.

The group had filed in 2014 for judicial review of a gazetted fatwa in Selangor that declared the group as "deviants" in Islam due to their alleged religious liberalism and pluralism.

In Muslim jurisprudence, a fatwa only stands as an opinion of a learned scholar.

However in Malaysia a fatwa issued by a state mufti will be made law if gazetted.

On the federal level, the muftis also join a conference of the National Islamic Council's fatwa committee that would formulate binding fatwa.

Countries party to CEDAW are obliged to send regular status reports on the implementation of the treaty, to be reviewed by a committee of experts which will engage in dialogue with government representatives.

Malaysia's progress in women's rights was reviewed only for the second time today, despite acceding to CEDAW in 1995. The last review was 12 years ago for its 2004 report.

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