A three-member bench chaired by Ahmad Maarop said it was allowing the application by the government to find other solutions to the issue.
“We were ready to deliver the written judgment. However, under the circumstances, we allowed the application,” Ahmad said when reading the unanimous ruling.
He added that the judgment had been adjourned to a date yet to be fixed.
The others on the bench were Aziah Ali and Balia Yusof Wahi.
Federal counsel Amarjeet Singh had earlier urged the bench to adjourn the matter as it was a sensitive issue which required a solution other than a court ruling.
“I was advised by Attorney-General Tommy Thomas that the executive wants to address this carefully and seek advice from all stakeholders,” he said.
Lawyer K Shanmuga, who appeared for the parents of the illegitimate child, had no objection to the government’s request.
However, Sulaiman Abdullah who represented the Johor Islamic Religious Council said a verdict must be delivered as the matter involved the sanctity of Islam.
“There is no need for executive interference,” he said, adding that the appeal had a long history.
He added that the government could have raised the possibility of finding other solutions when there was a move to enlarge the bench, as it was considered a public interest case.
He also said the court had seen last-minute proposals to settle the matter which had been unsuccessful.
He noted that Aziah would be retiring today, and that any adjournment would result in a rehearing as a minimum of three judges was required to form a panel under the Courts of Judicature Act.
The central issue before the apex court is whether Section 13 of the Births and Deaths Registration Act 1957 (BDRA) only applies to non-Muslims.
The second issue is whether the surname applies to the patronym, that is, the father’s name.
The Federal Court was also asked to decide whether a decree on the naming of children by the National Fatwa Council was binding on the National Registration Department (NRD), and whether the civil court or the shariah court should determine the naming of a Muslim child.
According to a 1981 fatwa, illegitimate children must carry the surname of “bin Abdullah” or “binti Abdullah”.
A fatwa in 2003 ruled that illegitimate children cannot carry the name of the father or the person claiming to be the father.
Last year, the Court of Appeal ruled that the NRD director-general’s jurisdiction was a civil one and confined to determining whether the child’s parents had fulfilled the requirements under the BDRA.
Justice Abdul Rahman Sebli, who delivered the judgment, said the BDRA, as a federal law, covered all illegitimate children whether Muslim or non-Muslim.
In the present case, the child was born less than six months after the parents’ marriage, which is considered illegitimate under shariah law.
The child’s birth was registered two years later in 2011 under Section 12 of the BDRA.
The parents, both of whom are from Johor, applied to the NRD under Section 13 of the BDRA to have the father’s name on the birth certificate. However, the document carries the name “bin Abdullah” instead.
The NRD refused to replace this with the father’s name on grounds that the child was illegitimate.
The parents, whose identities have been withheld, filed an application for judicial review at the High Court in 2016.
They lost their case in the High Court, but the decision was reversed by the Court of Appeal last year.
The Court of Appeal disagreed with the High Court, ruling that the language in Section 13A (2) of BDRA was clear. It said the BDRA did not make a distinction between the registration of Muslim and non-Muslim children.
It also said the NRD’s decision to refer to the fatwas was wrong as the 2003 fatwa was in direct violation of Section 13A (2).
This states that the surname of an illegitimate child can be either the mother’s, if she volunteers the information, or the father’s, if he registers himself as the father under Section 13 and requests that the child bear his surname.
There is no mention of the use of the “bin Abdullah” surname.