The decision of the Court of Appeal in the R Subshini's case has once again brought to surface the glaring need to set up a Constitutional Court in this country.

The Court of Appeal rightly refused to intervene to stop Subshini's husband from pursuing with his application in the Syariah Court to dissolve the marriage and seek custody of their second son.

Subshini's application appearing to injunct her husband was in reality to prevent the Syariah Court from hearing her husband's application as is evident from her solicitor's letter to the Syariah Court which goes as follows:

"Sesalinan perintah injunksi yang termeterai dilampirkan dengan ini untuk perhatian pihak Mahkamah Syariah dan Yang Arif Hakim Mahkamah Syariah.

"Nampaknya jika Saravanan a/1 Thangathoray tersebut meneruskan dengan permohonannya di dalam tindakan tersebut di atas di Mahkamah Syariah, beliau akan melakukan perbuatan yang mengingkari perintah injunksi Mahkamah Tinggi Kuala Lumpur ini.

"Klien juga telah dinasihati bahawa Mahkamah Syariah Kuala Lumpur tiada bidangkuasa untuk mendengar kes ini kerana ibu anak yang terlibat bukannya 'orang Islam', dan seksyen 46 Akta Pentadbiran Undang-undang Islam (Wilayah-Wilayah Persekutuan) 1993 memberikan bidangkuasa kepada Mahkamah Syariah hanya apabila kesemua pihak terlibat adalah 'orang Islam'.

Clearly this is in contravention of Article 121 (1A) of the Federal Constitution, which was introduced in 1988 to prevent civil courts from interfering with the decisions of the syariah courts, and states in unambiguous language that the high courts and courts subordinate to them shall have no jurisdiction in any matter which is in the jurisdiction of the syariah courts.

Having become a Muslim, Subshini's husband's recourse is to apply to the Syariah Court to dissolve the marriage and seek custody of their child. He could not apply for those remedies in the civil courts. The relevant civil laws governing dissolution of marriages and custody of children Law Reform (Marriage and Divorce) Act and the Guardianship of Infants Act - do not apply to Muslims. On such matters, Muslims are governed by Islamic law and they come within the exclusive jurisdiction of the syariah courts.

Given the present state of the legal authorities, the majority decision of the Court of Appeal is correct. The Federal Court had in a number of cases ruled that the civil courts have no jurisdiction over matters coming within the jurisdiction of the syariah courts.

Therefore, if the High Court or the Court of Appeal had granted the injunction to stop the Syariah Court from hearing Saravanan's application, it would be in clear violation of the Constitution and the precedents established by the highest court in the country, the Federal Court.

The issue raised by Subshini's case and other similar cases is the denial of access to courts to non-Muslim women in respect of their civil law rights in cases involving dissolution of marriage, custody, maintenance and division of property acquired during marriage when one party to a marriage reverts to Islam. This situation is clearly unacceptable and must be rectified without any further delay for otherwise it would have adverse effects on ethnic relations and national unity.

But the solution to the problem is not a 'creative' interpretation of Article 121 (1A) to negate the plain and obvious meaning of that Article or to repeal it to make the syariah courts subservient to the civil courts (which Subshini sought to do here). Such a move would have serious political repercussions and poison ethnic relations.

The problem, it cannot be denied, is a complex one in the context of a multi-religious society. It is indeed troubling in this case that the husband appears to have converted the first son and had obtained an interim custody of the child, without the mother having been heard.

Therefore, it is high time that the government sets up a high-powered committee, consisting of legal scholars, members of the civil and syariah judicial authorities, lawyers, members of parliament, the attorney-general and civil society representatives, to study the problem in depth and submit its report and recommendations within a specified period. Interested groups and individuals should be given the opportunity to submit their views to the committee in writing.