In line with the spate of recent decisions casting doubt on the rights of non-Muslims spouses of Muslims (or purported Muslims) to seek relief from the civil courts, the latest majority decision of the civil court in the Subshini case continues to reinforce feelings of confusion, uneasiness and hopelessness amongst non-Muslim Malaysians. Of far greater significance, the decision calls to mind a growing sense of awareness that Malaysia is now moving dangerously towards a state of civil lawlessness.

While one can understand if our civil courts declines to accord Subshini civil law relief for failure to fulfill the requirements for such relief, one cannot help feeling dumbfounded when our civil courts can go so far as to suggest that non-Muslim Malaysians, like Subshini, take their cases to the syariah courts. With respect, this has surely overstepped the boundaries of judicious conduct.

One would think that our civil court judges, being learned experts in law, would surely be aware that syariah courts can have no jurisdiction over non-Muslims. One would also think our civil courts would see any attempt to subject non-Muslims Malaysians to syariah laws or syariah court processes, whether directly or indirectly, as being wholly unconstitutional, and hence, must be struck down. Accordingly, one would expect our civil courts to come to the aid of hapless non-Muslims in such instances and exact justice. Alas! When called upon to do so, they decline!

Our rights are purportedly enshrined in the Federal Constitution, and it being the so-called supreme law of land, one expects persons sworn to defend the constitution to do exactly just that defend it, and defend it without fear or favour.

At the Parliamentary Roundtable on Article 121(1A) on Jan 5, 2006, Suhakam chairman and former attorney-general Abu Talib Othman [who is incidentally, also the drafter of Article 121(1A)] had this to say of our civil court judges: "In a democratic country, one has to accept the view of the majority. 121(1A) will not be problem if the civil court has the courage to act fairly and independently. The system is just if the judicial process is in place. The reason for such a clause was that the Syariah Court was more competent to deal with Islamic affairs.

"Schedule 9 of the constitution is clear that the Syariah Court only has jurisdiction over people professing Islam. Yet it has constantly been ignored. However, the constitutionality of law rests upon civil court. But none of the civil judges are prepared to look at it this way. It's an abdication of power and function.

"Therefore, it is the problem of the court not the legislation. If the civil court judge is true to the oath he takes, there will be no problem like we are now facing. 121(1A) is not intended to limit the civil courts."

Lest we want to see Malaysia deteriorate to a state of civil lawlessness, which no right thinking Malaysian wants, it is timely that our civil court judges be reminded of the oath they have sworn to fulfill. Failure to do so simply means we have no guaranteed rights. If the Federal Constitution and those duty-bound to protect it cannot guarantee our rights, how can we begin to recognise the Federal Constitution as legitimate law, or for the matter, supreme law?

As mentioned in Article 16 of the 1789 French Declaration of the Rights of Man and Citizen, "[any] society in which rights are not guaranteed, or which the separation of powers is not defined, has no constitution."