Article 5 of the Federal Constitution (‘FC’) is said to be the most important of the fundamental liberties.
(1) No person shall be deprived of his life or personal liberty save in accordance with law.
Article 5(1), Federal Constitution
It is the most important because it relates to our lives and personal liberty. A consideration of Articles 5 to 10 FC relates to the physical aspects of ‘personal liberty’.
Article 6 relates to the prohibition of slavery and forced labour.
Article 7 protects against retrospective criminal laws and double jeopardy situations.
Article 8 is about equal treatment and non-discrimination.
Article 9 concerns freedom of movement and prohibits the government from banishing Malaysian citizens.
Article 10 relates to our freedom of speech and expression, to assemble and to form associations with each other, i.e., to be together.
Article 11 addresses the intellectual, psychological, and spiritual dimensions of ‘life’, as Article 12 addresses its educational and intellectual aspects.
Article 13 relates to our ‘personal liberty’ of owning things and not being unfairly deprived of them by the government without ‘adequate compensation’.
All these are rights a Malaysian citizen has against the government. Generally, these rights are not enforceable between citizens: see Beatrice AT Fernandez v Sistem Penerbangan Malaysia & Anor [2005] 2 CLJ 713, FC. These rights prevent encroachment into our opportunity to live a good life. Any law or government action that violates or inhibits these fundamental liberties disrespects and dehumanizes a person. That their quality of life suffers, psychological pain, suffering, and misery can be taken as a given arising from such violations.
That’s why they are described as fundamental liberties; they are fundamental to everyone, regardless of race, beliefs, gender, descent, and place of birth.
Of all of them, I contend Article 11 (1) is an intimately close second to, if not intertwined with, Article 5 (1).
(1) Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.
Article 11(1), Federal Constitution
Article 11(1) breathes ‘life’ into Article 5(1). One is useless without the other. For myself, Article 11(1) is even more important than Article 5(1). Strange, I know. But I say that because when a state of emergency is proclaimed under Article 150 FC, Parliament may make laws inconsistent with Articles 5, 9, 10, and 13. But it must still ensure laws made during an emergency comply with Articles 6, 7, 8, 11, and 12.
Article 11 is, one of, if not the most, vital provisions in the FC because even though it speaks of ‘religion’, it really means ‘belief, thought and conscience.’ That is what religion is about: our beliefs, thoughts that arise from those beliefs and the coalescing conscience formed from those beliefs and thoughts.
Contained in freedom of religion, therefore, is our freedom to think and feel. Contained in that freedom to think is space to imagine, dream, experiment, hope, desire, basically our entire psyche life. Contained within that psyche life is the space and opportunity to discover and live a life worth living.
That is why, if we observe Article 11(1) above, the right to profess and practice our religion is not limited or constrained in any fashion. Only a non-Muslim’s right to propagate their religion is restricted (by Article 11(4)). The right to profess and practice whatever our religion is absolute. It is the most sacred and sacrosanct of the FC provisions because it preserves that opportunity for all of us to imagine a life worth living, its alternatives and the betterment of all.
That freedom to imagine is important. Our mental life precedes our actions. Socrates said that the unexamined life is a life not worth living. So it is with a life without imagination. It is an empty existence.
I do freedom of religion cases. Or rather, they are thrust upon me.
Many cases are about people who administratively converted to Islam out of marriage or for other reasons (save for an actual belief in the religion) want to be legally recognised as no longer Muslim. There are other kinds, but these are the ones I am called upon to handle frequently.
I ended up doing them because the superior courts ruled these people must go to the Syariah courts to get a declaration they are no longer Muslim before they are recognised as such. But the Syariah courts do not want to give it. And when they go to the superior courts to undo the Syariah courts’ refusal, they are told nothing can be done about it.
So, these people remain Muslims in the government records even though they no longer are in their hearts, minds and souls. I call these disrespected and dehumanized people the Trapped Muslims of Malaysia. Their existence in Malaysia is proof of an utter and complete disregard for Article 11(1).
I am often asked why I do these cases.
First, the sheer unfairness, misery, humiliation and dehumanization these people and those around them experience as a result of a denial of an acknowledgement of their true beliefs deeply disturbs and disgusts me. I am constantly confronted with them because they keep coming. They keep coming even when I tell them they have no chance and will waste their time, effort, money and peace of mind. I find it incredibly difficult to wilfully blind myself to their suffering and not do anything to redress the situation.
I’d like to think a person with genuine empathy, honesty, and courage would recognise the situation for what it is and do something uninfluenced by fear or favour instead of finding convenient excuses. But I have been wrong about people and will likely continue being wrong.
The second reason relates to how the freedom of religion contains our freedom to think and feel. I do these cases because I want to do my little bit to protect our right to think and feel. In truth, I am doing it as much for myself as everyone else because these are human conditions.
I work on these cases because I believe the space and opportunity for us to imagine a life worth living are fundamental to our being. We might as well be a machine if we cannot do that. Like my fellow friends in the trenches, I am committed to defending our freedom to think, imagine and feel as long as possible.
I do it because of the message in Pastor Martin Niemoller’s poem, which is a stark reminder of what happens when we keep quiet and allow evil to happen. Below is my bastardization of his poem.
First they came for our young
A bastardisation of Pastor Martin Niemoller’s ‘First They Came’
And I did not speak out
Because I was not young any more
Then they came for the old
And I did not speak out
Because I was not old enough
Then they came for our best
And I did not speak out
Because I thought myself less
Then they came for the rest
And I did not speak out
Because I thought them a mess
Then they came for me
And there was no one left
To speak out for me
I hope my speaking out for others encourages others to speak up, and we arrive together on that day when we all speak up for each other, regardless of race, beliefs, gender, descent, and place of birth, and call each other cousins. I do not expect to live to see that day.
So, I am not doing this for myself. I do this for a better future for my children, your children, our children and all those who will come after we are long dead and forgotten, whom we will never meet and who will never know us. I do this because I want those words on the pages that set out our fundamental liberties to mean what it says instead of remaining ink on paper.
Above all, in doing my bit, I hope to contribute to the forces that go towards making this country a better place. Or at the very least, to resist, even if for a moment, the unrelenting tide of fear, cynicism, narcissism, selfishness, reductionism, and short-termism that looks to eventually take over us all.
