Freedom We Never Had
In these days of ever greater attacks on the freedoms we have — freedoms so limited that I daresay we are not a democratic country — it has only been natural for Malaysians to demand what they perceive as their rights.
There is also a common tendency to yearn for the good old days, the days when we ostensibly had it better. There is, for instance, the belief that Mahathir Mohamad's policies differed substantially from Abdullah Badawi's, and the common saw that our Merdeka Constitution is so much better than the present-day one.
Likewise, there may be those who are inclined to think we once were substantially free, but no longer are. I would conjecture that these people need to brush up a bit on their constitutional law.
Our Federal Constitution devotes Part II to discussing "fundamental liberties" of those within Malaysian jurisdiction. Obviously an in-depth discussion of this part of the Constitution is impossible in a brief article — I think a volume or two would be necessary to do it justice — but to compensate, I urge you to examine it for yourself. (I will obviously not bother with reproducing the full text here.)
Only four clauses into the first article of this part, we already have an exception to the right of habeas corpus (an integral right which has existed in common law jurisdictions for centuries). A person arrested may be denied the right to appear before a magistrate who must approve his continued detention, if the arrest or detention was made "under the existing law relating to restricted residence".
Better yet, this obvious intentional loophole created to permit an otherwise unconstitutional law has been backdated to Merdeka Day, so as to retroactively apply the constitutional amendment which added this loophole. Why all this legal chicanery? Because, believe it or not, a prisoner under the Restricted Residence Enactment was denied his right to habeas corpus, and successfully challenged the government in court. The government decided it would lock him up anyway, and amended the Constitution to have its way. That's right, folks: if the government decides it doesn't like your rights, it can just take them away.
Surprisingly, even the article prohibiting slavery needs three additional clauses to clarify what this means. The clauses seem reasonable, but I do wonder why the Americans could achieve this in two brief sentences, while our Constitution takes three brief sentences and one paragraph-long sentence.
The few truly integral rights seems to lie in Article 7, since there are no terrible exceptions to the right to be protected from retrospective criminal legislation, or from double jeopardy (being tried for the same offense).
You might think that Article 8, which promises equal treatment under the law, would be fair, but you'd be surprised. It takes four clauses to make lofty guarantees of equality to all, and six subclauses to create loopholes for the government to discriminate. (Of course, we aren't counting Article 153, which is another issue altogether.)
Now things get very banana republic-ish. Article 9 states that "every citizen has the right to move freely throughout the Federation and to reside in any part thereof", provided that the government doesn't say otherwise. Seriously. "Parliament may by law impose restrictions, as between that State and other States, on the rights conferred by Clause (2) in respect of movement and residence" in Sabah and Sarawak, whereas for the other states, the government can push through criminal legislation to freely impede freedom of movement.
People like to speak of freedom of speech as if it were absolute, but there's no such thing. Malaysia takes this to the extreme, though, by stating in its Constitution that "every citizen has the right to freedom of speech and expression", "assemble peaceably and without arms", and "form associations."
Sounds pretty liberal, right? Well, these freedoms are "Subject to Clauses (2), (3) and (4)". And what do these clauses say? Well, it can be summed up in one sentence: "Parliament can take any of these rights away, as much as it likes." Which basically means the government can do whatever it likes to us, because we don't have any true positive rights under this Constitution.
Article 11 is pretty all right, although of course rabid secularists will want to eradicate that arbitrary ban on proselytisation to Muslims. But when you take into account how the courts have trampled all over the freedom of religion and thought, you have to wonder how much the words of the Constitution are worth.
Articles 12 and 13 are peripheral articles; they solidify the rights granted in earlier articles, but of course do nothing for the basic rights and freedoms Malaysians can expect — the right to hold one's own thoughts and beliefs, the right to express those beliefs, the right to travel and live in their own country, the right to gather in public, and the right to form associations. (Of course, in theory, Article 12 does stand up for the freedom of one's own conscience, but how much did this help people like Revathi, the Hindu who was forced to attend a Muslim "rehabilitation centre"? The Constitution is more full of holes than Swiss cheese.)
Of course, this whole discussion is completely academic. It's not quite relevant to modern Malaysia — actually, it hasn't been relevant for almost four decades.
Why? Because under Article 150 of the Constitution, Parliament has carte blanche to legislate on anything it likes. It is free to act as unconstitutionally as it desires. But there's more! It's not just Parliament — the executive branch of the government too is completely free to pass any laws it likes, regardless of their constitutionality!
Wait, there has to be a catch, right? Of course — this power only exists during a state of emergency, and this power does not extend to "any matter of Islamic law or the custom of the Malays, or with respect to any matter of native law or custom in the State of Sabah or Sarawak", "or relating to religion, citizenship, or language".
That's right. The only absolute rights Malaysians have are to practice Islamic/native law and their traditional customs (if they are Bumiputra), and to practice their religion (of course subject to the billion-and-one catches seen in cases like Lina Joy's, Revathi's, et al), speak their language, and maintain their blue identity cards. That's it. Besides that, we have no freedoms.
What's that? That's irrelevant, because we're not under a state of emergency? Why, friends, Romans and countrymen, you are so, so wrong. You might remember that little bust-up we had in Kuala Lumpur some time back — about forty years ago. We had to declare a state of emergency, right?
Well, that's what the government did. And they never revoked it. That's right. Until today, Malaysia is still officially in a state of emergency. We are still living under emergency rule. We have no real freedom. If ever we were a democracy, that democracy truly died on May 13, 1969. The freedoms supposedly enshrined in our Constitution are not worth the toilet paper they are written on.