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Following the well-received ‘YL Personality’ interviews since September 2006, the Malaysian Bar Website is pleased to announce a new column called tête-à-tête which means a private conversation or interview, usually between two people.

This column will be undertaken by the National Young Lawyers Committee (NYLC) who will conduct similar conversations with other members of the Bar. There is much value in this for the Bar, particularly through learning from the more experienced members of the Bar.

Members are urged to suggest names of members and interesting areas of conversations for the NYLC to consider in relation to this column. Kindly forward your correspondences to chandrika@malaysianbar.org.my.

In this inaugural segment, NYLC member Angeline Cheah speaks to a ‘colourful’ lawyer from Johore and former ISA detainee, ABDUL RAZAK BIN AHMAD. Some of his interesting ‘achievements’ include laying across the railway tracks of Johore and having Singapore declare him persona non grata.

Angeline: Tell us about yourself briefly - your academic, work and family background.

Razak: I am from Johore Bahru and I received my secondary education at the Johore English College. I graduated from the Singapore University in 1966. I was quite active in student activities during my undergraduate days in Singapore - President of the Socialist Club and a Council member of the Students Union. During the last term of my final year in 1966, I was arrested and banished by the Singapore government for alleged subversive and communist front activities which I vehemently denied. It is more than 40 years since the banishment and I am still not allowed to enter Singapore.

I am married and have 4 children. One of them, Azlina is a law graduate from Sheffield Hallam University, England.

After graduation, I worked for a short period with the Johore State Government as the Deputy Director, Department of Land and Mines. But after one year, I was expelled and ordered to leave the state because I was alleged to be involved in anti-national activities.

I then worked in Kuala Lumpur as a legal adviser to FELDA. I left FELDA at the end of 1973, came back to Johore and began my law practice in 1974 in Johore Bahru. In September 1975 I was arrested and detained under Internal Security Act for alleged subversive activities. Of course, the allegations are not true. I believe I was arrested because I was the lawyer acting for 48 squatters in Tasek Utara who were charged for illegal occupation of state land.

You have been called a ‘social activist’. What does this mean, and how does one become a social activist?

It is the print media who labelled me a social activist. I have been a lawyer for more than 30 years and I was often involved in legal work - fighting for social justice for the underclass, especially the squatters, the workers and the less privileged. That is my understanding of what a social activist is about.

You have been known to be radical - such as laying down on the railway tracks in Johore Bahru in 1986 during the President of Israel’s visit to Singapore. Can you tell us what prompted you to engage in such extreme behaviour?

Many people remember me for that incident which happened more than 15 years ago. I did that as a form of protest against Israeli President Herzog’s visit to Singapore. I did that to highlight and draw public attention to the plight of the Palestinians who have been oppressed by Israel since it was formed in 1948.

A stupid question, but did you have any fear at all that the train would run you over?

I was quite sure the train would not have run me over as there was a big commotion and after a short while, the police and my colleagues dragged me away from the railway tracks.

Do you have any regret at all for being banned from Singapore? Would you have done things differently given another opportunity?

I am unhappy over the fact that I have been banned from entering Singapore for so long. Singapore is just across the Tebrau Straits and I can swim across it in five minutes. I have relatives and close friends since my student days in the Singapore University. I have appealed several times for the Singapore government to lift the ban but they turned down my requests. I think it is unfair for the Singapore government to refuse my requests as I have never been given any opportunity to defend myself since the banishment order was made against me.

I will not apologise. I do not feel guilty for what I did during my student days in Singapore as what I did was legitimate and certainly within the law. I have not been involved in violent or subversive activities as alleged by the government.

You were also involved in a public interest case concerning yourself. In Abdul Razak Ahmad v Majlis Bandaraya Johore Bahru, you brought an action against the city council for a declaration that the planning permission granted to a developer was null and void. Your OS was struck out on the grounds, inter alia, that you failed to file an affidavit in reply and that your failure to do so amounted to admission of facts alleged. Also, you did not have the locus standi to commence your action.

It is a public interest case which questioned the administrative power of the local authorities. It is meant to check and challenge the exercise of powers being abused by the authorities. The case raised once again the important issue of locus standi or the right of a litigant to bring proceedings to Court.

In that case as the Plaintiff, I sought a declaration, inter alia, that I was entitled as a rate-payer to a reply from the Defendant in respect of a letter which I sent on 7 September 1994. In that letter I made enquiries in respect of the controversial Johore Bahru Floating City. I learned that the Defendant had given planning permission on 12 January 1994 to the Johore Coastal Development, the developer of the project. I was seeking confirmation from the Defendant whether the Defendant had given notices to adjoining landowners of the project as required under section 21(6) of the Town and Country Planning Act 1976. The Defendant did not respond to my letter and hence I brought the suit for a declaration that I was entitled to a reply from the Defendant.

In his Judgment, the Judge alluded to the fact that “when the Dato’ Bandar received a letter by hand dated 7 September 1994 from the Plaintiff, the Dato’ Bandar remained silent – too scared to reply”. In his affidavit, the Defendant justified his action for not replying because ‘the Plaintiff was a busybody’. Justice Dato’ Hj Abdul Malik bin Hj Ishak in his grounds on 18 March 1995 came to the conclusion that “as a mere busybody and without standing he was not entitled to receive a reply from the Dato’ Bandar in regard to his letter dated 7 September 1994”.

The decision has important implications in that public authorities in future can ignore with impunity and not respond to any letters concerning matters of public interest from members of the public, including rate-payers on the flimsy reason that they are ‘mere busybodies’. The Judge seemed to agree with the Defendant for in his grounds, he stated that the Dato’ Bandar aptly described me as ‘busybody’ even though it was clear that there was no basis for him to come to such a conclusion.

I think the fiction of the mere busybody can be stretched to absurd and ridiculous lengths. This fiction may adversely affect concerned members of the public who wish to seek information or request for action to be taken by relevant government departments. They may be ignored or rebuffed for the simple reason that they are perceived as mere busybodies.

These arguments are infantile and absurd but it seems our judges are prepared to accept them in order to deny litigants locus standi in the Courts. In the present case the Judge went one step further when he said, “I venture to describe him as a trouble shooter, a maverick of a sort, out to stir trouble”. It is not clear what sort of trouble the Judge had in mind when he concluded that I was out to stir trouble. Was it because I questioned the legality of the Floating City?

It is disheartening to observe that Malaysian judges tend to be conservative and not courageous enough to chart new courses to widen the scope of the right of concerned citizens to bring proceedings to Court, especially in cases against misuse of power by public authorities. Malaysian judges have been given many opportunities to be the guardians of justice in cases involving locus standi but they have not taken up the challenge when such opportunities arose. It appears to me that it is a crime in this country for citizens - or rate-payers - to make enquiries from public authorities on matters of public interest. They would be damned as troublemakers.

In our courts, judges take a narrow view by imposing unreasonable impediments against litigants who bring proceedings against the government or public authorities to court. The Judge also took an incomprehensible stand by stating that “to give locus standi to a rate-payer like the Plaintiff would open the flood gate and this in turn would stifle development in the country”. It is difficult to believe that the Judge can come to such conclusion.

Is it the duty of Malaysian judges to be the guardian of the flood gate or the guardian of justice? What is the role of Malaysian judges in the Malaysian context - to protect development even if such development is against the law or to uphold justice?

James Pickles J., a well known English judge, in ‘Straight from the Bench’ said that judges ought to be the supreme guardian of the people and that judges would be public guardians by reason of their independence.

It is clear that Malaysian judges by and large go to great lengths, and out of their way in their endeavour to prevent concerned citizens from enforcing their rights in the courts. My case is a good example of the unhealthy trend.

In the law report, the learned Judge described you as having an ‘emotional outburst’. What brought this on?

With respect, I disagree with the learned Judge’s comments that I was having an ‘emotional outburst’ when I was arguing the case. I think the learned Judge was being personal as it was he who asked me many irrelevant questions, for example: whether I have been allowed to enter Singapore! That had nothing to do with the case before him.

Did you appeal against the decision of the case?

I did not appeal.

It has been said that you are a lawyer who fights for the underdogs in society. What are some of the needs in society and how do you think the legal profession can play a part?

The government and local authorities have wide discretionary powers which affect the legal rights of ordinary people. Quite often such powers are abused and the people have no legal redress to correct or challenge the exercise of such coercive powers. It is in this respect that I think the legal profession can play an active role to help these ordinary people who badly need our help. In Tan Sri Hj Othman Saat for example, I took up the cause of a poor fisherman who was being denied of his right to own land which he applied for from the Johore State Government but which was quietly alienated to some ‘big shots’ in the state.

How can you encourage lawyers today, especially young lawyers, to take up more pro bono or legal aid cases?

Young lawyers should be encouraged to take up more public interest litigation cases to help the oppressed and the poor, and senior lawyers should be roped in to help the junior lawyers. I think the combined efforts can do wonders.

The recent Maybank decision to only empanel legal firms which have 50% or more Bumiputera equity caused some uproar, and differing views. Some view the move as being racist and discriminatory while others feel it is a step in the right direction to assist Bumiputeras in the economic field. What is your take on this issue?

I think the Maybank policy is not right. I am of the view that work should be given on the basis of merit and ability, and not on race. The race factor should not be taken for consideration.

Do you feel that Cabinet should have intervened, or was it a matter that could have been resolved internally?

I think if the Cabinet did not intervene, Maybank would have carried on its so-called ‘pro Bumiputera’ policy.

Another recent issue which made the headlines was the ‘bocor’ remark in Dewan Rakyat. In your opinion, should Ministers or MPs who make such remarks be made to apologise? Or should they receive harsher punishments such as suspension and pay cuts as some have suggested? Or should they be let off the hook altogether as after all, they are entitled to free speech?

The MPs in the Dewan Rakyat who made such sexist remarks are a disgraceful and shameful lot. They are not fit to sit in the Dewan. The public uproar has forced them to apologise and I hope this will be a lesson to them. Sterner action should be taken if such MPs repeat their abominable behaviour like suspending them for a certain period in the Dewan Rakyat.

Speaking of free speech, do you advocate it? What are your views on blogging and do you think bloggers should be allowed to say anything they like on their blogs? It was in the newspapers that the blogger who reported the Prime Minister’s recent ‘fainting’ episode in Teluk Batik, Lumut might get in trouble for it.

I am in favour of free speech within the parameters of the law. The world has opened up dramatically and it is almost quite impossible for any government including Malaysia to suppress the spread of ideas and information. Information and communication technology has created a borderless world. There are so many websites as there are bloggers. I am of the view that bloggers should be made responsible for what they put up in their blogs. We have laws such as defamation to fall back on for those who feel that they have been wronged by the bloggers.

On the issue of the 1988 judicial crisis, how did you feel at the time of the sacking of Tun Salleh Abas, Datuk George Seah and the late Tan Sri Wan Sulaiman Pawan Teh?

I was shocked and felt strongly against the unjust manner they were dismissed. I condemned the reprehensible actions of the then PM, Dr. Mahathir Mohamed who was behind the sacking.

What are your sentiments about it now?

I have not changed my sentiments now. I feel the dismissals were unjustified, unjust and reprehensible.

Do you support the Bar Council’s move to ask the government for a review of this crisis? What is your opinion on the government’s stand that there are no strong reasons or new evidence to re-open the case?

I do support the Bar Council’s move but I expected the present government not to agree to such proposal. There has been a grave injustice and this is a classic example of Executive interfering with the Judiciary.

In what way do you think the doctrine of separation of powers can be successfully practised? Or do you think that this is merely a theoretical doctrine which cannot be implemented?

I think that the doctrine can be practically attained eventually but it may take time. I am confident changes will come about and it is the people who will progressively bring such changes in spite of the obstacles. It is therefore not true that the doctrine of separation of powers will remain an empty theory that is incapable of being implemented.

In January 1997, when former Singapore Prime Minister Lee Kuan Yew affirmed in his affidavit as part of the proceedings against Singapore opposition politician Tang Liang Hong for a “Mareva” injunction to freeze his assets, Lee described Johore State as “notorious for shootings, muggings and car-jackings”. Then, you were also instrumental in getting Lee to subsequently apologise to Malaysians on March 13, 1997 and to have those remarks expunged from his affidavit. Tell me, with the current crime rates in Johore Bahru, do you not think that Lee was right in his observation?

Yes, I now agree with Lee Kuan Yew because the situation has changed. To my mind, the police really have to do something about it. In fact, I submitted a memorandum on this problem to the Johore Chief Police Officer last year.

Describe yourself in three words.

I am sorry, I can’t. Maybe, the maverick lawyer?

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