1. It has become the habit of the Najib Government to get the administrators to support and to implement everything that Najib instructs them to do and ask no question.
2. Of course for the government to function it is necessary that the executive branch executes the directives or decisions of the government in a democracy.
3. But a democracy also divides the powers necessary for governance between the legislature (Parliament), the executive (the permanent administration) and the judiciary.
4. This division of powers is essential in order to check on the excesses of any branch. Obedience to the directives of the legislator does not extend to implementing clearly illegal acts.
5. Should the directives go beyond the provision of the law and should the executives implement the directives then the judiciary may intervene so as to stop the implementation. The executive branch is clearly within its rights to refuse execution if the directive is against the law in any way.
6. The appointments of top executives are made by the YDP Agong on the advice of the Prime Minister or an accredited member of the cabinet. It is very possible for the PM or Minister to give wrong advice. This instills fear among top executives for their position. For the weak among them the wisest thing to do is to obey the PM whether the directive is proper or not.
7. And so we are seeing top officers complying even with improper instructions to avoid the displeasure of the Prime Minister. Effectively this means the power of the head of the legislative overrides the power of the executive.
8. But there is still the judiciary, including the Attorney-General. For the public to have faith in the judiciary if must be seen to be impartial and free from the power of the top legislators, the PM.
9. The appointments to the judiciary are governed by the constitution, rules and procedures, so that there would be no suspicions that the appointments are influenced by the political heads of the government.
10. If these laws, rules and procedures are adhered to, the trust in the judiciary by the public is ensured. But when there is deviation or interference by the political head of Government which results in the laws, rules and procedures being ignored, then the credibility of the judiciary is lost.
11. It must be remembered that the judiciary provides the final resort. More than the executives, the impartiality of the judiciary is essential.
12. We have seen how Najib managed to get rid of a former A.G. just when he is believed to be about to take action over the reported corruption by the Prime Minister.
13. The excuse given was ill health. The procedure for termination of a senior government officer due to ill health is to convene a medical board. The board will do a proper medical examination of the officer to certify the state of his health. If the board issues a certificate confirming the officer is unable to work, then only can the PM submit the certificate to the YDP Agong to get his Majesty’s consent to terminate the service of the officer concerned.
14. There is no evidence that a medical board was convened in the case of the removal of the precious A.G. It became obvious that he had fallen out of favour with the PM.
15. His removal was immediate, with police preventing him from entering his office even. Subsequently the A.G. declared that he was not ill and apparently did not request to be retired.
16. A new A.G. was appointed who seem to be tasked with declaring that Najib has done no wrong. He actually ordered investigation on 1MDB to be stopped. It is not his right to stop investigation. He also declared reports by three major Government institutions to be official secrets even though the PM himself had said the Auditor-General would investigate to convince the people he had done no wrong. Normally the Auditor-General’s report is open to public scrutiny. If indeed the report shows no evidence of wrongdoings by Najib, why is there a necessity to make it an official secret.
17. This act by Najib in dismissing the previous A.G. and appointing a new AG had undermined public confidence in the impartiality of the judicial system.
18. And now we have the unusual extension of the services of judges beyond their retirement age. It is totally against the provisions of the constitution, the rules and the procedures for the tenure of judges. Indeed it is something that had never been done before. It is exceptional and unusual especially for judges.
19. It is not as if there are no other candidates. It has all the earmarks of favouritism; of special favour by the government.
20. When a judge is specially favoured then he cannot be accepted as unbiased. And when the PM himself is faced with a number of cases before the courts his clear role in the extension of the term of service of the judges cannot but be regarded as interference in due process in his favour.
21. The loss of confidence will affect the whole judiciary of Malaysia, which has already earned the title of being one of the most corrupt country, of being a kleptocracy, will now be tainted further for having a judiciary controlled by the PM.
22. It is not too late to rescind the order for the extension of these two judges. Do that and the independence and impartiality of the judiciary will be restored. Fail to do so will mean to the condemnation of Malaysia as a kleptocracy, a corrupt country, will be added the failure of the judiciary.