WHEN the Prime Minister applied to refer constitutional questions to the Federal Court under Article 128(2), he wasn’t just exercising a legal right. He was posing a challenge — not to the courts’ authority, but to their foresight.

This case, more than any in recent memory, calls on the Federal Court to rise above procedural routine and engage in principled constitutional innovation. The questions raised are not covered by precedent. But that is precisely why they matter.

If the Judiciary sees its role only as passive interpreter of settled law, it will falter in moments of national complexity. If it sees itself as a guardian of constitutional balance, it will take this opportunity to lead.

What’s at Stake Is Larger Than a Civil Suit

At face value, the case appears to involve a civil claim by an individual alleging private misconduct by the Prime Minister before he took office. But beneath that surface lies a broader constitutional tension:

Can the Judiciary allow a politically sensitive, stale claim — already dismissed by prosecutors — to proceed in civil court against a sitting Prime Minister?

Does the Federal Constitution implicitly provide any safeguard to prevent the paralysis of governance through civil litigation weaponised for political gain?

Should there be a threshold test for claims brought against the head of government based on pre-office conduct?

These questions are not found in casebooks. But they are foundational to institutional stability. And the only court constitutionally equipped to answer them is the Federal Court.

Precedent Is a Floor, Not a Ceiling

Judges often say they are bound by precedent — and rightly so. But in matters of first impression, precedent cannot bind where it does not exist. It can only guide.

In Latheefa Koya v MACC and related cases, the Federal Court was confronted with a constitutional vacuum: how should investigators approach sitting judges? There was no express provision in the Constitution. No settled law. No clear limit. Yet the Court did not avoid the question. It answered it — and in doing so, it created the MACC-Judiciary protocol.

It held that:

Judges can be investigated, but only through a process initiated by the Chief Justice;

The Chief Justice must screen for frivolous or malicious complaints before any external agency steps in.

That protocol was not written into the Constitution. It was crafted from constitutional principles — judicial independence, institutional integrity, and separation of powers.

This is a moment to do the same.

The Danger of Judicial Hesitation

If the Federal Court declines to engage, the system will suffer:

The High Court will be left to shoulder the burden of deciding unprecedented constitutional questions without clarity.

The Executive may be hamstrung by litigation filed by individuals with dubious credibility and political motives.

The public may lose confidence in the ability of the Judiciary to defend constitutional balance when it matters most.

This isn’t about giving the Prime Minister a pass. It’s about asking the Federal Court to fulfil its constitutional role as the guardian of structural equilibrium — especially when one branch of government is threatened with destabilisation through strategic litigation.

The Judiciary Must Be a Constitutional Leader, Not a Constitutional Bystander

Article 128(2) exists to empower — not restrain — the apex court. When invoked, it is a call to lead.

Judicial leadership means:

Having the courage to answer questions no court has answered before.

Drawing principled limits when legal processes are misused to achieve political outcomes.

Protecting the constitutional integrity of institutions, not just individual rights.

A Judiciary that leads strengthens democracy. One that lingers invites disorder.

Conclusion: The Court Must Speak — Because the Constitution Is Silent

This reference gives the Federal Court a moment of constitutional consequence. Not just to interpret words, but to construct principles where the text is silent and precedent is absent.

The question is not whether the Prime Minister can be sued.

The real question is: can the Executive be functionally sabotaged by civil claims filed under the guise of justice but timed for political disruption?

That is a question only the Federal Court can answer. And it must.

The nation is watching — not to see whether the court will side with the PM, but whether it will side with the Constitution.

*The author is an experienced legal practitioner who frequently engages in legal discourse