ONE of the most common criticisms levelled at the Prime Minister’s constitutional reference is deceptively simple: “Why now? No Prime Minister before him has ever raised this.”

The implication is that if past Prime Ministers were able to face lawsuits without raising constitutional objections, then Datuk Seri Anwar Ibrahim must be acting improperly or defensively by doing so now.

That argument fails both logically and constitutionally.

In constitutional law, novelty is not a flaw. It is often a trigger for legal development. The fact that a constitutional question has not been raised before does not mean it is invalid. It simply means the right circumstances had not yet arisen.

Until now.

Constitutional Questions Are Not Static

Constitutional litigation is not about replaying old battles. It is about answering new ones. The Federal Constitution is a living document — not because it changes its words, but because new scenarios arise that the framers never anticipated.

No Prime Minister before now has faced this exact combination of:

• A civil suit based on an allegation of private conduct from before assuming office;

• A claim that was previously dismissed by the Attorney General’s Chambers as unfit for criminal prosecution;

• A Plaintiff who is currently on remand, awaiting a verdict for drug trafficking and firearms offences, and whose credibility is under serious doubt;

• An ongoing attempt to push the civil suit into trial while the Prime Minister is in office and leading a fragile coalition in a volatile region.

When the circumstances are new, the questions must be new. That’s how constitutional evolution works.

The Judiciary Has Faced This Before — and Rose to the Occasion

The MACC-Judiciary confrontation is the clearest precedent here. When the Malaysian Anti-Corruption Commission began investigating sitting judges without notifying the Chief Justice, it triggered a constitutional crisis. There was no express provision in the Constitution to guide the situation. No previous cases had addressed it.

Did the Federal Court say, “No judge has raised this before, so there’s nothing to see here”?

No. It intervened, and crafted a new judicial protocol:

• Any investigation into a judge must first be brought to the attention of the Chief Justice;

• The CJ would determine if it was frivolous or warranted referral to investigative authorities;

• This protocol was based not on black-letter constitutional text, but on implied principles — such as judicial independence and institutional integrity.

The result? A stronger, clearer constitutional framework — even though no one had raised the issue before.

The Prime Minister’s reference does the same. It asks: Is there an implied constitutional protection for the Executive when politically timed civil suits, based on pre-office conduct, threaten to disrupt national governance?

That is a legitimate — and urgently needed — question.

Every Constitutional Principle Begins Somewhere

Let’s not forget: most of our great constitutional principles began with someone being the first to ask.

Kesavananda Bharati in India was the first to ask if Parliament could destroy the Constitution’s basic structure. No one had asked it before — but the answer became the foundation of constitutional doctrine for decades.

In Malaysia, the right to life under Article 5(1) was once interpreted narrowly. Then came cases like Tan Tek Seng and Lee Kwan Woh, which expanded it to include dignity and access to justice.

Constitutional breakthroughs begin with courageous litigation — not conformity.

If we punished people for being the first to raise a valid question, our Constitution would be frozen in time, incapable of responding to new abuses, new threats, or new institutional crises.

“Why Now?” Is the Wrong Question

The real question is not, “Why hasn’t this been raised before?”

The real question is, “Now that the issue has finally arisen, will we allow the courts to address it properly?”

And the answer should be yes — because the Judiciary’s job is not just to interpret past precedent, but to chart the constitutional path forward when the law is unclear.

Conclusion: First Doesn’t Mean Wrong

The Prime Minister’s constitutional reference is not illegitimate simply because no one before him filed such an application. If anything, it is long overdue.

We live in an era where litigation has become a political weapon. If the Constitution provides implied protections for the Judiciary against improper interference, then the same question must be asked about the Executive.

Being the first to ask that question is not suspicious. It’s responsible.

It’s time we stopped punishing people for being early — especially when they’re asking the very questions the Constitution was designed to answer.

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