CRITICS of the Prime Minister’s constitutional reference application have complained that the issues raised are unprecedented, novel, and not grounded in previous case law. Ironically, that’s exactly why the application was made — and exactly why it must be heard.

Malaysia’s Federal Constitution is not a checklist of pre-approved litigation topics. It is a dynamic charter designed to deal with evolving legal, political, and institutional challenges. And when the Constitution is unclear or silent on a matter of serious national consequence, Article 128(2) provides a clear and orderly process for the Federal Court to step in and clarify the law.

That is precisely what the Prime Minister has done — not to evade legal responsibility, but to seek judicial clarification on a matter that affects the stability of constitutional governance.

What is Article 128(2) for?

Article 128(2) of the Federal Constitution gives the Federal Court exclusive jurisdiction to decide any question on the effect of a constitutional provision that arises in proceedings before a High Court. It exists for a reason: to allow the Judiciary — not politicians, not the public — to determine the meaning and limits of the Constitution when disputes raise new and unresolved constitutional questions.

The Prime Minister’s reference does exactly that. Among other things, it asks:

Whether a civil suit based on pre-office conduct can constitutionally proceed if it undermines the Executive’s ability to govern;

Whether Article 5(1) (personal liberty) and Article 8(1) (equality) require protection from politically driven litigation that lacks prima facie merit;

Whether implied constitutional principles — such as proportionality, separation of powers, and institutional integrity — demand some form of threshold scrutiny in politically charged claims involving a sitting Prime Minister.

These are not procedural questions. They are not even purely legal. They are constitutional — and only the Federal Court can answer them.

The Constitution must grow with the country

The notion that only previously decided questions are worth asking is deeply flawed. Constitutional law, by its nature, must grow with the needs of the society it governs.

When the Federal Court developed the judicial protocol on investigating judges in cases involving the MACC, it was responding to a gap in the Constitution. There was no express provision that governed how judges should be investigated. Yet the Court rightly found that the principle of judicial independence demanded a clear process — and so it created one.

The Constitution was silent. But the Court was not.

The same logic applies here. The Constitution does not say whether politically timed, reputation-damaging civil suits against a sitting Prime Minister require special scrutiny. But that doesn’t mean the issue is unworthy. It means the courts must step in — just as they did when protecting judicial independence — to clarify whether the Executive, too, deserves some form of institutional safeguard.

The Federal Court is not a Court of Last Resort — It’s a Court of First Constitutional Resort

In Malaysia, we often think of the Federal Court as the final appeal court. But under Article 128(2), it is actually the first court to answer constitutional questions when they arise mid-trial. This gives our system clarity, coherence, and hierarchy. It ensures that the Constitution means what the apex court says it means — not what a lower court, the media, or political actors assume it means.

That’s why the Prime Minister’s reference is constitutionally proper. It is not a delay tactic. It is not a detour. It is the only legitimate path forward when such constitutional ambiguity arises.

Conclusion: This is the right question in the right forum

Far from undermining the legal process, the Prime Minister’s reference affirms his faith in it. He has taken the unprecedented step of putting constitutional questions before the highest court in the country — because that’s exactly where such questions belong.

If the Federal Court agrees that no protections exist, the case proceeds. If it finds that the Constitution does imply certain structural safeguards, then Malaysia’s constitutional system will have grown stronger for it.

That is what mature democracies do: they clarify before they escalate. And they trust their apex courts to draw the lines where the Constitution is silent.

That’s what the Prime Minister has done. And it’s what responsible constitutional leadership looks like.

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