Islamic party PAS’ reaction to the Federal Court’s decision to invalidate 16 of the 18 laws the party introduced in Kelantan to make its laws more Islamic is understandable. The optics of that decision is unfavourable to PAS.

It would seem as if PAS’s religious laws can be overturned by the apex court of the land, the Federal Court. That would make the religious party’s religious stand look powerless. That’s the optics; it’s not the truth.

The truth is that the Federal Court did not touch on any religious issue. It merely upheld what the federal constitution required: that state laws must not contravene federal laws. In Kelantan’s case, the 16 invalidated laws were already covered by federal laws and there was no need for similar laws with different sentences at the state level.

In PAS’ zealousness, it overlooked federal laws. Two Kelantan-born lawyers who saw the discrepancy took the issue to court and the said laws were overturned. A precedent has been set and concerned citizens in other states can also take state laws to court to get judicial clarification.

This case shows that when the people’s representatives act or fail to act in accordance with the constitution, they can be taken to court.

This has happened before when lawyers sought clarification in courts as to whether the previous king acted constitutionally when appointing the three prime ministers, namely Muhyiddin Yassin, Ismail Sabri Yaakob and Anwar Ibrahim, to form their respective governments.

Those cases were thrown out because the courts declared that the courts had no jurisdiction over the king. The lawyers made the mistake of seeking clarification on whether the king acted constitutionally when they should have queried whether the MPs acted constitutionally.

If the MPs and the political parties acted in accordance with the constitution, the king will have no choice but to act constitutionally. If they didn’t is there any point in scrutinizing if the king did while the MPs get off scot-free?

It is not the king who forms the government, the MPs do. So, whatever constitutional clarifications are sought by the plaintiffs, the defendants need to be the MPs, the political parties and the governments they formed — not the king.

The question that should be put before the courts for clarification is whether the MPs and political parties formed the current unity government (no point in questioning the previous two administrations as they no longer exist) in accordance with the federal constitution.

Such clarifications are needful to clear whatever doubts the people may have about the constitutional legitimacy of the current administration.

After the Federal Court judgements on Kelantan’s state Islamic laws, surely, the thought of seeking court clarifications on the constitutional position of the unity government must have crossed the minds of a number of people, perhaps, even the Opposition coalition, Perikatan Nasional (PN).

Article 43(2)(a) of the Federal Constitution states: The Yang di-Pertuan Agong shall first appoint as prime minister to preside over the Cabinet, a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House.

Should PN or anyone else take this issue to court, the primary objective must be to ascertain if after the 2022 General Election, the prime minister-designate Anwar showed proof of support from the majority of MPs in the Dewan Rakyat to the king for him to be named as prime minister, and, subsequently, whether he and the political parties which joined him formed the unity government according to the federal constitution.

PN is considering legal means to annul the membership of six of its members who had declared support for Anwar in order to receive constituency development funding. They declared support for Anwar but chose to remain as Bersatu members to get around the Anti-hopping law. If Bersatu can legally annul their membership, the MPs will have to vacate their seats and by-elections will be called unless the six MPs take the matter to court.

Since PN is considering legal means to stop its MPs from declaring support for Anwar, it would not be surprising if the coalition has also considered taking legal action against the unity government to prove its constitutional legitimacy.

If it did and follows through, PN would be demonstrating exemplary leadership in ensuring conformity with the federal constitution. If MPs and their political parties had failed to act constitutionally in forming the unity government, then this government can not continue and why are the MPs keeping quiet about it?

If the government will not take pains to ensure constitutional fidelity, it is the responsibility of the Opposition — which is PN in this case — to take drastic steps if needed — like taking the government MPs and political parties to court — to restore a constitutional government.

Anwar claims he has majority support because of the Memorandum of Understanding (MoU) he signed with the political parties which joined him to form the unity government. The MoU demands that the parties ensure that their MPs do not vote against him. With that he did face a confidence vote but it was a farce because the MPs could not vote freely because of the MoU.

So, the MoU is another issue that may need the courts’ clarification as to whether it deprived the MPs of their constitutional rights. One of the architects of the Anti-hopping law, former Senate President Wan Junaidi Tuanku Jaafar, has said that political parties can take action under the Anti-hopping law against members who switch sides.

The laws need to be studied to see if there are grounds to challenge the MoU and likewise the legitimacy of the current administration.

PN is in the best position to undertake this grave responsibility to ensure that MPs act constitutionally. If it does, it will be showing it has the courage and will to serve the people according to the federal constitution and will earn the trust and respect of the people to govern with an unflinching commitment to the federal constitution. It would be a desirable next government.

Seeking a court clarification on whether this government was formed constitutionally will also serve notice to MPs that if they do not act according to the constitution, they can be taken to court.

The people have a right to know if the government of the day is constitutional and therefore legitimate. If the government will not prove it, then, it is the duty of the Opposition to prove it is or not. Failing to do so by government or Opposition MPs is simply a dereliction of duty.