IDEALLY, a vote of confidence should be called in Parliament to determine if Prime Minister Muhyiddin Yassin has majority support to continue heading the government. 

But the Federal Court in the Menteri Besar (MB) of Perak case of Mohammad Nizar bin Jamaluddin v Dr Zambry bin Abdul Kadir (Attorney-General, intervener) [2010] 2 MLJ 285 held that the loss of confidence in the MB may not only be established through a vote in the State Legal Assembly (SLA) but may also be gathered from other extraneous sources provided they are properly established. Such sources include representations made by members of the SLA that the MB no longer enjoys the support of the majority of the members of the SLA.

In that case, there was demonstration of support by 31 members of the SLA for Barisan Nasional (BN). This clearly pointed to the loss of confidence of the majority of the members of the SLA in the leadership of the incumbent MB, even without a vote in the SLA.

Put simply, the question of confidence in the prime minister may be determined by means other than a vote of no confidence in Parliament. And this is consistent with the principles of parliamentary democracy.

Governments in parliamentary democracies are not directly elected by the people but are formed on the support of Parliament. In other words, on the basis of parliamentary confidence. (See Elliot W. Bulmer, Government Formation and Removal Mechanisms (2017).

In a parliamentary democracy, the prime minister is not directly elected by the citizens, but is normally nominated or appointed – as the case is in Malaysia – by the head of state – the king in Malaysia. However, the head of state may not have very much discretion in designating a prime minister, since the first principle of parliamentary democracy is that the government must be chosen on the basis of parliamentary confidence.

Confidence simply means support. According to Bulmer, a government is said to enjoy the confidence of parliament when a majority of the members of parliament politically support the government and give consent to its appointment and continuance in office. (Emphasis added)

A formal expression of the support and consent is the vote of confidence in Parliament. The informal expression must be the “other means” which may be gathered by “extraneous sources provided they are properly established”. In parliamentary democracies, government formations are intensely political as much as they are legal processes.

How true is that of Malaysia now!

Until and unless the Federal Constitution is amended, Malaysia is typical of parliamentary democracies. – September 26, 2020.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.