LETTER | I refer to Syahredzan Johan's article Revisiting the case of Nizar v Zambry. 

As the writer said, some may not agree with the decision of the Federal Court in Nizar v Zambry that the loss of confidence in the menteri besar of Perak may not only be established through a vote in the state legislative assembly but may also be gathered from other extraneous sources provided they are properly established. Such sources include representations made by members of the assembly that the MB no longer enjoys the support of the majority of the members of the House.

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

Put simply, the question of confidence in the prime minister may be determined by means other than a vote of no confidence in the Dewan Rakyat. Like it or not, this is not inconsistent 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] available online).

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 (my emphasis).

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” as the Federal Court put it. 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 will continue to be typical of parliamentary democracies where the government's democratic legitimacy is dependent on the support of parliamentarians - our "Yang Berhormats".

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