Of vacancies and by-elections

Will the sad and untimely death of Datuk Seri Bung Moktar Radin trigger federal and state by-elections?

THE late Datuk Seri Bung Moktar Radin held two different seats at the time of his death – the federal Parliament seat of Kinabatangan and the Sabah Assembly seat of Lamag – to which he had just been re-elected on the Barisan Nasional ticket on Nov 29 in a tight six-cornered contest.

However, he had not yet been sworn in as an Assembly member.

His sad demise raises a number of constitutional issues. First, as no swearing-in had yet taken place in the Sabah Assembly, can the Lamag seat be awarded to the runner-up? Or does his death trigger a state by-election in Lamag?

Likewise, must the “casual vacan­cy” in the federal Kina­ba­tangan constituency be filled by a by-election?

To the best of my knowledge, there is no provision either at the federal or state level for the award of an electoral seat to a runner-up in case of a casual vacancy.

And rightly so.

A runner-up is not a victor and must seek the popular mandate.

So, the constitutional issue is whether there are two impending by-elections in the months ahead, and whether these by-elections will affect the stability of the existing federal and state governments.

Dewan Rakyat: A by-election for filling a casual vacancy in the Dewan Rakyat is governed primarily by Articles 54 and 48 of the Federal Constitution, the Elections Act 1958, the Election Offences Act 1954 and derivative subsidiary regulations.

A by-election must be held when a seat falls vacant due to:

> Death of an MP;

> Resignation under Article 51 of the Federal Constitution;

> Disqualification under Article 48(1)(a) to (f);

> Annulment of election by a court order under Article 118 and 118A; or

> Loss of their seat under the recently enacted defection laws. The punitive grounds are that an Independent MP joins a political party or a party MP resigns from his party and joins another party or coalition.

Under Article 54(1), whenever a casual vacancy occurs within the first three years of the life of a Parliament, a by-election shall be held within 60 days from the date that the Election Commission (EC) is informed by the Speaker. The Commission then has the power to establish that there is a vacancy. It determines the legal status of the vacancy (e.g. death, court order, resignation letter, etc).

The EC then issues a writ (order) under section 12 of the Elections Act 1958 fixing the nomination date, the campaign period and the polling date.

According to the Conduct of Elections Regulations 1981, and practice, the nomination day is usually seven to 10 days after the writ; the campaigning period is a minimum of seven days; and polling is usually within two to four weeks after nomination. The entire process must fit within the 60-day constitutional window.

Three years: It is noteworthy that the three years are calculated not from the date of the General Election (held on Nov 19, 2022) but from the date the Parliament was first summoned to meet by the Yang di-Pertuan Agong. For the current 15th Parliament, the date of summoning was Dec 19, 2022, for the first sitting. The first three years will expire on Dec 16, 2025 – just a few days from today.

Exceptions: To the constitutio­nal rule that a by-election must be held within 60 days of the esta­blishment of a casual vacancy, there is an important exception.

If a seat becomes vacant after three years (i.e. in the fourth or fifth year of Parliament), a by-election need not be held.

No by-election is to be held if the vacancy arises at a date which is less than two years from the date (Dec 14, 2027) on which Parliament’s five-year mandate is expiring under Article 55(3).

The above exception is itself subject to an exception in the proviso to Article 54(1).

If the Dewan Rakyat Speaker notifies the Elec­tion Commission in writing that the numerical strength of the party that constitutes a majority of all the members of the House is being affected by such a vacancy, then in such an event, the vacancy shall be filled within 60 days from the receipt of that notification from the Speaker.

No such notification from the Speaker is necessary today because of the government’s comfortable majority in the Dewan Rakyat. But what the political developments will be in the next two years is a matter of conjecture.

State Legislative Assembly: State by-elections mirror the federal scheme.

> The vacancy triggers are similar (death, resignation, disqualification, annulment of election by a court and the penalty attached to party-hopping); and

> A by-election must be held if the EC is informed by the State Speaker of the vacancy. The Commission then has the power to establish that there is a vacancy. State Constitutions reflect federal law in Article 54.

Summary: In Malaysia, by-elections are constitutionally manda­ted for both parliamentary and state seats unless the vacancy occurs in the last two years of the legislature’s tenure. Once the EC makes the determination, it has 60 days to run the entire process, from vacancy to polling.

In the case of the vacancy in Sabah, the by-election is clearly mandated by the law. In the case of the parliamentary vacancy, there is some scope for speculation. Much depends on when the Dewan Rakyat Speaker officially informs the EC (within or outside the three years from the date of the first sitting) that a casual vacancy has occurred and the EC so determines.

Prof Emeritus Datuk Dr Shad Faruqi is a principal research fellow at Universiti Malaya.

The views expressed here are the writer’s own.