Explainer: What makes a by-election necessary in Malaysia, and when it is not?

KUALA LUMPUR, Aug 18 — The Election Commission (EC) has said there will not be a by-election held in the Subang parliamentary constituency following its incumbent Wong Chen’s resignation. 

A similar decision was made when Datuk Seri Rafizi Ramli and Nik Nazmi Nik Ahmad vacated their Pandan and Setiawangsa parliamentary seats respectively in May.

So, what calls for a by-election in Malaysia?

By-elections are held when a seat falls vacant for reasons other than the dissolution of Parliament.

Article 54(1) of the Federal Constitution requires a by-election to be held within sixty days from the time the EC gets notified about a vacant seat. 

A seat becomes vacant if the incumbent resigns, gets expelled, passes away or gets disqualified from holding office.

Members of Parliament (MPs) or state assemblymen can lose their seats for a number of reasons, including: 

• being of unsound mind
• is an undischarged bankrupt 
• holding an office for profit
• failing to declare election expenses 
• absence from every Dewan Rakyat or the State Legislative Assembly sitting for six months (unless granted leave of absence)
• failure to take oath of office within three months after Dewan Rakyat convenes
• becoming citizen of another country
• simultaneous membership in Dewan Rakyat and Dewan Negara
• convicted of a criminal offence and sentenced to one year’s imprisonment or a fine of RM2000 or more. 

However, the disqualification following a criminal conviction only takes place after the MP fails in his appeals or after the disposal of his petition for a royal pardon.

Following the introduction of Article 49A or popularly known as the anti-party hopping law in 2022, MPs also automatically lose their seats when they switch parties. 

What about resignations then? 

MPs can choose to resign but it does not necessary trigger a by-election. 

Article 54(1) provides for two exceptions. 

Firstly, if the vacancy falls within two years before the Parliament naturally dissolves, the seat does not have to be filled. 

The current Parliament term, which commenced in December 2022, expires in December 2027 and a general election must be held within 60 days from the date of dissolution. 

Secondly, the vacancy will not have be filled if it does not affect the numerical strength of the party that commands a majority in the Dewan Rakyat. 

The unity government led by Pakatan Harapan (PH) currently controls two-thirds of the Dewan Rakyat with the support of Barisan Nasional, Gabungan Parti Sarawak and Gabungan Rakyat Sabah. 

Under the two conditions, the vacancies in Subang, Pandan and Setiawangsa seats can remain vacant until the next general election is called.