‘Once vacancy confirmed, EC is legally bound to call by-election’
PETALING JAYA: Election analyst Dr G. Manimaran said the Lamag state seat must return to the polls following the death of its incumbent Datuk Seri Bung Moktar Radin, adding that there is no room for legal improvisation.
He said the law is unequivocal: Once a vacancy is confirmed, whether or not the elected representative has been sworn in, the Election Commission (EC) is legally bound to call a by-election.
He also said the electoral framework leaves no space for creative interpretations or political shortcuts.
“A fresh mandate from the voters is required. That is what the law demands,” he told theSun via WhatsApp.
He said the Election Act 1958 contains no provision that allows the second-highest vote-getter to automatically inherit the seat, adding that the idea is inconsistent with Malaysia’s first-past-the-post system.
“This is not permitted under electoral law.
“The legal framework only provides for two things; the declaration of a vacancy and the requirement to hold a by-election.”
Manimaran said any suggestion that the losing candidate should be awarded the seat simply because the winner has yet to be sworn in is not only legally flawed but also democratically dangerous.
He added that the oath-taking ceremony is an administrative step and not what confers legitimacy on an elected representative.
“Whether the elected representative has taken the oath or not does not change the fact that he was duly elected.
“If a vacancy arises afterwards, the law triggers a by-election. The oath is not what gives him legitimacy, the voters do.”
He also said the constitutional responsibility of the EC is clear-cut, adding that once the speaker officially notifies the commission of a vacancy, the commission must fix an election date within the stipulated time frame.
“This is not a discretionary matter. It is a legal obligation.
“The EC must act once a vacancy is formally declared.”
Bung Moktar, who was also the Kinabatangan MP, died just days after the 17th Sabah state election, during which he defended his Lamag seat at the age of 66.
His son, Naim Kurniawan Moktar, confirmed his passing in a Facebook post, saying Bung died at 1.46am on Dec 5 following complications from a severe lung infection and kidney failure.
Under Article 54 of the Federal Constitution, any parliamentary vacancy must be filled within 60 days from the date it is officially declared vacant by the EC.
A by-election is not required if the vacancy occurs less than two years before Parliament’s five-year term expires.
The current parliamentary term began after the Nov 19, 2022 general election and ends on Dec 19, 2027, meaning the two-year cut-off has not been reached.
However, even when less than two years remain, a by-election must still be called if the vacancy affects the numerical strength of the government in the Dewan Rakyat.
Because Bung Moktar died only days before the point at which a by-election could legally be bypassed, his passing effectively locks in the requirement for a parliamentary by-election in Kinabatangan.
