When two MPs resign late: must there be by-elections at Pandan and Setiawangsa?

When two MPs resign late: must there be by-elections at Pandan and Setiawangsa?

Two MPs have resigned late in Parliament’s term; the Constitution does not guarantee by-elections.

by GK Ganesan May 18, 2026 207 Views

The facts

On 17 May 2026, Datuk Seri Rafizi Ramli (Pandan) and Nik Nazmi Nik Ahmad (Setiawangsa) wrote to the Speaker of the Dewan Rakyat, Tan Sri Johari Abdul.¹

Each said, in effect, “I resign.”

Article 51 of the Federal Constitution permits an MP to resign “by writing under his hand” addressed to the Speaker.² Two letters were written. Two seats fell vacant.

That much is easy.

The harder question is this: must the voters of Pandan and Setiawangsa now be summoned to the polls to choose new MPs?

The answer is not obvious. The answer, in truth, turns on one man.

A little arithmetic

Our Fifteenth Parliament first sat on 19 December 2022.³ Under Article 55(3), Parliament lasts five years from that day and then dissolves on its own. So the present Parliament must end on or before 19 December 2027.⁴

Subtract two years. You arrive at 19 December 2025.

That date matters. It is the line.

The two MPs resigned in May 2026. Five months after the line.⁵

That makes their resignations late.

And in our Constitution, “late” is a term of art.

What Article 54 actually says

Article 54(1) sets the ordinary rule. When a “casual vacancy” arises in the Dewan Rakyat, it must be filled within sixty days from the date the Election Commission establishes the vacancy. An election must be held.⁶

When read alone, that appears to promise a by-election in every case- when read alone.

But the same Article carries a second proviso — and that proviso changes everything. Where a casual vacancy is established within two years of dissolution, it need not be filled at all — unless the Speaker notifies the Commission, in writing, that the vacancy ‘affects the numerical strength of the majority party’ in the Dewan Rakyat.⁷

If he so notifies, the Commission must act within sixty days.⁸

If he does not, the seats stay empty until the next general election.

So a Constitution that appears to guarantee by-elections does no such thing in the last two years of a Parliament.

Odd, that.

So who decides?

In the first three years, nobody really decides. The Commission counts the days, issues the writ, and the voters vote. It is mechanical.⁹

In the last two years, one man decides: the Speaker.

If the Speaker is satisfied that the loss of Pandan or Setiawangsa affects the numerical strength of the Government’s majority, he must notify the Commission; a by-election then follows within sixty days.¹⁰

If he is not satisfied, he does nothing.

And nothing happens.¹¹

The Commission’s part

Suppose the Speaker does notify. What then?

The Elections Act 1958 requires the Commission to issue a writ of election to the returning officer — not earlier than four days, not later than ten — from the date the vacancy is established.¹² Regulation 3(1) of the Elections (Conduct of Elections) Regulations 1981 requires nomination at least four days after the notice, and polling at least seven days after nomination.¹³

The Commission has no discretion. None.

The Speaker pulls the trigger: the Commission runs the race.

The independence of the Commission

The Commission is shielded with care.

Section 6 of the Election Commission Act 1957 gives its members the same protections as Magistrates for acts done or omitted in office. They cannot be sued personally for election decisions.¹⁴ Section 7 makes members, officers and servants of the Commission public servants for Penal Code purposes.¹⁵

Section 8 makes it a criminal offence wilfully to give false or misleading information to the Commission in connection with its functions. Fine up to RM2,000, jail up to two years, or both.¹⁶

Section 10 makes it a criminal offence to influence, or attempt to influence, any decision of the Commission. Same penalty range.¹⁷

The message is plain. Speak the truth to the Commission: leave its decisions alone.

Political pressure on it, is a crime.¹⁸

How is time counted?

A small but important matter.

Under the Interpretation Acts 1948 and 1967, “year” and “month” mean calendar year; and month, Gregorian.¹⁹ Section 54(1) of those Acts excludes the day of the event when counting days from it; and if the last day is a weekend or public holiday, the period runs to the next working day.²⁰

So the two-year window in Article 54(1) is counted back from the dissolution date under Article 55(3). The sixty days run from the day after the Commission receives the Speaker’s notification.²¹

The old five-year ban — and its quiet death

There used to be a deterrent against staged resignations.

Article 48(6) once disqualified a resigning MP from sitting in the Dewan Rakyat for five years from the date of his resignation.²² It was meant to dissuade theatrical resignations engineered to force a by-election.

It is gone.

The 2022 amendment that introduced the anti-hopping provision (Article 49A) repealed it.²³

So Rafizi and Nik Nazmi may contest a by-election — if one is called — or the next general election. Subject to the other grounds of disqualification in Article 48, and subject to whichever party (if any) is prepared to put them up.²⁴

A five-year exile has become a five-minute pause.

Whether that is wise is an essay for another day.

Five things every voter should know

[1] The two resignations were validly tendered under Article 51. The seats are vacant.²⁵

[2] The resignations fall in the last two years of the Parliament that began on 19 December 2022.²⁶

[3] In the last two years, there is no automatic right to a by-election. Article 54(1) lets the seats lie empty unless the Speaker acts.²⁷

[4] Whether Pandan and Setiawangsa go to the polls now depends on the Speaker’s view of whether the Government’s majority is affected.²⁸

[5] Once a by-election is properly triggered, the Commission runs on rails: strict timeframes, statutory protection from interference.²⁹

In short: a late resignation does not guarantee a by-election in Malaysia. Whether the voters of Pandan and Setiawangsa choose new MPs now turns on one man’s view of the arithmetic — and on the Commission’s faithful obedience to the law.

Odd, isn’t it?

∞§∞

This article is written for a general readership and does not constitute technical or legal advice. Readers with legal questions are encouraged to seek independent legal advice.

The author thanks KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi at GK Legal. For the image, we thank — at Unsplash.

Drafting assistance was provided by Claude, an AI model built by Anthropic. The truth is something better and stranger: an old advocate and a piece of software sat down together on a Monday afternoon and made one essay better than either could have made alone. That is not pastiche. That is a third thing, with a name we have not yet invented. The argument, the views, and any errors remain those of the author.

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When two MPs resign late: must there be by-elections at Pandan and Setiawangsa?

The facts

A little arithmetic

What Article 54 actually says

So who decides?

The Commission’s part

The independence of the Commission

How is time counted?

The old five-year ban — and its quiet death

Five things every voter should know

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