Only EC can declare seat vacant, says ex-EC official

Former Election Commission deputy chairman Wan Ahmad Wan Omar says the role of the Speaker is only to notify the commission about the presumed vacancy.

(FMT) – A former Election Commission (EC) official insists that only the EC has the right to declare a seat vacant.

On Thursday, Selangor state assembly Speaker Ng Suee Lim announced that the Batang Kali state seat had been declared vacant after Pejuang’s Harumaini Omar failed to attend state assembly sittings for more than six months since July 28 last year.

Harumaini has since demanded that Ng retract his statement as he said the Speaker had no right to declare the seat vacant, which he said is the prerogative of the EC as stipulated in the Federal Constitution.

Speaking to FMT, Wan Ahmad Wan Omar, who served as the EC’s deputy chairman from 2004 to 2013, said it is not up to the Speaker to declare a seat vacant.

“The Speaker was doing the right thing to notify the EC about the presumed vacancy, but it’s not the Speaker’s (role) to declare the seat vacant,” said Wan Ahmad.

“It is the EC’s (role), after getting all the facts of the case.

“Anything to do with a declaration of a seat vacancy, the power is with the EC. It is the EC’s responsibility, nobody else’s.

“Only the EC can officially declare a seat vacant, and subsequently determine the date of vacancy as well as dates to hold a by-election to fill the vacancy.”

Wan Ahmad said it would be a different matter if a seat is vacant due to an elected representative’s death, his loss of eligibility under the law, being declared bankrupt, or being convicted of a criminal offence which carries a fine of more than RM2,000, or a year’s imprisonment.

He added that the facts of Harumaini’s case must be “interpreted correctly” in the context of the law and state constitution, adding that he presumed Ng would have referred the matter to the state’s legal adviser prior to making the announcement.

In a statement on Friday, Harumaini said that Section 12(3) of the Elections Act 1958 stipulates that a state assembly seat can only be declared vacant by the EC.

He added that he only missed the third sitting, which started on Nov 23, 2022. Citing the Selangor constitution, he argued that his six-month period of absence should start from Nov 23, 2022, and expire on May 22, 2023.

Harumaini also said he was giving Ng three days to respond before he considers taking legal action against him.

FMT has reached out to EC chairman Abdul Ghani Salleh for comment.