No five-year ban: Rafizi, Nik Nazmi free to contest again after 2022 constitutional change, experts say

SHAH ALAM – Claims circulating that politicians who resign from Parliament are automatically barred from contesting elections for five years under Article 48(6) of the Federal Constitution are no longer valid, following a 2022 constitutional amendment that repealed the provision.

The clarification comes amid public discussion over the resignations of PKR deputy president Datuk Seri Rafizi Ramli and Setiawangsa MP Nik Nazmi Nik Ahmad, with concerns raised online about whether both leaders would be disqualified from contesting in future elections.

Political analyst Arif Anwar Lokmanol Hakim said Article 48(6) previously imposed a strict penalty on MPs who voluntarily resigned from their seats.

“A person who resigns his membership of the House of Representatives shall, for a period of five years beginning from the date on which his resignation takes effect, be disqualified from being a member of the House of Representatives,” he said, citing the former provision.

Arif said that under the earlier framework, MPs who vacated their seats could not stand in any parliamentary election for five years unless the disqualification was otherwise lifted.

However, he said this position changed after constitutional amendments linked to the anti-party hopping law were passed in 2022, which saw Article 48(6) repealed and replaced by Article 49A.

Arif said Article 49A now governs situations where MPs vacate their seats due to party switching, stating that a member’s seat becomes vacant if they resign or cease membership of the political party under which they were elected.

He said the amendment was introduced to prevent legal conflict between the former resignation penalty and the new anti-hopping mechanism.

“The repeal was necessary to avoid a constitutional overlap, as the new Article 49A already sets out the consequences of party-hopping,” he said.

Arif added that under the current legal framework, MPs who resign are no longer automatically barred from contesting elections and may return as candidates in future polls, including GE16, provided they meet all other eligibility requirements under Article 48.

In the meantime, political analyst Dr Oh Ei Sun said the original provision was intended to deter MPs from resigning strategically and re-contesting seats to test their popularity, which previously created political instability through repeated by-elections.

He said the repeal of Article 48(6) formed part of a broader “grand bargain” between political blocs and lawmakers during the anti-hopping law negotiations.

“At that time, the understanding was that MPs would be free to resign or switch positions, but not switch parties without consequences,” he said.

Dr Oh added that the removal of the five-year disqualification strengthens democratic choice by allowing voters to continue supporting candidates of their preference without artificial restrictions on eligibility.

“Sure they can. I actually think the repeal was a good thing, because the previous provision was very anti-democratic,” he said.

He said public understanding of the amendment remains uneven, noting that many citizens are still unaware of how the legal framework around defections and resignations has changed.

The issue of eligibility has resurfaced following speculation over whether Rafizi and Nik Nazmi would be barred from contesting future elections after stepping down from their parliamentary posts.

Under the current constitutional position, both leaders remain eligible to contest in elections, as the five-year disqualification previously imposed under Article 48(6) is no longer in force.

However, the analysts noted that political considerations and party agreements may still play a role, including potential civil disputes involving party loyalty bonds or contractual obligations between parties and candidates.

Legally , they said that resignation from Parliament no longer carries an automatic five-year electoral ban under Malaysian constitutional law.