ECP withdraws Senate by-election notification after ruling no lawful vacancy existed

The Election Commission of Pakistan (ECP) formally withdrew its April 2 notification for a Senate by-election in Khyber Pakhtunkhwa on Friday. The seat had been declared vacant following the disqualification of Pakistan Tehreek-e-Insaf (PTI) senator-elect Murad Saeed. The withdrawal came after critics accused the ECP of overstepping its authority by interpreting the constitution to argue that no lawful vacancy had been created.

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Where a person is required by the Constitution to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath.

Murad Saeed was declared a returned candidate for a general Senate seat on July 24, 2025. However, he was convicted by Rawalpindi's Anti-Terrorism Court-I on March 7 this year and sentenced to 10 years imprisonment. Subsequently, on March 25, the ECP determined that Saeed was disqualified under Article 63(1)(h) of the Constitution, leading to his seat being declared vacant and a by-poll scheduled for April 23.

The ECP's detailed order clarified the distinction between a "returned candidate" and a "Member of Parliament." The commission stated that while the publication of a notification signifies the conclusion of the electoral process to declare a person returned, it does not confer the constitutional status of a member. Citing Article 255(3), the ECP noted that a person is deemed to have entered office only on the day they take the required oath.

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The publication of such notification signifies the conclusion of the electoral process to the extent of declaring a person as the returned candidate. However, such declaration, by itself, does not confer upon the returned candidate the constitutional status of a member of the Majlis-i-Shoora (Parliament).

Furthermore, the commission referred to Article 65, which bars a person from sitting or voting until they have made the prescribed oath. The ECP highlighted the deliberate use of the expression "person elected" instead of "Member" in Article 65, indicating a constitutional distinction. The order concludes that until the oath is administered, a returned candidate remains elected but has not attained the constitutional status of a Member. This interpretation also applies to resignations or disqualifications, which only affect a person who has already acquired membership.

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Until the administration of the prescribed oath, a returned candidate remains a person elected to the House and does not attain the constitutional status of a Member.