'No oath, no membership': ECP withdraws notification for Senate by-poll on seat won by PTI's Murad Saeed

ISLAMABAD: The Election Commission of Pakistan (ECP) on Friday formally withdrew its April 2 notification for the by-election programme for a general Senate seat from Khyber Pakhtunkhwa, which it had earlier declared vacant following the disqualification of PTI senator-elect Murad Saeed.

In a notification, the ECP withdrew the election programme issued under its April 2 notification to “fill one general seat” in the Senate from KP, in pursuance of an order dated Aug 20.

The withdrawal came a week after critics accused the ECP of assuming the role of a court by interpreting the Constitution to hold that no lawful vacancy had been created.

Senate elections for 11 vacant seats from KP were held on July 21 last year. Saeed was declared a returned candidate for a general seat on July 24, 2025.

However, on March 7 this year, Saeed was convicted by Rawalpindi’s Anti-Terrorism Court-I and sentenced to 10 years of imprisonment in the State vs Asim Rehman case, and on March 25, the commission determined that Saeed had been disqualified under Article 63(1)(h) of the Constitution. His seat was accordingly declared vacant.

The by-poll was fixed for April 23 in the KP Assembly, but the process was halted after a petition was filed by PML-N MPA Jalal Khan, who argued that no lawful vacancy existed to justify the by-election.

No oath, no membership, commission says

In its detailed order, the ECP held that a clear constitutional distinction existed between a “returned candidate” and a “Member of Parliament”.

“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),” the order states.

Citing Article 255(3), the commission noted: “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.”

It further referred to Article 65, which bars a person from sitting or voting “until he has made before the House oath in the form set out in the Third Schedule”.

The ECP noted the significance of the deliberate use of the expression “person elected” instead of “Member” in Article 65, saying that it demonstrated that “the Constitution itself recognises a distinction” between a person who had been elected or returned, and a person who had acquired the status of a member.

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,” the order reads.

The ECP also interpreted Article 64 and Article 63(1) to mean that resignation or disqualification leading to a vacancy applied only to a person who had already acquired membership. “Therefore, the question of a seat becoming vacant arises only after the constitutional relationship of membership has been established,” it said.

On Article 63(1)(h), the commission said clauses (g) and (h) “must be read in conjunction with the expression ‘from being a member’, as these provisions relate to circumstances where an existing member incurs a disqualification affecting his continuance in office”.

The order concluded that a person could not be declared to have lost a seat which he had never occupied as a member, nor could a vacancy arise “in respect of a seat where the constitutional status of membership was never acquired”.

“The commission is of the considered view that, notwithstanding the conviction of Murad Saeed, he has not yet acquired the status of a Member of Parliament; therefore, no lawful vacancy has arisen in respect of the said seat,” it said, adding that the question of holding a by-election therefore did not arise.

Accordingly, the commission accepted the application and withdrew the April 2 election programme.

Although the notification to withdraw the election programme after around five months is available on ECP’s official website, the order it was based on is not available.