Article 63A should be interpreted to protect political party cohesion, with invalid votes against party directions disregarded, and robust legislation on defections is necessary.

Umar Ata Bandial, CJ (with Ijaz ul Ahsan & Munib Akhtar, JJ for majority judgment):

[1] For detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise, by majority of three to two (Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail dissenting) these matters are disposed of together in the following terms:

1. The first question referred by the President relates to the proper approach to be taken to the interpretation and application of art 63A of the Constitution. In our view, this provision cannot be read and applied in isolation and in a manner as though it is aloof from, or indifferent to, whatever else is provided in the Constitution. Nor can art 63A be understood and applied from the vantage point of the member who has earned opprobrium and faces legal censure as a defector by reason of his having acted or voted (or abstained from voting) in a manner contrary to what is required of him under cl (1) thereof. Rather, in its true perspective this Article is an expression in the Constitution itself of certain aspects of the fundamental rights that inhere in political parties under cl (2) of art 17. The two provisions are intertwined. In its essence art 63A functions to protect, and ensure the continued coherence of, political parties in the legislative arena where they are the primary actors in our system of parliamentary democracy, which is one of the salient features of the Constitution. Political parties are an integral aspect of the bedrock on which our democracy rests. Their destabilisation tends to shake the bedrock, which can potentially put democracy itself in peril. Defections are one of the most pernicious ways in which political parties can be destabilised. Indeed they can delegitimise parliamentary democracy itself, which is an even more deleterious effect. Defections rightly stand condemned as a cancer afflicting the body politic. They cannot be countenanced.

2. It follows that art 63A must be interpreted in a purposive and robust manner, which accords with its spirit and intent. Ideally, the Article should not need to be invoked at all; its mere existence, a brooding presence, should be enough. Put differently, the true measure of its effectiveness is that no member of a Parliamentary Party ever has to be declared a defector. Article 63A should therefore be given that interpretation and application as accords with, and is aligned as closely as possible to, the ideal situation. The pith and substance of art 63A is to enforce the fundamental right of political parties under art 17 that, in particular in the legislative arena, their cohesion be respected, and protected from unconstitutional and unlawful assaults, encroachments and erosions. It must therefore be interpreted and applied in a broad manner, consistent with fundamental rights. It also follows that if at all there is any conflict between the fundamental rights of the collectivity (ie, the political party) and an individual member thereof it is the former that must prevail. The first question is answered accordingly.

3. Turning to the second question and keeping in mind the answer to the first, it is our view that the vote of any member (including a deemed member) of a Parliamentary Party in a House that is cast contrary to any direction issued by the latter in terms of para (b) of cl (1) of art 63A cannot be counted and must be disregarded, and this is so regardless of whether the Party Head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection. The second question referred to this Court stands answered in the foregoing terms.

4. As regards the third question, it is our view that a declaration of defection in terms of Article 63A can be a disqualification under art 63, in terms of an appropriate law made by Parliament under para (p) of cl (1) thereof. While it is for Parliament to enact such legislation it must