Sitting Panel: Ajmal Mian, C.J., Saiduzzaman Siddiqui, Irshad Hasan Khan, Raja Afrasiab Khan, Mamoon Kazi, Sh. Riaz Ahmad and Ch. Muhammad Arif, JJ

The Supreme Court, by a majority, upheld the validity of Article 63A of the Constitution of Pakistan, which concerns the disqualification of members of a parliamentary party on grounds of defection. However, the Court provided crucial clarifications, stating that a member’s disqualification for breach of party discipline must relate to specific acts—namely, voting or abstaining from voting contrary to party directions on bills—and that such a breach must have occurred within the House. The judgment emphasized that Article 63A must be interpreted to preserve a member’s right to freedom of speech within the House, subject only to reasonable restrictions as outlined in Article 66 read with Article 19 of the Constitution. This decision aims to foster stability in the political system by addressing the issue of floor-crossing, which has historically contributed to political instability.

The Court further clarified the nature of constitutional amendments, distinguishing between the Parliament’s “legislative power” and its higher “constituent power”. It ruled that an amendment made through the constituent power is not a “law” under Article 8 of the Constitution, and thus its validity cannot be challenged against fundamental rights, as the Constitution does not prioritize fundamental rights over other constitutional provisions. Nonetheless, this power is not absolute if it leads to the abrogation of fundamental rights. The judgment also affirmed that superior courts retain jurisdiction to review orders issued under Article 63A (6) if they are found to be without jurisdiction,

Coram non judice, or mala fide. The clarifications were intended to provide clear guidelines and minimize future litigation surrounding Article 63A.

Download PDF