By Evarist Baimu Nyaga Mawalla - Home

his birth and are therefore prior to the State and the law. In our times one method ofjudging the character of a government is to look at the extent to which it recognises andprotects human rights. The raison d’etre for any government is its ability to secure thewelfare of the governed. Its claim to the allegiance of the coverned has be in terms ofwhat that allegiance is to serve.Allegiance has to be correlative with rights. Modern constitutions like our own haveenacted fundamental rights in their provisions. This does not mean that the rights arethereby created; rather it is evidence of their recognition and the intention that theyshould be enforceable in a court of law. It can therefore be argued that the very decisionto translate fundamental rights into a written code is by itself a restraint upon the powersof Parliament to act arbitrarily.As aptly observed by Chief Justice Nasim Hassan Shah in Muhammad Nawaz Sharif v.President at Pakistan, PLD 1993 SC 473, 557.Fundamental Rights in essence are restraints on the arbitrary exercise of power bythe State in relation to any activity that an individual can engage. Although constitutionalguarantees are after couched in permissive terminology, in essence they imposelimitations on the power of the State to restrict such activities. Moreover, Basic orFundamental Rights of individuals which presently stand formally incorporated in themodern constitutional documents derive their lineage from end are traceable to theancient Natural law.Our Constitution confers on Parliament very wide powers of amendment but thosepowers are by no means unlimited. These powers are to be found in Art. 98(1) and (2)and it is necessary to set out the relevant parts.98 – (1) Parliament may enact legislation altering any provision of thisConstitution (emphasis added)(2) For the purpose of construing the provisions of sub – section (1), references toalteration of any provision of this Constitution or of any law include references to theamendment or modification, of those provisions, suspension or repeal and replacement ofthe provisions or the re – enactment of the provisions or the re – enactment ormodification in the application of those provisions.These powers are evidently wide. It has to be accepted, in the first place, that Parliamenthas power to amend even those provisions providing for basic human rights. Secondly,that power is not confined to a small sphere.210