21-(1) Every citizen of the United Republic is entitled to take part in the government of the
country either directly or through freely chosen representatives, in accordance with procedure
provided by or under law.
I am therefore called upon to strike out para (b) in Art .39 and wherever else the requirement for
membership of and sponsorship by a political party occurs.
As stated earlier the issue of immutability turns on Parliament’s power to amend the
Constitution. In assessing this power it is appropriate to recall, in the first place, that fundamental
rights are not gifts from the State. They are in a person by reason of his birth and are therefore to
the State and law. In our times one method of judging the character of a government is to look at
the extent to which it recognises and protects human rights. The raison d’être for any government
is its ability to secure the welfare of the governed. Its claim to the allegiance of the governed has
to be in terms of what that allegiance is to serve. Allegiance has to be correlative with rights.
Modern constitutions like our own have enacted fundamental rights in their provisions. This does
not mean that the rights are thereby created; rather it is evidence of their recognition and the
intention that they should be enforceable in a court of law. It can therefore be argued that the very
decision to translate fundamental rights into a written code is by itself a restraint upon the powers
of Parliament to act arbitrarily As aptly observed by the Chief Justice Nassim Hassan Shah in
Muhammad Nawaz Sharif vs. President at Pakistan .PLD 1993 SC 473,557;
Fundamental Rights in essence are restraints on the arbitrary exercise of power by the State in
relation to any activity that an individual can engage. Although Constitutional guarantees are
often couched in permissive terminology in essence they impose limitations on the power of State
to restrict such activities. Moreover, basic or fundamental rights of individuals that presently
stand formally incorporated in the modern constitutional documents derive their lineage from and
are traceable to the ancient natural law.
Our Constitution confers on Parliament very wide powers of amendment but these powers 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 this Constitution.. or of any
law include references to the amendment or modification of those provisions, suspension or
repeal and replacement of the provisions or the re-enactment or modification in the application of
those provisions.
These powers are evidently wide. It has to be accepted, in the first place, that Parliament has
power to amend even those provisions providing for basic human rights. Secondly, that power is
not confined to a small sphere.
It extends to modification of those provisions, suspension or repeal and replacement of it, re-
enactment or modification in the application thereof. Drastic as some of these terms may sound, I
still do not believe that they authorize abrogation from the Constitution of these rights. The
provision of Art .98 should be read in the light of the claw back clauses in Art .30 (2) and 31.The
former reads as follows:
It is hereby declared that no provision contained in this Part of this Constitution, which stipulates
the Basic human rights, freedom and duties, shall be construed as invalidating any existing law or
prohibiting the enactment of any law or the doing of any lawful act under such law ,making
provision for-
a) ensuring that the rights and freedoms of others or the public interest are not prejudiced by the