History of Constitutional Amendments to 1973 Constitution

Barrister Zafar Iqbal Kalanauri

Advocate Supreme Court of Pakistan[i]

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Approximately 80 countries follow the common law system either wholly or partially. This legal tradition originated in England and spread primarily through British colonization. While some countries maintain pure common law systems, others mix it with civil law, customary law, or religious law. Below are some examples:

Countries with Common Law Systems

1. United Kingdom (England and Wales, Northern Ireland; Scotland uses mixed law)
2. United States (except Louisiana, which has a mixed system)
3. Canada (except Quebec, which follows civil law for private matters)
4. Australia
5. New Zealand
6. India (along with personal laws like Hindu and Muslim laws)
7. Pakistan
8. South Africa (mixed with civil law traditions)
9. Singapore
10. Malaysia
11. Hong Kong

Characteristics of Common Law

• Judges have more authority to interpret laws and set precedents.
• Precedent (case law) plays a critical role: decisions by higher courts bind lower courts.
• Often adversarial: lawyers from opposing sides present their cases, and the judge acts as an impartial arbiter.

Regions with Mixed Legal Systems

Some countries adopt a hybrid legal system, combining elements of common law with civil, customary, or religious laws. Examples include:

• Israel: Common law with Jewish and Muslim personal laws.
• Sri Lanka: Common law mixed with Roman-Dutch law.
• South Africa: A blend of common law and Roman-Dutch law.

The exact number of countries fluctuates as some jurisdictions adopt reforms or modify their systems, but common law remains widespread globally due to its adaptability.

The common law countries do not have specialized constitutional courts like France’s Constitutional Council. Instead, they integrate constitutional review into their ordinary judiciary, often with the Supreme Court or High courts acting as the primary arbiter of constitutional issues. However, a few common law countries or those with mixed systems have developed separate constitutional courts or courts with specialized constitutional functions.

Common Law Countries with Specialized Constitutional Courts

1. South Africa Constitutional Court of South Africa: Established after apartheid in 1994, it specifically deals with constitutional matters, including the interpretation of the constitution and issues of human rights. South Africa is a mixed legal system with influences from both Roman-Dutch law and common law.
2. India (Quasi-constitutional model) Although India does not have a separate constitutional court, the Supreme Court of India plays a dual role. It acts as the apex court for both general appeals and constitutional issues. However, some scholars have proposed a dedicated constitutional court to alleviate its workload.
3. Pakistan The Supreme Court of Pakistan also acts as a de facto constitutional court, but Pakistan’s Federal Shariat Court reviews laws for compliance with Islamic injunctions, somewhat resembling specialized constitutional functions.
4. Myanmar Myanmar, which has a mixed legal system, established a Constitutional Tribunal in 2011 to handle disputes about constitutional interpretation and power separation issues.
5. Kenya Kenya has a Supreme Court with exclusive jurisdiction on constitutional matters like disputes related to presidential elections and interpretations of the constitution.

Why Specialized Constitutional Courts are not established in Common Law Systems?

• Judicial Review Tradition: In most common law jurisdictions (e.g., United States, UK, Canada), the highest courts have inherent powers of judicial review to strike down unconstitutional laws, making a separate constitutional court unnecessary.
• Decentralized Model: Common law systems often allow lower courts to engage in constitutional interpretation, unlike the centralized French model, where only the Constitutional Council can decide constitutionality.

[i] Zafar Iqbal Kalanauri , Barrister, Advocate Supreme Court of Pakistan, Arbitrator, Mediator, White Collar Crime Investigator, Reformist of Legal System & Legal Education and a Professor of Law, Zafar Kalanauri & Associates,128-A Upper Mall Scheme, Lahore 54000, Pakistan. Cell: (+92) 300-4511823; E-mail:?[email protected]?;Website: https://www.zafarkalanauri.com

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