Since the 1960s, when the Constitutions of the Commonwealth Caribbean States were first created, courts have been confounded by the savings law clauses in these instruments. Common features of the constitutions of the former British colonies, these clauses had the function of providing continuity of the law during a transitionary period. Today they have the result of protecting any law which was valid before the date of independence from being struck down as unconstitutional. In other words, if a law existed prior to the date of independence, then that law remains valid even if it is in breach of constitutional safeguards. The result of this is that savings law clauses freeze the law as of the date of independence, so that even if pre-independence law has been overtaken by human rights developments, the law will remain valid thus restraining the legal evolution of the Caribbean.
There are two types of savings clauses contained in the Commonwealth Caribbean Constitutions; the general savings clause which carries over all laws from the former system and the special savings clause which protects specific penalties or punishments that were in existence at independence.
The Jamaican Constitution was first framed with a Bill of Rights at Chapter III which in theory protected the liberties and dignity of individuals, however the greatest devaluation of those fundamental rights and freedoms was the general savings clause in section 26(8) (now repealed) to the effect that – Nothing contained in any law in force immediately before the appointed day shall be held to be to be inconsistent with any of the provisions of this Chapter; and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions. So in practice, these rights and freedoms were weakened by section 26(8) which limited judicial review of the pre-independence laws. This section preserved both common law and statutory principles to the detriment of the fundamental rights and freedoms.
Thus when determining the constitutionality of pre-independence laws judges have been unable to refer to developments in international human rights law from cases such as Dudgeon v UK (1982) 4 EHRR 149 and Tyrer v UK (1978) 2 EHRR 1 when determining the constitutionality of pre-independence laws; including laws regarding the death penalty and buggery. Consequently the supremacy of the constitution is challenged by these savings law clauses and the citizen is prevented from fully benefiting from the fundamental rights provisions of the constitution. The clauses place a significant fetter on the development of human rights law in the Commonwealth Caribbean.
Previously it was thought that the death penalty was saved from constitutional challenge that it breached the guarantee against torture and inhuman and degrading treatment or punishment. However, in a series of cases from the Judicial Committee of the Privy Council (Privy Council), beginning with its landmark decision in Pratt and Morgan v. AG (Jamaica) [1994] 2 A.C. 1 the Privy Council found a way of bypassing the savings law clauses by finding that their effect is restricted to the authorisation of the kind of punishment for which the court may pass sentence. Accordingly, they do not prevent a court finding that the circumstances in which the sentence is to be carried out, including prolonged delay, will violate the right not to be subject to inhuman or degrading treatment or punishment. Thus the special clause saved the penalty, but not the means of its application. In other words, the mandatory death penalty could not be invalidated by the Privy Council, but it could restrict how it was used.
The Privy Council held that where there was a delay of more than five years between the imposition of the death sentence and the execution, the execution was presumed to be inhuman or degrading punishment or treatment. The Privy Council reasoned that the delay would not have been lawful prior to independence and this allowed them to restrict the use of the mandatory death penalty.
In 2000, the Privy Council increased its scrutiny of the mandatory death penalty and the application of the savings law clauses. In Lewis v Attorney General ([2001] 2 AC 50), from Jamaica, the Privy Council discussed the requirement of individualised sentencing and found that a mandatory death penalty does not provide for any opportunity for individualised sentences in cases of murder. Later, in 2002 the Privy Council struck down the mandatory death penalty in three cases from Belize, St Lucia and St Kitts and Nevis, the lead case of which was Reyes v The Queen ([2002] 2 AC 235).
In 2004 the Privy Council took a more cautious approach in the Boycetrilogy (Boyce v The Queen [2004] UKPC 32; [2004] 3 W.L.R. 786 [from Barbados], Matthew v The State of Trinidad and Tobago [2005] 1 AC 433 [from Trinidad and Tobago] and Watson v The Queen [2004] 3 WLR [from Jamaica]). In Boyce and Matthews the Privy Council confirmed that when interpreting the Constitutions of the Commonwealth Caribbean judges were bound by the savings law clauses and could not rely on judicial developments elsewhere when determining the constitutionality of pre-independence laws notwithstanding changing judicial attitudes toward such laws. The particular savings clauses in the Constitutions of Trinidad and Tobago and Barbados protected the mandatory penalty from constitutional challenge. Lord Hoffman, despite his views in Pratt v Morgan, described the general savings law clauses as impassable barriers to the judicial review of capital punishment on human rights grounds. The minority in Boyce and Matthews on the other hand, would have quashed the mandatory death penalty in the two countries.
In the case of Boyce and Joseph v The Queen [2004] UKPC 34, the Privy Council held that because the law in question predated the Constitution the fact that the mandatory death penalty constituted inhuman or degrading treatment or punishment according to the Constitution of Barbados it could not be invalidated. It was therefore an issue for the Parliament of Barbados to remedy and not the courts.
These cases illustrate the strong divide among the individual judges and the contention surrounding the application of the savings law clause. A strong dissent from Lord Nicholls of Birkenhead showed just how contentious the issue is. He stated that: “Times have changed. Human rights values set higher standards today. The common endeavour, to rid the world of man’s inhumanity to man, has not ceased. Conduct, once tolerated, is no longer acceptable. Murder can be committed in all manner of circumstances. In some the death penalty will plainly be excessive and disproportionate.”
The savings law clauses have resulted in the court abdicating, as Lord Nicholls put it, “its responsibility to ensure that the people of a country, including those least able to protect themselves, have the full measure of protection against the executive which a constitution exists to provide”.
In the third case of the group the Privy Council was able to escape the application of the savings clause. In Jamaica, the clauses do not apply to new or amended legislation thus amendments to pre-independence laws bring the entire pre-independence law within the purview of the courts. This was illustrated in Watson where the Privy Council held that the law which set out the mandatory death penalty had been amended following independence and therefore the mandatory death penalty was not preserved by the the savings clause and thus unconstitutional.
The attempts of the courts to work with and around the various savings law clauses in the Commonwealth Caribbean have resulted in inconsistency in this area of law which goes against one of the fundamental requirements of the rule of law – predictability. The outcome of Watson was described by the minority as a “gross anomaly”. They went on further to say: “One strange, and to our mind regrettable, implication of the majority decision in Matthew, Boyce and Joseph and the present appeal (Watson) is that Jamaica would have succeeded in maintaining an objectionable nineteenth century law if it had not attempted to mitigate its harshness.”
In 2011 the JamaicanGovernment changed its Constitution, the general savings law clause was repealed but a special savings laws was preserved. The Bill of Rights was replaced with the Charter of Fundamental Rights and Freedoms (The Charter). While the Charter increased rights protection in certain areas, it prevents judges from challenging under the Constitution laws that authorise the death penalty, that criminalise buggery, or which discriminate on the grounds of sexual orientation. The Charter also expressly precludes constitutional challenges based on delay in the execution of the death penalty or the physical conditions of detention of the convicted individual.
The savings law clauses present a range of interpretive challenges both theoretical and practical. Their effect have been to ‘crystallise’ the Bills of Rights of the various Independence Constitutions of the Commonwealth Caribbean. Rights are neutered and the Constitutions are rendered contradictory and self-undermining. This is an unfortunate state of affairs as any constitution should grow and develop over time to meet new social and political realities which would not have entered the minds of its drafters.
While the savings law clauses were necessary to ensure legal stability and prevent anarchy in the dawn of Independence they have now resulted in non-living constitutions which are unable to develop with the times and can no longer be justified. It is ironic that the former British colonies are unable to keep up with developments in the society of the same nation where the protected laws came from in the first place.The Jamaican Constitution, unlike the European Convention of Human Rights which the initial Bill of Rights was fashioned from, is thereby static and unable to evolve along with human rights norms over time. The Privy Council death penalty cases illustrates the illogical results that can occur when independent states are still chained to colonial laws that have been abandoned by the colonial power itself. The paradox that a penalty once imposed by British legislators is now fiercely protected by Commonwealth Caribbean governments while British courts urge reform is difficult to ignore.
Though the Constitution of Jamaica has been amended it still has a modified savings law clause. It is time for a fully independent state to get rid of the savings law clause in its entirety and legislate to create the requisite balance between the protection of human rights and the necessary laws required to maintain order effectively.
A better approach would have been that taken by Belize where the savings clause in the Constitution was limited to five years after Independence. Today pre-independence laws in Belize may be struck down if they are held by the courts to be inconsistent with basic human rights.
Independent states cannot speak of sovereignty until they make their jurisprudence their own with the starting point being the extinction of the savings law clauses. Constitutionalism cannot exist with savings law clauses that negative basic rights. What results is a constitution without constitutionalism.
As Robinson, Bulkan and Saunders put it in Fundamentals of Caribbean Constitutional Law: “With these savings law clauses colonial laws and punishments are caught in a time warp, continuing to exist in their primeval form, immune to the evolving understandings and effects of applicable fundamental rights. These clauses… operate in constant tension with the bill of rights and frustrate the aims and purpose of the constitutional guarantees… [They put] colonial punishments beyond challenge on the ground they are inhuman or degrading.”
REFERENCES
Whos Constitution? Law, Justice and History in the Caribbean – Professor Richard Drayton PhD FRHistS
Constitutional reform – The proposed charter of rights – Dr Lloyd Barnett OJ
Human Rights Law in the Commonwealth Caribbean – Stephen Vasciannie
Saving Constitutional Rights from Judicial Scrutiny: The Savings Clause in the Law of the Commonwealth Caribbean – Margaret A. Burnham
Caribbean Perspectives on Human Rights – Stephen Vasciannie