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We Like It So? The Continuing Saga Of Caribbean Savings Law Clauses

Ria Mohammed-Davidson, Attorney-at-Law at Chambers of Mr. Rolston F. Nelson, SC, Trinidad and Tobago

In the Anglophone Caribbean, no issue has dominated the landscape of constitutional jurisprudence more than the savings law clause. These clauses immunise existing laws and punishments by saving them from being declared inconsistent with the rights and freedoms contained in the Bill of Rights.[i] They are found in every Caribbean Constitution, with the exception of Belize, and have attracted sustained criticism.[ii] As Robinson, Bulkan and Saunders have explained: “with these savings law clauses, colonial laws and punishments are caught in a time warp, continuing to exist in their primeval form, immune to evolving understandings and effects of applicable fundamental rights.”[iii] From 1979 onwards, the meaning and effect of these clauses have occupied the attention of the Judicial Committee of the Privy Council (JCPC).[iv]

The recent decision in Chandler v The State (No 2) is the latest instalment in this continuing saga. The question before the nine-member panel of judges was deceptively simple: is the mandatory death penalty contained in section 4 of the 1925 Offences Against the Person Act saved by section 6 of the 1976 Republican Constitution of Trinidad and Tobago? This question was answered in the affirmative in Matthew v the State, by a vote of 5 to 4, overruling the decision in Roodlal v the State  which was decided by the same majority seven months before. In Chandler the JCPC was invited to depart from Matthew, in light of recent jurisprudence from the Caribbean Court of Justice (CCJ) which has replaced the JCPC as the final court of appeal in Barbados, Belize, Dominica and Guyana. It was an invitation which was ultimately declined.

In dismissing the appeal, Lord Hodge explained that the savings law clause insulates all laws, in existence before August 1, 1976, including the mandatory death penalty, from being declared unconstitutional. Therefore, although it was common ground that the mandatory death penalty constituted cruel and unusual punishment, it was nonetheless shielded from constitutional challenge. His Lordship explained that the savings law clause, unlike other constitutional provisions, is not capable of being given an updated interpretation by application of the living tree doctrine. The clause is concrete and specific and means precisely what it says. Great store was placed on the fact that the TT Parliament retained the savings law clause in the transition from independent to republican status. Thus, Lord Hodge reasoned that the task falls to the legislature itself to update existing laws to account for changing societal values.

The JCPC rejected the use of the modification clause in the 1976 Constitution Act as an avenue to ameliorate the harsh consequences of the savings law clause. In so doing it parted company with the CCJ and its rulings in Nervais v R, McEwan v Attorney General of Guyana  and Bisram v Director of Public Prosecutions. In those cases, the CCJ reasoned that the modification clause and the savings law clause should be read together to enable existing laws to be brought into conformity with the Constitution. However, Lord Hodge reasoned that to give priority to the modification clause over the savings law clause would undermine the supremacy of the Constitution and the historic purpose served by the savings law clause in ensuring legal certainty. 

In Chandler, recourse to the principles of the separation of powers and the rule of law to circumvent the albatross of the savings law clause came to naught. The JCPC explained that these doctrines are not free-standing, legally enforceable principles which exist independently of the Constitution. Furthermore, the mandatory death penalty did not contravene the separation of powers because the fixing of a penalty for a criminal offence was an inherently legislative function. It was also noted that the rule of law, particularly the principles of equality and the eschewing of arbitrariness, also found specific expression in the Bill of Rights. To invoke the rule of law as a method to invalidate existing laws which were preserved by the savings law clause would erode the coherence and supremacy of the Constitution.

In the final analysis the JCPC was not persuaded that Matthew was wrongly decided. Lord Hodge emphasised that great weight is attached to prior decisions and they would only be overruled if they lacked a satisfactory foundation or hampered and distorted the proper development of the law. The fact that a differently constituted panel may hold a divergent doctrinal view would not suffice. To do otherwise would compromise legal certainty, continuity and the rule of law.

Human rights defenders will undoubtedly be disappointed with the ruling in Chandler which seems to sacrifice constitutional rights on the altar of history and precedent. It is difficult to conceive that a successful challenge can be mounted to the mandatory death penalty in the foreseeable future.[v] However, this decision transcends the death penalty debate. In TT the savings law clause preserves an array of laws which are inconsistent with the rights and freedoms enshrined the very Constitution which is declared to be the supreme law. Laws like sedition, sexual offences like sodomy and criminal offences such as loitering, exhibiting obscene prints, singing a profane ballad, being an incorrigible rogue and even trundling a hoop remain fossilised in our statute books. Despite notable calls for reform, this manifest absurdity persists.[vi] Since Chandler, the ball is now squarely in the court of the legislature to address this legal conundrum. It remains to be seen if, when and how they will respond. Some scepticism is understandable given the lengths gone to in defence of saved laws. In the words of the great calypsonian, The Mighty Sparrow, it appears that we know but “we like it so.”

Suggested citation: Ria Mohammed-Davidson, We Like It So? The Continuing Saga Of Caribbean Savings Law Clauses, Int’l J. Const. L. Blog, Jun 24, 2022, at: http://www.iconnectblog.com/2022/06/we-like-it-so-the-continuing-saga-of-caribbean-savings-law-clauses/


[i] See for example Constitution of the Republic of Trinidad and Tobago section 6.

[ii] Margaret DeMerieux, ‘Existing Law and the Implementation of a Bill of Rights: A Caribbean Perspective’ (1986) 19(1)  Law and Politics in Africa, Asia and Latin America 5; Simeon C. R. Mcintosh, Caribbean Constitutional Reform: Rethinking The West Indian Polity (Caribbean Law Publishing Co. 2002) p. 69, 252-260;  Derek O’Brien and Se-shauna Wheatle, ‘The Commonwealth Caribbean and the Uses and Abuses of Comparative Constitutional Law’ 2011 UK Constitutional Law Blog.

[iii] Fundamentals of Caribbean Constitutional Law (1st ed. Sweet & Maxwell 2015) at para. 5-021.

[iv] Margaret A. Burham, ‘Saving Constitutional Rights from Judicial Scrutiny: The Savings Clause in the Law of the Commonwealth Caribbean’ (2005) 36 U. Miami Inter-Am. L. Rev. 249.

[v] Joanna Harrington, ‘The Challenge to the Mandatory Death Penalty in the Commonwealth Caribbean’ (2004) 98(1) The American Journal of International Law 126; Margaret A. Burnham, ‘Caribbean Constitutions and the Death Penalty’ in Richard Albert, Derek O’Brien, and Se-shauna Wheatle (eds) The Oxford Handbook of Caribbean Constitutions (OUP 2020).

[vi] Richard Drayton, ‘Whose Constitution? Law, Justice and History in the Caribbean’ (Judicial Education Institute of Trinidad and Tobago Sixth Distinguished Jurist Lecture, March 2, 2016).

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Published on June 24, 2022
Author:          Filed under: Analysis
 

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