Jonah Patel
A savings clause is a feature of the constitutions of several Commonwealth Caribbean countries, including Jamaica. These clauses were initially meant to ensure legal stability and provide continuity of the law during the transitionary period after independence. However, they have since resulted in non-living constitutions that are unable to evolve alongside human rights norms. In Jamaica, the savings clause has been criticised for protecting colonial-era laws that are considered outdated and incompatible with fundamental rights guarantees. While there have been calls for constitutional reform to address this issue, the Jamaican Constitution continues to carry this shackle of its colonial past.
| Characteristics | Values |
|---|---|
| Purpose | To ensure legal stability and prevent anarchy during the transitionary period after independence |
| Function | Provide continuity of the law during a transitionary period |
| Result | Protect any law that was valid before the date of independence from being struck down as unconstitutional |
| Impact | Freezes the law as of the date of independence, restraining the legal evolution of the country |
| Applicability | Applicable to pre-independence laws, including those regarding the death penalty and buggery |
| Interpretation | Should be interpreted restrictively to give individuals the full measure of their fundamental rights and freedoms |
| Criticism | Goes against the fundamental requirement of the rule of law – predictability, and flies in the face of liberty and human dignity |
| Reform | In 2011, Jamaica repealed the general savings law clause but preserved a special savings law |
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What You'll Learn
- The Jamaican government repealed the general savings law clause in 2011
- Savings law clauses protect pre-independence laws from being challenged
- The Privy Council has overcome savings clauses in cases involving lengthy delays following sentencing
- The clauses prevent citizens from fully benefiting from fundamental rights provisions
- The Jamaican Constitution is static and unable to evolve with human rights norms
The Jamaican government repealed the general savings law clause in 2011
In 2011, the Jamaican government repealed the general savings law clause in its constitution. The general savings clause, found in section 26(8), stated that:
> Nothing contained in any law in force immediately before the appointed day shall be held 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.
In other words, the general savings clause prevented any law that existed before Jamaica's independence from being declared unconstitutional, even if it violated the constitution's human rights protections. This clause was initially included in the constitution to provide legal stability during the transition to independence. However, over time, it prevented the constitution from evolving alongside human rights norms and resulted in inconsistencies in the law.
While the Jamaican government repealed the general savings clause, it preserved a special savings clause. The new Charter of Fundamental Rights and Freedoms, which replaced the previous Bill of Rights, included a partial savings law clause. This clause was intended to prevent constitutional challenges to laws authorising the death penalty, criminalising buggery, or discriminating based on sexual orientation. The inclusion of this clause demonstrates the government's awareness of potential challenges to certain laws, particularly in light of developments in other jurisdictions.
The repeal of the general savings clause in Jamaica is a significant step towards ensuring the constitution's ability to adapt to changing human rights standards. However, the retention of a special savings clause highlights the complexities and ongoing debates surrounding constitutional reform in post-colonial nations.
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Savings law clauses protect pre-independence laws from being challenged
The constitutions of former British colonies in the Commonwealth Caribbean, including Jamaica, contain savings law clauses. These clauses were originally intended to provide legal stability and ensure continuity during the transitionary period following independence. However, their continued presence in the constitution has resulted in inconsistencies and challenges to constitutional reform.
Savings law clauses protect laws that were valid before the date of independence from being struck down as unconstitutional. This means that even if a pre-independence law is in breach of constitutional safeguards or human rights norms, it remains valid and enforceable. For example, in the case of Pratt and Morgan, the Privy Council was unable to invalidate the mandatory death penalty, which existed prior to independence, despite it conflicting with human rights guarantees in the constitution. The savings clause prevented the law from being directly challenged, highlighting the constraints imposed by these clauses on the development of human rights law in the region.
The impact of savings law clauses extends beyond specific legal cases. They have been criticised for perpetuating colonial-era laws and hindering the evolution of Caribbean legal systems. As human rights norms and societal values have progressed, the static nature of constitutions with savings law clauses has become increasingly apparent. The Jamaican Constitution, for instance, is based on the European Convention of Human Rights but lacks the ability to adapt and evolve alongside international human rights developments. This has resulted in a disconnect between the legal framework and the changing needs and values of society.
The presence of savings law clauses in the Jamaican Constitution has been a subject of debate, with critics arguing for their removal to align the legal system with contemporary human rights standards. In 2011, the Jamaican government amended its Constitution, repealing the general savings law clause while preserving a special savings law. This step towards constitutional reform demonstrates a recognition of the need to balance legal stability with adaptability to ensure the protection of citizens' fundamental rights.
In conclusion, savings law clauses in the Jamaican Constitution and other Commonwealth Caribbean nations serve to protect pre-independence laws from constitutional challenge. While initially intended to provide legal continuity during the transition to independence, these clauses have had the unintended consequence of freezing the law as of the date of independence, hindering legal evolution, and necessitating reform to align with contemporary human rights norms and societal values.
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The Privy Council has overcome savings clauses in cases involving lengthy delays following sentencing
The savings clauses in the constitutions of Jamaica and other Commonwealth Caribbean countries have resulted in inconsistencies in the law and have prevented the constitutions from evolving with the times. These clauses were initially meant to provide legal stability and continuity during the transitionary period following independence. However, they have now become outdated and incompatible with evolving human rights norms.
The Privy Council, the highest court of appeal for some Commonwealth countries, has played a significant role in interpreting and overcoming savings clauses in certain cases. In the case of Pratt and Morgan ( [1993] 4 All ER 769), the Privy Council addressed the issue of lengthy delays following sentencing. They reasoned that such delays would not have been lawful prior to independence, which allowed them to restrict the use of the mandatory death penalty. The Privy Council's decision highlighted the distinction between the constitutionality of the death penalty and its implementation. While they could not invalidate the mandatory death penalty itself, they were able to restrict how it was applied.
The impact of the Privy Council's decision in Pratt and Morgan was immediate and dramatic. It demonstrated that even with the presence of savings clauses, there are avenues to challenge the implementation of certain laws, especially when they conflict with fundamental rights guarantees. This case set a precedent for similar cases involving lengthy delays following sentencing and has influenced legal interpretations in countries like Trinidad and Tobago, Barbados, and Singapore.
The Privy Council's role in overcoming savings clauses in cases involving lengthy delays following sentencing showcases the dynamic nature of legal interpretation. While savings clauses aim to maintain legal stability, the Privy Council's decisions highlight the importance of adapting to changing societal norms and human rights standards. This balance between stability and evolution in constitutional law is a complex and ongoing process, with the Privy Council playing a pivotal role in shaping the legal landscape of the Commonwealth Caribbean.
In 2001, the Caribbean Community voted to abolish appeals to the Privy Council, opting instead for a Caribbean Court of Justice (CCJ). Barbados, the Co-operative Republic of Guyana, and Belize are among the countries that have transitioned to the CCJ, while Jamaica has made attempts to follow suit. This shift towards a regional court system reflects the desire for greater autonomy and a more contextually relevant approach to legal interpretation within the Caribbean.
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The clauses prevent citizens from fully benefiting from fundamental rights provisions
The Jamaican Constitution was first framed with a Bill of Rights, which, in theory, protected the liberties and dignity of individuals. However, the savings clauses in the constitution, particularly the general savings clause in section 26(8) (now repealed), significantly weakened these rights and freedoms.
The general savings clause stated that:
> Nothing contained in any law in force immediately before the appointed day shall be held 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.
In practice, this meant that judges were limited in their ability to review pre-independence laws and refer to developments in international human rights law when determining the constitutionality of these laws. As a result, the supremacy of the constitution was challenged, and citizens were prevented from fully benefiting from the fundamental rights provisions.
For example, the death penalty was initially considered protected from constitutional challenge, even though it breached the guarantee against torture and inhuman and degrading treatment or punishment. While the Privy Council could not invalidate the mandatory death penalty, they were able to restrict how it was used in the case of Pratt and Morgan, demonstrating the complex and inconsistent nature of savings clauses.
The presence of savings clauses in the constitutions of former British colonies is not unique to Jamaica and can be found in other Commonwealth Caribbean countries, such as Trinidad and Tobago and Barbados. These clauses were necessary during the transitionary period after independence to provide legal stability and continuity. However, they have since resulted in non-living constitutions that are unable to develop with the times and adapt to changing human rights norms.
In 2011, the Jamaican government amended its Constitution, repealing the general savings law clause but preserving a special savings law. This amendment replaced the Bill of Rights with the Charter of Fundamental Rights and Freedoms, signalling a shift towards recognising and protecting the fundamental rights of citizens.
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The Jamaican Constitution is static and unable to evolve with human rights norms
The Jamaican Constitution, along with the constitutions of other Commonwealth Caribbean states, contains savings law clauses that protect any law that was valid before the date of independence from being deemed unconstitutional. In other words, if a law was in place prior to independence, it remains valid even if it violates constitutional protections. This has resulted in a static constitution that is unable to adapt to evolving human rights norms.
The inclusion of these savings clauses was initially intended to provide legal stability and ensure continuity during the transition to independence. However, over time, they have had the unintended consequence of freezing the law as it stood at the time of independence, hindering legal evolution in Jamaica and other Caribbean countries. This has created an inconsistency in the law, which goes against the fundamental requirement of the rule of law – predictability.
For example, in the context of the death penalty and buggery laws, the savings clauses have prevented judges from considering developments in international human rights law when determining the constitutionality of pre-independence laws. This has resulted in a situation where the citizen is denied the full benefit of the fundamental rights provisions of the constitution, and the development of human rights law in Jamaica and the Caribbean is constrained.
In 2011, the Jamaican government amended its Constitution, repealing the general savings law clause while preserving a special savings law. The Bill of Rights was also replaced with the Charter of Fundamental Rights and Freedoms. Despite this reform, the constitution remains burdened by its colonial past, with laws that were designed to uphold the genocide and holocaust of slavery, displace first nations, and perpetuate racism and white supremacy.
To truly break free from the shackles of colonial rule and ensure the protection of human rights and freedoms, Jamaica and other Caribbean countries must continue to reform their constitutions and remove the vestiges of empire that persist in their legal systems. This includes addressing the savings clauses that protect outdated and discriminatory laws, allowing the constitution to evolve and adapt to modern human rights norms.
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Frequently asked questions
A savings clause is a feature of the Jamaican Constitution, which was first created in the 1960s, that protects any law that was valid before the country's independence from being deemed unconstitutional.
In 2023, the Supreme Court ruled that three sections of the Offences Against the Person Act could not be reviewed for constitutionality because of the Constitution's savings law clause.
Savings clauses were originally intended to provide continuity of the law during a transitionary period. However, critics argue that they now result in non-living constitutions that are unable to adapt to developments in human rights law.
