A detailed discussion of the substantive constitutional jurisprudence on saving law clauses and of due process and the rule of law, discussed below, is not the object of this book.18 However, these discussions impact very much upon our larger question as to what are the sources of West Indian law? It is in this vein that they are discussed.
SAVING LAW CLAUSES
Saving law clauses,19 sometimes called ‘existing law’ clauses, attempt to preserve pre-independence law, often at the expense of human rights provisions in the Constitu-tion, with the result that the Constitution is viewed as merely codifying existing rights and not creating new ones.20 These clauses are not identical. It is the full or general saving law clause, which seeks to preserve all existing law, which has most often caused difficulty. This clause is only present in the older Constitutions such as Jamaica.21 The other two types of saving law clauses are the partial or special saving law clause, which speaks only to a specific right22 and the modification clause, which allows existing law to be modified so as to bring it into conformity with the Constitution.23
Whatever the type of saving law clause, the essential question in the debate centres around the question of whether these new Constitutions should be interpreted as having more force than existing law, that is, having the power to go beyond com-mon law and other legal principles as expressly preserved. Have these saving law clauses undermined the creative force of Caribbean Constitutions?
In Nasralla v DPP,24 the Privy Council declared that the fundamental rights which were enshrined in the new Jamaican Constitution were ‘already secured to the people of Jamaica’.25 Consequently, in interpreting the saving law clause, the court found that rights and freedoms as declared under the new written Constitution were subject to
17 Above, fn 4.
18 But see further discussion of these concepts in Chapter 12 (‘International Law as a Source of Law’).
19 For an early account of saving law clauses, see Alexis, F, ‘When is an Existing Law Saved?’
(1975) PL 256.
20 See Chapter 14 (‘The Rules of Statutory Interpretation’) for a discussion on how these clauses are to be interpreted.
21 See, eg, s 26(8) of the Constitution of Jamaica: ‘Nothing contained in any law in force immedi-ately before the appointed day shall be held to be inconsistent with any of the provisions of this Chapter . . .’
22 Found in the various Constitutions. See, eg, the clauses which regulate cruel and inhuman punishment, declaring pre-existing punishment as preserved as not being ‘inconsistent’ with the Constitution. See, eg, para 10, Schedule 2 of the St Lucia Constitution Order.
23 See, eg, the discussion in Chapter 14 (‘The Rules of Statutory Interpretation’). See also, DPP v Mollison (2003) 64 WIR 140 (PC).
24 [1967] 2 AC 238, (PC).
25 Ibid, p 247, per Lord Devlin.
the ‘existing law’ or saved common law. The implication here was that the consti-tutional rights protected were only those which existed before the advent of the independence Constitution.
The decision therefore reveals a tension between written constitutional guarantees of fundamental rights and pre-independence rights, as expressly saved.
In Robinson v R,26 an opinion from Jamaica emanating from the United Nations Human Rights Committee, the conflict between existing law and new Bills of Rights was again apparent. Robinson lost his case right up to the level of the Privy Council. The case involved an argument that his right to a fair hearing was violated when his murder trial was forced to proceed without an attorney. The United Nations Human Rights Committee, in rejecting a restrictive view of the Constitu-tion, found that this was a violation of his right to a fair hearing, although the common law position is that there is no right to legal counsel. Although the case did not specifically refer to a saving law clause, the underlying issue, that is, the creation of new constitutional rights, not hitherto contained under the common law, was addressed.
A similar argument was raised in the case of Collymore v AG.27 Although Wooding CJ stated that the Constitution was the supreme law of the land, he nevertheless went on to hold that the constitutional provisions protecting trade union rights, by providing for the rights to form and join a trade union and freedom of assembly, did not include the right to strike. This was on the ground that, at common law, there was no such right to strike. Thus, in the past, Commonwealth Constitutions have often been interpreted as merely codifying existing common law or statute law instead of creat-ing new legal rights and indeed new law in general. It is questionable whether the Constitution was intended to be interpreted in such a stagnant, non-purposive manner.
Changes to saving law approaches
The saving law analysis has undergone considerable evolution, one might even say revolution, in recent years. The courts have not only accepted that linguistic differ-ences between the saving law clauses in the region may mean substantial differdiffer-ences in their interpretation, but they have also been prepared to revisit entirely their previ-ous generosity towards these clauses, which resulted in such narrow interpretations of Constitutions.
Happily, the Nasralla approach to saving law clauses has now been discredited, making way for a more coherent and meaningful relationship between existing law before independence and the values enshrined in the Constitution. Perhaps the best indication of this new approach is found in Lambert and Watson v R.28 This case was one of a long line of cases which examined the constitutionality of the mandatory death penalty within the context of a saving law clause.
Lord Hope of Craighead in the Privy Council explained the correct principle found in Lord Devlin’s judgment in Nasralla and in so doing, offered the appropriate way to construe saving law clauses in general. The court refused to accept that
26 United Nations Human Rights Committee Communication No 223/1987, decided 1989.
27 Above, fn 4.
28 [2004] 3 WLR 841; (2004) 64 WIR 241 (PC, Jamaica).
Nasralla meant to put forward a restrictive approach to a Constitution in favour of existing law. It first acknowledged, however, that, since Nasralla, the general con-sensus as to the effect of the saving law clause in the Constitution of Jamaica immun-ised any law in force in Jamaica immediately before the appointed day against any human rights challenge. However, the court suggested that more had ‘been read into’
Lord Devlin’s words than he could have intended. It agreed that the Constitution proceeded upon the presumption that fundamental rights were already secured to the people by existing law. However, Nasralla:
had not said that the presumption referred to was conclusive and irrebuttable. The Board did not have to consider a case in which an existing law was found to infringe a guaranteed human right . . . It would in our opinion be surprising if the Board intended to treat laws in force at the time of independence as incapable of judicial development or adaptation to bring them into conformity with evolving understanding of human rights . . . The Board can scarcely have contemplated that human rights in Jamaica were to be frozen indefinitely at the point they had reached in August 1962.
In the event that the Nasralla approach could not be explained away, the court was prepared to hold that it was wrongly decided:
If, contrary to our view, the Board did hold in Nasralla that the effect of section 26(8) is to prohibit judicial modification or adaptation of any existing law to bring it into con-formity with the human rights guarantees in Chapter 111, we respectfully think that that decision should no longer be followed.29
This more Constitution-centred approach has also been seen in cases involving only partial saving law clauses.30 Even modification clauses can be overridden in favour of a clear finding of unconstitutionality, as demonstrated in DPP v Mollison,31 a case involving the constitutionality of a juvenile sentence to be determined by the Governor General.
This is not to suggest that the saving law clause is now dysfunctional and will not be considered. One such case which runs counter to the trend is Pinder v R,32 where the Privy Council deviated from the international approach of treating corporal punish-ment as cruel and inhuman punishpunish-ment in favour of a special or partial saving law clause. It found that such punishment had been expressly saved and was constitutional.
Indeed, the value of a saving law clause is not to be denied. Its inclusion was necessary to ensure that there was coherence and certainty in the transition from colony to independent State. Once that legal tradition is cemented however, surely the need for such clauses, in particular, general saving law clauses, is diminished?
Rather, there should exist, underlying the entire body of law in the legal system, an acceptance that constitutional values are to inform such law.
This is not so simple an exercise however, as it begs the question how to determine precisely such values and who should identify them? It is in this sense, that we ask another question. Has Commonwealth Caribbean jurisprudence overreached in placing too much authority in the hands of the judiciary in determining the identity
29 Ibid at paras 59–61.
30 See, eg, R v Hughes (2002) 60 WIR 156 (PC), Reyes v R (2002) 60 WIR 42 (PC). Cf Pinder v R (2002) 61 WIR 13 (PC, The Bahamas).
31 Above, fn 23.
32 Above, fn 30.
of the Constitution? To put it another way, have we unwittingly allowed our courts to hijack our Constitutions?
Modern interpretations of saving law clauses ensure that the Constitution as a source of law is not only more dynamic, but more independent of its common law origins. On the other hand, it paves the way for it to be universal in its expansion, relying more on international law as a source of law.