The Jeff Cumberbatch Column – The Saving Law Clause and Our Highest Court

A few Barbadians are sometimes given to refer, rather quaintly, to the local Parliament as the “highest court in the land”. Since our Parliament is patently not a court of law or of anything, the use of the expression is incorrect. It has its origins in the existence of the House of Lords in England, the equivalent to our Upper Chamber, the Senate, being at one time the highest court in England. This is no longer the case, it having been replaced by the Supreme Court of the United Kingdom in 2009. There are still some similarities between court and Parliament however. Statements in both places attract absolute privilege in the law of defamation and they both have the power to commit for contempt. Over the past few days, two of the truly highest courts in their respective jurisdictions had the opportunity to pronounce on issues of undoubted importance that provide the material for today’s essay.

The Caribbean Court of Justice, still our highest court, in the course of its deliberation on the constitutionality of the mandatory death penalty that obtains on a conviction for murder in Barbados, made some interesting and long-awaited observations on the import of the controversial section 26 of the Constitution that immunizes from constitutional query for conformity with the fundamental rights provisions, any legislation that was enacted prior to the coming into force of the Constitution in 1966 and that has remained substantially unaltered law since that date.

Readers will recall that it was mainly this provision that “saved” the 8 per cent pay cut of public officers in 1991 from being held to be an infringement of their constitutional rights and also that its likely interpretation has recently forced a number of individuals, dubious of the constitutionality of our laws against buggery and gross indecency, to launch their offensive against these at the level of the Inter-American Human Rights Court rather than locally. The observations of the CCJ in this regard are therefore of paramount importance.

First, in exploring the rationale for this provision, the CCJ found two such.

“One, being the view of Lord Devlin in Director of in Director of Public Prosecutions v Nasralla, that the existing laws already embodied the most perfect statement of fundamental rights and that no inconsistency with the fundamental rights was possible, and the other being the view of Lord Hope in Watson that this was a device in the interests of legal certainty to ensure an orderly transfer of legislative authority.”

I have heard a variation of this latter rationale from the mouth of the late Sir Roy Marshall, one of the framers, who attributed it rather to a being dilatory strategy -to ensure order until the legislature was able to verify the conformity of all existing laws with the fundamental rights provisions in the Constitution. Indeed, this view is later confirmed in the judgment of the CCJ where reference is made to Lord Hope’s commentary in Watson where he suggested that the savings clause was a transitional arrangement.

“The idea that this should not be “forever” was implicit in Lord Hope’s commentary in that he suggested that the savings clause was a transitional arrangement. As we have observed, transitional arrangements must have a time limit. One cannot be in transition forever. The Belize Constitution addressed this by limiting the application of the savings clause for 5 years”  

The CCJ found this incongruent with the notion on which Independence was founded-

The proposition that judges in an independent Barbados should be forever prevented from determining whether the laws inherited from the colonial government conflicted with the fundamental rights provisions of the Constitution must be inconsistent with the concept of human equality which drove the march to independent status.”

And it noted further the necessity for the separation of powers where the issue is whether laws are in conformity with the Constitution.

“Ensuring that the laws are in conformity with the Constitution cannot be left to the legislature and the executive. That is the role of the judiciary, and accordingly it is the right of every person to depend on the judiciary to fulfil that role.”

As to the view that all rights a were already secured by the common law prior to independence and that the fundamental rights provision was meant to police post-independence laws only, the CCJ observed

“This view does not sit from the perspective of a former subjected people who are “Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory which includes the right to freely determine their political status and freely pursue their economic social and cultural development …”

The majority concluded therefore,

“The general saving clause is an unacceptable diminution of the freedom of newly independent peoples who fought for that freedom with unshakeable faith in fundamental human rights. The idea that even where a provision is inconsistent with a fundamental right a court is prevented from declaring the truth of that inconsistency just because the laws formed part of the inherited laws from the colonial regime must be condemned…”

This definitive pillorying of the utility of the savings law clause by our highest tribunal should alter fundamentally for the future the nature of the interpretation of the fundamental rights in Barbados. Of course, the CCJ is itself incompetent to remove the provision; this is exclusively a matter for Parliament. However, in light of the strictures against the provision in the judgment by a court whose holdings are binding on all others, Parliament should do the needful thing and consider repealing the provision.

Treating the importance of the CCJ’s treatment of section 26 in its recent decision has left me unable this week to comment on another ruling from a likewise highest court, the Supreme Court of the US, and its decision to uphold the travel ban on certain nationals by the President there.  I promise to do so in Part II of this piece.

an inalien

32 comments

  • The travel ban enacted by Pres Trump on individuals from ‘certain’ countries, is one B arb ados would do well to emulate. Al;l those binbags at GAIA are beyond depressing, and an indication of a sellout out of our birthrights by corrupt politicians..
    There is NO COUNTRY IN THE WORLD that has benefited from an influx of these barbarians.

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  • de pedantic Dribbler

    @Dean Jeff, is this matter of the “highest court in the land” language definition accuracy superseding broad and fundamental language meaning.

    Doesn’t parliament have an ability to create laws that can ‘supersede’ those of the courts!

    In the case of our fingerprint draft bill, as an example, which has been stalled by court challenges it appears that despite the concerns on trampling freedoms that a properly drafted and properly promulgated bill could yet be enacted based on the real concerns of national security.

    So yes the law courts play a crucial role to ensure “that the laws are in conformity with the Constitution” but it seems that by dint of the elective power of the parliament/legislature to repeal provisions of the constitution and create new laws they effectively remain a ‘high court’ of the land, if not the highest!

    Liked by 1 person

  • de pedantic Dribbler

    Moderating a simple comment about parliament…your intervention is appreciated David Mr Blogmaster.

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  • Why must your interpretation of a comment held in moderation that the blogmaster is moderating? Yes the blogmaster will intervene from time to time to moderate a few on the blog for one reason or the other but for crissakes, understand how WordPress filter works.

    Liked by 1 person

  • Caswell Franklyn

    Thanks Jeff. You don’t know how many times I’ve had to say to others that the House of Assembly is not a court. Maybe now, they would listen to you.

    Sorry to disappoint you but repealing section 26 is not a priority of the Government. They have more important things to do like amending the Constitution to accommodate Tom Adams’s son.

    Oh by the way, if memory serves me correctly, even though Section 26 of the Constitution was argued extensively in the 8% pay cut case, it actually turned on the definition of the word “vary”.

    Liked by 1 person

  • de pedantic Dribbler

    Yep Mr Blogmaster, one must understand these things. I wasn’t assuming you were the one moderating necessarily but did presume that you could more readily update/review such moderated comments re this blog.

    Moreover, I was just surprised. I have gone through this before and it smoothed itself out so having not changed any technical aspects of my browsing actions I was taken aback that a renewed filtering review had been reinitiated.

    C’est la vie….until la vie is le hacked, I can only presume.😐

    Liked by 1 person

  • The WordPress filtering system is enterprise one i.e. there is WordPress level and blog level rules with WordPress overriding obviously.

    Liked by 1 person

  • Caswell,

    The UK House of Commons can sit in judgement. I know the unthinking will say Barbados is not the UK, but do we follow the Whitehall/Westminster rules? Or is that idea fiction?

    Liked by 2 people

  • “The idea that even where a provision is inconsistent with a fundamental right a court is prevented from declaring the truth of that inconsistency just because the laws formed part of the inherited laws from the colonial regime must be condemned…”

    “Of course, the CCJ is itself incompetent to remove the provision; this is exclusively a matter for Parliament. However, in light of the strictures against the provision in the judgment by a court whose holdings are binding on all others, Parliament should do the needful thing and consider repealing the provision.”

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  • Jeff Cumberbatch

    So yes the law courts play a crucial role to ensure “that the laws are in conformity with the Constitution” but it seems that by dint of the elective power of the parliament/legislature to repeal provisions of the constitution and create new laws they effectively remain a ‘high court’ of the land, if not the highest!

    DPD, Ah, yes, but then the court will have the final say on what that legislative creation means, And there is a presumption that Parliament does not intend to alter the Constitution except by the clearest language to that effect. it is an existing tension between the two powers.The “court function” is expressly reserved to the judges by the Constitution.

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  • Jeff Cumberbatch

    Sorry to disappoint you but repealing section 26 is not a priority of the Government. They have more important things to do like amending the Constitution to accommodate Tom Adams’s son.

    Oh by the way, if memory serves me correctly, even though Section 26 of the Constitution was argued extensively in the 8% pay cut case, it actually turned on the definition of the word “vary”

    @ Caswell, .

    As to your second and substantive point you are of course correct, although the word” vary” was interpreted as meaning raise or lower in the context of the “saved” Civil Establishments Act. Hence the importance of section 28 that permitted its application.

    As to the first, I applaud tour commitment to social justice.The Senate is much the richer for your presence, in my view. Have an enjoyable tenure!

    Liked by 1 person

  • Jeff Cumberbatch

    s.26 of course.

    Liked by 1 person

  • @Jeff

    Trying to understand how you addressed fully Caswells first point🙂.

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  • Jeff Cumberbatch

    @ David, I was simply supporting Caswell;s point that he made, though only sub silentio, that legislation should not be used for the purpose of enabling a single individual but rather should be used for the general good of the society.

    Of course, Ms Mottley and the AG could argue that it was precisely for that latter purpose and not too benefit of one or two persons only!

    Liked by 2 people

  • Jeff Cumberbatch

    to the

    Liked by 1 person

  • Thanks for the clarification Jeff!

    Liked by 1 person

  • Jeff Cumberbatch

    Thanks for the clarification Jeff!

    Much obliged, David.

    Liked by 1 person

  • Jeff Cumberbatch

    The UK House of Commons can sit in judgement. I know the unthinking will say Barbados is not the UK, but do we follow the Whitehall/Westminster rules? Or is that idea fiction?

    @Hal, We do follow the Westminster model but not slavishly so. We have adapted it to our own purposes. Hence the “Westminster-export model”. The House of Commons sits in judgement for breaches of its privileges or contempt of the House. This is scarcely the same as adjudicating an action in tort or one for breach of contract. In any event, one would scarcely consider the House of Commons to be the “highest court in the land”,

    Liked by 1 person

  • Jeff,
    It depends on what you call a ‘court’. The highest traditional court in the UK is the Supreme Court, but parliament can over-rule the Supreme Court by amending legislation – a function of a court. This is at the heart of critical legal theory.
    As to the Westminster export model, what you mean is a mix and match of law-making ideas that have no fundamental philosophical foundation. Isn’t the Queen’s Bench division, headed by the Master of the Rolls, where most tort cases in the UK are finally heard?

    Liked by 1 person

  • Jeff Cumberbatch

    @ Hal, The determination of whether a subsequent Act amends or does not amend existing legislation is the exclusive preserve of the court of law, not of Parliament.

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  • “Any law student could tell you that the UK parliament is sovereign, and this means that, unlike in the United States, no court, including the supreme court, can strike down legislation passed by Parliament.” (Quote)

    Courts INTERPRET legislation, but make it. We do not have judge-made law under the Westminster system.

    Liked by 1 person

  • not make it.

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  • One of the slightly bizarre features of our legal system is that we have a supreme court, populated by our most senior and respected judges, which can no more tell our parliament what to do than it can decide the tactics for the England football team.(Quote)

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  • Jeff Cumberbatch

    We do not have judge-made law under the Westminster system

    @ Hal, you probably do not know enough of legal principle to make this statement. Yes, judges do not legislate since they are not constitutionally competent to, but have you e car heard of the doctrines of promissory and proprietary estoppel and the notion of vicarious liability? Search all you will, you will find no legislation creating these well established principles of law.

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  • Bernard Codrington

    @ Hal
    @ Jeff

    Parliament makes and amend laws; but the court interprets the law.

    Is there such a thing as case law in the British system of law which would suggest that the judges do make law?

    In interpreting the law do not judges in the British system unconsciously rewrite the law ?

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  • Bernard Codrington

    In most disciplines very often theory and practice diverge.

    Liked by 1 person

  • Jeff Cumberbatch

    Is there such a thing as case law in the British system of law which would suggest that the judges do make law?

    As per the references in my post @ 6:09pm

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  • Bernard Codrington

    @ Jeff at 6 :35 PM

    Thanks for ?confirming?. Your submission came while I was still typing , I believe.

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  • “but have you e car heard of the doctrines of promissory and proprietary estoppel and the notion of vicarious liability?”

    Not unless he took a 3-4 year law course.

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  • Jeff,
    I know enough to say that under the Westminster system Judges DO NOT make law; in their judgements and interpretations they may shift the meaning of legislation, but that is by stealth. Judges do not make law under the Westminster system – and that is the law in England and Wales.

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  • Their freedom is restricted by the rules of precedent and the supremacy of Parliament & by the rules of precedent and the rules of statutory interpretation. The courts cannot move out of there shoe of legislature and make decisions or create laws but they have to be confined to their territories and the guidelines given by them is to be followed until the legislature steps in to make law. There has to be Their freedom is restricted by the rules of precedent and the supremacy of Parliament & by the rules of precedent and the rules of statutory interpretation.(Quote)

    I do not know anything about law-making in Barbados, but can say with confidence that the above is the principle on which law-making in England and Wales is made.
    Give me a SINGLE example of a case in which a judge made de jure law in England and Wales, not by putting a particular emphasis on an interpretation, an authority, recognised author or a public lecture by someone with knowledge and expertise. Not intellectual speculation.
    This is a fundamental principle of British constitution. There are, and have always been, arguments about whether or not judges make law in their decisions (this has been at the heart of critical legal theory since its founding in the 1970s. I know, because I was part of that discussion in the UK under the late Professor Jock Young, one of the founders of the New Criminology, and have remained part of it ever since).
    I say for the last time, judges/magistrates INTERPRET law, not make it. In the UK system parliament is supreme.

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  • Jeff Cumberbatch

    Jeff,
    I know enough to say that under the Westminster system Judges DO NOT make law; in their judgements and interpretations they may shift the meaning of legislation, but that is by stealth. Judges do not make law under the Westminster system – and that is the law in England and Wales.

    @ Hal, I do not wish to pursue this any longer. It is becoming quite tiresome for me and i will not convince you. But are you aware of what is common law and how it st made? You speak of statute law only. As the blogmeister is wont to say, you may have the last word!

    Liked by 1 person

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