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 This is no longer the case, it having been replaced by the Supreme Court of the United Kingdom in 2009.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.