Derek O’Brien and Se-shauna Wheatle: The Commonwealth Caribbean and the Uses and Abuses of Comparative Constitutional Law

The practice of judges engaging in a transnational judicial conversation about constitutional rights, by referring to the judgments of international human rights courts and other constitutional courts when interpreting their own domestic Bills of Rights, has been commented upon in detail by comparative constitutional law scholars, such as Christopher McCrudden and Anne-Marie Slaughter[1]. It still remains, however, a highly contested practice. Supporters of this practice, such as Vicki Jackson, argue that such transnational judicial conversations enhance understandings of core concepts, such as equality and human dignity, while critics, such as Justice Antonin Scalia, complain that they aid result-oriented reasoning as judges use comparative law selectively depending upon the result that the court wishes to reach. The scope for judges in the Commonwealth Caribbean, (which term includes the judges of the Judicial Committee of the Privy Council (JCPC), and the judges of the Caribbean Court of Justice in the case of those countries that have ratified its appellate jurisdiction – Guyana, Barbados and Belize) to engage in a transnational judicial conversation when interpreting their own domestic Bill of Rights has, however, been severely restricted by the inclusion in their Independence Constitutions of general and partial savings law clauses.

General savings law clauses (which are to be found in the Constitutions of Jamaica, Trinidad and Tobago, Barbados, The Bahamas and Guyana) afford immunity from constitutional challenge to all laws that were in force at the time of Independence. It has thus been, effectively, pointless for judges in these  Commonwealth Caribbean states to invoke jurisprudential developments in international human rights law (such as Dudgeon v UK (1982) 4 EHRR 149 and Tyrer v UK (1978) 2 EHRR 1)  and other national courts (such as Lawrence v Texas 123 S. Ct. 2472 (2003))  when determining the constitutionality of pre-independence laws; including laws that provide for the death penalty for murder, judicial flogging or the criminalisation of sexual relations between men. Notwithstanding changing judicial attitudes toward such laws elsewhere, the JCPC confirmed in Boyce v The Queen [2004] UKPC 32; [2004] 3 W.L.R. 786 that when interpreting the Constitutions of the Commonwealth Caribbean judges were bound by the inclusion of general savings law clauses and could not rely on judicial developments elsewhere when determining the constitutionality of pre-independence laws.

Partial savings law clauses (which are to be found in the Constitutions of Antigua and Barbuda, Barbados, The Bahamas, Belize, Jamaica, Guyana, St. Lucia) preserve all forms of punishment that were authorised as lawful prior to independence. These clauses have been tested most frequently in cases concerning the constitutionality of the death penalty. Originally, it was thought that these clauses precluded any possible challenge to the constitutionality of the death penalty on the ground, for example, that it violated the guarantee against torture and inhuman and degrading treatment or punishment. However, in a series of judgments, beginning with its landmark decision in Pratt and Morgan v. AG (Jamaica) [1994] 2 A.C. 1 the JCPC found a way of circumventing these partial saving law clauses by insisting that their effect is confined to authorising descriptions of punishment for which the court may pass sentence.  Accordingly, they do not prevent an applicant from arguing that the circumstances in which the executive intend to carry out the sentence, including, in that case, prolonged delay, may violate the right not to be subject to inhuman or degrading treatment or punishment. In Lewis v AG Jamaica [2000] 3W.L.R. 1785 the JCPC added that in extreme circumstances account might also be taken of the conditions under which a condemned prisoner was being held in determining whether the execution of the death sentence would violate the guarantee against torture and inhuman and degrading treatment or punishment. And finally, in Queen v Hughes [2002] 2 A.C. 259, the JCPC held that a pre-independence law, which prescribed a mandatory death penalty for the offence of murder, was not saved by the partial saving laws clause in the Constitution of St Lucia on the ground that the clause only saved existing laws to the extent that such laws authorise the infliction of the death penalty: they could not save an existing law which prescribed a mandatory death penalty, since this requires the infliction of the death penalty.

In each of these cases the JCPC supported its decisions by reference to the growing body of comparative and international jurisprudence condemning, for example, delay in the carrying out the death penalty (including judgments of the Supreme Courts of Zimbabwe and India as well as the judgment of the ECtHR in Soering v UK (1989) 11 E.H.R.R. 439) and the imposition of a mandatory death penalty for murder, which had been held to be arbitrary and inhuman by both the United State Supreme Court (Woodson v State of North Carolina 428 U.S. 280 (1976) and the Supreme Court of India (Mithu v State of Punjab [1983] 2 S.C.R. 690). These developments were, however, viewed with the utmost dismay by Commonwealth Caribbean governments and a number have, accordingly, responded by seeking to further immunise the operation of the death penalty and to prevent constitutional challenges based on judicial developments in other jurisdictions, including the above.

The first Government to act was Barbados, which, in 2002, amended its Constitution to ensure that prisoners who had been sentenced to a mandatory death penalty, who had suffered delay in the carrying out of their execution, or who were held in inhuman or degrading prison conditions, would not be able to mount a constitutional challenge on the grounds that their right not be subject to torture or inhuman or degrading treatment or punishment had been violated.[2] In 2011, the Government of Trinidad sought and narrowly failed to secure an amendment to its Constitution (Trinidad Constitution (Amendment) (Capital Offences) Bill 2011) which would have gone even further than this by additionally precluding a constitutional challenge on the ground that the warrant for the execution of the sentence of death had been read to the condemned man on more than one occasion.

Most recently, the Jamaican Government has amended its Bill of Rights by replacing it in its entirety with a new Charter of Rights and Freedoms. While the Charter seeks to expand rights protection in certain areas, it also seeks to prevent its judges from entertaining constitutional challenges to laws that authorise the death penalty for capital crimes, that criminalise consensual sexual relations between adult men, or which discriminate on the grounds of sexual orientation. With respect to the death penalty, the Joint Select Committee (JSC) which had been appointed by the Government to approve the terms of the draft Charter explicitly acknowledged the developments in other jurisdictions, such as South Africa (State v Makwanyane 1995 (6)BCLR 665 (CC)) and Tanzania (Mbushu v Republic (1995) 1 LRC 216), where their judges had been allowed to engage in an extensive discourse about the constitutionality of the death penalty, but recommended the retention of the partial savings law clause in the new Charter to ensure that this question remained outwith the jurisdiction of Jamaican judges and the judges of the JCPC, which continues to be Jamaica’s final court of appeal. The Charter also expressly precludes constitutional challenges based on delay in carrying out the death sentence or the physical conditions or arrangements under which the condemned person is detained.

As noted above, the Charter is not only concerned with the operation of the death penalty. It also seeks  to preclude the possibility of jurisprudential developments elsewhere resulting in a challenge to the constitutionality of laws that criminalise consensual sexual relations between adult men, or which discriminate on the grounds of sexual orientation. This concern is particularly relevant in light of growing international pressure repeal to anti-sodomy laws. This pressure recently appeared in the form of a report of the Commonwealth Eminent Persons group, which recommended the repeal of anti-sodomy laws in the 41 Commonwealth countries where such laws remain on the statute books. While the Jamaican Government could not have been aware of the report, since the Charter was drafted long before the publication of the report, it is clear that the Government was aware of the possibility that the Charter might conceivably be used as a ground for challenging the constitutionality of such laws. Indeed, the prescience of the Jamaican Government is amply demonstrated by the recent announcement of the Human Dignity Trust (HDT) that it plans to intervene to support a constitutional challenge to the anti-sodomy law in Belize initiated by a Belizean gay rights activist. (see a report in The Guardian). In order to foreclose the possibility of such a challenge being mounted in Jamaica the Charter includes a general saving laws clause which provides that nothing contained in or done under the authority of any law in force immediately before the commencement of the Charter, relating to, inter alia, sexual offences, shall be held to be inconsistent with or in contravention of the provisions of the Charter. Thus, on the basis that it was in force before the commencement of the Charter, section 76 of the Offences Against the Person Act which criminalises sexual activity between men appears to be immune from constitutional challenge.

Concerned also that, in the alternative, the guarantee of equality contained in section 13 (2) (i) of the Charter might provide a ground for mounting a constitutional challenge to other laws, including post-Charter laws, that discriminate on the basis of sexual orientation, the JSC expressly rejected a proposal to include the term ‘sex’ as a prohibited ground of discrimination, for fear that it might be interpreted to include sexual orientation. . Thus, the Charter instead opts for the much clumsier term, ‘being male or female.’ Finally, and for good measure, the Jamaican Government has sought to repel the potential influence of judicial developments with regard to same-sex marriage elsewhere. For example, in, Goodridge v Mass. Dept. of Health 798 N.E. 2d 941, in which the Massachusetts Supreme court legalized same sex-marriages within that state, Halpern v Ontario 65 O.R. (3d) 161, in which the Court of Appeal of Ontario held that the opposite-sex requirement for marriage in that state was unconstitutional, and Minister of Home Affairs v Fourie (2006)  (3) BCLR 355 (CC), in which the Constitutional Court of South Africa held that the exclusion of same-sex couples from the common law definition of marriage was unconstitutional. Accordingly, section 18 of the Charter provides that no law which restricts marriage as limited to one man and to one woman shall be held to be inconsistent with the Charter.

Conclusion

To paraphrase Joseph Jaconneli, the effect of the saving laws clauses of the Independence Constitutions of the Commonwealth Caribbean was to ‘crystallise’ their Bills of Rights. This may originally have been justified on the ground that in the immediate post-independence period the saving laws clauses guaranteed legal stability by ensuring that existing laws were not subject to constitutional challenge. It is, however, now nearly half a century since the first countries in the region gained independence and the retention of these saving laws clauses can no longer be justified by reference to the need for stability. Instead, it is clear from the examples of Barbados, Trinidad and Jamaica, that Commonwealth Caribbean governments are all too aware of the developments that have been taking place in international human rights law and in constitutional courts around the world, but do not want their judges to be able to rely on these developments when interpreting their own Bills of Rights.  In the case of Jamaica, which is the only country to date to undertake a wholesale review of its Bill of Rights, the Government has seized the opportunity, not for the purpose of removing the offending savings laws clauses, but instead to further insulate existing laws relating to the operation of the death penalty and sexual orientation by placing them beyond judicial scrutiny and thus beyond the reach of comparative constitutional law.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.
Se-shauna Wheatle is a DPhil Candidate at Balliol College, and Lecturer in Law, Exeter College, University of Oxford.
 

[1]             Christopher McCrudden, ‘A Common Law of Human Rights: Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 OJLS 499; Anne-Marie Slaughter, ‘Judicial Globalization’ (2000) 40 Va. J. Int’l L. 1103.

[2] Constitution (Amendment) Act 2002

1 Comment

Filed under Comparative law, Constitutional reform, Human rights

One response to “Derek O’Brien and Se-shauna Wheatle: The Commonwealth Caribbean and the Uses and Abuses of Comparative Constitutional Law

  1. Matondo K. Mukulu

    Good work. It would seem that the only way to deconstruct the Constitutions will be to elect MPs who possess that radical zeal and an acute awareness of what is happening globally. Not just being aware in the sense of “knowing’ but awareness in the sense of being committed. Secondly, the law schools have a critical progressive roll. The Law Faculties throughout the Caribbean will and must create a progressive ethos in its graduates so that they will have that desire to take on challenges that will chip away at these dead wood saving clauses.

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