Savings law clause : “How far does one go towards modification?” – AG Nandlall

…zeros in on “collision” between CCJ, Privy Council

By Feona Morrison

Modifying the savings law clause is not a “clear-cut issue”, says Attorney General and Legal Affairs Minister Anil Nandlall, SC, who has asserted that there is a collision between the Caribbean Court of Justice (CCJ) and the Privy Council on “how far does one go towards modification”, given the different approaches adopted by the two apex courts in constitutional/criminal matters.

Nandlall and other regional legal minds addressed a seminar entitled: Privy Council (Chandler) v CCJ (Nervais): The “Savings Law Clause” and Caribbean Constitutional Interpretation. The meeting, which was arranged by the University of the West Indies (UWI) Cave Hill Campus, Faculty of Law, was held on via Zoom on Thursday. Besides Nandlall, the other members of the panel were Senior Counsel Douglas Mendes, a former Judge in Trinidad and Tobago; King’s Counsel Dr Francis Alexis, a former Attorney General of Grenada; Dr Lloyd Barnett, Chairman of the General Legal Council and the Independent Jamaica Council for Human Rights; and Professor Eddy Ventose, Dean of Law at UWI Cave Hill, who served as moderator. The panel shared their thoughts on fundamentally different approaches to the interpretation of the savings clause in the Commonwealth Caribbean Constitutions by the Region’s apex courts, namely the Privy Council, and the Caribbean Court of Justice (CCJ). They also fielded questions from participants.
Savings clauses are common features of the Constitutions of former British colonies, including Guyana which was included at Independence to provide continuity of the law during a transitionary period. The savings law clause of the Constitution of Guyana is found in Article 152 and states that nothing contained in or done under the authority of any pre-Independence written law shall be inconsistent with or in contravention of human rights protected by the Constitution.
Thursday’s discussion examined decisions delivered by these courts of last resort.

Decisions
In May 2022, the Privy Council in Chandler v The State (No 2) (Trinidad and Tobago) [2022] UKPC 19 held that the mandatory death penalty for murder found in Section 4 of the Offences Against the Person Act 1925 was constitutional because it was an existing law that was saved by the savings clause found in Section 6 of the Constitution. The Privy Council, Trinidad and Tobago’s apex court, in Chandler unanimously upheld its previous decision in Matthew v The State [2005] 1 AC 433. In its reasoning, the Privy Council did not agree with the reasoning of the CCJ in a trilogy of decisions, namely, Nervais v R [2018] CCJ 19 (Barbados); McEwan v Attorney General of Guyana [2018] CCJ 30 (Guyana) and Marcus Bisram v Director of Public Prosecutions [2022] CCJ 7 (Guyana).
The CCJ is the final court of appeal for Guyana, Barbados, Dominica, and Belize in civil and criminal matters. All the other Caricom member states have retained the United Kingdom’s Privy Council.
In 2018, the CCJ, in Nervais rejected the reasoning of the Privy Council in Boyce v The Queen [2004] UKPC 32 (Barbados), which held that the general savings law clause found in Section 26 of the Constitution of Barbados prevented the mandatory death penalty from being unconstitutional on the basis, among other things, that Section 2 of the Offences Against the Person Act can be modified pursuant to Section 4 (1) 1966 Independence Order to conform with the Constitution.
The CCJ applied this reasoning in McEwan and Bisram in Guyana.

Same clause, different destinations
Commenting on the decisions, Nandlall expressed that the two courts in interpreting the same clause, travelled two different roads and arrived at two different destinations.
Acknowledging that the Privy Council and CCJ are both final courts, he said that they are “entitled to travel their own road”, adding that the issues which arose in the cases were a question of interpretation, jurisprudential rationale, and philosophy. He noted that the CCJ and Privy Council, in arriving at their decision, have professed to embrace the Constitution, the doctrine of the separation of powers, and the need for a generous interpretation of the Constitution with a view of enlarging fundamental rights and freedom. Although the courts’ rulings were informed by these, they have arrived at different destinations, the Attorney General pointed out. He explained that the savings clause was simply a mechanism at the time of Independence which became part of the instruments that were intended to ensure a smooth transition from what existed before the Constitution, into the constitutional realm and for there to be some recognition of what transpired anti the Constitution as the Constitution would become the new norm going forward.
“That fluidity, that nexus necessary, that jurisprudential and legal connection was obviously necessary for the rule of law to cement itself in the new constitutional structure,” he noted.

Analysis
According to him, the Privy Council in Chandler held, “If there must be a change, then the change must come from the legislature. Judges are not permitted under the doctrine of separation of powers to express their view on what the law is or should not be…”
If it is believed that the savings law clause, which in Guyana’s case, would be some 70 years old, is seeking to control the rights and freedom of the individual 70 years hence, then it is a matter for the people of Guyana and their elected representatives in the Parliament of Guyana to change; it’s not open for Judges to change that, he said in analysing the Privy Council’s ruling.
He said the saving of existing law clause and constitutional instruments when they were introduced, empowered the Judiciary to, however, interpret those existing laws with such modification and adaptation that are necessary to bring them in conformity with the Constitution.
The Privy Council, in its ruling, also recognised that if there is any inconsistency between the pre-existing laws and the constitutional provision, then notwithstanding that inconsistency, and even if it relates to fundamental rights, the pre-existing laws shall be preserved and not struck down as unconstitutional, the senior Council added. Based on the Privy Council’s ruling, he pointed out that the court, going forward, had the power to where possible, interpret the existing laws with such modification as to bring them into conformity with the constitutional provisions. “The Privy Council, I suppose, used the literal interpretation and did that over the years…” he noted
The CCJ, he said, however, took a different approach, adding that McEwan presents the best example of the court’s thinking. “Because the court, I suppose… describing itself as an indigenous court of the Region and recognising the dynamic, organic nature, and living instrument nature of the Constitutions of the Caribbean, took a different philosophical position as the apex court of the Region. And took upon it, what it conceived to be its role in terms of shaping and interpreting the Constitution to meet the aspirations of the people governed by those Constitutions.”
“Looking at the Constitution from the lens of a living instrument and must be interpreted as an evolving instrument to meet the vicissitude and dynamism of an evolving Caribbean society. The CCJ found offensive that we can live in this era and have constitutional provisions that can confer upon the people of the Caribbean, recognised civil liberty and fundamental freedom but they are somehow constrained by a series of laws birthed out of colonial era but still remain as a shackle to a free society. I believe that is the philosophy that informs the CCJ and that is how it views the savings of law clause in terms of interpreting the Constitution generously…. proactively and from the perspective that one must enlarge rather than circumscribe constitutional rights and fundamental freedom of the people of the Caribbean,” Nandlall explained.

Collision
On the issue of modifying the savings clause, in Guyana’s case, Nandlall said when the law is read with the schedule, together the two instruments present a clear power in the Judiciary to modify.
While the Judiciary, under the separation of powers doctrine is ascribed to the role of interpreting the law or Constitution, the Attorney General emphasised, “It does not make law; it cannot legislate. Of course, it makes laws by judicial decisions, but that is not the issue…”
“My understanding of interpretation is you interpret as liberally as you may wish but you are constrained by the language used. Any interpretation that violates the linguistic cannons is something else…it is not interpretation. If you are interpreting with a view to modify, or if you are modifying, you can only do so, by interpreting. The Judiciary has no other function.”
Considering this, he submitted that there is a collision between the CCJ and Privy Council on “how far does one go towards modification”.
The Attorney General reasoned: “An apex court, I have no doubt is responsible and mature. But once this power is accepted as a judicial power, there have other judicial officers in the hierarchical structure who can now begin to exercise this power and look at clear language in legislation and apply the modification doctrine…interpret them differently from what the language suggests and say they are modifying in the manner contemplated by the apex court.”

Doubled down
CCJ President Justice Adrian Saunders while delivering remarks at an event earlier this year, said that in constitutional/criminal cases, Nervais, McEwan, and Bisram, the regional court adopted an approach to pre-Independence laws that has now placed us on a very different jurisprudential path from that taken by the Privy Council so far as that question is concerned.
“The cases raised issues of constitutional interpretation. Should Caribbean Constitutions be interpreted in such a manner that pre-Independence laws should take precedence over constitutionalised fundamental rights even when it is accepted that those colonial laws infringe the fundamental rights?” Justice Saunders said. “Or should the Constitution be interpreted in a manner that requires the colonial laws first to be modified to bring them into consistency with the fundamental rights? The Privy Council has doubled down on the former path which they first took by a narrow majority in the Trinidadian case of Matthew v The State. In Nervais, McEwan and Bisram, the CCJ explained its reasons for not adopting that path. In our view, constitutionalised fundamental rights were too sacrosanct to be trumped by pre-Independence laws,” he added.