|Welcome to Law Lords’ decision |
Thursday, December 4 2003
THE EDITOR: Section 4 of the Offences Against the Person Act states that, “Every person convicted of murder shall suffer death.” Until the recent Privy Council decision in the Roodal case, it was agreed by all that that penalty was mandatory for any person found guilty of murder. Of course, in appropriate circumstances, the Mercy Committee might recommend that some other punishment be meted out.
However, the judge at trial had no discretion. He had to impose the death penalty. Most commentators have dealt with just this aspect of the decision, although one of the attorneys involved in the appeal spoke of the impact on the “savings clause” contained in the Constitution. I wish to deal with this aspect of the decision. The recognition, declaration and protection of the fundamental human rights and freedoms can be found in Sections 4 and 5 of Chapter 1, Part I of the Constitution. Section 6 is found in Part II. Basically, what Section 6 seeks to do is to validate all laws that were in force immediately before the commencement of the Constitution. That validation extends not just to any “existing law” but also to any enactment that repeals and re-enacts an existing law, among others.
What it means is that all laws that were in force immediately before the commencement of the Constitution continue to be valid. Even if that law or any provision of it was clearly unconstitutional at the date that it was passed, that would in no way affect its validity. Not even if there was before the High Court an application in which it would undoubtedly have ruled that the legislation was unconstitutional. So long as the Court had not yet ruled on its constitutionality, it remained an “existing law.” As such, it did not have to satisfy the requirements of Sections 4 and 5 of the Constitution. So if a law had been passed in 1974 that would clearly not have met the requirements of the corresponding sections under the 1962 Independence Constitution, it would nonetheless be valid under the 1976 Republican Constitution even if it did not meet the requirements under Sections 4 and 5.
The only way that that law would lose its validity is if, prior to the commencement of the Constitution, the High Court had ruled on its validity. Even then, it would still be an “existing law” for the purpose of the 1976 Republican Constitution, subject, of course, to the decision of the High Court rendered earlier. It was this “understanding” or interpretation of a provision of the Constitution that really gives the case its importance. Has the case nullified Section 6 of the Constitution? For all practical purposes, it has. What the Privy Council did was in effect to state that, notwithstanding the provisions of Section 6, Section 4 of the Offences Against the Person Act shall be read with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the provisions of Sections 4 and 5 of the Republican Constitution.
The 1962 Independence Constitution contained a similar “savings for existing laws” provision. Indeed, the Constitution of al the MDCs of Caricom, including The Bahamas, have a similar provision. The Constitution of each of them has a provision similar to Section 2 of the Dominica Constitution Order which specifically provides that “existing laws shall, as from the commencement of the Constitution, be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution....” All modern democratic countries with written constitutions have provisions granting the courts the power to review laws to ensure that they are in conformity with entrenched provisions in the constitution. Parliament is therefore in that sense not supreme. In England which did not have a written constitution, Parliament was supreme. The courts had no power to strike down any legislation for being unconstitutional. Since joining the European Union, that has changed. The result is that not even the English Parliament is supreme.
It would be interesting to find out what was the rationale for the inclusion in the Constitution of this “savings for existing laws” provision. What is the purpose of having a constitution and then exempting laws from compliance with its provisions simply on the basis that they were in existence prior to its coming into force? The decision of the Privy Council is nothing but another example of judicial activism. Many may rail against it and its implication for carrying out the death penalty in the Caribbean. However, in so far as it dents or eliminates the operation of the “savings for existing laws” provision, the decision is one that is to be welcomed. With constitutional reform being very much in the air these days, one can only hope that in any revision to take place, there would be no more “savings for existing laws” provision. Rather, we should go the way of the other islands in the OECS. Section 6 of Chapter 1, Part II of the Constitution should go.