One of the particular features of the debate about the death penalty in Trinidad and Tobago and Barbados is the presence of what are called ‘savings clauses’ in the constitutions of both countries. Savings clauses are common features of the constitutions of former British colonies; these clauses were included at independence to provide continuity of the law during a transitionary period.
The savings clause in the Constitution of Trinidad and Tobago is a general savings clause that saves all existing law from challenge including laws which are incompatible with the fundamental rights guarantee also in the Constitution. The savings clause in Barbados is also a general savings clause, but it only protects written laws from such a challenge. In the recent Caribbean Court of Justice ruling which held that the mandatory death sentence in Barbados was unconstitutional, the savings clause of that country’s Constitution was given extensive consideration. The Court ultimately held that it should be interpreted restrictively, and should not interfere with the fundamental rights guarantees in the same Constitution, see discussion in the judgment here Full Judgment 2018-CCJ-19-AJ.
Margaret Burnham (2005) writes that these clauses were ‘[m]eant initially as a shortcut method of marrying common law rights and constitutional protections’.
However, in the context of the death penalty debate, such clauses have made the fundamental rights guarantee in these constitutions unworkable, as the savings clauses protect from challenge all laws that were in existence on independence.
There are occasions when the Privy Council has overcome ‘savings clauses’. On the issue of lengthy delays following sentence, in Pratt and Morgan( 4 All ER 769), the Privy Council had reasoned that the delay would not have been lawful prior to independence either; this reasoning allowed them to restrict the use of the mandatory death penalty. The distinction made between the constitutionality of the death penalty and its implementation was, according to Arif Bulkan (2015) ‘a fine distinction that some found unsupportable, but the impact was immediate and dramatic’ (see section on ‘Delay and Death Row Phenomenon‘).
This meant that in the case of Pratt and Morgan therefore, that ‘The special clause saved the penalty, but not the means of its application’ (Burnham, 2014). The Privy Council could not invalidate the mandatory death penalty, but it could restrict how it was used.
It can be seen therefore that savings clauses have created something of an irony in the case law on the death penalty, and have complicated the task of ruling on the issue.
Gifford (2009) concludes that the savings clauses are ‘most objectionable’, and have the effect of leaving the law ‘frozen in the mould of the 1960s’. He urges that ‘A living constitution must be capable of interpretation according to the developing standards of the day.’