Recent Approaches To The Interpretation Of The Savings Clause In The Commonwealth Caribbean

Abstract

The savings clause found in the independence constitutions of most Caribbean Commonwealth countries has been a source of consternation for many concerned with the development of constitutional law in the Caribbean. This clause which immunised pre-independence laws from invalidation after former colonies gained sovereignty, can undermine a state’s ability to grant citizens the full protection of the rights and freedoms guaranteed by its constitution. Over time, two distinct approaches to constitutional interpretation vis-à-vis the savings clause have emerged regionally. Some courts have chosen to apply a broad and purposive interpretation to Caribbean constitutions as a whole while reading savings clauses narrowly. On the other hand, this approach has been disparaged by Courts which adopt a literal approach when construing these constitutions. Interestingly, in recent times, the two final appellate courts that govern this region fall on either side of the divide. The Caribbean Court of Justice (CCJ) has adopted a “modify first” approach in its application of the savings clause while the Judicial Committee of the Privy Council (JCPC) does not see the necessity of such a technique given the unambiguous nature of savings clauses. These contrasting approaches will be examined through the lens of two cases emanating from these courts in 2022: Bisram v Director of Public Prosecutions and Chandler v The State.