Law Association wants 'savings law clause' removed

The Law Association (LATT) wants the savings law clause in the Constitution removed.

The clause “saves” colonial-era laws from being challenged on constitutional grounds, even if they conflict with fundamental rights.

In a statement on April 2, the association said the recent ruling from the Court of Appeal in the Jason Jones’ case, which challenged the constitutionality of TT’s buggery laws, highlighted the “need for urgent constitutional reform to remove the savings law clause.”

In a majority ruling on March 25, Justices of Appeal Nolan Bereaux and Charmaine Pemberton ruled that while sections 13 and 16 of the Sexual Offences Act were unconstitutional, the criminalisation of certain sexual conduct remained valid under an older colonial-era law. They reduced the sentence for buggery from 25 years to the original five-year term. They also found that exemptions from prosecution under Section 16 were invalid since the older law, which did not include such distinctions, remained in effect.

Bereaux acknowledged the ruling might be difficult to accept but emphasised that it was a consequence of the Constitution's savings clause, which protects pre-independence laws from legal challenge. He noted that Parliament, not the courts, should address the issue. Justice of Appeal Vasheist Kokaram dissented.

In its statement, LATT said it has consistently advocated for a change to the savings law clause, most recently in its recommendations to the National Advisory Committee on Constitutional Reform.

“Our data shows that 54 per cent of our membership agrees that the savings law clause should be abolished, while 65 per cent believe that section 4 of the Constitution should be amended to include protection from discrimination based on gender and sexual orientation.”

LATT pointed out that the savings law clause has attracted “sustained criticism, including from pre-eminent Caribbean constitutional scholars.”

It added, “The immunisation of colonial laws and punishments from being declared unconstitutional, more than fifty years after independence, has no place in modern times.”

The association said removing the clause would not have catastrophic consequences, pointing to other Caribbean countries which have successfully done so.

According to LATT, the clause also applies to “an array of colonial laws,” including sedition, loitering, exhibiting obscene prints, singing a profane ballad, being an incorrigible rogue and trundling a hoop.

“All these laws, which have questionable place in any modern democracy and which have been abolished by our former colonial masters, unfortunately, remain fossilised in our statute books.”

LATT expressed hope that “urgent legislative action will be taken to correct this state of affairs.”

It added, “The Constitution is the supreme law. It sets out the rights and freedoms of all individuals and celebrates the dignity of us all. It should no longer preserve legislation that clearly violates human rights and fundamental freedoms.”

Jones has said he intends to challenge the Appeal Court’s ruling at the UK-based Privy Council.

The Assembly of Southern Lawyers said the group fully endorsed LATT’s position.