Barbama and St. Lucada are Commonwealth Caribbean countries.

The Constitutions of both

countries include a provision in the chapter protecting fundamental rights and freedoms which
states that no person should be subjected to inhuman or degrading punishment or treatment. The
Constitutions also include a provision stating that nothing contained in or done under the
authority of any law shall be held to be inconsistent with or in contravention of that section to the
extent that the law in question authorizes the infliction of any punishment or the administration
of any treatment that was lawful immediately before the Constitution came into force. Both
Constitutions also include a provision stating that ‘existing laws’ should be modified to bring
them in conformity with the Constitutions. The Constitution of Barbama alone has an additional
provision which states that nothing contained in a law in existence before the Constitution came
into force shall be held to be inconsistent with or in contravention of any of the provisions of the
chapter protecting fundamental rights and freedoms. Both countries have a Praedial Larceny
Prevention Act, enacted in 1890 before the Constitutions came into force, which imposes a
mandatory sentence of ten lashes by the tamarind whip on any person convicted of praedial
larceny. It has been clearly established by judicial decisions that the use of corporal punishment
as a sentence for crimes is in violation of the right not to be subjected to inhuman or degrading
punishment or treatment. Mervin has been convicted of praedial larceny in St. Lucada and
sentenced to ten lashes under the Act in his country. Sam has been convicted of the same crime
in Barbama and similarly sentenced to ten lashes under the Act in his country. Mervin and Sam
wish to challenge the constitutionality of the sentence through judicial review proceedings, on
the basis that it amounts to a violation of their right to protection from inhuman or degrading
punishment or treatment. Advise Mervin and Sam.

Constitutions in the Commonwealth Caribbean are usually viewed as the supreme law of the

land. There are written and can be said to be the most important legal source in the Caribbean as

this document confirms the independent status of the countries and it represents the break with

colonialism. The Constitution can be said to be the parent law by which all other laws are

measured and this was supported in the case of Collymore v AG which stated that, ‘no one, not

even Parliament, can disobey the Constitution with impunity.’ From this statement it can be said

that the Constitution is the ultimate source of power and authority.

In the scenario given, Barbama and St. Lucada are both countries which have written

constitutions and have included a chapter which protects the fundamental rights and freedoms

which states that no person should be subjected to inhumane or degrading punishment or

treatment. This is similar in Jamaica as Chapter 13 of the Constitution is known as the Bill of
Rights which fulfils the same function as in these two territories. An example of degrading

punishments and treatments has been shown in the case of Pratt and Morgan v AG of Jamaica it

was held by the Privy Council that having a person on death row for over 5 years was inhumane

and as a result their appeal was allowed. This Jamaican case saw many changes to other

Constitutions of the Caribbean Commonwealth but certain sections of the Constitutions have

been protected by different savings law clauses. In this scenario of Barbama and St. Lucada both

countries have what is known as the General Savings Law Clause which is usually found in the

Bill of Rights or the chapter on Fundamental Rights and Freedoms. This basically shows that the

law authorizes the infliction of any punishment that was lawful immediately before the

Constitution was in force. In the case of Reyes v R it was established that a mandatory death

penalty was inhuman and degrading punishment. The question to the Privy Council was whether

paragraph 10 prevented the court from holding that the mandatory death penalty was

unconstitutional. A distinction was made and it was shown that the special savings law clause

protected laws that authorize a punishment but not a law that mandated a punishment

McIntosh believes that the special savings law clause is a ‘disabling device’ and it should

therefore be removed. This statement has some truth to it as the special savings law clause is the

punishment itself and even if the law authorizing the punishment is repealed and later re-enacted

there is still guaranteed protection under the special savings law clause. What is the importance

of re-enacting the law? A strict and narrow application of this rule was shown in the case of R v

Hughes as it stated that ‘a modification which preserves the essential purpose of the challenged

provision while achieving conformity with the Constitution is one that it would be legally

desirable to make,’ and as such the appeal by the Crown was dismissed. When applied to the
above facts it may be said that the Praedial Larceny Prevention Act, enacted in 1890 before the

Constitutions came into force in both countries which imposed a mandatory sentence of ten

lashes by the tamarind whip may not be saved by the special savings law clause.

However, the constitutions have allowed for the modification clause which allows existing law to

be modified so as to bring it into conformity with the Constitution. As in the case of DPP v

Mollison the possibility of modifying the existing law so as to preserve the substantial effect

while removing the inconsistency. The modification clause however does not protect the existing

laws against constitutional challenge and can be overridden in favour of a clear finding of

unconstitutionality and the appeal by the Director of Public Prosecutions in the case was

dismissed. This does not mean that the savings law clause is now dysfunctional and will not be

considered. In Pinder v R the Privy Council did not treat corporal punishment as cruel and

inhumane as it went in favour of the special savings law clause stating that such punishment had

been expressly saved and was constitutional. This leaves a problem in the law – where will the

courts draw the line? When will the courts be at liberty to choose?

The constitution of Barbama however has an additional provision which states that nothing

contained in the law in existence before the Constitution came into force shall be held to be

inconsistent with or in contravention of any of the provisions of the chapter protecting

fundamental rights and freedoms. This seems to have added some clarity to the situation and thus

Sam may be in a better position than Mervin. On the flip side, the courts may follow the path set

by Pinder and the special savings law clause would protect corporal punishment which is an

issue in the example presented. If this path is taken then the courts may argue that the
punishment is saved by the special savings law clause and as a result corporal punishment would

not be deemed unconstitutional. As was stated earlier though the special savings law clause only

protects punishments that are authorised and not those that are mandatory; based on this Sam and

Mervin can challenge the constitutionality of the sentence through judicial review as it would

amount to a violation of their right to protection from inhuman or degrading punishment or

treatment.