Human Rights and the Savings Law Clauses of the Jamaican Constitution

Though slavery was abolished in 1838, as a mark of continued colonial imperialism, the framers of the Jamaican Constitution (and other CCS) blindly preserved much of their colonial legacy when Jamaica gained independence on August 6th, 1962. Most notably, Jamaica retained the Westminster Style parliament (which dominates the CCR) and the Common Law legal system. Having mirrored their colonial masters, these constitutional documents of the CCR, were in no way autochthonous or the product of any sustained political discourse. In fact, history shows that that there was no ideological debate prompting a pull of ideas from the people. Instead, they were the end product of quick negotiations between the political elites of the colonies, with the stamp of approval from technocrats (lawyers and politicians) based in London looking only after their own interests and the interest of the plantocracy establishment based in the Caribbean. There were no representatives of the masses vociferously expounding their views and interests; who seemed to be powerless and forgotten. Subsequently, by being prosaic in nature, “constitutionalism has bequeathed us a legacy of democratic strictures and traditions premised on those in the UK.” However, the Constitutions of the CCR departed from the British model with the inclusion of a written bill of rights. Chapter 3 of the Jamaican Constitution accordingly entrenches the protection of individual rights enforced by judicial review, entrenching constitutional supremacy over legislative and executive actions.

History shows that it was Christopher Columbus and the Spanish who brought the death penalty to Jamaica in 1496, and saw to its application against the indigenous Indians for very trivial crimes and ...

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...s into the post independence constitutions of the CCR. While human rights norms evolve over time, the Jamaican Constitution, unlike the 1950 ECHR, is thereby no ‘living instrument’ and as such the judiciary is unable to create new space for democracy by breathing new life into the Constitution. Worryingly, given that the bill of rights founded in Chapter Three of the Jamaican Constitution was mirrored on the ECHR, whose promulgulation followed the atrocities of WWII, clearly demonstrates here just how ineffective “pre-existing laws” were in articulating and protecting basic human rights. This is however unfortunate, given that it is a fundament criterion that any constitution should “… be capable of growth and development overtime to meet new social, political and historical realities often unimagined by its framers;” an unfortunate occurrence [emphasis added].