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Human Rights And The Savings Law Clauses Of The Jamaican Constitution

905 words - 4 pages

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 sometimes for no crimes at all. The English, having defeated the Spanish in 1655, for over three hundred (300) years woefully administered the death penalty in an arbitrary fashion as a weapon of colonial control against the enslaved Africans who dared to revolt on the sugar plantations from the 17th Century onwards. By way of the “saving law clause”, Section 14(1) of the Jamaican Constitution retains the death penalty as a legitimate form of punishment for ‘capital murder’ [infra]. While acknowledging the inalienable right to life, following other international instruments, Section 14 (1) provides that: “No person shall intentionally be deprived of his life save in the execution of a criminal offence of which he has been charged.” This prevails as the ‘saving law clause’ ensures the continuity and constitutional safety of certain pre- independence colonial treatment, except torture, as per Section 26(8) of the Jamaican Constitution which proscribes that: “[N]othing contained in any law in force immediately before [August 6, 1962] shall be made to be inconsistent with any provisions of this chapter [3]…”
Moreover, though Section 17(1) of the Jamaican Constitution provides that “[N]o one...

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