SAVINGS-LAW clause, a lasting feature of the constitutions of TT and several other independent former British colonies, shackles societies seeking to enshrine protections and rights for all members of society, especially vulnerable groups, says University of the West Indies (UWI) lecturer Timothy Affonso.
Affonso, deputy dean at the faculty of law at UWI St Augustine, was speaking at a forum hosted by the university’s Department of Political Sciences to discuss revisiting constitutional reform in TT. Affonso was explicit in his disdain for the clause, saying it had long outlived its purpose. In simple terms, the savings-law clause protects colonial laws from being challenged on constitutional grounds. It has been used as the basis to shut down challenges concerning the death penalty, marriage, and other contentious issues.
“I would dare say that (the savings-law clause) is the first thing that should be the first thing (that is) removed from our constitution. It was never meant to last this long,” said Affonso.
The clause, he said, was “simply meant to be a transitionary clause, to allow for laws to exist from when we were a colony to when we were an independent nation. The fact that (the clause exists) in a constitution 50 years after we became independent is a problem and it needs to be removed.”
He said it is important to remember that TT is not a homogenous society.
“We are a diverse people and that diversity needs to be reflected, not only in the process, but also in the result, and form, and substance of the document.” He said Guyana, for example, has a more inclusive constitution since it is the only one in the region providing third-generation rights, such as a healthy environment.
“We don’t have that (and) that is something we need to consider.”
Affonso said while there are certain upgrades to the 2006 draft constitution, language contained in it can be problematic.
He pointed to clause 20, which deems that every person of marriageable age has the right to marry a person of the opposite sex, and to found a family, according to the law governing the exercise of this right.
“Now that’s a loaded statement,” he said, “because what we see here are certain values, and we have to discuss whether we think that framing of a relationship in marriage is, in fact, reflective of every group in society.
“The role of the constitution,” he said, “is not to concretise and institutionalise majoritarian views. “To the contrary, it is meant to protect those who need protection because they are not part of the majority; they are vulnerable groups.”
He said a “bill of rights” needs to be looked at carefully to include rights and protections for children, indigenous groups, culture, “and everything else that a modern construct of a modern-day, contemporary society should consider important.”Other experts and key stakeholders took part in the session, including Tobago House of Assembly Chief Secretary Farley Augustine, former lecturer dean at UWI Faculty of Law Kusha Haraksingh, lecturer and head of UWI’s
