by Tenesha Myrie. The UWI St. Augustine Law Journal 3.2 (October 2025):168-180. https://journals.sta.uwi.edu/ojs/index.php/stalj/article/view/10138/8054
Abstract:
This article explores how the jurisprudence of the Caribbean Court of Justice on savings law clauses can be used by the Jamaican courts to advance the unfinished decolonisation project of women’s reproductive rights in Jamaica. The operative 1864 Offences Against the Person Act, enacted almost three decades after the abolition of British slavery in the Caribbean, criminalises abortion without providing any statutory exceptions. With the fear of prosecution, uncertainty looms in the medical profession, inhibiting the performance of lawful abortions and denying women access to comprehensive abortion care. Notwithstanding its implications for women’s constitutional rights, the colonial criminal offence is protected by a post-independence savings law clause that prevents the court from declaring it inconsistent with constitutional rights, thereby denying the applicability of advancing norms to women and girls. With the recognition that Jamaica’s modified savings law clause is a recent post-independence construct, unlike many of independence-type savings law clauses considered by the two apex courts – the Caribbean Court of Justice and the Judicial Committee of the Privy Council – this article considers how the more liberal approach of the Caribbean Court of Justice to constitutional interpretation can be used to resolve the hurdles facing the Jamaican courts and advance women’s reproductive rights. The article ends with a recognition that advancing reproductive rights in Jamaica requires the courts to adopt a decolonial lens. This decolonial lens necessitates placing the abortion law within its historical context; it demands an interrogation of the continuing impacts of the colonial legacy of reproductive control and a reimagining of a legal framework that aligns women’s access to abortion care with international public health guidance and human rights standards.
Keywords: Caribbean Court of Justice, decolonisation, Jamaica, Post-independence savings law clause, reproductive rights
RELATED RESOURCES: reprohealthlaw blog (https://reprohealthlaw.wordpress.com):
Accessing Abortion Care in the Commonwealth Caribbean, by Tenesha Myrie, in International Journal of Gynecology and Obstetrics 171.1 (October 2025): 471-478. PDF at Wiley Online.
Report of the Abortion Policy Review Advisory Group, Ministry of Health Jamaica, (Parliament Library 2007) 40-page Report
Recent Caribbean Court of Justice judgments involving savings law clauses:
—McEwan v The Attorney General of Guyana [2018] CCJ 30 (AJ); [Criminalization of cross-dressing is unconstitutional.] McEwan – decision online.
—Nervais v The Queen [2018] CCJ 19 (AJ); [Mandatory capital punishment is unconstitutional in Barbados.] Nervais – decision online.