7 and the punisher alike and is far from being indicative of moral authority and righteous serenity in the State imposes and implements flagellation. 24. When a State becomes a party to an international treaty which prohibits this kind of punishment, it undertakes, as a general obligation, the duty to amend its domestic legislation to honor the international commitment made and follow the rules contained in the treaty. This may give rise to some tension between domestic law and international order— to which the State adheres through an act of its own sovereign will— as well as between domestic constitutional law and the secondary legal system. 25. The foregoing has occurred under a provision known as the “savings clause”. In the judgment of the instant case, reference is made to an order of the Judicial Committee of the Privy Council of 2002 related to a case prosecuted in the Bahamas and precisely concerning flagellation (Prince Pinder v. The Queen, Privy Council Appeal No. 40/2001 (Bahamas), September 23, 2002 (2003) 1 AC 620, para. 5). The Judicial Committee states that this punishment is inhuman and degrading, and as such it is proscribed by the constitutional provisions that condemn torture and inhuman or degrading treatment or punishment. However, the unlawful sanction survives thanks to the “savings clause” of the domestic Constitution. 26. Amending domestic law so that it conforms to the international standard accepted by the State is an obvious consequence of adherence to an international agreement. The exception contained in the aforementioned savings clause is irrelevant to such purposes, as it purports to exempt certain old provisions laid down by State legislation from constitutional provisions, which in the instant case are provisions related to the protection of human rights and, therefore, to the main and most essential issue of the Rule of Law. In this regard, it should further be noted that the State ratified the American Convention and accepted the contentious jurisdiction of the Court in 1991, i.e. many years after the enactment of the Corporal Punishment Act (1953) and the Constitution (1976). 27. In the instant case, the abovementioned clause entails an anticipated repeal of the Constitution, which will not apply to situations governed by preexisting laws, even though the major concerns safeguarding the individual —the citizen, for whose benefit the State is designed— are enshrined in the new supreme law and the old law persists in ideas that date back even further than the date of its enactment. The sense of a new progressive law is precisely to create a new plausible scenario. This is hampered by the savings clause, which has the past prevail into the future. It makes a superior purpose —the safeguarding of human rights— subservient to an inferior decision —the retention of a form of punishment excluded by the Constitution itself. 28. It is surprising how such clause may suspend the application of nothing less than the provisions that constitute the cornerstone of the modern Rule of Law, the very essence of the Constitution and the reason itself whereby political society stands, that is the fundamental rights of the individual, recognized by a current supreme provision but ignored —effectively ignored— by a secondary provision petrified in the past, yet still operative —running counter to the Constitution itself— at present intending to remain so forever, since it is effective sine die. III. REASONABLE TIME

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents