34 115. It is important to note that, even if Mr. Caesar had been able to appeal to the Privy Council, such an appeal would have been most unlikely to succeed. In this regard the expert witness Desmond Allum commented that: [o]ne of the fundamental reasons why there has been no substantial challenge to the legality of a sentence of corporal punishment is the “savings clause”. This clause effectively ensured that it was not open to [domestic] courts to impugn the constitutionality of a sentence of corporal punishment as this [clause] predated the coming into force of the 1976 Constitution, and accordingly, was “saved” into [Trinidad and Tobago’s] law as good law. In the recent case of Matthew v The State of Trinidad and Tobago, the Judicial Committee of the Privy Council considered the “savings clause” in the context of the death penalty. The majority of the Board of the Privy Council held that the mandatory death penalty is a cruel and unusual punishment, and is therefore inconsistent with Sections 4(a) and 5(2)(b) of the Constitution. However, a majority of the Board held that the legislation imposing the mandatory death penalty was passed prior to the Constitution, and, because of the “savings clause” in Section 6, it could not be invalidated by reference to the fundamental rights for which Sections 4 and 5 of the Constitution provide. Accordingly, the majority upheld the validity of the mandatory death penalty.44 116. Similarly, in a 2002 judgment with regard to a case in the Bahamas, the Judicial Committee of the Privy Council observed that “[…] it is accepted that flogging is an inhuman and degrading punishment and, unless protected from constitutional challenge under some other provision of the Constitution, is rendered unconstitutional by [the provision of the Constitution prohibiting torture and inhuman or degrading treatment or punishment]”.45 Nevertheless, on the basis of the “savings clause” in the Constitution of the Bahamas, the Privy Council upheld the constitutionality of the legislation authorising corporal punishment. 117. It follows from the above that the State did not provide the alleged victim with an effective remedy to challenge the application of the aforementioned corporal punishment. Therefore, the Court considers that Trinidad and Tobago is responsible for the violation of Article 25, in relation to Articles 1(1) and 2, of the Convention, to the detriment of Mr. Caesar. X REPARATIONS (Application of Article 63(1) of the American Convention) Arguments of the Commission 118. a) b) 44 The Commission argued that: the State must pay the reasonable and justified material and moral damages related to the violations suffered by Mr. Caesar; Mr. Caesar is entitled to receive a sum of compensation sufficient to reflect the fundamental and serious nature of the violations committed Affidavit of expert witness Mr. Desmund Allum, sworn on October 26, 2004 (Exhibits to the Case File). 45 Prince Pinder v. The Queen, Privy Council Appeal No. 40/2001 (Bahamas), September 23, 2002, [2003] 1 AC 620, para. 5.