6
provided for in domestic law, as it has been in other provisions before, fortunately
repealed long ago by the vast majority of States. The formal “legality” of an action
does not necessary modify its intrinsic “injustice” or “illegitimacy”, which is a
frequently relevant issue when considering the compatibility of provisions or actions
by domestic authorities with the principles and rules of the international law on
human rights, which is the natural function of the courts within this purview. In this
regard, I found the statements made by Mr. Nigel S. Rodley enlightening: “it is not
possible to accept the notion that the administration of such punishments as
stoning to death, flogging and amputation (…) can be deemed lawful simply
because the punishment has been authorized in a procedurally legitimate manner
(…).”
22.
Therefore, the sufferings in the instant case are not naturally derived
from the imposition of a lawful sanction —that is to say, a sanction that does not, in
itself, undermine human dignity, which is the justification referred to in the last
sentence of Article 1(1) of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment of 1984. I have asserted and
hereby emphasize that flogging is in itself contrary to human dignity.
23.
We are not faced with an inevitable and inflexible, absolutely necessary
sanction, the omission or replacement of which may jeopardize collective security
or public peace, in such a manner that the preservation the legal order and the
preponderance of justice may not be secured through less cruel means. This type of
sanction is intended solely and exclusively to cause suffering, unable —and not
even willing— to attain a plausible moral objective. It humiliates the person being
punished and degrades the person administering the punishment. In raising his
hand against a fellow man, brandishing an element devised to harm the body and
overpower the spirit of the offender, even if ordered by the State, the person
administering the punishment retrogrades several centuries in the history of our
species. Flagellation is, ultimately, pure violence, which as such falls on the
punished 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
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