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.
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