21 Offences Against the Person Act of 1868.70 That is, section 2 of OAPA is a law that existed before the current Constitution came into force, and continues to be the law of Barbados. Thus, by virtue of the “savings clause”, the constitutionality of Section 2 of OAPA may not be challenged domestically. 76. This restriction on judicial scrutiny was addressed in 2004 by the then highest appellate court of Barbados, the Judicial Committee of the Privy Council, which held in Boyce and Joseph v. The Queen that domestic courts could not hold that section 2 of OAPA is inconsistent with section 15(1) of the Barbados Constitution, which condemns inhuman or degrading treatment, because the law was an “existing law” within the meaning of section 26 of the Constitution.71 Nevertheless, the JCPC also observed that,72 where it not for the savings clause, it would have declared that the mandatory death penalty is contrary to the constitutional right not to be subjected to cruel, inhuman and degrading punishment.73 77. The Court observes that the aforementioned conclusion of the JCPC was arrived at by a purely constitutional analysis that did not take into account the State’s obligations under the American Convention as interpreted by this Court’s jurisprudence. In accordance with the Vienna Convention on the Law of Treaties, Barbados is bound to comply with its obligations under the American Convention in good faith,74 and it may not invoke the provisions of its internal law as justification for its failure to comply with its treaty obligations.75 In the present case, the State is precisely invoking provisions of its internal law for such purposes. 78. The analysis of the JCPC should not have been limited to the issue of whether the OAPA was unconstitutional. Rather, the question should have also been whether it was “conventional”. That is, Barbadian courts, including the JCPC, and now the Caribbean Court of Justice, must also address whether the law in Barbados restricts or violates the rights recognized in the Convention. In this regard, the Court has previously held that the Judiciary must exercise a sort of ‘conventionality control’ between the domestic legal provisions […] and the American Convention on Human Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also the 70 Cf. Judgment delivered by the Judicial Committee of the Privy Council in Lennox Ricardo Boyce and Jeffrey Joseph v. The Queen (July 7, 2004), Privy Council Appeal No. 99 of 2002, paras. 8-9 (case file of appendices to the application, volume II, appendix B.2, folio 867). 71 Cf. Judgment delivered by the Judicial Committee of the Privy Council in Lennox Ricardo Boyce and Jeffrey Joseph v. The Queen, supra note 70, (folios 872-875). 72 See the majority judgment delivered by Lord Hoffmann: “[T]heir Lordships feel bound to approach this appeal in the footing that the mandatory death penalty is inconsistent with the international obligations of Barbados[.] If their Lordships were called upon to construe section 15(1) of the Constitution [the prohibition on inhuman and degrading treatment], they would be of opinion that it was inconsistent with a mandatory death penalty for murder. The reasoning of the Board in Reyes v. The Queen [2002] 2 AC 235, which was in turn heavily influenced by developments in international human rights law and the jurisprudence of a number of other countries, including states in the Caribbean, is applicable and compelling[.] [However] if one reads section 26 [of the Constitution] together with section 1 [of the Constitution], it discloses a clear constitutional policy[.] No existing written law is to be held to be inconsistent with sections 12 to 23 [the fundamental rights provisions]. Existing laws are to be immunised from constitutional challenge on that ground.” Cf. Judgment delivered by the Judicial Committee of the Privy Council in Lennox Ricardo Boyce and Jeffrey Joseph v. The Queen, supra note 70, paras. 25, 27 and 31, (folios 872-875). 73 Although this Court has not declared that the mandatory sentence of death for the crime of murder in Barbados is contrary to the fundamental right not to be subjected to cruel, inhuman or degrading treatment or punishment per se, the Tribunal agrees with the rationale of the Judicial Committee of the Privy Council in that a fundamental right is at stake, namely, the right not to be arbitrarily deprived of your life. 74 Article 26 of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, 8 ILM 679 (entered into force 27 January 1980). 75 Article 27 of the Vienna Convention on the Law of Treaties, supra note 74.