20 A. Section 2 of the Offences Against the Person Act 71. Section 2 of the Offences Against the Person Act 1994 (hereinafter “OAPA”) reads: “[a]ny person convicted of murder shall be sentenced to, and suffer, death.”67 The Court has already declared that such arbitrary imposition of the ultimate and irreversible penalty of death without consideration for the particular circumstances of the crime and the degree of culpability and participation of the offender, violates the rights recognized under Article 4(1) and 4(2) of the Convention, in conjunction with Article 1(1) of said instrument (supra, paras. 62 and 63). 72. In analyzing this issue from the perspective of Article 2 of the Convention, the Court considers that, but for the existence of section 2 of OAPA, the alleged victims would not have had their right to life infringed (supra, paras. 49-63). Section 2 of OAPA is thus a law that impedes the exercise of the right not to be arbitrarily deprived of life, and as such, is per se68 contrary to the Convention and the State has a duty to eliminate or modify it pursuant to Article 2 of such instrument. 73. Furthermore, in the present case, the law in question does not merely exist formally, which is sufficient for the Court to declare a violation of the Convention. It has been applied to the four alleged victims by way of judgment. The State effectively decided that the lives of these four individuals “shall” be taken. Furthermore, additional actions were taken to carry out the sentence, such as reading death warrants to all alleged victims, on two separate occasions each (infra paras. 103-116). In essence, Section 2 directly affected the four alleged victims on more than one occasion. 74. Thus, the Court considers that, even though none of the alleged victims have been executed, the State has failed to comply with Article 2 of the Convention by both maintaining, per se, and also applying to the alleged victims, a law that restricts their rights recognized under Article 4 of such instrument (supra, paras. 49-63). B. Section 26 of Barbados’ Constitution 75. Section 2669 of Barbados’ Constitution prevents courts from declaring the unconstitutionality of current laws that were enacted or made before the Constitution came into force on November 30, 1966. It is referred to as the “savings clause” because it effectively “saves” such laws from constitutional scrutiny. In effect, Section 26 immunizes pre-constitution laws that are still in effect from constitutional challenge even if the purpose of such challenge is to analyze whether the law violates fundamental rights and freedoms. Such is the case with section 2 of OAPA, which has existed since the enactment of the 67 Offenses Against the Person Act, supra note 38, (folio 2980). The Court has held on previous occasions that a law may per se violate the American Convention. Cf. Case of Suárez, supra note 37, para. 98; Case of La Cantuta, supra note 64, paras. 167 and 174, and Case of Almonacid Arellano et al., supra note 18, para. 119. See also Certain Attributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 44, 46, 47, 50 and 51 American Convention on Human Rights). Advisory Opinion OC-13/93 of July 16, 1993. Series A No. 13, para. 26, and International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 American Convention on Human Rights). Advisory Opinion OC14/94 of December 9, 1994. Series A No. 14, paras. 41-43. 69 Section 26 of Barbados’ Constitution reads, in relevant part: “Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of sections 12 to 23 to the extent that the law in question – (a) is a law (in this section referred to as “an existing law”) that was enacted or made before 30th November 1966 and has continued to be part of the law of Barbados at all times since that day […]”. Cf. The Constitution of Barbados, supra note 57, s. 26 (folio 2810). 68