Ipsofactoj.com: International Cases [2003] Part 9 Case 8 [PC]


THE PRIVY COUNCIL

(from the Court of Appeal, Commonwealth of the Bahamas)

Coram

Pinder

- vs -

The Queen

LORD NICHOLLS OF BIRKENHEAD

LORD HOFFMANN

LORD HOPE OF CRAIGHEAD

LORD HOBHOUSE OF WOODBOROUGH

LORD MILLETT

23 SEPTEMBER 2002


Judgment

Lord Millett

(delivering the majority judgment of the court)

  1. On 15 July 2002 their Lordships agreed humbly to advise Her Majesty that the case ought to be remitted to the Court of Appeal of the Commonwealth of The Bahamas to complete any lacuna in the sentence as regards the instrument to be used for the flogging of the appellant; and otherwise that the appeal ought to be dismissed. Their Lordships recommended that the respondent should assist the appellant with the costs of the appeal. They said that they would give their reasons later. This they now do.

  2. On 28 July 1997 the appellant pleaded guilty in the Supreme Court in Nassau to two counts of armed robbery and one of attempted robbery. He asked for six other offences of armed robbery and one of possessing a firearm while committing a specified offence to be taken into consideration. He was 24 years old and a man of previously good character. He was sentenced to two consecutive terms of 15 years' imprisonment on the two counts of armed robbery and to a concurrent sentence of 15 years' imprisonment on the count of attempted armed robbery. On the second of the two counts of armed robbery he was also sentenced to be flogged, the flogging to be administered in two instalments of three strokes each.  

  3. The appellant appealed against sentence to the Court of Appeal of The Bahamas. The Court of Appeal of its own motion granted the appellant legal aid and appointed counsel to argue the discrete ground that the sentence of flogging provided for by Part II of the Criminal Law (Measures) Act 1991 ("the 1991 Act") was unconstitutional. The appeal was heard by a full court of five. By a majority of 3 to 2 (Gonsalves-Sabola P, George and Zacca JJA; Carey and Hall JJA dissenting), the Court held that the sentence was not unconstitutional. While all five members of the Court held or were content to assume that a sentence of flogging constituted inhuman and degrading treatment within the meaning of article 17(1) of the Constitution, the majority held that the effect of article 17(2) was to render the sentence passed on the appellant immune from constitutional challenge under that article. The Court unanimously dismissed the appeal against sentence, holding that in the particular circumstances of the case it was not excessive.        

  4. The principal issue in the present appeal is whether a sentence of corporal punishment today is unconstitutional in The Bahamas. The Penal Code which was in force when the Constitution came into effect on 10 July 1973 authorised a sentence of flogging to be passed upon an adult male who was convicted of one of a number of serious offences including armed robbery. But it was widely though not universally acknowledged to be inhuman and degrading and out of keeping with the values of a modern and democratic society. It had previously been abolished in the United Kingdom in 1948 (except for offences committed while the offender was in prison where it was abolished in 1953), though it remained in force in parts of the British Isles until very recently. It was abolished in The Bahamas by the Penal Code (Amendment) Act 1984 ("the 1984 Act"). A subsequent increase in the level of serious crime, however, led to a change of mind. By the 1991 Act the legislature, responding, no doubt, to popular demand, sanctioned a substantial increase in the penalties for serious crimes. At the same time it took the opportunity to reintroduce corporal punishment in the same terms and for the same offences as under the Penal Code before the 1984 Act. The appellant contends that the reintroduction of flogging was a reversion to barbarism and beyond the powers of the legislature under the Constitution.  

  5. Three matters are common ground.

    • First, 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 article 17(1).

    • Secondly, had it not been abolished by the 1984 Act but continued to be authorised by the Penal Code as it stood when the Constitution came into effect in 1973, flogging would be protected from constitutional challenge by articles 17(2) and 30(1) of the Constitution.

    • Thirdly, the protection afforded by article 30(1) does not extend to the 1991 Act, which was not a law which was in force when the Constitution came into effect ("a pre-existing law"). 

    What is in dispute is whether the protection afforded by article 17(2) does so. The question is whether, having once abolished flogging because, although permitted by the Constitution, it was acknowledged to be an inhuman and degrading punishment, the legislature of The Bahamas had power to restore it without first amending the Constitution. 

    THE CONSTITUTION

  6. The Constitution of The Bahamas came into force on 10 July 1973 pursuant to The Bahamas Independence Order 1973 (SI 1973/1080). Article 1 of the Constitution declares the Commonwealth of The Bahamas to be a sovereign democratic state. Article 2 declares the Constitution to be the supreme law of the state and provides that, subject to the provisions of the Constitution, if any other law is inconsistent with the Constitution then the Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void (emphasis added).

  7. The word "law" is defined in the Constitution in the widest terms and unless otherwise provided includes any instrument having the force of law and any unwritten rule of law. In article 2 it includes both pre-existing and future laws. It is this article which entrenches the fundamental rights and freedoms of the individual by protecting them not only against unlawful executive action but also against lawful actions which may be authorised by future acts of the legislature. But article 2 expressly subjects this protection to the provisions of the Constitution, thus giving advance warning that the Constitution itself contains provisions limiting the extent to which it fetters the power of the legislature to introduce new laws which are inconsistent with it.

  8. Chapter III (articles 15-31) sets out the fundamental constitutional rights and freedoms which the Constitution guarantees to the individual. The scheme of the Chapter is ordered and logical. Articles 16-27 describe in detail the particular rights and freedoms in question. Many, though not all, of these articles contain provisos which define the extent to which laws which are inconsistent with the particular article in question are nevertheless to be protected from constitutional challenge. Each of these provisos employs the same formula:

    Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that ...

    Article 17(2) is just such a proviso.

  9. The scope of each proviso is tailored to the particular article of which it forms part. In other articles the proviso invokes some countervailing consideration, such as public order or the rights of others, which needs to be balanced against the constitutional right with which the article is concerned. It is left to the legislature to perform the balancing exercise. Article 17(2) is different. It affords protection to what would otherwise be unconstitutional by reference to the pre-existing law. No balancing exercise is required. Instead, a comparison must be made between the law under challenge and the pre-existing law. Drawing the comparison is a judicial exercise. 

  10. This fasciculus of articles is followed by article 30. This confers on all pre-existing written laws a general immunity from constitutional challenge under articles 16-27. Article 30(1) reads as follows:

    30.

    (1)

    Subject to paragraph (3) of this Article, 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 Articles 16 to 27 (inclusive) of this Constitution to the extent that the law in question -

    (a)

    is a law (in this Article referred to as ‘an existing law’) that was enacted or made before 10 July 1973 and has continued to be part of the law of The Bahamas at all times since that day;

    (b)

    repeals and re-enacts an existing law without alteration; or

    (c)

    alters an existing law and does not thereby render that law inconsistent with any provision of the said Articles 16 to 27 (inclusive) in a manner in which, or to an extent to which, it was not previously so inconsistent.

  11. It is evident that article 30(1) is in very different terms from any of the preceding articles. Its scope is narrow: it applies to written laws only, that is to say primary and delegated legislation, and only to such laws as were in existence immediately before 10 July 1973 and then only if they have remained continuously in force without interruption since that date. It is thus a transitional provision which ceases to preserve the validity of a pre-existing law once it is repealed. But while it does apply its effect is comprehensive. It grants pre-existing written laws immunity from challenge under any of the preceding articles (including article 17) and to the fullest extent possible.

    ARTICLE 17(2)

  12. Article 17 reads as follows:

    17.

    (1)

    No person shall be subjected to torture or to inhuman or degrading treatment or punishment.

    (2)

    Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question authorises the infliction of any description of punishment that was lawful in the Bahama Islands immediately before 10 July 1973.

  13. The majority of the Court of Appeal held that article 17(2) has the effect that flogging, being a "description of punishment that was lawful in the Bahama Islands immediately before 10 July 1973", cannot be held to be inconsistent with or in contravention of article 17(1). That is indeed the plain meaning of the words used.

  14. The appellant submits that article 17(2) is a derogation from the constitutional guarantee contained in article 17(1), and that it must consequently be narrowly construed. Their Lordships agree; the many authorities in which the principle has been stated are too well known to require citation. But it must not be pushed so far that narrow construction becomes misconstruction. Due regard must always be paid to the language and purpose of the constitutional provision. As Lord Bingham observed in Reyes v The Queen [2002] 2 WLR 1034, 1045 para 26:

    As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the Constitution. But it does not treat the language of the constitution as if it were found in a will or a deed or a charterparty. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the Constitution ....

    If the Court indulges itself by straining the language of the constitution to accord with its own subjective moral values then, as Holmes J said almost a century ago in his first opinion for the Supreme Court of the United States (Otis v Parker (1903) 606, 609):

    a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions ....

  15. A constitution is an exercise in balancing the rights of the individual against the democratic rights of the majority. On the one hand, the fundamental rights and freedoms of the individual must be entrenched against future legislative action if they are to be properly protected; on the other hand, the powers of the legislature must not be unduly circumscribed if the democratic process is to be allowed its proper scope. The balance is drawn by the Constitution. The judicial task is to interpret the Constitution in order to determine where the balance is drawn; not to substitute the judges' views where it should be drawn. 

  16. The minority in the Court of Appeal held that article 17(2), like article 30(1), protected only pre-existing law from constitutional challenge, and could not save the 1991 Act. Their Lordships consider that this is an impossible construction of the plain words of article 17(2).

  17. In the first place article 17(2) uses the expression "any law", not "any existing law". The contrast with article 30(1) is marked. This is not an accident. The purpose and scope of the two articles are quite different. Article 30(1) gives general and complete protection from constitutional challenge under articles 16-27 to the entire body of written law as it stood when the Constitution came into force. It preserves pre-existing laws. Article 17(2) is concerned only with the constitutional guarantee against torture and inhuman and degrading treatment, and gives only limited protection against constitutional challenge in respect of descriptions of punishments that were lawful in The Bahamas in 1973. It preserves pre-existing punishments not pre-existing laws. And it preserves them from constitutional challenge at any time, not merely for a transitional period. Between 1984 and 1991 corporal punishment in The Bahamas was unlawful because it was not authorised by law; it was not unconstitutional. 

  18. In the second place, article 17(1) clearly looks to the future, and article 17(2), which is a derogation from article 17(1), does the same. Article 17(2) employs the same formula as the provisos to other articles in Chapter III, where the expression "any law" embraces future legislation. Articles 16-27 are not, or not primarily, concerned with pre-existing laws. They entrench fundamental rights and freedoms by fettering the powers of the legislature to introduce laws inconsistent with them. Article 2 of the Constitution makes any such laws void, but subject to the provisions of the Constitution. The various provisos, of which article 17(2) is one, are such provisions. They have the effect of circumscribing the extent to which articles 16-27 fetter the power of the legislature to pass laws in future which are inconsistent with the rights and freedoms in question. This is how the Court of Appeal of Botswana interpreted the identical provisions of the Botswana Constitution in The State v Petrus [1985] LRC (Const) 699: see per Aguda JA at p 722:

    Subsection (2) permits the legislature to enact a law which 'authorises the infliction of any description of punishment that was lawful by [the appropriate date]'.

    Their Lordships respectfully agree.

  19. In the third place, if "any law" in article 17(2) means "any existing law", then it is impossible to give effect to the concluding words "that was lawful in the Bahama Islands immediately before 10 July 1973". Indeed, it is impossible to explain their inclusion, for every description of punishment which was authorised by a pre-existing law must by definition have been lawful immediately before the 10 July 1973. These words require the punishment which is authorised by the law under challenge to be compared with that which was formerly authorised by pre-existing law. Their inclusion makes it plain that two different laws are involved.

  20. In the fourth place, as the majority of the Court of Appeal observed, if article 17(2) is confined to pre-existing laws, then it is otiose. It achieves nothing which is not achieved by article 30(1). But it is worse than that, for in relation to pre-existing laws article 17(2) manifestly achieves less than article 30(1). It is expressly limited to treatment inflicted by way of punishment. It does not apply to other forms of treatment, such as strip-searching by customs officers, which are not inflicted by way of punishment but may be equally inhuman and degrading. Article 30(1), however, does so.

  21. The construction placed upon article 17(2) by the minority in the Court of Appeal, therefore, does not merely render it superfluous; in relation to pre-existing laws it makes article 17 inconsistent with article 30(1). This is because article 17 is expressly included among the articles to which article 30(1) applies. Inhuman and degrading treatment to which an individual may be subjected under a pre-existing law otherwise than by way of punishment is expressly excluded from the ambit of article 17(2) and is thus prohibited by article 17(1); but it is permitted by article 30(1).

  22. If, however, the words "any law" in article 17(2) are given their natural meaning, there is no inconsistency between articles 17 and article 30(1). While a pre-existing law remains on the statute book, article 30(1) protects it from challenge of any kind under article 17(1). There is no need to consider whether the treatment in question is inflicted by way of punishment or, indeed, to enter upon the question (in relation to flogging not beyond argument in 1973) whether it constitutes inhuman and degrading treatment at all. It is altogether immune from constitutional challenge under article 17. Once the pre-existing law has been repealed, however, the power of the legislature to authorise any form of treatment or punishment is circumscribed by article 17(1) and permitted only to the limited extent authorised by article 17(2). If the treatment in question is inhuman and degrading, then it is permitted if and only if 

    1. it is to be inflicted by way of punishment and

    2. it is a punishment of a kind which was formerly authorised by pre-existing law.

    This is a rational and intelligible scheme. In their Lordships’ opinion it is the scheme which was adopted by the Constitution of The Bahamas; whether it would meet with universal approval is beside the point.

  23. Carey JA described article 17(2) as a transitional provision which, like article 30, was enacted "so as to allow the transition from colonialism to sovereignty to proceed smoothly." Once a form of punishment which contravened article 17(1) had been abolished, article 17(2) would have served its transitional purpose. But this is only another way of saying that article 17(2) is limited to the preservation of pre-existing laws and has no application to future laws, a construction which their Lordships cannot accept. The question raised by this appeal cannot be answered by saying that article 17(2) is a transitional provision, since that is the very question to be decided. It is a transitional provision only if the construction adopted by the minority in the Court of Appeal is adopted.

  24. Their Lordships understand the reasons which motivated the minority of the Court of Appeal to reach the conclusion they did. They are not unsympathetic to the view that the 1991 Act was regressive in terms of human rights. Once the legislature has abolished a form of punishment on the ground that it is inhuman and degrading it may be thought difficult to justify its subsequent restoration. But this is a political argument, not a constitutional one. It did not prevail in 1991. It is not for judges to express a view whether it should have done, or to hold that the framers of the Constitution would have considered the course taken by the legislature in first abolishing and then restoring a permitted but inhuman form of punishment to be "unthinkable". Their function, which like all judicial functions is to be discharged fairly and impartially, is limited to interpreting the Constitution. As Lord Hoffmann said in Matadeen v Pointu [1999] 1 AC 98, 108:

    It is however a mistake to suppose that these considerations release judges from the task of interpretating the statutory language and enable them to give free rein to whatever they consider should have been the moral and political views of the framers of the constitution ... As Kentridge A.J. said in giving the judgment of the South African Constitutional Court in State v Zuma 1995 (4) B.C.L.R. 401, 412: ‘If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination’

  25. It would not have been irrational for the framers of the Constitution to take the view that the public interest requires that the nature and extent of punishment for serious crimes should be reconsidered by the legislature from time to time in the light of changing circumstances; and that it should be free to abolish and if thought fit restore those punishments which were lawful in 1973 without being required to seek a constitutional amendment in order to do so. Emotive invocations of "torture" are a distracting irrelevance in this connection. Torture as an instrument of state policy had been abolished throughout the Empire long before 1973 (see for example Captain Elliot's Proclamation to the Chinese Inhabitants of Hong Kong in February 1841) and is in any case outside the scope of Article 17(2).

  26. The 1984 and 1991 Acts were both the product of the democratic process. The abolition of flogging was within the constitutional powers of the legislature. Whether its restoration was likewise within its power without a constitutional amendment is purely a question of construing the Constitution. It is not for judges to say that it cannot have been intended; there is no presumption either way. For the reasons given, their Lordships are of opinion that it was.

  27. Their Lordships wish to make it clear that it does not necessarily follow from their opinion or the reasons which sustain it that the legislature is free to introduce flogging or other inhuman and degrading punishment in circumstances in which or for offences for which it was not lawful under pre-existing law. The question does not arise in the present case, and can safely be left for determination when, if ever, it does.

    SEPARATION OF POWERS

  28. A feature of corporal punishment which has often been remarked upon is that the severity of the punishment is beyond judicial control. It depends upon the strength of the person administering it and the vigour with which he does so. It is even more dependent, though this is less often noticed, upon the pain threshold of the victim.

  29. This is one of the features of corporal punishment, though not the most important, which has led judges to condemn it as inhuman and degrading, and induced the Commissioners on the Criminal Law in their Seventh Report to recommend its abolition in England in 1843, a recommendation which Parliament finally implemented just over a century later. In the present case it supports the argument, which is not disputed, that a sentence of flogging contravenes the constitutional prohibition in article 17(1); but this does not help the appellant if article 17(2) renders the sentence immune from challenge on this ground.

  30. Accordingly the appellant has invoked the different constitutional principle of the separation of powers which is implicit in constitutions on the Westminster model: see Hinds v The Queen [1977] AC 195. As Lord Diplock observed in that case at p 226:

    What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body .... a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.

    Neither article 17(2) nor article 30(1) gives immunity to a constitutional challenge on this ground. If the challenge is well-founded, it could have been made successfully at any time after 1973.

  31. In Hinds’s case the discretion in question was concerned with the length of a sentence of imprisonment with hard labour. What Lord Diplock condemned as unconstitutional, therefore, was the "transfer" to the executive of a discretion which could and should be exercised by the judiciary.

  32. So far as possible, all factors bearing on the severity of corporal punishment and capable of being prescribed in advance have been laid down by the legislature, either by primary or delegated legislation, or have been entrusted to the judiciary. Primary legislation has specified the instrument to be employed (in the case of a male adult the cat or rod), the maximum number of strokes to be administered, and in general terms (back or buttocks, depending on the instrument) the placement of the strokes; the pattern of the instrument is to be approved by the Governor General. The judge is required to specify the number of strokes to be administered to the individual defendant and whether he is to receive the whole sentence at one time or by instalments and if by instalments the number of strokes at each instalment.

  33. It is not possible for the judge to direct the force with which the strokes are to be administered or the detailed placement of the strokes. These factors undoubtedly affect the severity of the punishment, but they cannot be prescribed in advance. They must necessarily be left to the officer administering the flogging.

  34. This does not, however, mean that the sentence gives a discretion to the executive. The function of the court is to pass sentence; the duty of the prison governor is to see that the sentence is carried out. He must do so in good faith by delegating the administration of the punishment to a competent and responsible officer, who must administer the punishment properly, that is to say fairly and impartially, with vigour but without rancour. The administration of the punishment may not be entrusted to someone of exceptional strength or sadistic temperament, or to one who bears a personal grudge against the defendant. The punishment is inevitably variable in its effect on individual defendants and may be objectionable on this ground; but it is ultimately subject to judicial control and involves no transfer to the executive of a discretion which ought to be exercised by the judiciary.   

    THE INSTRUMENT

  35. The 1991 Act provides that an offender may be sentenced to be flogged or whipped, and that a flogging shall be administered with a cat or rod of a pattern approved by the Governor General. It was suggested that in approving the pattern of the instrument to be used the Governor General was exercising a judicial function bearing on the severity of the punishment, and that such a function should not be entrusted to the executive. But the Governor General does not approve the instrument to be used in a particular case. He legislates in general terms under powers delegated to him by the legislature for all offenders ordered to undergo corporal punishment. This is in accordance with the proper distribution of functions under a constitution formed on the Westminster model. 

  36. The choice between the cat and the rod must be made in each individual case, and is accordingly a judicial function. The 1991 Act does not require the judge when passing sentence to specify which is to be employed, but it would be improper to leave the choice to the discretion of the prison governor. Their Lordships have not been told whether the Governor General has approved a pattern for both cat and rod. If he has approved a pattern for only one of them, then that is the instrument which must be used. If, however, he has approved a pattern for each, then the judge had a discretion as to which of them should be used, and he failed to exercise it. The result is not that he passed an unlawful sentence, but that he passed an incomplete one. If so, then the case ought to be remitted to the Court of Appeal to complete the sentence by specifying the instrument to be used.

    THE SENTENCE

  37. The Court of Appeal unanimously dismissed the appeal against the severity of the sentence. In doing so, the President gave detailed reasons for upholding it. He described the appellant as having embarked upon what was virtually a campaign of armed robberies which had made a significant contribution to the volume of crimes of violence which had become prevalent in recent years. He was a confessed serial armed robber who had been convicted of three grave offences committed on separate occasions.

  38. Their Lordships consider that no constitutional issue is involved in this part of the appeal. The question is whether the sentence was excessive. They are satisfied that the courts of The Bahamas, which are far better placed than they are to judge what is necessary to punish and deter crimes of violence in The Bahamas, were entitled to take the view that the sentence, severe though it might be, was appropriate.

    THE ADVISORY COMMITTEE

  39. When sentencing the appellant the Judge directed that the flogging should not be administered before the conclusion of the appeal process. This part of the sentence has not yet been carried out. It is now nearly five years since the sentence was passed. At the conclusion of the hearing the prosecution drew attention to article 90 of the Constitution, which gives the Governor-General power, in Her Majesty's name and on her behalf, to remit the whole or any part of a sentence. The power is exercised in accordance with the advice of the designated minister, who may consult with the Advisory Committee specified in article 91. Sir Godfray Le Quesne informed their Lordships that he was authorised to say that if the sentence of flogging were upheld it was the minister's intention to consult with the Advisory Committee on whether the sentence should be carried out.

    CONCLUSION

  40. It was for these reasons that their Lordships humbly advised Her Majesty to remit the case to the Court of Appeal of the Bahamas to complete any lacuna in the sentence and subject thereto to dismiss the appeal.

    Lord Nicholls of Birkenhead & Lord Hope of Craighead

    (dissenting)

  41. Flogging is a barbaric form of punishment. It is outlawed by article 17(1) of the Constitution of the Bahamas: "no person shall be subject to torture or to inhuman or degrading treatment or punishment"

  42. When the Constitution was adopted in 1973 flogging still survived from colonial days as a form of punishment prescribed for some criminal offences, including armed robbery: section 383(2) of the Penal Code. After Independence flogging was soon abolished. In 1984 its use was forbidden by the Penal Code (Amendment) Act 1984. Introducing the Bill the then Prime Minister said that corporal punishment is "retrogressive and an act of torture". Section 118 of the Penal Code, authorising corporal punishment, was repealed. It was replaced by a new section, now section 117 of the Penal Code, which was comprehensive in its terms:

    Notwithstanding anything to the contrary in this, or any other law, no form of corporal punishment shall be imposed as a penalty under any law in respect of the commission of a criminal act or disciplinary offence.

    The 1984 Act also repealed the words in section 383(2) of the Penal Code providing for corporal punishment for armed robbery.

  43. Seven years later the Parliament of The Bahamas turned the hands of the clock backwards. In 1991 Parliament enacted the Criminal Law (Measures) Act, re-introducing judicial flogging. Part II of the Act, comprising sections 3 to 6, provided that an offender convicted of specified offences might be ordered to undergo corporal punishment in addition to any other punishment for which he was liable. Corporal punishment should be inflicted privately, either by flogging or whipping. A sentence of flogging should be inflicted only on a male adult. A sentence of flogging should not exceed twenty four strokes, and a sentence of whipping twelve strokes. The offences in respect of which corporal punishment might be ordered included armed robbery. This list of offences included some offences for which corporal punishment was not prescribed as a permissible punishment in 1973. Otherwise Part II of the 1991 Act substantially reproduced the relevant pre-1973 legislation as set out in the old section 118 of the Penal Code. Curiously, the prohibition of corporal punishment set out in section 117 of the Penal Code, introduced in 1984, was not expressly repealed.

  44. On 28 July 1997 the appellant, Prince Pinder, pleaded guilty to two counts of armed robbery and one of attempted robbery. On the two counts of armed robbery he was sentenced to two consecutive terms of 15 years’ imprisonment and, additionally on the second of these counts, to six strokes of flogging, to be administered in two instalments. On the count of attempted robbery he was sentenced to a concurrent sentence of 15 years’ imprisonment. The judge directed the flogging should not be administered before the conclusion of the appeal process. The flogging has not yet been carried out. The lawfulness of this sentence of flogging is the principal question raised by this appeal. 

  45. The starting point is to note that before their Lordships’ Board the prosecution, rightly in our opinion, accepted that flogging is torture or inhuman punishment. It is unnecessary therefore to elaborate on this point, or to refer to the many decisions in courts elsewhere in the Caribbean and throughout the world where a similar view has been taken of judicial corporal punishment. Nor is it necessary to do more than mention that The Bahamas is a member of the Organization of American States and has been so since 1982. Although not a party to the American Convention on Human Rights (1969), by becoming a member of the Organization of American States The Bahamas proclaimed its adherence to the rights expressed in the American Declaration of the Rights and Duties of Man (1948). One of these rights is the right not to receive cruel, infamous or unusual punishment (article xxvi).

  46. Proceeding from this starting point the appellant’s case is simplicity itself. Part II of the 1991 Act, providing for the use of corporal punishment, is inconsistent with article 17(1) of the Constitution and, hence, unlawful. Accordingly the sentence of flogging imposed on the appellant was itself unconstitutional and unlawful and should be set aside.

  47. The prosecution’s stance is that, even though flogging is torture or inhuman punishment, and even though this form of punishment is expressly proscribed by article 17(1) of the Constitution and article xxvi of the American Declaration, the re-introduction of flogging by Part II of the 1991 Act is constitutionally valid. It is constitutionally valid because it is saved by article 17(2). 

  48. This argument raises a question of interpretation of article 17(2). Article 17(2), sometimes known as the "torture proviso", provides:

    Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question authorities the infliction of any description of punishment that was lawful in the Bahama Islands immediately before 10th July 1973.

  49. On a literal reading of article 17(2), the re-introduction of corporal punishment falls squarely within this exception. That cannot be gainsaid. Corporal punishment is a "description of punishment" lawful in The Bahamas immediately before 10 July 1973. It was provided for in the Penal Code as it then stood. The Penal Code (Amendment) Act 1991 is a law which authorises the infliction of that description of punishment. Thus, nothing contained in the 1991 Act, or done under its authority, is to be held to be inconsistent with or to contravene article 17 in so far as it authorises the infliction of corporal punishment. 

  50. The soundness of this interpretation of article 17(2) divided the Court of Appeal sitting as a five judge court. The majority, comprising Gonsalves-Sabola P, George JA and Zacca JA, accepted this interpretation. Carey and Hall JJA did not. Like the majority of the Court of Appeal, the majority of the Board also accept this interpretation.

  51. In our view the difficulty with this interpretation is that it leads to a result which cannot have been intended. This interpretation gives article 17(2) an excessively wide scope.

  52. This calls for elaboration. When seeking the meaning properly to be attributed to this sub-article regard must be had to its genesis and purpose. The literal interpretation cannot prevail if this would exceed the limited purpose for which this exception was included in the Constitution.

  53. Article 17(1) sets forth a guarantee of a fundamental character. It provides for protection from torture and inhuman and degrading punishment. Human rights are never more fundamental than this. One would not expect such a basic right to be qualified in any way in the constitution of a civilised country. But in 1973, when the Constitution of The Bahamas was adopted, there was an immediate problem, concerning forms of punishment inherited from the old colonial legislation. Some of these forms of punishment might, arguably, fall foul of this guarantee. Judicial corporal punishment, for instance, had been abolished in the United Kingdom in 1948, and for prison offences in the 1950s. But these legislative changes in the United Kingdom did not apply to the colonies, where corporal punishment, originating in the days of slavery, remained available. When The Bahamas and other Caribbean countries became independent most of them retained their colonial statutes, at any rate for the time being. So article 17(2) met this problem, by preserving the lawfulness of the existing position. As Carey JA observed, "article 17(2) like article 30 was enacted so as to allow the transition from colonialism to sovereignty to proceed smoothly".

  54. Understood in this context, article 17(2) is a saving provision of an essentially transitional nature. That was its purpose. Future laws must conform with article 17(1), but the status quo was not to be regarded as inconsistent with the Constitution. 

  55. What, then, was the scope of this transitional provision? It by no means follows from the inclusion of this saving provision in the Constitution that the framers of the Constitution are to be taken to have intended that a form of inhuman punishment, once abolished, could thereafter lawfully be re-introduced without further ado years or decades in the future. That would be a surprising intention to attribute to those responsible for framing and adopting this Constitution. That would preserve for ever the lawfulness of forms of inhuman punishment existing in 1973, even after they had long been abandoned and discarded. Other forms of inhuman punishment could not lawfully be introduced after 1973. But those existing in 1973 were to be lawful for ever and could be re-introduced at any time. On this footing article 17(2) was a permanent licence to re-introduce forms of inhuman punishment. That would be a surprising result of a transitional provision. Constitutional guarantees of human rights are forward looking, not regressive.

  56. The more natural expectation would be that once a form of inhuman punishment had been abolished, the saving provision would be spent. The practical problem arising on Independence would then be resolved, by the legislature itself choosing to render unlawful the form of punishment inherited from the pre-independence laws. The saving provision, of a transitional nature, would have served its transitional purpose. Once a form of punishment had become unlawful post-Independence, as occurred with flogging in 1984, the constitutional guarantee in article 17(1) would apply in full measure. The transitional proviso could not then be prayed in aid to render lawful what had become unlawful. From then onwards future legislation must comply with the constitutional guarantee. Either that, or the constitutional guarantee should first be abrogated in accordance with the special procedures set out in article 54 of the Constitution. These special procedures were not followed in 1991.

  57. In support of the wider, literal interpretation of article 17(2) the prosecution placed reliance on the content and wording of other articles in Chapter III of the Constitution. Foremost among the articles relied upon for this purpose was article 30. This article is a saving provision of general application to articles 16 to 27. Articles 16 to 27 declare the fundamental rights and freedoms of every person in The Bahamas. Article 30 saves the provisions of any law, referred to as an "existing law", which was enacted or made before 10 July 1973 "and has continued to be part of the law of The Bahamas at all times since that day". This saving provision, unexceptionally, embraces also a law which "repeals and re-enacts an existing law without alteration". Article 30(1) provides:

    .... 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 Articles 16 to 27 (inclusive) of this Constitution to the extent that the law in question -

    (a)

    is a law (in this Article referred to as ‘an existing law’) that was enacted or made before 10th July 1973 and has continued to be part of the law of The Bahamas at all times since that day;

    (b)

    repeals and re-enacts an existing law without alteration; or

    (c)

    alters an existing law and does not thereby render that law inconsistent with any provision of the said Articles 16 to 27 (inclusive) in a manner in which, or to an extent to which, it was not previously so inconsistent.

  58. The argument based on article 30 is that this article applies to article 17. If article 17(2) has no wider scope in relation to article 17(1) than article 30, article 17(2) is unnecessary because it adds nothing to the general saving provision of article 30.

  59. This type of legal logic routinely makes its appearance in cases involving the interpretation of statutes and documents. It appeals to the tidy legal mind. It has its place as an aid to interpretation, although redundancy arguments must always be handled with care. Redundancy arguments are based on the assumption that those who draft or approve documents carry out a meticulous comparison of the wording of each provision in the documents, often complex and obscure, and that they can be relied upon to weed out provisions which on careful analysis can be seen to be otiose. Often, perhaps usually, this assumption is at variance with what actually happens.

  60. The use or, more accurately, the misuse of this type of argument in the interpretation of constitutions led Lord Wilberforce famously to decry the "austerity of tabulated legalism": see Minister of Home Affairs v Fisher [1980] AC 319, 328. Never was there a more telling instance of this austerity than in the present case, where the constitutionality of inhuman punishment is said to depend, at least in part, on the inference to be drawn from the niceties of an argument based on redundancy of language. This approach, if adopted, would tragically impoverish the spirit of the Constitution of The Bahamas.

  61. There must be a better way. It should never be forgotten that courts are the guardians of constitutional rights. A vitally important function of courts is to interpret constitutional provisions conferring rights with the fullness needed to ensure that citizens have the benefit these constitutional guarantees are intended to afford. Provisos derogating from the scope of guaranteed rights are to be read restrictively. In the ordinary course they are to be given "strict and narrow, rather than broad, constructions": see State v Petrus [1985] LRC (Const) 699, 720, per Aguda JA in the Court of Appeal of Botswana, applied by their Lordships’ Board in R v Hughes [2002] 2 WLR 1058, 1070, para 35. This must especially be so with the "torture proviso" which, to the extent of matters within its scope, permits the torture of citizens of The Bahamas and the infliction of inhuman or degrading punishment on them. Any exception which permits such conduct by the state calls for the most searching and critical scrutiny. An unambiguous literal interpretation should give way to a narrower purposive interpretation when it is sufficiently clear this would accord better with the intended purpose of the exception.

  62. In the present case there is a further consideration. On the prosecution argument, article 17(2) is more extensive in its scope than article 30. This would mean that the saving provision in respect of existing law is more extensive regarding torture than it is with regard to all other human rights guaranteed by the Constitution. In the case of article 16 and articles 18 to 27 the saving provision applies only to law continuously in operation from Independence, whereas in the case of article 17, according to the prosecution argument, the saving provision would apply even if the existing law had ceased to be the law of The Bahamas after Independence and, years later, it was re-introduced. 

  63. A constitutional provision to this effect would be remarkable. So much so that it cannot be assumed to have been intended. Section 30 applies generally to articles 16 to 27. These articles cover a wide range of human activity. The rights guaranteed include rights such as privacy of home, freedom of conscience, freedom of expression, freedom of assembly and movement, and protection from deprivation of property. All these rights are important, but many of them are not of the same basic extremity as the right not to be tortured. No reason has been suggested to their Lordships why the constitutional protection against torture should be more limited than the protection afforded to these other fundamental rights and freedoms. Article 17(2) and article 30 are both concerned with the continuing lawfulness of what was lawful immediately before independence. No reason has been suggested why the inroads thus made into the constitutional guarantees should be more extensive in the case of torture than is the case with all other fundamental rights and freedoms. 

  64. Then it is said that article 30 shows the framers of the Constitution knew how to draft a saving provision confined to existing law so long as it remained continuously in operation. The contrast in language between article 17(2) and article 30(1) is stark and must be significant. This argument is not without force, but it does not carry conviction when set against what must have been the intention of this transitional provision. 

  65. Finally, reliance is placed on the references to "law" or "the law" in articles 20(11), 21(2), 22(5), 23(2), 25(2) and 27(3). In each of these sub-articles the scope of a guaranteed right is cut down by reference to particular interests which may justify what otherwise would be a violation of the guarantee. Article 24 is a straightforward example. Article 24(1) provides for the protection of freedom of assembly and association. Article 24(2) provides:

    Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question makes provision -

    (a)

    which is reasonably required –

    (i)

    in the interests of defence, public safety, public order, public morality or public health; or

    (ii)

    for the purpose of protecting the rights and freedoms of other persons; or

    (b)

    which imposes restrictions upon persons holding office under the Crown or upon members of a disciplined force,

    and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justified in a democratic society.

  66. In this sub-article "any law" clearly includes laws made at any time. They need not have been in existence continuously since 1973. Hence, the argument runs, the reference to ‘any law’ in the similar provision in article 17(2) is not confined to laws continuously existing since before Independence. 

  67. This argument is of no assistance. The comparison is not sound. Article 17(2) is of a transitional nature. It authorises the continuation of what was a lawful state of affairs in 1973. Article 24(2) is not of this preservative nature. It serves a different purpose, unrelated to the state of the law in 1973. A law restricting freedom of expression to an extent reasonably required in the interests of defence, and which is reasonably justifiable in a democratic society, will fall within exception in article 24(2) regardless of the state of the law in this respect in 1973. So in this article the purpose sought to be achieved by the sub-article marches hand-in-hand with the language. In article 24(2) "any law" means just that. 

  68. The position is similar with all the other sub-articles on which reliance is placed. Unlike article 17(2), these other sub-articles do not make lawfulness dependent on the state of the law pre-Independence. Their function is not to preserve the continuing lawfulness of an existing state of affairs. In this regard, so far as the provisions within articles 16 to 27 are concerned, article 17(2) is unique. 

  69. We return to article 17(2). We consider the literal interpretation cannot be the proper interpretation of article 17(2) when due regard is had to its transitional purpose. The literal interpretation gives this proviso a wider scope than can have been intended by those who framed and adopted the Constitution. To that extent it would deny to citizens the full protection intended to be afforded by article 17(1). A more limited interpretation must therefore be ascribed to article 17(2), an interpretation confining its effect to its intended area of operation. This requires that the phrase "any law" in article 17(2) is to be understood as confined to any law existing immediately before 10 July 1973 and any successor law directly or indirectly replacing an existing law without material alteration and without any intermission in operation. In short, existing legislation and any re-enactment of existing legislation, using re-enactment in the ordinary sense of simultaneous repeal and re-enactment. 

  70. So interpreted, article 17(2) does not apply to the Criminal Law (Measures) Act 1991. In so far as this Act authorised a court to order corporal punishment by flogging or whipping, it was inconsistent with article 17(1) of the Constitution of The Bahamas and was unlawful. We would so hold. It follows that in our view the sentence of flogging imposed on the appellant was unlawful. In our view this appeal should be allowed to the extent that the sentence of flogging should be set aside.


Cases

Reyes v The Queen [2002] 2 WLR 1034; Otis v Parker (1903) 606; The State v Petrus [1985] LRC (Const) 699; Matadeen v Pointu [1999] 1 AC 98; Hinds v The Queen [1977] AC 195; Minister of Home Affairs v Fisher [1980] AC 319

Legislations

Part II of the Criminal Law (Measures) Act 1991: Part II

Constitution of the Bahama: Art.17, Art.30

Authors and other references

Captain Elliot's Proclamation to the Chinese Inhabitants of Hong Kong in February 1841

Seventh Report of Commissioners on the Criminal Law


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