Pinder v.

R [2002] UKPC (The Bahamas) 46 (23 September 2002)

Privy Council Appeal No. 40 of 2001

Prince Pinder Appellant

v.
The Queen Respondent

FROM

THE COURT OF APPEAL OF THE

COMMONWEALTH OF THE BAHAMAS
---------------

REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL OF THE
15th July 2002, Delivered the 23rd September 2002
------------------

Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hoffmann
Lord Hope of Craighead
Lord Hobhouse of Woodborough
Lord Millett
[Majority judgment delivered by Lord Millett]
------------------

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'
[2002] UKPC 46
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 (i) it is to
be inflicted by way of punishment and (ii) 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 interpreting 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.
____________________

Dissenting judgment delivered by Lord Nicholls of Birkenhead and

Lord Hope of Craighead

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 authorises
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.