Rédaction Africa Links 24 with lexpress
Published on 2024-02-24 02:50:00
The HCC has explained its decision, yesterday. According to the High Constitutional Court, chemical castration does not align with the legislator’s objective to permanently neutralize sexual predators and reduce the risk of recurrence. Therefore, it opts for surgical castration, which would comply with human rights principles.
Proceed with surgical castration. This summarizes the decision of the High Constitutional Court (HCC) on the constitutionality review of the law amending the penal code. A law that imposes severe penalties on child rape offenders and which the Ambohidahy Court validated, with some reservations, yesterday. In addition to forced labor for life, the addition of castration among the punitive and disgraceful penalties is the main innovation of this law amending and supplementing certain provisions of the penal code. In the version adopted by Parliament, there are two types of castration, “surgical castration and chemical castration.” In its decision published yesterday, the HCC opts for only surgical castration to be maintained. The Court thus instructs “the substitution of chemical castration penalty with surgical castration.”
In considering point 12 of its decision, the Ambohidahy institution argues that “the objective pursued by the legislator is to permanently neutralize sexual predators and reduce the risk of recurrence. Chemical castration, being temporary and reversible, contradicts this objective.” The HCC explains that in its role of constitutional review, it carries out a “proportionality test” concerning the adequacy of the legislative norm to the objective pursued.
In its version adopted by Parliament and submitted to the constitutional review, the new provisions punishing child rape stipulate that surgical castration “will always be imposed” on child rape offenders under 10 years old. For rapes of children over 10 years old and under 13 years old, it will be either chemical castration or surgical castration. And for acts of rape on children over 13 years old and under 18 years old, the penalty will be chemical castration.
Regulatory route
The HCC’s decision, which is not subject to appeal, is clear. Surgical castration, which is irreversible, will be imposed for any act of child rape, regardless of additional penalties such as forced labor for life. It will therefore be necessary for chemical castration to be removed from the text before its promulgation by the President of the Republic.
In reading the decision and hearing the explanations of the three High Constitutional Councilors during yesterday’s evening news on the national television, TVM, the choice of surgical castration is also to comply with human rights principles. Faced with the objective of preserving the best interests of the child, of the new law, “we could not ignore the respect for human rights,” explains Rojoniaina Andriamaholy Ranaivoson, one of the High Counselors invited to the TVM platform.
To justify its decision, the HCC recalls that article 8 paragraph 2 of the Constitution stipulates that “no one can be subjected to torture or to cruel, inhuman or degrading punishment or treatment.” This constitutional provision notably echoes the terms of article 5 of the Universal Declaration of Human Rights. The Court also sets out the definition of torture laid down in the law against torture and other cruel, inhuman or degrading treatment.
This law defines torture as “any act by which acute pain or suffering, physical or mental, is intentionally inflicted on a person in order to punish them for an act they have committed or are suspected of having committed.” According to the Ambohidahy institution, medically, surgical castration can be performed in such a way that the execution of the penalty does not fall under the category of torture.
In this regard, before the law comes into force, the HCC requests the government to clarify, through regulation, the modalities of the surgical operation “taking into account the obligation to respect human rights.” According to the explanations of High Counselor Andriamaholy Ranaivoson on TVM, surgical castration also allows overcoming gender discrimination in the punishment of child rape, as it can be performed on both men and women.
“Surgical castration is an operation intended to suppress the production of sex hormones secreted by the ovaries or testicles, thus depriving the individual of the ability to reproduce as well as the incentive to seek sexual pleasure,” explains the HCC in its decision. Furthermore, still on the grounds of respecting the principles of the right to defense and the presumption of innocence, the Court declares “public presentation” of individuals apprehended for rape as unconstitutional.
Similarly, the immediate applicability of the law to proceedings pending before the Courts and tribunals is also declared unconstitutional. The HCC recalls the constitutional provision that “no one can be punished except by virtue of a law promulgated and published prior to the commission of the punishable act.” It adds that “the non-retroactivity of the criminal law is a principle with constitutional value.”
Read the original article(French) on lexpress.mg
