Page:S v Makwanyane and Another.djvu/113

 is regarded as murder.

Executing a trussed human being long after the violence has ended, totally lacks proportionality in relation to the use of force, and does not fall within the principles of self-defence. From one point of view capital punishment, unless cruelly performed, is a contradiction in terms. The 'capital' part ends rather than expresses the 'punishment', in the sense that the condemned person is eliminated, not punished. A living being held for years in prison is punished; a corpse cannot be punished, only mutilated. Thus, execution ceases to be a punishment of a human being in terms of the Constitution, and becomes instead the obliteration of a sub-human from the purview of the Constitution.

At its core, constitutionalism is about the protection and development of rights, not their extinction. In the absence of the clearest contextual indications that the framers of the Constitution intended that the State's sovereignty should be so extended as to allow it deliberately to take of the life of its citizens, Section 9 should be read to mean exactly what it says: Every person shall have the right to life. If not, the killer unwittingly achieves a final and perverse moral victory by making the state a killer too, thus reducing social abhorrence at the conscious extinction of human beings.

The Source of Values

The second issue that caused me special concern was the source of the values that we are to apply in assessing whether or not capital punishment is a cruel, inhuman or degrading punishment as constitutionally understood. The matter was raised in an amicus brief and argued orally before us by Ms. Davids on behalf of the Black Advocates Forum.

Her main contention was that we should not pronounce on the subject of capital punishment until we had been apprised by sociological analysis of the relevant expectations, sensitivities and interests of society as a whole. In the past, she stated, the all-white minority had imposed Eurocentric values on the majority, and an all-white judiciary had taken cognisance merely of the interests of white society. Now, for the first time, she added, we had the opportunity to nurture an open and democratic society and to have due regard to an emerging national consensus on values to be upheld in relation to punishment.

Many of the points she made had a political rather than a legal character, and as such should have been directed to the Constitutional Assembly rather than to the Constitutional Court. Nevertheless, much of her argument has a bearing on the way this court sees its functions, and deserves the courtesy of a reply.

To begin with, I wish firmly to express my agreement with the need to take account of the traditions, beliefs and values of all sectors of South African society when developing our jurisprudence.

In broad terms, the function given to this court by the Constitution is to articulate the fundamental sense of justice and right shared by the whole nation as expressed in the text of the Constitution. The Constitution was the first public document of legal force in South African history to emerge from an inclusive process in which the overwhelming majority were represented. Reference in the Constitution to the role of public international law [sections 35(1) and 231] underlines our common adherence to internationally accepted principles. Whatever the status of earlier legislation and jurisprudence may be, the Constitution speaks for the whole of society and not just one section.

The preamble, postamble and the principles of freedom and equality espoused in sections