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 be tested against the precepts or principles of the Constitution. Arbitrariness must also inevitably, by its very nature, lead to the unequal treatment of persons. Arbitrary action, or decision making, is incapable of providing a rational explanation as to why similarly placed persons are treated in a substantially different way. Without such a rational justifying mechanism, unequal treatment must follow.

It is in the context of our (textually) unqualified section 9 right to life that I find certain observations in the US decisions supportive on the issue and consequences of arbitrariness. We are free to look at the incidence and consequences of arbitrariness without being constrained by a constitutional authorization (whether explicit or implicit) of the death penalty. One must of course constantly bear in mind that the relevant criteria in the Eighth Amendment of the US ConstituionConstitution [sic] also differ from those in section 11(2) of our Constitution. Whereas in the former they are "cruel and unusual" in the latter they are "cruel, inhuman or degrading".

In Furman v. Georgia the US Supreme Court had to consider a case where the determination of whether the penalty for murder and rape should be death or another punishment was left by the State of Georgia to the discretion of the judge or of the jury. In the course of his judgment Douglas J referred with approval to the following comments in a journal article:

""A penalty … should be considered 'unusually' imposed if it is administered arbitrarily or discriminatingly … [t]he extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness.""