Page:S v Makwanyane and Another.djvu/71

  The very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities … and to establish them as legal principles to be applied by the courts. One's right to life … and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The other point was not so much a contention as a complaint, one registered against the sympathy with murderers, and the lack of any felt for the victims and their families, which some proponents of capital punishment have seen as the motivation behind every attack on it. It is unnecessary, I hope, for this court to answer that canard. In rebuttal of the criticism, lest it be levelled at us all the same, one can do no better than to repeat the following excerpts from the judgment which Wright CJ wrote in The People v Anderson (at 896 and 899):

We are fully aware that many condemned prisoners have committed crimes of the utmost cruelty and depravity and that such persons are not entitled to the slightest sympathy from society in the administration of justice or otherwise. … Our conclusion that the death penalty may no longer be exacted in California … is not grounded in sympathy for those who would commit crimes of violence, but in concern for the society that diminishes itself whenever it takes the life of one of its members. Lord Chancellor Gardiner reminded the House of Lords, debating abolition of capital punishment in England: When we abolished the punishment for treason that you should be hanged, and then cut down while still alive, and then disembowelled while still alive, and then quartered, we did not abolish that punishment because we sympathised with traitors, but because we took the view that it was a punishment no longer consistent with our self-respect.

South Africa has experienced too much savagery. The wanton killing must stop before it makes a mockery of the civilised, humane and compassionate society to which the nation aspires and has constitutionally pledged itself. And the state must set the example by demonstrating the priceless value it places on the lives of all its subjects, even the worst.  KENTRIDGE AJ I agree with the order proposed by Chaskalson P and with the reasons for it contained in his judgment  and in  the judgment of Didcott J  In view of the importance of the issue and in deference to the forceful submissions of Mr von Lieres SC, the Attorney-General of the Witwatersrand, I add some remarks of my own.

Capital punishment is an issue on which many members of the public hold strong and conflicting views. To many of them it may seem strange that so difficult and important a public issue should be decided by the eleven appointed judges of this court. It must be understood that we undertake this task not because we claim a superior wisdom for ourselves but, as Chaskalson P has explained in his judgment, because the framers of the Constitution have imposed on us the inescapable duty of deciding whether the death penalty for murder is consistent with Chapter Three of the Constitution. It should not be overlooked that a decision holding the death penalty to be constitutional would have been just as far-reaching an exercise of judicial power as the decision to strike it down.

Some public commentators on the question before this court have supposed that any doubt