Page:S v Makwanyane and Another.djvu/75

 democratic societies. Most democratic countries have abandoned the death penalty for murder. Even in countries which have the death penalty on the statute books there is a decline in its use. Although one cannot say that the death penalty is as yet contrary to international law, Chaskalson P has demonstrated that that is the direction in which international law is developing. I shall come later to the question of public opinion and the guidance to be obtained from it, but what is clear to my mind is that in general in civilised democratic societies the imposition of the death penalty has been found to be unacceptably cruel, inhuman and degrading, not only to those subjected to it but also to the society which inflicts it. Simon Jenkins, in the article which I have already quoted, says that the State is (or should be) "institutionalised civilisation." I would agree, and add that this is especially true of the State created by our new Constitution. The deliberate execution of a human, however depraved and criminal his conduct, must degrade the new society which is coming into being.

In the course of argument before us much was said about public opinion on the death penalty in South Africa. Both Chaskalson P and Didcott J have shown that public opinion, even if expressed in acts of Parliament, cannot be decisive. If we were simply to defer to public opinion we would be abdicating from our constitutional function. Yet, were public opinion on the question clear it could not be entirely ignored. The accepted mores of one's own society must have some relevance to the assessment whether a punishment is impermissibly cruel and inhuman. In Furman v Georgia 408 US 238 (1972) Brennan J at 277 said that one of the principles inherent in the constitutional prohibition of cruel and unusual punishments was that "a severe punishment must not be unacceptable to contemporary society." Much earlier, in Weems v United States 217 US 349, 378 (1910) the United States Supreme Court had held that that provision of the Constitution was "not fastened to the obsolete", but might "acquire meaning as public opinion becomes enlightened by a human justice." I would, with all respect, suggest that the principle propounded by Brennan J may give too much weight to prevailing opinion - an opinion which may swing with public moods and varying public concerns. But in any event, whether or not a punishment is acceptable to contemporary society is not to be judged by the results of informal public opinion polls, still less by letters to the press. In People v Anderson (supra) Wright CJ speaking for the Supreme Court of California said at 893–4:

"Public acceptance of capital punishment is a relevant but not controlling factor in assessing whether it is consonant with contemporary standards of decency. But public acceptance cannot be measured by the existence of death penalty statutes or by the fact that some juries impose death on criminal defendants. Nor are public opinion polls about a process which is far removed from the experience of those responding helpful in determining whether capital punishment would be acceptable to an informed public were it even-handedly applied to a substantial proportion of the persons potentially subject to execution."

In Gregg v Georgia 428 US 153 (1976) a judgment given four years after Furman v Georgia, supra, Stewart J at 179-180 found that developments during that period had shown that "a large proportion of American society continues to regard it (capital punishment) as an appropriate and necessary criminal sanction." The principal evidence on which Stewart J based this finding was that since the Furman case the legislatures of 35 of the United States had enacted new death penalty statutes. Further, the Congress of the United States had enacted a statute providing the death penalty for aircraft piracy. In