tolerable in relation to other forms of punishment, burst the parameters of constitutionality when they impact on the deliberate taking of life. The life of any human being is inevitably subject to the ultimate vagaries of the due processes of nature; our Constitution does not permit it to be qualified by the unavoidable caprices of the due processes of law.[1]
[352]In the case of other constitutional rights, proportionate balances can be struck between the exercise of the right and permissible derogations from it. In matters such as torture, where no derogations are allowed, thresholds of permissible and impermissible conduct can be established. When it comes to execution, however, there is no scope for proportionality, while the only relevant threshold is, tragically, that to eternity.
[353]Even if one applies an objective approach in relation to the enjoyment of the right to life, namely, that the State is under a duty to create conditions to enable all persons to enjoy the right, in my view this cannot mean that the State's function can be extended to encompass complete, intentional and avoidable obliteration of any person's subjective right. Subject to further argument on the matter, my initial view is that the objective approach can be used to qualify the subjective enjoyment of the right, but not to eliminate it completely, and certainly not to eliminate the subject. It can provide the basis for limiting enjoyment of other subjective rights—to dignity, personal freedom, movement—for a period, or in relation to a concrete situation, or in respect of a physical space, if the requirements of section 33 are met. Yet, life by its very nature cannot be restricted, qualified, abridged, limited or derogated from in the same way. You are either alive or dead.
[354]In my view, section 33 permits limitations on rights, not their extinction. Our Constitution in this sense is different from those that expressly authorise deprivation of life if due process of law is followed, or those that prohibit the arbitrary taking of life. The unqualified statement that 'every person has the right to life', in effect outlaws capital punishment. Instead of establishing a constitutional framework within which the State may deprive citizens of their lives, as it could have done, our Constitution commits the State to affirming and protecting life. Because section 33 is not concerned with creating circumstances in which the right of any person may be disregarded altogether, nor with establishing exceptions which qualify the nature of the right itself, or exclude its operation, it cannot be invoked as an authorization for capital punishment.
[355]A full conceptualization of the right to life will have to await examination of a multitude of complex issues, each of which has its own contextual setting and particularities. In contrast to capital punishment, there are circumstances relating to the right to life where proportionality could well play an important role in balancing out competing interests. Whether or not section 33 would be applicable in each case, or whether proportionality will enter into the definition of the ambit of the right itself, or whether it relates simply to competition between two or more people to exercise the right when it is under immediate threat, need not be decided here. Thus, the German Constitutional Court has relied heavily on the principle of proportionality in relation to the question of when person-hood and legally protected life begin and, in particular of how to balance foetal rights as against the rights of the woman concerned.[2] Force used by the State in cases of self-defence or dealing with hostage-takers or mutineers, must be proportionate to the danger apprehended; the issue arises because two or more persons compete for the right to life; for the one to live, the other must die. The imminence of danger is fundamental: to kill an assailant or hostage-taker or prisoner of war after he or she has been disarmed,
