more than we could do so by the public hangings or mutilations of a bygone time.
[204]In conclusion I would endorse what Didcott J has cogently stated; the striking down of the death penalty entails no sympathy whatsoever for the murderer, nor any condonation of his crime. What our decision does entail is a recognition that even the worst and most vicious criminals are not excluded from the protections of the Constitution. In 1910 Mr Winston Churchill speaking in the House of Commons said this:
"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal, against the State—a constant heart-searching by all charged with the duty of punishment—a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols, which, in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it."
[205]Kriegler J: I agree with the conclusions reached by Chaskalson P, endorse the bulk of his reasoning and concur in the order he has formulated. There are just two points that I wish to add though: the first by way of additional emphasis and the second to indicate a somewhat different line of reasoning.
[206]The basic issue, as Chaskalson P points out in the opening and concluding paragraphs of the main judgment, is whether the Constitution[1] has outlawed capital punishment in South Africa.[2] The issue is not whether I favour the retention or the abolition of the death penalty, nor whether this Court, Parliament or even overwhelming public opinion supports the one or the other view. The question is what the Constitution says about it.
[207]In answering that question the methods to be used are essentially legal, not moral or philosophical. To be true the judicial process cannot operate in an ethical vacuum. After all, concepts like "good faith", "unconscionable" or "reasonable" import value judgments into the daily grind of courts of law. And it would be foolish to deny that the judicial process, especially in the field of constitutional adjudication, calls for value judgments in which extra-legal considerations may loom large. Nevertheless, the starting point, the framework and the outcome of the exercise must be legal. The foundation of our state and all its organs, the rules which govern their interaction and the entrenchment of the rights of its people are to be found in an Act of Parliament, albeit a unique one.[3] That Act
- ↑ Constitution of The Republic of South Africa, Act No. 200 of 1993, as amended.
- ↑ As sanctioned by section 277(1) of the Criminal Procedure Act, 1977, as amended and the corresponding provisions of the former Transkei, Bophuthatswana and Venda.
- ↑ Section 4 of the Constitution describes it as "the supreme law of the Republic … [which] shall bind all legislative, executive and judicial organs of state at all levels of government." Section 7 makes Chapter 3, containing fundamental rights, binding on "all legislative and executive organs of state at all levels of government" and provides that it "shall apply to all law in force and all administrative decisions taken and acts performed during the period of operation of this Constitution."
