Whilst one has a deep respect for Professor George Devenish’s constitutional knowledge and experience, the array of constitutional and moral arguments he presents concerning the death penalty (Daily News, June 1), nonetheless, raises the question of the relationship between constitutionality and democracy within the context of moral order.
In the wake of the callous murder of 9-year old Sadia Sukhraj, a petition to reinstate the death penalty has rapidly passed the 50,000 mark. Public outrage at the impunity of criminals and the increasing lawlessness which is engulfing the country is promoting the plea to amend the constitution so as to provide for capital punishment.
With respect, Professor Devenish should perhaps regard that petition with a little more gravitas instead of dismissing it as “merely an expression of public opinion.” After all, a democracy is supposed to be premised on the will of the people. In a democracy, supreme power is invested in the people.
In that South Africa is a constitutional democracy, what appears to be overlooked is that while the working of the democracy is premised upon the constitution, it is a two-way relationship. Constitutions are not cast in stone. They are subject to amendment at the behest of the people.
In marshalling his argument as to why the constitution is unlikely to be amended so as to provide for capital punishment, Professor Devenish cites convergent legal thinking. Foremost in those opinions is the view that capital punishment violates the right to equality, dignity and life – sections 9, 10 and 11 of the Bill of Rights Given the cold-blooded and often barbaric way in which murders are committed, it surely is time to recognise that the perpetrators of heinous crimes are not deserving of such rights. Moreover, to afford such rights to them mocks the value of moral order. In other words, renders it farcical.
Devenish puts forward four specific arguments against capital punishment. First, in Arthur Chaskalson’s view, execution is inconsistent with the prohibition of cruel, inhuman and degrading punishment as set out in section 12 (1) (e) of the constitution. Second, Chaskalson sees the imposition of the death penalty as being subject to “capriciousness” in its application. Third, the Concourt has found that retribution constitutes vengeance. Fourth, Albie Sachs has posited that capital punishment is an “illusory solution and as such detracts from really effective measures.”
Sachs’ “effective measures” are not mentioned by Devenish. But what is clear is that imprisonment is no deterrent to the tsunami of violent crime. Professor Robert Blecker of the New York Law School debunks the argument that retribution is equated with revenge. He stated in 2014 that whereas revenge knows no bounds, retribution governed by what is proportionate and appropriate is not vengeful.
Chaskalson’s assertion that capital punishment is “degrading” and “cruel” is devoid of context and makes a mockery of any claim to moral order for the simple reason that it ignores what murder victims suffer at the hands of murderers. There is no logic in Chaskalson’s view that society owes a murderer the right to be treated with dignity and respect for his life. Society is obligated only to provide a fair trial.
Whilst it is true that 12 persons in the US were wrongly executed, to use that as a reason not to reinstate the death penalty is weak and evasive of the fact that the majority of studies in the US recognise the deterrent effect of capital punishment. See Dr David Mulhausen, Heritage Foundation, 2014.
The purpose of the petition seeking the reinstatement of the death penalty is to achieve justice. Arguing for a better criminal justice system and more competent policing would certainly help in bringing criminals to court. But as long as a murderer knows that his right to life, dignity and equality will be upheld regardless of the brutality of his crime and that some legal quirk may mitigate his prison sentence, violent crime in this country will continue undeterred.
The trouble with the constitution’s provisions of rights is that terms and conditions are not applicable. Rights that are not respected need to be forfeited. In committing murder, the perpetrator shows total disregard for his victim’s right to life and dignity. It is, therefore, absurd in the extreme that the murderer should enjoy the very rights he denied his victim.
Seeking the reinstatement of the death penalty is not new. What is new is the extent to which support for the measure has grown. The people are appealing. The time for their representatives to wake up and heed what the people want is overdue. That is democracy. Being held hostage by the convergent, liberal views of a legal coterie is not just undemocratic. It is autocratic. Excessive liberal tolerance paves the way for anarchy. With murder and violent crime now a daily occurrence, to what extent is South Africa teetering on the brink of anarchy?
Sent into The Daily News and published, June 4, 2018.