Chen Siyuan, Sui Yi Siong
- Justice — Criminal penalties — Habeas corpus — Death penalty — Fair hearing and fair trial
1. The death penalty, otherwise known as capital punishment, refers to the punishment of death upon the judicial conviction of an offence. Offences punishable by the death penalty are commonly known as capital offences. Examples of capital offences include murder, drug-trafficking, and terrorism. Depending on the legislation in question, the death penalty may be mandatory for certain offences, regardless of mitigating circumstances or the gravity of the crime; conversely, the court may have some discretion to sentence the convicted person to an imprisonment term instead (and where applicable combined with corporal punishment as well). Over the years, an increasing number of jurisdictions have abolished the death penalty or placed limits on its implementation (limits on criminal penalties). Some of them have done this through the constitutional process, without necessarily elaborating on the normative justifications, such as the possibility of wrongful convictions. On the other hand, states that have retained the death penalty point to factors such as the need for deterrence against the commission of serious crimes.
1. The Death Penalty in Constitutions
2. The death penalty is specifically contemplated in various domestic constitutions, be it that of retentionist or abolitionist jurisdictions. For example, the 5th Amendment to the Constitution of the United States of America: 21 June 1788 (US) provides that:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.
3. Capital punishment is again mentioned in the US Constitution in the form of the 14th Amendment, which states:
All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
4. A more modern reference to the death penalty can be found in Art. 9 (1) of the Constitution of the Republic of Singapore: 9 August 1965 (Sing), which provides that ‘No person shall be deprived of his life or personal liberty save in accordance with law.’ A historical analysis undertaken by the Singapore Court of Appeal in Yong Vui Kong v Public Prosecutor (2015) (Sing) has confirmed that Art. 9 (1) has a common historical foundation with similarly worded constitutional provisions found in various jurisdictions around the world. Specifically, Art. 9 (1) was based on Art. 5 (1) of the Constitution of the Federation of Malaya: 27 August 1957 (Malaya); Art. 5 (1) was, in turn, based on Art. 21 of the Constitution of India: 26 January 1950 (India); Art. 21 was, in turn, based on the 5th and 14th Amendments to the US Constitution; and finally, the 5th and 14th Amendments trace their roots to Clause 39 of the Magna Carta (1215), which stated:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
5. For an example of an abolitionist jurisdiction that provides for (the prohibition of) the death penalty, Art. 102 of the Basic Law for the Federal Republic of Germany: 8 May 1949 (Ger) states in no uncertain terms that ‘capital punishment is abolished’. This prohibition was introduced shortly after the atrocities of World War II to curb state power, and Germany soon became a model jurisdiction in this respect for other jurisdictions in the region. To cite another example, Art. 66-1 of France’s Constitution of the Fifth Republic: 4 October 1958 (Fr) provides that ‘no one shall be sentenced to death’. Art. 66-1 was not found in the first version of the constitution, however. It was only introduced in 1981.
6. Indeed, the death penalty may not necessarily be prohibited at the constitutional level but only at the statutory level (statutory law), examples of which we will see below. Nonetheless there are states that have progressed from mere statutory amendment to constitutional entrenchment. For instance, Switzerland has in its Federal Constitution of the Swiss Confederation: 18 April 1999 (Switz) a ban on the death penalty by virtue of Art. 10 (1). While Switzerland had abolished the death penalty in federal criminal cases in 1942, it was only in 1999 that the ban was extended to treason in military cases as well when the constitution came into being.
2. The Constitutionality of the Death Penalty
7. Where the death penalty is provided for in the constitution, courts have generally upheld the death penalty as being constitutional. For instance, since the decision of the US Supreme Court in Gregg v Georgia (1976) (US), the death penalty in the US has survived numerous constitutional challenges. As the court in Gregg observed, ‘it is apparent from the text of the US Constitution itself that the existence of capital punishment was accepted by the Framers.’ This view was most recently confirmed in Glossip v Goss (2015) (US), where Justice Thomas rebutted the minority by claiming that the abolitionist wing of the court was in a ‘ceaseless quest to end the death penalty through undemocratic means.’ In Singapore, the Court of Appeal in Yong Vui Kong v Public Prosecutor (2010) (Sing) explained that since Art. 9 (1) of the Singapore Constitution states that a person may be deprived of his life ‘in accordance with law’, the death penalty is expressly sanctioned; only legislation that violates fundamental rules of natural justice (which the death penalty does not) will not constitute ‘law’ for the purposes of Art. 9 (1).
8. As mentioned, some states have abolished the death penalty statutorily, especially when a constitution or a bill of rights is absent (or the bill of rights may not explicitly ban the death penalty). One such example is Australia, which passed the Commonwealth Death Penalty Abolition Act 1973 (Cth) to abolish the death penalty under federal law. Later, it passed the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth), which blocks any state or territory from attempting to reintroduce the death penalty. New Zealand also progressively phased out the death penalty, culminating with the Abolition of the Death Penalty Act 1989 (NZ), a year before it introduced the Bill of Rights Act 1990 (NZ). Separately, regional treaty obligations may compel states to abolish the death penalty, as was the case for the Council of Europe states pursuant to their obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)(ECHR) (213 UNTS 221).
9. It should be noted that even in states where the death penalty is considered constitutional, there may be constitutional safeguards that regulate the imposition of the death penalty. For instance, the 8th Amendment to the US Constitution has been interpreted by the US Supreme Court to restrict the application of the death penalty to a very narrow band of cases. In particular, the death penalty can only be imposed for intentional first degree murder, while children (rights of children), pregnant women, and mentally disabled persons (rights of disabled persons) are exempt from the death penalty. Further, cruel and unusual forms of punishment that cause unnecessary suffering, like ancient methods of drawing and quartering, are not allowed. Nevertheless, as observed by the court in Glossip, some risk of pain is inherent in any method of execution. Execution via hanging, lethal injection, and firing squad, have all been accepted as legitimate means of punishment that do not constitute cruel and unusual punishment (in this regard see for instance Baze v Rees (2008) (US)).
10. Over the last few decades, many states have also abolished the mandatory death penalty, which would have required a judge to pass a death sentence the moment an accused was found guilty of a capital offence that mandated the death penalty. The lack of judicial discretion in imposing a death sentence has been perceived as being cruel and arbitrary, to the extent that most countries have now implemented a discretionary death penalty. This implementation is said to be more in line with the traditional conception of the separation of powers doctrine, as the legislature should not be over-dictating to the courts the appropriate punishments for crimes (though sentencing ranges and ballparks remain acceptable). However, considerable power still resides with the prosecution, which continues to have a rather wide discretion in most retentionist jurisdictions in deciding whether to charge an accused person with a capital offence.
11. Apart from legislative change, the abolition of the mandatory death penalty has also occurred as a result of judicial intervention. For instance, the Supreme Court of India held in Mithu v State of Punjab (1983) (India) that the mandatory death penalty was unconstitutional as it was an arbitrary form of punishment and violated the equality clause. This came about after the same court had held in Bachan Singh v State of Punjab (1980) (India) that the death penalty should only be applied for the rarest of the rare, or the most heinous type of penal offences. But letting the courts rather than the legislature decide the sentence is not without its own difficulties. In highly sensationalized cases, the court may be under public pressure to punish the perpetrators, or as pointed out by the Indian Supreme Court in Sangeet v State of Haryana (2013) (India), judges can be highly biased and influenced by their own prejudices.
B. List of Analysed Constitutions
12. For this entry, the following constitutions will be analysed in greater detail and compared for the following reasons.
13. First, we will look at the Constitution of the United States of America. The US is unique as it is one of the few remaining Western liberal democracies to retain the death penalty (to be clear, at the state level, the death penalty is not available in 19 of the 50 states). In addition, being directly influenced by the Magna Carta—which many modern constitutions are based upon—US case law on the constitutionality of the death penalty is usually of persuasive authority in many jurisdictions.
14. Secondly, we will look at the Constitution of the Republic of Singapore. While also modelled on the Magna Carta, the Singapore Constitution is different in the sense that most of the due process provisions in the Magna Carta have been stripped away. The constitutional protections afforded to its citizens, particularly in criminal proceedings, are thus correspondingly less robust, in line with the state’s longstanding tough stance on crime and pursuit of crime control. The most telling example of this was the mandatory death penalty for certain drug trafficking offences, which Singapore courts upheld as constitutional all the way until Parliament amended it to include a discretionary sentencing provision in 2012 for drug couriers and the mentally impaired.
15. Thirdly, we will look at the Constitution of South Africa: 4 February 1997 (S Afr). The South African Constitution is one of the more recent constitutions, having been enacted only in 1997. With its genesis arising from the spectre of apartheid, the South African Constitution tends to be very rights-centric. In respect of the death penalty, the right to life is unqualified, as compared to the US and Singapore Constitutions. Further, in 1995, the Constitutional Court of South Africa in S v Makwanyane and Another Case (S Afr) had struck down the death penalty for being cruel and unusual punishment, unlike most states that have either legislatively abolished the death penalty or have done so in accordance with treaty obligations.
16. Finally, we will look at the Basic Law for the Federal Republic of Germany. The jurisprudence of the Federal Constitutional Court of Germany, in particular, raises interesting questions about whether it is constitutional to extradite an accused person to a state which retains the death penalty. Whereas the earlier cases found that the Basic Law was no bar to such extradition on the basis that German legal standards should not be imposed on other states, subsequent cases changed tack and declared that extradition should not be permitted if it would expose the accused person to punishment inconsistent with the Basic Law.
17. But to put all matters into proper perspective, it is important to first understand the historical development of the death penalty and its gradual abolition. The death penalty was originally used and accepted in much of the world that had developed legal systems (Hood and Hoyle (2008)). In many countries during the 17th and 18th centuries, death was the punishment for a wide range of offences with no consideration for proportionality. The gravity of the crime involved had little to do with the sentence imposed. Methods of execution were gruesome, being deliberately calculated as a public spectacle to create terror and to convey to audiences the consequences of living an immoral life or unduly creating disorder in society.
18. The idea of abolishing the death penalty can be traced to CesareBeccaria’sOn Crimes and Punishments published in 1764. There, it was advocated that proportionality in punishment should be introduced to the criminal justice system. Beccaria further argued that if the state resorted to killing to enforce its will, it would legitimize the very behaviour which the law sought to stop, which is the use of deadly force to settle disputes. His writings were later taken up by Tuscany and Austria in the 1780s, and subsequently in Imperial Russia as well, where the death penalty was suspended. For the next couple of centuries, states were gradually forced to confront the question of whether the death penalty was morally justified and an effective deterrent against capital offences.
19. In modern times, the impetus for the movement for the abolition of the death penalty has been the development of public international law in general and international human rights law in particular. This development was no doubt sparked by the mass atrocities committed during the Second World War and the accompanying recognition of the international legal personality of individuals. The Universal Declaration of Human Rights (1948) (UNGA Res 217 A (III) (‘UDHR’)), while not having the force of a treaty, was also responsible for the growth of international human rights law as it was the foundational document to subsequent national, regional, and international human rights instruments.
20. In the context of the death penalty, it may be said that the UDHR contained the seeds for its abolition, albeit implicitly in the recognition of a right to life in Art. 3, that ‘everyone has the right to life, liberty, and security of person’ (Schabas 2002). This ‘right to life’ subsequently found force in regional and international human rights treaties, such as the ECHR, the International Covenant on Civil and Political Rights (1966)(‘ICCPR’) (999 UNTS 171), and the American Convention on Human Rights (1969)(‘ACHR’) (1144 UNTS 123). The right to life in those instruments was nonetheless qualified; people could still be subject to the death penalty if it was carried out according to law. For example, Art. 2 (1) of the ECHR provides that ‘No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law’. Similarly, both the ICCPR and the ACHR allow the death penalty for ‘the most serious crimes’ and in accordance with the law establishing such a punishment.
21. It was only in the late 1980s that momentum for the abolition of the death penalty in the international law arena started to pick up. In 1983, the Council of Europe passed Protocol No 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty ((opened for signature 28 April 1983, entered into force 1 March 1985) CETS No 114) which provided that ‘the death penalty shall be abolished. No one shall be condemned to such penalty or executed.’ However, Protocol 6 contained one exception, in that the death penalty could be administered ‘in respect of acts committed in time of war or of imminent threat of war.’ This was modified about 20 years later in 2002 via Protocol No 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty in All Circumstances ((done 3 May 2002, entered into force 1 July 2003) CETS No 187) which abolished the death penalty completely.
22. In a similar vein, the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty (UNGA Res 44/128 (15 December 1989)) states that ‘no one within the jurisdiction of a State Party to the present Optional Protocol shall be executed. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.’ The Protocol to the American Convention on Human Rights to Abolish the Death Penalty ((done 8 June 1990, entered into force 28 August 1991) (1990) 29 ILM 1447) contains a similar article: ‘the States Parties shall not apply the death penalty in their territory to any persons subject to their jurisdiction.’ However, the Second Optional Protocol only has ratifications from 80-plus states, while less than half the member states of the Organization of American States have ratified the Protocol.
23. Indeed, over 60% of the world’s population reside in states where the death penalty is still in place. As it were, the African Charter on Human and Peoples’ Rights (1981) (1520 UNTS 217 (Banjul Charter)) does not contain any prohibition on the death penalty, either in its main text or its protocols. The Arab Charter on Human Rights (2004) (12 IHRR 893) states in Art. 6 that death sentences are permitted for ‘the most serious crimes’, provided that they are passed in accordance with law, pursuant to a final judgment of a competent court, and accused persons have a right to seek a pardon or commutation of the sentence (pardon power). There is therefore at present or in the near future no international customary basis to make the claim that the death penalty violates international law, but there is no doubt that the force of international law—and by this we mean the examination of the practice and laws of other states as contributing to international custom—has had a bearing on the judgments handed down by the jurisdictions that we will now examine.
D. Comparative Description
1. The US
24. Since the case of Gregg, the death penalty has been upheld in a string of cases by the Supreme Court of the United States as being constitutional despite the numerous challenges mounted against it. Nonetheless, these challenges have had the effect of narrowing the scope of the application of the death penalty to a very small group of crimes, not to mention excluding certain groups of people. Some of these challenges will now be examined, in chronological fashion.
25. Prior to Gregg, the decision of Furnam v Georgia (1972) (US)—decided not long after an era of civil rights turmoil in the country—had led the US Supreme Court to impose a de facto moratorium on capital punishment in the US as questions surrounded its constitutional compatibility. This moratorium only ended almost five years later when the court in Gregg held that the death penalty was constitutional, albeit only if it was carried out within certain parameters. The court first made the preliminary observation that it is the legislature, and the legislature alone, that represents the will of the people. The judges in the Supreme Court do not have the same democratic mandate. Indeed, although the framers of the US Constitution grappled with the morality of the death penalty, they accepted that to be consistent with the notion of democracy, this should be a matter left to the people; the 5th and 14th Amendments reflected this as well.
26. The court then noted that a large proportion of the American society regards the death penalty as an appropriate and necessary criminal sanction for certain offences, and that it serves two principal social purposes: retribution and the deterrence of capital crimes by prospective offenders. However, the court accepted that the due process clause (the 8th Amendment) requires that the punishment not be cruelly inhumane or disproportionate to the crime involved; thus, the manner of carrying out the death penalty had to be assessed against contemporary values in order to be consistent with the 8th Amendment. This ruling has since given rise to more qualifications to the death penalty in a string of cases.
27. First, in Woodson v North Carolina (1976) (US), the Supreme Court held that the mandatory death penalty was inconsistent with the 8th Amendment. It noted that juries (jury) have often refused to sentence accused persons when death was the only available sentence, thus demonstrating their rejection of the mandatory death penalty as being unduly harsh and unworkably rigid.
28. Secondly, in Atkins v Virginia (2002) (US), the Supreme Court held that mentally disabled persons (the current term used by the court, following Hall v Florida (2014) (US), is intellectually disabled persons) must be exempted from the death penalty since the principles of retribution and deterrence that underlie the imposition of the death penalty are unlikely to be given effect to; moreover, the mentally disabled suffer from cognitive and behavioural impairments that make them less morally culpable. This decision, in effect, reversed the court’s earlier judgment in Penry v Lynaugh (1989) (US) and in a sense aligned with the court’s prior position in Ford v Wainwright (1986) (US) that the insane cannot be executed.
29. Thirdly, in Roper v Simmons (2005) (US)—and in furtherance of its prior decision in Coker v Georgia (1977) (US)—the Supreme Court held that juveniles under 18 are exempt from the death penalty, reasoning that they, too, are less morally culpable and hence not deserving of the ultimate sentence; further, they lack maturity and have an underdeveloped sense of responsibility, are more vulnerable or susceptible to negative influences and outside pressures, and their character is not as well-formed as that of an adult. Notably, the court noted, though not without dissent as to its relevance, the ‘overwhelming weight of international opinion against the juvenile death penalty’ in its judgment. The US is not a state party to the Convention on the Rights of the Child ((adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3), which by virtue of Art. 37 prohibits capital punishment to offenders under 18.
30. Finally, in Kennedy v Louisiana (2008) (US), the court held that the death penalty cannot be imposed on non-homicide crimes. It said that capital punishment is limited to ‘those offenders who commit a narrow category of the most serious crimes’, and whose extreme culpability makes them ‘the most deserving of execution’. It added that evolving standards of decency must embrace and express respect for the dignity of the person (dignity and autonomy of individuals).
31. In Singapore, until legislative amendments in 2012 to its Penal Code (1871) (Sing) and Misuse of Drugs Act (1973)(Sing) respectively, the death penalty was mandatory for various penal offences such as murder and for the trafficking of controlled drugs if certain quantitative thresholds were crossed. These amendments were meant to reflect, in part, a more calibrated approach towards punishment. Before these amendments, however, the Court of Appeal had consistently upheld the mandatory death penalty as being constitutional, principally on the basis that whether the death penalty should be mandatory for certain offences is a matter of social policy and should be left to Parliament to decide. Interestingly, these constitutional challenges were all made with respect to the Misuse of Drugs Act and not the Penal Code.
32. But the first apex case that considered the constitutionality of the death penalty was actually not a Court of Appeal decision. It was an appeal to the Privy Council, decided some time before Singapore abolished such appeals completely in 1993. That case was Ong Ah Chuan v Public Prosecutor (1979–1980) (Sing). The accused person argued that the mandatory death penalty under the Misuse of Drugs Act violated Art. 9 of the Constitution (arbitrary punishment not in accordance with law) and Art. 12 of the Constitution (unequal protection of the law). Lord Diplock, delivering the judgment of the Board, first pointed out that it was not unusual and fully within the power of the legislature to impose a mandatory death penalty for an offence that society regarded with abhorrence, especially for an offence committed for profit by an offender willing to take a calculated risk. He then opined that it was not arbitrary to impose the mandatory death penalty for the trafficking of particular classes of drugs past particular quantities, and that the equality clause was not concerned with equal punitive treatment for equal moral blameworthiness but equal punitive treatment for similar legal guilt.
33. It would be more than 25 years later before this specific issue was litigated again. In Nguyen Tuong Van v Public Prosecutor (2005) (Sing), the accused person essentially argued, as was argued in Ong Ah Chuan, that the mandatory death penalty under the Misuse of Drugs Act violated Arts 9 and 12 of the Constitution. He also argued that death by hanging was a cruel, inhuman, and degrading punishment in breach of international law. The Court of Appeal dismissed the appeal, holding that the mandatory death penalty was humane and that there was a rational justification underpinning the drug-trafficking offence that carried the mandatory death penalty. As regards the international law argument, the court held that notwithstanding the fact that Singapore was not a monist jurisdiction with respect to the reception of international law (dualism / monism), there was no specific international custom prohibiting hanging as a mode of execution.
34. A number of other constitutional challenges against the Misuse of Drugs Act took place in the decade that followed, but of present interest is Yong Vui Kong v Public Prosecutor (2010) (Sing), the first case in a series of appeals emerging from the same facts. In a slight modification of the arguments in Ong Ah Chuan, the accused person argued that because the mandatory death penalty was an inhuman punishment in breach of international custom, it violated Art. 9 of the Constitution as the (domestic) ‘law’ could not have prescribed an internationally illegal punishment. The Court of Appeal held that while domestic law should be interpreted, as far as possible, consistently with Singapore’s international obligations, domestic law could not be interpreted inconsistently with either the express wording of the Constitution or the constitutional history. It also distinguished the US Constitution, in that there was no provision against cruel and unusual punishment in the Singapore Constitution, as well as other constitutions from Caribbean states that expressly prohibited inhuman punishment. Finally, it reiterated its position in Nguyen Tuong Van that Singapore was not a monist but a dualist jurisdiction.
35. With the aforesaid legislative amendments in 2012, however, the death penalty is no longer mandatory for drug traffickers if they can prove that they were only a courier and substantially assisted the authorities in their investigations, or if they are mentally impaired. Similarly, the death penalty is only mandatory if a person is proven to have intentionally caused the death of another person. For all other categories of murder, the death penalty is discretionary. As to when the death penalty would be imposed, the Court of Appeal in Public Prosecutor v KhoJabing (2015) (Sing) held that the death penalty would be imposed if ‘the actions of the offender would outrage the feelings of the community’. It considered jurisdictions that adopted the ‘rarest of the rare’ or the ‘worst of the worst’ principle, but rejected adoption.
3. South Africa
36. Unlike the US and Singapore, capital punishment is not expressly contemplated in the South African Constitution. It contains an unqualified right to life, as well as protection from ‘cruel, inhuman or degrading’ punishment. This is perhaps why the Constitutional Court of South Africa, unlike the US Supreme Court, ruled that the death penalty was unconstitutional in the seminal case of S v Makwanyane (1995) (3) (S Afr).
37. In Makwanyane, all 11 judges filed individual opinions, with the result that each regarded the death penalty as unconstitutional for different reasons. The leading judgment of the President of the court, Justice Chaskalson, decided the issue on the relatively narrow ground of ‘cruel, inhuman or degrading’ punishment. While Chaskalson P took into account other constitutional safeguards regarding the right to life, the right to human dignity, and the right to equality, he ultimately held that the death penalty was a ‘cruel, inhuman and degrading punishment’, without going further.
38. In contrast, other judges struck down the death penalty on the basis of other constitutional rights. For example, Ackermann J placed more emphasis on the arbitrary and unequal nature of the decision to impose the death penalty. His concern was with the borderline cases where ‘two courts, with the identical accused and identical facts, would undoubtedly come to difference conclusions’. For Didcott J and Langa J, the death penalty was a violation of the right to life. Both judges declined to comprehensively define what is encompassed by the constitutional right to life, although Langa J observed that it is ‘the most fundamental of all rights, the supreme human right’.
39. As for O’Regan J, the death penalty was also a violation of the right to human dignity: an acknowledgement of the intrinsic worth of human beings, that they are entitled to be treated as worthy of respect and concern. This was especially important because of South Africa’s apartheid history, and it was essential that the new political order recognized and protected human dignity to the fullest extent possible. Interestingly, O’Regan J regarded the right to dignity as being intertwined with the right to life, notwithstanding that both are separate and distinct rights in the Constitution. This was perhaps influenced by Decision No 23/1990 (X.31) of the Hungarian Constitutional Court, which she cited with approval in her judgment: in Hungary, the right to dignity and the right to life are treated as a single right under Art. 54 (1) of the Hungarian Constitution (20 August 1949), which the death penalty was held to be inconsistent with. Like the Hungarian Constitutional Court, O’Regan J regarded dignity as being a fundamental right accorded to all human beings, even for criminals who could be argued to have forfeited their right to life and dignity by committing capital offences. The death penalty was therefore a breach of the right to dignity: the fact that human life is taken, the manner of execution itself (a particularly grotesque description is included in her judgment), as well as the conditions that condemned criminals were subject to (they led to prolonged periods of mental anguish and suffering).
40. It should be noted that Makwanyane’s ruling came in the face of ostensibly strong public support for the death penalty. In oral arguments before the court, the Witwatersrand Attorney General had argued that there was ‘overwhelming public opinion in favour of the retention of the death sentence’. In a departure from the orthodox conceptualization of the separation of powers, the court in Makwanyane decided that the judiciary bore the ultimate responsibility of deciding whether the death penalty was constitutional or not. As explained by Chaskalson P, while public opinion may have some relevance to the court’s inquiry, ultimately it was the court’s duty to interpret the Constitution and to uphold its provisions. Giving too much weight to public opinion would defeat the point of constitutional adjudication, and would cause a return to the days of parliamentary supremacy where the rights of minorities could not be adequately protected through the democratic process.
41. This decision was supported by the other judges. Like Chaskalson P, Didcott J opined that the issue of constitutionality of the death sentence was one specifically within the province of the court, and it was not for the court to delegate or evade this duty. Kentridge AJ went so far as to observe that there was no evidence of such strong public opinion, and that developments in South Africa pointed in the other direction. Finally, Kriegler J pointed out that the question before the court was not whether the court, Parliament, or overwhelming public opinion supported the death penalty—it was whether the Constitution had outlawed capital punishment in South Africa.
42. As mentioned earlier, Germany had abolished the death penalty upon the introduction of its Basic Law in 1949 following World War II, so it was always clear that the death penalty could not feature in any form domestically and be compatible with its Basic Law at the same time. But what happens if another state requests for an accused person to be extradited so that he can be prosecuted, potentially pursuant to a capital charge? Extradition is a form of mutual legal assistance in criminal matters between states and is usually carried out pursuant to an agreement, usually between two states. But can the sending state ever object to an extradition by pointing to its own constitution?
43. In the first couple of decades subsequent to the enactment of the Basic Law, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) demonstrated sensitivity to the notion of sovereign equality and deferred to the extradition agreements in question, but this changed some time in the 1980s, as it began to uphold the supremacy of the Basic Law and held that extraditions that were likely to eventuate in capital charges elsewhere violated the Basic Law (Currie). Indeed, even with diplomatic assurances that the accused person would not be subject to anything that is contrary to the Basic Law, German courts have on occasion denied extradition requests (de Wet and Vidmar).
44. To be clear, Germany’s position on the matter is not unique. The practice of extraditing accused persons on the condition that they are not given the death penalty in the receiving state began as early as the 19th century (Schabas (2003)). Today, states such as Canada, Mexico, Spain, and The Netherlands similarly require assurances that the death penalty would not be imposed, but there are also states (such as Italy) that take the position that even if there were assurances of the death penalty not being imposed, the mere fact of extradition to a state that still carries the death penalty would be a violation of its constitution (Carter, Kreitzberg and Howe).
45. At the regional level, the European Court of Human Rights (ECtHR) has also established (in Soering v United Kingdom (1989)) that the extradition of a national to face a capital charge in another state could present a real risk of the violation of Art. 3 of the ECHR, which guarantees the right against inhuman and degrading treatment. At the international level, the Human Rights Committee has established a similar principle in the case of Charles Ng Chi Tat v Canada(1991). As between members of the Council of Europe, Art. 11 of the COE’s European Convention on Extradition ((done 13 December 1957, entered into force 18 April 1960) 359 UNTS 273), which allows extradition to be refused if the receiving state does not sufficiently assure the sending state that the death penalty would not be carried out, could also apply.
E. Comparative Assessment
46. As noted in the Law Commission of India’s 2015 report ‘The Death Penalty’, 140 states have so far abolished the death penalty in law or in practice. The trend towards abolition can also been seen in developments in international law, which have limited the scope of the death penalty by restricting the nature of crimes for which it can be implemented and the manner in which it can be carried out, introducing procedural safeguards, and rendering extraditions subject, at minimum, to assurances of the death penalty not being meted out by the receiving state. Even in countries such as the US and Singapore, where the death penalty has been consistently upheld as being constitutional, one suspects the status quo would not remain for too long.
47. In the US, political campaigning has made the death penalty very hard to carry out in practice; for instance, activists have been forcing pharmaceutical companies to stop selling drugs necessary for lethal injections. The 2015 decision in Glossip has also exposed the widening rift between members of the Supreme Court who feel that the death penalty is unconstitutional. The US is increasingly polarized by politics and the next US Supreme Court appointments would very much depend on the outcome of the 2016 presidential election. Recent jurisprudence of the court has also shown that the majority of the judges are willing to be activist.
48. In Singapore, ever since the 2012 amendments to the Misuse of Drugs Act, all drug couriers have been spared the death penalty whenever the Attorney General’s Chambers has certified that they had provided substantive assistance to the Central Narcotics Bureau (which has happened in about half of the cases). While this does not in and of itself prove that Singapore is relenting in its efforts to combat the scourge of illegal drugs or that it will abandon the death penalty anytime soon, the number of executions is undoubtedly decreasing despite the fairly unchanged numbers in serious crimes.
49. Whether the US or Singapore will eventually head the same way as South Africa depends very much on how the death penalty issue is characterized. The US courts appear to consider the death penalty as a necessary evil, but try as far as possible to use a constitutional law framework when modifying the parameters of the death penalty. The Singapore courts prefer to recognize their role as interpreters of the law which are devoid of the democratic mandate to go against the will of the community (which at this point still supports the death penalty), and resists adopting a non-textual or international law analysis of the constitution. The South African courts, on the other hand, consider the issue almost exclusively as a human rights issue (as in human rights of the accused person rather than the rights of the victim or potential victims), using its own tragic history as an overarching justification for the court’s role. Hence, the use of foreign law in interpreting constitutional rights is not only permissible but desirable, as was the case in Makwanyane where the court drew heavily upon the experience of states that had abolished the death penalty.
50. But while there are increasingly more states that have adopted Germany’s position in abolishing the death penalty and restricting extraditions, the fact remains that there are still quite a number of populous states that are unlikely to follow that path anytime soon. Indeed, according to various NGO estimates, China, Iran, Saudi Arabia, and the US have accounted for 9 out of every 10 executions since 2005, with China carrying out 1,000 to 2,000 executions a year for offences ranging from embezzlement to the endangerment of public security. The situation in China is noteworthy too for the fact that virtually its entire people—which would represent around a sixth of the world’s population—supports retribution generally and the death penalty specifically (Hood (2009)). Nevertheless, there are indications that China does see the abolition of the death penalty as an eventual aim, but cites current socio-economic—as opposed to, say, cultural or religious—circumstances as an inhibition to that aim.
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