ON the face of it, the Constitutional Court is loaded in favour of abolition of the death penalty.
At least five of the 11 judges are on record as expressing abolitionist views. The Weekly Mail & Guardian could find no record of any of the 11 having declared themselves in favour of the death penalty.
Judge John Didcott endorsed the 1988 relaunch of the Society for the Abolition of the Death Penalty in South Africa, saying “convinced as I am that capital punishment degrades a society that resorts to it, I warmly support efforts to abolish it.”
Judge Kate O’Regan, when interviewed for membership of the court, was asked whether she belonged to the Society for the Abolition of the Death Penalty. She replied that while she was not a member, she did indeed endorse the aims of the society. Judge Albie Sachs said in his interview that he had “campaigned strongly and with conviction for the abolition of capital punishment”.
Constitutional Court president Judge Arthur Chaskalson and Judge Richard Goldstone are also known to be opposed to the death penalty. So is Judge Sydney Kentridge, who is a temporary member of the court in Goldstone’s absence.
This imbalance of opinion has caused some concern. The South African Police Services and South Africa’s Attorneys General raised the issue of potential bias in the arguments they submitted to the court, but did not call on these judges to stand down.
But it is inevitable that judges will have, at some stage in their professional lives, have expressed views on many of the matters before the court. The test for them is whether they can rise above their set views and base their decisions on the arguments before them.
Their role, after all, is to test the law against the constitution, not against their personal opinions.