[279]I have dealt with some of these issues, in analysing the proper approach to the interpretation of the Constitution, and in focusing on the rights protected by sections 8, 9 and 10 of the Constitution. Some of the other issues relevant to the exercise, have been dealt with in the comprehensive judgment of the President and the persuasive comments of some of my colleagues.
[280]Applying the relevant considerations which emerge from the proper approach in assessing whether capital punishment is "cruel, inhuman or degrading punishment", I share the conclusions arrived at by the United Nations Committee on Human Rights, and the Hungarian Constitutional Court, (Decision 23/1990 (X31) AB) that the death sentence is cruel and degrading punishment and the conclusion of the Californian Supreme Court that it is "impermissibly cruel" (People v Anderson 493 P.2d 880 (1972)).
[281]In my view, it also constitutes inhuman punishment. It invades irreversibly the humanity of the offender by annihilating the minimum content of the right to life protected by section 9; by degrading impermissibly the humanity inherent in his right to dignity; by the inevitable arbitrariness with which its objective is implemented; by the continuing and corrosive denigration of his humanity in the long periods preceding his formal execution; by the inescapable denial of his humanity inherently involved in a sentence which directs his elimination from society.
[282]I am accordingly of the view that the death penalty does prima facie invade the right to life; the right to equality; the right to dignity; and the right not to be subject to cruel inhuman or degrading punishment, respectively protected by sections 9, 8, 10 and 11(2) of the Constitution.
[283]Notwithstanding that conclusion however, it would be our duty to uphold the constitutionality of the death penalty if it was saved by section 33 of the Constitution, which provides that the rights entrenched by Chapter 3 may be limited by a law of general application, provided that such limitation
and provided that any limitation to
shall in addition to being reasonable as required in paragraph (a)(i) also be necessary".
On a proper construction of section 33, a "law of general application" which invades a right entrenched in Chapter 3, will be declared unconstitutional unless the party relying on such law is able to establish that it fulfils each of the conditions prescribed by this section, for its justification.
