Comparative Con Law 2009C.Germany1.Has a Constitutional Court which only hears constitutional issues2.Can hear cases in the abstract (ie before any injury has occurred) or after injury has occurred
(Contrast w/ the Kelsen court: before a law went into effect, the court would be asked to look at itsconstitutionality; once passed, no private party could challenge)D.South Africa1.SA Constitutional Court: so limited jurisdiction; can hear abstract questions (almost never does) but mostlyconcrete questions.2.No discussion of standing or advisory opinions but it’s being pushed by the govt to have these issues settled
The Death Penalty and Comparative Engagement: Case Studies
(South Africa, 1995)
Relevant provisions: Sec 11(2) of the Interim Constitution: No person shall be subject to torture of any kind,whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.B.Sec 9: Everyone shall have the right to life.C.Sec 10: Every person shall have the right to respect for and protection of his or her dignityD.Issue: in light of constitutional provisions on a seemingly unqualified right to life, the right to dignity and the right to be free from cruel, inhuman or degrading punishment, is the death penalty constitutional?E.Holding: No it’s not constitutionally justifiable. South Africa, b/c of its unique history, is committed to not exactingfull retribution and under a Kantian version of human dignity, deterrence is not a valid enough reason.F.Background history:1.African National Congress is in power, lead by Mandela.2.This was a deliberated transition from an apartheid system thus the concessions b/t the outgoing white majorityand incoming black majority; an interim constitution was drafted w/ certain provisions that must be in the final
This is about the interim constitution. The issue of the DP was not decided upon (out of fear that it would beused against the outgoing pro-apartheid govt) and it was well known that the issue was being punted to thesupreme court.G.Relevant constitutional provisions:
11(2): prohibits cruel, inhuman or degrading punishment (
to be read disjunctively
9: everyone has the right to life (
seems to be an unqualified right, unlike the US and due process that leads torights violations
)3.10: everyone has the right to dignity
33(1): a depravation of rights is permissible if it’s “reasonable” or “justifiable in an open and democraticsociety.” Requires a 2-step analysis: (now Sec 36)a.Is there a right?
If so, can the limitation be justified in an open and democratic society? Use enumerated factors.
c.This seems sort of like varying levels of scrutiny that constrain discretion; here the inquiry is holistic.
H.Reliance on foreign law?1.Cruel and unusual:
Customary international law, international agreements and international tribunals
Cites Brennan for the proposition that dignity is at the core of the prohibition on cruel and unusual punishment
Citing Germany’s holding that capital punishment is a serious impairment of human dignity
deliberative(Kant would say that you have to treat people as ends unto themselves; can’t treat them as objects)2.Right to life?
There’s no international consensus
the DP b.But there is a moral-cosmo consensus that life is important; thus state has to meet a very high bar to justifythe DP if life is so importantI.Analysis:1.Framework: limitations on fundamental rights have to be justified under Section 33a.Is there a right?
Purpose must be reasonable and necessary in a democratic society2