South Africa shows the way

South Africa, which once led the world in executions, has abolished the death penalty by unanimous vote of its new Constitutional Court.

The courageous decision leaves the United States in a dwindling company of democratic countries with the dubious distinction of executing their citizens.

This first important decision by South Africa's highest court is distinguished for its legal reasoning and fidelity to the country's democratic aspirations. The 11 judges -- racially diverse and reflecting the population's Afrikaner, British and black heritage -- captured the character of a country that has shed its legacy of racial division and authoritarian rule.

They concluded that South Africa's 1993 constitution places high value on the human rights of life and dignity that were so traduced during generations of apartheid.

The decision was remarkable not only for the advancement of a human right, but for its validation of the rule of law. The framers of the constitution purposely left it to the Court to interpret South Africa's version of "cruel and unusual punishments". The judges exercised this responsibility.

In making clear that the judiciary would indeed determine what the Constitution means and strike down unconstitutional laws if necessary, the decision resembled the American landmark Marbury v. Madison, delivered in 1803 by Chief Justice John Marshall.

South Africa's interim constitution is scheduled for replacement within two years, but its distinctive principles are expected to survive.

Unlike American constitutional jurisprudence, South Africa's basic charter puts a heavy burden on government to justify denial of the right to life and dignity.

While a judge in the United States might ask whether executions deter murder, and then uphold the death penalty if it does, South Africa asks whether the state can prove clearly and convincingly that a death sentence is a significantly greater deterrent than a life sentence.

South Africa's highest court, while recognizing high crime rates, showed judicial wisdom in deflating claims that executions deter crime or protect citizens. The opinion of the Court's president, Arthur Chaskalson, and 10 concurring opinions owe much to the writings of American liberal justices, but they also have much to teach the United States.

-- The New York Times