Juvenile death sentenc…

Juvenile death sentenc…

However, foreign judgements do have a certain value in argument to help convince a court to a point of view. A view of Australian and Canadian judgements will prove this.

With most of the world moving toward the US concept of constitutional democracies, it helps the courts in common law jurisdictions, like South Africa, Canada, Australia and New Zealand to see what foreign jurists under a similar legal system, faced with similar situations have done in the past. In this regard the body of jurisprudence the US provides is immense and extremely helpful when preparing cases that raise constitutional issues.

Foreign decisions should not be the deciding factor in a case, but they can certainly help the court hearing a case to seek guidance from foreign jurists in similar legal systems faced with similar problems to formulate a decision of their own.

Our constitutional court regularly looks at foreign cases, because for the most part, they have more experience at these constitutional interpretation issues than we do. They do provide guidance to the court on how other jurists in similar jurisdictions deal with similar problems.

However, it is for the judges sitting to make their own minds up and apply their own coutry’s law as they are constitutionally mandated to do. It is the duty of the lawyer arguing a case to present opposing views to those that another lawyer expresses in court.

Personally, I think Justice Scalia would have a very difficult task to find any decisions from common law jurisdictions with constitutional democracies to support the view that it is lawful to impose the death penalty on juveniles as most (if not all) these jurisdictions do not even have the death penalty and most of the courts in those coutries have stated that life imprisonment without the possibility of release for a juvenile (and in some cases even an adult!) amounts to cruel and unusual punishment.

As an example in South Africa, ‘life imprisonment’ means 25 years and a prisoner must serve 75% of that sentence to be eligible for parole.

This does not exclude people who should never be allowed back into society, as there is a way past this as in particularly heinous cases, the court orders the sentences do not run concurrently as in Canada. For instance, in a recent case a serial killer received an effective sentence of more than 800 years imprisonment!

I only raise this as an example to show that most foreign common law jurisdictions with constitutional democracies would not support the case in favour of the juvenile death penalty.

I think that the election of Justice Kennedy to use foreign jurisprudence from similar legal systems faced with similar problems is helpful to support the case against the juvenile death penalty, but these cases should not be used to abdicate the law of one’s own country, as this abdicates the functions of the court that makes the decisions in its own jurisdiction, by deferring to foreign courts.