Euthanasia and assisted suicide: a liberal approach versus the traditional moral view

Within the context of the debate over the recent suspended sentence given to John Stuart Godfrey by Underwood J in the Supreme Court of Tasmania for assisting his elderly mother with her suicide, this article examines some of the more popular arguments for and against the moral acceptability of euthanasia and assisted suicide. This article considers the arguments put forward on the "difference principle" by Rachels and Nesbitt before critically examining the liberal approach to the euthanasia issue as proposed by Kuhse. It is argued that whilst Kuhse is correct to reject the difference principle, she does so for the wrong reasons. The penultimate section of the article provides an overview of the traditional moral view against killing. The final part assesses whether the arguments put forward by proponents of the liberal approach are capable of overcoming this view.     

Constitutional literacy in Africa: challenges and prospects

The issue of constitutional literacy has attracted very little attention in scholarship on constitutionalism in Africa. This is not surprising, because the early constitutions were virtually imposed by the departing colonial powers and perceived as alien, not only by the ordinary citizens but also the new leaders, who had little knowledge or experience of constitutional governance. Have the new generation of ‘made-in-Africa’ constitutions changed the state of constitutional literacy on the continent? In addressing this question, the paper examines the concept of constitutional literacy and, using the example of South Africa, considers ways in which it could be promoted. The paper also considers the challenges to promoting constitutional literacy. It concludes by underlining the fact that strengthening the democratic constitutional foundations laid in the 1990s, foundations increasingly under threat today, requires a comprehensive programme of constitutional education, with a focus on the poor and other marginalised groups in society. Without knowledge and awareness of constitutional rights, citizens will not be able to vindicate their rights or challenge any violation of them.     

Euthanasia and assisted suicide in the post-Rodriguez era: lessons from foreign jurisdictions

Euthanasia and assisted suicide are highly controversial subjects that have drawn much attention in Canada over the last two decades. This paper outlines how the Netherlands, the United States, Australia, and Canada have approached the practices. Jurisprudence, public opinion polls, legislative developments, and the positions of medical organizations and their members are included in the analysis. A number of arguments for and against the continued prohibition of the practices in Canada are evaluated. As well, information regarding the extent to which euthanasia and assisted suicide are performed in these countries is assessed. It will be shown that Canadians currently enjoy significant control over decisions concerning end of life. The principles of autonomy and beneficence provide the foundation necessary to justify lifting the prohibition of voluntary euthanasia and assisted suicide in Canada. With regard to the development of safeguards, the way in which foreign jurisdictions have dealt with both procedures is highly instructive. A qualified system of pre-authorization, unlike those adopted elsewhere, would prevent abuses from occurring and maintaining the prohibition of non-voluntary and involuntary euthanasia. Since legislators are in the best position to deal with the issues, change in the law should be made by the government, not the judiciary. Practical legislation is feasible and a proposal of what this should entail is presented.     

Court dismisses constitutional challenge to ban on assisted suicide

On 6 February 2001, the Ontario Superior Court of Justice dismissed a constitutional challenge by Jim Wakeford, a Toronto man with HIV/AIDS and an advocate for access to medical marijuana, to the sections of the Criminal Code that outlaw assisted suicide in Canada.     

Justins v The Queen: assisted suicide, juries and the discretion to prosecute

Juries are often a crucial protection for citizens against unjust or highly controversial laws. The decision whether to proceed with a prosecution rests on the discretionary powers of prosecutors. In cases where the community is deeply divided over right and wrong, it appears that there is, at times, a transference from the public of thwarted law reform aspirations which can create difficult tensions and expectations. This case commentary considers an appeal by Shirley Justins following her conviction for manslaughter by gross criminal negligence as a result of her involvement in the mercy killing of her partner, Mr Graeme Wylie. The morally unsettled nature of the charges brought against her, her own initial plea, the directions given to the jury by the trial judge and even the basis of her appeal resulted in a convoluted and complicated legal case. Spigelman CJ and Johnson J ordered a new trial, Spigelman CJ stating that it was open for a new jury to consider (a) if Mr Wylie lacked capacity; and (b) whether there was criminal involvement by one person in another's death. Simpson J found that further prosecution on the count of manslaughter would amount to an abuse of process and that an acquittal should be entered. This case highlights how fundamentally unsettled are the publicly much debated and persistently contentious issues of euthanasia, assisted suicide, the right of a person to die a dignified death and the way their capacity in that respect should be assessed. It perhaps asks us to reconsider the role of juries and the exercise of discretion by Directors of Public Prosecutions in areas of law where the community and law-makers are deeply and intractably divided.