Amicus Curiae: Letting the Few Decide for the Many: The Latest Euthanasia Bill

BY JASPER LAU

The current euthanasia debate in New Zealand began in 2015, following Lecretia Seales’ public plight to clarify the state of New Zealand’s law on euthanasia after her brain tumour became terminal. Lecretia applied to the High Court to ask whether she had the option of having a doctor’s help to die if her suffering became intolerable. In the alternative, she sought a declaration that the current Crimes Act was inconsistent with her rights as guaranteed by the New Zealand Bill of Rights Act 1991. Unfortunately for Lecretia, she did not get the decision she wanted as Justice Collins ruled that only Parliament could make a law change to allow such a step to legally occur.

Seales v Attorney-General ignited a public debate regarding euthanasia and whether New Zealand’s laws need to change. A recent study called the New Zealand Attitudes and Values Study (conducted during 2014/2015) found over 66% of the 15,000 respondents surveyed supported a form euthanasia when asked whether a person suffering a painful incurable disease can get their doctors to end their life. More recently, David Seymour’s ‘The End of Life Choice’ Bill was drawn in parliament which would allow mentally competent New Zealand adults who have a terminal illness or grievous medical condition to ask a willing doctor to help end their life. The controversial Bill represents the best chance for voluntary euthanasia to be legalised in New Zealand but remains up to Members of Parliament to vote on it, with many MPs (including the Prime Minister) already deeply opposed to it. What will likely happen is that individual politicians will be given a conscience vote on the issue. Without going into the merits of the Bill or retreading the debate about euthanasia, a far more pertinent question is raised from this debate. The question raised here is simply this: why should we leave it up to a select few of politicians to decide moral questions for the general population?

In theory, a majority of MPs are elected to be representative of their local constituents and are there to represent that constituents particular interest and views. This of course is more complicated given that the views in any given community are never homogeneous and the individual values of a MP may drastically differ depending which moral questions are asked. Add to the fact that over 40% of our current MPs are selected from party list, this raises serious doubt as to whether we should leave something as important as euthanasia (which has both strong support and opposition from particular groups) to people that are essentially voting on their own sense of morality. As media personality Mark Sainsbury has pointed out, something this significant and life-changing would surely be better decided by the country as a whole, as opposed to having the questionable morality of 119 people decide the fate of the country. Can we trust the MPs to make decisions best for us? Is this something that we should leave for MPs to decide? Are the morals and principles of an MP any more valuable or important than those of the public?

The Conscience Vote and why it can be still considered useful

Conscience voting has been used in New Zealand ever since the 19th century. Originally there were no political parties in the New Zealand Parliament which meant politicians had a free vote on many issues – but this was mostly used on drinking laws that were getting enacted at that time. According to political commentator Steven Baron, conscience voting is a useful tool when dealing with socially contentious issues because the unpredictability of the popular opinion and outcome compels MPs to think carefully with the issue on hand. The issue here is that MPs, like everyone else, already hold a particular opinion to contentious issues and could be persuaded by a smaller number of people to vote a certain way. Although it would seem logical to remove conscience voting all together and have in place a citizen referendum for every contentious moral issue, there remains several reasons why this shouldn’t be the case.

First, most MPs remain better resourced and equipped at dealing with contentious/moral questions that are complex and contains subtlety that are overlooked by the public. Take the contentious Anti-Smacking Law in 2009 as an example, at a time when a majority of New Zealanders were opposed to it. The problem with the Anti-smacking debate was that particular interest groups and politicians managed to frame the issue as being about criminalising good parents from ever ‘smacking’ their children, despite provisions within the Bill stating otherwise. The Bill was always intended to remove ‘reasonable’ force used in correction, after it was reported that many parents were acquitted from criminal charges when they abused their children under the old s 59 of the Crimes Act. Despite the Bill still allowing force to be used in common circumstances (like for stopping children running to street, touching a hot stove etc), misinformation and a poorly worded referendum meant most people misunderstood what the Bill was actually about and attributed moral failings to the ‘politically correct’ MPs. This is a clear instance where the majority of MPs (which eventually voted in favour for the Bill) used their conscience votes constructively despite criticisms from the public at large.

“Some moral decisions should be left to MPs [given the threat of] the tyranny of the majority stopping social progress in some cases. More often than not, social issues like homosexuality and prostitution are the most resistant to change because most people feel quite strongly against it.”

Another valid reason why some moral decisions should be left to MPs is that it sometimes prevents the tyranny of the majority from stopping social progress in some cases. More often than not, social issues like homosexuality and prostitution are the most resistant to change because most people feel quite strongly against it. In these circumstances, it often takes leadership and courage to change laws that are contrary to public opinion. Many progressive reforms would not have happened if conscience voting for MPs were dismissed (although the same arguments could be made conversely for some parts of the world).

Whilst it is common to berate a politician’s conscience or be critical of having contentious issues decided by a small number of individuals, conscience voting remains an important safeguard to democracy through the plurality of MPs working in the best interest of the population. Most people would tend to agree that changes need to be made in how contentious social and moral questions ought to be decided in New Zealand. Perhaps a compulsory citizen’s referendum is especially desirable in the legislative process where the results of each referendum must be considered by all MPs during the second reading stage or at the select committee stage. However, there remains an inherent tension between the selective goodwill of our MPs deciding on moral question versus the public’s general will overall, which could in fact contravene social justice or minority rights. Yet there remains a very strong valid argument why conscience voting by MPs should remain. As Winston Churchill has pessimistically said before: “The best argument against democracy is a five-minute conversation with the average voter.” Let’s hope he’s not right.

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