That irreplaceable human being of the species homo ubuntu, Archbishop Desmond Tutu, has put his considerable moral weight on the scale in favour of assisted suicide. The timing is not coincidental. Judgment in the appeal against the Pretoria high court finding that a fully mentally competent but terminally ill and intractably suffering patient could be assisted in the act of suicide by a medical practitioner who would not by doing so be acting unlawfully is imminent. Cases, with a heavy moral component, illustrate starkly how difficult it is to balance moral issues with legal outcomes.
The Constitution is the supreme law of the country and the courts are the final arbiter to ensure that we fulfil our obligations to protect, promote and fulfil the rights in the Bill of Rights. Because of our history, the Bill places human dignity at the top of democratic values together with equality and freedom. It has never been doubted that our right to equal protection and benefit of the law means that the majority opinion should not prevail simply because it is a majority.
Sometimes our courts get it right and they get it right quite easily. The courts have forced parliament to pass the Civil Union Act to recognise unions other than the marriage of a man to a woman even though the conservative lobby in government gave us two forms of marriage instead of one. Gay rights and the right to an abortion are well protected, child pornography is prohibited but access to other pornography in the privacy of your own home is allowed.
There are times however when the courts’ own moral compass spins and settles down pointing in the wrong direction. Some of the Constitutional Courts unhappiest judgments have dealt with moral issues rather narrowly. Restrictions on selling liquor on a Sunday have been upheld on the flimsy basis that there should be a day when we are to be protected from early access to alcohol. An attempt to give rights, dignity and protection to sex workers floundered on the ground that the application made on the basis of gender rights could not succeed because there are also male sex workers, without the court giving hope to exploited people who need protection of their dignity and bodily integrity. The court grappled with the problem of what is a religion and eventually ordered the school to allow a young woman to wear a nose ring based on a definition of religion that will not give equal protection to everyone least of all those without a religion.
The protection of minorities against majority opinion is seldom more starkly illustrated than in the assisted suicide debate. In the UK, the Commons voted 330 to 118 against changing the law in 2015 but the House of Lords debating the Assisted Dying Bill in 2016 was largely in favour. Is this a factor of the average age of the members of the two houses?
In the Pretoria high court case the application of Mr Stransham-Ford was opposed by a government which has been sitting on a report by the South African Law Commission on the subject since 1999. The advocate representing the Minister of Health extraordinarily denied that the awful circumstances preceding his death outlined by the applicant was not dignified and said this was the applicant’s own subjective view. The judge commented “I was almost shocked when I read this”.
Some more startling arguments in the matter will probably be repeated some time in future in the Constitutional Court. Let’s just hope that ultimately the constitutional rights of those who choose to die with dignity are upheld and that the courts and the lawmakers espouse the principle of live and let die.
This article first appeared in Business Day Law Review