Editorial: Euthanasia, democracy and public policy – lessons from the abolition of capital punishment

When capital punishment was finally abolished in 1961 (see article in this issue), the abolitionist cause represented a minority view in New Zealand; fewer than one-third of people supported it. As Leon Gotz proclaimed: “In demanding the punishment for these vile crimes should be the forfeiture of the offender’s lives, I am expressing the opinion of the majority of New Zealand.”¹

Robert Muldoon was one of ten National MPs to cross the floor and support abolition. At the time he acknowledged: “Abolishing capital punishment was contrary to popular opinion and the majority of people in New Zealand are not ready to accept it. However, Parliament should give a lead to public opinion.”²

Controversial issues such as capital punishment, and in our time euthanasia and assisted suicide (EAS), give us pause to reflect on the nature of democracy and, specifically, the role of MPs in shaping public policy. Gotz and Muldoon represent two very different approaches to understanding the nature of parliamentary leadership: (i) following closely the opinion of the public and voting according to popular opinion (taking the lead from one’s constituents) and (ii) voting according to one’s carefully formed and well researched views, taking account of but not being swayed by the opinion of the majority while being willing to vote against public opinion if one’s conscience dictates.

Put simply, the latter approach is premised on a belief that the formation of public policy should not be reduced to measuring public opinion. To paraphrase Muldoon: there are times when MPs should give a lead to public opinion. In a democracy such as ours, where 64 out of the 120 seats are electorate seats, this second approach to leadership is potentially costly at election time and will, therefore, demand of our MPs a high level of personal integrity and courage.

Reflection on the issues and challenges that MPs faced when dealing with the issue of capital punishment generates valuable insights for the current debate about EAS.

• Proponents of EAS repeatedly appeal to public opinion as a reason for changing the law. Their assumption is that majority public opinion is enough to determine public policy. In 1956, the Prime Minister Rt Hon Sydney Holland proposed that the issue of capital punishment be submitted to a referendum as a solution to the continued politicisation of the issue: “let us trust the people … Let us take it out of the hurly-burly of politics”. In response, Labour argued strenuously that capital punishment should be left to parliamentary responsibility; the issue was too complex and required dispassionate consideration. Many argued a referendum was inappropriate because emotions could be stirred up by a particularly brutal or nasty crime just before a referendum creating a serious bias. In a similar way, presentation of the high-profile, difficult cases can generate emotions that obscure people’s ability to take full account of the broader questions relating to the legalising of EAS.
• As was the case with capital punishment, media presentation of the issues surrounding EAS shows a distinct bias towards legalisation. Just as particular crimes became a focus for those arguing against abolition, so the media stories surrounding EAS have mostly focused on the single, emotive cases. For a more balanced and robust discussion to happen, there needs to be a deeper and more balanced exploration of the likely effects on society as a whole. The Justice Department report on capital punishment finally argued a ‘moral’ case against the death penalty; that on balance respect for human life was best protected when the law forbade it. The same argument can be made about EAS.
• The reinstatement of the death penalty in 1950 meant that the effects on those involved in the hangings began to be noticed; for many the impact was significant, taking an emotional and physical toll. These side effects were not necessarily immediate. Likewise, when considering the case for EAS, we must take into account the impact on those who would have to facilitate it, including the negative effects it would have on the medical profession and the doctor-patient relationship.
• Many MPs were persuaded by the fact that if the justice system was subsequently discovered to have wrongly convicted someone, there could be no going back. In New Zealand we now know that at least one innocent person would have been hanged if capital punishment had not been abolished - Arthur Allan Thomas who was convicted of murder in 1971 but received a Royal Pardon in 1979.  With EAS there is a high possibility that a diagnosis and/or prognosis will be wrong. The argument that one innocent life lost is sufficient to justify the abolition of capital punishment is even more relevant to the euthanasia debate because of the risk of large numbers of lives being prematurely ended.

We hope that the Health Select Committee investigation into EAS enables the sort of robust debate and parliamentary leadership that was exemplified by the MPs who dealt with capital punishment.

Dr John Kleinsman is the director of The Nathaniel Centre and Sue Buckley is a researcher at The Nathaniel Centre.