Lawful but not just

Justice is one thing, but the laws passed by any sovereign lawgiver, whether king, tribe or parliament, are another thing. Justice and statute law should come together, but they do not always do so, and it not infrequently happens that the will of parliament is “iniquity rather than law”.1  An interesting example of an iniquitous law would be, I suggest, the Rights of the Terminally Ill Act 1995, passed by Australia’s Northern Territory (NT) Parliament, but later effectively repealed by the Australian Federal Parliament. The Northern Territory was the first jurisdiction in the world to legalise euthanasia, a move subsequently adopted by several countries in Europe. In this short essay, I will explore how some submissions made by the Aboriginal communities opposing the proposed passage of the law show up basic assumptions of our system of criminal laws.

The NT’s Select Committee on Euthanasia was charged to investigate whether the law should be amended. It is not cynical, I suggest, to infer from their report that they were fully determined to recommend the passage of a statute legalising some form of euthanasia, even if they were not initially clear on all the details of the physician-assisted scheme they eventually proposed. The Committee received a number of submissions from Aborigines and Aboriginal communities which were overwhelmingly against the proposed legislation. The final report concluded:

... the debate has not been without difficulty for Aboriginal communities, and any lingering fears among Aborigines about the receipt of health care in particular need to be quickly dissipated.2
Beryl Mayanini Djakala That word “dissipated” speaks volumes. What were these Aboriginal submissions? To my mind, one of the more striking was that of Beryl Mayanini Djakala, a health worker from the Milingimbi Clinic in East Arnhem Land in the far northern reaches of Australia who was recently named "Northern Territory Local Hero". She wrote:
On behalf of my community at Milingimbi and myself as senior Health Worker, I would  like to express my feelings about this big issue called euthanasia. We do know that there are certain illnesses that are incurable and we do understand that some of the illnesses have long suffering periods. We as relatives do not want and like the idea of euthanasia practiced on our terminally ill relatives. While meditating on this matter of sorrow and suffering, it is necessary to say a word about suffering that comes from sickness.
I was thinking of more difficult and despairing circumstances, however as there are those among my people who believe in miraculous healings, I certainly don’t think that the idea of practicing [euthanasia] on Yolngu people is acceptable.
We were never made to be:
1. dressed in clothes
2. introduced to new laws every year
3. taking tablets when we are sick
4. working for money
5. living in a house with electricity that we have to pay to keep it going.

But we have to do these things because we are living in a Western world. We were and are nomads, hunters, food gatherers, ceremonial and cultural people who just, and will give, comfort and tender loving care to our terminally ill relatives. Because our terminally ill relatives know that they are dying they usually always want songs to be sung, they want to hear the last sound of their traditional songs and the sound of the didgeridoo and clapsticks.
Finally, I would like to let you know that most Yolngu people are God-fearing people and were introduced to Christianity by the first missionaries, who came to Milingimbi. We have heard and read the Bible and it tells that Jesus heals. All you have to do is trust and believe in Him.3

Note that Djakala considers sees the issue of euthanasia as being against the course of what is natural for her people, and she states that they were never meant to be introduced to new laws every year. Her view seems to be that the Yolngu do not need any new laws; they have their own sense of right and wrong. She mentions that some of her people believe in miraculous healings and that euthanasia is not acceptable. This ties in, I suggest, with her references to Jesus the healer at the end of her letter, for to take a tablet to end one’s life before one’s time has come is contrary to their spirituality; it would be potentially destructive of their traditional order, robbing not only the dying person, but also their relatives of the spiritual dimension which attends dying. The reference to Jesus as healer reinforces this. The proposed legislation would introduce a way of dying which shuts out the miraculous, because it forestalls it.

Another submission, from the Northern Australian Aboriginal Legal Aid Service, noted that the police have been known to ask Aboriginal suspects in murder cases whether they had intended to kill the victim of an assault, and the Aboriginal replied that he did intend to kill the victim. The case would seem to be open and closed, until the Aboriginal person went on to explain, when given the chance, that he had not meant to kill that person dead but only to kill them a little bit.4

However, the Select Committee report gives the impression of deafness to all of the Aboriginal submissions. For example, the Committee noted, but did not offer any explanation, let alone an apology, for the Aboriginal communities’ trenchant criticism of the lack of consultation with the indigenous peoples.5

When I presented these theories at a conference in Vancouver in 2005, one of the First Nation Peoples who was present stated that he had met Aboriginal elders in Australia, and my view entirely accorded with what they had told him of their ways. That is, contrary to our notions, it is possible to have a criminal law system which has no laws. One could say that these traditional systems have an ethic which is accepted by the community, or one could simply say that they have a sense of justice. Yet traditional legal systems were more stable and perhaps more deeply accepted by their communities — and hence more successful than our own.

It would appear that in the ancient Near East, justice was not administered by reference to a set of laws, although those civilisations did have a legal literature. That is, the assumption of our Western criminal justice system – that a crime is a breach of a law – simply did not apply. Rather, a crime was simply an act of injustice. What constituted either “justice” or “injustice” was determined by reference to a “sense of justice”. In the first instance, this was the judge’s sense of justice, but as the story of Daniel and Susanna in the Old Testament indicates,6  if the community were dissatisfied with the judges, they could immediately review their decision, and judge the judges themselves. Lemche, a contemporary scholar, believes that “the idea of a human law, written down and understood as a guide by the judge in court, was foreign to the mind of the population of the Ancient Near East. Justice was divine business, given to man by the gods and effected by their representative on earth ...”7

The point which comes through after studying what Aboriginal people had to say about euthanasia is simply that justice, the sense of what is right, may – and even should – coincide with the statutes of the law-makers. But ultimately they are different animals from different worlds.

Dr Joseph Azize is a lecturer in law at the University of Technology, Sydney.

(1) St Thomas Aquinas, Summa Theologiae, I.IIae.90.1.
(2) Report of the Inquiry by the Select Committee on Euthanasia, vol. 1, 54.
(3) Report of the Inquiry by the Select Committee on Euthanasia, submission 1104, 1782 (the formatting of this and other submissions has been slightly modified).
(4) Submission 680 Report of the Inquiry by the Select Committee on Euthanasia, 1045-8.
(5) For example, see submission 1111, Report of the Inquiry by the Select Committee on Euthanasia, 1800.
(6) Daniel 13.
(7) Neils Peter Lemche, "Justice in Western Asia, or: Why no Laws Were Needed". 70 Chicago-Kent Law Review (1994-5) 1695-1716, 1701. It seems to me that Lemche slightly overstates the role of the king, and understates that of the community, its elders and “tribunals”.


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