The misperception was created during the hasty North Gauteng High Court hearing (and in the media) in April 2015 that due process had not been followed and Parliament and/or the Minister of Health had somehow failed to consider the report of the South African Law Reform Commission on euthanasia. This then was used to justify Judicial interference by Judge Fabricius in authorising a euthanasia, bypassing the constitutional role of the legislature. The assumption was incorrect. Due process was followed. Euthanasia has been discussed numerous times in parliament.
SUMMARY OF HANSARD EXCERPTS ON PARLIAMENTARY DISCUSSION ON EUTHANASIA
Extracts from the Hansard parliamentary record are publicly available on the parliamentary web site www.parliament.gov.za and that of the Parliamentary Monitoring Group www.pmg.org.za. These may be accessed by the Google Search Engine using keywords such as ‘euthanasia’ and ‘artificial preservation of life’ followed by the suffix of the site being searched e.g. “site:parliament.gov.za”
Due process was followed regards the South African Law Reform Commission (SALRC) Report in that:
1. The Justice Portfolio Committee was briefed on the upcoming submission of the SALRC project 86 report on euthanasia on 22 February 1999.
2. The National Assembly referred the SALRC project 86 report to the Portfolio Committee on Justice and Constitutional Development and the Select Committee on Security and Constitutional Affairs on 1 March 2000.
3. The National Council of Provinces reported the same referral of the report on 2 March 2000.
The following excepts from the parliamentary records are relevant:
Parliament notified of report by South African Law Reform Commission
Parliamentary Monitoring Group Record (not Hansard).
SOUTH AFRICAN LAW COMMISSION: BRIEFING OF JUSTICE PORTFOLIO COMMITTEE: 22 FEBRUARY 1999
* Project 86 – Euthanasia and the artificial preservation of life
The report deals with a patient’s right to refuse medical treatment or to receive assistance in ending his or her suffering by the administering of a lethal substance. A report was approved by the Commission and will be submitted to the Minister in due course.
Hansard Record: National Assembly: 1 March 2000 Page 203 of 204
2. The Minister for Justice and Constitutional Development: (1) Reports of the South African Law Commission on the …. (b) Euthanasia and Artificial Preservation of Life, Project 86 [RP 186-99].
Referred to the Portfolio Committee on Justice and Constitutional Development and the Select Committee on Security and Constitutional Affairs.
Hansard Record: National Council of Provinces: 2 March 2000 Page 232-3 of 235
2. The Minister for Justice and Constitutional Development:
(1) Reports of the South African Law Commission on the –
(b) Euthanasia and Artificial Preservation of Life, Project 86 [RP 186-99].
Referred to the Portfolio Committee on Justice and Constitutional Development
and the Select Committee on Security and Constitutional Affairs.
The SALRC Project 86 Report included three alternative proposals to deal with euthanasia:
1. No legislative enactment. i.e. not legalised.
2. Legalisation of euthanasia based on a set of criteria
3. Legalisation of euthanasia decided by a committee of doctors.
It is evident that the government chose the first alternative, i.e. no legislative enactment (not legalising euthanasia) and thus did not bring either of the two alternative proposals or any other to parliament. Neither of the legislative proposals was thus ever brought to parliament either by the government or as a private members bill.
The government is not under any obligation to bring suggested bills from the SALRC for a vote before parliament. It is not the mandate of the SALRC to decide state policy, but simply to undertake research and offer suggestions. It is evident from the summary records of the SALRC annual report, 2015, Appendix C, that many other proposals by the SALRC were not supported and did not make it into law.
Ad-hoc parliamentary motions which mention to euthanasia
Nevertheless, the topic of euthanasia was brought up on several occasions for discussion in parliament, mostly in the context of strong opposition to the legalisation of euthanasia.
It can therefore be deduced that the matter was not neglected by the legislature, but that there were many opportunities to discuss and debate the topic of euthanasia. The proposals to legalise euthanasia was not supported by government or any political party represented in parliament.
The following extracts indicate examples of this in date order:
* Parliamentary Monitoring Group: Rhoda Southgate question to Health Portfolio Committee (7 Sept 1999)
* Hansard: Kent Durr National Council of Provinces (21 Sept 1999) Page 8 of 276
* Hansard: Martinus Van Schalkwyk difficulty legislating euthanasia (19 Nov 1999) PAGE 49 of 226
* Parliamentary Monitoring Group: Health committee hearing re abortion mentions euthanasia (7 June 2000)
* Hansard: Cheryllyn Dudley on moral regeneration (10 Sept 2002). Page 68 of 244
* Notice of motion to debate the SALRC ‘End of life bill’ Cheryllyn Dudley (31 May 2004). Email from office of Cheryllyn Dudley, 29 April 2015
* Hansard: Cheryllyn Dudley asks Minister of Health (never missed opportunity) (5 Sept 2007)
* Hansard: Parliamentary question on euthanasia (15 April 2011) Parliamentary question no.: 1152