Or more recently, the mass suicides by civilians in Okinawa during the final phases of the Pacific stage of the Second World War.
2.
As opposed to passive euthanasia where medical treatment is withheld so as to result in the hastening of a patient's death. This type of euthanasia has never been criminalised in Japan or in Australia. In the remainder of this article, the term ‘euthanasia’ is used to denote active euthanasia.
3.
For a concise history of the Code, see TakayanagiK., ‘A Century of Innovation: The Development of Japanese Law, 1868–1961’ in TanakaH, (ed), The Japanese Legal System, University of Tokyo Press, 1976, pp.163–7.
4.
See Article 202 which reads: ‘A person who through his instigation or assistance causes another to commit suicide or kills another at his request or with his consent shall be punished …’
5.
The only major difference between the Japanese and Australian criminal laws is that the Japanese Penal Code has a special criminal provision for euthanasia whereas the Australian codes and common law would classify it as a form of murder.
6.
Buddhism in the case of Japan; and Christianity in relation to Australia. See further DandoS., The Criminal Law of Japan: The General Part, Rothman & Co, Littleton, Colorado, p.110 in note 110, who noted a survey of the official positions of Buddhist bodies conducted by the magazine Gekkan zushoku, which revealed that a large majority of them were opposed to both euthanasia and death with dignity.
7.
For example, the Japan Society for the Right to Die was established in 1976 with the objective of introducing legislation decriminalising euthanasia in which physicians participate. Each Australian state and territory has its own Voluntary Euthanasia Society.
8.
This is not, of course, to exclude younger people who suffer from extremely painful and incurable diseases. The point here is simply that the demographics of the population of Japan and Australia considerably increase the cases of euthanasia.
9.
For a fuller discussion, see Dando, above, ref 6, Chapters 6 and 7; and YeoS., ‘Learning from the Japanese Approach to Criminal Responsibility’, Crim LJ (forthcoming).
10.
Japanese criminal law is statute based and does not possess a common law tradition.
11.
Article 199 of the Penal Code.
12.
See 31 Keishu 747 (S Ct. First P.B. decision, 21 July 1977).
13.
Dando, above, ref 6, pp.138–9.
14.
Whether ‘intent’ should be confined to the inquiry into illegality or extended to culpability, is somewhat contentious: See Dando, above, ref 6, p.150 who argues for such an extension. This controversy is unlikely to be material in practice given that if a court determines that intention is absent, the act will not be illegal and it is unnecessary to proceed to consider culpability in such a case.
15.
Articles 39 and 40 of the Penal Code.
16.
Article 41 of the Penal Code.
17.
Article 202 of the Penal Code, reproduced above, ref 4.
18.
15 KeishuKosai 674 (22 December 1962).
19.
Decided on 27 March 1995 and discussed in KurosuM.OhnoY., ‘Euthanasia in Japan’, Proceedings of the International Association of Forensic Sciences, 15th Triennial Meeting, Los Angeles, California, August 1999, p.104. See also ‘Court lists euthanasia conditions’The Japan Times, 29 March 1995.
20.
The right to life along with other fundamental rights was bestowed on the Japanese people by the Japanese Constitution 1947. Article 13 of the Constitution reads: ‘All the people shall be respected as individuals. Their right to life, liberty and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other government affairs’.
21.
See HosakaT., ‘A Cultural Perspective on Euthanasia’, (1997) 22Tokai J Exp Clin Med279 for an interesting discussion of the common practice of Japanese physicians to conceal from their patients the fact that they have a terminal illness, and the implications of this practice in relation to legal euthanasia.
22.
The Article reads: ‘(1) An act of an insane person is not punishable. (2) Punishment shall be reduced for acts of weak-minded persons.’
23.
10 Keishu 682 (Gr. Ct. Cass., 3 December 1931).
24.
See, for example, s.23A of the Crimes Act 1900 (NSW); s.304A of the Criminal Code 1899 (Qld); and s.37 of the Crimes Code Act 1983 (NT).
25.
See Dando, above, ref 6, Chapter 1.
26.
See WilliamsN., The Right to Life in Japan, Routledge, 1997, pp.93–4.
27.
Indeed, such acts would be classified as murder under s.162 of the Criminal Code Act 1983 (NT) unless the accused was able to successfully plead some partial extenuating circumstance such as diminished responsibility, noted in the main text accompanying ref 24. Another possible charge will be aiding suicide under s.168 of the Criminal Code Act (NT) which attracts a maximum penalty of life imprisonment.
28.
For common law decisions on the defence, see R v Loughnan [1981] VR 443 and R v Rogers (1996) 86 A Crim R 542. For examples of Code provisions, see s.25 of the Criminal Code1899 (Qld), and s.33 of the Criminal Code Act1983 (NT). For a detailed and critical evaluation of the defence, see YeoS., ‘Necessity under the Griffith Code and the Common Law’ (1991) 15Crim LJ17.
29.
The classic judicial statement to this effect appears in the English case of R v Dudley and Stephens (1884) 14 QBD 273. This was applied by House of Lords in R v Howe [1987] 1 AC 417 to deny the closely related defence of duress as an answer to a murder charge. Howe has been followed by the New South Wales Supreme Court in R v Bassett (unreported, NSW Sup. Ct., 29 April 1994). See also the High Court in R v Wilson (1992) 174 CLR 313 for statements strongly supporting the sanctity of life in relation to the crime of manslaughter.
30.
See MendelsonD., ‘The Northern Territory's Euthanasia Legislation in Historical Perspective’, (1995) 3Jl of Law & Medicine136. According to the Honourable Mr N. Dondas MP in his speech in Parliament on 28 November 1996, submissions received by the Northern Territory legislature totaled 1162 of which 814 were in favour of the Bill.
31.
See above, note 27.
32.
For a philosophical view espousing this concept which does not give paramount value to the sanctity of life, see FinnisJ., Natural Law and Natural Rights, Clarendon Press, Oxford, 1980, pp.85–90.
33.
For example, see the speech of the Honourable Mr Michael Lee MP where he quoted a catechism of the Roman Catholic Church decrying euthanasia: Hansard, 7 November 1996, <http://www.aph.gov.au/hansard/hansreps.htm> (22 May 2002); Senator Eric Abetz's complaint that the views of Christians were been unfairly stifled in the debate: Hansard, 18 March 1997, <http://www.aph.gov.au/hansard/hanssen.htm> (22 May 2002).
For example, see the comments on pp.127–8 of the Senate Committee's report, above, ref 34.
36.
The Senate Committee's report, above, ref 34, at p.83 noted that public opinion polls and surveys showed over 75% in favour of euthanasia. The strong support for the Rights of the Terminally Ill Bill (NT) by the Northern Territorians was mentioned earlier.
