THE COLOMBIAN CONSTITUTIONAL COURT
by JUSTICE CARLOS GAVIRIA DIAZ
The Colombian Constitution provides a solid basis for decriminalizing merciful homicide, when a person who is undergoing intense suffering caused by an incurable illness, requests that it be put to an end, which implies causing death. I will briefly refer to the most important ones.
1. Article 1 of the Constitution establishes that the Republic of Colombia based on the "social rule of law" is pluralistic and is founded on the respect for human dignity.
2. Article 16 of the Constitution grants every person the right to develop his personality freely, with no limitations other than those imposed by the rights of other and the law.
Regarding this limitation, the Constitutional Court has established and consistently reiterated a doctrine by which, norms which are under the Constitution may not, guarded on the intention of setting plausible limits to freedom, affect the core of this right.
These norms lead to the following conclusions.
1. The individual is recognized by the Constitution as an autonomous subject, which means that it is he who shall choose the principles and moral values that should guide his conduct. The State, therefore, assumes that the person is able to distinguish right from wrong, good and bad, and act accordingly, and the organs of the State may not interfere in his decision. This evinces the contrast between a democratic and liberal State (such as the Colombian State) and a paternalist State, which treats its citizens (or rather, subjects) as children who mush be led through the right path by their father.
2. Such is the reason why pluralism is an ideal complement to this liberal philosophy: there is not an exclusive, unique or correct perspective for establishing what is good or what is right. Pluralism implies, of course, choosing a path amongst all those available: in this case, amongst all the possible meanings and purpose of life, because the idea of life as given by a Supreme Being or by nature is but one of the options available.
A person may thus consider life as sacred good, according to certain religious beliefs, or deem it valuable (though not sacred) under certain circumstances or even not valuable at all.
3. It has been argued against the decision, which decriminalized active euthanasia under strict and precise conditions, that it goes against article 11 of the Constitution which, states that the right to life is inviolable.
We should not even take into consideration, if it was not for the fact that such criticism ha been brought forward by experts with solid judicial formation, and some of the Justice of the Court who disagreed with the decision. Because it is evident that if life is a right, no one can legitimately deprive me of it against my will, but I can freely choose between life and death, the same way that I can choose to stay still as part of my right to move freely. Something quite different is to believe (according to one's faith) that there is an obligation (a duty) to live, whatever the circumstances that one must face. This belief is, without a doubt, legitimate and so is the conduct that derives form it, but that is not sufficient for the Sate to forcefully impose them upon those people who do not agree with it.
This was impeccably expressed by Professor Gustav Radbruch, - the eminent German philosopher- when he wrote that in the liberal State – philosophically speaking – law and morals do not relate to each other as duties but as rights. In other words, each person can claim from the State the right to a free environment where he can live his moral life and act according to his beliefs. But, he may not demand from it, the imposition to all others, as a legal duty, of what he lives as a moral obligation. For example: it is not legitimate for the State to make a conduct punishable, for the sole reason that Catholics consider it sinful; all that they have a right to demand is that it is not made obligatory to them.
If life is considered a right, and not a duty, its holder may legitimately continue living, or choose to put an end to it. And if he is not able to do it himself, he may request assistance from a free subject, who may accept or refuse to do it. And if he takes the first choice, he may not be punished for it, for he has not violated any right belonging to anybody. There is a basis to consider his a criminal action, or punish it. If he accepts, according to the aforementioned principles, that life is a disposable right and (there is nothing in the Colombian legal system establishing the contrary) whoever acts to make it effective; taking into account, that the holder of the right can not do so. And he unequivocally makes a request in this sense, may not be punished for his action, for there is no object to protect.
Well, if, as some people hold, the Colombian State is in favor of life, (as it doubtlessly is) values it as a good. And as a consequence is always under the obligation to protect it, it must be said that a good can't continue to be such when the moral subject (its holder) no longer values it as such. Only a paternalist State, (and Colombia fortunately is not) may wish to substitute the person in a radical decision which concerns her alone. He who, in these circumstances, with the best of intentions agrees to put an end to the sufferings and life of someone, who can't bear them any more, has not suppressed any good. He has, in effect, removed a miserable situation, through an act inspired by benevolence, solidarity and altruism.
4. Open and straightforward decriminalization of active euthanasia (will all the restrictions and precautions imposed and taken by the Constitutional Court) erases the fragile and pharisaic distinction between omitting a behavior which would prolong the life of someone terminally ill, and acting deliberately to put an end to it. Why is the first action correct, and the second one, morally reproachable? Is it because in the first one, I am not the author of death and in the second one I am? How frivolous this scholasticism to ease one's conscience! For the result is the same (death) and identical is the purpose of the act of the omission (the occurrence of it). And all because the command thou shalt not kill is taken in an absolute manner (even though, generally, those who reason in such a way are likely to accept the death penalty).
Because, if I am more responsible for the result of my actions than for the outcome of my omissions, the reasoning could be turned upside-down: isn't if better to direct my action deliberately to extinguishing the unwanted suffering of a person, than expecting this benefit to arise form my lack of action?
5. This attitude is strengthened by a prejudice as hard to evict, as it is to defend it reasonably: that life is the supreme good.
The fact that all the rest depends on it, seems evident, because it is only in life that good and bad take place. However, that does not mean that it must be considered the highest. Aren't we taught to follow the example of heroes or martyrs who give their lives for "goods" they have considered higher such as faith, one's country, humanity, or truth?
Socrates and Christ are paradigms of morality. The first one judged it better to die than to live without dignity: outside Athens, or in it, without asking his impertinent questions, as the Council of Five Hundred proposed him to do. And the second, if we are not misinterpreting his message, considered it good to die in order to save mankind. Both conducts lead to the conclusion that keeping life is not always the best objective possible.
Nor is causing another person's death the worst evil. Not killing is but a corollary of previous principle: Neminen laedere; and it seems clear that it could be worse to torture someone or force someone to suffer, than to suppress his or her suffering. And the latter is what the hypotheses of consented merciful killing is about. The purpose of the agent is altruistic and good, according to one of the most precious human rights contained in the European Declaration of Human Rights: the right not to be forced to suffer.
If the taking of life without the consent of its' "owner" is an atrocious crime, it is similar act to impose the duty to live to someone who rightfully wishes not to continue doing so.
6. Such considerations led the Colombian Constitutional Court, on May 20, 1997, (in a decision that I had the honor to write) to declare that consented merciful killing may not be punished, because the conduct of the agent is not criminal.
After this decision, criticized in a civilized manner by those who do not share it but who are in a position to argue, and unworthily made anathema by the fanatic, we had the opportunity to read Hans K-ng and Walter Jens' very lucid and brave text "Dying with Dignity", a beautiful piece of work done from most pristine Christian Theology, by thinkers who can be called "independent from fossilized orthodoxies", but may not be attacked for lack of wisdom. In one of the chapters of this book, they assume the conditions laid out by the Dutch Protestant theologian Harry MJ Kuiter for a legitimate euthanasia. They are:
1. The request must be made by the ill person himself, and not his family or the people who take care of him, and it must be evident for the Doctor that the request is adequately thought and consistent (perhaps the expression of a non-momentary death wish?)
2. An unbearable and painful state (or felt as such by the patient?) must justify the request.
3. Euthanasia must be exclusively performed by the Doctor, who may aid a sweet death, and not a failed and painful one."…
The reader of the decision of the Court may judge whether the limitations imposed in it differ substantially from those supported by such eminent thinkers and theologians.
In general terms, these were the reasons that led the Court to decriminalize merciful killing when, with the concurrence of all the circumstances mentioned in the Colombian Criminal Code (merciful killing in order to put an end to intense sufferings derived from an injury or a grave and incurable illness) the passive subject expresses his consent.
The excessive precautions taken by the Court in taking such an important step, let to an evident contradiction, about which I wrote a dissenting opinion: it justified consented merciful killing but not assisted suicide, when (admitting that one conduct differs from the other) it is easier to justify the latter than the former, even more when, neither attempted suicide nor suicide exist as crimes under Colombian law.
As in many fora and academic debate that have take place after the decision was publicized, many de facto arguments have been held, in which the occurrence of the contemplated hypotheses is questioned; that is, that the person undergoing grave physical suffering, derived from an incurable illness (terminal, the Court added), really should wish to die and that his or her consent may rally be taken into account. It should be said that the decision implies the concurrence of those elements: the realization of the hypotheses must be verifiable through reliable scientific means.
It is obvious that the passive subject can not be an "absolute incompetent", but a subject with intact mental condition at the moment of the decision, and where no paternalism could possibly be argued.
Of a similar kind are the arguments directed toward discrediting the decision, by qualifying it as a disaster in a society like ours, where the rate of violence is so high, to give carte blanche to legally attempt against life.
Once more, what the decision says is that in the precise circumstances described by Colombian law, duly proven the conduct may not be punished as a crime, because there is nothing to protect.
Those who have held such positions have received and acute and impeccably logical answer: "how fortunate that, in a country where so many people die against their will, there is now room for someone who decides to end his life, to do it!"
Another argument used against the decision is that the Court ignored the existence of palliatives, that are so advanced and good these days. Once again, the answer is clear: the Court does not ignore the existence of such methods and scientific progress in the field; but, is it legitimate to force a person who can not or does not wish to receive this type of care (and the patient can have more than one reason to refuse it) to accept it, casting out therefore, the possibility of accelerating death? The categorical answer, from anyone who respect dignity and freedom must be NO.
What the Colombian Constitutional Court has done is not, as its critics intended to show, an apology of death, but the rescue of the morally responsible, dignified and free subject.