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Recent Case of Charlie Gard – Who Knows Best?

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doctors vs judges

The recent Charlie Gard case that has flooded international news is characteristic of the intricate, global controversy: who has the right over life?

Infant Charlie Gard was born with an extremely rare genetic defect known as MDDS, which irreversibly deteriorated his condition to severe brain damage, immobility, deafness and ventilation by artificial means alone. Established under The Children Act 1989, institutional authorities (hospitals, governments) were assigned with giving the final decision on whether a young patient could live, designed to safeguard parents from protecting their own needs rather than what was best for their child.

Whilst Charlie’s parents wanted their precious child to live, all courts of appellate jurisdiction, along with the doctors at Great Ormond Street Hospital, at which Charlie was kept on the life support, thought it was in Charlie’s best interests to end his life rather than allow his quality of life to be irrevocably poor.

So, who should we trust to give the final say about a child’s well-being? Should families, who have given birth to the child, their possession, be given the legal responsibility to overrule the state in their decision? Of course, this brings moral implications, such that the parents would not want to say goodbye to their child and therefore not act in his/her’s best interests.

Let’s now bring in another scenario, whereby the patient is of adult age. Tony Bland sustained detrimental injuries from the Hillsborough Disaster in 1989, which left him in a permanent vegetative state (PVS) until his death in 1993. It was eventually ruled in the House of Lords that the Artificial Nutrition and Hydration (ANH), that was prolonging him living, should end to allow Bland to “die in dignity” (Court order). This case differs from the Charlie Gard case as both the parents and the doctors thought withdrawing ANH was in Tony’s best interests.

Despite differences, the Bland case elucidates the complexity involved in euthanasia cases in the UK. Was it morally right for the state to prevent Gard’s parents from allowing experimental treatment to be made in the hope of keeping their son alive, despite his physical and mental state? Was it morally right for the court to give consent to the withdrawal of ANH and allow Tony to die? How would the result differ if it was unsure how long he would be in a vegetative state for?

Let us assess one last scenario. Terminally ill man Noel Conway, aged 67, launched a legal challenge for his own right to die. He was diagnosed with motor neurone disease, which has meant his ability to move, dress, eat and even breathe has irrevocably diminished. Noel condemned Section 2(1) of the Suicide Act 1961, which prohibited assisted suicide (voluntary euthanasia) under UK law, outlining his deteriorating quality of life and the prospect of “unimaginable suffering”. As he strongly remarks, “Current law means that I will have no control of how my life ends”.

We are once again asking ourselves where ultimate authority lies in determining the end of one’s life. This global complexity should never be looked on lightly and all cases of similar note should be looked at distinctly and intricately.

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Legal Reform: Social Norms and Technology

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In the same way that photoreceptors in your eye respond to light, law responds to the stimulus of social pressure and technological advances. Take smoking as a first example. Rising drastically during the First and Second World War, the number of adults smoking cigarettes by 1949 amounted to approximately 81% of the male population and 39% of the female population. In the mid-20th century, smoking was seen as a social norm, with many advertisements oblivious to the health detriments caused by smoking. Notable slogans claimed fabricated benefits: “for digestion’s sake”, “a feeling of well-being”, and “throat protection against cough irritation”.

It was not until a 1950 report published in the British Medical Journal that evidential research was found, linking smoking with the formation of lung cancer. This was the first of a chain of research that changed the way both doctors and the public viewed smoking, resulting in social pressure for legal reform, in which the government was forced to respond to. In 1965, a ban on television cigarette advertisement was implemented, progressing to a complete advertisement ban in 2005 and most significantly an end to smoking in public was enforced in July 2007. More recently, the debate over cannabis legislation is a hot topic for future debate, with 26 US states currently legalising marijuana in some form. As scientific research progresses in this field of study, perhaps society’s attitudes towards cannabis may change, prompting further legal reform.

New crimes were necessary as computing became more prominent towards the end of the 20th century. The Computer Misuse Act 1990 served as a response to the rise in cyber-crime, most significantly hacking. Further legislation brought in targeted identity fraud and harassment over the web, encompassing cyber-bullying although it has no specific mention. Moreover, the development of cars and their sudden surge in frequency led to more common traffic accidents. Subsequently, laws were implemented to make driving on the roads a safer experience, with drink driving, mobile phone usage, and speeding all becoming new additions to criminal law in the UK.

To conclude, law has successfully evolved in line with social norms and technological developments in order to protect society and respond to pressure from reformist groups. It is vital that the law regularly adapts to modernisation, to prevent a backwards legal system and to protected the welfare of the majority.

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After Taiwan, What’s Next For Asia?

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LGBT rights in Asia

T​aiwan has long been home to Asia’s most spirited LGBT communities, with the hashtag #TaiwanGayMarriageLegalization attracting over 11 million views on China’s Weibo. The country ​has recently joined the United States, Canada and 18 others to rule in favor towards ​constitutional protection of same-sex marriage. But the question of what it symbolises in Asia remains unresolved.

If the law functions to balance the need for stability with the demand for progress, Taiwan’s ​announcement from May acts as a positive testament. The decision favoring constitutional protection confirms growing momentum in the country, where child adoption by unmarried same-sex couples is becoming increasingly popular. Yet until the legislation was passed, only one individual can be recognised as a legal guardian. A condensed look reveals that legalising marriage is bound to cultural and political acceptance more deeply than economic concerns. It implies that the parliament has two years to amend laws regarding same-sex marriages. If not, couples will be permitted to register under the current framework. Both mothers or fathers of the adopted child could be entitled to equal welfare and property benefits.

Around the world, controversies surrounding alternative ideas from LGBT to the businesses of Uber and AirBnB have demonstrated the difficulty of balance. Taiwan’s ruling is undoubtedly a landmark for changing attitudes in Asia, but what does it signify for the rest of the hemisphere, where responses to minority cultural views remain conservative? Although attitudes to homosexuality were relatively liberal during the imperial times in mainland China, the ​Communist revolution in 1949 led to more cautious attitudes. Despite having it removed from the list of “mental disorders” in 2001, the stigma remains. Naturally, responses from China have been two-folded. Some are excited by the milestone, but others remain disheartened to the possibility of achieving legislative change. While many were still rejoicing shortly after the Taiwanese ruling, China’s most iconic lesbian socialising platform ‘Rela’ was shut down without explanation.

Likewise, although LGBT is not prohibited in the South Korean constitution, many remain closeted due to pressure from cultural traditions. But this is understandable, when some of the largest mobile corporations in the country have agreed to ​remove homosexual dating apps on the market, and a presidential candidate openly attacks gay soldiers for “weakening the country’s military.” Whether the rest of Asia could follow Taiwan’s footsteps as the social forerunner is still open to question, and it is certainly unjustified to generalise one of the largest and most diverse continents with a handful of examples. But one can be certain that ​LGBT continues to grow as an influential social dynamic in many Asian societies. ​Although t​he tug of war between traditional cultural views and changing public opinion will persist, ​Taiwan’s ruling could induce a chain effect in the long term.

When asking the youth “what do you dream of the world,” perhaps many would speak of tolerance. Such an abstract idea will undoubtedly carry a fluid definition, but obscurity is both its limitation and its beauty. The road to constitutional desegregation in the United states during in the 20th century was a difficult journey back and forth, and the same will go for LGBT in our time. But acceptance, before any legislative change is the first step that can go a long way. Regardless of whether one is in support of Taiwan’s ruling, it is an optimistic sign that ​societies are increasingly being warmed to the rights of gender and sexuality minorities through activism. It signifies not only acceptance of LGBT, but acceptance of cultural differences and their rights to equality before the law.

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Should Parliament Be Able to Overrule The Referendum?

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On 23rd June 2016, the United Kingdom collectively voted to end its 40-year-old membership of one of the world’s largest and most influential economic and political institutions, the European Union. Despite the recent rise of euroscepticism throughout the UK, the referendum outcome shocked both Europe and the rest of the world. However, regardless of whether the British electorate made the right decision, the question whether Parliament should be able to overrule the referendum result remains controversial. Arguably, it would be catastrophic for a Western democracy such as the United Kingdom to ignore the views of the majority, however slender that majority. Conversely, it would be ironic to deny Parliament the opportunity to overrule the result after the Brexit campaign battled so long and hard to “regain parliamentary sovereignty”.

Ultimately, Members of Parliament are elected to represent their constituents. This makes the Parliamentary process a system of indirect democracy, in contrast to the direct democracy activated by a referendum. The challenge that now arises is this: although a majority of individual citizens has voted for Brexit, a majority of MPs, representing constituencies, are opposed to Brexit. How can MPs vote in favour of a measure with which they profoundly disagree?

While our elected representatives may be more experienced and intellectually aware of the issues, their representative role requires them to use this experience and awareness in the service of the will of the people. This is indeed the entire rationale of indirect democracy. If Parliament did decide to ignore the referendum result, it would not only deny the will of the people, but also manifest a dangerous tendency to exploit unrestrained power; we could be left with totalitarianism masked as democracy.

With a 75% pro-Europe stance in the House of Commons, it is inevitable that Parliament will argue that the ‘Leave’ vote was wrong and imprudent. The Remain campaign insisted that Brexit would mean the loss of exports, investment and millions of jobs. Equally, Remain claimed that the EU has been responsible for securing peace amongst previously warring western European nations, and that Britain will now lose its influence in the world. If Parliament truly believes that it is in Britain’s best interests to stay in the EU, is it not Parliament’s moral responsibility to intervene to stop Britain committing political suicide? If Parliament were so adamant that it was to Britain’s advantage to remain, it should not have voted to hold a referendum by a six to one majority. By doing so, it effectively abdicated parliamentary sovereignty on this issue and transferred its power to the people. Referendums are notoriously the favoured instrument of weak governments.

But consistency demands that having put the issue to the vote, Parliament accepts the result, however dismaying. It would be frivolous and possibly contemptuous for Parliament to accept the decision of the people only if they voted in the “right way”. This leads to the question whether the function of Parliament is to represent the views of the people or to know better than the people. Constitutionally, democratically and morally it clearly should be the former. For in the latter case, quis custodiet ipsos custodes?

Nevertheless, a common stance adopted by many europhiles is that the referendum was merely advisory, with Parliament having the final decision. Legally, a referendum result is not normally binding on Parliament. Over 1,000 lawyers across the UK signed a letter addressed to then Prime Minister David Cameron, urging this point. If this were the case, Parliament would have a legal and moral right to either accept or overrule the referendum decision. However, this was clearly not the purpose of the referendum. The Conservative General Election Manifesto of 2015 stated, “We believe in letting the people decide: so we will hold an in-out referendum on our membership of the EU before the end of 2017.” Ever since the Tamworth Manifesto, it has been customary for governments to honour the pledges made in their manifestos, on the assumption that they have been elected to fulfil them. Hence, in the opening speech debating the EU Referendum Bill in the House of Commons, then Foreign Secretary Philip Hammond referred to the Act as “a simple but vital piece of legislation to deliver on our promise to give the British people the final say on our EU membership.” Any opponent of the referendum decision would therefore be disingenuous to suggest that the referendum was merely “advisory”; it was a commitment to give the British people “the final say on our EU membership”. Parliament would be outraging our democratic traditions by overruling the decision.

Yet a narrow majority raises the spectre of the tyranny of the majority. The Leave campaign won by a very narrow margin; arguably, a 1.9% majority should not be sufficient to radically change the future of the country. However, the smallness of the majority is no justification for Parliament to overrule the decision; Parliament did not include any provision in the European Union Referendum Act of 2015 subjecting the result to a minimum percentage vote in favour of either remain or leave. It would be unconstitutional of Parliament to do so retrospectively.

Another argument against implementing the result is the popular perception that it was illegitimate due to the extent of misinformation and untruths propagated by Brexiteers. With regard to the alleged campaign fabrications, unless the electorate had been completely deceived by the Brexit campaign, this too is no justification for Parliament to overrule the decision. If every election were branded illegitimate due to campaign lies, no campaign would be free of the accusation of misleading the public. There is no rationale in cancelling elections and referendums due to arguable deception by one side.

While British departure from the European Union may be politically and economically disastrous, overruling the referendum decision would be a huge step backwards for democracy. An economy can recover; political bonds can be re-formed. Democracy is too fragile and precious to endanger for the sake of short-term expediency.

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