Eubios Journal of Asian andInternational Bioethics
EJAIB Vol. 25 (3) May 2015
www.eubios.info ISSN 1173-2571
Official Journal of the Asian Bioethics Association (ABA)

Copyright ©2015 Eubios Ethics Institute(All rights reserved, for commercial reproductions).

Contents

page

Editorial:
65- Darryl Macer
Surrogate Motherhood and Yoruba African Culture66- Aborisade Olasunkanmi
Enhancing professional obstetric care with competence
in clinical bioethics
69- Nasrudin A.M., Shulhana Mokhtar
Legal Pluralism and Land Administration in West Sumatra:
Implementation of Local and Nagari Governments’Regulations on Communal Land Tenure72- Hilaire Tegnan
It is time to think! Changing faces of family and Marriage
and Parenting
78- Jayapaul Azariah
Ethical Issues of Clinical Ethics and Research Ethics in theDeveloping World and Pakistan: Is there any Solution? 81- Zoheb Rafique
Reflections on Grassroots Democracy: Its Role in Creating
Resilient and Sustainable Communities
82- Christopher Ryan B. Maboloc
Breaking the Vicious Cycle of Hate and Revenge: The TrueLife Story of 'Wounded Tiger,' A Lesson From History84- Timothy D. Boyle
An Analysis on the Intentionality and a Philosophical
Disclosure on Ethics and Morality: Two Filicide cases as
Examples of Criminal Behaviour of Persons Diagnosed
with Mental Illness87- Bing H. Tang
An integrated and multi-dimensional approach for teaching
medical ethics in Universiti Sains Malaysia (USM) basedon MERCI
93- N. Yaacob, S.B. Ismail, Zabidi A. Hussin
ABA Renewal and EJAIB Subscription
96

Editorial address (and all correspondence to:Prof. Darryl Macer, Ph.D., Hon.D.
Provost, American University of Sovereign Nations(AUSN), 8800 East Chaparral Road, Suite 250,
Scottsdale, Arizona, 85250 USA
Email: dmacer@au-sn.com
darryl@eubios.info
http://au-sn.com
http://www.eubios.info
Registered address of EJAIB: P.O. Box 16 329,
Hornby, Christchurch 8441, New Zealand

Editorial: A Sustainable WorldThis issue of EJAIB was completed on the third day of the
UNU-IAS / Kumamoto University Second Joint Workshop on
Finding Future Visions for a Sustainable World: Dialogues
Methodologies for Social Change, which included a number ofresults from a two year process involving Kumamoto
University, in cooperation with Eubios Ethics Institute, towards
peace and conflict resolution. A theme running through manyof the papers was conflict resolution following the Fukushima
Tepco Nuclear Disaster. In 2013 during the first workshop
some of the participants started dialogue work to resolve a
number of issues facing local and regional communities
affected by disaster. Some of these programmes have beensources of encouragement for rebuilding of communities.
Since 2010 Eubios Ethics Institute has been running aseries of workshops and held 14 international youth forums
on peace and looking beyond disaster, other academic
forums and many dialogue methodologies are useful torebuild a sustainable society. Some of the conclusions ofthese dialogue processes will be published in the future. In
May YPA10 will be held in Indonesia, 60 years after theBandung Asia-Africa Summit, and in June LBD6 will be heldat AUSN in Arizona. It may be too late for readers to changeplans and join these, but we welcome people to Nepal in
November 2015 for LBD7, and to YPA11, which will be held
somewhere soon also. ABC16 will be held 3-8 November
2015 in Boracay, the Philippines.
The future of society is evolving as reproductive
technologies offer new options for the future. Aborisade
Olasunkanmi explores how surrogacy may be accepted in
Yoruban culture, in Nigeria. Jayapaul Azariah looks at thequestions for society as same-sex marriages are increasingly
accepted. What society do we want?
The history of colonization is still impacting the way that
communities can have access to their land in Indonesia, as
discussed by Hilaire Tegnan. Democracy is critical to disaster
resilient communities, as Christopher reports in thePhilippines. Bing Tang examines the ethical and legal issuesof the insanity defense in murder cases, in two cases where
mothers killed their children. Tim Boyle looks at a recent
book, Wounded Tiger, and how forgiveness is a moresustainable strategy for social survival compared to hate andwar. Medical ethics are explored in 3 papers in the issue,
including the last one, which documents the teaching of
medical ethics at USM. Some of the papers in this issue
thcome from the Asian Bioethics Association 15 Conference,
held in Japan in 2014. We look forward to publishing more
papers soon.
- Darryl Macer

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Eubios Journal of Asian and International Bioethics 25 (May 2015)

Surrogate Motherhood andYoruba African Culture- Aborisade Olasunkanmi
Ladoke Akintola University of Technology Ogbomoso
P.M.B 4000 Ogbomoso, Nigeria
E-mail: aborisaderose@yahoo.com, Omoboy41@gmail.com

Abstract
This paper examines surrogate motherhood and its
acceptability in Yoruba African society. We discovered that
South Africa had already accepted it and there is a law to that
effect in their child care act. Though some other countries inAfrica also have a child care act, little is said about
reproductive technology. This paper examines theacceptability of this technique among the Yoruba in Nigeria.
The practice of bearing a child on behalf of another woman is
not a new issue, but is not common in many countries inAfrica. It raises many ethical issues in the African society
especially among the Yorùbá society. The issues raised are
moral in nature but should be left to individual decision,
because for the Yoruba, when it comes to the issue ofautonomy and competence as regards deciding on individual
fate, they would metaphorically claim that ‘bose wuni laseimole eni’ (one determines one’s faith the way one deems fit).
Key words: Africa, Autonomy, Culture, Nigeria, Surrogacy,
YorubaIntroduction
Surrogacy can be defined as bearing a child on the request
by another family or person; the practice of bearing a child on
behalf of another woman. A child, in this case, is born not outof the maternal instinct of the surrogate but due to thecommissioning couple’s or individual’s intention to become
parents. There are three forms of surrogacy. The first occurs
when through sexual intercourse; the husband of an infertile
woman impregnates another woman for the purpose ofbearing a child for the couple. The second method involves
using artificial insemination of the surrogate with the sperm
provided by the prospective father. The third method is in vitro
fertilization, and uses sperm and eggs provided by the genetic
parent to produce an embryo (a test tube baby) that is now
implanted into the surrogate (Brinsden 2003).
This rapid development in medical technology haspresented ethical and moral dilemmas that directly impact on
the way we understand reproductive ethics. Since the firstsurrogate baby was delivered in the 1980s, the procedure has
become an increasingly viable alternative for a variety ofpeople. This includes couples who are unable to havechildren of their own for medical reasons. When a couple isunable to produce, either because the male or female issterile, the couple’s dream of having a family, or raisingchildren and having someone to take care of them when they
get older is shattered. In this circumstance, the couples whowant to have children have only a few options. They canchoose to adopt, or they can take advantage of reproductive
technology and have a child through assisted reproductive
methods. The use of assisted reproductive technology has
given rise to moral and religious questions. These include: Is
it against the laws of nature to produce a child in alaboratory? Is there any law guiding surrogacy in thosecountries that allow the procedure? Is it morally permissible
among the Yoruba African countries for a woman to carrypregnancy to term for another woman bearing in mind thecultural orientation of African? These and many otherquestions will be attended to in this work.
Surrogate motherhood and the Law

In some countries such as Austria, Germany, Italy and
Switzerland, surrogacy is prohibited, and severe sanctions
are applied for doctors who arrange a surrogacy for theirpatients or for mediators who help an infertile couple to find asurrogate mother. In Germany (Schreiber 2002), for instance,
the restrictive law for the protection of embryos strictly
prohibits artificial insemination of a woman who is willing tohand the child over to commissioning parents upon birth inaccordance with a surrogacy agreement. Criminal sanctions
are applied for noncompliance, ranging from heavy fines toimprisonment.
Surrogacy
agreements,
mediationinsurrogacy, and related commercial and non-commercial
advertisement are prohibited by the law.
In Italy the Law on Norms in the Area of Medically Assisted
Reproduction (Reppublica Italiana 2004) completely bansheterologous (third party) reproduction, including surrogacy.
The use of medically assisted procreation techniques islimited to cases of sterility or infertility established andcertified through a medical act within officially marriedheterosexual couples only, banning from the IVF clinic
heterosexual couples just living together as well as single
women and men who, though fertile, for such or anotherreason would like to use services of reproductologists tobecome parents. The law establishes severe sanctions for
those who realize, organize, or publicize gamete or embryo
trading or surrogate motherhood.
In France, surrogacy is not mentioned directly in the law perse, but since 1994, according to Article 16–7 of the Civil
Code, “Any convention related to procreation or gestation foranother person is null and void.” Furthermore, in terms ofcriminal penalty, any person participating in a surrogacy
program whether it consists of artificial insemination or adonor’s embryo transfer commits a crime punishable by athree-year imprisonment.
In other countries like Australia, Canada, Greece, Israel,South Africa, and the United Kingdom, surrogacy is allowed
on a noncommercial basis only. In the United Kingdom, forinstance, only expenses incurred by the surrogate mother canbe reimbursed, and it is a criminal offense to advertise that
one is willing to enter into a surrogacy arrangement. Israel
legalized surrogate motherhood in 1996 (Siegel-Itzkovich1996). According to the law, the commissioning father must
supply the sperm, and the ovum must come from either thecommissioning mother or from a donor who is not thesurrogate. The surrogate must be an unmarried Israeli
resident unless a special committee approves a marriedsurrogate in special cases. The surrogate may change hermind and ask to keep the baby, but only with a court’s
approval. The surrogate can be paid only for legal andinsurance expenses and compensated for her time, loss of
income, and pain.
Surrogacy has been established as a legally recognizedprocedure in South Africa. There is a child care law that takes
to cognizance the assisted reproductive technology. The
Children’s Act contains specific requirements relating to thecontents of surrogate motherhood agreements. These
agreements must be in writing and confirmed by the High
Court. This specific requirement makes it clear that a written
contract between a surrogate mother and commissioning
parents will be invalid if not confirmed by the High Court.
From these literature reviews, we discovered that thesurrogacy motherhood is a reproductive technology that is
highly acceptable in both developed and developing world.
Various laws have been put in place to guide the operation of
the system. Though many prohibited the system and many
only put in place a very tough law to caution the operator of
the system, certainly surrogacy motherhood is a worthwhile
reproductive technology that put smile into the face of a would
have been a barren women, in this work we want to examine

Eubios Journal of Asian and International Bioethics 25 (May 2015)
the conception of the Yoruba about surrogacy motherhood asa reproductive technology that assist women in bearing theirown baby.
Surrogacy Motherhood and Yoruba
In Africa, Yoruba refers to a group of cultures linked by acommon language. A group that inhabit the South-Westernpart of Nigeria, bounded by the Niger River and the easternparts of Benin Republic, formerly Dahomey, and the westernpart of Togo. Among the Yoruba, infertility has been regarded
for centuries as a divine punishment; childless people havetraditionally been viewed as deficient. Infertility inevitably
leads to moral suffering and a lower social status. The
inability to have children is one of the main causes of divorce
and broken homes among the Yoruba’s. A Yoruba man may
marry several wives and even engaged in extra marital affairs
to see that they have a child of their own. The same isapplicable to most African women. With the advancement inreproductive technology that put a smile of the face of would
be barren women, we want to look into some of those things
that may stand in the way of Yoruba men and women who
may likely found themselves in this circumstance.
Assisted reproductive technology involves money. The
number of people below poverty line in African setting is veryhigh. Many people in Africa are not only below the poverty
line, but also poor for long and sustained periods. They arechronically poor, emerging only briefly from poverty. Indeed,
the incidence of chronic poverty in sub-Saharan Africa is thehighest among all regions. Dudley, B. J. (1975) says that thepeople living on less than 1USD a day in sub-Saharan Africa
exceeds that of the next poorest region that is south Asia by
about 17%. So poverty in Africa is multidimensional and selfreinforcing. Poor people have low incomes and consumption
levels, and many depend for their livelihoods on low
productivity subsistence agriculture or work in the informal
sector. Wage earning workers have low salaries, limited
protection and frequent bouts of unemployment. The poor are
inadequately educated and tend to be less healthy than therest of the population. To make matters worse, poverty in
Africa is not gender neutral. What we are talking about here
has to do with money. Reproductive technology involves a lotof money, it is not free. Where would a person living on lessthan 1USD per day get the money to do what is expected in
executing reproductive techniques, that would give him or her
the expected baby. That is the reason why many home in
Yoruba land remain desolate, because they don’t have heir
apparent that will inherit their linage.
Furthermore, from a conservative social perspective,
assisted
reproductive
techniques
involves
thecommodification of babies, since gestational surrogate
contracts usually involve payment to the gestational surrogate
in exchange for carrying the child for an infertile
couple. Producing a child through surrogacy turns that childinto a commodity or merchandise, in return for certain
compensation or a fair market price, provided that an off
spring is offered with a specific or selected genetic makeup.
Even more, the child as a commodity or a merchandise
manufactured
throughsomepatented
reproductive
technology and procedure could be meant for only the rich inthe society. It is no different than buying any other commodity
or merchandise in an ordinary market. Human value thenbecomes meaningless when it is meant for only the rich.
In addition, a Yoruba man sees the commodification ofbabies as a violation of woman’s claims to respect andconsideration. Elizabeth Anderson (2007) supported thisargument in two ways; first, by requiring the surrogate motherto repress whatever parental love she feels for the child,these norms converts women’s labour into a form of alienatedlabour. Secondly, by manipulating and denying legitimacy to

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the surrogate mother’s evolving perspective on her own
pregnancy, the norms of the market degrade her. The
legislation guiding the operation of surrogate motherhood
stipulated the conditions to be met in the operation of assisted
reproductive technology. The surrogate mother underappropriate condition is expected to hand over the baby after
the necessary agreement is met. Thus forcing her to repress
whatever love or feelings she may have for the child. Her
interactions with the child may be base on agreement if
possible, she therefore become a stranger to her own
pregnancy.
From a religious perspective, Islam, Christianity and African
traditional religions do not permit reproduction through meansother than natural procreation because a child is seen as a
"gift" from God rather than a fulfillment of a couple's
psychological needs. More so, traditional African religion,
Christianity, and Islam attaches a unique and continuing
moral and spiritual significance to individual persons. Since
the world is God's creation, all the elements that make it up
have an appropriate value and attain a corresponding ethicalstatus. However, the status bestowed on each humancreature by God the Creator renders an immediate ethicalconsequence of theological understanding that no humanbeing is available for instrumental use of any kind.
Another problem raised over this “artificial” technique of
reproduction is that it destabilizes the traditional conception of
the family. This method of reproduction has disrupted what
was once described as biological rooted and racially closed
family. The risk of confusing family lineage and personal
identity arises if the child and the couple establishes relations
with the surrogate and the surrogate’s family. It can be argued
that the offspring of surrogacy arrangement may be deprivedof important information about their heritage; they may lackvital information about their biological parent which could be
important to them medically. This raises a lot of questions;
What is the place of a surrogate child in an African setting?
What family tree would such a person claim? Is he going toclaim the same lineage with the donors? Is he going to claim
the same tribe with the carrier? In the African community,
family inheritance is highly placed; there is no African man
that does not have inheritance. Now the question is: is hegoing to share in the family inheritance of the donor? Anothercrucial point is the issue of collectivity of honor. This applies
to social groups such as families, lineages and kin groups.
Within such groups, an act of dishonor by a single member
will affect all others just as a single member could bask in thehonor of the group. Thus, where status is ascribed by birth,‘honor derives not only from individual reputation but fromantecedence’ (Rivers, 1973). Mbiti (1970) has classically
proverbialized the community determining role of theindividual when he wrote, “I am because we are and since weare, therefore I am”. The community, according to Pantaleon(1994), therefore gives the individual his existence andeducation. That existence is not only meaningful, but also
possible only in a community. Thus in the Yoruba land, no
one can stand in an isolation, all are member of a community;
to be is to belong. Which community can we group surrogate
child. Yoruba community is so personate with the issue of thesource (Orirun eni), the community gives each person
belongingness and cultural identity for self-fulfillment andsocial security. It may not be possible for a surrogate child toshare anything in collective honor; because the child does notcome into being through a process that is known to African
conception of reproduction.
The procreation among the Yoruba takes place between thehusband and the wife, within the secrecy of their home. Even
the occupier of the next room in the same house may notknow until pregnancy started growing. But today, procreation
has become a collaborative process that takes place in the

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Eubios Journal of Asian and International Bioethics 25 (May 2015)

public spaces of the laboratory and the clinic. Within public
spaces, assisted reproductive techniques such as artificial
insemination, in vitro fertilization, embryo transfer andsurrogacy allow multiple individuals to participate in a couple’s
attempts to conceive. The private act of love, intimacy andsecrecy of creating a child as Sarah Franklin (1995) argues
has become a “public act”, commercial transaction and aprofessional managed process. Yoruba man may notsubscribe to this technique because they value secrecy inprocreation; any attempt for anybody to do this in public isregarded as taboo. Yoruba communities in Africa have a wayof placing sanctions on erring individuals. This sanction
serves as a moral constraint on individual actions in thecommunity. Moral constraints are rational constraints and so
acting immorally is a way of being irrational. So, African
societies, as organized and functioning human communities,
have undoubtedly evolved ethical systems ethical values,
principles, rules intended to guide social and moral behavior
in the public.
More so, moral commitment in Africa is very low. Morality isused to describe, justify and recommend the correct form ofaction; while value describes different beliefs of both a moral
and non-moral nature, and normative refers to the overall
framework within which moral and non-moral activities occur.
Moral values can be divided into two different categories:
universal moral values and non-universal moral values.
(Omoregbe.1990) Universal moral values are those values
that are shared by all peoples regardless of the cultural andmoral position occupied by them. Examples of universal moral
values include those enshrined in the Universal Declaration of
Human Rights, such as liberty and equality. As decent andresponsible members of the international community, we havea responsibility to adhere to these values and to commend
them to others. Non-universal moral values are not as binding
as the values referred to above. These are either inherent inor peculiar to a particular culture or nationality. Moralcommitment is a species of commitment to a counter factual
condition: that is, a standing commitment to live up to moral
demands (Muganda 1999). The counterfactual-condition
account of moral commitment can successfully defuse theworries they express about the effects of absence of moral
commitment in our society. Today, most countries in Africa
are now deeply infected by the deadly disease called immoral
or unethical conduct. Almost all Africa’s institutions including,political, social and economic institutions manifest thissymptoms of indiscipline. In this situation, a Yoruba man finds
it practically impossible to trust anybody to the extent of
entrusting such a large sum of money and their hope on
anybody. Assuming a Yoruba couple chooses assisted
reproductive methods to have a child; there is tendency thatproblems may arise if the arrangement between the parties, ina surrogacy contract, goes awry.
The next question is; who is legally entitled to keep thechild? Who is the mother? Who is the father? What rights
does each possess? Further, assuming the parties have nocontractual conflicts but the child is born with some birthdefect. Should the surrogate mother by liable for tort? Should
it matter whether she abused drugs during her pregnancy?
Should the child have a tort claim against the surrogate?
Legislation addressing these issues seems to be lacking inmost states in Africa. Even if the legislation is available there
is moral laxity; lack of independence of the judiciary, lack ofproper enforcement of laws, corrupt law enforcement agents,
corruption in the judicial system, and very slow process oftrial, lack of good welfare for the judges that made many ofthem to take bribes and bypass judgment. All these make anordinary Yoruba man too shy away from any venture that may
eventually led to serious problems due to lack of trust. What
we are saying is that; there should be a moral commitmentthat will restore the moral fiber of the Africa society. Africans
should aspire to formulate a framework that will establish a
broad consensus on the kind of values the nation should
uphold, as well as a standard against which the moral
character of citizens will be measured.
Conclusion
The right to reproduce is a fundamental and an innate
human right. Surrogacy is the only way to overcome bothbiological and social infertility. It provides medically infertile
couples as well as socially infertile individuals the chance tohave a child of their own. There is no doubt that there aremany obstacles between surrogate motherhood as areproductive technology and Yoruba culture but “professional
opinion has shifted to a position where surrogacy isrecognized as an appropriate response to infertility in somecircumstances” (van den Akker 2007). So therefore, thisseems to be the best option today to put a smile on the facesof disadvantage individuals that may not be able to have ababy in the normal way. Any unjust and illogical stand by the
Yoruba to deny those that can avoid the expenses the right toreproductive surrogate may not speak well for the community;
because a woman without a child is like a plantain plantedby the riverside which has no seed (Obìrin tó wá’yé tí kòbí’mọ dàbí ògèdè
tí a gbìn sí ipa odò tí kò ní èso). This issue
̣should be left to individual decision, because for the Yoruba,
when it comes to the issue of autonomy and competence as
regards deciding on individual fate, they would metaphoricallyclaim that ‘bose wuni lase imole eni’ (one determines one’s
faith the way one deems fit). Legalization or acceptance ofgestational surrogacy is to defend the surrogate’s interests aswell as those of the intended parents and the baby that will beborn after the surrogacy. Without any doubt, gestationalsurrogacy should be allowed as the last option in medicallyassisted procreation if and when the interests and rights of allparties involved are taken into account and are protected bylaw.
References
Brinsden P. (2003) Gestational surrogacy. Hum Reprod Update.
9(5): 483–491.
Dudley, B. J. (1975), “Power and Poverty” in Poverty in Nigeria:
Proceeding of the 1975 Annual Conference of Nigerian Economic
Society.
Anderson, Elizabeth (2007) “Is Women’s Labour a Commodity?” In
Ethics in Practice: Blackwell Philosophy Anthologies. Edited byrdthe L. Hugh, 3 Edition. Oxford: Blackwell Publishing, pp. 242253.
Franklin, S. (1995) “Postmodern Procreation: A cultural Account ofAssisted Reproduction. In Conceiving the New World Order. The
Global Politics of Reproduction. Edited by Ginsbury, F.D andRappi, R. Berkeley: University of California Press.
Mbiti, J.S. (1980) African Religions and Philosophy. London:
Heinemann.
Muganda, A.A. (1999). The Corruption Scourge in Africa: its causes,
impact and control.
Omoregbe J I (1990). Ethics for every Nigerian. Lagos: Shola andAssociates.
Pantaleon, I. (1994). Metaphysics: The Kpim of Philosophy. Owerri:
IUP.
Reppublica Italiana, Legge 19 febbraio (2004) Norme in materia di
procreazione assistita.
Gazzetta Uffi ciale della Repubblica Italiana. Serie generale 45, 512, February 24.
Rivers, (1973) “Honour and Social Status”, 27; Hatch, “Theories ofSocial Honour”, 23.
Schreiber H. The legal situation regarding assisted reproduction inGermany. Reprod BioMed Online. 2002; 6: 8–12.
Siegel-Itzkovich J. (1996) Israel legalizes surrogate motherhood.
BMJ 312: 729–730.
Van den Akker, O.B.A. (2007) Psychological trait and statecharacteristics, social support and attitudes to the surrogate
pregnancy and baby. Hum Reprod.;22(8): 2287–2295.

Eubios Journal of Asian and International Bioethics 25 (May 2015)

Enhancing professional
obstetric care withcompetence in clinicalbioethics- Nasrudin A.M., Shulhana Mokhtar
Faculty of Medicine, Muslim University of Indonesia
Email: shulmd@gmail.com

Abstract
The rapid development of medical science and technology
without attention to ethical values has raised moral issues in
the field of obstetrics. Medical professions have foundthemselves in a dilemma because they all geared for the
mastery of knowledge and skills in diagnosis and scientificdecision-making, but lack the skills needed for ethicalassessment. Formal education and training in ethicalassessment is needed to help make medical decisions thatcan be justified. This paper intends to describe a new
approach in improving the quality of medical practice inobstetric care based on competence in bioethics and clinical
Ethics in accordance with the demand of society indeveloping countries. Ethics should be observed by every
physician as indicated in the “Preamble of Indonesian Code of
Medical Ethics”. It includes values such as purity of intention,
generosity, humility, sincerity in work, scientific and social
integrity, and amity among physicians. Ethics is related tolegal aspects, and the two are complementary for achieving
good practice in medicine. Obstetric care decisions cannot
rely on a single approach; several alternative approaches
including feminist ethics and bioethical principles should
always be considered in medical decision-making.
Consultation with experts in the field or a hospital ethics
committee can also be helpful. Therefore no good ethicaldecision can be made without ethical guidance.
Introduction
Ethics has become a part of the medical world since thebeginning of its development. Some statements in the
Hippocratic’s Oath related to the ethics of the medical
profession. Avicenna also wrote about the ethics of medicine.
Concerns about ethics seem to be less intensive in the past1
compared to right now. During the last quarter of the 20th
century, ethical considerations became a major concern
because of several reasons. Social phenomenon which calls
for the recognition of human rights, the development of
medical science and technology knowledge that is notaccompanied by the development of ethical and moral values,
increasing moral crimes committed by a medical practitioner,and increasing demands on professionalism physicians inpractice are some of the problems in which bioethics
expected to answer the challenge to improve theprofessionalism of graduate medical education in
2,3,4
Indonesia.
The medical profession actually has long been a sharp
target of social criticism. Feeling less satisfied with the
medical profession appeared in the mass media. So far,people usually just jerks if a violation of medical ethics also
concerns the legal field, both criminal and civil law. With thegrowing public awareness of their rights and obligations of the
medical profession, the actions that constitute a violation of
medical ethics more easily visible. The things that were notknown as an offense, is now beginning to be realized. Evenactions that are not included ethics violations simply regarded
as a breach of ethics, even expressed as malpractice. It all

69

gives the impression of increasing cases of ethics violations.
Advancement of medical science additionally is a new
4
opportunity for the emergence of ethical problems.
The ability to make ethical decisions is not the same in all
doctors. Medical education is almost all geared to the masteryof knowledge and skills to make a diagnosis and scientificdecision-making. Formal education and training in the ethicalassessment at making a decision that can be justified arevery little, even many who do not get it at all. So, formally
ethical decision-making needs to be accustomed with a4method that uses a reasoning path rationally. This paper
intends to describe a new approach in improving the quality of
medical practice in obstetric care based on competence in
Bioethics and Clinical Ethics in accordance with the demandof society in developing countries.
Basic Bioethics Approach and Clinical Ethics
Ethics, and Codes of Conduct, should be the basic
properties for each physician, as indicated in the “Preamble ofIndonesian Code of Medical Ethics”. It includes values suchas purity of intention, generosity, humility, sincerity in work,5
scientific and social integrity, and amity among physicians.
Furthermore, the relationship needs to be reviewed between
ethical and legal aspects. Both of these norms have a close
relationship and can be complementary in the sense of
supporting each other to achieve their respective goals. The
rule of law was made official by the state so it can be obliged
into the community including physician. This means that thelaw is a society value. While ethical behavior is said to be thevalue of values, thus it is required guidance in case of
infringement do appear.
6,7
Several alternative approaches in ethical issues are:a. Virtue-based Ethics
b. Care Ethics
c. Feminist Ethics
d. Communitarian Ethics
e. Case-based reasoning
Decision-making in the field of clinical ethics cannot
specifically rely on a single approach to biomedical ethics.
Clinical problems often are too complex to be solved withsimple rules or rigid application of ethical principles. Special
virtues that are emphasized may vary (from one case toanother), but in women's health care, there must be a special
sensitivity to the needs of women.
In feminist ethics, we are focusing on the experiences ofwomen, reviewing traditional ethics. Although similar to care
ethics, feminist ethics emphasizes equality of women andmen. There is evidence that women have been systematicallyignored in health care research, finance and policy-making.
Women's health care should reflect where the growing
feminist ethics comes from.
Basic Rules of Bioethics
The theory of prima facie principles developed by Ross
became the dominant and most effective adapted into
medical ethics by Beauchamp and Childress in Principles ofBiomedical Ethics. In this approach, Beauchamp andChildress (1994) outlines four ethical principles of European
origin that can aid ethical decision making, that are known as
Four Moral Basic Rules/Bioethics Basic Rules (Moral
Principles) with some criteria below. Four of these principles
offer a way to identify, analyze, and resolve ethical issues inmedical care and therapeutics as well as provide a guide for
8,9,10professional action.
The Four Moral Basic Rules are:
1. Respecting patient autonomy
Principle of "Autonomy" (self-determination) is the principlethat respect the rights of patients, especially the rights to selfdetermination and is the strength of the patient to decide on a

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Eubios Journal of Asian and International Bioethics 25 (May 2015)

medical procedure. This moral principle then spawned thedoctrine of informed consent.
2. Doing good
Principle of generousity or "Beneficence" is the moral
principle that prioritizes actions directed to the good of thepatient or the provision of benefits, and to balance theadvantages with the risks and costs.
3. Not harm
Principle of "Non-Maleficence" (not harming) is the principleof avoiding damage or prohibiting actions that worsen thepatient's condition. This principle is also expressed as"primum non nocere" or "above all do no harm".
4. Justice (justice)
Principle of "Justice" is the moral principle that emphasizes
fairness and justice in attitude and in distributing resources(distributive justice) or the distribution of benefits, costs andrisks fairly.
Clinical Ethics of Jonsen-Siegler-Winslade
Ethical decision-making especially in clinical situations canalso be used with a different approach from that approach.
Jonsen, Siegler and Winslade (2002) developed a theory of
ethics that uses four essential topics in clinical services,11
namely:MEDICAL INDICATION
Diagnosis
Nature of disease
Condition of patient
Prognosis
Treatment options

PATIENT PREFERENCES
Advance directive
Previous spoken
Previous choices

QUALITY OF LIFE
Who decides?
What standard?
Suffering
Relationships

CONTEXTUAL FEATURES
SocialCultureLegal
Financial
Institutional

1. Medical Indications
Medical indications includes all diagnostic and therapeutic
procedures as appropriate to evaluate and treat the patient's
condition. Assessment of medical indications aspect isexpressed in terms of ethical issue and especially using thebasic principles beneficence and non-maleficence. Ethicalquestions on this topic are similar to all the information thatshould be delivered to patients in the doctrine of informed
consent.
2. Patient Preferences
On the topic of patient preferences we consider the value
and evaluation of the benefits and burdens that will bereceived, which means a reflection of the rules of autonomy.
The question of ethics includes questions about thecompetence of the patient, the nature of volunteering,
attitudes and decisions, understanding of information, who thedecision maker if the patient is not in his/her competent,
values and beliefs that the patients hold, etc.
3. Quality of Life
Topic of quality of life is one of the actualization of the goalsof medicine, namely repair, maintain or improve the quality ofhuman life. What, who, and how to assess the quality of life isan ethical question about prognosis, with regard to the basic
principles of beneficence, non-maleficence and autonomy.
4. Contextual Features
Principles in the contextual features include loyalty andfairness. Here questions of ethics surrounding the non-medical aspects that influence the decision, such as family
factors, economics, religion, culture, confidentiality, resource
allocation and legal factors, are discussed
Ethical Decisions
The easiest decision is when clearly ethical conduct among
which are considered a good choice and a bad one. Because
it may appear so easy, people often simply consider ethicalissues as a matter between good and bad, although with alittle more thorough analysis would seem that many
simplifications are grossly underestimating the actual moral
problems. Ethical problems usually occurs if there is a better
choice while the other option is worse. Decision-making
becomes more difficult if the difference between the better toworse is very vague. In practice, most of the problems of
12
medical ethics are in this category.
All decisions of physicians can be put into two main groups
generally:
1. Each physician makes decisions regarding the human, as
well as decision makers and those who bear theconsequences of that decision.
2. Every medical decision involves a choice between things
that have a different result based on existing facts. Decisionmaking is done by weighing various values with the concernsof different decision-making results.
It is clear that virtually all decisions in physician practicealso pose ethical decisions or at least the decision contains
an ethical component in addition to the scientific aspects ofthe problem. When most of the decisions taken in the doctor's
office are made without considering the ethical component, it
is because of the ethical issues was considered to be acommon thing that a solution has been agreed upon almost
universally.
There are several possibilities if a physician faces a
dilemma, namely:
1. Choosing 'anything' which is the custom of the moment.
2. Following habits that are considered 'common' in thesociety at that time.
3. Doing what he/she thinks right about 'feelings andemotions' at that time.
4. Obeying their religion, according to his/her own
interpretation.
The doctor should take a decision to act, which may be truein certain rational analysis. Clearly, this is a way of making
that decision on the basis of the fragile, which is not easy to
be maintained especially if the decision turns out to bring new
12
problems as well.
Common Problems In Ethical Decision Making
There are some special things that deserve close attention:
the informed consent process, confidentiality and conflict of
13.14
interest.
Informed Consent Process
The main objective of the process is the protection of thepatient's autonomy. With open communication of relevant
information, the doctor allows the patient to perform personal
choices. Communication is central to the proper doctor patient relationship. Unfortunately the discussion to educate
and inform patients about their health care options has neverbeen completely free of bias. Physicians should be wise tominimize this bias. Freedom to accept or refuse medical
treatment is supported by law and ethics.
One of the essential elements of informed consent is thecapacity to understand the patient's condition and the risks
and benefits of treatment alternatives. The capacity of thepatient to understand depending on maturity, awareness,mental, educational, cultural background, language anddesire for asking, and the way information is delivered.

Eubios Journal of Asian and International Bioethics 25 (May 2015)
Consulting psychiatrists may help in determining the capacityof the patient or the ability to understand the information
provided. Essential element of informed consent is theconcept of freedom of patients to choose an alternative.
15
Informed consent has three elements, namely:
1. Threshold elements
2. Information elements
3. Consent elements
Confidentiality
Confidentiality is the most used component of medical
ethics. It is based on the principle of patient autonomy that
includes the patient's right to privacy, and the doctor's
responsibility to honor that. The assurance of confidentiality
provides an opportunity for patients to give accurate
information.
Obstetrics and gynecology specialists deal with someconflict issues of confidentiality regarding patients, particularly
regarding the diagnosis and treatment of sexually transmitted
disease, contraception and pregnancy counseling. Physicians
desire and ability to maintain confidentiality should be
discussed with all teenage patients at the beginning of
consultation as well, because there may be some legal
conditions to report to their parents. Many national laws doprotect confidentiality for adolescent patients, and specialists
in obstetrics and gynecology must be aware of that.
Conflict of Interest
Conflicts of interest occur almost every day in the practice ofobstetricians and gynecologists. This occurs when a primaryinterest (usually patient condition) faces conflict with an issue
of a secondary interest (such as financial interests ofphysicians). Some of these conflicts are very real when adoctor deems it necessary to order many diagnostic tests forpatients or when a doctor recommends a product to be soldfor the benefit of patients. Some conflicts of interest look finewith sponsorship from drug companies and diagnostic aids.
A Guide to Ethical Decision Making
Often more than one action can be morally justified. But atsome point there was nothing that could be accepted because
it produces significant loss. However, one of the options thatare available must be selected and the choice is supported by
ethical considerations. Attempts to resolve the problem haveto do with rational analysis of the various factors involved.
Consultation with associated experts or hospital ethics
committee can be very helpful for decision-making. It is
important for physicians individually to develop steps ofdecision-making that can be used consistently when facing
ethical issues.
Some useful steps have been proposed in which elements
12,13
are incorporated herein.
1. Identify the decision makers.
The first step is to answer 'whose decision is it?' Generally,
the patient is considered to have the authority to accept orrefuse treatment. At one time a patient's ability for producing
a decision is not clear. Capacity to make a decision depends
on the ability of the patient to understand the information andits implications. Assessment should be made. If the patient isunable to make decisions, the patient's guardian or family
members should play a role. In some circumstances, thecourt must decide whether the patient is competent or not.
2. Collect data, facts and define the problem.
The data collection should be done as objectively as
possible. Use consultation if necessary to ensure that all
information on the diagnosis, treatment and prognosis has
been obtained.

71

3. Identify all appropriate courses of action.
Use consultation if necessary and identify other options.
4. Evaluate the options for action in accordance with thevalues and principles involved.
The values of the decision maker will be the most important.
Decide whether there is an option that violates ethicalprinciples. Eliminate of these options, recheck the remaining
options according to the interests and values.
5. Identify ethical conflicts and try to apply a priority.
Try to apply the principles of ethical problems that visible(for example, non-maleficence and beneficence vs.
autonomy). Or consider the principles underlying each of thearguments made. Does one principle seem more important?
Does the way of proposed action appear to be better than theother?
6. Select the best choice of action.
Try to resolve problems rationally.
7. Reevaluation after the decision is implemented.
Is the best decision has been made? What lessons can be
drawn from the discussion and resolution of these problems?
Achievement of basic competencies of Bioethics andClinical Ethics will further improve professionalism andenhance the ability of obstetric care in clinical decision
making with the moral justification (deductive logic) that
respects the values and interests of the patient (ethicaldecision that blend with the law on the patient's contextual).
References
1. Kasule OH. Philosophy in Medical Ethics: comparative study
between the viewpoint of Islam and the West (Europe). Papers
Seminars and Workshops Implementation of Islamic Values in The
Medical Education in Indonesia. Malang, East Java. September
2007
2. Recommendations National Workshop on Bioethics Education for
Medical Students, Yogyakarta, December 10-12, 2007
3. Samil RS. Indonesian Medical Ethics. Yayasan Bina Pustaka
Sarwono Prawirohardjo, 2001.
4. Book of Standar Pendidikan Profesi Dokter Spesialis. Indonesian
Medical Council. 2006
5. Medical Ethics Honorary Council of Indonesia (MKEK) and theIndonesian Doctors Association (IDI). Code of Ethics andGuidelines for implementation of KODEKI Indonesia. Jakarta. 2002
6. Merkatz RB. Temple R. Women in clinical trials of new drugs. Achange in FDA policy. N Engl J Med 1993; 329: 292-6.
7. Gender disparities in clinical decision making. Counsel on Ethicaland Judicia affairs, JAMA 1991; 266: 559-62
8. Pellegrino ED. The Metamorphoses of medical ethics. A 30-year
retrospective. JAMA 1993; 269: 1158-62
9. Robert MC. Veatch. Basics of Bioethics. Chapter IV pp. 65-74.
10. Purwadianto A. Kaidah dasar moral dan teori etika dalammembingkai tanggungjawab profesi kedokteran. Papers refresher
ethics of medicine, faculty of medicine, University of Indonesia inmodules EPC II, Jakarta, February 18, 2003.
11. Jonsen AR, Siegler M, WinsladeWJ. Clinical Ethics: A Practical
Approach to ethical decisions in clinical medicine. 5th ed. New
York, NY: McGraw-Hill. 2002
12. Setiawan TH, Maramis WF. Etik Kedokteran. Guidance inmaking decisions. Airlangga University Press; In 1990.
13. Ethical decision making in obstetrics and gynecology. American
College of obstetrician and gynecologist. 2004.p 3-8
14. Principles of biomedical ethics. Erlanger medical ethics
orientation manual, 2000.
15. Guwandi J. Informed Consent. Hall publishers Faculty of
Medicine, University of Indonesia. Jakarta. 2004

72

Eubios Journal of Asian and International Bioethics 25 (May 2015)

Legal Pluralism and Land
Administration in West
Sumatra: Implementation of
Local and Nagari
Governments’ Regulations
on Communal Land Tenure- Hilaire Tegnan,
Law School, Andalas University, Padang, Indonesia
E-mail: onlysuccess@rocketmail.com

Abstract
Land administration has always been a delicate issue in thehistory of nations, and Indonesia, a country where asignificant number of the population lives a pastoral life is notexempt from this reality. This paper discusses land tenure
issues in West Sumatra, an Indonesian province which ishome to the Minangkabau people with their long existingvillage management system known as Nagari, established tosettle disputes based on adat (custom) principles as well as
to protect the rights of the community members. These rights
include communal land (referred to as tanahulayat hereafter).
Long before the Dutch occupation of Indonesian archipelago,
the nagari government was vested with powers to regulate
communal land in West Sumatra. However, this authority wasconstantly overlooked by the then Dutch colonialadministration as well as the post independence governments(both central and regional). To reinforce the Nagari
government as the guardian of the customary law(hukumadat) and to specify its jurisdiction, the Regional
Government of West Sumatra enacted two laws between
2000 and 2008: Law No. 9/2000 repealed by Law No. 2/2007
and Law No. 6/2008 on communal land tenure. Althoughthese two laws provide legal grounds to address land issues
across the region, land conflicts still prevail in West Sumatra
due to negligence of customary law, unkept promises as wellas unsynchronized and contradictory regulations. The
protests against the local army (Korem) in Nagari Kapalo
Hilalang, against the oil palm company in Nagari Kinali, andagainst a cement factory in Nagari Lubuk Kilangan are citedin this paper as case references.
Key words: Local Government, Nagari Government andTanah Ulayat.
Introduction
The legal system in Indonesia did not change very muchafter the country proclaimed its independence on 17 August1945 as many believe it did. The newly born republic
operated on the same legal and political logic as its colonialpredecessor, handing out titles as it deemed fit (Franz andKeebet Von Benda Beckmann, 2001). Before the arrival of
Dutch traders and colonists in the late 16th century and earlyth
17 century, indigenous kingdoms prevailed and applied asystem of adat (Peter Mahmud Marzuki, 2011). In
contemporary Indonesia, as in many other post colonial
countries, three strands of laws prevail namely: State Law(Negara Hukum), Transnational Law (treaties andconventions as well as regulations imposed by internationalorganizations such as WTO, IMF, UN etc.), and Adat Law(comprising religious and traditional laws) as the government
struggles to incorporate the rights of local people within thestate legal system. However, the recognition of these rights
either by the colonial administration or the political regimesthat ensued was the starting point of a ‘weak legal pluralism’
as Griffiths puts it, for it was done “rather in an ambiguous
way and subject to the state’s regulatory control” (Franz andKeebet Von Benda Beckmann, 2001). The political concept
known as Reformation Era (Era Reformasi) ensuing the fall of
the Suharto’s regime in May 1998 is regarded as theIndonesian government’s attempt to bring about political, legal
and social changes in respond to the people’s demand for
greater individual freedom, democracy, equality and justicefor everyone. But more importantly it was a call for moreregional autonomy and a greater recognition of adat rights tovillage resources (Kurnia Warman, 2010, 213-70). As aconsequence, government power and authority weredecentralized with more rights and obligations for districts and1villages across Indonesia . In West Sumatra this prompted
the resurgence of the Nagari Government that was dormant(1979-1983) under Suharto’s regime. This article explains
what nagari concept and tanah ulayat refer to. It discusses
the relationship between both State and Nagari Governments
in dealing with communal land tenure in West Sumatra,
especially the difficulties involved and how to cope with them.
The study was conducted in four Nagari from April 2013 to
December 2014. The use of empirical data was required– thatis ‘a people-based approach’ consisting of gathering
information through direct interaction with people andprocesses, such as questionnaires and surveys as well asinterviews with adat and religious leaders, legal institutions,nagari authorities, and parliament members. The researchalso used the ‘text-based approach’ which is based on
acquiring information through texts, including statures, books,
articles, newspapers, and reports. The use of empiricalmethod as data collection technique was essential andefficient in my research for it aims at taking a closer look at
the phenomenon being studied.
What does Nagari government refer to?
As stated earlier nagari is a traditional organizationconsidered as the smallest unit of local government in theprovince of West Sumatra. A nagari is legally formed basedon territorial and genealogical factors: its borders are definedand consists of four clans (originally) (Kurnia Warman, 2010).
2
It is often refered to as the village republic . To this day, thenumber of nagari is estimated to be up to 754 spread3
throughout twelve Regencies (Kecamatan) . A nagari
consists of several subdivisions called Jorong (subdivisions)and is governed by a Wali Nagari (representative) who is botha political and cultural leader, and a Nagari Council (Dewan
Nagari) as the village legislative body. But this does not meanthat the Nagari Council functions as a parallel legislative bodyin the region. The Regional People’s Representative Council(Dewan Perwakilan Rakyat Daerah) is the only law making
body in the province of West Sumatra. Each Jorong is led bya Wakil Jorong. The legislative body (the Nagari Council)
consists of representatives of kinship group leaders within the
nagari (Afrizal, 2007-35). The existence of this traditional formthof government dates as far back as the mid 14 century after
the establishment of Pagaruyung Kingdom, a Melayu
Kingdom consisting of the province of West Sumatra and its
4
surrounding villages . When the Dutch occupied Indonesia,
1

Law No.22/1999 on Regional Governments.
Franz von Benda-Beckmann and Keebet von Benda-Beckmann,
Political and Legal Transformations of an Indonesian Polity: The
Nagari from Colonisation to Decentralisation. pp. 39-60.
3
See Data Base Kerapatan Ada Nagari-Padang 2013.
4
See Rizqi Abdulharis, Kurdinanto Sarah, Dr. S. Hendriatiningsih, M.
Yamin and Andri Hernandi, Measuring the Necessity of ReEngineering of Indonesian Land Tenure System by Customary Land
Tenure System: The Case of Province of West Sumatera, Indonesia.
2Eubios Journal of Asian and International Bioethics 25 (May 2015)
they enacted on 1 January 1848 a law called
Regeringsreglement (R.R). Article 62 gave certain rights toadat institutions to deal with family and land issues. In West
Sumatra, it was the Nagari government that carried out this
responsibility back then and up to this day. This stature (R.R),
patterned on the 1848 Netherlands Constitution was deemed
as mere law in the Netherlands but was used in colonized5
Indonesia as a constitution . However, from the Pagaruyung
Kingdom to this day, nagari has undergone several social andlegal developments. In fact, after the independence, a new
regulation called Makloemat (announcement) was passed in
6
1946 by the West Sumatran Local Government that split theleadership of nagari into three bodies: Dewan Perwakilan
Nagari (Nagari Representive Council DPN), Dewan Harian
Nagari (Nagari Daily Boards, DHN) and the Wali Nagari who7
is the head of both the DPN and the DHN .
Furthermore, Nagari Government was again restructured in
1963 by another provincial regulation that set up three newbodies: Kepala Nagari (Nagari Head), Badan Musyawarah
Nagari (the Nagari Discussion Boards, BMN) and the Badan
Musyawarah Gabungan (the Combined Discusion Boards,
BMG) whose membership was open to all nagari community
members. In 1974, however, the Indonesian government
enacted No. 5/1974 on Local Government. This law as Wellas the Law No. 5/1979 played significant roles in shaping
local governments throughout Indonesia. In West Sumatra
regulation No. 5/1974 changed both the BMN and the BMG
into a single body called Kerapatan Nagari as the only nagari
instrument having both judicial and legislative powers (Taufik,
2000, pp.2-6). KN’s members consist of kinship groupleaders, Islam experts (ulama) and nagari intellectuals (cadiak
pandai) (Taufik 2000, pp.6-7). The nagari system had long
been West Sumatran people’s way of self governance until it
was dismissed by the New Order Village Governmental
Regulation No. 5/1979 and replaced with a new system ofgovernance called desa (village) under the Suharno’s
Administration. In West Sumatra, this law came into effect in1983 and this meant the retirement of nagari leaders as theconcept itself was dismissed. All the then existing 543 nagari
in West Sumatra (including the islands of Mentawai) werespilt into 3516 desa, but only approximately 1700 of them8remained active . Nethertheless, the West Sumatran Local
government in order to preserve the Mnangkabau tradition
through nagari enacted a provincial regulation No. 13/1983
9which put in place a ‘new-style of nagari’ with a new council
called Kerapatan Adat Nagari (KAN) whose leaders areelected by its members and approved by the Head of the
district (Bupati) (Afrizal 2007, 36-37). Although this newprovincial law has reintroduced Nagari Government into thepolitical arena and helped nagari recover its legitimacy inWest Sumatra, nagari is yet to be free from the influence ofthe local government as its elected leaders though strippedfrom their power need to be approved by the head of the
district (Bupati), and they could be removed from office by the10
local government . The reason for returning to the nagari
5

For detail on the R.R read Peter Mahmud Marzuki (2011), An
Introduction to Indonesian Law, and for the recognition of nagari
government see Kurnia Warman (2010), Hukum Agraria Dalam
Masyarakat Majemuk, Dinamika Interaksi Hukum Adat dan Kukum
Negara di Sumatera Barat.
6
See Makloemat No. 20/1946 on Nagari Government.
7
See Afrizal referring to the Ministry of Information 1953, pp. 326336).
8
See Kroesen 1873, Willinck 1909, Westenenk 1918 a, b, Bachtiar
1967, F. van Benda-Beckmann 1979).
9
See Afrizal 2007, p. 36
10
A nagari leader at Lembaga Kerapatan Adat Alam Minagkabau(LKAAM-Sumbar-Padang) told me during an interview on December
17, 2014 that the new style of Nagari has weakened they power in73system of governance is that many local politicians andtraditional village leaders (Panghulu) claimed that the desa
system had not functioned well, that it had destroyed adat, theunity of the nagari population and eroded the authority of theelders over the young (Franz and Keebet Von Benda
Beckmann, 2001). In 1999 the structure and governance inIndonesia changed (again) when the Government enacted theDecentralization Act, No. 22 of 1999 which improved with Act
No. 32 of 2004. This time, the Indonesian central government
allowed room in the country’s legislation for more district(rather than provincial) autonomy in political and economic
affairs. Article 93 of this law stipulates that village must be
created, abolished or integrated in consideration with theorigin, on the initiative of the people and with the consent ofboth the district government and district People’s
11
Representative Assembly . In 2000, the West Sumatran
local government responded to this law by enacting provincial
regulation No. 9/2000 on Nagari Government which came into
effect on January 2001 and from then on, nagari has
remained the lowest unit in the state hierarchy in the province
12of West Sumatra except in the city .
The understanding of tanah ulayat and its registration
It is important to note that even though a flimsy recognition
was given to communal rights during the Dutch colonialadministration through the Article 62 of the colonialconstitution called Regerings Reglement (RR) January 1854
along with the colonial agrarian law Agrarische Wet 1870, it is
the Indonesian Basic Agrarian Law No. 5/1960 known as
Undang Undang Pokok Agraria (UUPA) enacted underpresident Soekarno that really gave recognition to communal
13
rights throughout Indonesia . Besides the UUPA many otherstatutes contributed into building legal bases and legal
protection of these communal rights at the national level.
These statutes are: the Forestry Law No. 5/1967 replaced by
the Law No. 41/1999, the Basic Mining Law No. 11/1967, theFishery Law No. 31/2004, and the Water Resource Law No.
14
7/2004 . As a recognition of communal rights at a regional
level, West Sumatra provincial government enacted theRegulation No. 16/2008 on communal land tenure as
mentioned in the outset of this paper. Explicitly, this regulation
states that tanah ulayat management is aimed to protect theexistence of tanah ulayat under the Minangkabau’s customary
law and ensure benefits of land resources including natural
resources for the survival and life of all anak nagari (nagari
15
community members) . Tanah ulayat refers to all land within
the jurisdiction of a nagari, the Minangkabau lower unit ofgovernment and is managed according to adat (customary)
16
law . The appellation ulayat is typical to the Minangkabau
people. In other provinces different terminologies are used i.epatuanan in Ambon, panyampeto or pawatasan in
Kalimantan, wewengkon in Java, prabumian in Bali, limpo in

the eyes of their community members. He complained that they nolonger have any real influence over the community. He mentionedthat the supervision of the gotong-royong (community gathering forsocial work) by the police is a proof of they lack of influence over thecommunity.
11
See Art. 3 Law No. 22/1999 on Regional Government in Indonesia.
12
See Afrizal, The Nagari community, Business and the State.Sawit
Watch, 2007, p.37.
13
See Kurnia Warman (2010) Hukum Agraria Dalam Masyarakat
Majemuk. Dinamika Interaksi Hukum adat dan Hukum Negara di
Sumatra Barat, Ed.1. –Jakarta; Huma; Van Vollenhoven Instutute;
KITLV-Jakarta.
14
Ibid.
15
See Regional Regulation No. 6 2008, Art. 4
16
See Art. 1 of Law No. 13/1983 on nagari government.

74

Eubios Journal of Asian and International Bioethics 25 (May 2015)

South Sulawesi, paer in Lombok etc… Tanah ulayat consistsof three types: ulayat nagari (nagari communal land) land thatbelongs to the community as a whole, ulayat suku (clancommunal land) which consists of sub-clans and its size
depends on the number of its members, and ulayat kaum
(sub-clan communal land) (Kurnia Warman 2010, 33-50).
Ulayat land is under the authority of either clan leaders or thekinship group leaders (ninik mamak). Tanah ulayat is to bedifferentiated from adat land. The former refers to land thatbelong to a kinship group or the nagari community while thelatter implies land unregistered and that can be owned by
17
individuals . Tanah Ulayat designates village land or territory
and includes land, forest, water and minerals. Village land
was mostly under the socio-political control of the village
government, but it could also be distributed among thefounding clans of the villages, and then administered by theheads of the clans (van Vollenhoven in Holleman 1981: 137).
A tanah ulayat is usually freely accessible to the members ofthe village or clan respectively. It can not be alienated.
Temporary access and withdrawal rights could be given to
nonresidents against a fee of recognition contrarily to what18
many scholars and researchers argue . The Dutch called
this right of socio-political control beschikkingsrecht, right ofdisposition or right of avail (Holleman 1981: 287, 431). A
tanah ulayat can be registered at the District Land
Administration Board (Badan Pertanahan Kabupaten/Kota),
only if all members of the matrilineage (kaum), or clan (suku),
or the heads of all clans agree (atas kesepakatan). Such titles
can only be used as security for loans with the consent of all
19
members of the respective communities . From what
precedes it is clear that power administrate tanat ulayat isvested in the hands of the clan leaders or kinship groupleaders as they can levy taxes on those willing to use land,
forest, rivers. ‘They may negotiate the pawning or sale ofcommunal land, block transactions or take the land forthemselves (Kahn 1980, 55). But despite government
intention to regulate land tenure in west Sumatra by reviving
the Nagari Government, lots of difficulties remain in tanah
ulayat registration in the Province of West Sumatra.
Obstacles to tanah ulayat registration
Before we get to discuss the obstacles in communal land
registration in the province of West Sumatra, it is important toremind what the Indonesian Government Regulation No.
24/1997 in its Article 9 Section 1 says about the types oflands that can be registered throughout Indonesia. According
to this regulation, only the following can be registered:
1. land property, the right to cultivate, the rights to build, andthe rights to use.
2. land management rights;
3. property for religious and social purposes;
4. apartment ownership;
5. mortgage;17

Afrizal referring to Mirwati 2000, p.9 in his foot notes.
18
Many scholars especially Franz von Benda-Beckmann who hassignificant publications on Minangkabau people argues in his article:
Legal Pluralism and Social Justice in Economic and Political
Development, that voluntary and involuntary migration has led toincreasing contacts between population groups that until then had
been living in relatively closed communities. Group migration,
movement of individuals or individual families settling in newcommunities and intermarriage, produce great problems about therights of newcomers in their new host communities. My research findsthat this might be the case in other part of Indonesia but not in West
Sumatra. Even if it was, it would be related to land as none of theland conflicts that I researched on has to do with new comers.
19
See Article 13 of the Law No. 16/2008

6. State land.
From the above provision it is clear that the Indonesian
government did not include tanah ulayat within land
registration objects within its agrarian law. Did thegovernment do so on purpose or by omission? Or for fear that
registering communal land would stir up tensions among thenagari community? Boedi Harsono, an Agrarian Law
professor gives an account to this question:
Communal rights will not be registered. Basic Agrarian Law
does not rule its registration, and the Government Regulation
No. 24/1997 on land registration, communal land isintentionally not included in the registration objects.
Technically, this is impossible because the boundaries of theland may not be delimited without the occurrence of legal
dispute among the community.
The complexity of tanah ulayat makes it harder to put inplace satisfactory policies for everyone. Yet there is a crucial
and constantly growing need for its registration as everyone
wants to do business: on the one hand you have the local
government willing to use the land to support social welfare
programs, and nagari community members claiming land
certificates so they can rent out their land to pay off a debt or
send their children to school (Afrizal 2007), and you have on
the other hand nagari and kinship leaders, as part of the statehierachy and adat defenders. This constitutes a quandary to
all parties involved, thus counterproductive. Brian Z.
Tamanaha acknowledges this by saying, “A great deal of landin development contexts is not officially titled, especiallywhere registering title is a lengthy and costly process. In theabsence of legal recognition,… property cannot be used ascollateral to secure loans, people are less inclined to improve
the property (fearing they will lose it), and the market for real
property is artificially constrained. As a result, much of thepotential wealth and capital in developing societies is locked
20
up unproductively” .
Tanah ulayat as was stated earlier belongs to the nagari
community as a whole. This implicitly means that such a landcannot be registered because doing so would mean private
21
ownership which is contrary to Minangkabau tradition .
There is a saying in Minangkabau tradition that goes: “dijua
indak dimana bali, digadai indak dimana sando” meaning: if it
is to be sold, it may not be eaten up by the buyer, if it is to bepawned, it cannot be eaten up by the pawner. Kurnia
Warman, an Agraria Law professor with whom I had aninterview has a view pretty similar to what precedes. He
thinks that it is not that communal land can not be registered,but problems rise because the land certificate can not bear
the name of a single person according to adat. He commends
that many of land related conflicts would be prevented was a22
solution to this issue found . This state of unclear ownershipover tanah ulayat has pushed land predators to rush in andcreate chaos which has led to many land related conflicts
within the region.
Land conflicts in West Sumatra
From 2004 to 2008 there were 116 cases of conflict over23
125,924 hectares of tanah ulayat in West Sumatra . Of these116 cases, three are worth discussing due to their intensity:

20

Brian Z. ‘Tamanaha Rule of Law and Legal Pluralism inDevelopment’. Legal Studies Research Papers No. 11-07-01.
Washington University in St Louis, School of Law p. 14
21Interview with a leader the Nagari Adat Counsel in Padang on
September 23, 201322
Discussion with Dr. Kurnia Warman an Agrarian Law professor atAndalas University. He has conducted significant research on Legal
Pluralism and the Indonesia Agrarian Law with focus on communal
land in West Sumatra.
23
Database of Padang Legal Aid Agency (LBH-Padang), 2010

Eubios Journal of Asian and International Bioethics 25 (May 2015)
Conflict 1: A community protest against the Army sub-district
headquarter (Korem) over a rubber plantation located on atanah ulayat annexed by the local Army in Nagari Kapalo
Hilalang.
In fact, in 1998, the community of Nagari Kepalo Hilalang rose
against the Korem demanding the return of Tandikat LamaBaru, a rubber plantation located on their communal land that
had been under military control since the 1950s. The disputed
land was deemed state property based on a colonial law
called Erfpacht, a 75 year land use right granted to private
investors by the Dutch colonial administration. Dutch andGerman investors back then established two rubber
plantations at Nagari Kapalo Kilalang on a 75 year lease: NV.
Java Rubber Masschappij established in 1904 at Tandikat
Lama (Old Tandikat), and G.O.E Kreeber established in 1923
at Tandikat Baru (New Tandikat) (Afrizal, 2007 p. 58). The
use of these two plots of land by foreign investors ended withthe withdrawal of both the Dutch and the Japanese, which
also left the abandoned plantation with no clear claimant nor
explicit law. After the departure of the two foreign investors,
both plots of land were combined under the name of Tandikat
Lama-Baru and were once again controlled by both theIndonesia Military Retirement Association and the Tandikat
Planters Association in 1957. However, due to political unrest
within the region the plantation was abandoned for thesecond time. Between 1960 and 1965, Tandikat Lama-Baru
got another owner, Burhanuddin, a native of the region whoestablished a company called PT. Tandakat Baru Corp. But
Burhanuddin was accused of being a communist by the
military and was arrested in 1966. Consequently, Tandikat
Lama-Baru was left again without ownership. After the arrestof Burhanuddin, the military seized the plantation on the
grounds that it was being used by the Indonesian Communist
Party (PKI) and that an investigation had to be run. The headof the Army local headquarters was appointed to beadministrator of the property and Korem auto-proclaimed itself
owner of the plantation in 1969. Unable to properly run theplantation, Korem passed it to a company called PT. Purna
Karya in 1974 (Afrizal, 2007-59). In 1979 discontents began
to grow as the 75 year lease ended. In mid 1998, leaders of
Nagari Kepalo Hilalang began to protest against Korem
demanding that Tandikat Lama-Baru be returned.
Conflict 2: The protests against the oil palm plantation in
Nagari Kinali.
From 1993 up to 2002, members of Nagari Kinali protested
against Oil Palm Companies asking them for compensations,the transfer of smallholder plantations, and the return of theannexed tanah ulayat to the community. In fact the existenceof the first oil palm company in this region dates back to 1934,
but the number increased to over 6 large oil companies by theend of 2002, thus making Nagari Kinali the oil palm plantation
nagari. At Nagari Kinali as well as at many other nagari, theuse of land for oil palm plantation is granted at no cost by thekinship leaders (ninik mamak), the only authorities vested with24
power over land . During the 1980s, the local government of
the region (Pasaman) persuaded the kinship leaders toprovide their land to oil palm investors for the development of
the region as well as for the welfare of all community
members (anak nagari). No written agreement from either theoil palm companies or the local government was issued
though. The kinship leaders agreed (by signing a landalienation/transfer letter or Surat Pernyataan Pelepasan Hak)
and were promised stakeholder (Nucleus Estate and25
Smallholder) in companies to be built . At this nagari, the24Interview with KAN leaders at Nagari Kilangan on December 30,
2014, 14:30.
25
See Afrizal, The Nagari Community, Business and State, p. 96

75

head of the Kerapatan Adat Nagari (KAN), the Adat Council
stirred up the contempt of the people by misusing landalienation money (bungo siriah) provided by oil palm
plantation companies. The people urged the head of the
district (Bupati) for his resignation, but the accused remained
26
in office until he died .
In addition to this case of corruption, local people began toprotest against oil palm plantation companies to claim their
27
Smallholder plantations (Kebun Plasma) as agreed earlier .
The community also claimed customary dues (adat diisi
limbago dituang), irrigation schemes and plantation
partnership to kinship leaders as no land was purchased at
the start. Similar events occurred at Nagari Lubuk KilanganPadang.
Conflict 3: the clash between indigenous people, the local
government and PT Semen Padang, a cement company at
Nagari Lubuk Kilangan (the biggest and oldest cement factoryin West Sumatra). In fact, between 1997 and 2001, thecommunity stood up against their local government as well as
PT Semen Padang, much for the same reasons as theircounterparts. But unlike the two other cases reported above,
the protest against PT. Semen Padang was not directed
toward the return of the being exploited by the cement factoryas the community leaders themselves acknowledge theadvantages it brings to all community members. Instead, theprotesters demanded that more factory workers be recruitedfrom the nagari lubuk kilangan and that families affected by
the company’s activities be treated decently. They also
claimed a fair share in the revenue of the cement business.
They did not want handouts of any kind as this would signify
begging. Instead, they asked for levies and royalties, and28
more importantly, the ‘respect for adat legacy’ . Besides
these claims, community leaders also demanded thatneighborhood schools and mosques be renovated and looked
after.
All these three protests along with many others are theresults of unkept promises by local governments andinvestors, opaque and non-adat confirming land acquisition
procedures and land inacessibility in the concerned area.
Most of the Minangkabau people I interviewed agree that thishas contributed into slowing down the economic developmentof West Sumatra as compared to its counterparts, North
Sumatra and Riau provinces. ‘Property in many societies isconceived of and controlled in a variety of ways that do notmatch freehold ownership by individuals. In such societies,
family and clan members possess various capacities to use
land—to cross it, graze their animals on it, collect its fruits, till
it—and others must be consulted about uses of the land. The
process of titling extinguishes much of this because use andaccess rights are not recognized by standard legal titles…
When property is titled in situations like this, individuals areconfronted with conflicting rule systems as Brian Z Tamahana
29
points out .
Even though the Indonesian 1960 Basis Agrarian Law
remains silent or ambiguous vis-à-vis the registration of tanah
ulayat, the west Sumatra local government enacted Law No.
16/2008 which, unlike the Basic Agrarian Law, instructs on
how tanah ulayat can be registered provided that all membersof the matrilineage (kaum), or clan (suku), or the heads of allclans agree. In fact, the Article 5 of this local regulation
26

Ib.
Padang Ekspres November 1-4, 2003.
28
Interview with Depute Head of KAN Lubuk Kilangan onthDecember 12 , 2014 16: 04.
29
Brian Z. ‘Tamanaha Rule of Law and Legal Pluralism inDevelopment’. Legal Studies Research Papers No. 11-07-01.
Washington University in St Louis, School of Law p. 15.

27

76

Eubios Journal of Asian and International Bioethics 25 (May 2015)

classifies ulayat land in four categories of lands that can beregistered at the District Land Office: tanah ulayat nagari(Nagari communal land), tanah ulayat suku (clan communalland), tanah ulayat kaum (sub-clan communal land) andtanah ulayat rajo (State land). But what seems ambiguous is
the fact that the four categories of ulaya lands change theirstatuses once registered at the District Land Office. Thus,
according to the regulation a ulayat land once registeredbecomes: Hak Guna Usaha (HGU) Commercial Use Leases,
Hak Pakai HP) use rights, and Hak Milik (property ownership).
This means that if registered, a ulayat nagari becomes State
land which also means the rights owner cannot fully use his
30
property . He can only use the land for agriculture, fishing,farming and livestock for a maximum time period of 30 years
31
extendable up to 25 years and he’s required to pay revenue
32
to the state . The changing of ulayat land’s status to HGU(Commercial Use Leases) has raised discontent among thecommunity fearing that this decision might use up all tanah
ulayat without any guarantee to get them back from the third
party at the end of the contract (Kurnia Warman 2010, 226).
Furthermore, the same law on land registration also
recognizes two different types of ownership: hak milik(property rights) and hak menguasai (right to control). Hak
milik holders i.e. the local government, State companies(BUMN), government institutions, district government
companies (BUMD) and corporations can own and fully use
33
the object (land) any way that pleases them . Tanah Ulayat
as a property belonging to the nagari community as a wholefalls under the hak menguasai meaning that the rights holder
has control over the object but he/she cannot use it as he/shesees fit. I find this separation of rights ambiguous because theobject of hak milik is located within the ulayat nagari, andtherefore it is the domain of the nagari just like any othertanah ulayat. With the enactment of the Local Government
regulation No. 9/2000, nagari government is vested withauthority over tanah ulayat for the benefit of all community
members, yet there is a Presidential Decree promulgated in2001 that says land administration throughout Indonesia
34
should be centralized . This, to my view is a mess as it does
not provide a clear authority to turn to when conflicts overland arise. The state of collective land ownership whereby
power rests in the hands of some community leaders andgovernment officials strips community members of their35
autonomy and privacy . ‘Although ownership per se is notessential to privacy, titles to property are a way of expressing
the claim to privacy’ as David Dyzenhaus (1997) puts it.
Finally, problems in tanah ulayat registration are not only
caused by regulations competing or contradicting one anotherbut also for lack of clear pretender from pre-colonial time tothis day. In fact, it is not always clear who the legitimate
claimant is. Of the village government, the Nagari Adat
Council, the head of a given clan, all lineage heads within theclan, or even one particular lineage who really has legitimate
control over a nagari’s resources and revenues is till an
30

See Septria Yanto, Tinjauan Yuridis Atas Berlakunya Peraturan
Daerah Provinsi Sumatera Barat Nomor 6 Tahun 2008 Tentang
Tanah Ulayat Dan Pemanfaatannya).
31
Art. 8 of the Presidential Decree No. 40/1996 on land tenure.
32
See the Presidential Decree No. 40/1996 Art. 12, Section 1.
33
See Art. 20 Section(1) The Basic Agrarian Law 1960.
34
See Presidential Decree No. 10/2001.
35
In a book entitled Recrafting the Rule of Law: The Limits of Legal
Order. Hart Publishing edited by David Dyzenhaus, Christine
Sypnowich, talking about the importance of the Rule of Law quoted
Thomas Scanlon: “ownership is relevant in determining theboundaries of our zone of privacy, but its relevance is determined bynorms whose basis lies in our interest in privacy, not in the notion ofownership”

unsolved riddle. In some nagari, the authority over nagari
resources has been officially handed over by the head of the
Nagari Adat Council to the Local Government. In other nagari
compromises between the two are negotiated, which makes
the land tittling process ambigous and tedious. The lack ofclear ownership resulted in massive land takeovers by thethen colonial administration as well as the military during
36
president Suharto’s New Order . In fact the ambiguity
surrounding the registration of tanah ulayat in west Sumatra
region did not begin in recent years; it dates as far back asduring colonial times. When the Dutch occupied the island,
they denied local communities’ rights over land as they werebased on adat law which was not recognized as a proof of37
ownership in Dutch law . To run its land expropriation
agenda the Dutch administration (King William III) enacted on
20 July 1870 a law called The Domain Declaration of
38
Sumatra’s West Coast . Its sections 2 and 3 declared land,
for which “ownership” could not be proven, to be the domain
39of the state . The State could decide that this land be put toeconomic use, usually in the form of a long lease (erfpacht) of
75 years. Since each piece of land needed to have an ownerin the colonial legal logic, it was considered inevitable that thestate became the owner of that land given the absence of any
specific owner (Franz and Keebet Von Benda Beckmann).
Notorious are the declarations of state domain over resourceareas that, in colonial interpretation, were deemed to be'waste lands' or 'terra nullius'. Most post-colonial states haveretained and even expanded proprietary rights over vast
40
resource environments .
In my enquiry of legal pluralism over land tenure in West
Sumatra province, I have presented an overview of thehistorical development of the nagari government. I haveargued that it is a traditional government system at the village
level vested with power to control all aspects of life in thecommunity in accordance with (adat). I have also discussed
what a tanah ulayat refers to and the difficulties involved in its
registration. And finally, I have pointed out thatunsynchronized regulations, unclear land ownership, unkept
promises and the non-respect of adat have contributed into
the outbreak of several land-related conflicts throughout West
Sumatra province.
Conclusion
Collective land ownership as that of tanah ulayat in theprovince of West Sumatra is meant to prevent clashes amongcommunity members on the basic of commonness. It could
also be seen as a democratic system for it is oriented toward
promoting the general interest of its members. However, as
the Minangkabau society evolves from an agrarian to anindustrial one, conflicts over communal land become more
and more inevitable (community protests at Nagari Kapalo
Hilalang, Semen Padang, Lubuk Kilangan, and Kinali). Legal
pluralism helps reduce the gap between West Sumatran local
government and the minangkabau people through the nagari
system. But it also brings about contradiction, andcontradiction implies not only a flaw in reasoning process, or41lack of understanding of the issue at play , but it also shows
distinct institutions fighting for legitimacy (Jon D. Unruh,
36

See Donald K. Emmerson (1999), Indonesia Beyond Suharto,
Polity, Economy, Transition. p. 31.
37
Dr. Afrizal quoting Harsono 1999, p. 4142.
38
See Law No. 15, S. 1870.
39
Read Mahadi, Uraian Singkat Tentang Hukum Adt Sejak RR Tahun
1854, p. 101.
40
See Franz von Benda-Beckmann, Legal Pluralism and Social
Justice in Economic and Political Development, IDS Bulletin Volume
32 issue 1 2001.
41
N. W. Barber, Legal Pluralism and the European Union, European
Law Journal, Vol. 12, No. 3, May 2006, pp. 306–329.

Eubios Journal of Asian and International Bioethics 25 (May 2015)2003). The co-existence of plural normative and institutional
orders offers opportunities for many actor groups to pursue
different economic and political objectives (Benda-Beckmann
42
and Taale, 1992:83). Brian Z. Tamahana agrees with thiswhen he argues: “two coexisting bodies of law, State andadat, are brought into clash in a manner that unsettles both,allowing competing claimants to point to different legal
sources in support of their conflicting positions”.
Thissituation is rather forum shopping (K. von Benda-Beckmann,
1984), and does not comply with the Rule of Law concept as
there is no legal certainty. Tanah ulaya being the property of
the Minangkabau people as a whole based on their tradition
make its registration difficult, thus vulnerable to predators.
Governments should respect local people’s tradition and stop
encroaching on tanah ulayat and side with the people
whenever an intruder invades and seize their land and otherland related assets. A government that takes away or can notprotect the rights and properties of its people is nogovernment at all (John Locke, 1689). For the sake oftransparency, Nagari leaders should declare all lands andother land related assets under their control, make annual
land management reports, and be held accountable for every
one of their actions by the community. The local government
together with the provincial parliament should remove
ambiguous and competing agrarian regulations, and ensurethat land regulations are made with their effective participationand consent of the nagari government and other kinshipleaders who in turn should be literate and be provided withlegal training so they are not easily deceived by thegovernment and investors.
Acknowledgement
This research was made possible with the support of the Epistema
Institution Jakarta, Indonesia. The author expresses his gratitude to
the Law School of Andalas University Padang and Pusako, its Centerfor Constitution Study under the leadership of Professor Saldi Isra towhom I am really grateful.

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Origin and the Process of Contemporary Agrarian Protests in West
Sumatra, Indonesia, Thesis for Ph.D, The Flinders Asia Centre,
School of Politics and International Studies, Faculty of Social
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Benda-Beckmann, F. dan K, (2004), Struggles over Communal
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University Press, 2004, Chap. 8. P.108-110.
42

See Brian Z. Tamanaha, Rule of Law and Legal Pluralism inDevelopment. Legal Studies Research Paper No. 11-07-01,
Washington University in St Louis, School of Law.

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David Dyzenhaus (1997), Recrafting the Rule of Law: The Limits ofLegal Order. Hart Publishing, p 182
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Franz von Benda-Beckmann and Keebet von Benda-Beckmann(2013), Political and Legal Transformations of an Indonesian Polity:
The Nagari from Colonisation to Decentralisation. Cambridge
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78

Eubios Journal of Asian and International Bioethics 25 (May 2015)

It is time to think! Changing
faces of family and Marriage
and Parenting- Jayapaul Azariah, Ph.D.
Former Professor and Head, Department of Zoology, University ofMadras & Founder President, All India Bioethics Association

Abstract
Stability of any human society is rooted in its institutions.
These institutions are education, health care, human rights
and marriage, to name a few. Due to the rapid advancementof science and technology these institutions undergo marked
changes in maintaining their social and cultural values. This
paper examines the bioethical issues that are emerging in theinstitution of marriage, family and parenting, as a result ofchanges in social and cultural values.
Marriage from time immemorial has been a public event.
The earliest report is found in the Old Testament when Labanmade his daughter’s wedding a ‘public event’ by “gathering
together all the men of the place and made a feast” (Gen.
29:22). There are several options in opting the partners ofmarriage: (i) marriage is between a man and a woman (ii)between two (or some greater number of) persons and (iii)
between two creatures. The legal definition of marriage ischanging. Which is the right definition? Changing
phases/faces of marriage is a bioethical challenge.
Similarly the number of parents a child can have ischanging. Traditionally a child can have two parents, a father
and a mother. Currently this number is changing. With theonset of one parent family a child may be denied the benefit
and luxury of two parents. In some countries the number ofparents a child can legally have is more than two. The
bioethical implications of teaching bioethical issues ofmarriage and family are discussed.
Introduction
Human institutions like education and marriage contributedirectly to societal stability. A country is known by its people’s
attitude to the institution of marriage. The ancient Vedic
culture recognized the value of marriage, family and parenting
but sacrificed the individual human rights of the wife. Society
made it very difficult for a married woman to break away fromher family. Modern science and technology (S&T) havebrought discernible changes in the core definition of marriage,
the structure of family and an increase in the number ofparents a child can have.
This paper examines the results of techno-science andrelates them in the context of societal problems of marriage.
Information contained in primary and secondary sources havebeen employed to discuss and construct the paper.
Public Religious Event
Traditionally marriage has been a public event. If a man anda woman marry secretly then child birth will make it public. In
the Old Testament, Laban made his daughter’s wedding a‘public event’ by “gathering together all the men of the placeand made a feast” (Gen. 29:22). It is also a cultural event
which varies from one group to another. In all religious
cultures marriage, is a legal and a social event. It has legal
dimension in that a ‘marriage certificate’ must be obtained
from a government approved agency. Although there aresome variants in marriage, many cultures have restricted
marriage as a union between a man and a woman, which is a
traditional type of marriage. There are some cultures whichallow multiple numbers of men or women to be part of themarriage agreement.
Traditionally marriage is a religious event. Religions do
recognize that for the “human society to stand upon firm
foundations” it is necessary that the institution of humanmarriage be “held in honor.” A society’s firm foundation issecured through the life-long stable relationship between thehusband and wife. Family integrity is the key for social
wellbeing: If marriage breaks then society breaks. In somesocieties, for some people, marriage may break but weddings
continue! That society ends up as a nation of individuals.
Traditional marriage partners
There are three types of choosing the partner of a person in
marriage: (i) Marriage is between a man and a woman (ii)between two persons and (iii) between two creatures. The
legal definition of marriage is changing. In the second
category the word “Persons” stands to cover two same-sex
persons. As long as two men or two women (persons) loveeach other and maintain a committed for a life-longrelationship then it is really a marriage. In the third category“creatures” would include non-humans (animals) and objects.
There are instances of a woman marrying the Eiffel Tower(Wikipedia, 2007) and a man marrying his own photo!
Interestingly a man addicted to pron-movies has applied forlicense to marry his computer (Web, 2014). Franklin Kameny,an invitee to the White House in 2009, advocates that“morality is a matter of personal opinion”. And hence “Ifbestiality with consenting animals provides happiness tosome people, let them pursue their happiness. This isAmericanism in action” (Mehan, 2014). Americans are great
path makers from cosmos to adding cosmetics to marriage.
As long as this cultural position exists, then all the bioethicists
will never be out of job. Changing phases/faces of Marriage isa bioethical challenge. Which is the right definition? There isan acid-biological-test to assess which definition is right.
Marriage is child-centric. Whichever life partnership producesa child that union is the right type of marriage. As on date only
the biological union between a male and a female can givethe couple a child.
Changing phases/faces of Marriage
Legal Status and definition of American Marriage isundergoing marked changes!
On Sept. 21, 1996 the USA enacted an Act entitledDefense of Marriage Act - DOMA - [110 STAT. 2420
PUBLIC LAW 104–199—SEPT. 21, 1996 LEGISLATIVEHISTORY—H.R. 3396:]. This law (DOMA) was signed by thethen President Bill Clinton. DOMA provided a legal definitionof the words like ‘marriage’ and ‘spouse’. Accordingly “theword ‘marriage’ means only a legal union between one man
and one woman as husband and wife, and the word ‘spouse’refers only to a person of the opposite sex who is a husband
or a wife.’’ Currently this Act is not indefensible since, in theview of differently enabled people with different sexual
orientations, it provided an official sanction for discriminationof citizens who do not conform to the above norms. Moreover,
the Act denied the same-sex-couples all the benefits grantedby the federal government such as social security survivor
payments, the right to file joint tax returns and many otherfringe benefits (Editorial, 2011). Hence a growing number ofsame-sex lobbyists of American society have been
advocating that the word “marriage’ needed to be redefinedso as to include other types of sexual orientation of gender
relationships such as co-habitation, Same-sex-union anddome

Eubios Journal of Asian and International Bioethics 25 (May 2015)
Implications of the DOMA
Since the DOMA law categorically restricts the use of theword marriage as a legal union between a man and woman
any union between two members of the same sex is ineligible
to be categorized as marriage. Since DOMA also explicitly
restricts the usage of the word “spouse” which is to be used
only in the context of heterosexual union any other context
such as same-sex- union, the word ‘spouse’ cannot be used.
Logically same-sex union also does not result in a family andhence “functional role play words like husband and wife can’t
also be used” (CE 2012). Because of these complications
such legal unions are called “civil union”. In any deviations
from heterosexual marriages the four issues are to beconsidered: (i) Same-sex couples (ii) Same-sex marriage (iii)
Same-sex reproduction and (v) Same-sex parenting.
Redefining family radically
Futuristic thinkers can foresee the upcoming qualitychanges in human parenting. One such person is Dr Kamal
Ahuja, a well-known IVF specialist at the London Women’sClinic. Dr. Ahuja voiced: “The definition of a traditional family
is progressively fading… Families of the future may combine
up to five parents. Regardless of culture, the evidence is thatchildren adapt well and it’s the quality of the nurturing
environment which is important” (Marquandt, 2011). Current S& T research is opening the family-door for children to havesix, eight, even a dozen parents (Lovett, 2012). Some say sky
is the limit!
Single but Moms - But Fatherless
Before the onset of sexual revolution in the Western
Hemisphere, starting from the 1960s, most families in USA
were of traditional types. By traditional family it was generally
meant that a family constituted by the legal union of a woman
and a man. When a child was born then it was a two parent
family, the man became the father and the woman became
the mother. It is a child’s right to have a father and a mother.
At the unfortunate instance of a woman losing her husband in
war or by any accident or by divorce then the mother took up
on herself the additional role of the father and such a situation
was a ‘single parent family’. A separation between a father
and a mother through tragic process of divorce also resulted
in a single parent family when the mother chooses to remain
single. If a woman or a teenager accidentally andunexpectedly becomes pregnant in a casual sexual
relationship and avoids abortion to give birth to a child thenshe would constitute a single parent family.
A woman may remain single if she chooses to beunmarried. Such an unmarried woman may want to become a‘mother’. In which case she can choose a sperm donor or asperm bank to get her impregnated to become conceived; it isby her own choice she chooses the motherhood. Such afamily is termed as “families of choice”. Of late such a culture
in building the family is changing in the western world.
Traditionally the formula for a family will be: Children + two
parents = family. This equation is changing and the new
equation is: Children + absentee fatherhood = a new type offamily. This type of new family is termed as the “intentionalfamily”. It should be noted that a woman can create a“fatherless” family by inseminating her posthumously with herlate husband’s frozen sperm. Similarly through a somatic
reproductive cloning technique a “fatherless” and a “sexless”
family can be created.
“Intentional families”
According to the British philosophy Professor SusanneGibson “single mothers” are “those who “practice…intentional
single parenthood” (Gibson, 1995). Extending such a notion
Professor Kathleen M. Galvin of Northwestern University

79

defined “intentional families” as “families formed without
biological and legal ties, [which] are maintained by members’
self-definition. These ‘fictive’ or self-ascribed kin become
family of choice, performing family functions for one another”(Galvin, 2006).
Emerging New Family Values
Intellectuals with academic excellence provide further
impetus in bringing about the tide of cultural and socialchanges in family values. Such changes were brought about
by the publication of convincingly well written books which
open the eyes of knowledge of common people including
church leaders who are willingly sanction a social and culturalchange even if it is diagonally opposite to biblically sounddoctrines relating to Marriage and Sex. If an established
Church can break its own doctrinal norms then that action
opens the flood gates for a paradigm change in society. In her
book with a provocative title such as “Single by Chance,
Mothers by Choice: How Women Are Choosing Parenthood
without Marriage and Creating the New American Family”
Hertz (2006) narrates an instance where the Church gave
importance to an unmarried woman’s intensions to become amother through artificial insemination. The Church pastor
endorsed her ‘crazy’ desire and told her: “It’s completely
natural that you want to be a mother, of course you want tobe a mother. And of course, it would be more perfect if you
had a husband. But you would be a great mom. And thischurch community loves you, and I know they will support you
in this”. Armed with the sanction of the Church Elders she
had to cross other objections, if any, from her school principal
where she worked as a teacher.
Single Father by Choice
In a Man’s case it is not as simple as that of a woman to
become a father. First, he needs to procure a female donor
who can lend him a human egg. Of course he is the sperm
donor. The story is not yet over since he needs to find out
another “gestational” mother who could carry the fertilized egg
with his sperm to full term and deliver a living baby. It is his
own choice to bring that living human baby into the world.
Hence he comes a “Single Father By Choice” (SFBC).
Because she carries the conceptus derived by fertilizing a‘third party’ woman’s egg and not her own she becomes a
gestational surrogate mother, On the other hand a ‘traditional;
surrogate mother carries a conceptus conceived with her own
egg.
Motherless-Single-Father-By-Choice-Family!
Mr. Ian Mucklejohn (58) of UK purchased a human egg froman egg donor Ms. Melissa Valdovinos of USA and rented thewomb of surrogate Ms. Tina Price also from USA. He spent
about 50,000 pounds. He became the father. In the
reproductive biological world “Ian Mucklejohn made history
when he became the first single man in the UK to have his
own children without a female partner”. "My children are theproduct of a single-parent family, like many of their friends
and lots of people in today's society” (BBC 2006). Although
Ms. Melissa is the biological mother she did not assume thefunctional role of a mother and hence in the birth certificate of
the three boys the column “mother” was left blank because
they come from a motherless-single-father-by-choice-family!
In India Mr. Amit Banerjee (45 years), of Kolkata (Calcuttacity), is a married man but childless and a divorcee. According
to him "A child is always an extension of the self. I wanted tosee myself through a baby," So he expressed his intentions toestablish a family through the well established technology ofartificial reproductive technology (ART). An unidentified
woman became the egg donor and a married woman waschosen as the surrogate mother. In the year 2005 an eminent

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Eubios Journal of Asian and International Bioethics 25 (May 2015)

IVF doctor Dr. Sudarshan Ghosh Dastidar who is connectedwith the Indian Council of Medical Research, and with the
National Academy of Medical Sciences performed the IVF
technology to make Mr, Banerjee the first Indian to launch thenation’s SFBC community.
Bioethical Issues
There are two issues: (i) Legal and (ii) Moral. “The legal
status of the baby should be determined by the courts as thewoman who gave birth to the baby and the one who donatedthe ovum were not married to Mr. Banerjee, so both can claim
the baby, like Banerjee." In order to establish his parenthood
Mr. Banerjee has to legally adopt the child. Morally such apractice is different from the traditional practice. Traditionallya conservative person would call it an “illicit sex”. An intention
to have a technological child covers it all! In brining a childinto the world there were three main players – one man and
two women - (Mr. Banerjee, egg donor and surrogate woman)and two other persons in the background (divorced wife of
Banerjee and the husband of the surrogate woman). The
primary three players could be considered as ‘parents’ andthe secondary two persons could serve as ‘intentional
parents’. Moreover it is a case where there was no mother, nomarriage and no sex. It is a case of SFBC (BBC, 2005)
Intentional Family
As early as 1997 an interesting but complicated case of
dispute of parental ownership of a child was registered with
the Court of Appeal of California. In this case a decision has
to be made as to who is the “legal parent’ or “biologicalparent” or ‘genetic parent”. Two infertile people by nameLuanne and John Buzzanca made a decision to build theirfamily by using donor sperm from an unknown person and adonor egg. They employed a third party person as a surrogate
mother. There was no sex involved in any of the procedure ofchild birth which involved five persons. The case became
interestingly complicated; Luanne and John split in theirrelationship before the child (Jaycee) was born. Then thequestion of custody of the new born child came before the
Court and the surrogate mother also claimed to secure thecustody of the child. Interestingly the Court used the principle
of intentionality to pass the judgement. “The court decision
was made on the basis that these two people [Luanne andJohn Buzzanca] were the ones who intended to have thischild together” (Marquandt, 2011). The primary intent toparent a child laid a guiding principle for future cases –parenting disputes among lesbian couples or in cases where
IVF reproductive technology is used to procure a child wherein the basic question is asked “who made plans to havethe child”. A new concept in family building was initiatednamely “Intentional Family” wherein “functional parenthood”
rests “around who actually cares for the child”. A new
doctrinal concept is emerging which separates “marriage”
from “parenting”. Storrow(2002) defined intentional
parenthood as that “planning and preparing for the birth of achild—not marriage—are the essential criteria in determining
who is—and is not—an intentional parent.” Such a scenario
opens up a larger arena of “families by Choice” in whichchoice is the key player and other factors such as money,
marriage and genetic relationships are sidelined.
The new acronym, the SMBC stands for the emerging
reproductive doctrine - Single Mothers By Choice (1981).
These mums of choice choose their baby’s unnamed andabsentee father from a nearby sperm bank for cash. It issignificant to note that both Luanne and John Buzzanca were
not the biological parents and the child was not procreated bytheir sexual act. The birth of the child was through a thirdparty relationship. Nevertheless, their “intention” to have thechild is tantamount to sexual reproduction.

Rationalization will lead to Legalization
We can expect the trend to continue, but I think it raises
many social issues that should be further discussed. “Thehomosexual movement shares in the larger rationalization of
the sexual revolution and is invested in its spread. The
acceptance of each variant of sexual misbehavior reinforces
the others.” The desire to rationalize these behaviors
becomes an engine for revolutionary change throughout
society. “As a moral act, sodomy should be normative. If it isnormative, it should be taught in our schools as a standard. If
it is a standard, it should be enforced” (Reilly, 2014). It is atime tested process for successful implementation: firstrationalization then legalization through socialization to
implementation and enforcement into high school curriculum.
Society is changed forever.
References
BBC 2005. IVF son for single Indian father. BBC One-Minute World
News. South Asia, 4 October 2005
BBC 2006. I’m the daddy BBC One-Minute World News 17 May
2006 UK.
CE 2012. History of marriage. Catholic Encyclopedia. Online.
13.02.2012
Editorial, 2011 In Defense of Marriage, for All. New York Times.
thPublished: February 13, 2011, page A26 14 Feb Edition.
Galvin, K M., 2006 “Diversity’s Impact on Defining the Family:
Discourse-Dependence
andIdentity,”
In
The
FamilyCommunication Sourcebook, Eds. Lynn H.Turner and RichardWest (Thousand Oaks, CA: Sage Publications, 2006), p.6.
Gibson, S., 1995 Reasons for Having Children: Ends, Means and‘Family Values, J. Appl. Phil., 12 (3): 231–240. (November 1995).
Hertz, R., 2006 Single by Chance, Mothers by Choice: How WomenAre Choosing Parenthood without Marriage and Creating the New
American Family, Oxford University Press, Oct 1, 2006 - Social
Science – Pp. 273
Lovett, I., 2012 Measure Opens Door to Three Parents, or Four.
New York Times. Published: July 13, 2012
Marquandt, E., 2011 One Parent or Five. A report published by theCommission on Parenthood’s Future and the Institute for American
Values, USA. Online - pp.70. Accessed 16/07/12.
Mehan, G.T., III 2014 Does sex have a purpose? MercatorNet
7 July 2014.
Reilly, R. R.,
2014 Making Gay Okay: How Rationalizing
Homosexual Behavior Is Changing Everything. Ignatius Press, San
Francisco, USA. 250pp.
Storrow, J.F., 2002 “Parenthood by Pure Intention: Assisted
Reproduction and the Functional Approach to Parentage,” Hastings
Law Journal 53, no. 597 (2002): abstract,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=310162.
(Quoted from Marquandt 2011).
Web, 2014 Man wants to marry his porn-filled laptop – USA Today
www.usatoday.com/story/news/nation/2014/...
man...marry.../8761997/
Wikipedia
2007
Erika
EiffelWikipediaen.wikipedia.org/wiki/Erika_Eiffel\

Eubios Journal of Asian and International Bioethics 25 (May 2015)

Ethical Issues of Clinical
Ethics and Research Ethics
in the Developing World andPakistan: Is there any
Solution?
- Zoheb Rafique, MBBS, Mbioeth
Lecturer, Department of Biochemistry, Liaquat University of Medicaland Health Sciences (LUMHS), Jamshoro, Sindh, Pakistan
Email: dr_zohaib@hotmail.com

Abstract
Health research plays an important role in addressing theinequities in human development and health, but in order toachieve these objectives, research should be based on
ethical principles and sound scientific knowledge. Although it
is accepted fact that bioethics play a pivotal role in healthrelated research in the developing countries, much of recent
debate has focused on the controversies surrounding
internationally sponsored research and it has taken placelargely without the adequate participation of developing
countries. The relationship between the ethical guidelines andregulations, and also indigenously/locally sponsored andpublic health research is not adequately explored and needs
further exploration.
Discussion
Globally there are wide inequalities in the economic
development and in burden of diseases and it is certain thatthe accelerating course towards globalization without requisite
safeguards and the protection of human rights will only
worsen this situation. The funding of research in thedeveloping countries has been the subject and debate ofmuch attention recently. The forum for global health research
has indicated that less than 10 % of world’s researchresources are reserved for 90 % of total health problems.
Recently, there was considerable debate regarding ethicalconduct and the reviewing of health related research, but thisdebate has mostly taken place among the bioethicists andresearchers in the industrialized countries. The view points ofpublic health researchers and practitioners from thedeveloping countries have been underrepresented. Researchneeds to respond to the community needs and also tonational priorities, and development of a national research
agenda in the developing countries must be firmly groundedin the process of priority setting. However a more difficult
challenge is to involve communities themselves in the
research questions and to link their research to theirdevelopment. Pakistan, being a poor country, has very limited
health care resources. Treatment options for individual
patients and between patients for free and subsidized
treatments are common ethical dilemmas. Thus, prioritizing
illnesses and people is an enormous ethical challenge and avery common part of every day medical practice in Pakistan(1). Conducting research in hierarchical, traditional countries
such as Pakistan adds yet another dimension to thedifficulties in assuring that it is done in an ethical manner; andan “indigenous” layer of cultural norms makes it even more ofan uphill task, but it is a task that we are morally bound toshoulder. The historical and social construct of the Pakistan
culture, the socioeconomic realities (with similarities to othercountries in this region) and some of the deeply rooted values
and customs pose challenges that are specific to this part of
the world. We who live here know them, and only we canaddress them. Perhaps the most important factor that places

81

human subjects at risk in this part of the world is themagnification of “power differentials” inherent in hierarchicalsocieties such as Pakistan. This difference is particularly
pronounced in the interactions between physicians andscientists and those they take care of or enroll in research
projects. In Pakistan, scientists and physicians constitute the“elite” section of society. They are by and large the “EnglishSpeaking”, affluent, highly educated minority in a society
where the majority of those they deal with in their professional
lives are “Urdu-Speaking”, poor, generally illiterate or
misinformed and disadvantaged in many other ways (2).
Local researchers trained within the country have no conceptof research ethics. There is a growing awareness that
research cannot progress without better research ethics
systems in developing countries. At the close of the lastcentury, several of the international agencies involved infunding health research, including WHO, tried to seriously
examine the role of health research as an important
contributor to sustainable human development. They also
attempted to assess how governance of research at national,
regional and global levels be made more effective andefficient. Ethical practice in health care and research is not
only needed to ensure equity in health care and research, butalso to project individuals and communities from unnecessaryrisks and harm (3). We can make clinical research more
ethical in Pakistan by following all the International guidelines
regarding clinical research ethics. Health research may play
an important role in improving health by evaluating anddeveloping interventions and exploring strategies, which canempower peoples to change unhealthy behaviors (4). There
are five key ethical principles of ethical research that appear
across the ethical codes of research institutions andassociations. These are a) informed and voluntary consent; b)confidentiality of information shared; c) anonymity of research
participants; d) beneficence or no harm to participants; and e)
reciprocity. Researchers are expected to obtain informed
consent from all those who are directly involved in research orin the vicinity of research. This principle adheres to a larger
issue of respect to the participants so that they are notcoerced into participation and have access to relevant
information prior to the consent. Usually consent is obtained
through written consent forms, and necessary elements ofconsent are identified by the review committees. These
usually include prior information on key elements of researchsuch as purpose, procedures, time period, risks, benefits, anda clause stipulating that participation is voluntary and theparticipants have the right to withdraw from the study. The
principles of confidentiality of information shared andAnonymity of Research participants is also concerned withoffering respect and protection to research participants
through assurance of confidentiality of information shared andanonymity by not revealing the identity of the individuals andinstitutions involved. Typically anonymity is provided throughthe use of pseudonyms. The principles of Non-maleficence,
Beneficence and Reciprocity bind the researchers to provide
the participants with an outline of the risks and benefits
involved to the participants in the study. The principle ofreciprocity requires that the researchers consider those ways
through which participants could be compensated for theirtime and effort. Typically information about risks and benefits
are expected to be provided in a summary form in the consent
form and/or in a brief write up attached with the consent form.
These principles and procedures of an ethical engagementwith a research study are laid out with the best of intentions toprotect participants from malpractices and breach of ethics.
However, the approach is taken from clinical medical
research perspective with a concomitant view of epistemology
and ontology. Hence, it is assumed that there is a well statedhypothesis which is to be tested, the relationship between the

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Eubios Journal of Asian and International Bioethics 25 (May 2015)

researcher and researched is clearly divided and bounded,
and it is possible to outline the potential risks and benefits insome detail prior to the study (5). Knowledge produced as aresult of health research, if disseminated on a wider scale, is
global public good. This Knowledge contributes to policies,
performance and activities of the health system and in the
improvement of population’s health (6).
Conclusion
Bleak and confusing as the field may be, the last few
years have been a watershed in international bioethics andthe heightened debate has pushed ethical issues surrounding
health research in developing countries into the limelight. The
challenge is to develop a sound plan for expanding this ethics
debate to larger issues of the global justice and equity, and to
make the process as participatory and democratic as
possible. The main goal in all these activities should be
reduction of the global inequalities in health. Most of publichealth related problems in South Asia and their immediate
causes are related to distal factors such as illiteracy, poverty,societal and gender inequities. The underlying issues must be
understood to develop meaningful and sustainable solutions(7). This will take time, but this is the only way to bring abouttrue change in ethics of international health research.
References
1. Adnan A. Hyder and Sarah Nadeem. Health Ethics in Pakistan: A
Literature Review of Its Present State. J Health Popul Nutr. 2001;
19(1): 6-11.
2. Farhat Moazam. Research and developing countries: hopes andhypes. East Mediterranean Health Journal. 2006; Vol. 12(Supplement no. 1): 30-36.
3. Mohammad Afzal. Health research in the World HealthOrganization Regional Office for the Eastern Mediterranean. East
Mediterranean Health Journal. Vol. 14: 67-73.
4. Mohammad Abdur Rab Et Al. Ethical Practices for HealthResearch in the Eastern Mediterranean Region of the World HealthOrganization: A Retrospective Data Analysis. Plos one. 2008; Vol.
3(5), e2094.
5. Anjum Halai. Ethics in Qualitative Research: Issue and Challenges.
Edqual Working Paper. 2006; Quality no. 5: 1-13.
6. Tikki Pang Et Al. Knowledge for better health-a conceptual
framework and foundation for health research systems. Bulletin of
the World Health Organization. 2003; 81(11): 815-820.
7. Zulfiqar Ahmed Bhutta. Globalization, Structural Adjustments andPublic Health in South Asia: What does it mean for International
Networking in Health Research and Researcher Training? 2001;
1-23.

Reflections on Grassroots
Democracy: Its Role inCreating Resilient andSustainable Communities- Christopher Ryan B. Maboloc, MA, MA Applied Ethics
Philosophy Department, Ateneo de Davao University, Roxas Ave,
Davao City, Philippines
Email: ryanmaboloc75@yahoo.com

Abstract
This paper will attempt to explain the relationship between
disaster and human deprivation and trace the ills that result
from it to institutional or policy failures. It then proposes
grassroots leadership as a way of bridging the gap that faulty
and undemocratic structural mechanisms make. The paperargues that democratic leadership is crucial in creating
resilient and sustainable communities.

Disasters and Human Poverty
The poor are more often than not the main victims during
natural and human calamities. The reason is that they live inunsafe places due to their lack of access to land. They
migrate to urban centers and live in vulnerable ground due tothe lack of job opportunities in rural areas. Majority of poorfamilies often settle in dangerous slum areas that expose
them to flooding, monsoon waves, conflagration and othertypes of calamities.
The long-term effect of disasters like loss of family members
and homes are an impediment to human progress anddevelopment. Families grieve for months and are unable tocope up with the tragedy. Human well-being is compromised.
Disasters are misfortunes that render helpless the poor andleave a deep scar into their already miserable lives.
Is there a way out of this seeming irreparable social andexistential malady? Perhaps, the distinction that Isaiah Berlin
makes between positive and negative freedom is still verytrue to this day. Majority of Filipinos are still struggling against
the ills of un-freedom, inching his or her way, waging battles
here and there, stifled by unjust and unfair systems.
Development is nothing but a dream. Development, according
to Amartya Sen, is the process of expanding the real
43
freedoms that people enjoy.
Unless we emerge outside of this hell and win our freedom
from a life of penury and anguish, that day when a young
child can actually celebrate his or her freedom to become theperson who has a fair shot in his or her pursuit of happinessmight not come.
One obstacle to human development involves somethingthat is structural. Government policies can be anti-poor. Thismeans that those who have less or who have almost nothingin life resign to the stigma of material depravity because of thelack of means. Access to government support is difficult not
only due to logistical problems but because of the absence ofempowering mechanisms that will connect people with theproper authorities.
Filipinos do not trust their government. They can trust someleaders, especially the popular ones, but as a whole, they findno good in government. Poor Filipinos view their government
as a group of usurers taking advantage of their positions. As
such, people simply rate themselves as very poor because
they see nothing beyond their poverty. One succumbs to thevery ills and monsters that injustice and inequality bring forth.
An elitist political culture can undermine the goals of good
governance, rendering laws and policies as useless pieces of
paper, including those policies that seek to address better
planning in order to mitigate the impact of natural calamities.
The rich, who dwell in gated communities and more securegrounds, are seldom the victims. There is some sentimentthat the lack of concern for the welfare of the poor seems toreinforce the evil of a hegemonic system.
In 1970, the Jesuit John Carroll writes of the failure ofPhilippine institutions as more of “unmet expectations”. While
political stability is always crucial in advancing change, there
must be something more fundamental than merely improving
the country’s immature political culture. Politicians do not justcome from a vacuum. They exist in a culture alreadyentrenched in elitism, violence, machinations, and power.
This fuels the poverty of the country’s majority. Jeffrey Sachs
notes that: “The key problem for the poorest countries is thatpoverty itself can be a trap. When poverty is extreme, thepoor do not have the ability – by themselves – to get out of44
the mess.”
43

Amartya Sen, Development as Freedom (Oxford: Oxford University
Press, 1999), 3.
44
Jeffrey Sachs, The End of Poverty (London: Penguin, 2005), 56.

Eubios Journal of Asian and International Bioethics 25 (May 2015)
Sachs mentions lack of capital, poor infrastructure, disease
and lack of savings. There must be emphasis, however, on
the huge impact of political corruption, abuses of politicalregimes, human and natural disasters – things that are notmerely economic in nature. The above contribute in a huge
way to the lack of opportunities for people to provide
themselves with the instruments that will enhance theirwelfare. Political unrest, for instance, displace people.
Abusive regimes cause tremendous suffering on the populace
because funds intended for programs do not go into the
supposed beneficiaries, including those intended for victims ofcalamities.
Disasters and Policy Failures
Human deprivation or a person’s lack of access to his or her
45
entitlement to the basic goods is due to policy failures.
Amartya Sen has shown this in his studies of the Great
Bengal famine and others. Policies of exclusion in theeconomy suggest that market forces dictate the flow of goods.
The poor masses are obviously powerless. They are at thereceiving end of an unjust system that favors the rich anddeprives those who have no resource of a decent life.
While we have elected representatives in our politicalsystem, the masses are not really a factor in decision-making
processes. Politicians simply serve the ulterior motives of
their campaign benefactors. The poor are mere recipients ofdole-outs that they do not see the value of their freedoms or
capacities for greater creativity or purpose in the wholescheme of things.
Policy failures are most of the time made apparent in theslow response of the government during natural calamities.
While it is true that the power of nature is just too
overwhelming, faulty or weak institutional mechanisms
contribute to the loss of lives and the destruction of property
in a huge way.
Lack of leadership exacerbates the problem in as much as
human decision-making is something crucial when lives are at
risk. If lack of structural and policy coordination present
themselves as crucial issues, quality leadership should be
paramount. The lack of firmness in leadership decisions,however, contributes to the misery of the people.
As a country, the Philippines has very poor infrastructure. It
is therefore not ready for any major weather disturbance.
Then after each experience of calamity, plans are set in place
but there is always of problem in terms of implementation.
Politicians and bureaucrats simply point to the lack of funds
as the cause.
To address this huge deficit, cause-oriented groups
continue to advocate the empowerment of communities. The
academia has contributed its share by sharing vital
information pertaining to environmental stewardship. The
greater part though is in assisting communities in terms ofrelief efforts.
The bigger role of the church, schools, universities, NGOs,
and others in the background culture is to emphasize thevalue of resiliency and independence. Unless people learn
how to empower themselves at the grassroots level, it will be
hard for small communities to recover from a major calamity.
The damage done by inaction or one faulty decision at the top
is often too huge to overcome. However, empowering thepeople at the grassroots level can improve the survival rateand expedite the recovery of hard-hit disaster areas.
Case in Point: Barangay Daliao, Davao City
Democratic leadership anchors itself in the principle ofhuman empowerment. The basic idea herein is that people at45

Amartya Sen, Poverty and Famines (Oxford: Oxford University
Press, 1981), 78-83.

83

the grassroots level, given enough resources and autonomy,
can design and thereby create more sustainable communities
at their very level.
Many local governments have been unable to respond
immediately to relief and recovery efforts due to the lack of
empowerment even at the lowest level of governance. Local
leaders depend on powerful interests. In view of this, there issome deficit in terms of effective and efficient governance.
For instance, it is wrong to design bunkhouses that
disregard basic considerations of human dignity and wellbeing. Proper consultations are not only a formality. Theseempower people and gather ideas that contribute to a holistic
decision. The idea therefore is that the lack of consultation is
nothing but another symptom of unjust, hegemonic policy
structures that undermine the poor.
The Philippines Local Government Code of 1991 states that
it is the duty of every Local Government Unit to be at theforefront in disaster preparedness and risk reduction
management. Barangay Daliao, a community of 19,000
constituents, is at the forefront of maintaining that role to thecore. For instance, quoting from one rationale for a Disaster
Preparedness and Risk Reduction Management training thatit has sponsored, among others: “As the smallest unit of thegovernment, the barangay needs to gather its leaders anduse its resources in order to protect and promote the safety ofthe people. Due to the advent of climate change, this is a very
useful program that highlights the pro-active stance of thebarangay in disaster prevention.”
Leadership at the grassroots level is an integral part inmaking sustainable communities. People have the instinct tosurvive but due to the lack of available resource, they are
most of the time at a lost. Key to the above is organizationand management. The Sangguniang Barangay has fulfilled
this role.
From the point of view of organizational management, it has
mobilized a core of volunteers who will act as first aid
responders in the barangay. Led by Engr. Joseph Dumogho,
the Sangguniang Barangay has initiated a process that
includes recruitment, training, and monitoring. Some youth
volunteer organizations give their time, talent and effort, on
the sheer motivation that what they are doing is theircontribution to nation building.
An important element of any grassroots project is winning
the trust of the people. The Punong Barangay, Rodolfo B. Te,
is a kind, compassionate and committed person. He reports
for work for eight hours daily to attend to the needs of his
constituents. This is crucial because when disaster strikes,
committed public servants must lead all efforts to mitigate its
impact. On record, the Sangguniang Barangay Minutes report
that: “So far, Barangay Daliao is equipped with a siren thathas a span of four kilometers to warn its coastal villages of animpending sea swell. It has bought and provided fire
extinguishers to all its Day Care Centers. It has hand-heldradios that used by volunteers who make shifts round theclock. It has purchased disaster gears and equipment worth aquarter of a million for its volunteers. It has undergone
trainings in first aid, basic water safety and evacuation, fireand earthquake drills, disaster risk reduction andmanagement trainings, and a sustainable coastal
communities program. It also has stand-by vehicles forevacuation should the need arise.”
Based on the above, we can say that the Sangguniang
Barangay of Daliao, in Davao City, has exercised its
independence in providing itself with the necessary tools to
mitigate the impact of any disaster and to prepare itself for
any calamity. This shows that given the proper motivation, therequisite capability and the commitment toward the welfare of
the public, any LGU can be effective and efficient in
performing its task.

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Eubios Journal of Asian and International Bioethics 25 (May 2015)

Conclusion
Policy failures on the part of leaders cause greater miseryand burden to the people during disasters. Wrong leadershipdecisions worsen the situation of people. We can trace this tothe abusive and hegemonic nature of politics in thePhilippines. However, one way to address certain policy gaps
is by emphasizing the value of grassroots leadership.
Empowerment of people is paramount. Undemocratic
structural mechanisms cause problems in managing risk
reduction programs. Lack of consultations means abuses
become commonplace. The paper argues that democratic
leadership is crucial since it empowers local leaders increating resilient and sustainable communities. Local leaders
should provide quality leadership since they have the trust of
their constituents.

Breaking the Vicious Cycleof Hate and Revenge: The
True-Life Story of 'Wounded
Tiger,' A Lesson From
History- Timothy D. Boyle, Th.D.
Economics Department, Kwansei Gakuin University, Nishinomiya,
Hyogo, Japan
Email: boyle@kwansei.ac.jp

Abstract
Achieving peace between warring factions is almost always
an exceedingly difficult task, and unless there is a way ofenemies becoming reconciled through mutual forgivenessand acceptance, the vicious cycle of hate and revenge willcontinue to rear its ugly head. "Wounded Tiger" is a recently
released historical novel, soon to be made into a movie, thatis based on the true story of two soldiers from opposite sides
who thoroughly hated the other side, but who later becameclose friends and associates. Mitsuo Fuchida was thecommander and lead pilot of the Japanese bombing of Pearl
Harbor, while Jake DeShazer was a bombardier on the
Doolittle Raid that was the initial American response.
DeShazer was captured and spent over three years as a
prisoner of war, enduring torture and deprivation. The
kindness of a young American girl who had been raised inJapan and whose parents had been executed by theJapanese military was instrumental in bringing these two
together. It is a fascinating, real-life story that makes apowerful plea to our world today to become peacemakers andto bring reconciliation where there is hatred.
Ever since humans began walking on this planet, humanhistory has been one of strife and conflict. Peace has always
been an elusive goal, and even during times of relative peace,that “peace” has been one that is imposed by force or the
threat of force. The “Pax Romana” of ancient times was
simply a “lack of war,” because few were willing and able tochallenge overwhelming Roman power. The same could besaid about periods of relative peace ever since, including in
our present day. Whatever peace the world has been able totemporarily enjoy, it’s been this kind of “negative peace” — alack of war, rather than a “positive peace” built on mutual trustand concern for the other. Now, that kind of “negative peace”
is usually much preferable to war, but, of course, that
depends on how such “peace” is being enforced and what’s

being sacrificed in the process — namely, such things as
freedom and human dignity.
I believe that such “positive peace” will always be beyond
human effort alone, as we are “fallen creatures” with selfinterests that will always be in conflict with the self-interests ofat least some other people in a world of limited resources weare forced to compete for. Nevertheless, we are called towork for at least a “semi-positive” peace in which all have aplace at the table and mutual understanding and respect issought after. We are called to be “peace-makers” and not
simply “peace-keepers,” and we need to listen to each otherand support each other in finding the best ways ofaccomplishing that lofty goal.
What I’d like to do in this brief presentation is to present amodel that is based on a true story of reconciliation andforgiveness between avowed enemies. I have lived andworked in Japan for most of my adult life, first coming toJapan in 1968 as a student as part of a program with theEast-West Center in Hawaii, and I later returned as a shortterm missionary from 1971-74. After going to seminary to geta masters and doctorate in theology, I returned to Japan in
1982, where I’ve been ever since. I’ve been studying thelanguage and culture of this nation for 47 years and havedeveloped a particular interest in the history of the people ofJapan, where they came from and how their culture
developed through interactions with other cultures. While notdirectly related to the subject of this presentation, it isinteresting to note that a great deal of evidence points tostrong influences from even the biblical lands of ancient Israel
being transferred along the “Silk Road” to ancient Japan to
become integral parts of its native culture and religious
worldview. As with all nations, that cultural worldview has
played a primary role in the historical outworking of the
struggle between war and peace, justice and mercy.
Sixty-nine years ago, the world was just emerging from
WWII, and Japan was a devastated country trying to get backon its feet under the occupying Allied Forces led by the UnitedStates. How it got into that state of affairs is the theme of thisnovel called “Wounded Tiger,” the story of two soldiers from
opposing sides finally realizing that there must be a betterway and then dedicating their lives in a joint effort to pursue
peace and reconciliation. Those two were Mitsuo Fuchida,
who was the commander and lead pilot of the attack on Pearl
Harbor, and Jacob DeShazer, who was a bombardier on the
Doolittle Raid a few months later to bomb Japan in responseto that attack. The title of the novel, “Wounded Tiger,” refers
to Fuchida and the code he used to signal to the Japanese
fleet that they had been successful in initiating the surprise
attack on Pearl Harbor, “Tora! Tora! Tora!” or “Tiger! Tiger!
Tiger!” Indeed, Fuchida would become that “Wounded Tiger.”I have a personal interest in this project, as I am part of ateam translating this fascinating novel into Japanese forrelease in early 2015. We are just now finishing up the firstdraft of the Japanese version. My main task is checking to
see that the translation is faithful to the original, and I am also
advising the author, Martin Bennett, concerning the fine pointsof Japanese culture to make sure the novel is true to thecultural and historical facts. While the author has done anadmirable job in creating dialogs and filling in details of thestory that are not recorded in the existent records, a few“Americanisms” and other minor errors did find their way into
the original book, and these are also being corrected.
The book begins by giving some of the background that led
up to Japan’s aggressive expansionism that brought on thewar. After Japan opened up to the outside world after some
250 years of self-imposed isolation, it embarked on a path oftrying to technologically catch up with the West. The slogan
of the day was “wakon yōsai,” or “Japanese spirit, western
technology.” Not only did Japan feel the urgent need to adopt

Eubios Journal of Asian and International Bioethics 25 (May 2015)
western technology, they also felt they had a right to emulate
western colonialism as well. One has to admit that they wereamazingly successful at both of these endeavors. Within ageneration of emerging from the dark ages of feudalism, they
were building an empire, which they euphemistically called
the “Greater East Asia Co-Prosperity Sphere.”
Viewed from our present vantage point, we are naturally
quite critical of the ethnocentric assumptions andrationalizations that lay behind these actions, but the author
takes pains to understand the Japanese mindset of that day
within their own context. This, of course, in no way justifies
what they did, but recognizing and addressing legitimate
aspirations and grievances are integral to the peace-making
process.
When it comes to the story of “Wounded Tiger,” there are
two aspects of this clash of cultures that play particularly
prominent roles. The first involves that of national pride.
While Japan had gained considerable prestige by defeating
Russia in a short war in 1905, she still was not considered anequal player on the world stage by the western powers. Oneof the early scenes in the book takes place in San Francisco
Harbor in 1925, where Fuchida and his fellow Japanesesoldiers feel humiliated by the Americans. At that time, Japanand the US were still allies from WWI, and so the Japanese
were on a training mission to the US. The storyline includes
an episode where US sailors make fun of the Japanese andtheir older ship, which was dwarfed by the new American
battleships.
Feelings of superiority of one people over another hashistorically been a major cause of strife between nations, andJapan was both on the receiving end and the giving end
during this period leading up to WWII. The western powers
clearly perceived themselves as superior to Japan (not tomention a whole host of other countries), and they clearly
showed it by the way they treated Japan. But, Japan did thesame thing in its treatment of other Asian countries, and eventoday, this issue is not just something out of ancient history.
It’s still very much a live issue in our world today as well.
The second aspect brought out in the book is the concept ofrevenge. Seeking revenge against someone you feel has
wronged you is as old as human history and is something you
will find in all cultures.
However, the various cultural
worldviews that exist in our world today have different ways ofviewing and trying to control this universal urge. The culturaland religious worldview dominant in Japan during this period
was one in which revenge was glorified and thought of as a
virtue rather than a vice. The famous story of the 47 “Rōnin”
Warriors perhaps exemplifies this more than anything else.
While this tale of revenge was no doubt embellished over theyears, it is nevertheless based in true historical events. The
actual events took place between 1701 and 1703 in thewestern calendar, and the story developed into what becamein effect the “national legend.” It was taught in schools in away designed to instill in the Japanese the concepts ofabsolute loyalty and honor.
To give you a brief outline of what the story is about, the 47
samurai warriors were the loyal servants of their “daimyō” lordin the Akō fiefdom, which is an area not far to the west of
Kōbe, where I happen to live today. Their daimyō, Asano,
had been forced to commit ritual suicide by the leaders in Edofor attacking another daimyō, Kira, due to being insulted sobadly by him. Asano and his clan were thus disgraced, andhis loyal retainers were forbidden by the shogunate to takerevenge. However, the samurai code of honor required themto avenge the death of the master, and thus they were in afundamental conflict of values.
Forty-seven of Asano’s
retainers made a pact among themselves to conspire in an
elaborate plot to take revenge on Kira. It involved pretending
to live a life of profligate abandonment designed to convince

85

Kira and his spies that they were dishonorable former
samurai who were no longer a threat, and when the time wasright, well over a year later, they launched a surprise attackand killed Kira, even though they knew they would besentenced to death for doing so.
Their bravery anddedication to honor became the stuff of legend, and their
example was touted as the ideal for all Japanese to aspired
to. Needless to say, Fuchida and his colleagues were raisedon this stuff, and so it was certainly in the background leading
up to their surprise attack at Pearl Harbor.
In addition to the intertwined threads of the lives of Fuchida
and DeShazer, there is also one other strand that involves athird subplot that is integral to the story of how these twowounded warriors came together with a shared purpose andvision for peace and reconciliation. James and Charma
Covell had arrived in Japan as missionaries in 1920, and they
appear in the novel in the aftermath of the 1923 Great Kanto
Earthquake that devastated Tokyo and Yokohama. These
three strands of the story alternate with key episodes fromeach leading up to what happened during and immediately
following the war. The Covells do their best to lobby for thecause of peace, but are forced by circumstances to evacuate
to the Philippines, where they thought they could safely waitout the war and return to Japan to help rebuild.
The Japanese, however, were intent on expanding theirempire and procuring the natural resources they felt they
were being denied by the western powers, and so they soon
overwhelmed the defenses of the Philippines and began a
brutal occupation that caught the Covells in a bind. Theirchildren had already gone to the US for schooling, but Jimmy
and Charma had decided to serve the Filipino people while
they waited for the war to end. With their routes of escape cut
off, they had no choice but to flee into the interior mountains
with a small group of other foreigners. They were cared forby the locals, and they founded a small community they called“Hopevale,” hoping to merely stay out of sight and harm’s
way. The Japanese military, however, was intent on rooting
out the remaining guerilla fighters, and the residents of
Hopevale were caught by the relentless search. Even though
it was clear that these people were no threat, the order came
down for them to be killed, and so they were executed in whatbecame known as the “Hopevale massacre.”This is where their daughter, Peggy, comes into the picture.
She had just graduated from college when she learned of herparents’ death. While that was understandably a huge shock,she nevertheless decided to go to work at a prison campwhere Japanese prisoners-of-war were being held. Having
been born and raised in Japan, she was fluent in thelanguage, and so she was like an angel to those Japaneseprisoners, as she did everything she could to help them.
Their treatment in these holding camps in America was vastlydifferent from what they thought American and other Allied
prisoners must be receiving in Japanese prisons, and when
they found out what had happened to Peggy’s parents at thehands of their fellow soldiers, her kindness seemed all themore incomprehensible to them.
Among those prisoners in Japanese prisons were the eight
Doolittle Raiders that had been captured by Japanesesoldiers in China. All of them received severe treatment andeven torture, with three of them eventually being executedand a fourth dying of exposure. DeShazer himself cameclose to death from the poor treatment, but his life wasspared, and he eventually returned to a hero’s welcome in the
US. His life, however, had already been transformed by hisexperience in a most unexpected way. You would think that
he would have been bitter against his captors, wishing to seethem brought to justice and sentenced to severe punishment
and even execution. But that is not what happened.

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Eubios Journal of Asian and International Bioethics 25 (May 2015)

When the Japanese leadership realized that it was
important to keep the remaining Doolittle Raiders alive, theprison guards were ordered to improve their treatment, which
included providing some reading materials for the prisoners.
Among those English books that became available was a
Bible, something that DeShazer had only a superficial
knowledge of. He read it with a skeptical eye, thinking thattalk of forgiving your enemies and the like was just a
pipedream. But the more he interacted with the person ofJesus of Nazareth, the more the message of the Bible began
to sink in and speak to him in his desperate situation. As heprayed to God, the hatred he felt for his captors began to melt
away, and he began to realize that his guards were every bit
as much in prison as he was. He began to take an interest in
their lives, learning what Japanese phrases he could andgreeting them with a smile. Needless to say, this change inattitude took them by surprise, and they began to treat theprisoners less harshly. It seemed to DeShazer that he hadfound a new way, and after gaining his freedom again, hebegan training to come back to Japan to live among theJapanese and promote reconciliation.
Meanwhile, as the war ended, Fuchida felt lost and empty.
He was mystified as to why his life had been sparednumerous times when, like most everyone else he had been
with, he should have been killed. He then met the Japanesesoldiers who had been in the American prison camp and had
been befriended by Peggy Covell. Their testimony in itself
seemed so incomprehensible to him, but then as he wasconfronted with the witness of DeShazer, something began toclick. He finally realized that the cycle of revenge and hatred
was what had led his country to destruction and that the only
way to peace was to break that cycle through forgiveness andreconciliation.
This is still a lesson that our world so desperately needs tohear and take to heart. I am reminded of the famous quote by
Mahatma Gandhi, “An eye for an eye only ends up making
the whole world blind.” Gandhi, of course, was referring to aparticular code of conduct that was given to the people ofIsrael by God speaking through Moses. That code of conductthat included “an eye for an eye and a tooth for a tooth” wasmeant as fair and just punishment for crimes and wascertainly a significant leap forward from the kind of
exaggerated revenge that was the norm of the societies
around them. But, of course, Gandhi was emulating Jesus in
his “Sermon on the Mount,” where Jesus said, “You haveheard that it was said, “An eye for an eye and a tooth for atooth, but I say to you…” And then he lists several examplesof actions that go against our desire to take revenge. He
continued right after that by saying, “You have heard that it
was said, ‘You shall love your neighbor and hate your enemy.’
But I say to you, love your enemy and pray for those who
persecute you…”
As I bring my presentation to a conclusion, I want to read foryou a brief excerpt from the book. It is of Jake DeShazer
talking to a group of people in Nagoya, the city near where hehad dropped his plane’s bombs to destroy an oil refinery.
Among the crowd was a woman named Amayo Fujimoto. Her
fiancé, Kenji Saito, worked at that refinery and was one ofthose killed, and she felt that Jake was the murderer. She
had come there for revenge and was hiding a knife she
intended to stab him with when the chance came. Readingfrom the book,
Amayo had no concern or interest in what Jake had to say.
His Japanese wasn’t very good, but she could understandwhat he was saying.
“In one of the jail cells, we were packed in like animals and I
remember watching the guards beat a Chinese woman. She
hadn’t done anything wrong. They beat her badly and I had to
ask myself, why were the Japanese so full of evil andhatred?”Of all the people in the world to say such a thing, Amayo
thought. Who was he to judge others, after what he’d done?
He was a murderer. She tried to hide her scowl as she
squeezed the knife tightly in her fist inside her purse.
Jake put his hand onto the microphone stand. “I attacked
Japan for revenge. That’s what I wanted. That’s what every
American wanted. I hated the Japanese for what they did at
Pearl Harbor. And when I was tortured and when one of mybest friends died because of the Japanese, I was filled withhatred, crazy with hatred. All I wanted was the chance to kill. I
wanted revenge.”
Amayo looked down at the floor, somewhat shocked. She
didn’t like the idea of being anything like this disgusting man.
“But as I thought, I faced a harder question: why was I sofull of evil and hatred? Even when I made up my mind not toshoot at civilians from my plane, I was so angry – I did it
anyway. I knew right from wrong; I just didn’t have the power
to do it. As I sat in prison, I knew there had to be more to life
than hatred and revenge and killing. Where does it end?
Where?!”
He finished his sentence looking straight at Amayo. Fearshot through her as she averted her eyes. Did he know why
she was there? How could he? Tense, she was curiously
captivated.
“They passed around books to read in prison. One day a
guard gave me a Bible. I read and read, looking for someanswers from God. I read about another man who wasinsulted and tortured and no one cared. People thought hewas getting what he deserved. They didn’t realize who hereally was. But it turned out that he chose to be tortured andkilled so we could have a chance to be free from the power of
hatred. I wanted that. I knew I needed that. It wasn’t the evilaround me I needed to be rescued from, it was from the evil
inside me.”
Amayo’s face softened as her eyes looked past Jake to thebolts of fabric on the racks behind him.
“He made this great sacrifice because of a great love – forme, for you.”
She glanced up at Jake as his eyes scanned the audience.
“In that dark jail cell, I was set free from the prison of hatred,
and a deep love for the Japanese people began to grow in myheart. I found that with my new heart, God was giving me neweyes. I looked at the guards who had treated my friends andme with such cruelty, and I found my hatred for them hadturned into love … a real love that brings me here to you
today. That’s why I’ve come to Japan and have chosen to live
here with my family. I come in the name of peace and in thename of love.”
Tears formed in Amayo’s eyes as she stared at the floor.
Amayo had come there for revenge, but Jake’s testimony as
to how his own hatred and desire for revenge had been taken
away by God and replaced with love and a desire forreconciliation moved her so that she too eventually became
free. They even became close friends. And as the bookportrays, Jake DeShazer and Mitsuo Fuchida — two sworn
enemies whose own actions led to the deaths of hundreds
and maybe even thousands of people, including civilians —became colleagues in promoting peace and reconciliation not
only between their respective countries but also, to all who
would listen, reconciliation with God.
While they have both gone to their eternal reward long ago,
their witness speaks to our world today and challenges us all
to become peace-makers in whatever context we findourselves in. They exemplified the well-known prayer of St.
Francis of Assisi, which the Covell family often referred to andwith which I would like to close:
Lord, make me an instrument of your peace.
Where there is hatred, let me sow love.

Eubios Journal of Asian and International Bioethics 25 (May 2015)
Where there is injury, pardon. Where there is doubt, faith.
Where there is despair, hope. Where there is darkness,light.
And where there is sadness, joy.
O Divine Master, grant that I may not so much seek to beconsoled as to console;
To be understood, as to understand; to be loved, as to love.
For it is in giving that we receive.
It is in pardoning that we are pardoned.
And it is in dying that we are born to eternal life.

87

Philosophical positions that pertain to the discussion (suchas Dennett's and Brenato’s) are offered with attention
theoretical implications. The philosophical discourse,
predominantly following Kantian theories is provided. The
brief review of Kantian writing, particularly his categoricalimperatives and theory of the mind are employed to facilitate
an understanding of the issues and their variables (factors).
To accomplish this aim, the author uses a couple of related
topics (notable for their interconnection and their respectively
selected arrangement) and their probable answers, toreinforce the argument.

Reference: T. Martin Bennet, Wounded Tiger, 2014.

An Analysis on the
Intentionality and a
Philosophical Disclosure on
Ethics and Morality: Two
Filicide cases as Examples of
Criminal Behaviour of Persons
Diagnosed with Mental Illness- Bing H. Tang, BM, MPH, MD, DABNS
Research Consultant Emeritus
New York College of Traditional Chinese Medicine
Email: prof.bing@gmail.com

Abstract
In this article, two case examples of criminal behaviour in
the USA are analyzed. There is a discussion on intentionality.
A brief introduction to Filicide is made. Note that in respects,
the impressions of trials forecasted by the media have great
influence, fortifying public impression of the law rather thancommunication with the legal system per se. A disclosure on
philosophical basis, together with Kant's theories, is provided.
Because Kant passed away before the notion of intentionality
was introduced, what is new in this article to add inknowledge is to correlate Kant’s theories with these two
perpetrators’ behaviour.
A reflection with a practicalapplication of Kant's theories constitutes the core componentof theory in this article. The reflection includes analyses of ourown lives in order to re-assess our attitude in dealing witheach other and with youngsters.
The potential for criminality should be identified early inpatient care. A prompt detection should be enacted to identify
the potential for criminal violence. Appropriate staffing andprotective measure should be enacted. A thoughtful teamapproach by both medical practitioners and their institutions,involving clinicians, non-clinicians, philosophers and scientists
should be pursued. The conclusion stresses the importanceof an early identification of a person diagnosed with mental
illness. Such identification should be preceded by a wellthought out crisis-recognition–process, appropriate staffing
and secured protective measures.
Key words: Criminal behaviour, Ethics, Kant, Morality,
Philosophical disclosure, a person diagnosed with mental
illness
Introduction
Two U.S. crime cases are presented as examples. These
two crimes of filicide are analyzed. They demonstrate how
two persons acted in terms of the function of their respective
mind. The cases are used as a basis for further discussion.

Related work
1] A brief introduction of the relationship between the mind
and brain
Most people perceive ideas as emotions and intangible
feelings. Can it be assumed that one human being’s idea (e.g.
“goodwill”) or category (e.g. “the ability to classify”) is
understood correctly by another? Many philosophers will
challenge the assumption that the human mind equates its
ideas.
In 1637 Rene Descartes originally illustrated certain
knowledge. Descartes argued, as an omnipotent negative
tried to deceive him into thinking that he existed when heactually did not. Descartes would have to exist in order to be
deceived. Hence, when he thought, he existed. Moreover,
Descartes argued, “I think, therefore, I am.” This expresses
intuition, not reason, and it is thus unquestionable. The
above, as well, explains the difference between the mind andthe intuition, that is, the immediate direct idea.
On the other hand, ideas are diverse when theircomprehension is varied. Diverse ideas can be compatible ornot. Human ideas are diverse. The bottom line is that humanideas, using the appropriate techniques, seem that it can besuperficially quantified, calculated, classified and measured.
Definite boundaries of the human idea appear to ‘exist’.
The territory of ideas is “not infinite.” The quantity of ideasthat human beings possess appears to be ‘finite’. The idea of
human mind appears to be the collective aspects of intellectand consciousness, which is manifested in combination ofthought, perception, emotion, will, and imagination.
In fact, the conscious and self-conscious functions of thebrain may be collectively referred to as the mind. The mind isreferred as the corporate aspects of intellect andconsciousness, which are manifested in some combination ofthought, perception, emotion, will, and imagination as
aforesaid. Nevertheless, there still are two key arguments
existing: 1] the human mind is not equivalent to the humanideas, while the mind mapping and brain mapping are not thesame. 2] With the aforementioned, almost no one isabsolutely certain on how the mind and the brain are relatedwith each other. Are there not the body-brain, brain-mind, andmind-matter dualities in an interfacing triad? These questions
appear to be dealt with philosophy, culture, society andbioethics.
Philosophers are very interested in whether the “mind” (a laKant) could indeed be “categorized”. Whereas most of themwould agree that the mind does “categorize”, but they do notagree on what constitutes the most basic categories.
On the other hand Galen Strawson, in his book entitled
Mental Reality (Strawson, 1992), argues that the answer tothe characteristic features of the mental reality is theconscious experience, but not intellect, emblematic content,
or internationality (Earle, 1983) as it is generally understood.
Strawson further argues that much of the contemporary
philosophy of the mind is still in a state of confusion due topositivism and its numerous progenies. This author agrees
that we should consider to the nature of a mind, unwarranted
primacy to the non-mental phenomena, publicly observable

88

Eubios Journal of Asian and International Bioethics 25 (May 2015)

phenomena, and behavioral phenomena. Strawson has madesuch a careful, sensitive and imaginative treatment of some of
the main conceptual issues in methods for the study of themind’s nature.
Is there any relationship between the mind and the
behavior? While most thinkers, and/or philosophers agree
that there are other relationships between the mind and the
behavior, and between the behavior and the culture, theproblem is that most of the thinkers, and/or philosophers may
not agree as to how these relationships could be fully
described. Some thinkers consider the mind as essentially
Tabular Rasa - a young mind not yet affected by theexperience and is merely a repository of external effects on
the mind. This view is shared by John Locke (Breathiest, F.
2005, Williams, A. 2005, and Wood, 2005), whose theory ofknowledge asserts that the human mind is, from time of birth,a "blank slate" without any regulatory mechanism forprocessing data, both intrinsic and extrinsic. Subsequently,
accumulated data are processed through the formation andimprinting of the human sensory experience. This notion
supports an essential Lockean empiricism. Therefore, toempiricists, the mind is a Tabula rasa -- it is as if the mind isbeing written when we learn or experience the world in us andaround us. Conversely, for the rationalists, the mind is like acomputer, that is, the hardware, which already has somefunctions (innate ideas) before installation, downloading, anduploading of the software (experiences, specific knowledge,etc). For example, just as the premise of the "pedagogicalthcentury" in the 18 century, it regards the young individual asa Tabula rasa (Breithaupt, F, 2005).
Moreover, in recent
time, Tabula rasa appears, as well, featured in Sigmund
Freud's psychoanalysis (Sheth 2005, Western 1998, andGreer, 2002).
The Body-Mınd Problem: The relationship between ourconscious experience (or Our Mınd) and our bodies
Griffin performs an attractive dissection on the mind-bodyproblem (Griffin, 2000, 137-178), and firmly declares that themind-body problem is the vital issue for modern philosophy. In
order to solve this problem, we must first well explain therelationship between our conscious experience (or our mind)
and our bodies. The fundamental component of realism is the“actual occasion”, which has both spatial and chronologicalfactors. Unfortunately our inner experiences have only
chronological, but not spatial nature. Process philosophers
rationalize their assertion on the existential premises that ahuman being can only actually appreciate the components
constituting the material globe by similarity with our own
experience, which become acquainted from within ourselves.
In order to solve this problem, Griffin states the following,“The apparent difference in kind between our experience, or
our ‘mind’, and the entities comprising our bodies is an
illusion, resulting from the fact that we know them in two
different ways: we know our minds from within, by identity,
whereas in sensory perception of our bodies we know themfrom without,“ (Griffin, 2000, p.169).
Once we understand this, there is no reason to assume that
our minds and our bodies are different in type. In thepreviously mentioned context, the link between our bodies
and the mind is established.
While the idea that the individual can be altered remains,
the power to affect this kind of alteration is now assigned
merely to society, and is no longer attributed to the individual
itself. Further, the power to alter has been extended to thetotality of human nature. Under such a notion, one can,almost without limitation, mold the individual by changing his
environment first, and then his sensory experience.

2] A brief review of the related research of FILICIDE
In fact, few types of crime are as appalling—and
disturbing—as filicide, in which a parent kills one or more of
his or her children. Some people cannot picture a penalty
severe enough for a parent who would commit such an act.
Others find that that it is so unintelligible and they have noquestion about the parent’s being insane at the time ofcommitting the crime.
Forensic psychiatrist Phillip Resnick has developed aclassification system for filicide based on the parent’s motive.
He describes the various types of filicide in his classification
system and the likelihood of a successful insanity-defense ineach (Resnick, 1969).
He initially defines five types of filicide. In "altruistic" filicide aparent (almost always a mother in this category) kills her childor children as a form of suicide. "These mothers see theirchildren as a form of an extension of themself, they do notwant to leave a child motherless in a ‘cruel’ world as seen
through their depressed eyes."
On the other hand, in the second type of altruistic filicide achild is killed in order to end his or her real or imagined
suffering. "These mothers may project their own unacceptable
symptoms onto the child," Resnick said, “In "acutely
psychotic" filicide, hallucinations, epilepsy, or delirium drives aparent to kill a child. Psychiatric evaluators will not find a"comprehensible motive" in this type of killing” (according toResnick).
Resnick’s third category involves "unwanted child" filicide,which includes homicides in which a parent no longer wants
the child. "Fatal maltreatment" filicides fall into two types, hesuggests. In one—the most common motive for childhomicide in the United States—children die as the resultof beating, and homicide is not the objective. The other type,which is extremely rare, he noted, occurs as the result ofMunchausen syndrome by proxy. (Parnell 1997). His fifth
filicide motivation is "spouse revenge." This category includes
cases in which parents murder their children to make theirspouse suffer, most often in revenge for infidelity. In thefollowing year, 1970, he added a sixth category, Neonaticide.
(Resnick, 1970).
Noticeably, in the subset of altruistic filicide in which thekilling is in fact an extended suicide attempt, severe
depression may have deformed thinking "so that the motherbelieves her children will be better off in heaven with her…”
This is akin to the explanation that Andrea Yates, one of thetwo perpetrators discussed in this paper, gave for murdering
her own children. (Resnick was also an expert witness for the
defense in that case.) The mother often believes she is doing
what is “morally right for her child" In altruistic filicide cases,
the success of an insanity plea hinges in large part onwhether the insanity standard uses the word "appreciate" or"know" to characterize the parent’s understanding of thewrongfulness to kill.
Conversely, in the category of acutely psychotic filicide, "theparent may not know the nature and quality of the act," if ittakes place during an epileptic seizure or delirium, according
to Resnick. In evaluating a person who appears to fall into thiscategory, evaluators "must always consider malingering,"
Resnick stated. Command hallucinations, such as obeyingorders to kill from God or Satan, are involved.
That being mentioned, it is in this author’s opinion that,
under legal circumstances, intentionality must have a broad
view of human responsibility. The law may be neutral (open todebate), BUT its interpretation is not. On the other hand, it isworthwhile to mention that Capital Jury Project is a continuing
program of research on the decision-making of capital jurorsthat was initiated in 1991 by a consortium of university-based
researchers with support from the National Science
Foundation (NSF). Using data from the NSF, Scott E.

Eubios Journal of Asian and International Bioethics 25 (May 2015)
Sundby in his article takes a close observation within the jury
room at the process by which capital juries arrive an
undisputed verdict at the penalty phase. The legal process
shows to be an attractive one. In his article, Scott E.
Sundby used the closing argument in the death penalty caseof Susan Smith. (Sundby, SE)
Note Susan Smith was the mother, killed her two children bydriving them into a lake and then trying to cast blame on aunidentified African American man. In his own article, Scott E.
Sundby concludes by examining how a closing argument
may affect outcomes of that case.
In fact, when Katheryn Russell-Brown heard Susan Smith'stale that she had been carjacked by a young African
American man, she was skeptical. In 1994, Smith told policethat while stopped at a traffic signal, she was carjacked by an
African American man who drove off with her infant andtoddler boys in the back seat. ‘Where would an African
American man go with two small white children?’ (RussellBrown, K., 2008)
In reality, time-honored law is been viewed as a branch oflearning and on approach of arranging information and asolution in which legality and confidence are developed. The
law, we are informed, loves impartiality - not engagement.
However in these occasions, the work of the law applies not
only in the familiar land of the official, ritualized space of thecourthouse building; it is at present resembling as public sight- a type of document-drama in which dissimilar media
impressions, both print and visual, describing how the law
works. In respects, the impressions of trials forecasted by the
media have great influence, fortifying public impression of thelaw rather than communication with the legal system per se.
Media demonstrations not only mold public impression of thelaw; they create realism in this area which public dialogue
takes place. Too frequently, especially through well-liked
media, images and illustrations are maneuvered to modify.
These pictures frequently speak in voices nosier and in more
forcing tones than any ordinary daily dialogue. (Harris, C
2006, Spitz, D.J. (2006); Grace, N.)
Such an effect is more distinct in the case of highly
contentious and popular trials, such as that in the case of
Susan Smith.
As a matter of fact, the law works as ‘a kind of metanarrative about the appropriate or sanctioned relations of
power between groups and their individual members. Legalstorytelling is not only directed to nor confined within the
courtroom. The images and identities constructed throughlegal narratives are affirmed or rejected in the larger social
context as well. To the extent that these narratives confoundrather than illuminate, giving us distorted or partial images ofour realities, and we the law as constructed by and projected
through the media does not fulfill a critical function. As one
writer notes, "insofar as law serves this expressive function
for society, it fails to meet its goals when the conversation it
generates bears false witness to the experience it seeks toevaluate." We are left with cultural narratives - often
stereotypes - that tell us little more than what we alreadybelieve.’ (Harris, C)
That introduced and briefly reviewed, allow us now toconcentrate on the two exampled cases as follow.
Case Presentations
The following case presentations are stemmed from books
and the media.
Case example 1
The first case is that of Ms. Andrea Yates, a married woman
with four children. She had suffered from psychiatric illness
prior to drowning her children. She was charged with firstdegree murder but found innocent due to insanity.

89

Andrea Yates (born Andrea Pia Kennedy July 2, 1964) is aformer Houston, Texas resident who killed her five young
children on June 20, 2001 by drowning them in the bathtub in
her house. She had been suffering for years with very severe
postpartum depression and psychosis. Her case placed the
M'Naghten Rules, a legal test for sanity, under close public
scrutiny in the United States. Yates's 2002 conviction ofcapital murder and sentence to life in prison with thepossibility of parole after 40 years was later overturned on
appeal.
Andrea Yates' retrial for the murder of her five children (in2001) began on 26 June 2006 in the U S. A retrial wasordered because one of the prosecution's witnesses lied on
the stand. Her defense team argued insanity. Ms. Yates wasconvicted of drowning her five children in order to save themfrom "being tormented by Satan." (Bienstock 2003)
On July 26, 2006, a Texas jury found that Yates was not
guilty by reason of insanity. She was consequently committed
by the court to the North Texas State Hospital, Vernon
Campus, a high-security mental health facility in Vernon,
Texas. In January 2007, Yates was moved to a low security
state mental hospital in Kerrville, Texas.
Case example 2
The other case was that of Ms. Susan Smith, who also
drowned her children (Rekers 1995). Her court case decision
was very different. She was found guilty of first-degree
murder. Smith drowned her children on 25 October 1994 after
her boy friend rejected her. She killed her two boys, Michael,
3, and Alex, 14 months by driving her automobile into a lake
while the children slept in their car seats. She was sentenced
to life in prison.
A brief analysis of these two cases
These two cases resulted in the death of seven children bydrowning. Yet the working of the mind determined the guilt or
innocence as the laws may be applied to each caserespectively. Nevertheless, the state of mind of these two
women at and/or immediately prior to the death of either
children was different.
First of all, was Andrea Yates guilty of murdering? The
gradation of her guilt, however, must depend on thecircumstances. A verdict of not guilty is not the ethical way todeal with murder. Some believe that our justice system has
failed. Perhaps, first-degree murder is too much a punishment
in the Yates case. Some feel that the justice system failed on
several counts. First, it failed to take into consideration of thegradation of her guilt. Second, it also failed in terms oftechnicalities. Perhaps some lawyers and judges are
frustrated with technicalities of the justice system, as peoples
considered normal should be responsible for their own
intentions. But as aforementioned, Ms. Yates has been
diagnosed as mentally ill.
Some may argue that the lack of intentionality is brought by
the context - the law. The law is supposed to be objective
while ascriptions of intentionality are subjective. The law(unlike science) does not apply to predictions, only in events.
Ms. Andrea Yates was a married woman with four children.
She had suffered from psychiatric illness prior to murdering
her children by drowning them. She was charged with firstdegree murder but found innocent due to insanity.
Ms. Susan Smith drowned her children on 25 October 1994
after her boy-friend rejected her. She killed her two boys bydriving her automobile into a lake while the children sleptin their car seats.

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Eubios Journal of Asian and International Bioethics 25 (May 2015)

Discussion
Intentionality
Intentionality holds the human mind responsible.
As
aforementioned, intentionality must have a bold view ofhuman responsibility. It is important to note at this point, thatthe law may be neutral (open to debate), BUT its
interpretation is not.
Intentionality in fact is the property of mental states,
something outside the mind; the word in English forintentionality is "aboutness". Aboutness is a term used inlibrary and information science, linguistics, philosophy oflanguage, and philosophy of mind. Among them, in
philosophy it has been often considered synonymous withintentionality, perhaps since John Searle. Philosophers ofmind and psychologists are both concerned. For instances,
there are work with the psychological or intentional aboutness(John Searle, 1983) and language of thought. (Jerry Fodor,1975) (Goodman, N. (1961) (Putnam, H. (1958)
As to the aboutness of the two perpetrators in the two
examples reported and discussed as aforementioned in thisarticle, at a first glance, it appears that both Andrea Yates andSusan Smith ‘intentionally’ chose to harm others. By nottaking intentionality seriously, people appear not take ethics
gravely.
Nevertheless, there appears to be a connection between
aboutness and epistemology. Noticeably, epistemology per seis very much about both objectivity and subjectivity.
That discussed, as Kant passed away before the notion of
intentionality was introduced, no direct relation between
Kantian theory and the theory of intentionality can be directly
addressed. It appears that possible indirect links should be an
object of a separate study other than that of this one.
In this article, it is introduced that knowledge is required tocorrelate part of Kant’s theories for its application to these two
perpetrators’ behavior discussed. It is presented in the latter
sections.
According to Aquinas and Freeman respectively, on thephilosophical sense of Intentionality, it appears to be merely aspecial case of features of mental states; but in a profoundway, the mental states and intentionality appear to be related
to each other. (Aquinas 1266/1945, Freeman 1999).
Dennett believes that intentionality is ascribed to almost
anything (Dennett, 1981, 1996). In contrast, Searle suggeststhat intentionality really exists (Searle, 1998). This does not
exclude the possibility that we may sometimes ascribe iterroneously. For example, if one assumes that some objects
are living, and observes a mechanical cat, he
may erroneously classify it as a living being. From Dennett's
point of view, one could talk about "live stance", that is, there
is no life as such but only a stance to it. Most people,(including Dennett himself) believe that there are living object
in reality. Likewise, Searle has even suggested in the realityof intentionality.
Nevertheless, it is unfortunate that the two words, intention
and intentionality, are so similar in English. Brentano
introduced the term intentionality directly from Latin (Brenato
1995), and Dennett devotes many pages to the characteristic
differences among the following THREE terms: intention,
intentionality, and, finally, intensionality.
The last term, intensionality, is merely a linguistic one
meaning those aspects of interpretation open for discussion.
The term, intensionality, sheds little lights on the
differentiations between the two perpetrators of killing in the U
S as discussed.
Jordan and Ghin claim that intentionality is a property of allliving beings, including prokaryocytes (Jordan and Ghin,2007). Hence, one can hardly observe a legal application of
the intentionality theory. On the contrary, as the definition of
intentionality concerns "mental states", and can be applied forany discipline working with the notion of mental states, e.g.,
psychology, philosophy, and/or psychiatry.
Though Dennett clearly distinguishes between intentionality
and intention, he implies intentionality instead of intention in
his “Intentional stance" theory. For example, if we say that"my computer is tired", we don't mean to accuse the computerin a court, we don’t imply the computer's responsibility andchoice. In fact, we would assume the responsibility of the
programmer, that is, a human person.
According to Dennett, there is nothing mysterious about theintentions and conscious feelings toward others. We
sometimes assign feelings or intentions to non-human things.
Dennett recommends that we might say, for example, ourpersonal computer is a bit tired today. At the end of the day,our view of human beings is just an adaptation - a much more
complex adaptation. Thus, why do we hesitate to assign
human quality to non-human things? In that passage Dennett
clearly means INTENTIONS, NOT INTENTIONALITY.
Further, he agrees that ascription of intentions to non-humanthings is allegorical, or metaphorical. He proceeds AS IF heassumes that there is no significant difference between a
direct meaning of a word (e.g., his coat is black) and ametaphorical using (e.g., his conscience appears to be indarkness).
One might not completely agree with the aforementioned
Dennett's statement, and might even challenge it as a strawman’s argument. The issue appears to arise from asuggestion that humans tend to ascribe intentions. Two
examples follow. 1-] People who are paranoid ascribe
intentions to other people (and things) in completely irrationalways, and 2-] Conspiracy theorists ascribe intentions in theform of conspiracy. The former, paranoid people, and thelatter, conspiracy theorists, do not simply apply intentions toother people. Indeed, paranoid patient understands very wellthat everybody (including himself) possesses intentions, butthat at the same time, everybody (including himself) makes
numerous unintentional acts like coughing, speaking
sometimes louder, sometimes less loud, etc. However, when
one is within his delusional thinking, he denies that otherpeople's actions can be unintentional sometime too. In otherwords, what makes paranoia is not ascribing intentions but
denying non-intentional actions.
In addition, there is an example supporting a person's
disagreement with an assertion that humans tend not toascribe intention to other humans. One would call such anargument a 'straw man' – in order to develop a scholar's
book/argument to argue, but really not a thing worthy to argue
about, at least in this author’s opinion.
That said, general consensus on Ms. Andrea Yates’ case isthat any mother would have to be in a delusional/psychotic
state in order to kill her own children, and she would havebeen unable to tell the difference between right and wrong,morally, legally, negligently, and so on. Hence, the ‘bipolar
made me do it’ syndrome appeared to be a test of the current
public attitudes on mental illness.
In a contrast, ancient Egyptian sources assumed the abilityof humans to free choice (Karenka, 2004). But this ability is
not, in contrast to intentionality, a property of ALL living
beings (as Jordan and Ghin, as well, Jordan believe), of ALL
mental states (as Brentano believed) nor the property of
MOST mental states (as Dennett, Searle and mostcontemporary authors believe). It is limited to a very small
circle of living beings that are able to stop their immediate
activity in the world (i.e., behaviour) and to "play forward" thisbehaviour as a symbolic game. This playing-forward is humanreflexive thinking, and the small circle includes some adults.
How EXACTLY should the line be drawn between those
who are able to have this form of covert behaviour (and,hence, are guilty when they broke a law), and those who areEubios Journal of Asian and International Bioethics 25 (May 2015)
not (and, hence, "insane"), is open to debate. An issue suchas this one is largely a psychiatric issue, which should not bemixed up with philosophical issues, just as the diagnosis ofcoma – loss of consciousness, is a medical issue, and not aphilosophical one.
An emphasis on the writings of Immanuel Kant's
synthesis
In this discussion, there is philosophical disclosure with anemphasis on the writings of Immanuel Kant's synthesis. Kant
aspires to create a grand synthesis between sense
knowledge and intellectual knowledge, which is in turnbetween the human's theoretical and practical activities. The
transcendentalism is Kant's method to achieve this goal. In
this endeavor, Kant attains remarkable outcome: the harmonyof human cognition, its requirement and universality, theimportance of the a priori, the absoluteness of the moral
imperative, the transcendental issues, etc.
Kant's achievement and contribution to issues involved inthis article merit our review. A brief review may help us
understand the issues discussed in this article, and to explain
the factors involved. Kant's contribution are: morality, ethics,
good will, obligation, autonomy, respect, persuasion on theprinciple, justice, on physicians’ treating people as an aim
for physicians themselves, etc. Fundamentally, based on purereason, Kant's categorical Imperative leads us to consider
what is to be accomplished.
“Categorical" is solely manifested by reason, and nothingelse. To follow this imperative, Kant advised us to act
according to universal laws. Since we make decisions
voluntarily and independently, we acknowledge and accept
the outcome dominated by pure reason; with our autonomy
the decision we make is the best that we can (Ameriks 2001:
460–466).
Kant reminds us that we are rational beings. Kant further
warns us that we are governed by the laws of reason, not by
regulation of nature. Accordingly, we can yearn for the world
being a location of dissimilar beings gathering and living
together, and following regulations and dealing with eachother peacefully (Kant, I., 1993: 117).
Thus, according to Kant, we respect the autonomy of thepatient, including persons diagnosed with a mental illness,and their relatives. We must pay sufficient attention to how
behaviour of the persons diagnosed with mental illness affecttheir relatives, classmates, teachers, neighbors, theirrespective victims and the latter's relatives, their respective
communities and the society as a whole, etc. The issue ofmorality and ethics should be taken seriously. Kant advised
us that there is one morality but there are many types ofduties.
Kant correctly asserts that sensation is not knowledge; andthat the mind is the active agent that creates our knowledge.
Kant's helpful analysis has divided all data into the levels of
sensation, perception and ideas. Kant taught us ‘humanity’;
this helps us to understand human behaviour andmisbehaviour. In this regard, Kant’s philosophy broadens our
vision of both the capacity and limitation of mankind.
In addition, this author deliberates that the study ofvariables affecting culture that focuses primarily on the'macrosystem factor' is important as well. These variables
include the following: family variables, religious beliefs (e.g.
the, the variables (factors) of the societal structure and theireffect on individuals and family (e.g. the case examples ofSmith and Yates), etc. An analysis without considering therole and factor of culture, the macrosystem variables affecting
culture and the effect of culture on behaviour, will beincomplete. The limitation of an incomplete analysis lacking
the aforementioned is clear (Lecompe 1991).

91

Some related key ISSUES with probable answers(1) The issue of Morality and "What if everybody did it?"
Kant did not supply a phenomenological description of
consciousness. Karl Leonhard Reinhold (October 26, 1757 April 10, 1823), an Austrian philosopher (Reinhold et al 2006)
contends that Kant should have indicated the essential detailof consciousness that is vital in formulating cognition per sepossible. Nevertheless, Kant’s Theory of the Human Facultyof Representation described the major portions andcharacteristics of consciousness. Reinhold concentrates on
the moral problems that Kant mentions in the final segment of
Critique of Pure Reason. Reinhold focuses his attention to theepistemological aspects of the initial and central portions of
the same Critique.
On the other hand, Kant's famous and disproportional
serious concept of morality acts on the motive of duty. Kant
contends that morality is not to progress the doctrine of how
we make ourselves happy, but how we make ourselves
worthy of happiness. We can discover our duties by checking
our maxims against Kant’s categorical imperative, “Act only
on that maxim through which we can also at the mean while
will that it should become a universal law.” Note that Kant’s
principle of universalism in ethics is often referred to in theform of question as following: "What if everybody did it?"In this light, let us assess the behaviour of the two
perpetrators discussed in light of Kant’s theory of mind.
(2) Kant’s theory of mind with its application on understanding
the behaviours of two perpetrators
That explored, Aleriks (1995) conversely evaluates thethemes handled in some Kant’s publications. Kant
has developed a “Theory of Mind” that ensues to be bothmore justifiable and more opposed to the supernaturalelement in Scripture than is accepted by most otherinterpreters. It is a theory that plays a great function forrealizing Kant’s philosophy of the mind as a sum total.
(3) Several questions remain as follows.
There are behavioural manifestations of the two
perpetrators discussed in this article. Yates and Smith
respectively exhibit different behaviours. In fact, the real worldis not responsible for our behaviour. With theoreticalexamination, we can observe that Kant critically analyzes
pure reason. Kant rejects the view of Locke and Hume that all
our knowledge is derived from senses. Nonetheless, Kant
agrees with Hume's opinion that absolute certainty ofknowledge is not possible, if knowledge comes fromsensation. The Scottish philosopher David Hume (1711-1776)
developed a philosophy of "mitigated skepticism," which
remains a viable alternative to the systems of rationalism,
empiricism, and idealism (Hume). Regardless of whether thetheory of knowledge is based on Kant or both Locke andHume or not, an independent real world really does not owe
us any promise of regularity of behaviours. In reality, we could
feel an inducement at one location, and another at a different
one. There is no promise of either regularity or association of
behaviour. Kant's Critique is an analysis of the derivation anddevelopment of concepts and the hereditary organization of
the mind. Such an analysis can help us understand better therespective behaviours of the two perpetrators discussed inthis study, as well, other persons diagnosed with mental
illness, their respective family, all victims and their respective
own family.
Kant was strongly and deeply critical of the use of examples
as moral standards, because such standards depend on our
feelings toward morals more than our rational power. The
aforementioned will be further discussed in the section of
categorical imperative for illustrative purposes.
According to Kant, the dialectic threatens the truth bydeceiving those that fail to identify the a priori absoluteness ofcertain principles. Kant places a priori first, and from it

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Eubios Journal of Asian and International Bioethics 25 (May 2015)

deduced morality. The actions of any rational being can beascertained from a moral standpoint. According to Kant, thehighest aim of morality consists in generating an impartialworld in which happiness is ‘in exact proportion’ to morality.’(Kant 1993:117).
In Kant’s allegory, freedom means the ability to selectbetween the obvious needs of survival and admiration for the
inestimable pride of humans. Kant felt that as humanknowledge developed, humans would recognize their own
relative insignificance in the universe. At the same time, sucha self-understanding and reflection would allow the moral law
within people to continue to expand and further develop
maxim. Moral beings with infinite value, we can realize themeaning and self-esteem of our standing in the universe. With
such an infinite perspective, Kant precedes the maxim for us,
and concludes that pure reason can define right and good. All
moral philosophers do not all agree with any premise such as
merely “do no harm” or “hurt no one” in the usual andcustomary practice of bioethics. Rather, they prefer one to do
no harm, but that is not good enough morally. It is more
important to help all, including those who are persons
diagnosed with a mental illness, and their respective family.
Kant advises us to “act only according to that maxim
whereby you can at the same time will that it should becomea universal law." This is best known as the first
formulation (Kant, [1785] 1993). A criterion of morality, and of
ethics is that an action is moral if it is enviable, and it is auniversal rule of behaviour.
Finally, in order to sum up important epistemological andethical themes in Kant's philosophy, from the rationalist pointof view, discussions follow. When we mention "rationalist",
usually we rely in the broadest and weakest sense; but when
we refer to “Kant”, likely we purposely mean "rationalist" in arather strong meaning. That clarified, the ascription of criminal
responsibility is related to the ascription of ability to reflexive
thinking, that is, to reject immediate behaviour for a while andto "play forward" behavioral options in a virtual space ("if one
does A, then B may take place", and so on.). It is supposed(this author supposes it as well) that most adult humans
possess this ability. It appears that a very potent rationalism
like Kant's theory is necessary under this circumstance.
Pre-meditation is a strong factor in our modern court cases
in proving guilt and is self-defense in proving innocence.
Lawyers who try to cover from lack of accepting responsibility
for one's actions often justify by introducing alcohol or drugs
use or "bi-polar" syndrome.
Why are jails full of mentally ill patients? Due to individual
rights, in the U S, laws state that we cannot force people toseek treatment. Often they have to commit a crime before
they can be remanded for psychiatric assessment.
Fortunately, there have been changes through the years withregard to community treatment laws. For example, mental
illness is viewed differently these days than it was earlier, andour contemporary view of mental illness has influence on thelegal treatment of the mentally ill. Hence it is important toclearly establish the “danger to self or others criteria” in orderto ensure that people get treatment.
It is obvious that the aforesaid two US perpetrators’ conduct
in their respective case examples was immoral. Nevertheless,will neuroscientific knowledge affect our moral conduct?
Probably, it may not influence our conduct but it might affectthe extent to which we are held responsible for our conduct.
For examples, in Smith and Yates’ cases, mental illness isviewed quite differently than it was in earlier times. Ourcontemporary view of mental illness has influenced our legal
treatment of the mentally ill. No aggressive actions weretaken due to the limitations of the individual-right law. Failure
to act finally led to a major disaster. Ms. Andrea Yates' cases
are a typical illustration of the mindset.

The bottom line, some researcher looks at the modern belief
that the mind is the same thing as the brain, and therefore themind appears to consist of genetic and chemical processes.
Contrary to this notion is the more common sense views that
our minds are made up of experiences of the world. While thebrain may be the material home of the mind, it is not the mind
itself (Kando 2007). On the other hand, neuroscience will, as
well, influence how we think about morality and mental illness.
Many people believe that something non-physical, like a soulwith contra-causal free will, is ultimately responsible forbehavior. Neuroscience shows that the brain is responsible
for behavior, not the soul, so we don't deserve punishment forwrongdoing in the way that many people think the souldeserves to be punished. This might change our beliefs about
morality, our attitudes towards each other, and the mentally ill,(e.g. Yates, and Smith), our responsibility practices, (e. g.
how we treat the mentally ill in the criminal justice system).
(Clark 2005 -1).
Conclusion
In summary, two media-oriented case histories of murder in
the U S are explored to investigate the interaction between
the brain and mind. A number of insights are offered. Kant's
theory of the mind and his categorical imperative may
enhance what has been known in medicine of the issue
between brain and mind.
As for those patients, Susan Smith, and Andrea Yates (bothdrowned their children), their respective behaviours, shouldhave been be identified early in their course of care. Such
recognition should be preceded by a well-planned detection of
the crisis and appropriate staffing. Additionally, law
enforcement protection should be secured. Observation froman eyewitness can provide the visual perspective anddynamics of the mind of persons diagnosed with mental
illness suggesting mindset of the mentally ill indicating theconsequences.
Notes
The M'Naghten Rules (pronounced, and sometimes spelled,
McNaughton) were the first serious attempt to rationalize the attitudeof the criminal law towards mentally incompetent defendants. Theyarise from the attempted assassination of the British Prime Minister,
Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired apistol at the back of Peel's secretary, Edward Drummond, who died
five days later. The House of Lords asked a panel of judges, presided
over by Sir Nicolas Conyngham Tindal, Chief Justice of the Common
Pleas, to set down guidance for juries in considering cases where a[1][2]
defendant pleads insanity.
The rules so formulated as[3]
M'Naghten's Case 1843 10 C & F 200 have been a standard test for
criminal liability in relation to mentally disordered defendants incommon law jurisdictions ever since, with some minor adjustments.
When the tests set out by the Rules are satisfied, the accused may
be adjudged "not guilty by reason of insanity" and the sentence may
be a mandatory or discretionary (but usually indeterminate) period oftreatment in a secure hospital facility, or otherwise at the discretion of
the court (depending on the country and the offence charged) insteadof a punitive disposal. (from Wikipedia, the free encyclopedia,
accessed 3 December 2010.)

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An integrated and multidimensional approach forteaching medical ethics inUniversiti Sains Malaysia(USM) based on MERCI- Norazwany Yaacob, Shaiful Bahari Ismail, Zabidi Azhar Hussin
School of Medical Sciences, Universiti Sains Malaysia (USM),
Kelantan, Malaysia
E-mail: shaifulb@usm.my

Abstract
Medical ethics teaching in USM consists of both classbased and non-class based teaching. USM uses an acronymof MERCI as the medical ethics thinking framework. MERCI
stands for M (patients’ Medical problems), E for Empathy, R
for patients’ Right for information and Respect, C for effective
Communications, and I for the Insight into the illness. Medical
doctors appreciate a complete understanding of each patient
including, social and cultural considerations. The thinking
framework is a guide for students to think ethically in all
activities. In phase I, there is an introductory lecture which
later will be applied in practical activities in the hospital andcommunity. In Phase II, there will be more detailed classbased teaching on ethical coverage which later will be applied
during “Problem Based Learning” (PBL). The foundation for
public health ethical practice and research ethics will becovered in Community Family Case Study (CFCS).
“Discovering Potential for Sustainable Transformation” is a

94

Eubios Journal of Asian and International Bioethics 25 (May 2015)

professional development module which focuses on
personality, leadership, time management, communication
skills and problem solving. During inter-semester Phase IIprograms, students are given the freedom to choose theirown project of interest to enhance their soft skills incommunication, life-long learning and leadership skills. A
research option is available for students who want to learn
about human or animal research ethics. The inter-semester
Phase III Program is clinically oriented where students are
given a chance to have clinical experience at different
hospitals with different patient backgrounds. Other activities
such as humanitarian missions and volunteerism are also partof students’ activities in enhancing their understanding
towards MERCI.
Keywords: Medical ethics, integrated system, multidimensional education approach
Teaching medical ethics to undergraduate medical students
is a challenging task. Teachers not only need to give thetheory and principles of medical ethics but also must create a
conducive learning environment for the students to inculcate
the ethical behavior in their future professional conduct.
Emphasis should be placed on the ethical aspects of daily
medical practice. Interdisciplinary and multi-dimensional
teaching approach should be used and teaching should spanthe entire duration of medical studies. Learning throughethical problems and challenges faced or observed by thestudents themselves preferably at the time when the
problems are most on the students' minds are of advantage.
Teachers and academic staffs can help through portraying asrole model in setting a good example for students to follow.
The medical degree program in Universiti Sains Malaysia(USM) which was first started in 1979, had been structured
according to a multi-disciplinary approach using an integratedorgan-system and problem-based curriculum. The holistic
approach emphasised on the patient’s medical problem in
relation to his or her family and community. The mission of
producing dedicated medical practitioners for the community
thus leads to the emphasis of medical ethics and professional
training to be integrated in the education system.
The medical ethics teaching in USM consisting of bothclass-based and non-class based teaching were emphasizedfrom the entrance in medical study. The acronym, MERCI istaught as the Medical ethics thinking frame. MERCI stands for
M consideration and deal with patients’ Medical problems, E
for Empathy, R for patients Right for information and Respect,
C for effective Communications and I for the patient anddoctor has a full Insight of his illness, the doctors appreciate
the complete understanding of each patient including, socialand cultural considerations (1). The thinking frame is theguide for students to think ethically in all activities.
The class-based are deductive teachings tabulated in theacademic timetable. These include lectures, forums, student’s
seminars, role plays, field visits and problem-based learning
sessions. In phase I, year one, lectures are delivered by thesenior professors to outline the importance of ethics inmedical professionalism. These deductive teachings are thenfollowed by the non-class based teachings through activities
known as the hospital attachment and community placement.
The hospital attachment is “A day in doctor’s life” experience
where students in groups follows a medical lecturers to all
their respective clinical activities including ward rounds,
clinics, operation and consultancy work for a day. The
students’ observation on a daily routine of a doctor was later
being reflected in a group diary. Students’ reflections such as“The doctor talked to the patient kindly and the kid responded
as if they are talking with someone they know well”, and “ Thedoctor tells me that the patient comes from a poor family who
could not afford to pay for taxi fee to come to hospital…I canfeel his concern, care and sadness when he told me that”
clearly reflect the learning process of ethics in medicine. As in
the application of MERCI, this stage had minimal input on
medical issue (M), but focuses on the appreciation of
empathy (E), patients right (R), effective communication(C)and having holistic insight (I) on patients’ problem.
The community placement are group activity where thestudents will approach a non-governmental organization suchas old folks home, down syndrome centre and the blind
people society and organized relevant activities (2). This
group work, supervised by a volunteered medical lecturer, ishoped to train the students to become a leader, an effective
team member, effective communication and understanding
the need of different people in the community. This activity willtrain the students to analyze the medical problem of theparticipants of the society / organization (M), understand the
problem faced by the participants / family by socializing withthem (E), appreciate people right for good life, communicate
with different group of people (C) and internalized insight by
understanding other related issues faced by the relevant
people.
In Phase II, in year 2 and 3, class-based teaching willfurther elaborate ethical concepts such as confidentiality,
informed consent and decision making. Communication skill
in doctor-patient relationship and clerkship are taught inclinical skill centre with simulated patients. Field visits areused to teach communication in special group such as
pediatric and geriatric age group. The students will be placedin pediatric ward where they involved in the “toys for rent” and“cheerful Wednesday” sessions. The “toys for rent” sessions
are sessions where students distributed donated toys topediatric in-patients and then play with the kids. The “cheerful
Wednesday” sessions are sessions where the students
create games and book readings session for the pediatric inpatients to cheer them. This sessions also joined by the caregivers, nurses and volunteers. Students are brought to the oldfolk’s home to talk and socialized with the old people in theinstitution.
The integrated system thus allows the horizontal integrationof theory of ethics delivered either in deductive lectures andother non-class activities in phase I study into the applicationof theory in the phase II study. The Problem Based Learning(PBL) give students clinical scenarios to further enhanced
their understanding of ethical concepts and issues. A case ofbreast cancer patient teaches the students to analyze themedical issue (M) first to understand a patient’s reaction
towards the diagnosis. The students will be guided to discuss
the feelings and worries of the patient (E), respecting patient’s
right to decide further treatment (R) which include patientrefusal issues and the need of evidenced-based practice togive correct updated information in patient education,effective way to communicate in breaking bad news andhandling patient denial and refusal (C) and understanding theanxiety and respond of the patient’s husband and family
members (I) that may influenced patient’s decision making.
The foundation for public health ethical practice andresearch ethics are covered in Community Family Case Study(CFCS). Teaching in CFCS promotes understanding ofcommunities & health threats facing them through publichealth research followed by implementation of relevant healthpromotion activities in the community. The first community
residency is to profile the community via community surveys
using a standardized questionnaire interview. The survey
gives the students chance to explore and understand publichealth problem of specific population (M). The research ethics
theory is applied in the process of undertaking questionnairebased research which include obtaining informed consent forinterviews (autonomy & right to refuse) through proper
explanation before interviews (truth telling), ensuringEubios Journal of Asian and International Bioethics 25 (May 2015)
anonymity in data collection (confidentiality), choosing
appropriate interview time (respect local culture) and duration(non-imposing). Thus the surveys give the chance for the
students to apply effective communication (C) as well as
appreciate the people’s right (R) while getting the insight ofthe culture in the society (I). This community profiling isfollowed by the survey analysis to have insight of community
health problem by identifying and prioritizing the problem. The
third and fourth community residencies are health promotion
intervention activities where students work in groups to design
and implementing specific health activities in relation to theidentified problems. These activities highlight the applicationof duty of care, i.e duty to inform public of their risk and duty
to promote health. The students plan the intervention with
community leaders on the suitability and feasibility of theplanned activities including best timing, locality and nature ofintervention. This task enables the students to apply theory ofrespect for autonomy and local culture. The wholeintervention activities implementation also enables thestudents to practice good communication skill (C), caring andempathies people in need (E).
The input of teaching from general concept in phase I are
vertically integrated in phase II where the concept are given
further depth of application in phase II teachings in clinical aswell as in community work. It was later focuses more on theclinical ethics in problem solving learning, evidence-based
practice and clinical patient family case study in phase III,
year 4 and 5 study. The clinical rotations during the clinicalyear which involved clerkship, and hands-on teaching on
patient care helps the students to apply evidenced based
practice in understanding a patient’s medical issues (M).
Throughout their involvement in a patient’s care, they learn toappreciate and empathize patient feeling (E), respecting
patient’s right (R), practicing effective communication (C) withpatient and care givers and getting the insight of the impact ofillness to patient and their significant others. The patientfamily case study will further enhance the application of the
ethical concept in patient care.
Other activities throughout the study is the “TheDiscovering Potential for Sustainable Transformation”, aprofessional development module which focuses on
personality, leadership, time management, communication
skill and problem solving (3). The students are trained to
become facilitators who later went to secondary schools
nearby to handle soft skill programs. The experience boosts
the student confident to communicate, to lead and to work ina team, characters that very much needed in a professional.
Facebook group was developed to sips in enthusiasm inthese young generations of information technology, but at thesame time teach the student on social media ethics, caring
and good sharing practice.
The inter semester elective program in the USM medical
curriculum allows a different approach of learning. The intersemester phase II elective allows the students to choose theirown topic and apply and confirm placement themselves.
These enhance soft skills in term of communication, lifelong
learning and leadership skill. Example of elective projects
include scuba diving, batik painting and life of aboriginalcommunity where the students not only get the chance toexperience other non medical knowledge, but also give theminsight of the variability in the community thus having them tounderstand the complexity of the society when dealing withpeople later in their medical profession. Some students opted
for research elective where they develop and performresearch under supervision of lecturer. They had to apply
research ethics approval from either human or animal
research ethics committee in USM. There are also students
who opted to do humanitarian mission and volunteerism as
their elective project which become part of the practice in95

leadership, team work, communication and empathy. Theinter semester elective in phase III allows the students to doclinical attachments outside USM university hospital toexperience different work culture and variety of patient social
background.
In conclusion, as the need of educational reform for our
today’s generation of medical professionals, USM take themultidimensional approach in nurturing professional behavior
to enhance the effectiveness while avoiding the loss ofenthusiasm and excitement in education.
References
1. Zabidi azhar Hussin, teguh Haryo Sasangko, Kamaliah Mohd
Daud, MERCI, A useful systematic ‘Aide Memoir’ for clinicians inteaching ethics. Personal & Profesional Development for
Postgraduate Nurturing and working through leadership and ethics.
2009. Pustaka Aman Press Sdn Bhd. ISBN 978 983 44907 4 4
2. Azriani Abd Rahman, Muhammad Saiful Bahri Yusoff, NorAzwany Yaacob, Amalludin Ahmad, Mohd Najib Mat Pa. Experiencefrom a community placement for medical students.. Education in
Medical Education Journal, 2009 Vol 1 (1) XXXX
3. Muhammad Saiful Bahri Yusoff, Nor Azwany Yaacob, Ahmad
Fuad Abdul Rahim, Azriani Abd Rahman, Mohd Najib Mat Pa, Mohd.
Ismail Ibrahim. Impacts of a community-academic partnershipprogram facilitated by medical students on a student community: A
reflection on MySTAR. Procedia - Social and Behavioral Sciences
116 ( 2014 ) 734 – 738.

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