Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
Suicide and attempted suicide are criminalised in Malaysia, but is that the right reaction to such an emotional upheaval?
‘No matter how much pressure you are facing, suicide is not a solution. Now that you’re out of the hospital, you must be charged in court. You must know that attempting suicide is a crime.’
These were the words uttered to an unemployed 24-year-old, Yew Kah Sin, who had the burden of her mother’s lung cancer treatment riding on her back as the courts sentenced her to a fine of RM2,000 or three months’ imprisonment after she tried killing herself early of 2017. Sad as it is to admit, ‘suicide’ has become a common term to read in the papers today as many attempt to end a beginning they have yet to see out of blind desperation. The current legislation, however, seems to deal with these recurring cases by punishing those who attempt to commit suicide with fines or terms of imprisonment. On this matter, Hannah Yeoh, the Minister of Deputy Women, Community and Family Development recently claimed that the criminalisation of suicide is archaic and should be reviewed. This article aims to explain the legal position of Malaysia on suicide and the differing views on whether such a position should remain in today’s society.
II. THE RATIONALE BEHIND THE CRIMINALISATION OF ATTEMPTED SUICIDE
The question arises as to why suicide was made out to be a criminal offence in the first place. Seeking to understand the legal position of any country in relation to suicide (specifically, the decriminalisation of attempted suicide) requires customised, contextually relevant and cultural-sensitive research. Malaysia’s Penal Code follows the old common law approach to attempted suicide (as our Penal Code is in pari materia with the Indian Penal Code), which reflected a more brutal age. Indeed, the attitude in Europe towards suicide up to the 19th century would be described as almost vindictive.
Much of the legal stance in Europe against suicide originates from the declaration by St. Augustine of suicide being a sin. Historically, the influence of religious institutions was instrumental in shaping the legal stance favouring the criminalisation of suicidal attempts. English law perceived suicide as an immoral, criminal offence against God and the King. In Christianity, only the Creator can rightfully destroy either life or liberty. In cases of self-murder, nowhere was an exception provided under His command of “thou shalt not kill’.
Further, attempted suicide was criminalised to maintain social order in the rapidly changing circumstances of 19th century England. The new severity towards suicidal behaviour was part of the effort to enforce seemliness, law and order in a teeming society. In a way, it was to prevent the easy escape of the accused from clutches of the law. In many cases, suicide is used as a sadistic shield to avoid punishment for the accused’s crimes. It is to avoid cases like Tompo bin Yara v Public Prosecutor, where the accused attempted to commit suicide by stabbing himself after cruelly doing the same to his wife to escape from punishment by law. He was charged for the murder of his wife as well as for attempted suicide. Criminalising suicide was seen as a way to deter criminals from trying to find an easy way out of criminal liability because if they fail, they will face heavier repercussions.
III. MALAYSIA’S LEGAL POSITION ON SUICIDE
Malaysia is one of the few remaining countries that criminalise suicide. S.309 of the Malaysian Penal Code states that those who attempt to commit suicide and perform any act towards the commission of such offence shall be punished with up to one year of imprisonment or with fine, or both. It is not a crime if a person is caught at the preparatory stage of suicide, for example, writing a suicide note or tying a noose. However, if one is already hanging on the noose but the rope snaps before death can collect his or her soul, that person when caught will be guilty of the offence under S.309. The Indian Penal Code, which is in pari materia with the Malaysian Penal Code, was promulgated based on the British Common Law which repealed suicide attempt as a criminal offence in 1961 and has long since treated it as a health problem requiring professional psychological and/or psychiatric attention instead. Ironically, Malaysia continues to follow the archaic position of law even though Britain itself has decriminalised attempted suicide.
IV. THE POSITION OF OTHER COUNTRIES REGARDING ATTEMPTED SUICIDE
A. Countries that Criminalise Attempted Suicide
Suicide and attempted suicide are still considered crimes in several countries. In the African region, Kenya, Malawi, Nigeria, Rwanda, Tanzania, Ghana and Uganda are among the countries that currently criminalise non-fatal suicidal behaviour. For example, in Uganda, non-fatal suicidal behaviour is a felony punishable by up to two years of imprisonment. In the Ghana Criminal Code, non-fatal suicidal behaviour is considered a crime.
In the South Asian region, Singapore, Brunei and Bangladesh are among the countries that continue to criminalise suicide attempts. In Singapore, anyone who attempts suicide can be sent to prison for up to a full year or be fined. Additionally, North Korea criminalises suicide with a peculiar deterrent, where the family members of the suicide victim may be penalised as a form of collective punishment for the act of suicide.
B. Countries that Decriminalised Attempted Suicide
Currently, the World Health Organization (WHO) identifies over 59 countries across the world that have decriminalised suicide. Attempted suicide has also been decriminalised in the whole of Europe, North America, much of South America and few parts of Asia. Data from countries that have decriminalised suicide, including Canada and New Zealand, shows that suicide rates have not increased after the decriminalisation. In Hong Kong, where suicide was decriminalised in 1967, effective suicide prevention strategies are implemented by several agencies.
It is mentioned earlier in this article that while Malaysia’s legislation against attempted suicide is adopted from India, the latter has decriminalised the act. India’s lower house of Parliament passed the Mental Healthcare Bill 2016 in March that year, which considers a suicide survivor to be under extreme stress when committing the act and shall not be punished for it.
The Bill states that notwithstanding anything contained in S.309 of the Indian Penal Code, any person who attempts to commit suicide shall be presumed, unless proven otherwise, to have severe stress and shall not be tried and punished under the said Code. S.2(1)(s) of the Bill defines mental illness as ‘a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs.’
All in all, it can be observed that countries around the world are slowly recognising the importance of decriminalising suicide.
V. REASONS FOR MAINTAINING MALAYSIA’S CURRENT POSITION
A. Religious Belief
Religion is one of the most fundamental ways that individuals and communities organise their lives. As such, it has an enormous impact on how individuals and religious groups conceive their own behaviour in the world, specifically in terms of the enactment of their laws. Traditionally, suicide is condemned by religions across the world as only God has the right to dictate the end of a person’s life and the attempt to end one’s life should be considered a sinful act.
In Malaysia, religion plays a vital role in shaping the society’s morale and values as various religions are practiced by the citizens such as Islam, Buddhism, Christianity and Hinduism. For example, Islam strongly prohibits suicide due to its teachings on the sanctity of life. The religion provides comfort to the distraught to not give in to their despair and to try their utmost best to get out of their conundrums while putting their faith in God. In Hinduism, it is believed that death by suicide does not lead to the achievement of salvation (moksha). In general, to end one’s own life is associated with the bringing of dishonour to an entire lineage and other such consequences. Therefore, the enactment of Malaysian legislation reflected the citizens’ religious beliefs on the matter of suicide.
B. Protection of Human Life
The sanctity of human life must be respected and the existing legislations cannot condone a person who wilfully encourages or assists the taking of a human life even if the actual act is self-inflicted. S.306 of the Malaysian Penal Code provides a verdict of complicity in suicide as an alternative verdict in cases where a person is charged with murder or manslaughter; if the facts support it, the court may return a verdict that the accused aided, abetted, counselled or procured the suicide of another person as an alternative to a verdict of murder or manslaughter. This type of scenario is most likely to arise in cases of suicide pacts where one person survives. The court will have to decide on the basis of the evidence a) whether the accused killed the other person and is therefore guilty of murder, or b) whether the accused was merely an accomplice to the suicide of the other person and therefore guilty of the offence under S.309.
C. Deterrent Effect
Here, it is argued that sanctioning perpetrators will serve to deter others from attempting suicide. The general perception is that when one is caught and punished for attempted suicide, the incident will deter others who may have the tendency to do so. The probable assumption undergirding this reasoning is that sometimes people learn by imitating the behaviours of others based on the (positive social) consequences following the imitated behaviour. So, generally, a person will refrain from modelling the behaviour of another if the behaviour is followed by punishment or unpleasant consequences.
VI. REASONS FOR REPEALING MALAYSIA’S CURRENT LEGISLATION
A. Prevents the Reporting of Suicide
The advancement for repealing the current legislation on attempted suicide is reflected on its general inhibitory effect and the considerable stigma associated with suicidal behaviour in Malaysia.
Data was collected from focus groups comprising of a series of diverse participants (suicide attempt survivors, family members of people who have died from suicide and suicide-loss therapists) set up to qualitatively investigate suicide stigma. It revealed an array of stereotypes, prejudices, and discrimination, in particular the fact that those who attempted suicide are predominantly viewed as attention-seeking, selfish, incompetent, emotionally weak, and immoral. The fear of marring family’s social image converges with prosecution from the police to inhibit people from reporting suicidal behaviour and seeking help early.
In Malaysia, reports of such behaviour can be made to Befrienders, a non-profitable organisation that provides emotional support to distressed individuals, or the Malaysian Mental Health Association if a person is concerned of another’s mental health being. Failure to report such instances hampers the collection of potentially helpful data for suicide prevention programs in Malaysia. Those with suicidal potential should be encouraged to seek assistance from professionals without the fear of being prosecuted.
B. The Current Position is Insensitive
The argument here is that Malaysia’s current view on suicide is insensitive to the mental well-being of suicidal persons. Sentences of imprisonment or fine are certainly not worth considering when one already has the intention to commit suicide as his or her state of mind remains the same.
Furthermore, being confined in a prison cell will not hold back those who have attempted suicide from executing their intention. According to the National Suicide Registry Malaysia, people who are in custody have a high risk of committing suicide in their own prison cell. Given that Malaysia’s prisons are in a deplorable state and have unsupportive inmates, a person convicted on the grounds of attempted suicide may return to society with worsened mental health outcomes. In place of the current unsupportive legislation, the society must devise ways to address the unmet needs of persons with suicidal tendencies which motivated their suicidal behaviour in the first place.
The police cannot be expected to provide the social support needed — not all officers are trained for it. Yet, their already scarce resources are expended on arresting those who attempted suicide and investigating self-injury which may not have been suicidal in intent.
C. Current Legislation Does Not Help in Deterring Suicide
The WHO repeatedly stated that rather than deterring people from attempting suicide, criminalisation deters them from seeking treatment, increasing the risk of suicide rather than reducing it. With the knowledge that they may be prosecuted or fined if they fail, those with suicidal tendencies will go to extreme measures to ascertain that it does not happen. Instead of taking 12 pills of Panadol, they’ll take 50 pills. Instead of drinking half a bottle of Clorox, they will drink one bottle. Criminalising suicide will not deter suicides from happening but instead push people to the extremes in fear of prosecution.
Moreover, criminalisation focuses on censure and the assignation of fault, rather than helping the victims deal with the causes of their distress, such as illness, bereavement or financial difficulties. For example, in 2012, a man named Ismail Khan took his children to the top floor of a condominium and pushed them off the building. He then jumped off the condominium. Initial investigations revealed a report lodged by his wife that the man had tried to commit suicide and kill his children the previous year but they survived. Thus, this case clearly shows that the present legal system is unable to deter an individual to commit suicide again after the first attempt. These people need to be detained temporarily for counselling and rehabilitation. They need to be heard, not ostracised; they need medical and psychological help, not punishment.
As the Malaysian society leans towards embracing the importance of mental health, it is important to be aware of our country’s take on suicide. The author wishes to witness the development of Malaysia’s legislation alongside its society in understanding the delicate conditions surrounding mental disorders and especially ones that may lead to suicide.
Written by Farah Nabihah, a second year law student of the Faculty of Law, University of Malaya.
Edited by Syafinas Ibrahim.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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