Malaysia remains one of the few countries that continues to criminalise attempted suicide. This has the ramifications of making the topic of suicide taboo and in a way preventing those suffering from speaking out about it.
Section 309 Penal Code
In Malaysia, the Penal Code penalises an attempt to commit suicide. Section 309 reads:
“Whoever attempts to commit suicide, and does any act towards the commission of such an offense, shall be punished with imprisonment for a term which may extend to one year, or fine or with both”.
It is clear that if a person is unsuccessful in an attempt to commit suicide, the laws of Malaysia hold this act as a criminal offence which is punishable with a prison sentence or a fine or both.
This contradicts with the purpose of a criminal punishment, i.e. to punish, to serve as a lesson, to rehabilitate or to safeguard society. An attempt at suicide only truly physically harms the person committing while causing emotional harm to those around them. As such, by imposing a custodial sentence or a fine, the punishment does not allows for rehabilitation, does not further promote or safeguard society and does not teach the individual a lesson. It only makes a bad situation worse.
Common reported use
From this author’s research, the most common reported use of the section 309 is in relation to murder cases where in the murderer kills a loved one and then attempts to kill themselves. In truly tragic turn of events, it is usually a spouse or even the children who are killed before the father/husband attempts to kill himself[1].
In these cases, the focus tends to be on the murder of the other family members rather than the attempted suicide, as it should be. Moreover, as the punishment for murder under section 302 of the Penal Code is death, any punishment for the attempted suicide is rendered academic as it merely serves to increase the time the person is alive before being killed by the state.
This further lends support to the argument that the punishment intended under section 309 of the Penal Code does not serve a purpose. If a person has reached such a desperate point in their lives that the only solution in their mind is to end it, prison and/or a fine will not help them. If anything, the conviction alongside the imprisonment may only further incentivise them.
Mental health vs Legal lack of mentality
Another curious oddity about Section 309 is that the crime of an attempted suicide requires the person committing the crime to “be aware” of the act and to be “able to comprehend the action and consequence of the act”, more commonly known as having the mens rea for the offence.
In the tragic case of PP v Vellertore Ponnusamy [2010] 3 MLRH 436, the accused had tried to commit suicide due to depression which was brought about and accentuated due to the stressful triggers in his life. This was confirmed by the Prosecution’s Witness. However, seeing as the depression did not mean he was not aware of the act and was able to comprehend the action and consequence of the act, he was deemed to have the requisite mens rea and sentenced to one year in prison. Please note, had his neighbour not come in and cut the rope, the accused would have “successfully” died and not been prosecuted.
Comparatively, if a defendant successfully proves insanity, he/she in not culpable for an offence under section 309. In the case of Fong Chee Ping v PP [2015] 2 MLRA 313, because the Defendant/Appellant successfully proved that he suffered from delusional hallucinations which prompted his actions, he was acquitted.
Therefore, the courts have ruled that even if you suffered from a recognised mental condition which can be attributed to your action, which may have impaired your thinking and caused you to be driven to such an extreme state, it is not sufficient to show you need professional help. Instead, the Court punishes such behaviour by imprisoning you and allowing you to heal in the safe and comforting confines of prison.
The argument for decriminalising cases
It may not surprise many that the above cases are not the only ones. A disabled man was jailed six months for attempted suicide[2]. Another, who had become unemployed in 2020 and tried to jump off a building was fined RM 3,000.00[3].
In these uncertain times, with many losing jobs, forced to live away from a support network, it is unsurprising that the number of suicide cases have been steadily increasing in Malaysia. We as a society need to start talking about our mental health and not stigmatising it.
Our Colonial cousins, Singapore and Sri Lanka, both of whom had section 309 in their penal code as a hangover from the British colonial period, have now repealed the said section[4]. In fact, while many state that making attempted suicide a crime will act as a deterrent, a study by the World Health Organisation has shown that decriminalisation will not result in more suicides but rather result in a decline in suicide rates[5].
Therefore, it is clear that we should be decriminalising suicide.
Alternatives to conviction
If certain interested groups are still inclined to have the State take action against persons attempting suicide, our laws do provide for an alternative means. Under the Mental Health Act 2001, on application and recommendation of a sufficient authority, a police office or person authorised may take a person who is at risk to a psychiatric hospital[6] for evaluation within twenty four hours[7].
This would allow for action to be taken to ensure the person who is attempting suicide gets the professional help they require while avoiding a conviction.
Aside from the Mental Health, our legislators could govern provisions into the penal code that mandates psychiatric evaluation and a “punishment” that the person attempting suicide is mandated to seek therapy for a minimum set period or such advise that a qualified person may recommend.
Conclusion
Making attempted suicide a crime is not a solution in the 21st century. We have examples from all over the world which support the case for decriminalisation. It benefits the troubled person, their family and our society while also promoting awareness of mental health. A difference can be made quickly and without much negative consequences. We would however need a commitment from our Members of Parliament to come out and say that punishing an illness is an unsound decision.
[1] PP v Vellertore Ponnusamy [2010] 3 MLRH 436; PP v Musdar Rusli [2017] MLRAU 162; Tompo Yara v PP [2017] 1 SSLR 30; Jacob Tiang Lee Yee [2016] MLRAU 377;
[2] https://www.theguardian.com/global-development/2020/feb/17/reform-urged-in-malaysia-after-disabled-man-is-jailed-for-attempted-suicide
[3] https://www.thestar.com.my/news/focus/2021/09/05/caution-before-abolishing-law-on-suicide
[4] A. Azuddin & I. Zakaria, Why Suicide Should Not be A Crime in Malaysia, The Centre, https://cdn.thestar.com.my/Content/Images/Digital_ach_0509_focus_umsuicidez.jpg
[5] World Health Organisation, Preventing Suicide: A Global Imperative, at page 51
[6] Section 10 (2) Mental Health Act 2001
[7] Section 10 (3) Mental Health Act 2001