[1994] 4 CLJ xlv (Nov) SECTION 309 OF MALAYSIAN PENAL CODE: THE SURVIVAL AT THE C ROSS-ROADS by Mohammad Altaf Hussain Ahangar Section 309 of the Malaysian Penal Code reads: Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with imprisonment for a term which may extend to one year, or with fine or with both.1 This section, thus, provides punishment for an attempted act of suicide. However, the desirability and efficacy of such a provision has been subjected, from time to time, to legislative and judicial scrutiny in various countries of the world. Following the French Revolution in 1789, anti-suicide legislation was repealed in European Countries gradually.2 England followed the suit and repealed it, though belatedly, in 1961.3 Likewise in USSR and many states in the USA, attempted suicide is not a crime. In India, there has been b een so far no legislative attempt to scrap the punishment for an act of attempted suicide and the law is contained in s. 309 of Indian Penal Code with mutatis mutandis provision. But, the Indian judiciary has openly revolted against the retention of such a provision during last 9 years. The following observations have been made about s. 309: It is ironic that s. 309 IPC still continues to be on our Penal Code. The result is that a young boy driven to such frustration so as to seek one's own life would have escaped human punishment if he had succeeded but is to be hounded by the police, because attempt has failed. Strange paradox that in the age of votaries of Euthanasia, suicide should be criminally punishable. Instead of society hanging its head in shame that there should be such social strains that a young man (the hope of tomorrow) should be driven to suicide compounds its inadequac y by treating the boy as a criminal. Instead of sending the young boy to psychiatric clinic it gleefully sends him to mingle with criminals, as if trying its best to see that in future he does fall foul of the punitive section of the Penal Code. The continuance of s. 309 IPC is an anarchism unworthy of human society like ours. Medical clinics for such social misfits certainly but police and prisons never.4 Section 309 is ultra vires the constitution being violative of Articles 14 and 21 thereof and must be struck down.5 A person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking ... An act of suicide cannot be said to be against religion, morality or public policy and an act of attempted suicide has no baneful effect on society ... Section 309 of the Penal Code deserved to be effaced from the statute book to humanize our penal laws. It is a cruel and irrational provision...6 With these introductory observations, an endeavour is being made in this paper to highlight the conceptual aspect of suicide; the extent of condemnation or tolerance of suicide in various religions; the constitutionality of s. 309 of Penal Code in the Malaysian context, and its impact on the society in general. Lastly, in the light of conclusions arrived at, a case for the retention of s. 309 is being made out.
II Suicide is nowhere defined in the Penal Code. Broadly speaking, any act which takes a person further from life and nearer to death can be regarded as felony. American psychiatrist Carl Menninger is of the view: Every kind of behaviour inimical to health and life can be described as the expression of the death instinct directed against the self, and suicide can be termed as the extreme manifestation of the said instinct.7 Durkheim has classified suicides on the basis of the disturbance in the relationship between society and the individual. He recognises egoistic, altruistic and anomic suicides. According to him, egoistic suicide results when abnormal individualism weakens society's control over a person. Altruistic suicide results on account of excessive sense of duty to community and anomic suicide is due to society's failure to control and regulate the behaviour of individuals. Finally Durkheim concludes that: The term 'suicide' is applied to every case of death resulting directly or indirectly from a positive or negative act of the victim itself, which he knows will produce this result. An attempt is an act thus defined but falling short of actual death.9 Sociologist and jurists, besides, are using different terms with regard to suicide. According to them, "partial suicides" denotes self-mutilation whereas "chronic suicide" represents habitual behaviour injurious to life, such as alcohol and drug addiction.10 If these definitions and classifications are liberally accepted, then a wide range of acts which are ordinarily beyond our foreseeability and imagination can be grouped as suicidal acts. Whatever the conceptual ambiguity there may be, we can safely treat every act which takes a person nearer his death and brings about the end of his life ultimately as tantamounting to suicide. Judicially it has been observed that where a man of the age of discretion and 'compos mentis' voluntarily kills himself by stabbing, poison or any other way, it amounts to Felo de se or suicide.11 III Article 5(1) of the Federal Constitution reads: No person shall be deprived of his life or personal liberty save in accordance with law. The word "life" in the above provision is of ampler magnitude and wider significance. It is highly relevant to quote the observation of Field J. with reference to the word life in the 14th Amendment of the American Constitution:13 By the term "life" ... something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out
of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world. However, contrary to above judicial approach, the Bombay High Court in 1987 had the following observation to offer to us: It is not and cannot be seriously disputed that the fundamental rights have their positive as well as negative aspects. For example, the freedom of speech and expression includes freedom not to speak and to remain silent. The freedom of association and movement likewise includes the freedom not to join any association or to move anywhere. Freedom of business and occupation includes freedom not to do business and to close down the existing business ... If this is so, logically it must follow that right to live ... will include also a right not to live or not to be forced to live. To put it positively it will include a right to die, or to terminate one's life.14 Instead of being rejected, the above reasoning was impliedly stamped with authenticity and relevancy by Indian Supreme Court on 27 April 1994. It observed: A person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking .... R ight of life of which the Article 21 of the Constitution speaks of can be said to bring in its trail the right not to live a forced life.15 The above lines admittedly give an unfettered licence to a person to end his life whenever and wherever he likes. But the problem which confronts us is how the constitutional liberties can be invoked for ending one's life. All fundamental rights are derivable from the higher right to life. The freedom of speech and expression, freedom to do business and freedom to reside anywhere are all related to the right to live. The negative aspect of these freedoms, that is, the right not to speak, the right not to do business etc. are also relatable to the right to life. All these rights are meaningful only in relation to life and carry no weight in relation to death. So, while it is true that the fundamental rights have both positive and negative aspect,16 it does not ipso facto imply that the right to live also manifests itself in the ne gative form. The right to life is on a different footing as the negative aspect of this right would mean the extinction of the claimant himself. It is either 'this' or 'that', not the suspension of 'this' for the time being as in the case of 'silence' 'nonassociation' and 'non-movement'. The stretching of right to liberty to create a right to die is not only illogical but also antithetical for a full and meaningful realization of the right to life. We have not to forget that the state exists for the common good of citizens and the talk of a common good is wholly illusory unless the right of life is guaranteed in positive sense. Consequently it is rather difficult to accept the judicial observation that the right to life guaranteed by the constitution, in the strict sense, includes the right to die. IV The Indian Supreme Court came out with the view: An act of suicide cannot be said to be against religion, morality or public p olicy.17
This observation, it is respectfully submitted, is wholly and solely a sweeping observation. No statement can be as far from the truth as this observation. We fail to conceive any such religion operating in this world which gives a blanket permission for resorting to commission of suicide. What can safely be said is that the attitude of various religions ranges from condemnation to tolerance and nothing else. So far as Islam is concerned, it unequivocally and u nexceptionally not only disapproves the phenomenon of suicide but even a desire to die is viewed with contempt and ridicule. The Holy Prophet (s.a.w) has following divine directive with regard to exhibition of death desire: None of you should wish for death, for if he is a good doer, he may increase his good deeds, and if he is an evil doer, he may repent to Allah.18 With regard to the commission of suicide, Al-Quran warns us in the following words: Do not kill yourselves; indeed Allah is merciful to you ....19 If any do that in rancou r ... soon shall we cast them into the fire.20 There are several ahadith reported in Sahih al-Bukhari and Sahih Muslim, which speak of suicide as being eternally punishable in the next world. The Prophet (s.a.w) is reported to have said: Whoever commits suicide with a piece of iron will be punished with the same piece of iron in Hellfire.21 He who commits suicide by throttling shall keep on throttling himself in the Hell-fire and he who commits suicide by stabbing himself shall keep on stabbing h imself in the Hell-fire (forever).22 In Sahih Muslim, it is mentioned that: Jabir b. Samura reported: (the dead body) of a person who had killed himself with a broad-headed arrow was brought before the Apostle of Allah (may peace be upon Him), but he did not offer prayers for him.23 Besides, the Islamic history is the repository of the incident of a person who while fighting under the command of Prophet (s.a.w) display exemplary valour which earned him appreciation from friends and foes alike. He received several wounds in the battle and ultimately losing fortitude to bear the pains of wounds, he slew himself with his own sword. The Prophet (s.a.w), despite his great feats in the battle fields, declared that his single act of transgression wiped off al his services in the cause of Allah and doomed him to hell.24 The above quoted Quranic verses and Prophetic p ercepts suggest that a Muslim is not supposed to resort to suicidal death in any circumstance. Contrarily, Islam emphasises that the grant of transitory life to man is by way of a trust from Allah, and he is duty bound to safeguard this trust to the maximum of his capacity and capability. The trust factor is evident from the following Quranic verse:
Verily the hearing, the sight and the heart, ab out each one of these will be questioned (on the Day of Reckoning).25 The fact indisputably stands that Islam attaches utmost importance to the saving of human life and destruction of any type is unacceptable to it. The Holy Quran in this regard provides: ...Be not cast by your own hands to ruin.26 The significance which Islam attaches to the saving of human life can be appreciated further from the fact that it permits the use of prohibited things if it becomes necessary for saving one's life.27 In view of the above vivid and clear-cut denunciation of the act of suicide, how can one believe the judicial observation that suicide is not against religion. So far as Hinduism is concerned, it discourages in general the act of suicide. It is stated that: If a man or woman hangs himself or herself through extreme pride or extreme rage or through affliction or fear, he or she falls into hell for sixty thousand years.28 No water is to be offered for the benefit of the souls of those who kill themselves.29 However, we have texts in Hinduism whereby the practice of ending one's life by one's own act is approved in certain circumstances. For example, in Apararka, it is written: A householder who is suffering from serious illness, or who is very old, who has no desire left for the pleasures of any of the senses and who has carried out his tasks, may bring about his death at his pleasure ... by entering fire or water or by falling from a precipice. By so doing he incurs no sin and his death is far better.30 The attitude of Hindu community towards suicide, in certain circumstances has not been only of tolerance but of acclamation. Johars (mass suicides or self-immolations) of ladies from the royal houses to avoid being dishonoured by the enemies, Sati (self-immolation by the widow on the burning pyre of her deceased husband), and Samadhi (termination of one's life by self-restraint on breathing)31 are some of the customary patterns of suicides which are the result of social approbation and appreciation. Sati was banned as early as in 1868 in India but it is an undeniable fact that even today the incidents of Sati, though rarely, do occur. The safe conclusion is that while Hindu religion only tolerates suicide in some specific circumstances, the Hindu society has customarily stamped some suicidal devices with relevance and reverence. About the response of Christians to the act of suicide, it can be safely said that the y strongly oppose suicide. Although it is not mentioned anywhere either in the New Testament or Old Testament, the Church used to issue religious decree in the Council against the persons who committed suicide and they were denied burial in the Church graveyard, and their goods and properties were confiscated by the civil authorities. Suiciders were, sometimes, buried on the highway with the
stake driven through their body. In 1824, the Parliament of England permitted the burial of suicides in Churchyards without religious rites but in 1882 burial was permitted at any hou r with the usual rites.32 The attitude of Buddhism has been ambiguous, though it has encouraged suicide under certain circumstances such as in the service of religion an d country.33 It seems that the approach of different religions towards suicide has a direct effect on the inc idence of suicide cases. A total of 613 Malaysians committed suicide between early 1993 and March 1994. Of the total, 303 were Indians, 201 Chinese and 109 Bumiputera.34 These figures suggest that Muslims, on the whole, avoid commission of suicide whereas Hindus are too open to suicide. Had the religion no role with regard to suicide cases, then in view of the population ratio the incidence of suicide amongst Bumiputera should have been five times more than the Indians. But as most of the Indians in this country profess Hinduism, the impact of religious permissibility on them cannot be ruled out. V ... An act of attempted suicide has no baneful effect on society. Furthermore, suicide or attempt to commit causes no harm to others because of which the State's interference in the personal liberty of the concerned persons is not called for.35 These views of Indian Supreme Court reflect the judicial extremism in recognition of so called individual liberalism. An individual does not exist in a vacuum. He lives in the society and is tied up with his parent, children, brothers, sisters and friends at large and does therefore owe some duties and obligations to them in particular and to society in general. For example, if a pilot of the passenger plane decides to commit suicide in mid-flight or a film star ends his life after 80% of his several films have been shot, does it involve no damage to person or property of others. In such circumstances, how can an act of suicide be not harmful for the society? Does not it bring distress, pain and sorrow for the society in general and the family in particular? Cannot we relate orphanage and poverty in most cases to such a reckless act? Does an attempted act of suicide bring grace and prosperity to society? If we are supposed to believe the judicial observation, then how can we stop a person from committing suicide in broad day sunlight through the means of hanging, drowning or cutting his throat. Any questioning on this account would mean an uncalled for interference by the state in the personal liberty of the concerned person. The truth of the matter is that noninterference by the state in suicide or attempted suicide cases would leave a lot of scope for exploitation of vulnerable people. It would open doors to criminality. If taking away life is crime, then does not suicide also amount to taking away life. The recognition of non-interference theory would drain out state's potency as an establisher of the rule of law. How would the state react if a person sets himself afire in public agitating against some governmental policies? Should the police douse the flames in cases of self-immolation?36 Should the police forcibly nourish persons undertaking fast unto death when their condition becomes critical? In view of above observation, the answer is 'no'. Any step by police against such person would tantamount to interference with the personal liberty of the person concerned. Besides, how can we settle the 'posthumous disabilities' of persons committing suicide - like holding back the insurance money, giving service
to the nearest kin and other monetary benefits to the family.37 The deletion of s. 309 from the Penal Code is surely to lead to the piles of litigation on these issues. VI Despite the above arguments against repeal of s. 309 of our Penal Code, w e have not to forget that cases of attempted suicide need a humane and compassionate judicial treatment. Unlike other offences, it results from sentiments of exasperation, fury, frustration and revolution. Besides, it is an outcome of feeling of burden, torture, sadness, loss of employment, reverse of fortune, misery due to illness, family trouble and thwarted love. Social indifference in these circumstances has usually proved a decisive factor towards the commission of the offence. This type of social attitude has made the Indian judiciary to sarcastically remark: ... some individuals resort to suicide to escape from the cruel conditions of life which are every moment a punishment to them. The deliverance from such mundane existence is in reality a boon to them. Yet, society which is either unable or indifferent to improving his conditions of life, seeks to punish him for his attempt at self-deliverance.39 Taking the pros and cons of the offence of attempted suicide into consideration, we are of the opinion that s. 309 of the Penal Code should stay on the Statute Book. Its repeal may lead unnecessarily to several incongruities. The need of the hour is that in a complexity of social maladjustments, the Court should exercise and temper its judgment with humanity and compassion. It seems that Malaysian Courts have so far discharged this duty faithfully. Unlike India, we have failed to locate in Malaysian Law Reports any worthwhile judgment touching on the constitutionality or any other aspect of s. 309 thereby suggesting that the Courts view such cases with leniency. Even in India, Courts have many a time in past avoided the strict application of s. 309 on the grounds of restricted interpretation,40 procedural injustice41 and in the interest of justice.42 Still by retaining s. 309 of Penal Code, we would be proving wiser to err on the side o f caution. Otherwise to confer a right to destroy one-self and to take it away from the purview of the Courts to enquire into the act would be one step down in the scene of human distress and motivation. It would surely promote the tendency of seeking escape in death instead of developing a fighting spirit against odds. A cowardly escapism has no role in the life of living nations and religions. Expectedly Islam in both these capacities vehemently opposes it. Besides, if s. 309 is deleted, we are highly doubtful whether s. 306 of the Penal code could survive. If attempt to commit suicide does not amount to an offence, then on what basis active assistance and indu cement to commit suicide would be categorised offence. Invariably it would let the criminals go scot-free. So rationally we have societal safety in retention than in abrogation of s. 309, of Malaysian Penal Code.
Endnotes: 1.
F.M.S. Cap. 45.
2.
Infra note 5 at 124.
3. Suicide Act 1961. The Act, however makes a person criminally liable who aids, abets, Counsels or procures the suicide. (See s. 4 of the Act). 4.
State v. Sanjay Kumar, [1985] Cr LJ 931.
5.
Maruti Shrivati Dubal v. State of Maharashtra [1987] I Cr LC 114.
6. Decision delivered by Indian Supreme Court in the case of P. Rathinam v. State on 27 April 1994. See the Statesman, 28 April 1994; Hindustan Times, 28 April 1994. 7.
Referred in supra note 5 at 126.
8. Steven Lukes, Emile Durkheim - His Life and Work, 206-207 (California, 1985); see also Edwin S. Shneidman, Suicidiology: Contemporary Developments, (New York, 1976). 9. 10. 11. 159.
Id. at 200. Supra note 5 at 126. Scott. Union & National Insurance Co. v. Roushan Jehan Begum, AIR 1945 Oudh 152 at
12. Munn v. Illinois [1877] 94 US 113 at 142. The 14th Amendment of American Constitution reads: No State shall deprive any person of life, liberty or property without due process of law. 13.
Ibid.
14.
Supra note 5 at 120.
15. Supra note 6. Art. 21 of the Indian Constitution reads: No person shall be deprived of his life or personal liberty except according to proced ure established by law. 16.
Excel Wear v. Union of India [1978] 4 SCC 244.
17.
Supra note 6.
18. Muhammad Muhsin Khan (Translated), Sahih al-Bukhari, Hadith 577, vol. 7, pp. 391392, (Kitab Bhavan, New Delhi, 1984). 19.
Quran, sura al-Nissa (iv): 29.
20. Quran, sura al-Nissa (iv): 30. The contention of Gibb and Kramers that "there is no express provision regarding suicide in the Quran" is, in view o f the above Quranic version, misconcieved and misdirected. For details, see Gibb and Kramers (eds); shorter Encyclopaedia of Islam, 228 (London, 1953). 21.
Supra note 18, Hadith 445, vol. 2, 251.
22.
lbid, Hadith 446, vol. 21, 252.
23. Abdul Hamid Siddiqi (Translated), Sahih Muslim, Vol. 11 , 464 (Lahore, 1976). 24. Supra note 18. 25. Quran, sura al-Bani-lsrail (xvii): 36. 26. Quran, sura al-Baqarah (ii): 195. 27. Quran, sura al-Baqarah (ii): 173. 28. Parasara, vi: 1-2. 29. Manu, v: 98. 30. Apararka, 877. 31. Supra note 5 at 125. 32. [1993] I SCJ 37. 33. Supra note 5 at 121. 34. New Straits Times, 20 May 1994. 35. Supra note 6. 36.
Radiance Viewsweekly, 8-14 May, 1994.
37. Ibid. 38. Supra note 6. 39 Supra note 5 at 127-128. 40. Valentino Esperdio de Souza v. State, AIR 1967 Goa, Daman and Diu, 138. Mens rea was found absent in view of emotional disturbance of the accused.
41. State v. Sanjay Kumar Bhatia [1985] Cri LJ Delhi 931. The trail Court acquitted the accused on the ground of investigation having taken eight months. Court treated such an undue delay as violation of s. 167 of Indian Cr.P.C. 42. Court on its motion v. Yogesh Sharma, Criminal Revision No. 230 of 1985 decided by Chief Justice Rajindra Sachar on 13 December 1985. Court declared all the prosecutions as positively detrimental to the rule of law notion itself.
