The Right to Death

A brief consideration of the right to death in light of section 309 of the Penal Code that criminalizes a person for attempting suicide.

Suicide and a person’s right to commit suicide have always been difficult topics and have attracted intense debate with philosophical, social and humanitarian arguments on both sides. What cannot be disputed is that a suicide is a tragic occurrence that affects all those related to the victim; urgent attention is required in order to tackle the soaring rates of suicide in this country and across the entire world.

On the one hand many have argued that prosecuting those who attempt suicide is little deterrence as it is far too simplistic a solution to a complex problem containing many different factors that could all work towards pushing a person to taking their own life. Drugs, poverty, domestic issues and psychological illnesses all contribute towards the global suicide endemic and imprisonment is insufficient in dissuading those that are plagued by such issues from taking their own life.

On the other hand, others argue that it is a criminal offence because it is a crime against the State, which has an interest in a protecting citizen’s lives and their potential contribution to society, be it in the form of a nation’s or family’s dependence from a social and economic perspective. Whatever the reasons, the current legal ramifications of such a debate over man’s right to die are clearly in favour of this approach.

There are many however, who would advocate the persecution of those that attempt suicide on religious grounds. For example the Christian religion sees suicide as one of the ultimate sins because it is seen as the throwing away of a life given by God which infringes the sixth commandment that ‘Thou Shalt not Kill’. Similarly Islam, suicide is viewed as a sign of the Muslim’s disbelief in Allah, and so a terrible insult and crime.

The religious approach demands that suicide attempts are deterred through punishments and thereby risking eternal damnation. However, the more secular humanist approach argues that laws prosecuting people who attempt suicide are outdated and based on archaic belief systems and so no longer apply because of its potentially detrimental effect on modern societies.

Such archaic principles can perhaps be traced to the feudal system that existed in Medieval England when there was widespread belief that sprung from the rigidity of societies hierarchy and the notion of people being mere subjects of the King, and hence the King’s property. In this light, killing oneself effectively stole from and harmed the State.

While this may have been the case in a world of Knights, Servants and Serfs it is most certainly not true in a modern society built on the secular humanist traditions where human rights are the foundations of modern government. It can be argued that a law prosecuting attempted suicide is grounded in a tradition of slavery, which is in violation of Article 4 of the Universal Declaration of Human Rights (UDHR). Similarly it has been argued that Article 3 UDHR concerning a person’s right to life encompasses their right to die in a manner of their choosing.

Considerations about suicide can be readily found in many schools of philosophy. Most notably the nihilistic philosopher Nietzsche, was a firm believer in the right to die, going as far to say that suicide was a sacrosanct right of all human beings while the idealist philosopher Schopenhauer stated that there is nothing “man has a more unassailable title than to his own life and person”.

The legal view of suicide in Malaysia can be found in section 309 of the Penal Code. This section provides that ‘whoever attempts to commit suicide… shall be punished with imprisonment which may extend to one year’. Clearly, the official viewpoint of the Malaysian government concerning suicide is that it is a criminal offence that should be deterred like any other crime. And they have recently sought to enforce it against a 16 year old girl in Terengganu who was charged and was supposed to commence trial on 23 January 2010 for her attempt .

Her prosecution came under intense criticism from within Malaysia, both from parliamentarians such as Fong Po Kuan and from Non-Governmental Organisations such as the Befrienders. The NGOs argue that Malaysian prison systems are ill-equipped to deal with the psychological needs of those with suicidal tendencies. The lack of psychological support can cause tragic incidents such as in the case of J Saravanan who hung himself in prison using a pillow case.

Cases like these make it clear that merely imprisoning individuals do not cure them of their psychological ailments. If the government has no intention of repealing Section 309, then certainly a revision of the prison system is desperately needed to curb the rapidly rising suicide rates. The rate of suicide has increased with 1,578 suicides in 2005 rising to 3,976 in 2008 demonstrating that this is a pressing issue.

Interestingly the law in Malaysia concerning suicide is a judicial legacy from British Colonialism. Ironically, the British themselves repealed this Law in the English Suicide Act of 1961 during a time of great legal liberation and reform in Britain with other acts such as the Divorce Reform Act of 1969. However, the situation in Britain is not as clear cut as would be hoped for.

In the case of Pretty v United Kingdom (2002) the court ruled against the man who was seeking permission to allow the suicide of his wife who was terminally ill with motor neuron disease which was an incurable degenerative disease. However, more recently Purdy v Director of Public Prosecutions (2009) challenged the law that prosecuted those aiding people in assisting in suicide, arguing that this law failed to uphold the Suicide Act of 1961.

The appeal failed as the court ruled in much the same way as in the Pretty v United Kingdom (2002) case. However it has motivated a move towards outlining firmly the guidelines for the law on assisted suicide in Britain. Therefore it can be seen that in Britain although those who have attempted suicide will not be prosecuted in a court of law like in Malaysia, those who aid in a person’s suicide still run the risk of facing sentencing.

One entity that has a significant influence over the laws relating to suicide in Britain is the European Convention on Human Rights (ECHR), signed in November of 1950. Contained within this Convention is Article 2 which concerns the right to life and is similar to Article 3 UDHR. Article 2 has been used by those in the right to die and death with dignity movements as evidence that suicide and assisted suicide are human rights and should be legalised. However, this appears to not be the case as the European Human Rights Court ruled that in both Pretty v United Kingdom (2002) and Purdy v Director of Public Prosecutions (2009) the State did not violate Article 2 ECHR. The court ruled that the right to life does not encompass the right to die and so the denial of this right does not go against Article 2. Also included in Article 2 is the fact that a hospital has an overbearing responsibility for the well-being and life of its patients; this therefore means that allowing a patient to commit suicide is in fact a violation of Article 2 ECHR.

There are similar such laws across Europe as that in Britain that prohibit and even prosecute those that are involved in a suicide. For example in the eyes of German Law, suicide is classified as an accident and therefore anyone present who doesn’t attempt to prevent the suicide could be prosecuted under Article 323c of the Strafgesetzbuches (the German Criminal Code). Therefore the situation appears to be much the same across Europe as in Britain; while suicide may not be a crime the law can still charge those that may have been involved in its occurrence.

Another European case that, while it doesn’t relate directly to the laws on suicide, nevertheless highlights the dangers imprisonment poses to those with suicidal tendencies is Renolde v France (2008). This was a case brought against the French government after one Joselito Renolde was incarcerated for assault in 2000 and was given no psychological counselling even after a suicide attempt in July of the same year. The courts ruled that the prison’s actions were in violation of both Article 2 and 3 ECHR (which provided for the protection from torture or ill-treatment) as Renolde succeeded in hanging himself later that same month. This again highlights the dangers of imprisonment without adequate psychological facilities for those with a pre-disposition towards suicide.

In conclusion, suicide is a difficult topic; with so many social, religious and moral factors to consider and law concerning it must be deliberated intensely as the ramifications of any such legislation could be dire. However from the experience of Renolde v France (2008) and the local tragedy of J Saravanan, the prison system in its current state is not the appropriate environment for managing those with suicidal tendencies.

In that respect, the repealing of section 309 Penal Code would be prudent in order to reduce the rate of suicides in prison until they can be correctly outfitted with the facilities to cater for their psychological needs. Repealing this law will enable the government to take this issue a step closer towards a modern solution to the problem that respects a person’s individual rights while allowing for suicidal people to receive the correct support.

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Posted on 4 February 2010. You can follow any responses to this entry through the RSS 2.0.

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