Are suicide attempts criminal? The law says it is, according to Section 309 of the Penal Code, a legacy of British colonial law which is still in place. However, with better understanding of mental health today, this law may no longer be suitable. It is past time we rethink this legal response to suicide, which ignores the underlying mental health background that pushes those to take or attempt to take their own lives.

We call for it to be repealed — and in its place we recommend actually addressing key causes of suicide, which is rooted in mental health difficulties. A care-based approach would, we argue, lower suicide rates by addressing mental health issues before it escalates to the level of suicide.

But before that, what is Section 309 of the Penal Code, and how did it come to be?

Section 309 Penal Code

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.

The Criminalisation of Suicide

Section 309 of the Penal Code was enacted in then-Malaya in 1936 and continues to this day as a colonial legacy. It originates from the Indian Penal Code which was based on British Common Law. However, during that time, mental health and mental illness, as well as its root causes or treatments, was not well-understood.

Significant progress has since been made in this field, with the causes of suicide ideation identified to be rooted in multiple factors, including financial distress, grief, loss of a loved one and many others. It is understood now that mental health difficulties are responses to an individual’s social and economic conditions.

A number of countries that also adopted the Indian Penal Code such as Singapore and Sri Lanka have since repealed this law, or now uphold modified versions of Section 309. Many ASEAN countries, including Indonesia, also do not consider suicide a crime. Malaysia, however, has not yet followed suit.

Currently, the Malaysian government response on suicide attempts sends mixed signals. One the one hand, suicide attempts are seen as a mental health issue that needs treatment (as it should be): the Ministry of Health’s Psychiatric and Mental Health Services Operational Policy states that if an individual is admitted into medical care for a suicide attempt, they are kept under close supervision until they are deemed to be in a stable condition to not harm themselves.

On the other hand, the legal approach towards suicide attempts do not seem to take into consideration the mental health aspects: for those charged under Section 309, there is no indication that the individual is referred for medical or psychological care after or during sentencing. Having a law that criminalises suicide may also discourage people from seeking help even when help is available, as they may fear that coming out and seeking help can have legal repercussions.

Decriminalising Suicide in Malaysia

While calls to decriminalise suicide attempts have been largely growing, no substantive action has taken place. As far back as 2012, the Malaysian government’s Law Reform Committee attempted to review Section 309. In the same year, the Minister of Health stated that the law is no longer relevant, saying that the law does not address the issue of mental health.

Since then, different bodies and NGOs, such as the Malaysian Mental Health Association (MMHA), the Human Rights Society (HAKAM) and the Malaysian Mental Health Promotion Advisory Council have continuously called on the Federal Government to repeal the law.

The Pakatan Harapan government last year committed to amending the Penal Code to no longer make suicide a crime. No further discussion has since taken place. However, the call for decriminalisation was revived recently following the sentencing of an unemployed man under Section 309 — he was fined RM3,000 for trying to commit suicide by jumping from the balcony of his flat. While he was ‘only’ sentenced to a fine, it still brings up the question of whether suicide should be treated as a crime rather than a human tragedy.

Mandating mental health support

Hand in hand with decriminalising suicide, we need to have structures to support those facing suicidal ideation and mental health issues. If Malaysia were to take this step, what needs to be in place? We look at existing mental healthcare frameworks in other countries which have either taken this step, or have a more progressive approach towards mental health.

Earlier this year, Singapore decriminalised suicide by amending its Mental Health (Care and Treatment) Act. The framework establishes that affected individuals are referred to mental health professionals, and that experts from different sectors – mental health, physical health and social services can compel mental health interventions with legal backing.

In Ireland, the country’s National Office for Suicide Prevention funds a National Self Harm Registry. This database allows authorities to identify repeated incidents of self-harm and direct appropriate mental health interventions to affected individuals. There is an opportunity to replicate this model, as it would allow agencies, NGOs and authorities to identify at-risk individuals, alongside actively monitoring and offering support.

Meanwhile, Thailand’s healthcare system utilises a surveillance and care system. It is a multi-step framework that allows for both screening, care and follow-up. Since its introduction in 2009, by 2016, the system was accessible to 48.5% of individuals with depressive disorders from 3.7% previously.

Following these salient examples of community mental healthcare approaches, what we hope to see in Malaysia is a system where individuals who attempted suicide are redirected by relevant authorities to get mental health support. From here, there should be increased and continued monitoring – a crucial step as as there is a likelihood of re-attempting suicide, with poor adherence to treatment increasing this risk. Resources to support this, such as increased funding for social workers and a secure registry of those at risk, similar to Ireland’s National Self-Harm Registry, should be considered.

The Ministry of Health’s MENTARI program, which is community-focused, might be best suited in implementing this sort of framework. Apart from offering mental health support and awareness outreach, these centres also focus on managing cases of suicidal behaviour. Case studies in the Middle-East have shown that when it comes to mental health support, a community-based approach has been effective and decreases the strain on existing healthcare systems.

Repealing Section 309

Laws and its amendments can form the basis for cultural change. A legal system can signal to society on how the government approaches certain issues, and can serve as the barometer of societal acceptance. It has been eight years since the Law Reform Committee spoke about reviewing Section 309 — when will lawmakers finally move ahead with this?

Just talking about how suicide attempts are underpinned by mental health difficulties is not enough: we need to have this – finally – reflected in the legal system. By no longer making it a crime, the government can further signal to Malaysian society that suicide is not a taboo subject, that it’s not a crime but a mental health issue, and that suicide attempts are a cry for help.

Individuals suffering with suicide ideation and attempt suicide are experiencing a legitimate mental health issue that deserves the dignity of treatment, which we can provide if, instead of sending people to jail or fining them, we have an effective framework that is empathetic and care-based in place instead.

If you are experiencing emotional distress, you can seek support from Befrienders (24-hours) at 03-76272929 for free.