Imagine this: You are 60 years old, lying on a bed that you have not left in over five years. You yearn to walk around in the garden while taking a sip of your favourite drink. You crave an eventful road trip and to visit places you have never seen before. However, the cruel reality is that you are bedridden in agony and you have to continue to live in pain until your last breath.
In such situation, should you not be granted the legal right to choose the circumstances of your own death? Why should one be given no choice but to wait for a long, drawn-out, painful death which essentially undermines the quality of life?
The sanctity of life is enshrined in Article 5 of the Federal Constitution [1]. This provision forms the basis for the protection of life, but it says nothing about the taking of one’s own life, i.e., euthanasia. The Oxford Leaner’s Dictionaries defines euthanasia as the “practice of killing without pain a person who is suffering from a disease that cannot be cured” [2].
Any discussion about euthanasia inevitably gives rise to complex ethico-legal-religious dilemmas. A consideration of the legality of euthanasia in Malaysia can be assessed through the existing provisions in the Penal Code, which serves as the primary legislation governing criminal offenses in the country [3].
One may wonder if a doctor commits the offence of Murder under Section 300 of the Penal Code if he/she assists a patient to end his/her life. While at first blush it appears that such an act would be caught under Section 300, the consent of the patient appears to absolve the doctor of that offence under Exception 5 of section 300 [4].
Exception 5 provides that it is not Murder “when the person whose death is caused, being above the age of eighteen years, suffers death, or takes the risk of death with his own consent”.
However, before any doctor gets ideas about setting up a euthanasia service in his/her clinic, it may be wise to consider an alternative offence of Culpable Homicide under Section 299 of the Penal Code, which states that “whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide” [5]. Here, the consent of the patient is immaterial. The offence is complete to the extent that the doctor takes steps to cause the death of the patient.
In short, the current legislative regime criminalises euthanasia one way or another. There is no right to die. Given the ethico-legal-religious debate surrounding this vexed issue in Malaysia, it is unlikely that this position will change any point in the near future. So, stay alive people!
[1] Article 5, Federal Constitution of Malaysia —No person shall be deprived of his life or personal liberty save in accordance with law.
[2] Oxford Learner’s Dictionaries https://www.oxfordlearnersdictionaries.com/definition/english/euthanasia?q=euthanasia
[3] Marina Syazana Binti Kamalruzaman, Nurul Izzah Bt Jafri, David Bakit Anak Nuing, ‘Euthanasia and Advanced Medical Directives in the Perspective of Ethical, Moral, Religious and Legal Issues in Malaysia and under Common Law’ (2022) 4 CLI 97 – 121
[4] Exception 5 of Section 300, Penal Code —Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death, or takes the risk of death with his own consent.
[5] Sections 299 and 300, Penal Code
About the Author
Goay Kah Kah, Nicolle is a Legal Associate at XK Law with a strong passion in litigation. Her experience includes corporate and commercial disputes, as well as civil and commercial fraud cases. Nicolle thrives in dynamic environments and outside of work, she enjoys rock climbing and practicing yoga—both of which challenge her focus, discipline and resilience in different ways.
