Looking at the bigger picture

  • Nation
  • Thursday, 19 Aug 2010

The Cabinet has drawn public attention to the growing social problem of baby dumping with its purported decree that those who cause the deaths of abandoned newborns could face the hangman’s rope. A retired Court of Appeal judge comments on the frenetic reaction to the proposal.

FOR people prone to misfortune, Friday the 13th is the harbinger of bad news.

On Aug 13, The Star, quoting Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil, reported that the Cabinet had decided to classify baby dumping that led to the death of babies as a crime that warranted the death sentence.

She said this was needed to nail those responsible for the deaths.

“The Cabinet has decided that the Home Ministry, through the police, investigates these cases as murder when a baby dies. The police would be asked to conduct DNA tests to identify the parents of dead babies,” she said in a statement.

Similar reports have appeared both within the country and globally, all of which appear to have inferred, from the minister’s statement, that baby dumpers found guilty of causing the deaths of the infants concerned should be hanged.

A careful reading of the minister’s statement showed the minister intended to mean that in case of deaths, the case should be “investigated” as murder.

That is a far cry from saying that in every such case the suspect should be treated and charged with murder.

Indeed, the following day the Prime Minister issued a clarification along those lines.

It is for the Attorney-General to decide whether the circumstances justified a murder charge.

However, the spectre of the death penalty now looming large over mothers of abandoned children has galvanised a spirited response from the president of the MCA as well as NGOs and columnists worldwide that such an attitude is draconian and totally unworthy of any community which regards itself as being civilised.

The extreme positions adopted by both sides of the line have generated confusion as to exactly what Malaysian law provides in such cases and how those laws should be implemented.

The deliberate killing of newborn babies by their mothers, whether by active physical abuse or by abandonment, constitutes the crime of infanticide.

The relevant sections of the Penal Code read:

> Section 309A. Infanticide

When any woman, by any wilful act or omission, causes the death of her newly-born child, but at the time of the act or omission had not fully recovered from the effect of giving birth to such child, and by reason thereof the balance of her mind was then disturbed, she shall, notwithstanding that the circumstances were such that, but for this section, the offence would have amounted to murder, be guilty of the offence of infanticide.

> Section 309B. Punishment for infanticide

Whoever commits the offence of infanticide shall be punished at the discretion of the Court, with imprisonment for a term which may extend to 20 years, and shall also be liable to fine.

The fact that these two sections [and section 317] were only brought into force in Malaysia in 1976, notwithstanding that similar legislation was in force in other Commonwealth countries decades before, must surely tell its own story.

Had such offences become a pressing social problem here in the 70s, with the influx of kampung teenagers into urban electronic factories?

The reference by the minister to DNA testing to discover the identity of the parents of the deceased infant leads to the inference that the primary suspects will be the father and mother.

To require the police to treat every fatal case of dumping as one in which the parents were involved and to treat them as murder suspects without any thing else pointing that way suggests not only putting the cart before the horse but the horse’s backside forward!

The physical appearance of the corpse should, in most cases, be enough to determine the age of the dead infant and, if it was newly born, the investigating authorities should disabuse themselves of treating the mother of that infant as a murder suspect.

Since murder cases are not bailable, the additional hardship that will be caused to the mother can be imagined.

The law does not define by weeks or months after birth, a child is treated as “newly born” but if she (the mother) willfully kills that child by reason of mental aberration caused by the effects of that childbirth, this must be in the forefront of our minds if we are to make rational decisions on how to cope with such offenders.

Since the section covers death caused by any act or omission, the willful abandonment of a newborn baby by her mother will equally be infanticide.

Unlike certain offences under the Firearms Act, the Internal Security Act or the Dangerous Drugs Act, where the death sentence is mandatory, it is not irrelevant that the punishment to be inflicted is pointedly left to the discretion of the judge.

Although the erratic behaviour of mothers during pregnancy – and occasionally even bizarre behaviour after childbirth – has been observed throughout human history, this syndrome was not clearly understood until advanced endocrinological studies identified the existence and impact of hormones like estrogen, progesterone and testosterone on human behaviour.

It is now well documented that post-partum psychosis has complex causes and does not spring from incipient criminal tendencies.

Far from punishing maternal victims of this disease they are more deserving of rehabilitation.

Medical treatment and counselling for such conditions have been proven to be very effective.

Our judges are invested with discretion in meting out sentences because they are expected to take on board up-to-date knowledge of the causes which triggered the commission of the offence.

Even though the number of infant deaths is rising to levels sufficient to alarm the authorities in the country, the only reported case is Public Prosecutor vs Zamihiyah (1987) 2 M.L.J 649.

The accused killed her two-month-old girl by throwing her from a moving car.

The medical evidence established that she (the accused) was suffering from puerperal psychosis at the time and that this precipitated the act.

She was initially charged with murder and remanded in custody for three years, two months and 19 days before she appeared in court where the charge was amended to one of infanticide, to which she pleaded guilty.

The judge passed a sentence equal to the period of remand and she walked out of court a free woman.

We may now move on to Section 317 of the Code which reads:

Section 317. Exposure and abandonment of a child under 12 years by a parent or person having care of it.

Whoever, being the father or mother of a child under the age of 12 years, or having the care of such child, exposes or leaves such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both.

Explanation: This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure.

The statement by the Women, Family and Community Develop­ment Minister was wholly in accordance with Section 317 and the baby dumpers she had in mind were not mothers mentally destabilised by post-partum psychosis when they abandoned their newly-born babies, but parents, guardians and other miscreants who were legally sane at the time of committing this offence.

Where direct or circumstantial evidence points conclusively to an intentional killing, the charge is murder and the case should be investigated as such.

If it falls short but still points to knowledge that death, though not intended, would, in all probability result, the charge is culpable homicide. Even a kidnapper has the care of a child as long as the child is in his dominion and abandoning it to die is murder.

Section 317 is the right section where the infant survives the abandonment.

In Fatimah bte Hashim vs Public Prosecutor (1996)MLJU 558, the accused pleaded guilty to this offence and was sentenced by a magistrate in Sungai Petani to four years’ jail from the date of her arrest.

On appeal before Justice K.N. Segara, the judge established that the young girl had been a victim of a drug-induced rape by her boyfriend, who had since disappeared.

She did not even know she was pregnant till her seventh month. She was terrified of her father and, after she gave birth in a hut, left the baby there for the night.

It was found by a neighbour.

The other facts adduced that this girl was more a victim than a criminal.

Law enforcers should take careful note of the judge’s dicta on the need for psychiatric evidence in such cases and rehabilitation care that is expected of us in a caring society.

Depending on one’s outlook, every crisis is also an opportunity.

The Cabinet should be congratulated for initiating public focus on a growing social problem.

In other jurisdictions, the law on infanticide has been amended to make it mandatory for the Court to consider psychiatric evidence and to direct state aid in providing rehabilitative measures, both in medical treatment and counselling, for offending mothers.

Submissions have also been made to expand the protection given not just to the killing of the newly-born baby but also other babies previously born to the mother if, by reason of her mental derangement, she had caused the deaths of all her children.

Mothers who have been abused by being made to produce babies year after year have been known to resort to such extreme measures.

The expression “newly born” also needs clarification.

Medical science has developed to the point where it can be demonstrated that the impact of post-partum psychosis and allied disorders, including lactation, can persist for long periods after childbirth.

There is a case for considering whether the law should be amended to extend the protection to the mother not in respect of the newly-born, whatever that means in its horological dimensions, but for as long as it can be clearly shown that the offence was precipitated by the disease.

We are here dealing with a universal problem and the frenetic reaction to the minister’s purported statement is hardly surprising considering that she is thought to have made a sweeping decree that all baby dumpers should be given the rope if death has ensued.

The criminalising of transgressors and providing punishments for them in Malaysia is still the exclusive preserve of Federal Law, before which everybody is deemed equal.

Parliament in its wisdom would do well to look deeper into what is going wrong with the moral fibre of the nation and why they are being driven outside the pale.

We need to remind ourselves that when we point a finger at these women, there are four more pointing back at ourselves!

When we give ourselves and our children the names of saints and prophets who revere a Divinity who is all compassionate and all merciful, surely we can also take that route and only resort to coercion as a last resort.

> Datuk Mahadev Shankar was called to the Bar in 1956 and was in practice before being appointed a High Court judge in 1983. He was promoted to the Court of Appeal in 1994 and served until his retirement in 1997. He is currently a consultant with a legal firm.

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