Insanity defence and the need for a new Mental Health Act

By Dr Myint Zan

In his posthumously published memoirs The 1988 Uprising in Burma (Yale University Council of Southeast Asian Studies. 1999), then former President Dr Maung Maung (31 January 1925-2 July 1994) wrote about how he heard that he was appointed as a Judge of the Chief Court (as it was formally called) on the radio for the first time on 11 July 1962. His appointment was made through the announcement signed by Revolutionary Council Chairman General Ne Win (6 July 1910-5 December 2002) ပုံဗိုလ်နေဝင်း
This appointment was made only four days after Dr Maung Maung returned from a Ford foundation fellowship at Yale University in the United States. Dr Maung Maung wrote that he and his family had not quite ‘finished unpacking’ when he heard the (what one supposes, was) good news on the radio!
First ruling as a single Chief Court judge of Dr Maung Maung
About 40 days after the appointment (from what this writer discerned from the Union of Myanmar Supreme Court web site) Dr Maung Maung, as a single Judge of the Chief Court, delivered his first ruling written in English. It was delivered on 20 August 1962, and it dealt with the law of evidence in a criminal case.
The second ruling of Chief Court Judge Dr Maung Maung in August 1962
A week later on 27 August 1962 Dr Maung Maung, again as a single Chief Court judge, wrote his second ruling this time in the Burmese language. The citation of the case is Maung Tun Sein v The State, 1962 BLR, (CC) pages 337-344.
On Insanity Defence and the M’Naghten Rule
The ruling deals with ‘Insanity defence’ in criminal law. The facts and the holding in the case are summarized below from Dr Maung Maung’s ruling.
The appellant Maung Tun Sein without any provocation or cause whatsoever အကြောင်းမဲ့သက်သက် took a sword “g; (Dah) and hit one of his relatives by marriage and severely wounded him. Two other relatives who tried to stop Maung Tun Sein were killed. On appeal from the lower Court by the defendant Maung Tun Sein Judge Dr Maung Maung held that:
(1) Even if the insanity defence was not clearly raised by the defendant’s counsel in the initial trial the trial Court and the appellate Court can consider the insanity defence and give the criminal defendant the ‘benefit of the insanity defence’. Dr Maung Maung also stated that the medical doctor ဆရာဝန်ကြီး who stated during the trial that the appellant-defendant was ‘not in a state of madness’ (literal translation of ရူးသွပ်၍ မနေဘဲ) was not a specialist in psychiatry. I might add that expression was used in the year 1962. It would be politically and semantically incorrect theses days. It could be better expressed in more politically correct language စိတ်မနှံ့သူမဟုတ်ကြောင်း (Even the previously called ‘lunatic asylum,’ အရူးထောင်  — say in the 1930s — was changed to ‘Mental hospital’ စိတ္တဇဆေးရုံ and the now even ‘smoother’ ‘Mental health hospital’ စိတ်ကျန်းမာရေးဆေးရုံ)
(2) Taken the circumstances of the incident and subsequent behaviour of the appellant-defendant Maung Tun Sein, Judge Dr Maung Maung held that the appellant-defendant was insane at both the time of the incident and also at the time of the judgement. Therefore he was not guilty of the murder of two of his relatives and grievously wounding another one. Dr Maung Maung acquitted him of the murder and grievous bodily harm charges but at the same time ordered that the defendant be held at the mental hospital until the concerned authorities were of the view that he was no longer a danger to society.
(3) In his ruling of 26 August 1962 Dr Maung Maung referred to the famous M’Naghten (alternative spelling McNaughton) case of 1843 (at page 847 State trials). This British case has been established and approved by Burmese courts many times, he wrote. In a sense, the learned Chief Court judge (as he then was) at least indirectly ‘followed’ the dictum of the 1843 case from Great Britain. A ruling from India Etwa Oraon v The State AIR (All India Reports) 135 Patna 1961 was also referred to ရည် ညွှန်းသည် in the judgement.
M’Naghten rule, Durham Rule, John Hinckley case
In so few words M’Naghten rule in effect states that in order to be found that a criminal defendant is legally not responsible or to be ‘acquitted by reason of insanity’ (citing from the 1843 ruling itself): at the time of the committing of the act, the party accused was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing was wrong.
The first limb of the stipulation ‘not to know the nature and quality of the act’ can be interpreted perhaps to the extent and stating somewhat exaggeratedly that criminal defendants must be thinking that when they claimed ‘insanity defence’ it must be proven that when shooting at persons they thought they were shooting at cabbages!
In Maung Tun Sein case he probably – might be aware (or not?) that he was cutting down persons — not cabbages — with a Dah’ sword’. Still, under the second limb, if criminal defendants were not aware of what they did was wrong, then they could be found ‘not guilty by reason of insanity’.
Especially under the second ‘limb’ of the M’Naghten rule and arguably also on the first Judge Dr Maung Maung held that Maung Tun Sein was entitled to the benefit, so to speak, of the insanity defence. Based on the narration of the case, I respectfully agree with the learned Judge’s decision.
Over a century after the 1843 M’Naghten judgment Judge David L Bazelon (3 September 1909-19 February 1993) in the United States established what later came to be known as the Durham rule in the  1954 case of Durham v the United States 21 F.2d. 862 in the US Court of Appeals.
The Durham rule in effect states somewhat broadly that ‘an accused is not criminally responsible if his unlawful act was the product of mental disease’. This ‘Durham‘ rule was not implemented even in the United States beyond the year 1972 when the same Court of Appeals adopted the proviso that ‘A person is not responsible for criminal conduct if such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law’ (emphasis added).
John Hinckley case and the insanity defence
On 30 March 1981 ‘one’ John Hinckley Jr (born 29 May 1955) shot then United States President Ronald Reagan (6 February 1911-5 June 2004) wounded him and three other persons (one of them severely). Hinckley was obsessed with actress Jodi Foster (born 19 November 1962) and shot and wounded President Reagan in order to ‘impress her’. Before he shot Reagan (and others) he wrote a note to her that he wanted to prove his’ love for her’ and he was aware that he could be killed in what (turns out to be) the assassination attempt. Hinckley Jr. was tried for various criminal offences in a jury trial. On 21 June 1982, a jury found Hinckley’ not guilty by reason of insanity’.
Apparently, the standard used as to whether Hinckley was insane was decided not under the (as of 1982) 139-year-old M’Naghten rule (unlike the Maung Tun Sein case in 1962 in Burma).
It is (and was) obvious that Hinkley knew what he did was wrong. Still, under the substantially modified Durham rule as stated above and from Hinckley’s medical and psychiatric history his actions were results of mental disease and arguably (only) Hinckley lacked ‘substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law’.
Perhaps the statement made by the then freshly acquitted criminal defendant John Hinckley Jr.’s that ‘the shooting was the greatest love offering in the history of the world’ and ‘I am Napoleon and Jody is Catherine; I am Romeo and Jodie is Juliet’ as reported in the New York Times of 9 July 1982 proves that Hinckley was, to revert to the colloquial, ‘not quite up there’ or even more crudely ‘bonkers’. To paraphrase Dr Maung Maung, was (is) Hinckley’ mad enough’ ရူးသွပ်၍နေ to be acquitted of 13 criminal offences ‘by reason of insanity’?
From June 1982 fast forward to August 2016 when Hinckley was released from various mental institutions by a judge with lots of restrictions and supervisions.
As negative responses to Hinckley’s ‘not guilty’ verdict (but he was incarcerated in various mental health institutions for more than 34 years) at least the state of Utah in the United States abolished the ‘insanity defence’ (McNaughten, Durham or modified Durham) altogether. The United States Congress passed the Insanity Defence Act of 1984, severely limiting the use of the insanity defence in criminal cases.
To briefly revert to Maung Tun Sein case of 1962 if he were to be tried under the Durham rule and modified modern rule rather than legislation (The Penal Code) ရာဇသတ်ကြီး which in effect adopted the M’Naghten rule Maung Tun Sein would still a fortiori (Latin for ‘all the more ‘) be acquitted too. In contrast, if John Hinckley Jr. (literally more than a million times more ‘famous’ or notorious than Maung Tun Sein) were to be tried under the M’Naghten rule, he would or could not have been acquitted – but that is ‘iffy history’.
Need for a new Mental Health Act
In this writer’s opinion, there is no need for a reform of the Insanity defence in Myanmar. But -not directly related to insanity defence in criminal law- from what this writer understands the Lunacy Act of 1912 from the British colonial times is (technically) still in force (i.e. it has not yet been repealed). However, this does not necessarily mean the 108-year-old legislation is being implemented or enforced.
Around 2017 a foreign-based Myanmar psychiatrist told me that there had been inchoate efforts to replace the Lunacy Act (the name itself is, semantically and therefore at least platitude-wise politically incorrect or inappropriate) with a new Mental Health Act.  The contents of such legislation are to be drafted perhaps in consultation with judicial, legal personnel and also medical doctors as well as mental health professionals.
The members of the new Pyidaungsu Hluttaw would have a lot on their plate so to speak, including other draft legislation to consider and debate about and -if agreed- to enact them. Drafting of a new Mental Health Act might only be a low priority for the Legislators. Nevertheless, they can, at appropriate times, look into drafting and enacting legislation to replace the century-old outdated legislation concerning mental health.
Dr Maung Maung, The 1988 Uprising in Burma., (Council of Southeast Asian Studies, Yale University,1999)
M’Naghten (alternative spelling McNaughton) case (1843 State Trials), page 847  
Durham v the United States 21 F.2d. 862
Etwa Oraon v The State AIR (All India Reports) 135 Patna 1961
မောင်ထွန်းစိန်နှင့် နိုင်ငံတော်အစိုးရ ၁၉၆၂ မြန်မာနိုင်ငံ တရားစီရင်ထုံးများ (တရားရုံးချုပ်) စာမျက်နှာ ၃၃၇ မှ ၃၄၄
News item
Stuart Taylor Jr., ‘Hinckley hails “historical” shooting to win love’, New York Times 9 July 1982

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