Veteran criminal lawyer Datuk Geethan Ram Vincent. – NSTP file pic
KUALA LUMPUR: Questions about the limits of self-defence have resurfaced following several recent incidents, drawing renewed attention to what the law actually permits when individuals use force to protect themselves.
The New Straits Times spoke to veteran criminal lawyer Datuk Geethan Ram Vincent on the issue.
Q: In simple terms, when does the law recognise a person’s right to self-defence?
A: The law recognises a person’s right to self-defence when there is a genuine threat. Under Section 97 of the Penal Code, every person has the right to defend their own body or the body of any other person against any offence affecting the human body. This right only applies if there is no time to seek help from authorities, pursuant to Section 99(3), which states that the right of self-defence does not arise if there was time to seek the protection of public authorities. Lethal force is allowed only in very serious situations under Section 100. You may lawfully cause the death of your attacker only if you reasonably apprehend that the attack would result in your death, rape, sodomy, abduction or grievous hurt. However, under Section 101, if the threat is less severe, a person may still defend themselves but cannot cause death, only lesser harm. There are also limits involving public servants. Under Sections 99(1) and 99(2), self-defence does not apply against a public servant (or someone acting under their direction) who is acting in good faith in their duties, unless their actions create a reasonable fear of death or serious injury.
Q: How does the law determine whether the force used was “reasonable” in a threatening situation?
A: It must be proportionate. Under Section 99(4) of the Penal Code, you cannot cause more harm than necessary for defence. You may only use the amount of force that the situation reasonably requires. For example, if someone approaches you with a twig, you cannot run them over with your car. If an unarmed person attacks you, it would be unreasonable to use a parang to slash them.
Q: Do fear, panic, or split-second decisions affect how self-defence is assessed in court?
A: Objective answer, yes, it is considered in Court. However, this would very much depend on the facts of the case and thus must be viewed on a case-by-case basis. The court will assess whether those reactions were reasonable in the circumstances. It will consider questions such as whether there was time to seek help and whether there was any delay in responding.
Q: At what point does self-defence cross the line into excessive force or a criminal offence?
A: Whether self-defence becomes excessive depends on the facts of each case. Two broad examples where it crosses the line are: When death is caused even though the threat was not serious enough to justify it (i.e. not involving risks like death, rape, sodomy, abduction, or grievous hurt) When the threat is serious, but the force used goes beyond what is reasonably necessary, the reasonable person standard applies. The question asked at each stage is whether the apprehension of threat and the degree of force used were objectively justified. If the response is not justified or is disproportionate to the perpetrator’s actions, it becomes a criminal offence. For example, someone is armed with a pistol, aiming at you and you knock him down in self-defense. That’s reasonable. But continuing to run over them with a vehicle that’s unreasonable, excessive and unwarranted.
Q: If someone is injured or killed in an act of self-defence, what legal process typically follows?
A: When someone is injured or killed in an act of self-defence, a police investigation would typically follow to determine the circumstances of the incident. The investigation would specifically examine whether the act constitutes a lawful exercise of self-defence. The findings are then submitted to the public prosecutor, who has discretion to assess the evidence and decide whether to bring charges. If the force used appears excessive or unjustified, charges may be filed. The accused person can then raise self-defence as a defence during the trial.
Q: What are the key things the public should understand to protect themselves both physically and legally?
A: If there is time to contact the authorities, that should always be the first step. Any act of self-defence must be proportionate to the threat. The public should understand that they cannot use more force than is reasonably necessary to defend themselves or others. Causing death is only justified where there is a reasonable fear of death, rape, sodomy, abduction, or grievous hurt. If the threat is less serious, causing death is not protected by self-defence and may result in criminal liability. However, they still have the right to self-defence, but such force must be proportionate to the threat.