Dear Hongman (and other list members), Malaysia has a Domestic Violence Act (1994) - you can view this at http://www.learningpartnership.org/legislat/natl_malaysia.html
IWRAW Asia Pacific also has in our Resource Centre collection, the draft DV bill for Cambodia. Please let us know if you'd like a copy of this. I'm attaching here for your reference as well, relevant sections from a piece written by Tulika Srivastava outlining the various possible legal approaches to domestic violence. Hope you find this useful. Best wishes, Beng Hui Information and Communications Officer International Women's Rights Action Watch - Asia Pacific 2nd Floor, Block F, Anjung FELDA, Jalan Maktab, 54000 Kuala Lumpur, Malaysia. Tel: 603-2691 3292 Fax: 603-2698 4203 Email: [EMAIL PROTECTED] ----------------- Legal Approaches to Domestic Violence By Tulika Srivastava The discussion around finding legal solutions to Domestic Violence has essentially developed around both criminal and civil relief systems. It can be safely said that responses to Domestic Violence have "developed along a continuum with pure welfare on one end, and criminal measures on the other".* There are views that criminal law is totally inappropriate to deal with Domestic Violence, and approaches strengthening mediation, counseling and therapy must be encouraged, while on the other hand there are views that domestic violence is criminal conduct and must not be treated any differently form other criminal conduct. These are of course the two extreme views, and it would be useful to examine the usage and practical application issues around each, before deciding on the nature of special legislation. WELFARE APPROACH This is a non-legal approach to family disputes. It focuses on keeping the family together, and mediating in situations of dispute through counseling etc. It addresses both the survivor and the perpetrator as agents responsible for the violence, but searches for mitigating rather than challenging solutions. It does not challenge the power dynamics, which led to the gender-based violence in families. It also does not favor a legal approach to the situation, preferring to settle the matter through alternative dispute resolution practices. The approach sees education as a central strategy to addressing situations of family violence, and long-term time based changes in social pattern as final goals. CRIMINAL LAW APPROACH Ensuring that gender-based crimes are treated with equal gravity has been the rational for demanding punitive action against perpetrators of DV. The premise has been that the same force must be applied to crimes of injury, regardless of whether they are placed in the public or private sphere. Further, criminal law sends a strong message of state condemnation of an act. The authority and power of the state is brought against the person who engages in it. The machinery for bringing the culprit to justice belongs to the state, and is expected to function in a coordinated fashion, to stand against offenses and to ensure justice. The states that have adopted this approach recognize that the role of police is central to the success of the strategy. As the police are generally reluctant to intervene, a lot of effort has been invested in building other strategies to ensure police accountability to the law: * Clarification of Police roles: power of entry, arrest and bail procedures * Legislation that force women to give evidence against their husbands. * Introduction of force policies: presumptive arrest, charging by police etc. Stengths: - It makes domestic violence a state responsibility - The survivor does not have to file an application, as prosecution is state responsibility - A politically strong message is sent out that domestic violence is a crime against the society. Concerns: - The standards of proof are very high - Does not give options to the survivor -The implementation of law depends on other factors, and is based in system of male power. - Economic dependency of the women has to be a consideration - Criminalization and incarceration are not the most effective tools of bringing about social change. CIVIL LAW APPROACH In the civil law approach, divorce and matrimonial remedies have been the traditional response to abusive relationships. The right to divorce has ensured that women will have the legal ability to leave abusive relationships. All most all countries provide for some level of economic support for the woman, and this enables them to leave relationships, despite economic dependency. Similarly, even state which recognize the father as the legal guardian, have put in the "best-interest-of-the-child-"clause, whereby custody is granted to the parent who can ensure the interests of the child. This was extremely important, as right to custody was another issue, which kept women in abusive relationships. Many countries provide for protection orders as ancillary relief to matrimonial remedies. Other countries provide for independent Protection Orders, which allow the women a sense of security. They also link fiscal support and compensation for the survivor to the protection orders. The role of judiciary is central to the practice of this approach, as it is the judicial perception that will influence the passing of the orders. The states which focus on this approach, have backed it up with counseling services, special structures, i.e. Family Courts, gender training for judges, etc. In addition, general criminal law provisions can also be applied. However the general provisions do not provide for the complexities of emotional and psychological trauma, and the standard of proof is extremely high, evidence rules very difficult, and so are difficult to use for domestic violence situations. Strengths: - Creates the space for individual action - Links fiscal support, ensuring rehabilitation - Recognizes the need for remedy and the right to choice for the survivor - Emphasizes social responsibility towards a resolution of the issue Concerns: - Puts the onus of initiating the process on the survivor, who may not be in a situation to do so - Involves individual costs, in the absence of legal aid etc. - Process is normally lengthier and more complex - The implementation of law depends on other factors, and is based in system of male power. INNOVATIVE LEGISLATIVE APPROACH The above two approaches have been modified, strengthened and combined by many states, both in the North and the South, in order to formulate special legislation to deal with domestic violence. The special legislation has generally adopted two strategies: * Breach of Peace: wherein legal liability is accorded on the basis of tort, of engaging in an act, which disturbs the peace. This approach holds the perpetrator for social accountability, and has been used to address domestic violence as an issue of social concern. * Injunctions: are judicial orders/instructions of a civil nature, which can be temporary or permanent, granted as an interim relief or as a final order. These can be granted for a number of legal reasons, from maintaining status quo, to instructing desistance from a specific action amongst others. In this approach, the initiation is an application from the victim to a judicial authority/magistrate/ Justice of Peace, stating the violence threatened/happened, and on a balance of probabilities, a protection order is passed, with the perpetrator having to provide undertaking (with or without money) to keep good behavior. If the undertaking is breached, offender forfeits money or is arrested. This approach has also been combined with other remedies, to ensure an effective response. The procedural aspect has used both civil and criminal procedures. Generally, the criminal measures are linked to breaking of the injunctions, at a lower standard of acceptable evidence. The general criminal provisions are also available, and are linked to the legal understanding of the special legislation, thereby creating an optional regime for the survivor. She can choose to send the perpetrator to jail, or choose to use the special legislation, and focus on her own situation, by demanding protection and fiscal support. In certain situations, she can do both. Strengths: - Survivor focused - Ensure optional regime for the survivor - Legal flexibility, which enables a judicial understanding of the issue. - Force the state to provide special structures and schemes. - Enable judicial activism Concerns: - Absence of precedents hampers a true understanding of the ground level realities. - In some states, the lack of legal drafting acumen has resulted in ambiguous text, which is open to negative interpretations.** -The optional regime is also for the state authorities, which may exercise its own choice. - Quite often, the states in the Southern hemisphere do not have the resources, or do not want to put the resources, into special structures * Connors, Jane, Government Measures to Confront Violence against Women, 1992 ** In the Malaysian law on domestic violence, the text said that for accessing the protection order for right to residence, the survivor ought not to have any other residential option. In certain cases, the crisis centers were seen as residential options. ***End-violence is sponsored by UNIFEM and receives generous support from ICAP*** To post a message, send it to: <[EMAIL PROTECTED]> To subscribe or unsubscribe, send a message to: <[EMAIL PROTECTED]>. In the 1st line of the message type: subscribe end-violence OR type: unsubscribe end-violence Archives of previous End-violence messages can be found at: http://www.edc.org/GLG/end-violence/hypermail/
