Domestic Violence Legislation and its Implementation

INTERNATIONAL STANDARDS
ON DOMESTIC VIOLENCE LEGISLATION
3
All ASEAN countries have incorporated guarantee for equality under law and equal protection
of laws in their constitutions; however, reading the Constitutions, Basic Laws and domestic
violence legislations clearly shows that all countries in the ASEAN region with the exception of
the Philippines 7 require specifi c incorporation of their obligations under international conventions
into the domestic law. According to the study by International Women’s Rights Action Watch Asia
Pacifi c (IWRAW AP), the constitutions of ASEAN countries do not provide clear guidance on what
prevails if domestic law is in confl ict with international treaty law 8 , nor how CEDAW norms could
be used as an “actionable source of right”. Furthermore, there are varying opinions among legal
experts with regard to the applicability of CEDAW at the domestic level. 9
DOMESTIC VIOLENCE AS A VIOLATION OF HUMAN RIGHTS
Although CEDAW does not include specifi c provisions on violence against women, subsequent
developments in international law and in interpreting CEDAW have recognized violence as
constituting a violation of women’s human rights. General Recommendation 19 of the CEDAW
Committee in 1992 interpreted the term “discrimination” in Article 1 of CEDAW to include
violence “…that is disproportionately directed against a woman because she is a woman or
that affects women disproportionately. It includes acts that infl ict physical, mental or sexual
harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender
based violence may breach specifi c provisions of the Convention, regardless of whether those
provisions expressly mention violence”. 10
The UN Declaration on Violence against Women, 1993 (DEVAW) affi rms “that violence
against women constitutes a violation of the rights and fundamental freedoms of women and
impairs or nullifi es their enjoyment of those rights and freedoms” and describes concerns
“about the long-standing failure to protect and promote those rights and freedoms in the case
of violence against women”.
It further recognises “that violence against women is a manifestation of historically
unequal power relations between men and women, which have led to domination over and
discrimination against women by men and to the prevention of the full advancement of women,
and that violence against women is one of the crucial social mechanisms by which women are
forced into a subordinate position compared with men”.
ASEAN countries have recognised this pervasive inequality by adopting the “Declaration on
the Elimination of Violence Against Women in the ASEAN Region”, (ASEAN DEVAW) in 2004.
Referring to DEVAW, the ASEAN DEVAW states “that violence against women both violates
and impairs their human rights and fundamental freedoms, limits their access to and control of
resources and activities and impedes the full development of their potential”.
7 There are different opinions on the status of CEDAW in Philippine law. IWRAW Asia Pacifi c Occasional Papers Series No 1. The
Status of CEDAW Implementation in ASEAN countries and selected Muslim Countries. 2004, pp 7.
8 IWRAW Asia Pacifi c Occasional Papers Series No 1. The Status of CEDAW Implementation in ASEAN countries and selected Muslim
Countries. 2004, pp 7-8.
9 IWRAW Asia Pacifi c. Occasional Papers. Series No 1 The Status of CEDAW Implementation in ASEAN countries and Selected
Muslim Countries. 2004, pp 7-8.
10 General Recommendation No. 19 (11th session, 1992) Violence Against Women http://www.un.org/womenwatch/daw/cedaw/
recommendations/recomm.htm#recom19.