Domestic Violence Legislation and its Implementation

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INTERNATIONAL STANDARDS ON DOMESTIC VIOLENCE LEGISLATION 15 In contrast to the Singaporean model, the Lao legislation is based on the stated objective of gender equality and, toward that end, eliminating violence against women. Provisions on traffi cking against women and children and domestic violence are included within this law. 24 Although this law does not make specifi c reference either to domestic violence as a breach of equality or to CEDAW, the location of these provisions within broader equality legislation allows judges to rely on the overall objectives of the law in deciding matters relating to domestic violence. Moreover, the language used in the Lao legislation’s objective clearly refl ects CEDAW language and commitments. However, the best example of a clear statement of objectives is the Philippine law which makes specifi c references to CEDAW and other international human rights instruments, allowing judges the use of broader international principles and norms while dealing with the issue of domestic violence. The Indonesian law also makes a specifi c reference to CEDAW in its statement of objectives clearly reiterating CEDAW as the normative framework. No other ASEAN country refers to CEDAW or other international instruments in its domestic violence laws. 2. Gender-neutrality and its implications A signifi cant feature of all the laws in the ASEAN region, with the exception of Lao and the Philippines, is that they are formulated in a gender-neutral manner. The enactment of “special” laws is to advance international goals of equality and to recognise violence against women as an impediment to women’s human rights, as stated in the ASEAN DEVAW. Therefore, the gender-neutral formulations of laws in ASEAN states do not refl ect the understanding reiterated in the international and ASEAN standards. One would need to analyze this divergence to gain a clearer picture of the reasons for it. Perhaps the reasons are located in broader cultural and societal patterns and ways of thinking that go beyond the law. The adoption of gender-neutral language is particularly surprising in the Indonesian legislation. The detailed list of objectives in the legislation refl ects a clear understanding of international norms. In the law, domestic violence is specifi cally recognised as a violation of human rights, a crime against human dignity as well as a form of discrimination. 25 Elimination of domestic violence is therefore essential to respecting human rights, justice and gender equality, non-discrimination and survivor protection. 26 Further, the provision on the law’s intent includes prevention of domestic violence, protection of survivors and actions against the perpetrator, as well as “maintain[ing] the intactness of harmonious and prosperous households” as one of the intentions. 27 The law also recognizes that survivors of violence are mostly women who require protection, 28 yet the law does not cover only women, as would be expected. Hence, the formulation of this law, despite its progressive intent and provisions, remains ambiguous and could lend itself to interpretations that are not based on an understanding of rights. An 24 Chapter IV on “Protection of Women and Children against Traffi cking and Domestic Violence” has 2 sections- Section 1 “Prevention and Combat against Traffi cking in Women and Children”(Articles 24-28) and Section 2 “Combating against Domestic Violence to Women and Children” (Articles 29-38). 25 Para (b) of the Preamble to the Indonesian law. 26 Article 3 of the Indonesian law. 27 Article 4 of the Indonesian law. 28 Para (c) of the Preamble in the Indonesian law.
DOMESTIC VIOLENCE LEGISLATION AND ITS IMPLEMENTATION example of a special law that is gender-specifi c can be found in the newly enacted Protection of Women from Domestic Violence Act (PWDVA) in India which as evident from its title, has been specifi cally formulated in acknowledgment of the comparative vulnerability of women to violence within the home. In any case, it may be recommended that even if gender-neutral legislation is considered a viable option for a country, there must be a provision against dual protection orders that put restrictions on both parties because these could be used by male perpetrator to take legal action in retaliation against a female survivor. 3. Infl uence of culture and religion Some domestic violence laws make specifi c mention of protection of women consistent with religious or cultural codes. The Cambodian law, while defi ning domestic violence, exempts acts of disciplining if conducted with compassion, pity and sincerity. 29 The inclusion of this clause appears to accept hierarchies within the family. Another example is the Thai law; the defi nition of domestic violence 30 includes intentional conduct that results in harm to physical or mental health, or coercion or “unethical dominance” compelling family members to commit any unlawful acts. The inclusion of a clause of this nature may be a double-edged sword as it allows scope for discretion of the judge as to whether or not the dominance was “ethical”. A human rights standard, on the other hand, would demand that all dominance is unethical and hence must be avoided. A human rights standard would also require that there is zero tolerance of violence against women, hence cultural practices which go contrary to this mandate must be altered by appropriate means. Therefore, such clauses allowing discretion in interpretation of domestic violence legislation must be removed to ensure compatibility with CEDAW. In countries where the constitution requires a religion to be the governing law of the land, domestic violence laws may present problems of interpretation. Judges must harmonize respect for religious codes with constitutional and State obligations to equality. If only judges and other stakeholders understand that all religions preach principles of non-violence then there will be no problem of incompatibility between religious codes and international standards for human rights. The infl uence of religion is apparent in the Indonesian law. It states that “The Republic of Indonesia is a country that is based on belief in God Almighty… therefore, anyone within the scope of household in exercising rights and fulfi lling obligations must be based on religion”. This is in an example of a law which could end up using religious practice as a justifi cation for tolerating the inferior position of women in society. 29 Article 8 para 2 of the Cambodian law. 30 Article 3 of the Thai law. 16
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Page 6 and 7: EXECUTIVE SUMMARY IV Acknowledgment
Page 8 and 9: EXECUTIVE SUMMARY VI 1. Pre-litigat
Page 10 and 11: EXECUTIVE SUMMARY VIII 7. The UN De
Page 12 and 13: EXECUTIVE SUMMARY X law also includ
Page 14 and 15: EXECUTIVE SUMMARY XII 26. Globally
Page 16 and 17: EXECUTIVE SUMMARY XIV • Complaint
Page 18: EXECUTIVE SUMMARY XVI While this pa
Page 21 and 22: Box 1: What are State Obligations?
Page 23 and 24: DOMESTIC VIOLENCE LEGISLATION AND I
Page 25 and 26: 1. Legal frameworks DOMESTIC VIOLEN
Page 27 and 28: 2. Legal measures DOMESTIC VIOLENCE
Page 29 and 30: 2.3 Other legal devices In addition
Page 33: DOMESTIC VIOLENCE LEGISLATION AND I
Page 41 and 42: In Indonesia, the police are respon
Page 49 and 50: MONITORING AND EVALUATING THE IMPLE
Page 51 and 52: Specifi c recommendations Aims and
Page 55 and 56: Box 5: Understanding the domestic v
Page 71 and 72: • STOP grants (state grants to po

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