Domestic Violence Legislation and its Implementation

INTERNATIONAL STANDARDS
ON DOMESTIC VIOLENCE LEGISLATION
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Religious infl uences are also evident in the Malaysian law that allows the court to refer
parties for counselling during the course of legal proceedings for protection orders. 31 If the
parties are Muslim they are referred to counselling services set up under the Islamic Religious
Affairs Department. 32 This raises the issue of whether such counselling will be conducted in
accordance with human rights standards or with standards laid down under Islamic law.
DEFINITION OF DOMESTIC VIOLENCE
The defi nitions of domestic violence contained in the laws include a range of acts that result
in physical, mental or sexual injury. Some laws have adopted broad defi nitions that can be
interpreted to take into account any illegal act that results in harm or injury. For example, the
Malaysian law includes in its defi nition of domestic violence threats of physical injury, intentional
causing of injuries, coercion to engage in any conduct or act that is sexual or otherwise,
confi ning and detaining the survivor against his/her will, and causing destruction or damage
to property. 33 Others provide specifi c examples of acts that constitute domestic violence. The
Cambodian law has a general clause on acts that constitute violence 34 and specifi c clauses 35
that elaborate on each of the elements contained in the general clause. Hence, “acts affecting
life” have been elaborated to include “premeditated homicide, intentional homicide, unintentional
homicide resulting from intentional acts of the perpetrator and unintentional homicide.” 36 In this
regard, the most comprehensive defi nition of domestic violence is contained in the Philippine
law that separately defi nes acts that result in physical, sexual, and psychological harm,
battery, assault, coercion, harassment or arbitrary deprivation of liberty, stalking, etc. 37 It is
advisable to have a detailed defi nition in the law that captures women’s experience
of violence in all its manifestations. This reduces the scope for judicial discretion, thereby
guarding against the infl uence of patriarchal biases in judicial decision making. By and large
most countries in the region have covered all forms of domestic violence including, in particular,
psychological, sexual and economic abuse. The inclusion of sexual violence is particularly
signifi cant as it rules out any tolerance of rape within marriage.
It is also a good practice to domesticate the defi nitions by outlawing specifi c
cultural manifestations of violence. A good example is to be found in the Vietnamese law
that includes forced child marriages in its defi nition of domestic violence. 38
In the context of resource scarcity and inadequate state sponsored support schemes,
some of the laws in the ASEAN region include neglecting to meet lawful entitlements or
prohibiting the survivor from developing fi nancial independence as a form of violence. However, as
most of the laws are gender-neutral it may lead to men claiming economic support from women.
31 Section 11 of the Malaysian law.
32 Section 11 (4) of the Malaysian law.
33 Section 2 of the Malaysian law.
34 Article 3 of the Cambodian law.
35 Articles 4-8 of the Cambodian law.
36 Article 4 of the Cambodian law.
37 Section 3 of the Philippine law.
38 Article 2 (f) of the Vietnamese law.