Domestic Violence Legislation and its Implementation

DOMESTIC VIOLENCE
LEGISLATION AND ITS IMPLEMENTATION
protection orders within 24 hours of receiving a complaint. The order remains valid for seven
days and can be granted prior to the court issuing a protection instruction. 94 The provision of
such orders ensures effective protections for survivors of violence.
2. Assisted alternative dispute mechanisms
At the pre-litigation stage
Provisions for assisted alternative dispute resolution at the pre-litigation stage have been
included in the laws of Cambodia, Lao PDR and Vietnam. Judicial offi cers and other competent
authorities in Cambodia may try to mediate between the parties, 95 although the complainant
can simultaneously approach the court for protection orders. 96 The mediation is to be
conducted in addition to informing complainants of their rights under the law. Family members,
individuals or organizations, or ‘village mediation units’ may attempt mediation in Lao PDR if
domestic violence is not serious in nature. 97
The Vietnamese law includes detailed provisions for reconciling confl icts and disputes
within the family by family members, institutions/organizations and grassroots reconciliation
teams. The principles to be kept in mind in while conducting reconciliations are listed as being
a) timely, proactive and patient; b) in harmony with the policy of the Communist Party, the Law
of the State, the social morality and good customs of the people; c) respectful for the free will of
all confl icting parties to come to reconciliation; d) impartial, fair, and sensible; e) able to maintain
one’s privacy; and f) respectful of the rights and legitimate interests of other people with no
encroachment on the State and public interests. The same clause also mentions instances
in which reconciliation should not be attempted, which include incidents of a criminal nature
(unless the complainant requests an exemption from criminal proceedings) and violations of
administrative laws (subject to civil fi nes).
The provision of assisted alternative dispute resolutions at the pre-litigation stage
may however, cause diversion from court or criminal procedures. This may remove
the recognition of domestic violence as a human rights violation. This concern is somewhat
mitigated by the observation that pre-litigation counselling is allowed only in cases where the
domestic violence is not considered serious in nature. However, in the absence of specifi c
guidelines on what constitutes serious forms of domestic violence, there is scope for patriarchal
attitudes infl uencing the determination of what constitutes a serious offence. It is, therefore,
important to respect the agency of the woman, and understand her requirements
prior to initiating any reconciliation process. The formulation contained in the Vietnamese
law allows this by including “respect for the free will of all confl icting parties to come to
94 Article 16 (2) of the Indonesian law.
95 Article 13 sub para 1 sub-sub para 4 of the Cambodian law. Note- Article 17 of this law states that authorities in charge cannot
intervene to reconcile or mediate criminal offences that are characterized as felonies or severe misdemeanours.
96 Article 16 of the Cambodian law.
97 Article 35 of the Lao law.
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