Domestic Violence Legislation and its Implementation

INTERNATIONAL STANDARDS
ON DOMESTIC VIOLENCE LEGISLATION
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reconciliation” 98 as a principle to be kept in mind while attempting reconciliation. However,
including provisions on “reconciliation of confl icts and disputes among family members” in the
chapter on prevention of domestic violence may divert focus from the recognition of domestic
violence as a violation of human rights. Hence it is suggested that reconciliation measures
be attempted only after the perpetrator demonstrates to the satisfaction of decision-makers
that no further acts of violence would be committed. The guarantee of non-violence may be
supplied either by fi ling an undertaking or a declaration to stop future acts of violence and
adhere to the terms of settlement if a settlement is reached.
During court proceedings
In other countries, assisted alternative dispute resolution methods may be ordered by the
court. For instance, in Cambodia the court may order mediation by family members and
elders if the violence is psychological or economic or considered minor in nature. 99 Such
reconciliation or mediation may be attempted if all parties agree. The court may also attempt
reconciliation itself but such reconciliations cannot be forced. 100 The latter option may lead
to bias in decision making in cases where attempts at reconciliation fail. In a similar vein, the
Thai law allows parties to attempt settlements at any stage of court proceedings by a court
appointed “reconciliator”. 101 The matter may be withdrawn with the permission of the court
if the settlement is reached and the accused has fully complied with the settlement record
and conditions. 102 In attempting reconciliations, the reconciliator must bear in mind certain
principles, including protecting the rights of the survivor, preserving the marriage and assistance
for the family. 103 While the recognition of survivors’ rights is crucial, the inclusion of the
other principles may allow for the erosion of such rights. Hence, the provision requiring
the permission of the court to withdraw a criminal case is an important safeguard. It is, however,
advisable that reconciliation be attempted by non-judicial bodies such as in Malaysia where the
court may refer parties to a conciliatory body set up under the Department of Social Welfare or
Islamic Religious Affairs Department (applicable if the parties are Muslim). 104
3. Accessing injunctive orders, and measures to ensure enforcement of the orders
Accessibility of orders during the course of litigation
To ensure effective protection for women requires the provision of immediate relief. The most crucial
relief that a woman may access is from court mandated orders. The laws may therefore provide for
interim or temporary reliefs and put time limits on the proceedings initiated to obtain reliefs.
98 Article 12(3) of the Vietnam law.
99 Article 26 of the Cambodian law.
100 Article 27 of the Cambodian law.
101 Article 16 of the Thai law.
102 Article 12 Para 2 of the Thai law.
103 Article 15 (1) and (2) of the Thai law.
104 Section 11(4) of the Malaysian law.