A CRITICAL ANALYSIS OF THE DOMESTIC VIOLENCE ACT 1994

Introduction

This article will primarily analyse whether Malaysia’s existing safeguards under the Domestic Violence Act 1994[1], are truly sufficient in upholding the rights and interests of domestic violence victims, particularly women who often suffer gender bias under the law. This article aims to explore the legislative gaps and address the existing issues which hardens the court’s role in achieving justice in regard to victims seeking legal recourse to end their suffering.

Domestic Violence Act 1994

 First and foremost, a discussion on the application and effectiveness of the Domestic Violence Act 1994 (DVA) will be carried out to determine whether domestic violence victims are sufficiently protected and safeguarded by Malaysia’s primary legislation on the issue of domestic violence. In the grand scheme, this discussion is needed alongside the discussion on the available legal defences for domestic violence victims who kill their abusers, because the very nature of the act of killing one’s abuser is to put a real end to the sufferings caused by a long history of domestic abuse, whether it be in the form of physical or mental torment. Therefore, the DVA should serve as an impenetrable shield between a perpetrator and a victim of domestic violence. Before beginning the discussion on this act, it must be said that in the case of Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib[2], the Federal Court ruled that civil allegations of assault and battery that occurred during marriage between a Muslim couple is a matter for Islamic family law and hence falls within the exclusive jurisdiction of the Syariah court. Despite this, the DVA applies to all domestic violence victims regardless of race, religion, cultural and family background[3].

The definition of “domestic violence” is provided under S.2[4], whereby it includes the various acts which constitute domestic violence, and the potential victims of domestic violence. The definition and identification laid down by the Act is essential to determine the type of acts which is legally considered as the commission of domestic violence, and the categories of persons for which the act may be inflicted upon. Under paragraphs (a) to (e)[5], domestic violence refers to the commission of the following acts: “wilfully or knowingly placing, or attempting to place, the victim in fear of physical injury; causing physical injury to the victim by such act which is known or ought to have been known would result in physical injury; compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which the victim has a right to abstain; confining or detaining the victim against the victim’s will; causing mischief or destruction or damage to property with intent to cause or knowing that it is likely to cause distress or annoyance to the victim.” This early definition is clearly confined to the limits to physical harm and destruction, whereby it ignores the central theme of domestic abuse which is the control and abuse of trust between close persons. Although most domestic violence cases involve the act of physical violence such as punching, kicking and bruising, the emotional and psychological harm should not be underestimated[6].

However, this was amended in 2012, with the insertion of paragraphs (f) to (h)[7], which further expands the categories of acts considered as domestic violence, including: “psychological abuse which includes emotional injury to the victim; causing the victim to suffer delusions by using any intoxicating substance or any other substance without the victim’s consent, and if consent was given, it was deemed unlawfully obtained; or in the case where the victim is a child, causing the victim to suffer delusions by using any intoxicating substance or any other substance.” Furthermore in 2017, a more comprehensive definition of domestic violence was once again provided in a recent amendment, whereby paragraphs (ea), (eb) and (ec)[8] were added to include “dishonestly misappropriating the victim’s property which causes the victim to suffer distress due to financial loss; threatening the victim with intent to cause the victim to fear for his safety or the safety of his property, to fear for the safety of a third person, or to suffer distress; communicating with the victim, communicating about the victim to a third person, with intent to insult the modesty of the victim through any means, electronic or otherwise.” Despite the initial lack of consideration given to the inclusion of mental and psychological abuse, it is evident that the Domestic Violence Act has been amended and broadened in response to modern standards of protection required to offer a wider scale of care to hold abusers accountable. As of now, the definition of domestic violence has been expanded to cover physical, psychological, emotional, sexual and financial abuse, not to mention the abuse of the victim’s dignity as well[9].

On the other hand, S.2 prescribes the list of persons who may be considered as victims of domestic abuse if the acts as aforementioned were committed against his or her spouse, his or her former spouse, a child, an incapacitated adult, or any other member of the family. The application of S.2 can be illustrated in Mangaleswary Ponnampalam v. Giritharan E Rajaratnam[10], whereby it was established that a person can still commit domestic violence against his former spouse even after obtaining the decree of divorce, thus affirming the principle that legal protection is extended to ex-spouses who suffered domestic violence. As a result, spouses who obtained a decree judicial separation or divorce under the Law Reform (Marriage and Divorce) Act 1976 shall still be defended and sought relief under this Act. However, this also means that apart from the category of persons as listed, other persons would not be able to claim under this Act if it was not expressly stated under S.2 that protection would be extended to them. Hence, the Domestic Violence Act has further limited its own range of people who is allowed to seek aid under this Act.

The limited application to other persons who are thus not mentioned under S.2 has since created a series of issues which evidently shows that reforms are necessary to improve the standards of protection offered to other potential victims of domestic violence. Besides from the fact that all other hetero and same sex couple are excluded, the Minister for National Unity and Welfare went as far as to declare that Act would not be further extended to include unmarried couples who are living and sharing a life together without proceeding with the formalities of marriage[11]. As a justification, he argued that this stance was taken because in reality, Malaysia does not encourage a permissive society whereby most couples are living together despite being unmarried. This is ultimately a close-minded view which largely perpetuates the false notion that unmarried women would not face the same risks and dangers of facing domestic abuse from her partner. It must be noted that despite the status of a couple, being unmarried does not diminish the chances of one inflicting physical or psychological harm onto another, especially when tasked with the fact that most people involved in some form of intimate relationship in Malaysia is or was at some point living together unmarried. This Act effectively closed off its doors from unmarried couples, when the range of persons protected under this Act should be wider.

Furthermore, it is worth noting that as high as 90% domestic violence offences committed in Malaysia are classified as non-seizable[12] because the act of voluntarily causing physical violence would constitute a crime under S.323 Penal Code[13] . To distinguish between seizable and non-seizable offences, seizable offences would grant police powers to conduct investigation immediately after the offence is reported, for which no warrant is required to carry out any arrests. In contrast, non-seizable offences requires a warrant for arrest and an order from the Public Prosecutor before any investigations are allowed to be initiated or proceeded. This is an important information to keep in mind because it directly relates to the issuing of interim protection orders as stated under S.4  DVA. As stipulated under S.4(1)[14], the court is empowered to grant an interim protection order during the pendency of police investigations to prevent an abuser from commencing domestic violence against the range of parties listed under S.2, after an application to the court is made as required under S.4(2)[15].

At first glance, the construction of S.4 provides a false sense of immediacy whereby an interim order could be easily obtained by victims of domestic violence as soon as a police investigation has begun, nevertheless, the fact that physical violence is considered as a non-seizable offence would destroy this illusion because the commencement of an investigation of the crime committed is only enabled when the Public Prosecutor orders it. Thus in effect, the interim order is far from providing efficient safeguards and protection towards victims of domestic violence because delays are inevitable where the permission of the Public Prosecutor is needed.  The time period between waiting for the Public Prosecutor’s consent and the actual issuing of the interim protection order leaves much to be desired and sufficient time for things to escalate and worsen between the abuser and the victim. In cases of domestic violence, every second is valuable and counts towards saving the victim from the hands of serious harm.

In addition, victims of domestic violence could obtain long term protection orders instead of temporary interim orders as provided under S.5(1)[16]. In response to a complaint made regarding domestic violence, the courts may grant one or more protection orders against the abusers to restrain them from committing domestic violence against the complainant, the child, and the incapacitated adult as stipulated under paragraphs (a) to (c)[17]. However, this section faces the same criticism as S.4, whereby it creates a false sense of urgency because long term protection orders can only be sought after the criminal proceedings begun, thus once again leaving a huge window for the abusers to commit yet another crime under the eyes of law. Victims ought to be given immediate protection under any circumstances before their situation worsens at any rate, for which the DVA fails to deliver at a swift pace. Nevertheless, the silver lining of this provision is that the courts may further include a provision to prohibit the abuser from inciting any other person to commit domestic violence against the protected person or persons, which reduces the risks of the abuser seeking other channels to harm the victim.

Another aspect of the DVA which was scrutinised for its lack of consideration and care given to victims of domestic abuse is evident under S.6(1)[18], which grants the victim the right to exclusive possession of the shared home, thereby prohibiting the abuser from gaining access to the shared home[19]. Ideally, this provision aims to create a safe haven for victims to recover their physical and mental state of distress without the imminent threat of further violence by the abusers. However, this benefit may be stripped away from the victims if there are existing alternative residences which are suitable to accommodate them. Under S.6(4)(a)[20], it is compulsory for the courts to revoke an exclusionary order of the shared home if an alternate residence is found to accommodate the victim instead, such as a house with relatives or close friends. This effectively overturns the exclusion order by allowing the abuser to return to the shared home, and further inconveniences the victim by forcing her to live away from the comfort of her own home, accompanied by the shame and humiliation of sharing her wounds with other persons which she may not have wished to. Although the exclusion order is issued to provide the sense of security and support to the victim, the act of revoking the exclusionary order to their shared home has done nothing but a disservice to the aim of empowering victims of domestic violence. This is because they are forced to leave their house while simultaneously facing the risk of the abuser returning to their shared home, thus destroying their remaining dignity and further adding to their mental distresses already suffered.

In short, the DVA is seemingly far from perfect.

Proposal

It is widely suggested that Malaysia ought to consider amending its current laws in order to provide a higher standard of protection. Specifically, Malaysia ought to amend S.2 which stipulates the categories of persons that are considered as potential victims of domestic abuse, to include unmarried couples because we have reached a stage where we as a nation should recognise that domestic violence involving unmarried couples should be treated as seriously as cases involving married couples. Although no data in Malaysia publicly displays the number of women murdered by their partners, on a global scale, 58% of female homicide victims were murdered by their intimate partners or family members, as shown by a United Nations Report conducted in 2018[21]. The report further concluded that the shared home between partners is the most dangerous place for women, for which immediate action should be called for Malaysia to amend  S.6(4)(a), whereby the court should not be compelled to revoke the victim’s exclusive right to the shared home despite having a spare residence to live in. These amendments are needed in the current climate where domestic abuses are not effectively hindered by the existing measures in place of physical and psychological abuse[22].

Conclusion

The Domestic Violence Act 1994, while comprehensive in defining domestic violence, falls short in providing adequate legal defences for victims who retaliate due to sustained abuse. Therefore, there is a clear need for Malaysian legislative reforms that expand the scope of protections under the DVA 1994 to include unmarried couples and ensure immediate and wider range of effective remedies. Malaysia could draw inspiration from international models, particularly the UK, to incorporate amendments that will uplift the lives of domestic abuse victims.

References

Primary Sources

Cases

Mangaleswary Ponnampalam v. Giritharan E Rajaratnam [2015] 6 CLJ 561

Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib [1992] 2 MLJ 793

Statutes

Domestic Violence Act 1994 s 2, s 4(1), s 4(2), s 5(1), s 6(1), s 6(4)(a)

Law Reform (Marriage and Divorce) Act 1976

Penal Code, s 323

Secondary Sources

Journal Article

Mohd Safri Mohammed Na’aim and others, “Intimate Partner Violence Within The Malaysian Legal Framework” (2022) 13 UUM Journal of Legal Studies 131 <https://doi.org/10.32890/uumjls2022.13.1.6>.

Roslina Che Soh @ Yusoff and others, “Adequacy of Legislation in Protecting the Rights of Muslim Women Against Spousal Violence in Malaysia” (2012) 6 Australian Journal of Basic and Applied Sciences <https://www.ajbasweb.com/old/ajbas/2012/Special%20oct/319-325.pdf>.

Websites and Blogs

Heanglee, “Stop Domestic Violence before It Ends in Murder” (Women’s Aid Organisation, February 7, 2020) <https://wao.org.my/stop-domestic-violence-before-it-ends-in-murder/>.

Newspaper Articles

S Indramalar, “Refuse Abuse: Finding the Power to Stop Domestic Violence” The Star (December 1, 2019) <https://www.thestar.com.my/lifestyle/features/2014/04/25/refuse-abuse-finding-the-power-to-stop-domestic-violence>.

[1] Domestic Violence Act 1994

[2] [1992] 2 MLJ 793

[3] Roslina Che Soh @ Yusoff and others, “Adequacy of Legislation in Protecting the Rights of Muslim Women Against Spousal Violence in Malaysia” (2012) 6 Australian Journal of Basic and Applied Sciences <https://www.ajbasweb.com/old/ajbas/2012/Special%20oct/319-325.pdf>.

[4] Domestic Violence Act 1994, s 2

[5] Domestic Violence Act 1994, s 2

[6] Mohd Safri Mohammed Na’aim and others, “Intimate Partner Violence Within The Malaysian Legal Framework” (2022) 13 UUM Journal of Legal Studies 131 <https://doi.org/10.32890/uumjls2022.13.1.6>.

[7] Domestic Violence Act 1994, s 2

[8] Domestic Violence Act 1994, s 2

[9] ibid.

[10] [2015] 6 CLJ 561

[11] ibid.

[12] ibid.

[13] Penal Code, s 323

[14] Domestic Violence Act 1994, s 4(1)

[15] Domestic Violence Act 1994, s 4(2)

[16] Domestic Violence Act 1994, s 5(1)

[17] Domestic Violence Act 1994, s 5(1)

[18] Domestic Violence Act 1994, s 5(1)

[19] Domestic Violence Act 1994, s 6(1)

[20] Domestic Violence Act 1994, s 6(4)(a)

[21] Heanglee, “Stop Domestic Violence before It Ends in Murder” (Women’s Aid Organisation, February 7, 2020) <https://wao.org.my/stop-domestic-violence-before-it-ends-in-murder/>.

[22] S Indramalar, “Refuse Abuse: Finding the Power to Stop Domestic Violence” The Star (December 1, 2019) <https://www.thestar.com.my/lifestyle/features/2014/04/25/refuse-abuse-finding-the-power-to-stop-domestic-violence>.