©The Nut Graph (Used by permission)
By Mohamad Hafiz Hassan
IS domestic violence a crime? DAP Member of Parliament for Petaling Jaya Utara Tony Pua thinks so. He says domestic violence is a criminal offence under the Domestic Violence Act 1994 (DVA). But that's an overstatement.
The DVA was passed by Parliament on 24 June 1994 and was enforced on 1 June 1996. It was an attempt by the government to appease battered wives and non–governmental organisations (NGOs) who had been pushing for legislation not only to protect abused women — then, and still, a matter of grave concern — but also to recognise domestic violence as a specific crime and not just a "personal matter".
Sadly, the DVA has fallen short on both counts.
Firstly, domestic violence is not stated as a specific crime in the DVA. While domestic violence includes an act that is known, or ought to have been known, to result in physical injury, this act per se is not a crime in the DVA. Neither are other acts that constitute domestic violence, such as threatening to injure, or causing injury, force and detention against a spouse, former spouse, child, incapacitated adult or family members. In order for these acts to be categorised as a crime under the DVA, the legislation would have to be read together with the provisions of the Penal Code.
This has serious implications. Suppose things got out of hand in a marriage after many happy years; the husband became prone to violence, and the wife was subjected to his physical and verbal abuse. Because the DVA has to be read together with the Penal Code, the wife would have to fall back on the provisions for assault in the latter in order to criminalise the husband's act. This in turn would necessarily invoke the Criminal Procedure Code (CPC), which governs police investigations.
Under the CPC, the police must first determine the nature of the offence, i.e. whether it is seizable or non–seizable. The police are only required to conduct immediate investigations in cases of seizable offences. As for non–seizable offences, police will conduct an investigation upon receipt of an order to investigate from the deputy public prosecutor. An investigation of a non–seizable offence without such order would render whatever evidence collected illegal.
For this reason, the DVA has been described by High Court judge Justice Abdul Malik Ishak (as he then was) as "a toothless tiger" in the case of Chan Ah Moi v Phang Wai Ann (1995). He said this because "most cases of domestic violence like punching, kicking, assaulting etc. would fall squarely under the category of non–seizable offences. There is, therefore, no immediate need for the police to investigate unless the deputy public prosecutor issues an order to investigate."
The matter, according to the judge, is compounded further by the "loose definition" of acts constituting domestic violence under the DVA, which clearly include seizable offences such as causing hurt through the use of dangerous weapons. This lack of definition would restrain police from investigating the case.
Secondly, while the DVA makes commendable provisions for interim and long–term protection orders for victims of domestic violence, there are serious flaws that may result in no protection at all for the victims. With the abovementioned example of the abused wife — the case is of a non–seizable nature, and therefore may not even be investigated unless the DPP issues an order to investigate. So the battered wife may end up without protection; not even an interim protection order, because for the court to grant her one, there must be "pending investigations by the police".
The DVA is in serious need of review and reform. YB Tony Pua would have to lend support to the National Council of Women's Organisations (NCWO) and the Joint Action Group (JAG) for Gender Equality, who have submitted memorandums for law reform to the Women, Family and Community Development minister, Datuk Shahrizat Abdul Jalil (see The Star, Women NGOs to submit memo on law reform, 5 May 2009). The memorandums involve the DVA, among others.
So make domestic violence a specific crime — just as child abuse was made a specific crime in 1992 under the Child Protection Act 1991 (CPA), and as the case is under the current Child Act 2001, which repeals the CPA.
Domestic violence would then no longer be a personal matter.
Mohamad Hafiz Hassan
17 June 2009
The DVA was passed by Parliament on 24 June 1994 and was enforced on 1 June 1996. It was an attempt by the government to appease battered wives and non–governmental organisations (NGOs) who had been pushing for legislation not only to protect abused women — then, and still, a matter of grave concern — but also to recognise domestic violence as a specific crime and not just a "personal matter".
Sadly, the DVA has fallen short on both counts.
Firstly, domestic violence is not stated as a specific crime in the DVA. While domestic violence includes an act that is known, or ought to have been known, to result in physical injury, this act per se is not a crime in the DVA. Neither are other acts that constitute domestic violence, such as threatening to injure, or causing injury, force and detention against a spouse, former spouse, child, incapacitated adult or family members. In order for these acts to be categorised as a crime under the DVA, the legislation would have to be read together with the provisions of the Penal Code.
This has serious implications. Suppose things got out of hand in a marriage after many happy years; the husband became prone to violence, and the wife was subjected to his physical and verbal abuse. Because the DVA has to be read together with the Penal Code, the wife would have to fall back on the provisions for assault in the latter in order to criminalise the husband's act. This in turn would necessarily invoke the Criminal Procedure Code (CPC), which governs police investigations.
Under the CPC, the police must first determine the nature of the offence, i.e. whether it is seizable or non–seizable. The police are only required to conduct immediate investigations in cases of seizable offences. As for non–seizable offences, police will conduct an investigation upon receipt of an order to investigate from the deputy public prosecutor. An investigation of a non–seizable offence without such order would render whatever evidence collected illegal.
For this reason, the DVA has been described by High Court judge Justice Abdul Malik Ishak (as he then was) as "a toothless tiger" in the case of Chan Ah Moi v Phang Wai Ann (1995). He said this because "most cases of domestic violence like punching, kicking, assaulting etc. would fall squarely under the category of non–seizable offences. There is, therefore, no immediate need for the police to investigate unless the deputy public prosecutor issues an order to investigate."
The matter, according to the judge, is compounded further by the "loose definition" of acts constituting domestic violence under the DVA, which clearly include seizable offences such as causing hurt through the use of dangerous weapons. This lack of definition would restrain police from investigating the case.
Secondly, while the DVA makes commendable provisions for interim and long–term protection orders for victims of domestic violence, there are serious flaws that may result in no protection at all for the victims. With the abovementioned example of the abused wife — the case is of a non–seizable nature, and therefore may not even be investigated unless the DPP issues an order to investigate. So the battered wife may end up without protection; not even an interim protection order, because for the court to grant her one, there must be "pending investigations by the police".
The DVA is in serious need of review and reform. YB Tony Pua would have to lend support to the National Council of Women's Organisations (NCWO) and the Joint Action Group (JAG) for Gender Equality, who have submitted memorandums for law reform to the Women, Family and Community Development minister, Datuk Shahrizat Abdul Jalil (see The Star, Women NGOs to submit memo on law reform, 5 May 2009). The memorandums involve the DVA, among others.
So make domestic violence a specific crime — just as child abuse was made a specific crime in 1992 under the Child Protection Act 1991 (CPA), and as the case is under the current Child Act 2001, which repeals the CPA.
Domestic violence would then no longer be a personal matter.
Mohamad Hafiz Hassan
17 June 2009