Proposed domestic violence act
T.M. Morshed Alam
The Bangladesh Law Commission's hasve already taken an initiative in drafting a Bill on domestic violence. Ain o Salish Kendra (ASK), as a legal aid and human rights organisation, We very much well welcomes such an come this initiativeon. Domestic violence is one of the most widespread but least recognised human rights abuses in the world, of course, including Bangladesh.
The study by (BNWLA) shows (which study?) that in the year 2002 alone, 144 women were reported murdered by their husbands, 25 by their in-laws, and 112 women had committed suicide due to family conflict .
In recent years, organisations such as ASK have taken steps to generate support and dialogue on such legislation. The Law Commission of Bangladesh responded to the effort by sending out a set of questions to various women's rights organisations in 2004, asking them to set out the rationale for a law on domestic violence. The Law Commission has pursued the matter further by developing a draft Bill on Domestic Violence.
In its introduction to the draft Domestic Violence Bill, the Law Commission has specifically discussed the domestic violence laws in New Zealand and Malaysia. We are of the view that the draft Bill would benefit from comparative analysis of DV laws in South Africa and India, which, like Bangladesh, grapple with poverty, extreme inequality and deeply entrenched biases against women.
Definitions of domestic violence
Malaysia: The Malaysian Act does not have as comprehensive definition of domestic violence as Bangladeshi draft Bill; it excludes non-physical abuse from the definition of DV, and includes sexual violence in a restrictive manner (S.2(d) DVA 1994).
India: The Protection of Women from Domestic Violence Act (PWDVA) includes physical, sexual, economic and emotional abuse within the ambit of domestic violence (S.3of IndianDVAct2005).
South Africa: The Domestic Violence Act 1998 includes physical, sexual, emotional, psychological, and economic abuse under the definition of domestic violence, as well as harassment, stalking, damage to property (s.1(viii)).
Bangladesh: In the proposed Domestic Violence Act of Bangladesh, domestic violence includes any act of physical abuse, sexual abuse and psychological abuse by any member against any other member of the family (S. 3)
Protected persons under the Act
Malaysia: The Malaysian DV Act is gender-neutral. It does not have a shared household requirement, which makes it more expansive than the Bangladeshi draft Bill. The Malaysianthis act does not include domestic servants as members of a household.
India: Unlike the Bangladeshi draft Bill, the PWDVA only provides protection to women and children. Respondents under this Act can include abusive men and their relatives (s.2). Domestic servants are not included as members of the household. Like the Bangladeshi draft Bill, the PWDVA requires that the abuser and the victim share a household (s.2 (5))
South Africa: The South African DVA 1998 covers a wide variety of domestic relationships. Those who fall within its ambit include: spouses, former spouses, unmarried partners, former unmarried partners, parents of a child, family members, fiancées, former fiancées, those who are or were romantically, sexually, or intimately involved for any duration of time (including perceived involvement) and persons who do and recently did share a residence. Thus, the DVA is gender neutral and has no requirement of shared residence.
Bangladesh: Protected person means an applicant for whose protection a Pprotection Oorder (PO) is made. Like Malaysian DV Act, the Bangladeshi Act is gender-neutral. ASK considers the gender neutrality of this draft Bill as an important and positive aspect.
Duty holders under the Act(Protection Officer/Enforce-ment Officer) and their functions
Malaysia: The enforcement officers has been made the is the duty holder. The Malaysian Act defines the role of enforcement officer in very similar terms of the Bangladeshi draft Bill (s.2), to include police and welfare officers. Importantly, the Malaysian Act gives Enforcement Officers additional powers of arrest and removing the perpetrator of domestic violence from the shared residence (s.19).
India: The PWDVA lays out the general duties of protection officers, service providers and magistrates (s.5). In addition to their general duties, magistrates are specifically obligated to frame charges under any relevant criminal provisions against the abuser when the abuser is in court for the breach of a protection order (s.31
South Africa: An important innovation of the DVA is that a police officer must assist the complainant to obtain suitable medical treatment and shelter. In addition, an officer must inform the complainant of her right to apply for a protection order and to lay criminal charges. They are also obliged to arrest an abuser who breaches a protection order.
Bangladesh: Here the duty holder is an enforcement officer who is a Police officer or a Social Welfare officer (S.2 (e)). Duties of an Enforcement Officer are to assist a victim, provide or arrange transportation, explain victim's right etc. (S.20).
Remedies available under the Act
Malaysia: The Malaysian Act allows a victim to seek an Iinterim Oorder (IO) while investigation into her case is pending (s.12). It allows a victim to seek a protection order during any criminal proceedings under the Penal (s.13). There is no maximum duration for a protection order under the Malaysian law (s.5).
India: The PWDVA provides for three different types of orders, the first focusing on protection of the victim from abusive behaviour (protection order), the second focusing on secure shelter for the victim (residence orders), and the third, as its name suggests, focusing on adequate compensation for the victim. A complainant under the Act can seek multiple forms of relief, including protection and residence orders and compensation orders (s.12). There is no maximum duration for an interim order.
South Africa: There are two types of remedies 1st one is Interim Protection Order (IPO) and the 2nd is Protection Order. The Act makes it obligatory for the court to issue an ex parte IPO against the respondent where the court is satisfied (s.5 (2)). The DVA 1998 provides that after a hearing, a court must issue a protection order (s.6 (4)).
Bangladesh: The court may, during the pendency of investigation relating to an offence of domestic violence, issue an interim protection order (S.4). The court may, after hearing the parties, issue a protection order for a period of not exceeding 12 months (S.6). Where a victim of domestic violence suffers personal injury or damage to property or financial loss or trauma or psychological damage as a result of domestic violence, the court may pass an order of compensation against the offender (S.10).
Power of arrest
Malaysia: A crucial difference between the Malaysian Act and the Bangladeshi draft Bill is that the Malaysian Act allows for the inclusion, within the protection order, of powers of arrest without a warrant (s.7). If a police officer (not restricted to enforcement officers) has reasonable cause to believe that the accused has breached a protection order, he may arrest the accused (s.7(2)).
South Africa: The DVA 1998 provides for more robust powers of arrest than the legislation examined earlier. It provides that whenever a court issues a warrant the court must make an order (a) authorising the issue of a warrant for the arrest of the respondent; and (b) suspending the execution of the arrest warrant subject to compliance with the protection order (s.8(1)).
Protection of victim's privacy
South Africa: The DVA 1998 incorporates a number of measures to ensure the privacy of the victim, which might provide a valuable safeguard to victims fleeing from violent abusers. The court can:
Penalty for breach of protection order
- Omit the address of the complainant from the protection order (s.7(5))
- Issue directions prohibiting the disclosure of the complainant's address (s.7(5))
- Order in camera proceedings (s.11(1))
- Prohibit publication of information that might reveal the identity of any party to the proceedings (s.11 (2)
- Prohibit the presence of any person from the proceedings where this is required in the interests of justice (s.11(1)).
Malaysia: Another crucial difference between the Malaysian Act and the Bangladeshi draft Bill is that the Malaysian Act provides for stronger penalties for contravention of a protection order (S.8). If a protection order is breached without physical violence, the offender is liable to imprisonment up to 6 months and/or a fine. If a protection order is breached with physical violence, the imprisonment is up to 12 months and/or a fine. If the offender commits a violent breach of a protection order for a 2nd time, the imprisonment is up to 2 years and/or a fine.
India: Breach of an order or an interim order is an offence under the PWDVA and is punishable by imprisonment up to one year and/or a fine of up to Rs. 20,000 (S.32). The Act specifically directs magistrates to frame appropriate charges against the abuser for specific crimes under the Indian Penal Code (s.30).
South Africa: The DVA 1998 does not create a new offence of domestic violence. Like the Malaysian and Indian legislation discussed earlier, it criminalises the breach of a protection order which is punishable with imprisonment up to 5 years and/or a fine (s.17).
Bangladesh: Breach of a protection order has been made is punishable with imprisonment and/or fine.
Specific recommendations on a comprehensive DV strategy include the following:
ASK believes that The legislation is necessary, but not sufficient, to fight the epidemic of domestic violence. The law is a powerful but limited tool. Thus ASK proposes So we have some specific steps to be taken in tandem with the legislative efforts, in the form of the following recommendations--
- Collect and disseminate comprehensive national statistics on domestic violence detailing with the nature and degree of violence.
- Launch awareness campaigns informing the public about domestic violence.
- Establish a clear and deliberate domestic violence policy within the justice system (police, local councils, and courts).
- Establish clear and explicit guidelines for police intervention in cases of domestic violence.
- Develop standardised protocols and provide training for medical personnel on the management of domestic violence victims.
- Expand the number and quality of shelter homes for abused women and their dependents.
- Expand interventions, which provide a combination of medical and health services, police protection and security, legal help, counseling and shelter.
- Provide support to NGOs that work on domestic violence.
- Provide legal representation for victims of domestic violence.
- Enact and enforce laws and regulations prohibiting discrimination against women.
- Amend or repeal laws that violate women's rights in marriage specially rape within marriage.
- Support micro-credit, skills building, training, and employment programmes for women.
The author is working with Ain o Salish Kendra.