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First presented at the 12th Commonwealth Law Conference at Kuala Lumpur in September 1999.
The definition of “rights” have long been debated – the beginnings of universally-accepted rights can the traced back to the UN Charter for Human Rights. When it was found that the Charter failed to specify the other disadvantaged groups – we saw the birth of several conventions – namely the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the UN Convention on the Rights of the Child (CRC). This paper will outline both of these Conventions and the relevant articles therein in relation to Malaysian domestic law.
A. The UN Convention On The Rights Of The Child
After a gestation period of 10 years, the Convention on the Rights of the Child (CRC) and its 54 Articles, were adopted by the United Nations in 1989. It fills the need for accepted international definitions of children’s rights to ensure uniformity, conformity and success in implementation. The CRC has been acceded to and ratified by every country in the world except two in record speed, making it the most widely accepted human rights treaty in the world.
For the first time, children are recognized as individuals with the right to develop physically, mentally and socially to their fullest potential and express opinions freely. The Convention guarantees social, economic as well as civil and political rights in one instrument. It is comprehensively expresses the universal truth that a nation’s future is only as promising as it’s next generation of citizens.
The CRC is based on 4 basic principles, namely:
The obligation to bring to life the articles of the CRC is not only on the shoulders of the government and legislature but also on parents, teachers, care-givers, judicial and legal services, non-governmental organisations (NGOs), the media and the public at large.
In early 1995, Malaysia became a signatory to the UN Convention on the Rights to the Child. Malaysia initially had 12 reservations and four have been recently removed. The reservations that remain are: Article 1 (Definition); Article 2 (Non-Discrimination); Article 7 (Name and Nationality); Article 13 (Freedom of Expression); Article 14 (Freedom of Thought, Conscience and Religion); Article 15 (Freedom of Association); Article 28 (1) (a) (Free and Compulsory Education at Primary Level); and Article 37 (Torture and Deprivation of Liberty). The reservations were made as it was found to be ”incompatible with Malaysia’s constitution, laws and ethics”. Unfortunately however, many of these reservations are incompatible with the object and purpose of the CRC.
The Convention is not meant to be onerous, but it is to be used as a guideline of standards for the State Party to work towards. If adequate legislation exists pertaining to any of the issues covered by the Convention, Article 41 provides that the Convention should not affect “any provisions which are more conducive” in protecting the rights of the child contained in any legislation or international law in force for that State.
Some of these Articles in which further study is required are outlined below:-
Presently the definition of a child under domestic law is a bit of an anomaly. For instance, the Guardianship of Infants Act, 1961 stipulates that a Muslim child reaches the age of majority after 18 years of age and a non-Muslim child reaches the age of majority after 21 years. However under the Age of Majority Act, 1971 a child is any one under the age of 18. Children between 10 and 14 can be charged for crimes under the Juvenile Courts Act, 1947 and contrary to popular belief, a child below the age of 14 may be employed under the Children and Young Persons (Employment) Act, 1966.
Protective legislation however, for example the Child Protection Act, 1991 defines a “child” as any one under the age of 18 years and legislation dealing with wayward girls, namely the Women and Girls Protection Act, 1973 covers girls under the age of 21 years who are exposed to moral danger.
Article 1 of the CRC urges State Parties to have uniformity in its definition of a child under national legislation. Therefore for all intents and purposes, a child ought to be defined as any person under the age of 18 years.
According to UNICEF statistics over 90% of children in developing countries begin primary school, but only 75% complete even four years basic education. 130 million children in developing countries do not attend primary schools, and about 60% are girls. In Malaysia, we have “free” education, in that parents do not pay fees, however children are required to buy uniforms, school books and contribute towards school causes. Under Article 28 of the CRC, education ought to be free and compulsory at primary level. I would respectfully suggest that our economy is in a position to provide free and compulsory education , until the age of 17, i.e. the age in which the majority of children complete their secondary education. Currently children may drop out of school as and when they like or when forced to by their parents and/or guardians who may require them for other purposes, such as being a surrogate parent for younger siblings or to work in order to ease the financial burden. Fortunately, we do have child care facilities for low income women which then allows older girls to attend school but there needs to be a more concerted effort to improve these facilities. By keeping our children at school, we would also ensure the reduction of children who are forced to work or who loiter around shopping complexes.
Article 28 (1) (a) has been unfortunately reserved by Malaysia and Singapore. At the time of accession, it was explained that Malaysia was not in a position to provide for compulsory education. However, with 99% enrollment of our 7-year olds in primary schools, we certainly in a position to remove this reservation. There should be ample guidance and accessibility to general and vocational schooling, thus decreasing our drop-out rates. There ought to be no discrimination in relation to educating both girls and boys – indeed studies in Malaysia have shown that the returns on education in terms of wages and productivity is consistently 20% higher for girls than for boys. Certainly, in accordance with the principles of the CRC, the State Party ought to provide the infrastructure and a support system for free and compulsory education to be a reality. Teaching methods need to be revised to ensure the “holistic” development of the child and not to produce an individual devoid of imagination or analytical thinking. International cooperation is also required import scientific and technical know-how into our schools to eventually eliminate ignorance and illiteracy.
Article 12 calls for the child’s right to express his or her opinion freely and to have that opinion taken into account in any matter of proceeding affecting a child, in any matter of proceeding affecting a child, in accordance to the age and maturity of the child. Very often we adults think we know what’s best for the child – but often we are proven incorrect. Children themselves have some interesting comments on how to improve our education system.
III. Economic Participation and Exploitation
Forcing children to work, to subsidize the family’s income and preventing them from going to school is not a thing of the past. It is also a form of abuse but governed under different domestic legislation. Under the Children and Young Persons (Employment) Act, 1966 (CYPE ACT) “a child” is anyone below the age of 14 and any one below 16 is a “young person”.
Under the UN Convention on the Rights of the Child (CRC), “labour” is defined as “economic exploitation” or performing work that is likely to be hazardous to the child’s health or physical, mental, social or moral development or interfere with the child’s education.
According to the International labour Organization (ILO), 250 million children between 5-15 work i.e. one child out of four work in developing countries. In Malaysia, the last nation-wide survey in 1980 found 73,475 child workers between the ages of 10-14 working full-time. Three-quarters of children work in family enterprises, especially stores, stalls, agriculture and light industry. International reasons for child labour are poverty, war and dislocation of shattered family structures or a combination of all three. Locally, our children have several reasons why they have to work – namely they come from broken families, alcoholic parent(s), larger family size and non-mandatory schooling, to name a few.
The CYPE Act does not outlaw child labour but rather it governs and protects children who do work. It is relic of our commonwealth past – having been adopted verbatim from a former English Act.
A child who has entered into a contract of service may sue the employer in the event of breach, in his personal capacity. This means the child does not have to go through a parent or guardian ad liteum, as he would for other legal matters. Moreover, such contracts of service cannot be enforced against a child by the employer. The child may also bring a complaint against an employer pertaining to this wages, to the Minister of Human Resources, who will set up a Board of Inquiry to deliberate on the complaint and deliver an order. Admittedly, these provisions have never been used.
There are two strict prohibitions under the Act, namely children and young persons are strictly prohibited from managing or to be in the close proximity to machinery; and they are strictly prohibited from working underground. However, the Act permits children and young persons to work in just about any establishment that adults can be found, including hotels, bars and other places of entertainment if their parent/guardian owns or works at the same establishment.
There are several loopholes in the CYPE Act, which might be used by the offenders to escape conviction:-
The effectiveness of this legislation can only be measured when the Act is enforced and implemented fully. The regulation and enforcement of the CYPE Act rests solely with the Ministry of Labour, or Human Resources as it is now called. Under section 19, the Director-General is “charged with the responsibility” to carry out the provisions of the Act. The Ministry not only has a moral duty but a legal duty enshrished in statute to ensuring that employers comply with the minimum standards and hours of work, rest times and places of work.
Sadly, enforcement is lax. Nothing is done about children who work in family-run establishments serving customers after 8 p.m. or in hazardous/unhealthy conditions in construction sites, or children who are hard at work before dawn tapping rubber or gathering oil-palm kernels in privately-owned estates. Numerous problems, difficulty in establishing the child’s age and the child’s or the parent’s unwillingness to charge the employer. There have been cases where children have been maimed at work-sites or have committed suicide by drinking weed-killer after being scolded by their employers.
Article 32 of the Convention on the Rights of the Child, acceded to in 1995, stresses the importance of the following:-
It is clear that Article 32 is compatible with the earlier Article 28 (on Education). Ideally child labour ought to be eliminated for good. But we also have to take into account the socio-economic status of our developing nation. Firstly, we would need to revamp the entire CYPE Act – tighten the loop-holes, and increase the age-limit to at least 16. The Act then should govern all those 16 and 17 year olds who do work, and should safeguard their wages, times, conditions and hours of work. Such children should be registered with the Ministry to enable them to be protected in the event of injury. There is also a great need to change the public attitude and create awareness of the problem of working children. At the moment there’s complete apathy to the plight of the working child.
IV. Child Abuse
Article 19 of the Convention on the Rights of the Child states “The State shall protect the child from all forms of maltreatment by parents or others responsible for the care of the child and establish appropriate social programmes for the prevention of abuse and the treatment of victims.”
The coming into force of the Child Protection Act, 1991 (CPA) was very welcomed for those who worked tirelessly for the protection of abused and neglected children. It repealed the outdated Child and Young Persons Act, 1947. The CPA covers a wide range of types of abuse and neglect namely physical, emotional or sexual abuse, exposure to moral danger, abandonment, exposure to untreated illness, lack of remedial action by the guardian or even where the child is found begging. Other sections raise presumptions where the law can intervene if the child is being transferred to trafficked out of the country.
Unfortunately, the definition of “guardian” in the CPA however merely covers a parent or one who has lawful custody of the child. This then excludes those who have care of the child for long periods of time, for instance, child care minders, foster parents, extended family or basically anyone above 18 years of age. There is a suggestion to extend the definition of “guardian” is supported by data compiled by the Suspected Child Abuse and Neglect (SCAN) Team at Hospital Kuala Lumpur. Out of 436 reported cases in a span of 12 years, child abusers were: immediate family members (120 cases) “other relatives” (55 cases), “others” (100 cases), neighbours (70 cases) and in 63 cases the abusers were “unknown”. (A copy of the Chart is annexed herewith and marked as Annexure “A”). The ages of victims range from 0-4 years, 5-9 years and more than 10 years old. (refer to Annexure “B”)
Article 20 of the CRC states that the “special protection” should be provided for the child deprived of the family environment and there ought to be “appropriate alternative family care or institutional placement”.
The CPA is to be implemented by the establishment of a Co-ordinating Council for the Protection of Children who ought to design efficient systems for implementation and supervision of children through Child Protection Teams (CPTs) around the country. The CPTs are made up of “Protectors” who may take children in need of protection into temporary custody to a place of safety or childcare centres. According to the Social Welfare Department there are 14 state-level CPTs chaired by the State National Directors and 97 district-level CPTs chaired by the District Welfare Officers to date who have set up 69 Centres. The compulsory members of these Teams are a senior police officer and a medical officer.
The CPA is unique in many ways in that doctors and medical practitioners are under a legal duty to report any suspected child abuse and neglect cases to the Protector and the police have to be alerted for them to carry out investigations. If the medical practitioner fails to do so, he would liable to a fine of RM1,000,00. It is noteworthy that very few countries have mandatory reporting. However, despite this provision, doctors still remain mum until they finalise their observations. In reality, the doctors give the parents/guardians the benefit of the doubt and send the child back with the parent who may be the offender only to have the child brought into hospital, this time in a more critical condition. Some 20% of abuse cases are a result of brain damage either through “shaken baby syndrome” or actual physical bruising.
Another unique feature of the Act is that anyone can inform the welfare department, the Protector or police of a suspected child abuse case and informant’s identity will be not be revealed to anyone. Informants are further protected under the Act against liability for defamation or otherwise and this includes those in the medical professions. According to the data of the SCAN Team at HKL, half of the cases are disclosed within a month, however 20% cases are admitted only when they are acute. The public should be made aware of this protection offered by law as they would be more inclined to come forward with information at an earlier stage rather than later.
Children at risk of abuse or neglect who are taken into temporary custody are produced before the Juvenile Courts within 24 hours and the Magistrates will order the child to continue to be in a place of safety. It is unfortunate that an abused or neglected child will be further traumatized and feel re-victimized by appearing before the Juvenile Courts. It is suggested that proper child friendly courts be set up with magistrates and judges with special skills to oversee matters of this kind.
Despite the various agencies at work and the enactment of the CPA, child abuse cases are on the rise. In 1998 alone, there were 1149 reported cases, 353 were in Kuala Lumpur and 212 in the state of Selangor. A breakdown of number of reported cases by the different states in Malaysia can be seen in Annexure “C”. Even the sentences against offenders are not a deterrent. The maximum fine is RM10,00.00 or imprisonment not exceeding 5 years or both. If the child is left unsupervised or found begging, the offender can be charged with an RM5,000.00 fine and/or imprisonment of 2 years or both.
Due to several heinous crimes against babies in 1990 the CPA was passed within a few months. Unfortunately however, the authorities have been slow to implement it. A total of 1,071 rape cases were reported in 1996, a 77% increase over 1990, during which only 604 cases were reported.
Adult offenders are still being charged under the Penal code – quite possibly because sexual offences under the Code offer a heavier sentence therein (5-20 years for outraging the girl’s modesty). However, the framework is in now place for more effective implementation of the CPA for other types of abuse and neglect as mentioned above. Perhaps its only with increased public awareness of the various agencies at work and different types of abuse that may occur, will the CPA be fully implemented.
V. Administration of Justice
(i) Children who are Witnesses
Children who are victims of abuse have to testify to this in event the abuser is charged. Under Section 133A, Evidence Act, 1950, corroboration is required when the evidence of a child of tender years is given, especially so if it is unsworn evidence. This is based on the presumption that children are unable to distinguish between reality and fantasy. Conviction of the offender then becomes extremely difficult if there are no independent witnesses to render “material evidence” to the incident, as in the case of sexual abuse, to “implicate” the accused.
Even though there is a provision for proceedings to be held “in camera” under Section 101, Subordinate Courts Act, 1948, this merely excludes the child’s identity and personal details from being revealed in the press. Children still have to face the perpetrator in court and reiterate their story for the umpteenth time as well as to bear with merciless cross-examination from ruthless defence Counsel. Child-friendly courts are essential for the protection of victims and witnesses of abuse to prevent further traumatisation.
In several first world countries, for example Australia and Britain, there exists “Child Victim Support Groups” which render assistance to the victim before he/she take the witness stand. This would include familiarization with legal terms, the courtroom, the persons involved in the case etc. In the United States, they have the equivalent called “Kids Court” run by the Prosecution with the assistance of lawyers. “Friends of the child” are independent persons who will accompany the child to and at court especially during his/her testimony, providing comfort and moral support. There is a great need for such services locally, especially when the offenders are the child’s parent(s) / guardians and the child does not have the courage or confidence in taking the stand alone and she/he lacks essential moral support.
Other “child-friendly procedures” that could be implemented in our courts would include (i) the acceptance of video evidence taken by qualified personnel such as the doctor who first examines the child by the Court; (ii) providing a TV-link between the courtroom where parties are present and a separate room where the child is situated with a court interpreter or (iii) by simply providing a screen to obstruct the child’s view of the offender to reduce intimidation by the offender.
Finally however, there is also a great need to sensitize our judiciary, prosecution and legal profession on how to question the children. Children have short attention spans, require frequent rest times and are unable to answer double-barrel questions. Hopefully with the family courts or child-friendly systems in place – justice that ought to be done, will be done.
Children who have been abused also require rehabilitative care to ensure that they receive appropriate treatment for their recovery and social reintegration, in line with Article 39 of the CRC. To make this a reality, the country requires more child therapists and trained rehabilitation workers, and their work and their assessment reports on abused and neglected children ought to be taken into account when the judiciary metes out the sentences on offenders.
(ii) Children who offend
Article 40 of the CRC on the administration of juvenile justice states that a child in conflict with the law ha the right to treatment which promotes a sense of dignity and worth, taking the child’s age into consideration with the aim of reintegrating the child into society. The child offender is entitled to basic guarantees as well as legal or other assistance.
Juvenile delinquency in Malaysia is increasing by the day and in order to ensure that juvenile justice is administered in the best interest of the child , the draft of the new “Child Act” will be tabled before Parliament soon. Several new provisions are envisaged including consolidating the Juvenile Courts Act, 1947, the Child Protection Act, 1991 and Women & Girls Protection Act, 1973. Under the new Act, children will be defined as all those below 18 years to achieve uniformity in implementation.
There was several suggestions to be incorporated under this new Act and they are:-
The above provisions all seem to be in line with Article 40 of the CRC, however one can only speculate on the effectiveness of the new Act when its passed and eventually implemented.
In conclusion then, the evolution of our legislation pertaining to children seems to be slowly but surely moving toward more protection. Unfortunately however, the issue of child labour, which is another form of abuse, still remains untouched despite constant calls for review. As a State Party to the Convention on the Rights of the Child, Malaysia has made promises to its children that the best attainable (minimum) standards will be achieved for their survival, development and protection.
Unfortunately, our legislation has not embraced the fourth and last principle, i.e.. Participation. Children should have a say in policies and legislation affecting them since after all they are the target group and they would be the persons who would know their problems best. Particularly, a child’s participation in court proceedings, either as a witness or juvenile, is imperative if the child’s best interest is to be upheld at all times.
In 1995, Malaysia ratified the United Nations Convention on the Elimination of all Forms of Discrimination against Women, (CEDAW) with a few reservations, particularly Articles 5(a) on eliminating prejudice in customs and culture, Article 7(b) on women in public life, Article 9(2) on nationality and Article 16(a) on the minimum age for marriage. Though domestic laws have improved in the few years in ensuring the protection of women, there remains however no legislation guaranteeing equal opportunities in recruitment, career development, promotion, social security and working conditions. It is timely that some of the existing legislation be modified to correspond with the provisions of the Convention.
A. Discriminatory Laws
The Federal Constitution provides for equality of persons under Article 8, Clause 1, which states: All persons are equal before the law and entitled to the equal protection of the law. However, Article 8(2) of the Constitution states: “Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the grounds of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of any property or the establishing or carrying on of any trade, business, profession, vocation or employment.”
The omission of the word ‘gender’ in Clause 2 is quite glaring and is contrary to the principles of CEDAW.
The reservations made to CEDAW are manifest in the prevalence of customary and traditional laws and existence of cultural and religious pluralism which discriminate against women in matters relating to inheritance, marriage, divorce, custody of minor children to name a few. For Muslim families in Malaysia, divorce proceedings can only be began on the husband’s request, and the wife is summoned only as a witness. Muslim men are allowed to have four wives according to customary laws, but women can only remarry on the death of her husband or upon divorce. A woman has only half the share of a man in family property upon his death.
Malaysian women have little comfort in paternalistic laws such as the Guardianship of Infants Act, 1961 which stipulates that the father is the lawful guardian of the child and the mother will only be the guardian only on the death of the child’s father. This raises several problems women face when fathers of children abdicate their responsibility as fathers and leave the family without a trace. Children have been unable to obtain their identity cards, enrollment as schools or even apply for passports without their fathers being by their side. Fortunately this Act was recently revised in Parliament, however we have yet to read the amendments that have been made.
Discrimination against women persists in some Employment Benefits provisions as well. If a male employee dies, his widow gets dependency benefits but if a woman worker dies, her family receives no benefits unless it is proved that the husband was incapacitated before her death.
Discrimination of females are also evident in the media. The local media continues to portray successful women by highlighting their physical attributes rather than their intellectual abilities, thus reinforcing the stereotype of women as mothers, housekeepers and sex objects. Stories about women’s contribution to the public sphere appear in the media from time to time but are overshadowed by other writings which strengthen the demands for women to retain their sexual and feminine appeal. Although there has recently been more media coverage of profession and businesswomen, there is still a bias towards frivolous as opposed to substantive matters.
B. Economic And Political Participation
As most Asian societies, our society expects women to be wives and mothers first and income earners second. In spite of economic success and the increased demand for labor, women continue to be identified primarily in their reproductive role, and their employment is viewed secondary or supplementary to that of men. The major part of caring for both the young and the old and the supervision of children’s activities and school work is still being carried out by women, including household chores. The interference was that a good mother should spend as much time as possible at home looking after the children and maintain a happy family.
However, with increased living costs and the rise of materialism, two-income families have now become the norm and women mow make up nearly 50% or the labour force. Industrialization and urbanization play a vital role in determining the pattern of female labour force participation in Malaysia. There has been a shift, from women working mainly in the subsistence rural economy, to a concentration in the urban industrial and service sectors. Malaysian women tend to be in unskilled and semi-skilled low paying jobs across occupations and in selected manufacturing industries with no prospect for upward mobility or job security. Improvements in women’s knowledge and skills have increased their employability and earning capacity. Education has also led to changes in the attitudes of women, many of whom have become aware of options other than marriage and childbearing.
The current female participation rate of 46.8% to 50% may be considerably lower than women’s actual economic participation, because of under-reporting. Women in the informal sector such may not be documented because: helping the family business is not considered ‘work’, to avoid tax and regulatory authorities, and many temporary jobs are not registered.
Discrimination of women in the labour force is evident in Malaysian. Where most countries have Equal Employment Opportunity Laws and equal wage for equal work law, thereby providing legal protection to women in the public sector against sex-based discrimination in recruitment, placement, remuneration, training and promotion, Malaysia does not. There is no minimum wage and semi-skilled female workers could earn only about US$3 – US$5 per day. Women work long hours as overtime in order to increase their earnings. They operate night shifts. Yet women remain a minority despite their numbers; they have no political voice and economic control of their labour processes, only making up 25% of union participation.
With a population of 70 million envisaged for Malaysia’s 2020 vision, Malaysian women have to work doubly hard at their triple role of baby producer, homemaker and career woman. For those who do not wish to share in this vision – they are faced with limited access to family planning information and services. Indeed some 41% of the Malaysian married women have expressed an unmet need for modern contraception.
Women’s availability for training during employment and after babies is inevitably affected by the traditional division of labour and responsibilities within household. Many women have little choice but to stay at home and look after young children. During their absence form the labour market, skill requirements may change considerably, particularly as new technologies are constantly being introduced. When they re-join the work force, women face inequalities in the labour market and this have been widespread and persistent in spite of the labour shortage. Limited employment opportunities, together with the expectation of a short work-life, cause women to invest less in training than men. They may even turn down promotions or positions requiring more responsibility, if those jobs appear likely to conflict with their family duties.
There is great need to provide support services to women, inline with the principles of CEDAW. The lack of child care is a major reason why women hardly ever return to their jobs after child birth. Those earning less than RM700 and having more than two children found that working was not worthwhile, since the cost of childcare is around RM200 per child. And in Malaysian culture it is often the case that if a wife is earning any income, she should bear the cost of child care, and not ask her husband to contribute; her net wage would not justify the effort. However, many women still prefer to work and may wish to have a job for her own financial security, just in case she is abandoned by her husband and has to support herself and her children. The Malaysian government has provided tax incentives to the private sector to provide child care facilitaties for mothers who return to their jobs – unfortunately though the idea of in-office crèches still has not caught on. A decade ago there was a move by the Government o encourage fathers to take more responsibility in child rearing through the provision of paid paternity leave. However the idea was dropped as it was felt that men would abuse this privilege and play golf instead! This idea has hence been abandoned.
Women do participate in politics, as may be observed in our political scenario currently lead by the “Barisan National”. However, women tend to be workers – very few reach the leadership position. Women continue to be inhibited by their traditional norms and stay on the sidelines - failing to realise that they can be a force for change, Female voters in the past were low but perhaps in the new general election this would increase. In the civil services, women number many but again drop out after childbirth. In the judicial and legal services, the proportion of women is increasing, but again at junior level. At present we have only a handful of women in the High Court and one in the Court of Appeal. None have been appointed in the Federal Court. However the female-male ratio of law students and junior lawyers are almost on par with each other.
C. Domestic Abuse
Discrimination of women continue to be prevalent in households where domestic abuse, both physical , mental and emotional, are on the rise.
After 10 years of lobbying, the Domestic Violence Act, 1994 (DVA) was gazetted but is not yet in force. It allows for protection order (whether interim or otherwise) to be given for domestic violence and would include them in the case of a child. This order restrains the person so ordered from using domestic violence against the complainant or the child. A police report has to be lodged, after which the enforcement officer will take steps to enforce the protection order when obtained from the Courts.
“Domestic violence” as defined in Section 2 of the Act includes:-
The court may make the following orders under Section 6(1) to be included in the protection order:-
The court may in appropriate circumstances attach a power of arrest to a protection order (whether interim or otherwise) which means that a police officer may arrest without warrant the person against whom the order is made if he is in breach of the order.
The penalty for contravening a protection order is a fine not exceeding RM2000.00 or a term of imprisonment not exceeding six months or both. If the order is contravened by the use of violence on the protected person, the penalty increases to a find not exceeding RM4000.00 or a term of imprisonment not exceeding one year or both.
As any piece of legislation there are weaknesses with the Domestic Violence Act. Unfortunately, under the DVA, domestic violence is not stated as a specific crime with penalties and enforcement procedures. This is unlike the Child Protection Act 1991, in which child abuse was given a wider definition and has now been made a specific crime punishable by new penalties, thus having provisions allowing more effective police powers and intentions.
Therefore the enforcement of the DVA is ineffective. In order to have the abuse categorized as a crime, the victims have to fall back on the current provisions for assault in the Penal Code and the handling of the assault is determined by the Criminal Procedure Code (CPC). The police are not compelled to take any action to immediately investigate as the crime is classified as “non-seizable”. The DVA, in relying on provisions of the Penal Code and the CPC, unfortunately does not strengthen current police power of investigation in domestic violence cases.
The domestic abuse victim would have to file a private summons in a Magistrate’s Court themselves to prosecute the abuser and naturally very few would go through this process as it is time-consuming and costly. The second glaring weakness of the DVA is the provision for interim and long term protection orders, aimed at ensuring the needs of the victim for her personal safely, safe place and/or financial support.
The problem that could arises from the Protection Order are specifically as follows:
In order for the Domestic Violence Act to make a real difference to the lives of victims of domestic violence cases, the provisions in the Act should be carried out effectively by the relevant authorities, specifically the police and the legal system. To deal with the increase of domestic violence, a special Police Unit has been set up in Malaysia to handle cases of rape and sexual violence and 35 female investigators have been trained. Police procedures should be specified and streamlined and such procedures should be accessible to public knowledge to help various women or interested organizations speed up their efforts in attending to such cases. Monitoring of the implementation of the Domestic Violence Act should also be carried out by both the governmental and non-governmental agencies involved.
The call for the establishment of “Family Courts“ has been heard repeatedly over the years. Such courts would deal with the rising number of domestic violence cases; divorces which lead to custody battles of children, alimony, maintenance and guardianship of infants and even perhaps applications for the fostering and adoption of children.
Currently our legal system separates Muslims and non-Muslims in respect of Family law cases. Muslims can only seek redress in the Syariah courts, which is a State institution and therefore its jurisdiction is limited. The difficulties faced by litigants in the Syariah courts have frequently resulted in long delays for divorce and maintenance claims, which generally cause hardship to women. Non-Muslims also currently face difficulties in having to go to different courts for different matters, for example, for maintenance one would file the summons in the magistrate’s court , the adoption of a child is dealt with in the Sessions and the High Court (which is currently not specialised) deals with divorce, alimony and custody of children. The establishment of such a court would amendments to the Court of Judicature Act and the Constitution. As in other jurisdictions, counselling and rehabilitative services should be at hand for complainants and victims. A social welfare officer should be attached to such courts to assist the court with investigative reports and recommendations. The support staff of the court can be specially selected and trained. With the Government’s commitment in creating a caring society the day has truly arrived to establish Family courts.
The Malaysian Government during the Fourth World Conference on Women in September 1995 in Beijing made a firm commitment to do the following:
* Enhance the national machinery for women’s advancement.
The government also made a commitment to review Malaysia’s reservations to CEDAW, and to reform national laws that are discriminatory to women.
Finally, it is not only important to have acceded to UN Conventions known as CEDAW and the CRC – but also to ratify them, thereby ensuring the articles therein are translated into law and therefore enforceable – after all the empowerment of women and children is the empowerment of all humanity. It is imperative that State Parties with reservations look afresh at the situation and see the bigger picture. It is hoped that reservations expressed by the government in the UN Conventions were quite possibly made in haste and therefore without understanding the actual intention of the articles concerned. The UN Conventions overcomes discrimination of sex, race, colour, creed and religion by making rights universal, which is very much in line our Vision 2020.
 Mustafa K. Annuar and Shakila Mannan: Writing about 'successful women': A textual analysis of selected popular women's magazines in Malaysia", in Special Issue on Feminism: Malaysian Critique and Experience, Kajian Malaysia (Kuala Lumpur), June/December 1994, Vol XII, Nos 1 and 2.
 Jamilah Ariffin: Assessing the Status... ... .., op. Cit., p. 231
 Domestic Violence and the need for a Family Court by Associate Professor Alan Bakar Munir (1995) CLJ 1XXV.
 New Straits Times, 3/7/99 article on "Time has come to Establish Family Courts" by Harun Hashim
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Article by Ms Aneeta Kulasegaran.