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Women's Aid Organisation (WAO): Malaysian Women's Campaign for the Domestic Violence Act
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Presented by Ivy Josiah,
Executive Director, Women’s Aid Organisation (WAO)
at the roundtable discussion on:
Strengthening policy participation partnerships between government and civil society

on 19 August 2003, organised by National Council of Women’s Organisations

Malaysia's Domestic Violence Act (DVA) was implemented in June of 1996. The campaign by women's groups for a domestic violence bill, however, was initiated 11 years earlier.

In March 1985, the Joint Action Group Against Violence Against Women (JAG), comprising individual women and five organisations—Women’s Aid Organisation (WAO), Association of Women's Lawyers (AWL), Malaysian Trade Unions Congress Women's Section, University Women's Association (University Malaya) and the Selangor and Federal Territory Consumers' Association--organised a two-day workshop-cum-exhibition in Kuala Lumpur.

The JAG workshop declared domestic violence as a societal concern, and concluded with women's groups calling for the enactment of a Domestic Violence Act. Following the workshop, JAG drafted a “Proposed Act on Domestic Violence.”

The Need for a Domestic Violence Act

Prior to the DVA, limited legal remedies for victims of domestic violence were in existence. Under the Malaysian Constitution, "every person has the right to enjoy peaceful coexistence. No one has the right to hit or harm someone else, including members of his family." The Law Reform (Marriage & Divorce) Act 1976, which applies only to non-Muslims, includes a provision for obtaining an injunction against a spouse in cases of molestation. However, a serious limitation of the Act is the condition that an injunction can only be obtained "during the pendency of any matrimonial proceedings or on or after the grant of a decree of divorce, judicial separation or annulment." Married women who did not want to initiate divorce proceedings against their spouses were able to apply for general injunction relief under The [Specific] Reliefs Act, 1950. As an Act of Parliament, "an injunction under the Specific Reliefs Act is wider than the injunction against molestation in the family legislation," as it is independent of matrimonial proceedings, has a wider definition of individuals able to apply for injunctive relief, and is available to all Malaysians. In addition to the Law Reform (Marriage & Divorce) Act and the Special Reliefs Act, criminal proceedings for domestic violence were available under Malaysia's Penal Code for hurt, criminal force, and assault.

Legal measures available to domestic violence victims were hampered by a reluctance to enforce domestic violence as a criminal offense. Although criminal proceedings and injunctions were available under the Penal Code and existing legislation, domestic violence was regarded as a private family matter, and police and the courts were generally unwilling to take action against batterers. In addition, women seeking legal protection found the process to be laborious and expensive. Requests for injunction protection required the representation of a lawyer, limiting the issuance of protection orders to those financially able to employ legal counsel. Furthermore, "in practice, many lawyers discovered that the injunction serves only as a `piece of paper.' It does not effectively protect the spouse seeking protection from the other spouse's acts of violence. Basically, the injunction only works if it can frighten the assailant into obeying it.

The Domestic Violence Bill

A domestic violence bill for Malaysia was intended to combine and strengthen existing laws, to simplify injunction procedures, provide additional assistance to domestic violence survivors, and to acknowledge domestic violence as a public concern.

The DVA was originally designed to grant both civil and criminal remedies for victims of domestic violence, irrespective of religious or cultural considerations. Civil remedies were to include issues of maintenance, custody, and divorce, while criminal measures were to expedite protection order procedures and empower police to arrest the offender and/or have him removed from the home. However, "quasi-civil law is not acceptable under Malaysian law as there has never been a law of this nature. The willingness to test out such a law is absent." In addition, "[a]ll the family law provisions relating to maintenance, etc. in the original draft were taken out . . . [S]ome quarters felt that there was a conflict of jurisdiction where Muslims were concerned between the Syariah Court and the Act."

Women's groups were cognizant that there will be a resistance to enacting a quasi - civil law, but nevertheless continued to engage with government to lobby for a DVA.

Nine years of lobby
Soon after the workshop in March 1985, the National Council of Women's Organisations (NCWO), in June of 1985, submitted a memorandum on reforms to laws discriminating to women to the Minister of Justice, including in the memorandum a call for the enactment of a Domestic Violence Act.

In August of 1989, AWL initiated a meeting between women's groups and the Royal Malaysian Police. As a result of this meeting a Joint Committee to examine the Proposed Act on Domestic Violence, 1985, was established. The members of the committee included AWL, AWAM, WAO, NCWO, the Bar Council, the Department of Social Welfare, representatives from the Ministry of Health, Pusat Islam, the Women's Affairs Department of the Ministry of National Unity and Social Development (HAWA), and the Royal Malaysian Police.

The Joint Committee prepared a document entitled “Domestic Violence Act, 1990.”

Between 1990 and 1991, NGO activism for the enactment of this act slowed down. This was largely due to the NGOs themselves being pulled away to other activities and issues.

In 1992, several women's NGOs which included AWAM, WAO, AWL, NCWO submitted the document to the Minister of National Unity and Social Development, Datuk Napsiah Omar, and to the office of the Attorney General.

This initiative came about as Datuk Napsiah was viewed as a sympathetic minister who was keen on women's issues.
HAWA ( the Women Affairs Department) which was situated within Datuk Napsiah's ministry facilitated meetings between women's NGOs and the Attorney General's office during 1993 and 1994. Problems in seeking a criminal and civil domestic violence law, applying to both Muslims and non-Muslims, delayed negotiations.

Convincing the law makers

Under the Federal Constitution Muslims are governed by Syariah law in all matters relating to the family. In 1988, the Federal Constitution was amended to include Article 121(1A), in which "the High Court shall not have jurisdiction in respect of any matter where the Syariah Court has jurisdiction." Efforts to include civil remedies in the DVA met with objections that, for Muslims, domestic violence proceedings fall under Syariah jurisdiction. Furthermore, the Islamic authorities claimed that Syariah Law provides adequate remedies and protection to Muslim victims of domestic violence. Section 127 of the Islamic Family Law (Federal Territory) Act, 1984 (Act 303), makes ill-treatment or cruelty to a wife an offence punishable with a fine or imprisonment or both. Section 52(h) of the Act specifies cruelty to a wife as grounds for a fasakh divorce.


Given these provisions, the Islamic authorities argued that a domestic violence bill applicable to Muslims was not necessary.

In 1991, a new women's group, Sisters in Islam ( SIS) began its work, by first publishing a booklet “ Are Muslim men allowed to beat their wives?”. Joining, JAG's lobby efforts, SIS initiated meetings with Pusat Islam (the Federal Government’s Religious Department)  to convince the religious authorities to agree that an Act for both Muslim and non Muslim women will be appropriate.

SIS and women's NGOs maintained that limitations to the Islamic Family Law existed, evidenced by "frequent complaints from women and even Syariah lawyers seeking redress in cases of divorce, polygamy, maintenance and harta sepencarian (common property)." Women's groups also argued against having one law for Muslims and one law for non-Muslims based on the experiences of legislation governing polygamy. If one law applies to Muslims and another law to non-Muslims, states are given the power to enact their own statutes, limiting uniformity among states and creating potential loopholes for circumventing the law. In the case of polygamy, individuals wishing to avoid restrictive polygamy regulations frequently move to another state where the law is more lenient. Although Syariah Law has jurisdiction over all family matters for Muslims, criminal matters fall under the administration of the federal government, with criminal law applying equally to both Muslims and non-Muslims.

It was during these negotiations with the AG's chambers that a delegation of NGOs which included WAO, AWAM and AWL was led to meet with Datuk Alex Lee, the Deputy to Datuk Napsiah. “Datuk Alex Lee opined that the Bill is too hybrid in nature and suggested that the Bill be criminal in nature for expediency purposes, i.e. for the tabling in early 1994.” Therefore, attaching domestic violence to the Criminal Procedure and Penal Code enabled domestic violence to be classified as criminal behaviour while ensuring applicability of the Act to all Malaysians.

The women's groups renegotiated and the Domestic Violence Act was prepared for the cabinet in March of 1994.

Women groups stepped up the lobby by having workshops and public education campaigns. A critical player in this lobby was the media. A leading English newspaper, The New Straits Times began a column “Behind Closed Doors” on the need for the DVA and generally the media kept the issue alive and gave a lot of press coverage to NGO activism.

The NCWO also played a role in supporting and encouraging Datuk Napsiah to table the bill for parliament to deliberate. The initial responses to the bill was dismal as MPs made jokes about wife battering, but the perseverance of the minister paid off as she tabled the bill at the eleventh hour and the Act was passed by parliament in 1994.

However the euphoria of being the first country in the Asia Pacific to have a law on domestic violence died down, as two years later the Act had yet to be implemented.

In February of 1996, AWAM initiated a meeting between Sisters in Islam, AWL, and WAO to come together again as JAG and to plan the handing over of a memorandum calling for the immediate implementation of the DVA. On 8 March 1996, International Women's Day, JAG organised a large gathering of women outside the opening ceremony of a seminar organized by the University of Malaya and officiated by the new Minister of National Unity and Social Development, YB Datin Paduka Zaleha. The women held a peaceful demonstration and delivered the memorandum to the Minister. The event generated wide press coverage, including front page pictures of the women demonstrating. For weeks afterward, articles on domestic violence and the need for the implementation of the DVA regularly appeared in the main Malay and English newspapers.
On 26 March 1996, Pusat Islam ruled that the DVA did not conflict with Syariah law, and should not be used as an excuse to delay the Act's implementation.

On 27 March, WAO, on behalf of JAG, made a press release stating that the enforcement of the Act was not dependent on the regulations, but on the Minister who had the power to set the date of implementation. On 10 April 1996, the Minister announced that the DVA would be implemented effective 1 June 1996.
After 11 years of workshops, campaigns, and negotiations, the DVA was at last implemented on 1 June 1996. This is a much simplified historical account of a lengthy and complex process, but nevertheless captures the main events leading to the DVA becoming a reality for Malaysian women.

Lessons Learnt: What were the enabling factors?

The women groups

From 1985, the women groups had organised themselves as an united front . The mechanism of JAG was effective as it reflected the demands of movement in a collective voice. Most events related to the lobby of the Act, carried the collective name of JAG, and this gave the lobby credibility as the demands of a women's constituency.

It must be stated however, that not all the groups within JAG held the same perspective The spirit of the initial Bill, to have a quasi - civil law was not lobbied strenuously and there were misgivings to the proposal of making the DVA attached to the Penal Code as domestic violence was not to be defined as a separate crime in the Penal Code. Furthermore the crimes will be subject to the Criminal Procedure Code and its protocols.

Some women groups were lobbying for a quick enactment, being weary of nine years of lobbying and felt that we could tackle the ensuing problems once the Bill is passed. The final joint decision was that JAG would support the new Bill, re drafted by the AG `s Chambers and deal with protocols and procedures once the Bill was passed in Parliament.

In June 1996, when JAG came together again to demand that the DVA come into effect, there was still different perspectives among women's groups, notably the Muslim Lawyers’ Society which stated that the law was against Islamic doctrine. However, the collective voice of JAG drowned out the few opposing voices.

The role of the ministry
The lobby for the DVA stepped up when Datuk Napsiah took the lead in advocating for this bill within the government. HAWA was charged with facilitating meetings between NGO and the AG chambers which drafted the Bill. NGOs themselves would not have been able to call for meetings with the AG `s Chambers, thus ministry's political will and commitment to this Act was an enabling factor.


The Minister took on the task of not only facilitating meetings but took on the role of advocate within the cabinet and Parliament and this is an important distinction. At the risk of being unpopular among her male colleagues, Datuk Napsiah did not let up under pressure.

The role of the AG's Chambers
The AG Chambers was given the task of drafting a Bill based on JAG's memorandum and draft DV Bill. The representative from the AG's chambers, a woman herself was sympathetic and clued in to the NGO's perspective. The AG's chambers representative had the difficult task of negotiating on behalf of her office which was resistant to proposals on marital rape or eviction of the perpetrator out of the matrimonial home and dealing with the NGOs during the consultations. [She also had to deal with opposition from the religious authorities that domestic violence came under syariah jurisdiction for Muslims. It was then felt the least complicated way to deal with the issue of making domestic violence a crime was to attach it to an already existing Penal Code.]

Lobbying strategies
Women’s groups used every opportune moment to lobby. During the 11 years of campaign, International Women's Day became the focal point when women groups would gather to organize events that included workshops, public lectures, concerts, film festival all of which had a clear agenda of calling for the enactment of the DV Bill. Upon passing of the Bill in 1994, women's groups realizing that the Act had not taken effect, drew up a 13-point agenda prior to the Beijing World Conference on Women to remind the government of Malaysia to fulfill its commitments.

Enlisting the support from various authorities was yet another strategy, and separate meetings and consultations were held to enlist this support.

The Role of the Media
The media played a very important role in the lobby of the DV bill. Aside from giving wide coverage to the lobby, the media took the initiative to publish feature articles on domestic violence highlighting the need of a law to protect women from domestic violence. In 1996, when women groups staged a “demonstration “ calling for the Act to be realized , the New Straits Times ran a leader article, “ Move It Minister” chiding the Minster of National Unity and Social, Development to make the Act a reality.

The existence of a domestic violence shelter also made a difference. JAG could come out with statistics and life stories of women who had suffered domestic violence to make its lobbying more compelling. The media had ready access to interview women who had been abused and used pictures of injuries to build public support for the enactment of the Act.]


Conclusion

“Women's NGOs acknowledge the DVA is not as far-reaching as was originally intended, due to the concessions and limitations which were agreed upon to realise the Act's implementation. In a paper discussing women's activism in Malaysia and issues related to the Domestic Violence Act, Shanthi Dairiam wrote that “the shift from the original proposal of the women's groups was made without women quite understanding the implications until it was too late . . . there was no continuity in the membership of the women's negotiating team and as a result there was no memory of the history of why certain things had been originally proposed.” She also refers to the NGO team as “war weary” after years of negotiating for a domestic violence bill. The lengthy period of time between conceptualization of a domestic violence bill and the implementation of the Domestic Violence Act, 1994, significantly influenced the decision of NGOs to endorse the Act in its existing state. The Act was endorsed by women's groups on the basis that regulations would be added and strengthened by the Minister of National Unity and Social Development within a reasonable period of time. Furthermore, women's groups were assured by the authorities that regulations would be formulated to address the apparent problems associated with the DVA's continued attachment to the Penal Code.

The implementation of a domestic violence bill for Malaysia is a monumental achievement and calls attention to the seriousness with which our community regards domestic violence. It is vital, however, that we continue the process of revisiting and strengthening the Act, to best serve the victims of domestic violence the Act is meant to protect.

Information regarding the process leading up to the Domestic Violence Act's implementation is derived from WAVES, AWAM's internal newsletter dated March-August 1993; Sisters in Islam's “A Working Document on The Domestic Violence Bill: campaign for law reform 1985-1994;” and WAO's 1996 Annual Report.

WAO: Women's Aid Organisation, 603 - 79563488, wao@po.jaring.my
Excerpt from “ Monitoring the Domestic Violence Act”, a report from WAO
Reddy, Rita. 1992. A Handbook of Law for Malaysian Women. Petaling Jaya: Pernebit Fajar Bakti Sdn. Bhd: 32.
Laws of Malaysia: Law Reform (Marriage and Divorce) Act 1976 (Act 164). 1995. Kuala Lumpur: International Law Book Services.
Ahmad, Salbiah. May 1990. "Towards a Common Law on Domestic Violence for Malaysians." Malaysian Law News: 314.
Joint Action Group. 1986. "Proceedings of a Workshop-Cum-Exhibition on Violence Against Women: 23-24 March 1985." Penang, Malaysia: 73.
Abdullah, Nor Aini Bte. 27 January 1995. "Domestic Violence Act 1994: An End to a Nightmare?" The Malayan Law Journal. Vol. 1, No. 149-192: 2.
Othman, Muharyani, Pang Yin Fong, Juneita Johari and Alina Rastam. 14 March 1996. "Objections put the Act in limbo," New Straits Times: 6.
Ahmad: 314.
Islamic Family Law (Federal Territories) Act 1984 (Act 303). 1996. Kuala Lumpur: International Law Book Services.
Ibid.: 33-34.
Othman: 6.

Ibid.
Ibid.
Sisters in Islam. April 1994. “A Working Document on the Domestic Violence Bill: campaign for law reform 1985-1994.”

Dairiam, Shanthi. 1995. “Some critical issues relating to the proposed DV Bill, 10-5-1994,” extracted from the paper “The Struggle for Women's Rights in Malaysia: A Review and Appraisal of Women's Activism in Malaysia in the Eighties and Nineties.”
Excerpt from “ Monitoring the Domestic Violence Act”, a report from WAO

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