Assignment 2 Report

 Research Question & Research Methodology (aisy)

TITLE: The Issue Of Domestic Violence Among Married Couples

1) Research Question
a. What are the protections available for the victim of domestic violence provided under the
Domestic Violence Act 1994?

In Malaysia, in respect of legal protection, domestic violence victims who are spouses
and former spouses may seek legal protection as provided for in the Domestic Violence Act
1994. In regarding this matter, some examples of legal protection that victims of domestic
violence are afforded include compensation, access to rehabilitation programs, and protection
orders. In order to ensure the safety of the victims and to prevent further abuse from being
perpetrated against victims of domestic violence, perpetrators can be restrained from
committing certain acts for a specific duration of time through protection orders. In fact,
protection orders can be divided into three types which are Emergency Protection Order
(EPO), Interim Protection Order (IPO), and Protection Order (PO) that are available for the
victims of domestic violence.

The Emergency Protection Order (EPO) was introduced via the inclusion of Section
3A of the Domestic Violence Act 1994 in 2017. This section provides quick protection in
times of emergency for domestic violence victims. According to paragraph (a) or (b) of
Section 2 of this statute, victims of domestic violence can apply for an EPO if there is an
attempt by a spouse or former spouse to cause fear of physical harm or actual physical injury
to the victim as stated in Section 3(1) of the provision. To ensure that immediate protection
can be availed to the victim, its application can be made even without being preceded by any
police report in accordance with Section 3(6) of the DVA 1994. Notably, one unique feature
of the EPO is that it can be applied during the weekends (Bernama, 2017). Moreover, under
Section 3A (8) of the DVA 1994, the EPO is valid for seven (7) days from the date of
issuance of the order.

Meanwhile, conversely, in an ongoing investigation of a domestic violence-related

offence, the court can issue interim protection in the form of Interim Protection Order (IPO)
as stipulated in Section 4(1) of the Domestic Violence Act 1994. An IPO will be granted if the
court is satisfied that it is necessary for the victim’s personal safety and protection as stated in
Section 4(3) of the DVA 1994. Moreover, this protection is in contrast with the EPO and PO,
no specific duration is mentioned for IPO. The period of an IPO depends mostly on how long
it takes for an investigation to be completed. The situation in which an IPO ends is explained
in Section 4(4) of the statutory provision. For example, pursuant to Section 4(4)(a) which
occurs when a police officer informs a victim in writing that there is no further action to be
taken against a spouse or former spouse. A charge in court against a victim’s perpetrator of
abuse, either by the spouse or former spouse, is insufficient by itself to end the IPO unless a
police officer informs the victim in writing to press charges against the abusive spouse or
former spouse, and the victim does not apply for a PO within seven (7) days after being
informed by the police in accordance with Section 4(4)(b) of the Domestic Violence Act
1994.

Lastly, the Protection Order (PO) which is a court-granted order, similar to the EPO.
Victims of domestic violence may seek a PO both before or after criminal proceedings, which
concerns domestic violence against abusive spouses or former spouses. In the first situation,
after the victim is informed by a police officer (in writing) that criminal proceedings will be
instituted against the individual for whom the order is made in relation to the commission of
an act of domestic violence, the victim may seek a PO within seven days as stated in Section
13(1)(a) of the Domestic Violence Act 1994. As for the second situation, where the accused is
charged with an offence involving domestic violence under the Penal Code or any other
written law, the victim may seek a PO throughout the stages of the criminal proceedings as
stated in Section 13(1)(b). The validity of a PO is only for twelve (12) months in accordance
with Section 6(1A) and can be extended for an additional period of twelve (12) months as
stated in Section 6(2)(b). The court may, under Section 5 of the same provision, order an
abusive spouse or former spouse to be restrained from committing domestic violence against
the victim. Hence, it is crucial that it should be noted that the PO’s scope is considerably
broader than the IPO.
b. What are the remedies the victim can claim from the preparator?

Compensation in Civil Proceedings

In an effort to ensure the interests of victims of domestic violence are safeguarded

financially, the Domestic Violence Act 1994 permits the court to make a compensation order
to recompense the victims for injury or loss sustained as a result of domestic violence. The
process is made by way of a civil application as stipulated in Section 2 of the Act, which
states that “in respect of civil proceedings for compensation under Section 10, the court is
competent to hear such claims in tort.” The rationale of making the application at this stage is
that the victim does not wish to continue with the marriage as they can no longer tolerate and
live with their spouses and therefore, may want to make various applications prior to the
separation, such as compensation for injury or loss sustained through domestic violence. This
right, however, depends on the wish of the victim to enforce the provision, despite the law
already being in place. This provision must therefore be pleaded in court to claim
compensation from the abusive husbands for injuries suffered as a result of domestic
violence. Although Section 10 of the provision does not state a medical report as a
prerequisite for a successful claim for compensation, however, based on the above case law,
such a report is necessary in order to prove the injuries alleged in court to meet the standard
of proof required by the law which is on the balance of probabilities. Hence, the victims have
to get a medical examination from a doctor for evidence purposes in court as the burden of
proof lies on them. This could assist the court in considering and granting the claim for
compensation under Section 10 of the Domestic Violence Act 1994.

Compensation in Criminal Proceedings

Before exploring this matter further, it is important to explain the two common terms
used in financial penalties which are fine and compensation. In general, both are examples of
financial penalties that can be imposed by the court in criminal proceedings. It is important to
note that pursuant to Section 3 of the Domestic Violence Act 1994, the Act shall be read
together with the Penal Code or any other written law involving offences relating to domestic
violence. This provision indicates that committing domestic violence under Section 2 (a) to
(h) of the provision per se does not amount to an offence. Domestic violence can only turn
into an offence if it violates any provision of the Penal Code or any other written law as well.
An example of this is when a husband abuses his wife and injures her, the husband has
committed domestic violence under Section 2(a) and at the same time, such act is an offence
under Section 323 of the Penal Code and therefore, if there was a police report lodged against
him, he might be charged with an offence of causing hurt under Section 323 of the Penal
Code. The same section states that upon conviction, the accused may be punishable with up
to one year imprisonment or a fine up to two thousand ringgit or both. In fact, beginning from
31 December 2014, such offences can be read together with section 326A of the Penal Code
which basically allows the court to increase the sentence of imprisonment.

Based on Section 426 (1A) of the Criminal Procedure Code, the court may make an
order of compensation to a victim upon an application made by the Public Prosecutor.
However, in criminal cases, it is a different case whereby the compensation order can only be
made if the abusive husbands are found guilty of the offence charged. Hence, when the victim
suffers harm or losses as a result of the crime, then it is important for the Public Prosecutor to
invoke this particular provision and apply to the court for compensation to be awarded to the
victim. Pursuant to Section 426 (1B) of the CPC, in cases where the victim have died, the
order of compensation shall be made to their representatives. In determining the amount of
compensation, the court may take into account the factors specified in paragraphs (a) to (g) of
subsection (1C) of Section 426 of the CPC that stated “the nature of the offence; the injury
sustained by the victim; the expenses incurred by the victim; the damage to, or loss of,
property suffered by the victim; the loss of income incurred by the victim; the ability of the
convicted accused to pay; and any other factors which the Court deems relevant.”
Comparison Between Civil and Criminal Proceedings

Based on the matter of the compensation that has been mentioned, the differences and
similarities between civil and criminal compensation should be recognized. Firstly, the victim
is responsible for proving that they have been wronged and are therefore entitled to
compensation, which by he or she is responsible for presenting all relevant evidence to the
court as proof. In contrast, in criminal proceedings, the Public Prosecutor, who will prosecute
the case on behalf of the victim, bears the burden of presenting all relevant evidence to
establish the accusation, considered as the basic principle outlined in section 101 of the
Evidence Act of 1950.

Second, with regard to the burden of proof, the victim in civil cases must establish the case
by an excessive number of evidence due to the matter of balance of probabilities to prove that
the preparator is liable for the offence while for criminal cases, the required standard of proof
is beyond any reasonable doubt. Besides that, in order to claim compensation through civil
proceedings, the victim has to apply and plead, requiring the burden to prove that the victim
has been proven to be a victim of domestic violence. On the other hand, compensation can
only be applied once the perpetrator is found guilty of the offence and upon the application
made by the Public Prosecutor in criminal proceedings.

Meanwhile, the matter of the similarities between the civil and criminal proceedings is the
decision made by the court to grant a certain amount of compensation for the victims of the
violence. In obtaining a decision, the court is constrained by a number of factors that must be
evaluated. By going through the Section 10 of the Domestic Violence Act of 1994 and
Section 426 of the Criminal Procedure Code reveals that the criteria are essentially identical,
including the victim’s injury, the victim’s expenses that occurred by the incident, the victim’s
property damage or loss, the victim’s loss of income, and any other factors considered
pertinent by the court.
c. What is the punishment for the preparator under Domestic Violence Act 1994?

When deciding the appropriate punishment for domestic violence could be different as it is
depending on the type of offence that was committed by the perpetrator. In the matter of it is
a well-known fact that the referred statutory provision would be the Domestic Violence Act
1994, which provides the entire affair of domestic violence that is usually read together with
the Penal Code, which outlines the obliged punishments for various offences. For instance,
when someone was punished under Section 323 of the Penal Code, which is equivalent to
voluntarily causing hurt to the other person will carry out the punishment of up to one year of
imprisonment, or a fine of up to RM 2000, or can be punished with both. This matter showed
that penal code charges are actually not meant to be specific to the domestic violence offence,
in which someone can be charged for committing an offence against anyone under the penal
code. Nevertheless, in the circumstance when someone commits the offences under the Penal
Code against their spouse, the punishment granted by the court may be greater rather than if
someone commits the offence against a non-spouse. In referring to the Section 326A of the
Penal Code, any person who causing hurt to his spouse and commits offence listed under the
Section 323, 324,325,326,334 or 335 of the Penal Code can be sentenced to imprisonment
for a period up to twice as long as the maximum of any of these offences.

2) Research Methodology

In pursuant to completing this research, we have to bear in mind that the review and
analysis of research, data, and information from the literature are the crucial methods utilized
for this conceptual paper. In gathering, collecting and analysing the data and information to
make complement research, we have used three types of methods which are the online
research method, content analysis method, and referring the books. The first method of online
research method, which we mostly search for information via the internet by using search
engines, specifically Google and Google Scholar to find related articles on the domestic
violence issue among married couples. Additionally, as students of the University Utara
Malaysia, we also used the UUM eResources to get access to a certain application that
requires payment but we get it for free in order to search for materials related such as the
decided cases of domestic violence in Malaysia. Therefore, data were collected as much as
possible to scrutinize the issue of domestic violence to ensure that the welfare of the victims
of domestic violence was protected such as providing protection and compensation for the
victims and also enforcing punishment for the perpetrator. Besides that, this research adopted
the content analysis method by applying doctrinal legal research, such as the Domestic
Violence Act of 1994, the Penal Code (Act 574), the Criminal Procedure Code (Act 593)
(CPC), and decided cases in Malaysia as the primary materials were extensively examined
using the legal research concept. Furthermore, we also analysed journals and academic
writings relevant to this field for further discussion with the aim to know the opinions and
knowledge of other researchers. The last method is by referring to the books that were also
utilized in gathering the information for this research paper. In order to discover the existing
legal position on the subject of domestic violence victims' rights to claim compensation and
to propose the necessary enhancements to the judicial system in Malaysia, the data collected
for this study were analysed thoroughly.

Reference

Domestic Violence Act 1994. http://www.commonlii.org/my/legis/consol_act/dva1994178/

WCC. (n.d.). Domestic Violence: Laws in Malaysia – WCC. Laws Related to Domestic
Violence in Malaysia; Women’s Centre for Change.
https://www.wccpenang.org/domestic-violence-laws-in-malaysia/
Women's Aid Organization. (n.d.). Domestic Violence Laws in Malaysia. Women’s Aid
Organisation. Retrieved June 26, 2023, from https://wao.org.my/laws-on-domestic-
violence/#:~:text=You%20can%20apply%20for%20a

Baker McKenzie. (n.d.). 4. Protection for domestic violence victims and relief granted |
Malaysia | Fighting Domestic Violence | Baker McKenzie Resource Hub.
Resourcehub.bakermckenzie.com. Retrieved June 26, 2023, from
https://resourcehub.bakermckenzie.com/en/resources/fighting-domestic-violence/
asia/malaysia/topics/4-protection-for-domestic-violence-victims-and-relief-granted

Mohammed Naim, M. S., Ramalinggam Rajamanickam, & Ramalinggam Rajamanickam.

(2019, June). FEMALE VICTIMS OF DOMESTIC VIOLENCE AND THEIR RIGHTS
TO COMPENSATION IN MALAYSIA. ResearchGate.
https://www.researchgate.net/publication/334113832_FEMALE_VICTIMS_OF_DO
MESTIC_VIOLENCE_AND_THEIR_RIGHTS_TO_COMPENSATION_IN_MALA
YSIA

Bernama. (2017, July 18) Welfare officers will be empowered to issue EPO, protect domestic
violence victims. New Straits Times.
https://www.nst.com.my/news/nation/2017/07/258515/ welfare-officers-will-be-
empowered-issue-epo-protectdomestic-violence.

Book Reference

Daleleer Randawar Kaur, and Najibah Mohd Zain. The Law on Domestic Violence in
Malaysia. Gombak, Iium Press, 2019.

Daleleer Kaur Randawar, et al. Family Law in Malaysia. LexisNexis, 2018, pp. 81 until 116,

www-lexread-lexisnexis-com.eserv.uum.edu.my/product/family-law-in-

malaysia50103728. Accessed 28 June 2023.