has imposed a state criminal law a special, namely the Law on Domestic Violence No. 23 of 2004.
This is consistent with retification undertaken on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW ), based on Law Number 7 of 1984 and issued Law Number 39 year 1999 on Basic Human Rights.
Earlier, in 1967, the United Nations has issued a Declaration on the Elimination of Discrimination against Women. It provides for rights and obligations based on the equality of women and the rights of man and emphasized the need for measures to ensure the implementation of the declaration. Due to the non-binding declaration, the United Nations Commission on the Status of Women regarding drafting the Convention relating to women. On 18 December 1979, it was agreed by the Member States of the Union. On 29 July 1980 the Government of Indonesia signed a Convention on International Women’s Day in Copenhagen (Denmark). On 24 July 1984 the Government of Indonesia passed Law No. 7 of 1984 on the Elimination of Discrimination against Women. However, in reality, the law still fails to give protection significantly for women in Indonesia.2 The economic problems have made the Indonesian people forget about the existence of both the Declaration and cases of violence against women in Indonesia continues to increase every year.3
In 2000, the Ministry of Women’s Empowerment Indonesia recorded the violence experienced by women in Indonesia is very high. Nearly 24 million women (11.4 percent) had experienced violence. Violence is the dominant domestic violence including torture, rape, harassment, or husband is cheating.4 This led to the Indonesian government issued Presidential Decree No. 181 of 1998 on Violence against Women on 9 October 1998.
In section 1, the decision may be provided that in order to prevent and address violence against women and the elimination of all forms of violence committed against women, set up a national commission it was the National Commission on Violence against Women with the following objectives;
(a) understanding of the dissemination of all forms of violence against women that occurred in Indonesia;
(b) develop an enabling environment for the elimination of all forms of violence against women in Indonesia;
(c) increased efforts to prevent and control all forms of violence against women and the protection of basic human rights (women).5
Earlier, Indonesia has the Code of Penal (Penal Code) and the Code of Criminal Procedure (Criminal Procedure Code), but the core of the reality of discrimination against women because women are regarded as unimportant as defined below: 6
(a) At first, the integrity of the body’s violence against women is considered a violation of the
(b) Verification procedure does not recognize the experience and context of violence against women and children.
(c) Law enforcement agencies bias that put women on stigma.
In each process, apply blaming the victim (victim blaming) or the involvement of the victim (victim participating), the woman as a victim is asked to prove that he really does not even take advantage of these events;
(d) the agency did not understand the context of the violence suffered by the victims and their various factors, especially the power relations that lie behind them, so it is easy to make the agency as a principal victims of violent crime;
(e) the problem of the rights of offenders or suspects are not applicable in cases of violence against women; and
(f) many agencies are reluctant to use legal instruments that have been around for a while.
Prior to the effective implementation of Law No. 23 of 2004, settling cases of household violence only refers to sections in the Penal Code and was even used as a reference point, even though the Penal Code is considered unable to provide protection and justice to women victims of violence adequately or less said sections can accept and deliver justice to victims of violence in the Penal Code7 because the formula is limited to the scope of physical violence only. That is why other forms of violence happens to women can not be put in the category of abuse. While the Penal Code did not actually know the shape of domestic violence. Therefore, not all cases of violence that take place in the household can use sections of existing Penal Code. The forms of domestic violence that do not exist in Penal Code is such as rape in marriage (marital rape), psychological violence and economic violence. Also the Penal Code does not give enough consideration for the suffering or physical or psychological trauma experienced by victims of violence.
Due to the reasons stated above and to resolve cases of household violence, the Indonesian government did draft a special law ie Law No. 5 of 1998 on the Convention against Torture and Other Cruel, and Presidential Decree No. 181 of 1998 on “the National Commission on Violence against Women”. Then, in 2004, was enacted Law No. 23 Indonesia Domestic Violence which is the reform of other laws in favor of women. Thus, Law No. 23 of 2004 is designed to supplement the existing Panel or Criminal Code.
By Neni Utami Adiningsih (2004), the existence of Act No. 23 of 2004 gives hope for the wife of safeguards against him. When the law No. 23 of 2004 is enforced consistently, then the law will help businesses protect women, particularly the wives of various forms of violence, with some reason, 8 that is because:
(a) husband can no longer do as they please against the victim. This is because violence by a husband is no longer a private matter but a matter for the state and the public;
(b) the penalty is set high;
(c) present the only eyewitness of the season plus one valid evidence (witness testimony, expert testimony, instructions, notes and descriptions of the offender) has been able to prove Domestic violence offenders.
7 Neni Utami Adiningsih, Penghapusan Keganasan Dalam Rumahtangga, (2004), http://www.suarapembaruan.
com/news.
8 Neni Utami Adiningsih, 2004,.
This Act incorporates the needs and interests of victims as follows:
(a) The duty of society and the state to protect victims;
(b) An order of protection against the victim and order temporary restriction of movement of detainees;
(c) Legal aid for victims;
(d) The protection of witnesses;
(e) An alternative procedure for submission of claims;
(f) Verification procedure that does not complicate the future. the testimony of the victim can be used and amplified by expert testimony on the matter can be directly submitted to the prosecution; and
(g) Equipment verification procedures apply also psychiatry
In 1967, the United Nations (UN) has issued a declaration on the Elimination of Discrimination against Women. It accommodates the rights and duties of women under conditions of equality with men and said that steps were taken to ensure the implementation of the declaration. Due to the non-binding declaration, the UN Commission on the Status of Women to formulate a plan to hold a convention on the Elimination of All Forms of Discrimination against Women.
On 18 December 1979, the UN General Assembly agreed to a resolution that is not against the Pancasila (the State of the Republic of Indonesia) and the Act of 1945 (called the Constitution 45).
Therefore, the Government of the Republic of Indonesia in the UN World Conference on Women in Copenhagen on 29 July 1980 has signed the convention. On 24 July 1984, the Government of Indonesia approved Law No. 7 of 1984 on Ratification of the Convention on the Elimination of All Forms of Discrimination against Women. 9 This prompted the Indonesian government issued Presidential Decree No. 181 of 1998 on the National Commission on Violence Against Women, which was set on October 9, 1998. Section 1 of Presidential Decree was declared in order to prevent and address violence against women and the elimination of all forms of violence committed against women, set up a national commission called the National Commission on Violence Against Women. The Commission has the purpose of: (a) promote understanding of all forms of violence against women that occurred in Indonesia; (b) develop conditions conducive to the elimination of all forms of violence against women in Indonesia; and (c) increase in prevention efforts and efforts to tackle all forms of violence against women and protection of women’s rights. 10 The Commission merely arrange preventive measures against violence typical to female victims, but does not expressly forbid the culprit. Therefore it is not able to provide maximum protection to victims.11
Finally in 2004, based on the Constitution of the Republic of Indonesia, the Pancasila and the
Both sections are clearly provide guarantees to every citizen to feel safe and free from all forms of violence. By Guse Prayudi, when a sense of security, free from all forms of violence and discrimination will be born households and harmonious whole. 12 According to La Jamaa, Hadijah, the existence of Act 23/2004 enforcement enforces prevention of domestic violence in Indonesia. Police are authorized to prevent and redress the victims were given space. Domestic violence is beginning to be a private affair, is now a criminal case when it becomes a public affair.
The aim of Law 23/2004 is to prevent, protect victims and take action against perpetrators until a special law is needed though this is stipulated in the Constitution 45 and the Criminal Procedure Code or the Code of Criminal Procedure (hereinafter referred to as the Criminal Procedure Code), such as persecution, morality, ignorance of who should be given a living and life, and contempt. Meanwhile, other legislation related to domestic violence act like Indonesia is Indonesia Marriage Act No. 1 of 1974 (hereinafter referred to Act no. 1/1974), the Convention on the Ratification Act Elimination of all forms of discrimination against women and the Basic Act of Human Rights of Indonesia Number 39 of 1999 (hereinafter referred to as Act 39/1999).
In the Criminal or Penal Code (KUHP), molestation covers (1) ordinary maltreatment,
13 maltreatment under which resulted in severe injury,14 assault resulting in death, 15 light maltreatment,16 assault with initial plans,17 the persecution of the early planning resulting in serious injury,18 assault with a preliminary draft that resulted in death, 19 violence severe (intentionally hurt others),20 violence causing death,21 aggravated assault with a preliminary design,22 preliminary design of aggravated assault with a lead to all-out persecution against the rightful parent, spouse or child,23 the persecution of an office staff when or for running legal duty,24 assault with a dangerous substance to give life or health to eat or drink.25
The ethics surrounding the act of adultery (fornication),26 told adultery, 27 by force or threat of force sexual relations with women outside marriage,28 sexual intercourse with a woman unconscious or
12 Guse Prayudi, Berbagai aspek tindak Pidana Kekerasan Dalam Rumah tangga, yogya-karta: Merkid Press, 2009, p. 15.
13 Section 351 (1) KUHP 14 Section 351 (2) KUHP 15 Section 351 (3) KUHP 16 Section 352 KUHP 17 Section 353 (1) KUHP 18 Section 353 (2) KUHP 19 Section 353 (3) KUHP 20 Section 354 (1) KUHP 21 Section 354 (2) KUHP 22 Section 355 (1) KUHP 23 Section 356 (1) KUHP 24 Section 356 (2) KUHP 25 Section 356 (3) KUHP 26 Section 284 (1)1.a KUHP 27 Section 284 (2)1.b. KUHP 28 Section 285 KUHP
helpless outside marriage: 29 causing serious injury, 30 death, 31sexual intercourse with women under the age of fifteen years or age is not clear or is not time to get married,32 causing serious injury,33 death,
34 persuade doing or letting obscene or sexual intercourse outside of marriage to a person under the age of fifteen years or age is not clear or is not yet time to marry:35 causing severe injuries,36 death.37 Furthermore, the problem of inventions, because, in the Criminal Code provided for in chapter xV of abandon people in need of help,38 causing severe injuries,39 death40 and the time it is attacked insult the honor or reputation of a person accused of a thing to be known publicly.41
Meanwhile, Law 1/1974 also contains provisions relating to domestic violence; husband and wife must love, respect, loyalty and provide tangible help each other spiritually,42 the husband must protect his wife and provide all the needs of married life according to his ability,
43 if the husband or wife neglects his duties, each may bring action legal proceedings in court,
44 for divorce because one party leaving the rest for two consecutive years without the consent of the other and without legitimate reasons or because of other things that are out of his will,45 a party committed atrocities or severe persecution endangering the party other,46 between husband and wife constantly disputes and quarrels and no hope of living in harmony again in the household.47
Other acts iatu Law 39/1999. Otherwise, “every person has the right to live in peace, secure, peaceful, happy, prosperous, outward and inward,”48 “everyone is entitled to personal protection or privacy, family, honor, dignity and property”,49 “everyone has the right to freedom from torture, penalty or cruel, inhuman, degrading his honor and human dignity”,50” everyone has the right to be free from forced disappearance and soul “.51
29 Section 286 KUHP 30 Section 291(1) KUHP 31 Section 291(2) KUHP 32 Section 287(1) KUHP 33 Section 291(1) KUHP 34 Section 291(2) KUHP 35 Section 290(3) KUHP 36 Section 291(1) KUHP 37 Section 291(2) KUHP 38 Section 304 KUHP 39 Section 306(1) KUHP 40 Seksyyen 306(2) KUHP
wOmEN LEGAL PROTECTION IN mALAySIA
Efforts to materialize the legal protection for victims of domestic violence spearheaded by women’s organizations regardless of religion and race in Malaysia, 52 such as the Joint Action Group (JAG), consisting of several NGOs, the Attorney General, Ministry of National Unity and Community Development Center, Islam, the Federal Territory Islamic Affairs Department, the Bar Council, the Ministry of Health and the Royal Malaysian Police.53
Act 521 provides an illustration of the need to protect those who have a weak position in a family.
Section 1 (2) provides for a form of additional protection for victims of domestic violence in the event of injury to person and property as well as their family members. Part I, Act 521 of the Penal Code read together. Part II also emphasizes the protection and powers of arrest orders against perpetrators and Part II deals with the rights of victims to compensation and counseling in case of domestic violence.
Ministry of National Unity and Social Development (at the time) was given the responsibility of giving special attention to matters of violence Violence by allocating some recovery (remedy) for such cases. 54
Some sections of the Penal Code for offenses involving abuse of husbands against wives.
55 Section 352 of the Penal Code states, a husband can be punished with imprisonment of three months or a fine of up to one thousand ringgit or both if using criminal force or assault his wife.
Husband also can be sentenced up to one year or a fine of up to two thousand ringgit or to both the offense intentionally injure his wife.56
More severe punishment may be imposed on the husband’s a dangerous weapon with the intent to harm his wife. The penalty for this offense is imprisonment for up to three years or fine or whipping with a finger suspended or cane, or with any two of the punishments. 57 For the offense of voluntarily causing grievous hurt to his wife, a husband is liable to imprisonment for a term up to seven years and shall also be liable to fine. 58 If the use of weapons or dangerous objects, its punishment is a prison that could reach twenty years and a fine or whipping. 59 If injuring his wife or negligently caused the death of his wife could also be jailed for up to twenty years. 60 The penalty for this offense is imprisonment for up to two years or a fine or both. 61 The most severe penalty murder cases involving similar to intentionally kill another penalty. 62
Criminal Procedure Code under Section 23 empowers the chief of police or arresting without warrants against those who commit offenses as provided for in the Penal Code, but the police were often reluctant to prosecute those involved to justice unless the victim suffered serious injuries. 63 According to Mohamed Azam Mohamed Adil, the jurisdiction provided for in criminal law has too
52 Muhammad Azam Mohamed Adil in Raihanah, Wanita dan perundangan Islam, Selangor: Ilmiah Publishers, 2001, p. 201.
53 Jal Zabdi Mohd yusoff, 2004, p. 57.
54 Jal Zabdi Mohd yusoff, 2004, p. 57,
55 Mohamed Azam Mohamed Adil in Raihanah Abdullah, 2001, p. 203.
56 Section 323 Panel Code 57 Section 324 Panel Code 58 Section 325 Panel Code 59 Section 326 Panel Code 60 Section 326 Panel Code 61 Section 304A panel Code 62 Section 302 Panel Code
63 Mohamed Azam Mohamed Adil in Raihanah Abdullah, 2001, p. 203.
little power and less effective in protecting victims of Islam against the provisions of the civil law,
64 that is for offenses such as assault, 65 criminal violence, 66 causing injuries, 67 the reason causing grievous hurt, 68 voluntarily causing hurt by using weapons or other objects that are dangerous,
69 causing severe injuries by using weapons or other objects that may be dangerous,70 attempted murder, 71 shutting down with one person, 72 murder, 73 assault or use of criminal force to impose one’s honor with intent to molest, 74 attack or criminal force to confine a person with an attack or use of criminal force on a big angry awakening, 75 rape76 and unnatural offenses. 77
Prior to Act 521 is presented and approved by Parliament, there are several provisions of the law in Malaysia that protects women from being molested.78 Remedies for victims of domestic violence is pursuant to the Law Reform (Marriage and Divorce) Act 1976 for non-Muslims. For Muslims, the law applicable is the Islamic Family Law Enactment according to their respective states.79 According to section 53 (1) of the renewal of the Act (Marriage and Divorce) Act 1976, one of the parties to a marriage may petition for divorce on the grounds that the marriage has broken apart and can not be recovered again. Parties backing for the petition will then have to prove that one of the subpar-paragraph of section 54 are met.
In addition, this act also brings awareness to the public that domestic violence is no less serious than the violence against civilians. It is natural to 521 of the Act applies to everyone, including Muslims in Malaysia despite the Syariah Criminal Act should be applied to Muslims.80
The relevant provisions under section 54 is subsection (b), namely: “That the respondent has behaved in a way that causes the petition can not reasonably be expected to be able to live with the opposition.” According to Mohamed Azam Mohamed Adil, a wife who persecuted the same have been attacked or threatened may apply for divorce. The victim should be able to convince the court that there was one or more words that reveal the artistry of her husband did not allow the wife to live with him
Other Act in force before the Act 521 specifically for victims and Muslims is the Islamic Family Law81 (Federal Territories) Act 1984 (hereinafter referred to as Act 303) 82 or state enactments relating to
64 Mohamed Azam Mohamed Adil in Raihanah Abdullah, 2001, p. 203.
65 Section 351 Panel Code 66 Section 350 Panel Code 67 Section 321 Panel Code 68 Section 322 Panel Code 69 Section 324 Panel Code 70 Section 326 Panel Code 71 Section 307 Panel Code 72 Section 299 Panel Code
Islamic family law which provides for remedies for victims who are abused by their partners. In this act, there are specific provisions to address the problem of domestic violence. However, there is provision only applies to the wife and not the husband if they are abused. Section 127 of Act 303 provides:
“a person who treats his wife or his wife’s property fool guilty of an offense and shall be punished with a fine not exceeding one thousand ringgit or to imprisonment not exceeding six months or both such fine and imprisonment.” Section 128 of Act 303 also states: “Someone who does not give proper justice to his wife according to Islamic law is guilty of an offense and shall be punished with a fine not exceeding RM1,000 or imprisonment or both.” Victims of domestic violence who are Muslims can use this recovery without the need to file a petition for divorce. 83
Tort law is applied because the law generally provides for recovery to those who have suffered damage from acts of the other party. Therefore, action under tort law is another way could be used by a wife or husband who had been abused by their partners.By comparison, the criminal proceedings are the proceedings to be brought by the public prosecutor84 and the proceedings under the law of tort in the civil court may be brought by private persons. This means, for spouses who are abused, they can take action sen-yourself or through counsel of their partner. At first, a wife or husband can not bring a claim for damages based on tort against their partners.85
This position was later dipemulihankan when the 521 is in force. The Married Women Act (Amendment) Act 1997 has been allocated to the expansion of materials in Section 4A of the Married Women Act, 1957. Section 4A-allot it: “a husband or wife shall be entitled to sue each other in tort for damages in respect of injuries to his or her person, as the case may be, in the like manner as any other separate individuals “
By Jal Zabdi Mohd yusoff, through an amendment to the Married Women Act (Amendment) Act 1997, victims of domestic violence who are not Muslims have civil recovery times. Besides being able to claim compensation if injured on the body, a spouse can also claim compensation for their property that is damaged.86 This recovery has been magnified assign the section (92) of the Married Women (Amendment) Act 1997, namely: “a husband or a wife shall be entitled to sue each other in tort for the protection or security of his or her property, as the case may be “.
Through the law of tort, the same treatment in criminal cases such as assault, blows, one of the detention, harassment and the like can be used as a power action by victims of domestic violence to get restorations such damages, compensation or an injunction.87
CLOSuRE
In the last five years, family violence is a form of violence that most women experience from year to year. Since the ratification of the Law on the Elimination of Domestic Violence, in 2004, the number of cases handled rose to nearly four-fold. Most institutions deal with cases of violence are religious court (economic neglect in the matter of the claim for divorce) but they do not use the Law on the Elimination of Domestic Violence as protection. The separation between civil case (civil-dissociation) and crime (crime, domestic violence) in the court system does not really give benefit and importance of women victims in seeking justice.
83 Jal Zabdi Mohd yusoff, 2004, p. 97.
84 Mat Saad Abd Rahman in Jal Zabdi Mohd yusoff, 2004, p. 97.
85 Jal Zabdi Mohd yusoff, 2004, p. 97 86 Zal Zabdi Mohd yusoff, 2004, p. 97.
87 Zal Zabdi Mohd yusoff, 2004, p. 98.