Articles


Domestic Violence in the time of COVID-19 - Understanding Emergency Protection Order, Interim Protection Order & Protection Order

By

Parvinder Kaur Harbindar Singh, Associate (Criminal and Family Department)
Harneshpal Karamjit Singh, Associate (Commercial & Construction Department)


Hakem Arabi & Associates

Introduction



Domestic violence is an age-old problem in various households across the Globe. Any incident involving amongst others, inflicting fear, causing physical harm, compelling threat and force, detaining and confining by one family member to another family member would be classified as domestic violence under Section 2 of the Domestic Violence Act 1994 (“DVA 1994”).

Such violence has becomemore prevalent since the announcement of the Movement Control Order (“MCO”) by the Malaysian Government that begun on 18thMarch 2020. This is because victims of domestic violence are now stuck all day with their perpetrator.

The Women and Family Development Ministry’s ‘Talian Kasih’ hotline has received a 57% increase of calls from distressed women.1 The Women’s Aid Organization (“WAO”) has seen a 44% increase in its Hotline calls and WhatsApp messages between February 2020 to March 2020.2

The United Nations Secretary-General, Antonio Guterres, appealed for “peace at home” citing “horrifying global surge in domestic violence” amid the coronavirus pandemic and urged governments to step up efforts to prevent violence against women in their response plan to COVID-19.3

As we enter the fourth phase of the MCO, we explore the protections offered to victims of domestic violence under the DVA.


DVA



The DVA provides threeweapons of protection for victims of domestic violence namely:

  1. Emergency Protection Order (“EPO”);
  2. Interim Protection Order (“IPO”); and
  3. Protection Order (“PO”).


In addition to the examples of domestic violence mentioned above, the Domestic Violence (Amendment) Act 2017 (“DVAA”) widen the definition of domestic violence by including the dishonest misappropriation of a victim’s property causing the victim to suffer distress due to financial loss; threat with intent to cause the victim to fear personal and third person’s safety as well as safety of the victim’s property; and communication (via any means) with intent to insult the modesty of the victim.

Initially the DVA only provided protections under the IPO and PO. The EPO was introduced by the DVAA. It was aimed to provide a cooling period for both the abuser and the victim by providing for the intervention of the Social Welfare Department.4 As opposed to applying to the Court for an IPO or PO, an application for an EPO is made to the Social Welfare Department.

The EPO was also seen as an improvement and upgrade to the IPO and PO framework and a tool of education to the society that domestic violence is not a private family matter but a crime.5 It is a positive attempt to provide the necessary protection for victims of domestic violence.


EPO – Section 3A of the DVA



An EPO prohibits the person whom the order is made against (“the abuser”) or any person incited by the abuser from inflicting any form of domestic violence against any family member as specified in the said order (“the protected person”).

An EPO is issued by a social welfare officer authorized in writing by the Director General of Social Welfare pursuant to Section 3A(1) of the DVA. A victim is required to possess his/her Malaysian Identity Card (“MyKad”) and visit his/her nearest Social Welfare Department office to obtain an EPO.

For example, if a victim is living at Taman Rimba in Mentakab, he/she needs to visit the Social Welfare Department office at Jalan Merdeka in Temerloh equipped with his/herMyKad. For children, the person responsible for the care of the child needs to be equipped with his/her Birth Certificate and/or Malaysian Identity Card (“MyKid”).

An application for an EPOmay bemade at any time notwithstanding whether an application for an IPO or PO has been made or is pending. No domestic violence police report is required, in support of an application for an EPO.

Such application shall bemade ex parte (i.e. without the presence of the abuser) by the victim, victim’s counsel, in the case of a child, person responsible for the child’s care or a social welfare officer other than an authorized social welfare officer pursuant to Section 3A(3) of the DVA.

Section 3A(5) of the DVA provides that such application shall be heard immediately, and the issuance of the EPO shall be made, where practicable, within two (2) hours upon applying for such application. The EPOmay also contain orders prohibiting the abuser from entering the shelter/residence of the protected person.

An EPO is valid for seven (7) days from the date of its issuance. The authorized social welfare officer shall forward the copy of the EPO within ten (10) hours, where practicable, to the police officer in charge of the district where the abuser resides. The police are then to serve the copy of the EPO to the abuser personally within twelve (12) hours upon receiving the said order.


IPO – Section 4 of the DVA



An IPO is issued by the Court during police investigations into incidents of domestic violence pursuant to Section 4(1) and Section 12 of the DVA. It prohibits the abuser or any person incited by the abuser from inflicting any form of domestic violence against the protected person. For example, a husband is prohibited from physically, sexually or mentally harming his wife.

Practically, once an EPO is issued, the victim (now protected person) should lodge a police report. The police report should be made before the expiry of the EPO i.e. within seven (7) days. The police report should state that the protected person wants to obtain an IPO.

Once a police investigation is commenced, the protected person ought to take positive steps to make an application and obtain an IPO so as to take effect when the EPO expires. This would include obtaining a letter of referral from the police that the police investigation has commenced thus ensuring the continuous protection for the protected person under the DVA.

An application for an IPOmay bemade ex parte by either the victim, the victim’s counsel, or a social welfare office, on behalf of the victim pursuant to Section 12A of the DVA. Such application can also be made in any district where the victim resides, the abuser resides, the alleged violence occurred, or the victim is temporarily placed and shall be heard by the Court as soon as practicable as required under Section 14 of the DVA.



Such IPO will cease to have effect in three (3) instances:


  1. (a) Upon the protected person being informed in writing by the police about the completion of police investigations and no further action is taken against the abuser;

  2. (b) Upon the protected person being informed in writing by the police that a criminal proceeding relating to the commission of an offence involving domestic violence will be instituted against the abuser and upon the institution of a criminal proceeding against the abuser, no application for PO is made within seven (7) days;

  3. (c) Upon the protected person being informed in writing by the police that a criminal proceeding relating to the commission of an offence involving domestic violence will be instituted against the abuser and upon the determination of an application for PO by the Court, the application for PO is made within seven (7) days.

The Court shall forward a copy of the IPOwithin twenty-four (24) hours, where practicable, to the police officer in charge of the district where the abuser resides or any other police officer under his/her command. The police are then to file proof of service of said copy within seven (7) days of service.


PO – Section 5 of the DVA


A PO is issued by the Court in an application involving a complaint of domestic violence pursuant to Section 5(1) of the DVA. It prohibits the abuser or any person incited by the abuser from committing domestic violence against the protected person.

As mentioned above, the application for a PO may be made within seven (7) days after the protected person is informed inwriting by the police that criminal proceedings will be instituted against the abuser. It can also be made at any time during the criminal proceedings pursuant to Section 13(1) of the DVA.

The application can be made by the victim, the victim’s counsel, a social welfare officer on behalf of the victim; or a police officer on behalf of the victim pursuant Section 13A of the DVA. Similar to an IPO, an application for a PO can also be made in any district where the victim resides, the abuser resides, the alleged violence occurred, or the vict im is temporarily placed and shall be heard by the Court as soon as practicable pursuant to Section 14 of the DVA.

A PO is valid for twelve (12) months from the date of its issuance. Similar to an IPO, the Court shall forward a copy of the PO within twenty- four (24) hours, where practicable, to the police officer in charge of the district where the abuser resides or any other police officer under his/her command. The police are then to file proof of service of said copy within seven (7) days of service.


Orders in PO and / or IPO



Under an IPO and/or PO, the Court may order the exclusion of the abuser from a shared residence; the prohibition of the abuser from the protected person’s place of residence, employment, school, or any other institution; the prohibition of approaching within fifty (50) meters of the protected person; or the prohibition of any personal contact with the protected person amongst others.

The Court may also attach a power of arrest with the IPO and/or PO if the abuser is likely to cause actual physical injury to the protected person. For a PO application, the Court may also order the abuser to be referred to a rehabilitation programme.


Consequence of breaching EPO, IPO and/or PO



If the abuser breaches either the EPO, IPO and/or PO, he/she shall be guilty of an offence and shall, on conviction, face a fine not exceeding RM2,000.00 or six (6) months imprisonment or both.

If violence was used when the abuser breached either the EPO, IPO and/or PO, he/she shall, on conviction, face a fine not exceeding RM4,000.00 or one (1) year imprisonment or both.

If second or subsequent breaches are carried out by the abuser, he/she shall face a fine not exceeding RM5,000 and imprisonment for a term not exceeding two (2) years.


Conclusion



As citizens of Malaysia and conscious human beings, we should inform the police or any enforcement officer if we believe that an offence involving domestic violence is being or has been committed. Furthermore, under Section 18 of the Domestic Violence Act 1994, we will be protected from any liability for defamation if such information was given in good faith.

Enforcement officers are also reminded of their duties, under Section 19 of the Domestic Violence Act 1994, to assist victims in filing an IPO application; providing transportation for the victim to a safe place and/or hospital; explaining the rights of the victims to protection against domestic violence; and accompanying the victims for the collection of personal belongings.

In the current MCO context, applications for EPO(s) ought to be issued accessibly and easily by the Social Welfare officer. Applications for IPOs should be heard accessibly and swiftly during this MCO period despite the reduction in the Court’s operations.

The Government is applauded for the public short message service (SMS) sent to Malaysian handphone users during the MCO period requesting victims of domestic violence to lodge a complaint to the police or via a SMS to its ‘Talian Kasih’ Hotline (a 24-hour hotline) at 15999. The Government is further urged to frequent such efforts by other forms of publicity.

Lastly, some organizations like the WAO, the All Women’s Action Society (“AWAM”) and Sisters in Islam (“SIS”) can be reached for help. For WAO, they have a 24-hour phone (call 03-7956 3488) and WhatsApp message (type TINA - 018-9888058) hotline. A legal officer will be on standby for assistance.

For AWAM, they have an email (telenita@awam.org.my). Counsellors will also be able to provide Zoom and Skype calls.

For SIS, they have an 8:00 a.m. to 10:00 p.m. weekday phone (011- 23701006) hotline. A legal officer will be on standby for assistance. They also have an email (telenisa.sis@gmail.com).

For immediate emergency, dial 999 for the police.






Citation



1 T Arumugam, “MCO-Linked Domestic Violence Rises: New Straits Times” (NST Online, 4 April 2020) accessed 29 April 2020

2 “Implement Emergency Response to Domestic Violence amid Covid-19 Crisis” (The Star Online, 12 April 2020) https://www.thestar.com.my/opinion/letters/2020/04/13/implement- emergency-response-to-domestic-violence-amid-covid-19-crisis accessed 29 April 2020

3 A Guterres, “Make the Prevention and Redress of Violence against Women a Key Part of National Response Plans for COVID-19” (United Nations) https://www.un.org/en/un- coronavirus-communications-team/make-prevention-and-redress-violence-against-women- key-part accessed 29 April 2020

4 Malaysia, House of Representatives’ Hansard, Second and Third Reading, 24 July 2017, 27 (Dato’ Sri Hajah Rohani binti Abdul Karim)

5 Ibid 36 (Sim Chee Keong)