Focus on Rights

Putting an end to the 'enjoyment' of domestic violence
Previously, the general rationale underlying domestic violence acts around the world and the factual context pertaining to the enactment of such an act in Sri Lanka was examined in this column. In the second and conclusive part of this analysis, it specifically looks at the draft Domestic Violence Act that is pending before Parliament.

The draft law provides for stipulated persons to make an application to the Magistrate's Court for the issuance of a protection order to prevent an act of domestic violence. An aggrieved person, (defined as a person in respect of whom an act of domestic violence has been or is likely to be committed) can make an application as can a parent or a guardian, a person with whom the child resides or a person authorised on that behalf by the National Child Protection Authority on behalf of a child. Thirdly, a police officer could intervene on behalf of an aggrieved person.

While other domestic violence acts permit a wider base of intervention in court, such as by bona fide public interest groups, it is notable that the Sri Lankan draft does not go so far. The exception where a police officer can intervene on behalf of an aggrieved person has, of course, limited value, in a context where the manner in which the police trivialise or dismiss complaints of domestic violence lodged in police stations is well documented. In that regard, the limited ambit of that clause is somewhat disappointing.

Clause 22 of the draft, (the interpretation section), defines a wide category of persons as a 'relevant person', including the spouse, the ex-spouse and, (in a welcome advance), the co-habiting partner of an aggrieved person. It also includes the parents, grandparents, step parents and persons tied by consequent blood relationships not only to the aggrieved person but also to a spouse, former spouse or co-habiting partner.

The interpretation clause further defines domestic violence as an act which constitutes an offence as specified in schedule one of the draft which includes all offences in Chapter XVI of the Penal Code, (re offences affecting the human body), extortion (section 372), criminal intimidation (section 483) and attempts to commit any of these offences.

Importantly, the act of domestic violence is also defined to cover emotional abuse which in turn means a pattern of cruel, inhuman, degrading or (in an addition to the definition in Article 11 of the Constitution), humiliating conduct. It is further specified that such conduct must be of a serious nature directed towards an aggrieved person.

The backbone of the draft act is its extremely laudatory provisions empowering the court to grant interim orders and protection orders. An interim order is issued where the court is satisfied, on the circumstances of the case and on the evidence given on oath by an aggrieved person or any other person on the latter's behalf or by a material party that such an order is necessary to prevent any act of domestic violence. The order shall prohibit the respondent from committing or causing the commission of any act of domestic violence.

Further conditions could be stipulated by court (see clause 11 of the draft), detailing of which is not possible in this instance due to space constraints. An interim order remains in force until a Protection Order is issued by court or until the interim order is itself vacated. The draft states that once an application is made, the respondent must be noticed and an inquiry held within fourteen days. After inquiry, the court may issue a Protection Order if it is so satisfied.

A Protection Order (valid for a period not exceeding twelve months) may be issued substantially on the same basis as an interim order. In addition, the court may provide for the immediate health and welfare of the aggrieved person including police protection, mandatory counselling, monitoring the observance of the protection order and the directing of emergency monetary assistance by the respondent and where there is default, payment to be made directly to the aggrieved person by the former's employee.

Any person who does not obey the conditions of an interim order or a Protection Order is guilty of an offence and is liable upon summary trial before a magistrate, to a fine of ten thousand rupees and/or to imprisonment of either description for a term not exceeding one year. A right of appeal is provided from the Magistrate's Court to the relevant High Court.

It is clear that the draft bill is not necessarily radical but instead, brings into our law, elements that had long since been acknowledged in developed jurisdictions. The serious nature of the 'mischief' that it seeks to address is reflected in the worrying nation wide phenomenon of domestic abuse. Civil society and the media have a duty to ensure its considered enactment. Equally importantly, magistrates, (entrusted with primary responsibilities under the draft act), should be apprised of its current need.

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