Self flagellations, a religious practice or child cruelty, a critical analysis by Amjad Malik

Message of Imam Hussain, the grandson of last Prophet of Islam of sacrifice is greater in spirit and is held very dear by billions of Muslims across the globe and the message is remembered zealously during the first month of Islamic calendar Muharram. The Ashura ceremony takes place during this month to commemorate the courage & sacrifice of Hussain, a central figure of the Shia faith and his disciples in many Muslim countries adopt various means to express their grief which include holding processions, reading and listening to the tragic events as they unfolded during that month in the battlefield of "˜Karbala', chest beatings as well as self flagellation. In order to express extreme solidarity a small percentage use five bladed whip attached to a chain and a wooden handle to carry out the matam called "˜Zanjeer Zani'. Islamic history narrates that Hussain, stood up to the tyranny of, Yazid, 14 centuries ago in order to make a principled point of justice in order to save his grandpa's religion and humanity from oppression. During the siege at karbala (Iraq) of first 10 days of the first month of Islamic calendar, Hussain's camp suffered all kinds of trials, tribulations and hardships. In the end, Hussain was beheaded and his body was mutilated. The few survivors including women were humiliatingly and were made to march on foot to the Yazidi Palace in Damascus, where they were imprisoned: many of them died. It is believed that spectators along the route, realising what had happened to the first family of the prophet of Islam, began to beat themselves and started weeping. This mourning process is regarded the beginning of  the self-flagellation rituals that we see today amongst devout Shia Muslims. The practice has been on going for centuries. 

In January 2008 during Ashura,  a devout Shia Muslim first flogged himself and later considering it part of his religion allowed two under 16 boys to use the bladed whip to flog themselves until their backs bled during a shia religious ceremony. He was charged upon a complaint of the mother and statements of the boys that they were forced and he was later convicted by a Jury upon a trial at Manchester Crown Court on two counts of Child cruelty in August 2008. He will be sentenced this September. This is a land mark case carrying serious repercussions on religious practices of a Muslim minority and critics view this prosecution as a tip of the iceberg and consider this policy decision will trigger more cases in future. This incident has initiated a debate where self flagellation as a religious ritual is up against the child protection laws.

First of all we see what the law says, S. 1 of the Children and Young Persons Act 1933 makes it a criminal offence if any person has attained the age of 16 and has responsibility for any child or young person under that age, wilfully assaults, ill treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill treated, neglected, abandoned, or expose, in a manner likely to cause him unnecessarily suffering or injury to health, that person shall be guilty of an offence and if found guilty the accused shall be liable on conviction on indictment, to a fine or imprisonment for any term not acceding ten years or on summary conviction, to a fine or alternatively imprisonment for any term not exceeding six months. Now in order to have a healthy debate we look at the international organ which protects any religious practice. Article 9 of the European Convention on Human Rights which is part of UK law under Human Rights Act 1998 says, "1) everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance." There can be only restrictions on such rights which are necessary in a democratic society, in the interest of public safety or for the public order".

Many argue that religious practice which is ongoing for centuries is protected by such law and despite having many complaints, there has never been a policy decision by CPS to prosecute in the past and if allowed this policy decision here, it will open a Pandora's box leading to many such prosecutions which will be detrimental to all other religious practices, cultural traditions and customs which are held dear by millions. It is also believed that minors may participate in such ritual wilfully in defiance to make a principle point to safe guard such ancient religious practice. However, on the other hand law of the land which is quite clear to "˜look after the best interest of the child' is in conflict with the said religious practice as far as under 16 are concerned and a clear understanding, guidance and code is required in order to bridge the gap to ensure child safety whilst protecting  the said religious practice in order to avoid future prosecutions.

The issue of self flagellation is not disputed in adults, however the conflict arises where children under 16 use self flagellation as a religious right. There is a risk of harm and law prohibits an adults to cause or expose the child to harm and whether this religious  practice is covered by such law is arguable and superior court's ruling will be vital in settling the narration of policy . More work is needed to identify and correct the code of conduct where the issue of self flagellation in particular under 16 and teenagers arise which needs to be addressed by the community. The limit of such self flagellation in teen ager who are wilful participants is not very clear either, is it within reasonable limits or up to an individual's capacity and the law is impractical on self harm too. Looking at Iran's supreme Islamic Jurist, Grand Ayatollah Khameni in response to a question on the subject said: "Any practice that causes bodily harm, or leads to defaming the faith, is haram" hence whilst self-flagellation itself is permissible, it is only permissible within reasonable limits. Whether it is on individual's capacity or up to excluding the risk if death is quite an arguable.

Many say that in order to protect the workings of the Shia missions children under 16 in UK are not allowed to self flagellate, but are allowed to watch, though the guidance is not clearer. Some Shias claim that people at the age of 7 participate in such practice in Pakistan, Iran and Iraq, and many travel to their countries of origin to mourn the month of Moharram, however in UK & Europe this practice varies from area to area in respect of children. I strongly believe that if this prosecution goes ahead unchallenged, then the option of taking under 16 abroad for religious practice may not remain safer and free of prosecution either as UK citizens will be protected by the local law here and abroad as was the case in "˜forced marriages'. 

There are many other practices that fall into the same category, like the Jewish circumcision ritual where a 8 days old boy is circumcised without anaesthetic injection, teen age pregnancies, abortions, prescription of morning afternoon pill to under 16 girls,  cosmetic surgery, physical chastisement, and contact sports which could all be life threatening in UK and go scot free without prosecution. There are children under the age of ten, who do boxing, kick boxing, karate, tae kwon do and judo"“ should their coaches be prosecuted if physical harm comes their way? And what about  rugby, football, ballet and horse riding? They have all lead to more serious injuries of minors in the UK than self flagellation. There is still nail crossing in a few countries of Europe in memory of the sacrifice of Jesus Christ. If other religious practices go unchallenged by the executive, then prosecution of Muslim minority may arguably be discriminatory under Article 14 of European Convention of Human Rights. 

Whilst the writer agrees that Muslim community must act together to safeguard their interest together as this prosecution has far reaching repercussions on other Muslim festivities such as circumcision, fasting, performing Haj, arranged marriages and participation in religious ceremonies and processions which often involve children under 16. At the same time, it is felt necessary that before next Ashura a code of conduct is agreed in consultation with Police and Crown Prosecution Service to avoid unnecessary restrictions in religious observance. Self flagellation must not be declared a child cruelty if a teenager wilfully participate considering his faith and religious duty, however, there is no question that force must not be used in self flagellation and it must remain a decision of an individual of an age under the law. Clearly local law of the land is in conflict with the religious practice and elders need to bridge the gap with collective wisdom, mutual understanding and clarifying the religious teachings towards this ritual. It is also praiseworthy that community has expressed desire to promote alternate methods in youngsters such as donating blood and spreading the message of Hussain of sacrifice, peace, tolerance and forbearance which is important than practice for young minds.

Amjad Malik is a Solicitor-Advocate of the Supreme Court of England & Wales