8 June 2016
Further Material Bearing on General Deterrence
As mentioned in R v A2; R v Magennis; R v Vaziri (No. 23) at , “Mumbai is the principal centre for the world-wide Dawoodi Bohra community and the place of residence for its religious leader, the 53rd Dai al-Mutlaq, Syedna Mufaddal Saifuddin”.
The evidence at the trial and on sentence indicated the hierarchical structure of the Dawoodi Bohra religion, with the 53rd Dai al-Mutlaq occupying a position at the apex of the religious organisation. Although the Dawoodi Bohra communities in many cities throughout the world have Trusts or other management structures which have local application, the paramount role of the 53rd Dai al-Mutlaq is apparent.
Many of the edicts issued by local Dawoodi Bohra Trusts make express reference to the 53rd Dai at-Mutlaq. By way of example, the edict dated 5 March 2016 issued by Anjuman-e-Saifee (New Zealand), a Trust administering and managing the affairs of the Dawoodi Bohra Jamaat of New Zealand, recited the following in the body of the edict (part of Exhibit 11):
“It is a well-known hadith of the Prophet, Mohammed RasulullahSAW that ‘Hubbul watan minal imaan’, which means ‘love for the land of abode is part of faith.’ The Duat MutlaqeenRA have therefore taught us to remain loyal to our country of abode and to be law abiding and contributory citizens. Today, the 53rd Dai al-Mutlaq, Syedna Mufaddal SaifuddinTUS continues to exhort us to employ the same principles.”
I expressed my conclusion earlier (at -) that the Court may receive evidence at this point of the proceedings concerning general deterrence, which bears upon the exercise of sentencing discretion at the third stage. Accordingly, I admitted the Crown’s additional material into evidence (Exhibit B), together with a further bundle of edicts tendered for the Offenders (Exhibit 12).
In practical terms, it is understandable that the Crown sought to tender this material which relates to that which was tendered for the Offenders in February and March 2016. The material tendered by the Crown relates to ongoing events in the Dawoodi Bohra community concerning the approach to “khatna” and the role of the edicts which had issued.
The additional material upon which the Crown relies includes a transcript of part of a sermon delivered by the 53rd Dai al-Mutlaq in Mumbai on 25 April 2016, together with media reports of this sermon, and aspects of it which have given rise to controversy concerning the continuation or cessation of the practice of “khatna” in the Dawoodi Bohra community.
The translation of the sermon of 25 April 2016 relied upon by the Crown has been carried out by Siddique Panwala, a translator and interpreter who gave evidence at the trial. Mr Panwala impressed as a careful and thorough witness in the area of translation and interpreting. According to Mr Panwala, in the course of the sermon, the 53rd Dai al-Mutlaq said (part Exhibit :
“126 If men, it must do.
128 It is (Elahi-riqht). You understand?
129 For women it is (Makfi-discreet).
131 It must be done/act,
133 You understand what I am trying to say?
135 Understand properly? (Audience heard to say 'Yes' in response (all in unison)
138 For men it is (Elahi-right). For women it is (makfi-discreet).
140 But action must be done.
142 Whatever others say, but no.
144 We have our (Sharia) rules, our Dai.
146 Prophet has instructed.”
This part of the sermon is somewhat cryptic. However, a clearer understanding of what was said in the sermon may be found in an article published on 29 April 2016 in “The Times of India”, under the headline “Bohra cleric urges female genital mutilation?”. I observe that earlier Indian media articles concerning the edicts had formed part of the defence evidence on sentence (Exhibit : R v A2; R v Magennis; R v Vaziri (No. 23) at -. In my view, publicity concerning later events on the topic has continuing relevance to the issue of general deterrence in this case.
It appears that a substantial proportion of the audience, and of those who have heard the recording of the sermon, have understood what was being said by the 53rd Dai al-Mutlaq to be comments in support of the practice of “khatna”. The 29 April 2016 article states (part Exhibit B):
“Efforts may be on to end the practice of female genital mutilation that young girls in the Dawoodi Bohra community are made to undergo in India but their spiritual leader may not be convinced yet as he went on to publicly encourage the act of khatna (female circumcision) albeit indirectly, in his recent sermon at the Saifee Mosque in Bhendi Bazaar.
A four-minute audio clip from Syedna Muffadal Saifuddin’s bayaan (speech) on the occasion of the 51st Syedna Taher Saifuddin's death anniversary, has gone viral over a mobile messaging app and generated conversations within the community on how the Syedna’s endorsement may urge close followers of the spiritual head to continue with the painful practice.
The clip begins with a plea from the Syedna speaking in a mix of Gujarati and Urdu. ‘We should keep our things strong, stay firm. Even the big sovereign states, whatever it is they say, if it makes any difference to our things, then we are not prepared to understand!' he says and then adds: ‘The act has to happen! If it is a man, then it is right, it can be openly done, but if it is a woman then it must be done discreetly, but then the act has to be done. Please understand what I am trying to talk about …’.
A Mumbai resident present at the Hussaini Mosque where the sermon was being beamed live on a giant screen confirmed that the clip was what he had heard being broadcast. ‘The Syedna was reading from a script which is usually the routine on such an occasion but all of a sudden he went off and started talking in a cryptic fashion. It was confusing at first. Then we gradually realized that he was talking about female circumcision when he used words like amal (act), mamlakat (states) and that the act must be carried out discreetly for women and openly for men. It was very disturbing for me and my wife,’ he told TOI. A close friend of the Syedna family dismissed such an interpretation of the Syedna’s speech when TOI called him. ‘It was a general comment. Nothing specific. People are interpreting it differently’ he said alleging that, ‘Those close to the new claimant to the Syedna title are trying to target our revered Syedna (Mutfadal Saifuddin).’
A 36-year old Bohra woman who has lived through the horrors of khatna and currently settled in the US expressed her anguish having heard the clip. ‘Just a month ago many of us in the US received a letter from the jamaat (local community unit) that works under the Syedna’s guidelines. It said that we must follow the law of the land and not practice khatna. I was thrilled, at peace with my faith. What l just heard reflects hypocrisy. I’m disillusioned and worried’.”
A further article published in “The Times of India” on 30 April 2016, under the headline “Clarify on circumcision, Bohras appeal to Syedna”, included the following (part Exhibit B):
“Reacting to the audio clip that has been going around in which the Dawoodi Bohra spiritual head Syedna Mufaddal Saifuddin made indirect references to the act of khatna (female circumcision) and urged people to continue with the act, groups of Bohra women who have been rallying to end the practice of female circumcision issued a statement on Friday asking the Syedna to publicly clarify his stance.
‘Several concerned community members wrote to Sahiyo to tell us that they had attended the wa’az and were shocked by the Syedna’s statements. … Hundreds of Bohras have interpreted his speech as a reference to khatna and circulated the audio clip widely. If the leadership believes that all of these people misinterpreted the speech, then we urge the Syedna to publicly clarify and make his stance on khatna clear,’ read the statement by Sahiyo, a group that has made it their mission to empower Dawoodi Bohra and other Asian communities to end female genital mutilation (FGM). 'Speak Out on FGM’, another group of Bohra women who have endured FGM and launched a petition to end female female [sic] circumcision and so far garnered more than 49,000 signatures issued another statement that said: ‘This is a clear reference to FGM/khatna, even though the word was not used. He further dismisses and decides all opposition and tells Bohras it is their religious duty to practise it.’
Insia Dariwala, co-founder of Sahiyo told TOI: ‘The community was eagerly awaiting a word on the subject directly from the Syedna, however, the audio clip has further confused the jamaat people because of the contradictory statements made. After the jamaat resolutions were passed in other countries, we thought India wasn’t far behind but the Syedna's comments are a setback, it makes our work a little more difficult since the clergy is revered and his words taken as words from God.’
Over the last one year, attempts have been made to drum up support against female female [sic] circumcision but the Syedna's remarks offer a blow to those rooting for the anti-khatna campaign given the duality of the Syedna’s stance.”
An article published online by Reuters on 29 April 2016, under the headline “Muslim leader in India under fire from activists for supporting FGM”, included the following (part Exhibit B):
“The leader of the only South Asian Muslim community known to practise female genital mutilation (FGM) came under criticism on Friday by campaigers [sic] who accused him of urging followers to continue the centuries-old custom.
Little is known about FGM in India, where it is carried out in great secrecy by the close-knit Dawoodi Bohra community, a Shi’ite Muslim sect thought to number over 1 million that considers the practice to be a religious obligation.
An audio clip of Syedna Muffadal Saiffudin’s speech at a mosque in Mumbai, has been authenticated by several members of the community. According to a transcript, he said: ‘The act must be done. It needs to be done discreetly when it is a woman, but it needs to be done.’
Calls and e-mails to a spokesman for the Syedna and the leader’s administrative office received no response.
‘The speech is a huge disappointment for us,’ said Masooma Ranalvi, who was cut as a seven-year old and leads an online petition as part of the ‘Speak Out on FGM’ campaign, which has drawn almost 50,000 signatories, including Mia Farrow, who tweeted her support on Thursday.
‘Ever since we began the campaign, there has been only silence from the clergy. But now that it’s out in the open, at least there’s no ambiguity about where we stand,’ she told the Thomson Reuters Foundation.
A person described as a close friend of the Syedna family told the Times of India newspaper that the remarks were a ‘general comment’ and that people were ‘interpreting it differently’.
Although it is not mentioned in the Koran, the Bohras consider ‘khatna’ - the removal of part of the clitoris - to be part of their religious duty, and debate on the subject has long been taboo.
But the practice among Indian Dawoodi Bohras hit the headlines in November when a court in Australia found two members of the diaspora community guilty of cutting two girls. A Bohra religious leader was convicted of being an accessory.
Since then, more than a dozen Bohra communities in Europe and the United States have passed resolutions against the practice.
‘Why should girls in some parts of the world be spared from circumcision, while girls in other countries continue to be cut?’ the non-profit group Sahiyo, which aims to end FGM in India, posted on its website on Friday.
‘The strongest form of opposition to khatna is now coming from within the community.’
Campaigners will now focus on petitioning the government while still working with the community, said Ranalvi.
‘There is hypocrisy in the clergy’s stance, so the government is the most important route open to us now,’ she said. ‘We need them to step in to protect our girls’.”
In a further article published on 7 May 2016 in “The Times of India”, under a headline “Rival Syedna denounces female genital mutilation, kindles hope”, reference was made to a statement by Taher Fakhruddin, a claimant to the position of 54th Dai al-Mutlaq. The article recites this cleric’s position as being against the performance of “khatna” on children, but in favour of the maintenance of the practice once girls reach legal adulthood. The article includes the following (part Exhibit B):
“The rival Syedna's office stated that he was forced to take a public stand after several women from the community brought to his notice the trauma young girls undergo when circumcision is carried out in an ‘irregular and improper fashion’. Taher Fakhruddin is a claimant to the position of 54th Dai al-Mutlaq of the Dawoodi Bohras.
Recently an audio clip of the 53rd Dai al-Mutlaq or the current Syedna Mufaddal Saifuddin's sermon at the Saifee Masjid where he made indirect references to the act of 'khatna' and urged people to continue with the act was heavily circulated and discussed within the community. Syedna Saifuddin's sources, however, remained unavailable for comment.
In his statement, the rival Syedna says, ‘In view of the trauma that many girls undergo when this procedure is carried out, and in keeping with the law of the land, khafz (khatna) of girls should only be allowed after they attain legal adulthood, after which they are free to make their individual decision whether to do the medically, legally and religiously sanctioned CDH or CHR procedures (analogous to khafz).’
He also claims that CDH (clitoral de-hooding) or CHR (clitoral hood reduction) are procedures that are ‘in line with the faith tradition which says that if the procedure is done, it should not be done when the girl is a minor.’
Clinically, clitoral de-hooding is a minor genital surgical procedure to remove excess prepuce tissue or reduce the skin overhanging the clitoris to heighten sexual experience. This theory contradicts that offered by those favouring FGM who describe it as a means to curb sexual desire.
‘The Syedna was concerned because this issue is affecting the community, the children and people's faith in tradition. He wanted to put things in perspective in order to protect the girl child and maintain the sanctity of the faith, both while keeping in mind the law of the land,’ explained Abdeali Qutbuddin, brother of Syedna Taher Fakhruddin.”
Accordingly, there appears to be controversy arising from the sermon of the 53rd Dai al-Mutlaq on 25 April 2016 (which is said to support the practice of “khatna”), the view of the rival claimant to the position of 54th Dai al-Mutlaq (which favours the practice of “khatna” in adult women) and the broad movement throughout the Dawoodi Bohra community which seeks to end the practice of “khatna” upon girls or women of any age.
The position is further complicated by the fact that recent edicts issued in different cities in May 2016 invoke the sermon of the 53rd Dai al-Mutlaq on 25 April 2016. The edict issued by the Anjuman-e-Burhani (Toronto) on 14 May 2016 included the following (part Exhibit 12):
“1. ‘Hubbul watan minal imaan’ is a well-known hadith of the Prophet, Mohammed RasulullahSAW which means ‘love for the land of abode is part of faith’. Duat MutlaqeenRA have accordingly taught us to remain loyal to the country of abode and to be law abiding and contributory citizens.
2. Today, the 53rd Dai al-Mutlaq, Syedna Mufaddal SaifuddinTUS continues to exhort us to the same principles, and did so in very clear terms most recently in the zikra majlis in Mumbai on 19 Rajab al-Asab 1437H (25 April 2016).”
The edict issued by the Anjuman-e-Burhani (Seattle) on 9 May 2016 was expressed in different terms and included the following (part Exhibit 12):
“It is a well-known hadith of the Prophet, Mohammed RasulullahSAW that ‘Hubbul watan minal imaan’, which means ‘love for the land of abode is part of faith.’ This has been quoted by Duat Mutlaqeen (RA) as also the 53rd Dai-ul-Mutlaq, Syedna Mufaddal Saifuddin (TUS), and they have often reminded us to remain loyal to our country of abode and be law abiding and contributory citizens. This principle remains valid and unchanged despite press reports to the contrary following the Zikra majlis on 19 Rajab al-Asab 1437H (25 April 2016).”
The reference to “press reports” in this passage may be taken to be references to the articles reproduced at - above.
I have kept in mind that the edicts which have issued apply in jurisdictions where the criminal law prohibits FGM, and thus the practice of “khatna”. The Court was informed that the practice of FGM (including “khatna”) is not expressly prohibited by the criminal law in India.
At the resumed hearing yesterday, senior counsel for the Offender Vaziri read an affidavit sworn on 8 June 2016 of Dr Mustafa Ebrahim Abdulhussein (Exhibit 14). Dr Abdulhussein was cross-examined on his affidavit. Dr Abdulhussein, who resides in the United Kingdom, has been closely involved in the issue of the edicts in Dawoodi Bohra communities since February 2016. He is authorised by the Dawat-e-Hadiyah (the Administration of the 53rd Dai al-Mutlaq) to speak on behalf of the Dawoodi Bohra religion pertaining to issues arising from the present criminal proceedings.
Dr Abdulhussein’s evidence indicates that:
“khatna” is a religious rite for both men and women in the Dawoodi Bohra community and has been practised since the time of the Prophet Mohammed 1,400 years ago;
the Dawoodi Bohra faith is also bound to recognise the teaching of the Prophet Mohammed that “love for the land of abode is part of the faith” so that Dawoodi Bohras are to adhere to and strictly abide by the law of the land in which they live;
until the conviction of the Offenders in this case, it was not the view of the Dawoodi Bohra faith that “khatna” was illegal - it is now accepted following these verdicts that it is illegal;
after the verdicts, discussions took place as to how the religion should respond, and it was resolved that the way to address “the position of the law versus the religious requirements” was to consider the teaching of the Prophet Mohammed (referred to at (b) above);
in consequence of meetings with Shahzada (the Head of the Administration of the 53rd Dai al-Mutlaq), Dr Abdulhussein drafted the form of resolution (or edict) that was subsequently presented to the various local Trusts around the world, including Sydney and Melbourne - these have since issued, with most of them being in evidence in these sentencing proceedings;
a resolution (or edict) has been passed in every jurisdiction where it has been requested to do so;
he was present in Mumbai at the sermon by the 53rd Dai al-Mutlaq on 25 April 2016 - it was a three-hour sermon made to a closed audience of seminary students and other members of the community who were physically present (about 2,000 people) - it was not intended to be broadcast to the world as a general message;
“Particular words used in the sermon have been construed in the media to suggest that the 53rd Dai al-Mutlaq was promoting the practice of khatna even where it was illegal”, however, “the media did not report that before the reference to the practice of khatna, his Holiness also specified adherence to the principles of the teaching of the Prophet Mohammed of love for the land of abode and to be law-abiding” - in evidence, Dr Abdulhussein agreed that the 53rd Dai al-Mutlaq had referred to the practice of “khatna”, and that his reference to compliance with the law of the land was made elsewhere in the sermon;
following 25 April 2016, additional words had been inserted in resolutions (edicts) along the lines of the closing sentence contained in the Seattle edict referred to at  above;
the intention of the additional words was to confirm that the resolution (edict) “which had been made in jurisdictions where the practice of khatna is illegal was still to be obeyed under threat of secular legal sanction and that the faith will not support those who engage in the practice of khatna”;
following further discussions with Shahzada since 3 June 2016, it was decided that a press release should be sent out to clarify the strength of the resolutions (edicts) and this was done on 6 June 2016;
the press release has been publicised in the Indian media on 6 June 2016;
there “are no plans, and cannot be, to dissolve the resolution, water it down or lessen its strength in any way, so long as the law of the land forbids the practice of khatna”.
Similar articles referring to the press release were published electronically in “The Times of India”, “India Today” and “Business Standard” on 6 June 2016. The article in “The Times of India” under a headline “Female circumcision: Syedna favours respecting local laws” stated:
“The Dawoodi Bohra community here today clarified that its top authority had asked the community bodies across the world to respect the laws of the respective country with regard to the controversial practise of female circumcision.
In many parts of the world, the Anjumans the administrative bodies of the Dawoodi Bohra Jamaats, have directed their ‘congregations’ not to undertake ‘khafz’ (female circumcision) if it is banned under the laws of the country, the community said in a statement.
‘These resolutions (by Anjumans) reflect the repeated directions of Syedna Mufaddal Saifuddin (the top spiritual leader of the community) to respect the law of the land and live as worthy and contributory citizens within prevailing laws,’ it said.
Syedna Saifuddin and his predecessors have always guided the community towards upholding the Islamic values and obligations, and have always emphasised the need for abiding by the laws of the countries in which one resides, it said.
'It is clarified that contrary to the media reports following the sermon of Syedna Mufaddai Saifuddin on April 25, 2016, these resolutions of the Anjumans (asking to abide by the law of the land) have not been nullified and continue to be valid, the statement said.
Some media reports had stated that Syedna Saifuddin had in a recent sermon at the Saifee Mosque here indirectly endorsed the female circumcision, a tradition opposed by reformists within the community and the women’s organisation.”
In referring the Offender Vaziri for home detention assessment, I considered it to be relevant that he was an accessory after the fact to the principal offences of the Offenders A2 and Magennis, and that those persons were being referred for such an assessment (see  above). The question whether home detention should actually be ordered in his case requires a closer examination of his offences, and of other factors bearing upon sentence in his case.
It is not a principle of law that an accessory to an offence must always receive a lesser (or less onerous) sentence to that imposed upon the principal offender or offenders. Nor does sentencing an accessory more severely than a principal necessarily create a justifiable sense of grievance: R v Ho  NSWCCA 379; 133 A Crim R 340 at 350 .
I have kept in mind the different offences for which the Offender A2 and the Offender Magennis (on the one hand) and the Offender Vaziri (on the other hand) must be punished. The gravity of the Offender Vaziri’s offences, taken with the other sentencing factors which operate against him, lead me to conclude that use of the substantially less onerous measure of home detention would be wrong in his case.
For reasons expressed earlier (at -), I consider that general deterrence is a greater factor on sentence in the case of the Offender Vaziri than of the other Offenders. The increase in the maximum penalty for s.45 offences can have a limited effect only in sentencing an accessory after the fact to a s.45 offence. The maximum penalty under s.350 Crimes Act 1900 remains at five years’ imprisonment.
Further, I accept that a strong message should be sent to male Dawoodi Bohra religious leaders that criminal acts such as those committed by the Offender Vaziri, for the purpose of covering up the performance of “khatna” and deflecting a police investigation of FGM offences, ought be met by sentences of full-time imprisonment. The same strong message should be sent to leaders of other communities where FGM is practised that if they become liable as accessories after the fact to s.45 offences by way of covering up and deflecting police investigations, they too will be met by stern punishment.
It is the religious leaders within the Dawoodi Bohra community who should be urging their followers to discard the practice of “khatna” and to act in a manner which supports this approach. In the case of the Offender Vaziri, his actions were the opposite to this approach. His words expressed in the unsworn and untested letter of 4 February 2016 (see  above), prepared after trial, indicate a luke-warm attitude which does not support a conclusion that the Offender Vaziri himself will urge others to discard the practice of “khatna” now and in the future.
Having considered the objective and subjective factors relating to the Offender Vaziri’s offences and applicable sentencing principles, I am not satisfied that the term of imprisonment which I have fixed, if served by way of home detention, is appropriate. It would not reflect the criminality of the conduct in the circumstances of the case and having regard to all relevant considerations.
I am satisfied that the appropriate order, in the case of the Offender Vaziri, is that the sentence of imprisonment be served by way of full-time imprisonment.