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Female Genital Mutilation Unconstitutional: Michigan Judge

The AHA Foundation, however will work with Congress to try to pass a new federal law to ban the procedure nationwide.

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FILE - A T-shirt warns against female genital mutilation. Its wearer attends an event, discouraging harmful practices such as FGM, at a girls high school in Imbirikani, Kenya, April 21, 2016.Image source: VOA
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Women’s rights advocates said they were shocked when a federal judge in Michigan ruled this week that a law protecting girls from genital mutilation was unconstitutional. They called his decision a serious blow to girls’ rights. Legal experts said the judge made clear that U.S. states have authority to ban the practice, though only about half do.

Here is a look at the ruling, which dismissed several charges against a doctor accused of cutting nine girls in three states as part of a religious custom, and what could happen next.

The ruling, simplified

Dr. Jumana Nagarwala was among eight people charged in federal court in Michigan in connection with the genital mutilation of nine girls from Michigan, Minnesota and Illinois between 2015 and 2017. Authorities alleged that mothers brought their girls to Nagarwala when they were roughly 7 years old for the procedure.

Female Genital Mutilation, FGM, judge
A badge reads “The power of labor against FGM” is seen on a volunteer during a conference on International Day of Zero Tolerance for Female Genital Mutilation (FGM) in Cairo, Egypt, Feb. 6, 2018. (VOA)

Nagarwala has denied any crime was committed and said she performed a religious custom on girls from her Muslim sect, the India-based Dawoodi Bohra.

On Tuesday, U.S. District Judge Bernard Friedman threw out mutilation and conspiracy charges against all the defendants. He ruled that a 1996 federal law that bans female genital mutilation was unconstitutional because Congress didn’t have the power to regulate the behavior in the first place.

Heidi Kitrosser, a law professor at the University of Minnesota, explained that Congress doesn’t have unlimited authority to legislate and can only make laws that fall within powers explicitly outlined in the Constitution.

In this case, Friedman found that Congress lacked authority to regulate the practice under the Commerce Clause because the procedure is not a commercial activity. He also said Congress’ treaty powers don’t give it authority, because there was no rational relationship between treaty obligations that call for equal rights and a law banning genital mutilation.

Female Genital Mutilation, FGM, judge
Students arrive at the start of a social event advocating against harmful practices such as female genital mutilation at the Imbirikani Girls High School in Imbirikani, Kenya. VOA

But the judge clearly stated that the power to regulate female genital mutilation lies with state governments, which have primary authority in defining and enforcing criminal law.

“The court really could not have been clearer in suggesting this is something that states can do,’’ Kitrosser said.

Human rights fears

The AHA Foundation works to protect women from genital mutilation, honor violence and forced marriages. The group said the ruling was outrageous and set a precedent that cutting girls’ genitals was not a concern at the national level.

While 27 states have laws against female genital mutilation, including Minnesota and Illinois, the 23 states that don’t could become destinations for the procedure, said Amanda Parker, the foundation’s senior director. Michigan lawmakers banned the procedure after Nagarwala’s arrest.

“This is exactly how we got here. The defendants in this case had the victims shipped from Minnesota to Michigan, and the only way of holding them accountable for FGM was the federal statute,” Parker said in a statement. She said the court ruling “sends the message that the authorities are not serious about protecting girls, especially those in immigrant communities, from this form of abuse.”

Female Genital Mutilation, FGM, judgeq
KAMELI, KENYA – AUGUST 12: A Masaai villager displays the traditional blade used to circumcise young girls August 12, 2007 in Kameli, Kenya. Maasai are a pastoral group mostly clustered in the Rift Valley. They practice circumcision on both boys and girls during puberty years as a rite of passage to adulthood.

Friedman said in his ruling that states without laws specifically banning female genital mutilation can still prosecute the practice under laws that criminalize sexual battery and abuse.

“No state offers refuge to those who harm children,” he wrote.

But those abuse laws often don’t take the specific issues surrounding female genital mutilation into account, said George Zarubin, AHA’s executive director.

“This is such an underground, secretive, barbaric practice,’’ Zarubin said. “I think the judge made a major mistake.”

Is this common?

Genital mutilation, also known as female circumcision or cutting, has been condemned by the United Nations. The World Health Organization says there is no health benefit to the procedure, and it can cause numerous health problems. The practice is common in parts of Asia, Africa and the Middle East and is generally performed as a way of controlling a girl’s sexuality.

Female Genital Mutilation, FGM, judge
Amran Mahamood used to circumcise young girls in Hargeysa, Somalia, but stopped after a religious leader convinced her the rite was not required by Islamic law. VOA

It’s difficult to gauge how often genital cutting occurs in the U.S. because the practice is largely underground. A 2012 study from the U.S. Centers of Disease Control and Prevention estimated that more than 513,000 girls in the U.S. had been subjected to or were at risk of undergoing genital cutting.

What’s next?

Federal prosecutors have the option of appealing Friedman’s ruling, but it’s unclear if they will. The U.S. Attorney’s Office has not returned messages from The Associated Press this week seeking comment.

Molly Blythe, an attorney for Nagarwala, said Friedman’s decision was warranted under the law and it is “exactly what our justice system is designed to do.”

Female Genital Mutilation, FGM, judge
FILE – A counselor holds up cards used to educate women about female genital mutilation (FGM). VOA

Although the bulk of the case is now dismissed, Nagarwala and three others still face federal obstruction charges, and Nagarwala faces an additional count of conspiracy to travel with intent to engage in illicit sexual conduct.

Also Read: Teens Still At Risk But FGM Rates Goes Down in Africa: Research

Blythe said Nagarwala will continue to fight the remaining charges.

If Friedman’s decision stands, the AHA Foundation will work with Congress to try to pass a new federal law to ban the procedure nationwide, Zarubin said. The foundation will also continue work to ban the practice in all 50 states.

“I think a lot of us in the community that are working to try to ban female genital mutilation in this country are beside ourselves” with this decision, he said. (VOA)

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Pakistan Reacts Sharply To U.S. Religious Freedom Charges

China, Eritrea, Iran, Myanmar, North Korea, Sudan, Saudi Arabia, Tajikistan and Turkmenistan are also included in the U.S. list of countries accused

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Pakistan
A Pakistani nun holds a candle during a vigil for victims of a deadly suicide bombing in a park, March 28, 2016, in Lahore. VOA

Pakistan is denouncing a U.S. decision to place it on a list of countries Washington says are the worst offenders of religious freedom.

“Pakistan does not need counsel by any individual country how to protect the rights of its minorities… there are serious questions on the credentials and impartiality of the self proclaimed jury involved in this unwarranted exercise,” the Foreign Ministry said Wednesday in a strongly-worded statement.

The reaction comes a day after Secretary of State Mike Pompeo announced his designation of “countries of particular concern” that allegedly have engaged in or tolerated ”systematic, ongoing, and egregious violations of religious freedom.”

Freedom Violations

The countries on the blacklist are exposed to punitive sanctions, but Pompeo waived them for Pakistan, citing U.S. national interests.

Pakistan had until now been on a U.S. watch list for governments that have “engaged in or tolerated” severe violations of religious freedom.

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Pakistani volunteers collect debris from an Ahmadi mosque demolished by an angry mob, in the eastern city of Sialkot. VOA

While rebuking Tuesday’s U.S. pronouncement as “unilateral and politically motivated,” the Pakistani Foreign Ministry noted Pakistan is “a multi-religious and pluralistic society” of more than 200 million people, mostly Muslims.

“Around four percent of our total population comprises citizens belonging to Christian, Hindu, Buddhists and Sikh faiths. Ensuring equal treatment of minorities and their enjoyment of human rights without any discrimination is the cardinal principle of the Constitution of Pakistan,” it said.

Ahmadis most persecuted community

The statement did not mention the Ahmadi sect, which critics say is the most persecuted minority in Pakistan. The constitution bars the community from “posing as Muslims” and from calling their worship places “mosques.”

U.S. Ambassador at Large for International Religious Freedom Sam Brownback while defending downgrading of Pakistan reiterated Tuesday the challenges facing the Ahmadi community.

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Ambassador-at-Large for International Religious Freedom Sam Brownback, speaks to reporters at the State Department in Washington. VOA

“The Pakistani government criminalizes the identification of Ahmadis as Muslims, and then also — and this one has really been difficult and troubling for a lot of people — the government often fails to hold accountable perpetrators of killings and violence against members of religious minorities targeted on account of their religious beliefs or affiliations,” said Brownback.

Blasphemy laws

He cited, among other things, Pakistan’s blasphemy laws as a cause for the downgrade of the country’s religious freedom ranking. The laws prescribe the death penalty for those found guilty.

Rights groups have long complained Islamist groups misuse the law to intimidate minorities in the country.

Insulting Islam or its prophet is an extremely sensitive issue in Pakistan where mere allegations have led to mob lynchings. A former provincial governor, a federal minister, judges and lawyers are among those assassinated in Pakistan by extremists merely for calling for reform of the blasphemy laws to prevent their misuse or for hearing cases and defending alleged blasphemers.

Asia Bibi

In a historic judgement this past October, Pakistan’s Supreme Court acquitted a Christian woman, Asia Bibi, who had been on death row for eight years after being convicted of insulting the Prophet Mohammad. The women denied the charges from the outset as an outcome of a local feud and the country’s highest court cited lack of evidence in overturning her conviction by a lower court.

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Radical Islamists rally to condemn a Supreme Court decision that acquitted Asia Bibi, a Christian woman, who spent eight years on death row accused of blasphemy, in Karachi, Pakistan. VOA

Bibi and her family have been in hiding since her release. Her lawyer fled Pakistan shortly after the landmark court ruling announced on October 31, saying his life was in danger.

Bibi is awaiting a rehearing of her case by the Supreme Court and is residing in a safe place under government protection, say Pakistani officials.

Pakistan also arrested hundreds of Islamist activists and their leaders last month for staging days of mass violent protests to denounce the court for freeing Bibi.

Also Read: Muslims in Malaysia Rally In Kuala Lumpur To Keep Status

The government has charged the detainees with treason and terrorism and officials have vowed to put them on trial in special courts.

“It’s our hope that they will, the new leadership in Pakistan, will work to improve the situation. There was some encouraging signs seen recently on how they’ve handled some of the recent protesting against the blasphemy laws, and we continue to watch very carefully what’s happening to Asia Bibi,” said Brownback.

China, Eritrea, Iran, Myanmar, North Korea, Sudan, Saudi Arabia, Tajikistan and Turkmenistan are also included in the U.S. list of countries accused of committing severe violations of religious freedom. (VOA)