Guest post by Barrister Ameer Abbas Ali Khan
Readers from the UK form the second biggest group of this blog outside Pakistan. This Monday, UK introduced the Anti-social Behaviour, Crime and Policing Act 2014 making it a criminal offence to force someone to marry with a punishment of up to 7 years in prison.
Our guest blogger Barrister Ameer Abbas Ali Khan looks at the law, what it means for Pakistani immigrants living in the UK or what could be long-term effects on the UK population mix. Let us have your views on this.
While in Pakistan, we are trying our heads around the Council of Islamic Ideology (CII) ruling that children of any age can get married if they attain puberty, the UK has introduced the Anti-social Behaviour, Crime and Policing Act 2014, which came into force in England & Wales on 16 June 2014, making it a criminal offence to force someone to marry with a punishment of up to 7 years in prison.
Although there was no specific criminal offence of “forcing someone to marry” within England and Wales prior to this new legislation, the victims of forced marriages were still able to get some protection from other sources of law relating to threatening behavior, assault, kidnap, abduction, theft (of passport), threats to kill, imprisonment, murder and rape. According to UK law, sexual intercourse without consent is a rape regardless of whether or not it occurs within a marriage.
There was also a civil remedy available through Forced (Civil Protection) Act 2007 which enabled courts to make Forced Marriage Protection Orders (FMPO) to prevent or pre-empt forced marriages from occurring and to protect those who have already been forced into marriage.
But what this new legislation of Anti-social Behaviour, Crime and Policing Act 2014 has done, in essence, is making forced marriage a criminal offence thereby making it easier for authorities to take action and prosecute perpetrators of such crime. This in turn would lead to increased protection of the victims of forced marriages.
Furthermore, this new Act has also made breaching of FMPO a criminal offence that carries a maximum penalty of 5 years in prison.
There is a difference between forced marriage and arranged marriage, and law does recognize such a distinction. It accepts that in arranged marriage the families of both spouses play an active role in arranging the marriage but the choice of accepting such an arrangement remains with the prospective spouses.
It is only when someone is forced to marry against their will or coerced into it by physical, psychological, financial, sexual or emotional pressure, including taking them overseas for marrying irrespective of whether or not the forced marriage takes place, or marrying someone who lacks the mental capacity to consent to the marriage whether they are pressured or not, that the law will get into action.
This law will be applicable both to people who are forced into marriage in England and Wales and to the UK nationals or habitual residents of UK at risk of being forced into marriage abroad.
The main reason for the introduction of this new legislation is that the UK recognizes that forced marriage is an abuse of human rights forcing people to become domestic slaves by day and sexual slaves by night.
According to the UK Home Office statistics, the total number of possible forced marriage cases in 2012 and 2013 was 1,485 and 1,302 respectively. It is hoped that with the introduction of this new legislation, such practices would be curbed and greater protection would be available to the victims who are mostly young women and girls aged between 13 and 30.
The crucial point to note is that such legislation would only be effective when the potential victims come forward. This possibility cannot be ruled out that families within which the practices of forced marriage take place, in most of the cases, would have so much psychological or other influence over their children that they may not wish to come forward or to give evidence against their parents and seeing them being prosecuted.
Furthermore, this legislation would be more effective in the UK as those people who are coerced into marriage abroad and are forced to stay there would have to look at other avenues or the respective jurisdictions before being in a position to benefit from this new legislation.
Whatever the challenges may be in implementing this new legislation, it would definitely deter people from forcing others to marry against their will and therefore many people will be saved from living a slavery life.
There is another dimension of analyzing the effect of this new legislation as well.
It appears from the statistics of 2013 provided by the Home Office that majority of people involved in forced marriages are from Muslim countries.
The countries included Pakistan (42.7%), India (10.9%), Bangladesh (9.8%), Afghanistan (2.8%), Somalia (2.5%), Iraq (1.5%), Nigeria (1.1%), Saudi Arabia (1.1%), Yemen (1%), Iran (0.8%), Tunisia (0.8%), The Gambia (0.7%), Egypt (0.6%) and Morocco (0.4%).
The forced marriages mainly take place in conservative or illiterate families, with higher number of children per family. Therefore, it is possible that forced marriages could lead to increase in population. As these marriages mainly occur among Muslims, therefore, there’s a fear that Muslim population in the UK might increase in greater proportion as compared to others.
Such increase of Muslim population, most of whom are so-called conservative Muslims, may escalate the threat of Islamisation felt by the UK as is evident from the Culture Secretary Sajid Javid’s recent statement that there was no place for Sharia law in the British law.
Therefore, if such assessment were true then this new piece of legislation would not only protect the potential victims but would also help UK in controlling the Muslim population to a greater extent.
It is also important to note that in 2013, 42.7% of the forced marriage cases were from Pakistan. And why so? Because of the belief that by doing so they would protect the children, build stronger families and preserve cultural or religious traditions.
If so, do we really believe that such beliefs are in accordance with Islam and no consent for marriage is a prerequisite of Islam? Or a child is old enough to make an informed decision about the rest of his/ her life? Or, bearing in mind the Council of Islamic Ideology ruling that minors can have nikah which has to be executed by the guardian – rukhsti after the age of puberty, is it fair for the parents/ guardian to make a decision for the other person? Or, what if that person, when attains maturity, only accept that decision under protest and if so then what sort of role should we expect from such a family union? Or, what if he or she doesn’t accept such a decision at all?
An Abdalian and Aitchisonian, Barrister Ameer Abbas Ali Khan, is a Solicitor-Advocate (UK), Advocte High Court. He has LLB (Hons) UK, LLM (LSE), Bar-at-Law from Lincoln Inn, and lives in London. His father has been an MP in Pakistan over several decades.