Labour MP to table draft law banning genital mutilation

Labour backbencher Chris Fearne will soon table a private members' bill which will propose the introduction of a law banning female genital mutilation (FGM).

The bill, which will outlaw a practice, considered to be a violation of the human rights of girls and women by the United Nations, is set to be tabled in parliament after the summer recess, the MP told MaltaToday.

In all EU countries, legal provisions dealing with bodily injury, mutilation and removal of organs or body tissue, are applicable to the practice of FGM and may be used for criminal prosecution.

However, in some countries, a specific criminal law has been introduced to address the issue of FGM.

If the law is approved in parliament, Malta will join a growing list of countries which have criminalised the practice, including Austria, Belgium, Croatia, Cyprus, Denmark, Ireland, Italy, Spain, Sweden and the UK.

Fearne, who is also a paediatric surgeon, explained that he would be presenting a private members bill which is currently being drawn up with the assistance of lawyers from the Attorney General's office.

Although a private members bill is normally tabled by an MP who is not acting on behalf of the Cabinet, Fearne pointed out that he has the backing of Prime Minister Joseph Muscat and all Labour MPs.

This is not the first time that the law is being proposed. Family and Social Solidarity Minister Marie Louise Coleiro Preca first floated the idea back in 2006, when she called on the then PN government to outlaw the brutal practice, in a bid to protect migrant women who could be subjected to it.

"The draft bill will propose the criminalisation of FGM in Malta," Fearne said, adding that the law would also outlaw FGM performed on Maltese citizens and permanent residents in Malta and abroad and also criminalise the practice carried out by Maltese persons abroad.

Fearne also noted that migrants granted asylum in Malta were at a greater risk of having FGM performed on them; however he also said that there was no indication that FGM was being performed regularly in Malta.

He also explained that the authorities do not have any statistics on FGM in Malta, since medical professionals working on the island are bound by confidentiality and are not obliged by law to report cases.

"However, if the law is approved, doctors would be obliged to report cases of FGM," Fearne said, adding that medical professionals would also be obliged to report cases of persons who possibly run the risk of having FGM performed on them.

FGM in Malta and the EU

The lack of reporting, which exists across all EU countries, might be related to the insufficient knowledge of professionals confronted with FGM, their inability to deal with the issue and the absence of mechanisms to properly address FGM cases.

Human rights lawyer and Director of the Jesuit Refugee Service Malta Katrine Camilleri told MaltaToday that she never came across any adult women who had undergone FGM in Malta.

"We are not aware of it happening here. However if it does happen, then it most likely that it is performed on young children," she said.

Currently, there are no specific FGM policies in Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia and Slovenia.

In other places - including Croatia, Cyprus and Luxembourg - policies are limited.

A recently published UNHCR study, 'Female Genital Mutilation and Asylum in the European Union' (UNHCR, 2012), showed that the EU countries with the highest number of female asylum applicants originating from FGM-practising countries in 2011 were France (4,210), Italy (3,095), Sweden (2,610), the United Kingdom (2,410), Belgium (1,930), Germany (1,720) and the Netherlands (1,545) (UNHCR, 2012).

However, the proportion of female applicants from FGM-practising countries out of the total number of female applicants was the highest in Malta (more than 90%) and Italy (around 66 %).

Women from FGM-practising countries who applied for asylum in the EU came mostly from Nigeria, Somalia, Eritrea, Guinea and the Ivory Coast.

A large percentage of migrants living in Malta hail from countries like war-torn Somalia, where female circumcision is widely practised.

Sweden was the first European country to adopt specific legislation on FGM in 1982, followed by the UK in 1985. Ireland and Croatia have recently adopted specific criminal law provisions concerning FGM. 

Extraterritoriality is increasingly being recognised as central in laws banning FGM, since cases of the practice involving girls living in the EU may occur in their countries of origin, or in the countries of their parents' origin, while they are on holidays or visits abroad.

This principle makes it possible to prosecute the practice of FGM when it is committed outside of a country's borders.

The majority of EU countries have included this principle in their general criminal law, and, furthermore, all Member States with specific criminal legislation on FGM included the principle of extraterritoriality within their respective laws.

Currently, only Bulgaria, Greece, Malta and Romania do not include the principle of extraterritoriality in their general criminal laws.

Asylum applications regarding FGM are most commonly based on fear of persecution - namely, the pending threat of being subjected to FGM.

However, there are some countries which also take into account potential future circumstances linked to past persecution in the form of FGM.

Such provisions take into consideration the possibility of women who have already undergone FGM facing a continued risk of repeated de-infibulation and re-infibulation following childbirth, future forced marriage and the risk of having daughters that would be subjected to FGM.

In countries such as Belgium, France, the Netherlands and Sweden, asylum requests based on FGM have been frequently granted on the grounds of the medical risks involved in the procedure.

However, in other countries including Italy, Latvia, Lithuania, Malta, Romania and Slovakia, there were only a few cases of women being granted asylum on such grounds.

In all 28 EU Member States, with the notable exception of Bulgaria, fear of FGM could be grounds for international protection.

In these countries, the general asylum provisions do leave room for interpretation for FGM-related claims. Most countries assess applications based on future persecution.