Khitan or female genital mutilation (FGM) is still practiced in Malaysia. Traditionally, FGM is performed by a mak bidan—a traditional, though medically unqualified, midwife. The procedure involves cutting the genitals using rudimentary tools, often bought over the counter. Now, the practice is mostly medicalised with doctors performing the procedure to minimise the immediate health risks faced by the child as opposed to the family having it done elsewhere. A preventive medicine study puts the percentage of Muslim women in Malaysia who have undergone some form of circumcision to be as high as 93%.

FGM, according to the World Health Organization (WHO), has four distinct categories. Malaysia is reported to practice two types—the most prevalent being Type I(a), which involves a midwife or medical professional removing the clitoral hood, and then Type IV, which is an umbrella term for all other harmful procedures done to the genitalia for non-medical purposes, including pricking, piercing, incising and cauterization of the area.

The practice is legally permitted in the country, with a 2009 fatwa or edict [in Malay] issued by the National Fatwa Council declaring it mandatory for Muslim girls. By definition, the fatwa functions as guidance on the proper practices within Islam, however, due to the dual judicial system of Malaysia, which incorporates Islamic law and secular state law, the fatwa is as binding as state law. It is binding once adopted and published by the individual states as part of their legislation on the administration of Islamic discourse, making the fatwa a prominent piece of legislation. Constitutionally, a fatwa is under state jurisdiction, with each state free to administer its own interpretation of the fatwa.

The legislation has led to Malaysia gaining notoriety in the international community after repeated calls from international associations to ban the practice globally. Malaysia acceded to the Convention on the Elimination of All Forms of Discriminations Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), both of which include several legal prohibitions against the practice, namely article 5(a) in CEDAW and article 24(3) in CRC. Whilst not explicitly mentioned, FGM falls under the definition of “cultural patterns of conduct that aid in discrimination” that article 5(a) largely sets out to prohibit. Article 24 of the CRC also sets a requirement for state parties to take appropriate measures to abolish “traditional practices” that are prejudicial towards the health of a child. Additionally, party to the International Conference on Population and Development (ICPD) and signatory to the Beijing Declaration, Malaysia has been urged to prohibit FGM and to eliminate such practices.

Malaysia, in withdrawing its reservation towards article 5(a) back in 2018, has an obligation towards observing the measures that are set out, as mentioned above. As such, in response towards the legalisation of the practice and non-compliance with international provisions, the CEDAW Committee in their 2018 concluding observations on the 3rd and 5th periodic review of Malaysia reminded the state that any form of FGM or female circumcision cannot be justified on a basis of religion and all forms of female genital cutting constitute a harmful practice towards the bodies of the girls in question, whether or not the practice is performed within the confines of a medical institution. The Committee further stressed that the provisions of a country’s internal laws cannot be used to justify failure to abide by its convention obligations. In 2018, the Committee stated that women’s rights in Malaysia had regressed due to the continuous legal practice of FGM within the country.

There are good arguments in the dominant narrative of those who insist on a blanket ban of FGM. One is that the practice is misogynistic and is a reflection of the deep-rooted gender inequality within a society. Another is that medical procedures with no health benefits are highly unethical, especially when performed on children who, by definition, cannot consent. Despite the harms, though, research has found that FGM is not practiced with malicious intent. In Malaysia's predominantly Islamic culture, it is seen as a necessary rite of passage. Where a girl is uncut, she runs the risk of ostracization.

Although not mentioned in the Koran, many Muslims regard the practice as part of their faith and also believe the practice is hygienic. While facing intense criticism by other Muslim countries during the CEDAW Committee’s 2018 review of Malaysia as a state party, the Malaysian delegate insisted that the practice is obligatory under the Shafi’i Islamic School of Thought (to which most Malaysians subscribe), unless it is harmful to the female. However the definition of “harm” within the practice of Type IV FGM has been a topic of wide discourse and clear definitional scope is not always available, even in light of international guidelines. One of the main justifications that the practice is not harmful is that the type of FGM practiced in the country is mainly Type IV, which the National Fatwa Council argue constitutes the least amount of harm towards the female, given it is the least invasive type, involving a needle prick to the clitoral hood. This is not a new argument. There has always been some support that milder forms of FGM should be tolerated (if not legalised), in order to prevent more harm towards the girl, or because it is the “least” harmful of all the procedures. The CEDAW committee has strongly disagreed, proposing that even the mildest, “symbolic” form of FGM is a form of gender violence and when done to a child, a form of child abuse. 

Given the cultural and religious traditions incorporating FGM, progress to eliminate the practice has been slow. Despite Malaysia’s active participation in joint human rights ventures, the country remains a strong defender of its perceived cultural heritage, indicated by its refusal to comply fully with conventions when they contradict cultural interests.

One concern is that given its wide acceptance and prevalence in Malaysia, criminalizing FGM may drive the practice underground, resulting in riskier procedures being done by untrained persons and leading to serious health issues later in life. This happened in Senegal, where the blanket ban of FGM led to one southern village reportedly circumcising 120 girls en masse in sheer defiance of the law. The UN’s population agency disagrees, however, arguing that medicalizing the procedure will lead to a false sense of security. Medicalization runs the serious risk of legitimizing the procedure as medically sound and safe for the girls, aiding in institutionalizing it.

Currently, the regulation of FGM in Malaysia is at an impasse. Pressure from the international community is mounting for the practice to be banned. However, the fatwa by the National Fatwa Council can be interpreted as an attempt to maintain cultural practices in the face of globalization, an effort that enjoys domestic support. Eliminating a practice that stems from deeply rooted social norms is no easy task. It is not enough simply to criminalize a tradition to end its practice. There must be coordinated efforts to engage all communities to change deeply held beliefs.

Joyce is currently a 2nd-year student at the University of Manchester, pursuing an LLB. She is keenly invested in the documentation of Human Rights issues, with a specific interest in the rule of law, constitutional law, and transitional justice.

Linkedin