Malaysia's DNA Identification Bill - Part 1

Introduction
Malaysia intends to pass a DNA Identification Law. This law is being presented to Parliament in August 29, 2008. On a closer examination we find that the Bill has several flaws. These are discussed below. The Bill creates a DNA Databank which is under the purview of the Royal Malaysia Police. The officer in charge of the DNA Databank has to be an officer not below the rank of Deputy Commissioner of Police.

What does the Bill provide?
The Bill provides the following:

1. The establishment of a DNA databank to be known as the Forensic DNA Databank (see clause 3). Its purpose is to keep and maintain the 7 indices for the “purpose of human identification in relation to forensic investigation” (see clause 4(1)); Its function is to store DNA profiles obtained from analysis done by the Chemistry Dept, the Forensic Lab of the PDRM, or any agency or body “designated by the Minister from time to time”;

2. The databank is under the management, control and supervision of the Head of DNA Databank (see clause 3(2));

3. There are 7 indices that are kept or created by the DNA Databank, namely: a crime scene index; a suspected persons index; a convicted offenders index; a detainee index; a drug dependant index; a missing persons index; a voluntary index;

4. The Bill classifies samples into intimate or non-intimate. Intimate samples are samples of blood, semen, tissue, bodily fluid, urine, public hair, swab taken from person’s genitals or any orifice (other than the mouth); Non-intimate samples are hair (excluding public hair), nails, things under the nail, swab from any part of a person’s body (except swabs that would be within the ambit of an intimate sample) or saliva;

5. The taking of samples is to be in accordance with the procedures as set out in the Bill and as per procedures to be established. (clauses 12 and 13) - Intimate samples can only be taken if 2 conditions are satisfied, namely (a) an authorised officer so authorises and (b) appropriate consent is given by the person.
However this consent is not required if the authorised officer has reasonable grounds to suspect that the person has committed an offence and that the sample will either confirm or disprove the commission of the offence by that person. It should be noted that non-intimate samples can be taken so long the authorised officer gives his authorisation which can be given if the officer reasonably suspects that the person has committed an offence and the sample will help confirm or disprove the person’s involvement in the crime.

6. A refusal to give a non-intimate sample is an offence and if found guilty liable to a fine of RM10,000 or jail of 1 year or both (clause 14);

7. Removal from register - only DNA profile on the suspected person’s index can be removed if (i) investigations show he/she not involved (clause 18(a)); charges withdrawn (clause 18(b)), discharged by the court (clause 19(c)), he is acquitted (clause 18(d); or he is not charged for an offence within 1 year from the date of taking the sample (clause 18(e)). The removal is by the Head of the DNA Databank only after being notified by the OCPD of the fact of (a) to (e), and then he has 6 months to remove;

8. There is no removal from the following indices: a crime scene index; a convicted offenders index; a detainee index; a drug dependant index; a missing persons index; a voluntary index;

9. The people involved in the DNA databank are immune from legal proceedings (i.e. cannot be sued) [Clause 25] in respect of any negligence, default, omission if done in good faith;

10. The information provided by the DNA Databank is conclusive evidence of the DNA identification and a court must accept it (clause 24).

Similar provisions in other countries.
I have reviewed the legislation in Canada, Australia and Trinidad & Tobago, and this is what I have found as a comparison with the proposed sections in the Malaysian Bill, since the Home Affairs Minister Syed Hamid said our Bill is identical with other countries statute.
Suffice to say that these countries laws differ from the Malaysian law in the following manner:

1. The countries examined had greater number of sections than Malaysia - Australia (123 sections), Trinidad (59 sections). this is indicative of the seriousness those countries place on what the DNA identification Act covers.
2. We have adopted the Australian model, as they too have 7 indices, so in comparison with Australia - the intimate sample cannot be taken after conviction and with consent, unlike in Malaysia where no such consent is needed.
3. Removal is upon court orders unlike Malaysia where the OCPD must inform the Head of the DNA Databank and then there is 6 months.
4. None of the countries' I examined provided that the information from the DNA profile is conclusive evidence, in Malaysia we did.

So we have really departed from these other countries, and the oh-so-intelligent Home Minister has said that we have adopted provisions in other countries when in truth we have not. So he should explain, which he would probably blame the Attorney-General's Chambers for wrongly drafting the Bill.

Issues that the Bill does not address are:

1. How are children and young persons to be treated - the same as adults? Shouldn't consent be obtained from their parents?

2. What about incapacitated persons - should not consent be obtained from their guardians as opposed to themselves since they are in no position to be able to give consent (even in making contracts)?

3. What has happened to the presumption of innocence? Since the Bill seeks to provide that DNA profile (hence identity) is conclusively proven without any right to challenge, in effect the fundamental presumption of the criminal justice system is that a person is innocent until proven guilty has been turned upside down. Such a fundamental change is not even explained by the Minister.

4. The comparative analysis shows that other Commonwealth countries do not make such a change, and in fact do not provide for such conclusive evidence requirements. This is to preserve the rights of the innocent and the accused.

5. The person who can do the DNA analysis is "any chemist" or "any science officer" without any reference to his or her qualifications. So long as the person is a chemist or science officer who works for the Government suffices. This again is evidence of a lack of thought on the part of the proponents of the Bill.

6. Why is there a need to take intimate samples without consent? Why not all samples with consent?


The MPs debating this Bill should raise these questions; and avoid the political point - that the Bill is politically motivated.

Now I also raise the point that since the Sin Chew newspaper reporter Ms. Tan who was detained under s73(1) ISA she could have her intimate sample taken and her profile kept forever on the detainee index; even after her release 16 hours later.
Is this right? Especially when her detention was clearly illegal.

We need to stop this government from further eroding the rights of people to fair trials, justice and truth. A morally bankrupt government has no right to govern the people. We must protest this Law as it is the start of something insidious to come, ripe with ability to abuse, and a tool for evil.