|
 ©The
Sunday Star (Used by permission)
by Joseph Loh and Rashvinjeet S. Bedi
Despite the controversy surrounding the newly-tabled DNA Bill, all are in
agreement that the country needs legislation covering the use of DNA
identification in law enforcement.
COMING at a time when the media is awash with politically-related issues, the
Deoxyribonucleic Acid (DNA) Identification Bill 2008 (DNA Bill) tabled during
the last Parliamentary meeting remains a hot topic of conversation amongst Malaysians.
With rumblings of political motives behind its expedited tabling, Opposition MPs
staged a mass walkout from the Dewan Rakyat after the Government refused to
refer it to a select committee to study its clauses and on the implication of
the powers it gives the authorities.
Prime Minister Datuk Seri Abdullah Ahmad Badawi had said that the tabling of the
Bill happened to coincide with ongoing investigations into the sodomy charge
against Pakatan Rakyat leader Datuk Seri Anwar Ibrahim and that it should not be
politicised.
Notwithstanding claims of political motives, controversy surrounds the clauses
in the DNA Bill. Doubts have been expressed even within the ruling coalition.
Datuk Anifah Aman, MP for Kimanis, who broke ranks and asked his peers not to
blindly support the Bill went as far as to declare “it would be meaningless for
Parliament to accept its current version”.
Need for DNA database
One fact, which nobody denies, is that the country is in need of legislation
covering the use of DNA identification in law enforcement.
Says Malaysian Bar Council Human Rights Committee chairman Edmund Bon:
“If you ask me, I say that in principle, yes. A DNA databank will be very useful
for purposes of law enforcement and exoneration of suspects.”
However, Bon adds that if the databank were to be set up in the form as proposed
by the Bill, he would rather not have it.
Former Bukit Aman crime scene investigation (CSI) unit head Supt Amidon Anan
supports the Bill and believes that it should be implemented as soon as possible
as it would help police solve more cases and at a faster rate.
Amidon explains that many cases have been hampered when there were no leads,
adding that the use of DNA evidence would have helped.
“There have been suspects who have refused to give their DNA and this made it
difficult for us to make any comparisons,” he says.
N. Hithaya Jeevan, the Director-General of the Department of Chemistry, Malaysia
(which does DNA profiling work for the police) recalls a visit in 2005 by Sir
Alec Jeffreys, the person responsible for developing techniques for DNA
fingerprinting and DNA profiling used in law enforcement today.
“Sir Alec said that our facilities were up-to-date and were of international
standard – all that was lacking was a Crime DNA databank.”
The utility of a DNA database in law enforcement is not in doubt. A study by the
American Bureau of Justice in 2006 revealed that 56% of the violent felons
convicted in the nation's 75 most populous counties from 1990 through 2002 had a
prior conviction record; 38% had a prior felony conviction and 15% had been
previously convicted for a violent felony
According to the UK’s Home Office, 45,000 crimes were matched against records on
the DNA Database; including 422 homicides and 645 rapes in 2005 and 2006.
England’s DNA database is the largest of any country – 5.2% of the population is
on it compared with only 0.5% in the United States.
Jeevan says compared to other countries in the region, Malaysia is lagging in
this regard. Singapore, Hong Kong and New Zealand have it.
However, Malaysia is not new to the use of DNA evidence. The rape and brutal
murders of Canny Ong and Noor Suzaily Mukhtar, for example, were solved with the
help of DNA.
A toothpick found inside an abandoned Nissan X-Trail 4WD used in a RM2mil heist
at Universiti Malaya two years ago helped to identify the suspect Tham Mao Hsiun,
a member of the notorious Deva gang.
Additionally, DNA evidence helps exonerate suspects who were not guilty of a
crime. Jeevan gives the example of many suspects who were cleared of wrongdoing
in the rape-cum-murder of schoolgirl Audrey Melissa Patinathan in 1999.
He adds that a DNA databank is a useful tool for criminal investigations, and
legislation is required to authorise police, especially in collecting samples
from convicted offenders and suspects.
Additionally, he says: “It can greatly speed up investigations. If there are no
leads, you are able to quickly match the offender's DNA profile – provided his
profile is in the databank.
“Of course, once the suspect is nabbed following a ‘hit’ in the databank, the
match would have to be re-confirmed by taking a fresh reference sample from the
suspect.”
He also informs that unsolved cases remain.
“If profiles are loaded into the databank, it may be possible to link people
involved in other crimes and solve these cases.”
As it stands, the Chemistry Department does have a record of all DNA profiling
it has done for the police since 1994. A total of 14,552 profiles exist today.
Of that number, approximately 9,000 will stand up to scrutiny in court due to
the use of improved techniques to give more accurate profiling.
Its records, however, are kept in hard copy format, with data backups in the
form of CD-ROM but not stored in an easily accessible computerised system.
He says that currently DNA profiles are only accessed from casework files for
comparison if the police submit an official written request.
“When a case is submitted, they will need to get a sample from the suspect and
we do a direct comparison on a case-by-case basis. If there is no suspect, the
case remains unsolved.”
To link other cases, he explains that the police have to specifically request
which case they believe the suspect was also involved in, and they manually go
through the files. If the Police were to ask if one case is linked to other
cases in the databank, the Department would not be able to do it unless supplied
with a specific report number.
“We do not have any computerised DNA databank, and we do not want to go into it
unless there is legislation to that effect.”
However, Jeevan qualifies that DNA evidence is merely corroborative and only one
part of the puzzle.
“DNA does not establish guilt or innocence. Ultimately it is the court that
decides,” he says.
Contentious legislation
Cameron Highlands MP K. Devamany says the intention of the Bill is right,
although it might not have come at the best time.
“If there are any flaws, we should amend them in the spirit of the law. The
issue of the Bill should not be used for political mileage by either side (of
the political divide). The Bill should not be a threat to anybody,” he says.
As Bon puts it: “We are very surprised that the Government is rushing the Bill
without proper consultation with criminal lawyers, criminologists or DNA
experts. We are concerned because (Home Minister Datuk Seri) Syed Hamid Albar
said they had been looking at it since 2001, so why rush it?”
The Human Rights Committee of the Bar Council also has objections against the
DNA Bill in its current form.
“It could have done with more consultation and more safeguards. Let's not call
it a rushed job, but it is a bad Bill and bad piece of law,” says Bon, adding
that there is legislature in other countries that Malaysia could emulate, such
as the Canadian model.
He raises the point that the Government must justify how the DNA databank will
help solve and detect more crimes.
“Our Government has not done that. I have not seen arguments saying they have
been solving more cases. They must justify by evidence of facts and figures that
its use significantly increases the rate of crime detection and conviction of
suspects,” he says, adding that in England, the authorities showed that the use
of the databank increased the rate of crime detection by between 30% and 40%.
“This (the Bill) is the only thing we have seen so far. So without justification
delivered in the public domain, the intrusive process of DNA collection and
profiling outweighs the benefits of doing the process.”
He also raises the issue of privacy, which he says is curtailed by the Bill,
giving the example of Clause 18, which deals with the removal of DNA profile
information from the databank.
“It does not mean that if you remove it from the databank, the information and
profile does not go to some other information base. There is no such guarantee
now,” he says.
Clause 11 sets out who has access to the information. On this, Bon says: “It is
not far or wide-ranging enough. You need to follow the position and must be
specific for the purpose it is to be used, and must cover all agencies.”
He adds that while Clause 21 spells out the obligation of secrecy, it only
applies to the person who receives the DNA profile
“This applies to him only, but it must apply across the board with everyone. The
fact is that a Data Protection Act must go hand in hand with this Bill. There
must be privacy protection for everyone.”
The Bill also deals with the collection of intimate (such as blood or semen) and
non-intimate samples (such as hair or buccal swabs). The distinction exists in
other countries as well, but in the DNA Bill, the police can use any means
necessary to obtain a non-intimate sample.
“This means that they can beat you up. And if you do not provide a sample, it is
an offence. This is wrong.
“The English position is if you refuse to give, when charged in court, it is an
adverse influence. The judge can question why you did not. Is it because you are
guilty? But to criminalise it is to take away your right to privacy,” Bon says.
Additionally, Bon feels that the categories from which samples can be taken from
are too arbitrary and wide.
Collection of samples
“They can take samples from anybody detained under a preventive detention (such
as the ISA) or drug rehabilitation order, even if they are not suspected of an
offence,” Bon says.
The DNA Bill is also supposed to be prospective in effect, meaning that it only
applies after it is passed. But that is not the case, Bon says, citing Clause
16.
“For people who are serving sentences now, their samples can be taken and put
into the databank. It is not fair because at the time they committed the
offence, there was no such law to compel sample taking.”
He also says that a person reasonably suspected of an offence has to give his
sample.
“There is no prescribed standard they have to take. We are saying you must show
by other evidence that the person is suspected to have committed the offence,
for example a witness. Now, anybody can make a police report saying you
committed an offence and the police can obtain a sample.”
Another issue would be the fact that the police would have complete authority
over the DNA databank, as the head and deputy of the databank would come from
the police force. A police officer and a parliamentarian from the Barisan
Nasional voiced this concern but both did not want to be named.
In Singapore, the Health Science Authority (HSA) is in charge of the country's
databank, New Zealand has the Environmental Science and Research (ESR), and
England has its Forensic Science Services (FSS).
“This is my only concern with the Bill. If the database was handled by an
independent body such as the Chemistry Department, it would lend the whole
process more credibility,” says the parliamentarian.
“Even if the police were doing a good job, there is always the perception that
they are up to no good,” says the police officer.
One of the most contentious issues is Clause 24, which makes information from
the databank conclusive.
Bon explains, “Any scientific evidence that is tendered in court (such as
ballistic testing), the lawyer for the accused can challenge it. But with this
clause, you cannot. The court cannot do anything.”
Such a clause, he says, is a first for Malaysia in criminal law. Such a
situation can arise in civil cases, as contained in credit card statements,
which makes you liable to pay the full amount if you do not challenge it within
14 days.
“In civil cases, it is only money, but here this is someone's life you are
talking about.
“Furthermore, it eats into the jurisdiction of the court because it is for the
court to decide the weight of the evidence. Basically, it says the DNA databank
can never make a mistake.”
Some parties also allege that keeping a database is against the principles of
human rights although Amidon does not agree with this.
“I don’t feel it is against human rights. In any case, the innocent do not have
anything to fear. The Bill is not for today but for the future,” says Amidon.
“It is better to have a Bill that ensures that any biological evidence extracted
from a person is in accordance to law,” he adds.
A copy of the DNA Identification Bill 2008 can be obtained online at
www.parlimen.gov.my/eng-bills.php
What is DNA?
DEOXYRIBONUCLEIC Acid, more commonly known as DNA, is the building block of the
human race found within every cell of the human body except for red blood cells.
DNA essentially contains the genetic blueprint on how the body is to grow or
function. Besides information on the colour of hair or eyes, it also contains
information of characteristics such as intelligence or temperament although this
is not fully understood by scientists yet.
The structure of DNA contains something known as 'bases'. There are four
chemical bases, namely, adenine (A), guanine (G), cytosine (C) and thymine (T).
These bases are found in twos and called base pairs (A with T, and C with G
exclusively), and the order or sequence in which they are arranged is how
genetic information is stored – just like how letters in the alphabet form words
and sentences. But in the case of DNA, the “alphabet” has only four letters.
The human DNA contains approximately three billion base tests and they are
arranged in a strand in the shape commonly known as the double helix. The DNA
double helix strand looks like a coiled ladder with the base pair forming the
rungs, and the vertical pieces of the helix consists of sugar and phosphate
molecules.
Of the three billion base pairs in the human DNA, 5% are same in most people.
However, there are more than sufficient variables in the remaining 95% (which is
about three million bases) to uniquely identify a person – just imagine a word
three million characters long.
“Your DNA is the same whether it comes from your hair, semen, blood or tissue –
there is no difference,” explains Primulapathi Jaya Krishnan, Forensic Division
Director from the Department of Chemistry, Malaysia.
He says that it may not be possible to obtain a good DNA sample from a single
strand of hair, but something like a buccal (cheek) swab is a very good source
for DNA.
Technology has also come a long way since the Department of Chemistry first
started doing DNA profiling in 1994. Back then, the department used a method
called RFLP (restriction fragment length polymorphism) analysis and compared
just nine genetic sites or markers.
Today it uses STR (short tandem repeats) analysis and looks at 16 markers.
“Your DNA is yours and yours alone, unless you have an identical twin. Right now
we are looking at 16 markers, which have a high power of discrimination,” says
Primulapathi. – JOSEPH LOH
 |
Committees 
Subscribe to this comment's feed
Circular No 109/2012: Be a Part of the Bar Council Constitutional Law Committee
