©The
Sun (Used by permission)
by Sonya Liew
THE DNA Bill has drawn opposition from numerous quarters while the government is adamant to proceed to the Third Reading of the same in Parliament.
Let us look at the arguments against the Bill. These are:
» Not enough facts and figures and no consultation
Facts and figures to justify the need for a DNA data bank were not provided by the government when proposing the Bill. There was also no consultation with the relevant stakeholders.
» DNA evidence should be corroborative and not conclusive
The Bill, in addition to providing for DNA evidence as conclusive, denies the accused the right to adduce expert evidence in his/her defence to question the veracity and authenticity of the DNA evidence. Also, the judiciary is robbed of the chance to weigh all evidence before delivering a decision. This ultimately hands over prosecution and conviction powers to the police.
» Bill encourages biased perception towards the police
The police should not manage and maintain the DNA databank to avoid being seen as biased. Such a perception may arise as the police would be the investigatory body, and in most cases before the subordinate courts, a police officer would also be the prosecuting officer. With the aid of the conclusive evidence clause, the accuser may be seen to take the place of the judge to decide the fate of the accused.
» The independence of the DNA databank from politics will frequently be questioned
The independence of the DNA databank will frequently be questioned as the home minister, being a member of the cabinet, is given full authority over the databank. The head of the databank is also subject to his authority.
» There are no safeguards against the invasion of personal privacy
Malaysia does not have a Data Protection Act and the right of privacy is not enshrined in our Federal Constitution. Therefore, we do not enjoy privacy rights in Malaysia. Having a DNA databank against such a backdrop, would only exacerbate the situation, encouraging the non–respect of personal privacy and encouraging the start of a police state.
» Mechanism and technology used to collect, store and test DNA evidence has not been thoroughly researched
The government has not conducted a public consultation exercise on the mechanism and technology used to collect, store and test DNA evidence. The Bill does not provide for any safeguards against negligence, inadequate or inferior technology. Neither does it provide for negligence in the administration of the databank. Such absence of safeguards coupled with the conclusive evidence clause may result in wrongful convictions and miscarriages of justice.
» The classes of persons from whom samples may be taken are too wide
The police may obtain non–intimate DNA samples from persons who have served prison sentences. Having profiles and samples in the DNA databank would magnify the stigma of having spent time in prison, thereby affecting the chances of these people rebuilding and resuming a normal life.
Also, there is no strong reason to collect DNA samples from drug dependants and detainees in general. This is especially so where DNA evidence may not be the best evidence for certain offences, wherein other types of evidence such as urine tests, CCTV recordings and photographs would be more appropriate (eg, traffic offences).
» No guarantees that DNA samples and profiles would be destroyed
The destruction of DNA samples are left to the discretion of the head of the DNA databank. There is also no guarantee that all DNA profiles would be destroyed. There is no assurance that the DNA samples and profiles would not be replicated or cloned. There are no express safeguards against these in the Bill.
» No safeguards and working mechanisms for the export of DNA samples
The Bill is silent on the forwarding, maintaining and storing of Malaysian DNA samples in foreign countries. There is no stopping the wrongful use of DNA samples by foreign governments and organisations. Transparency in regard to this is not provided for by the Bill.
All of the above issues raised should be weighed with the government’s recommendations for the implementation of the proposed DNA databank via the current Bill. As it is with all law–making exercises, certain principles albeit for the good of the public, may be in conflict. Another article would visit such conflicts and unveil unnecessary myths to shed light on the truth of the matter, ie whether or not the Bill in its current form, should be made law.
Sonya Liew is a member of the Human Rights Committee, Bar Council Malaysia. For details, see www.malaysianbar.org.my/hrc. The views expressed in this article are personal to the writer and may not necessarily represent the position of the Bar. Complaints of rights violations may be forwarded to [email protected] for the consideration of the committee. However, we make no assurance that all cases will be adopted for action.