1. |
Introduction | |
1.1. |
The Deoxyribonucleic Acid (DNA)
Identification Bill (the ‘Bill’) provides for, inter alia, the establishment
and governance of a Deoxyribonucleic Acid Databank (‘DNA Databank’) in
Malaysia. The Government had justified the tabling of this Bill so as to
exonerate the innocent and to secure convictions. |
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1.2. | Two salient points have to be considered in detail by the Government. The first is whether there is really a need for Malaysia to have a DNA Databank. The second is whether the Bill in its current form, should be passed as law in Malaysia. Thus far, the government had not consulted any stakeholder in regard to the Bill. It had also not conducted any detailed research in relation to the technology to be adopted for the analysis of DNA samples and comparisons of foreign models to be adopted in Malaysia for the governance of the DNA Databank. | |
1.3. | The Bill was met with numerous
criticisms in and out of Parliament. No doubt, such criticisms cannot be
ignored. We are of the view that the Bill should be withdrawn. A detailed
study should be conducted to ascertain whether Malaysia should be setting up
a DNA Databank when in effect DNA evidence is currently being used in the
Malaysian courts. Furthermore, the Bill in its current form is flawed and if
passed as law, would result in numerous miscarriages of justice in Malaysia.
The following are comments in relation to the flaws of the Bill. |
2. | Comments | ||
2.1. | General | ||
2.1.1. | The thrust of the law is the identification of offenders and exoneration of suspected offenders. As such, DNA data must be cleared once they are no longer necessary for the purposes for which they are collected and used i.e. deleted once a person has been cleared of suspicion or if charged, acquitted. However, if a person is convicted of “serious offences against life, liberty or security”, his/her DNA sample and profile may be stored in the DNA Databank for future references. The offences for the application of this principle should be strictly limited according to Data Protection Principles and privacy norms. | ||
2.1.2. | The positive utility derived from a DNA database is acknowledged but it needs to be administered within strict boundaries, and with adequate safeguards and supervision. Given this, it cannot be done without mainstreaming human rights norms into the DNA legislation. The right to privacy and bodily integrity, and to be free from arbitrary interference against a person’s body is engaged. This right is not absolute, and legislation aimed at the suppression of criminal offences and protection of the rights of third parties is permitted. | ||
2.1.3. | Before such legislation is passed, it is incumbent on the Government to justify by evidence of facts and figures that the use of the DNA Databank will significantly increase the rate of crime detection and/or conviction of suspects (as stated in clause 27 of the Bill). Without such justification delivered in the public domain, the intrusive process of DNA collection and profiling outweighs the benefit derived from such a process. As the Government has already been using DNA in crime detection and criminal prosecutions, the information as to the percentage of crimes solved or persons convicted with the assistance of DNA profiles is not difficult to obtain. | ||
2.2. | DNA evidence must be corroborative and not conclusive of guilt | ||
2.2.1. | DNA evidence, due to the current state of the involved technology of harvesting, analysis and maintenance should only be purely corroborative, and cannot by itself be conclusive of the guilt of the person. This is because the DNA evidence should not be used as the primary source of evidence against the accused, but merely confirmatory of other evidence already discovered pointing to the guilt of the accused. It must be noted that DNA evidence has, in some countries, led to unsafe and wrongful convictions which were later overturned. | ||
2.2.2. | In addition to the prohibition of corroboration as provided by the “conclusive evidence” clause 24, this clause also ousts the jurisdiction of the courts to weigh the evidence. Weight of the evidence which will be presented before the courts is always a question for the courts. The conclusive evidence clause fetters the judicial process, and unfairly limits the right of the accused to question the credibility of the DNA profiling. Further, information from DNA Databanks have been known to be erroneous, and mistakes are made. | ||
2.3. | Lack of public confidence in law enforcement authorities | ||
2.3.1. | The Bill comes at a time when public confidence in our law enforcement authorities, i.e. the police and the Anti Corruption Agency, is low. The IPCMC in the form it was recommended by the Royal Commission has not been implemented, and the new independent anti–corruption commission has not been established. The prosecution agency, the AGs Chambers, has come under severe attack for being in some instances, inefficient and in others, selective in its prosecutions. | ||
2.3.2. | The proposed method of solely relying on the authority of the police to obtain the sample is dangerous. Precedents and litany of abuses and complaints under a similar detention authorisation process under the Internal Security Act 1950 and the Emergency Ordinances bear this out. This is further exacerbated by the fact that the Bill allows the police to resort to “all means necessary” to obtain a non–intimate sample off any person from any of the indices of the Bill. | ||
2.3.3. | As the DNA Databank will be helmed by a police officer appointed by the Internal Security Minister (and not administered by an independent oversight body consisting of experts and non–political appointees which reports to Parliament), it is doubtful if the DNA Databank’s independence will be free from question. The dangers of the politicisation of institutions meant to assist in law enforcement are real. | ||
2.4. | Absence of a Data Protection regime | ||
2.4.1. | The Bill seeks to collect, process and store personal and highly sensitive information regarding persons. As such, it cannot be tabled without a concomitant commitment by the Government to respect privacy and liberty rights. In particular, the Bill should not be tabled before an adequate Data Protection regime (put into place by a Data Protection Act) is passed. | ||
2.5. | Lack of safeguards and non–compliance with Data Protection principles | ||
2.5.1. | In addition to the lack of commitment on the part of the Government in relation to privacy and personal data protection, there are no safeguards in relation to the storage and testing of DNA samples and for DNA profiles. There are also no safeguards on the way the samples or profiles are to be handled. No regulations have been prescribed. These lack of regulations and safeguards are not consistent with the intention of the government in proposing to follow the seven principles of data protection of the European Directive 95/46/EC, which is namely the general principle, notice principle, choice principle, exposure principle, safety principle, integrity of personal data principle, access to personal data principle. | ||
2.5.2. | The management of DNA samples and DNA profiles as provided by the Bill is not in accordance with the abovementioned data protection principles. Clause 18 of the Bill only speaks of the removal of the DNA profile and any information in relation thereto. There is no assurance that the DNA profile is not to be stored somewhere else or moved to another information database. This is in conflict with the principles of data protection as stated in the preceding paragraph. | ||
2.5.3. | Also, Clause 18 is insufficient as it only clears those who have been acquitted or where investigations reveal the person was not involved in the offence. The Detainee Index and the Drug Dependants Index are untouched and the information is left forever. As stated above, both the Detainee Index and Drug Dependants Index are unacceptable as a matter of first principles. | ||
2.5.4. | The creation of a DNA Databank will lead to a massive collection of DNA profiles and DNA samples. In this regard, the government has not informed the public about its policy of cloning and genetic modification, especially in relation to the DNA profiles and samples stored in the DNA Databank. | ||
2.6. | Violation of the right to privacy | ||
2.6.1. | Privacy rights are illusory with the criminalisation of the refusal to give a non–intimate sample. The law should only provide for a discretionary adverse inference to be drawn against the accused in court proceedings in respect of his/her refusal to give the sample. This is the position in England and Wales. | ||
2.6.2. | The Bill is also silent in regard to the exportation of DNA samples and DNA profiles. There are no safeguards built into the Bill to protect against the misuse and abuse of the same. | ||
2.7. | Right to question the authenticity of DNA samples | ||
2.7.1. | There is no provision for the accused to do his/her own independent DNA test from the same sample. There is no opportunity for the accused to test the authenticity of the sample which is said to have contained the accused’s DNA profile. As such, there is no assurance that the chemist report evidencing the DNA profile in court came from the same sample extracted from the accused. This is wholly unsatisfactory. | ||
2.8. | Indiscriminate criminal profiling | ||
2.8.1. | Categories of persons from whom samples may be taken from are too arbitrary and wide. The Bill in its current form provide that a DNA sample could be collected from a person, whether or not that person is under investigation for an offence. The Detainee Index and Drug Dependants' Index rely on emergency laws and drug rehabilitation orders. These detainees have not been convicted of any crime, and there is no nexus to the investigation of any offence which requires their samples to be taken. | ||
2.8.2. | It appears that the Government through the DNA Databank is seeking to profile and create an immediate pool of “suspects”. This is indiscriminate “criminal profiling”. It targets the weak and vulnerable persons in society. Anyone may be arrested under the Internal Security Act 1950 or the Emergency Ordinance and be forced to give a sample, whether or not an investigation into a specific offence is on–going, and whether the arrested person is reasonably suspected to have committed any specific offence. Criteria and power safeguards are lacking in relation to the Suspected Persons Index and the Convicted Persons Index. | ||
2.9. | Retroactive application is unfair | ||
2.9.1. | The retroactive application of the law on persons presently serving a term of imprisonment is highly unfair. Just as no one should be charged or convicted for a crime that did not exist at the time of its commission, no one who has been charged or convicted prior to the passing of the Act should be affected by the Act. | ||
2.10. | Mandatory destruction of samples | ||
2.10.1. | The destruction of samples should not only be permissive but mandatory after a certain period of time. The proposed Clause 17 of the Bill is unacceptable as it leaves such decision to the discretion of the Head of the DNA Databank which is not reviewable by the courts. This gives the Head of the DNA Databank unfettered discretion which is arbitrary and draconian as no check and balance against the abuse of such discretion is allowed. | ||
2.10.2. | Clause 18 of the Bill only speaks of the removal of the DNA profile and any information in relation thereto. There is no assurance that the DNA profile is not to be stored somewhere else or moved to another information database. Much tighter legislative drafting is required here. | ||
2.10.3. | In any event, Clause 18 is insufficient as it only clears those who have been acquitted or where investigations reveal the person was not involved in the offence. The Detainee Index and the Drug Dependants Index are untouched and the information is left forever, it appears. As stated above, both the Detainee Index and Drug Dependants Index are unacceptable as a matter of first principles. | ||
3. | Recent Decision by the European Court of Human Rights – Case of S. And Marper v The United Kingdom (Annexed herewith as Annex 1) | ||
3.1. | The European Court of Human Rights (the 'ECHR') recently delivered its decision in relation to the retention of fingerprints, DNA samples and DNA profiles in the British DNA Databank. In summary, the ECHR had decided that: | ||
i) | the fingerprints, DNA samples and DNA profiles are personal data within the definition of personal data in the British Data Protection Act 1998; | ||
ii) | given the use to which cellular material (exists in DNA samples), in particular, could conceivably be put in the future, the systematic retention of that material was sufficiently intrusive to disclose interference with the right to respect for private life; | ||
iii) | possible future use of private information retained by the authorities (in retaining DNA samples) is legitimate and relevant to a determination of the issue of whether there has been an interference. Indeed, bearing in mind the rapid pace of developments in the field of genetics and information technology, the ECHR cannot discount the possibility that in the future the private–life interests bound up with genetic information may be adversely affected in novel ways or in a manner which cannot be anticipated with precision today; | ||
iv) | the highly personal nature of cellular samples, contain much sensitive information about an individual, including information about his or her health. Moreover, samples contain a unique genetic code of great relevance to both the individual and his relatives. In this respect the ECHR concurs with the opinion expressed by Baroness Hale in the House of Lords; | ||
v) | given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned. That only a limited part of this information is actually extracted or used by the authorities through DNA profiling and that no immediate detriment is caused in a particular case does not change this conclusion; | ||
vi) | as regards DNA profiles, such profiles contain a limited amount of personal information extracted from cellular samples in a coded form. Although limited, the same contain substantial amounts of unique personal data. While the information contained in the profiles may be considered objective and irrefutable in the sense submitted by the British government, their processing through automated means allows the authorities to go well beyond neutral identification. In this regard, that the British government accepted that DNA profiles could be, and indeed had in some cases been, used for familial searching with a view to identifying a possible genetic relationship between individuals. They also accepted the highly sensitive nature of such searching and the need for very strict controls in this respect; | ||
vii) | the DNA profiles’ capacity to provide a means of identifying genetic relationships between individuals, is in itself sufficient conclusion that such retention interferes with the right to the private life of the individuals concerned. The frequency of familial searches, the safeguards attached thereto and the likelihood of detriment in a particular case are immaterial in this respect. This conclusion is similarly not affected by the fact that, since the information is in coded form, it is intelligible only with the use of computer technology and capable of being interpreted only by a limited number of persons; and | ||
viii) | the possibility the DNA profiles create for inferences to be drawn as to ethnic origin makes their retention all the more sensitive and susceptible of affecting the right to private life. This conclusion is consistent with the principle laid down in the Data Protection Convention and reflected in the British Data Protection Act 1998 that both list personal data revealing ethnic origin among the special categories of sensitive data attracting a heightened level of protection. | ||
3.2. | The decision in this ECHR case is illuminating and sound. The same should be adopted in Malaysia in regard to the retention of DNA samples and DNA profiles. The retention of DNA samples and DNA profiles must be restricted to a limited time period, only for the sole purpose to assist in investigations, wherein DNA samples were obtained for. Also, in cases of acquittal, such information must be expunged and deleted from the DNA Databank immediately upon the accused being acquitted. | ||
4. | Recommendations | ||
4.1. | If in the event notwithstanding the foregoing, the Government is of the view that indeed, a DNA Databank is necessary at this juncture, we propose that the amendments as annexed herewith (Annex 2) be adopted into the Bill so as to avoid serious miscarriages of justice. Annex 2 includes the relevant justifications and rationale behind every proposed amendment. | ||
SCHEDULE 1 |
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The Data Protection Principles |
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1. | All data of DNA Samples and DNA Profiles shall be processed lawfully by the DNA Databank. | ||
2. | All data of DNA Samples and DNA Profiles shall be obtained only for the purposes within this Act, and shall not be further processed in any manner incompatible with such purposes. | ||
3. | All data of DNA Samples and DNA Profiles collected by the DNA Databank shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed within this Act. | ||
4. | All data of DNA Samples and DNA Profiles shall be accurate and shall at all times be kept up to date. | ||
5. | All data of DNA Samples and DNA Profiles processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. | ||
6. | All data of DNA Samples and DNA Profiles shall be processed in accordance with the rights of the persons from whom DNA Samples were taken under this Act. | ||
7. | Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of all data of DNA Samples and DNA Profiles and against any accidental loss or destruction of, or damage to, of all data of DNA Samples and DNA Profiles. | ||
8. | All data of DNA Samples and DNA Profiles shall not be forwarded to a country or jurisdiction outside of Malaysia unless that country or jurisdiction has a level of protection that is the same level as or has a higher level of protection provided for by this Act, for the forwarded data of the DNA Samples and DNA Profiles. |