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.
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