Sun (Used by permission)
by Sonya Liew
PASSAGE of a DNA Bill to implement a DNA databank and the relevant mechanics for its governance should be well thought out by any country. Arguments for and against the DNA Bill must be objectively analysed before arriving at a decision. Such is the intention of this article and the previous one on Oct 7.
Arguments against the DNA Bill were set forth in the earlier
article. The main arguments for the Bill by the government were to exonerate the
innocent and identify the guilty. Put in another way, the DNA databank is to
ensure that the guilty will be identified, the innocent will not be wrongly
convicted and the wrongly convicted will be freed. Instances used to support
these notions were the convictions of Canny Ong’s and Noor Suzaily Mukhtar’s
murderers based upon DNA evidence. When seen in such cases, having a
DNA databank is indeed of noble intentions.
However, it is surprising that a Bill with such noble intentions could be plagued with numerous arguments against it. Disregarding the political undertones for and against the Bill, it would only be right that the government weighed conflicting judicial and legal principles before being adamant about passing the Bill as law in its current form.
The arguments of exoneration and accurate identification should be weighed against the following arguments (which are non–exhaustive):
» DNA evidence should be corroborative in nature and not conclusive;
» Bill encourages biased perception towards the police;
» The independence of the DNA databank from politics will frequently be questioned; » There are no safeguards against the invasion of personal privacy;
» Mechanism and technology used to collect, store and test DNA evidence has not been thoroughly researched;
» The classes of persons from whom samples may be taken are too wide;
» No guarantees that DNA samples and profiles would be destroyed; and
» No safeguards and working mechanisms for the export of DNA samples.
In addition to these arguments, the Bill is silent in relation to safeguards against cloning and genetic modifications, with or without the consent of the owner of the DNA sample.
So far, the government has neither consulted stakeholders nor has it published the relevant facts and figures in support of the Bill in its current form or to counter any of the above arguments, except for the arguments of exoneration, identification and the introduction of the Data Protection Act. The glaring issue is whether the two arguments and a Data Protection Act justify the Bill and should be allowed to override all arguments against the Bill.
When examined closely, the arguments for the Bill and the proposed Data Protection Act are in effect policy and framework reasonings. The arguments against the Bill are mainly on the form of the Bill (derived from the Bill’s clauses) and not entirely in relation to the policy framework reasonings. Indeed, having a Data Protection Act, exoneration and identification are noble intentions. However, the Bill, in its current form, will not only negate any effects of the said noble intentions, it could also lead to many avenues of injustice due to its current form.
To further magnify the impact of exoneration and identification, the government should conduct a more detailed study as to which technology and technique to adopt, so as to avoid wrongful identification and conviction. Reference must be made to countries with experiences in DNA databanks such as Canada and the United Kingdom, with special attention being paid to criticisms made. This is to avoid repeating the mistakes (if any) of other countries.
As in relation to having a Data Protection Act, the government must first consult the relevant stakeholders if in the event the form of the proposed act is no longer similar in any way to its previous draft. It must also be noted that coordinating and implementing two massive regimes, ie, a Data Protection regime and a DNA profile management regime is not an easy or cheap task, warranting careful and precise planning.
It must be accepted that the arguments against the Bill are valid and are of grave concern. The government should seriously consider revising and amending the respective clauses to protect its citizens from potential serious miscarriages of justice. Spun on a yarn, fifty to sixty successful convictions does not in any way justify the emergence of a near police state and wrongful convictions of the innocent, even if it is only one wrongful conviction.
Indeed, let us not get lost in our zeal to clear murderers, serial killers and rapists off our streets by hastily passing a Bill that may set into motion a series of miscarriages of justice against the innocent and the disregard of personal and bodily privacy of citizens.
Sonya Liew is a member of the Human Rights Committee, Bar Council Malaysia. For more information, see www.malaysianbar.org.my/hrc. Complaints of rights violations may be forwarded to firstname.lastname@example.org for consideration of the committee. However, we make no assurance that all cases will adopted for action. Comments: email@example.com