Sun (Used by permission)
by Tan Yi Liang
KUALA LUMPUR (Oct 14, 2008) : A panel of legal and scientific experts have called for a re–examination or a total scrap of the DNA (deoxyribonucleric acid) Identification Bill 2008 that was tabled in Parliament on Aug 18.
Constitutional law practitioner and expert Tommy Thomas said the Bill was drafted in "extreme language".
Speaking in the Bar Council public forum titled "The DNA Bill: Do We Need It" on yesterday, Thomas said: "Although the Bill may have laudable intentions in trying to apply 21st Century scientific and technological advances to the detection and prosecution of crimes, it is drafted in such extreme language that it shifts the balance from the accused to the prosecution in a wholly unacceptable manner."
"The Bill is so poorly drafted that it cannot be improved by debate and by amendment. It is my case that the Bill has to be withdrawn immediately," he said.
Thomas, who was the first to speak from a panel of six speakers, pointed out the following flaws in the Bill:
> Clause 2 – that DNA sampling is not limited to serious offences; DNA can be taken from any individual who has committed any offence;
> Clauses 7(1) and (2) – that the head and deputy head of the DNA data bank are police officers;
> Clause 9 – that the head of the DNA data bank has the power to rectify any particulars, and that such rectification is not considered an act of tampering;
> Clause 10 – that the Home Minister can give directions to the head of the data bank relating to their powers and functions, and the head of the data bank shall give effect to such directions;
> Clause 13 – which governs the taking of non–intimate samples (hair, saliva) can be taken by any police officer who may use "all means necessary" to take a sample; and
> Clause 24 – that any information from the DNA data bank shall be admissible as conclusive proof of the DNA identification in any proceedings in any court.
"In order to cover up sloppy police detective work, they can now hide behind this 'conclusive proof' section and present this evidence," said Thomas.
Fellow panelist and Sungai Siput MP Dr Jeyakumar Devaraj concurred with Thomas on Clause 13, describing it as a "terrible" Bill to be used as a means of legitimising police brutality.
"Already now, there are people dying in police custody. This kind of Bill will give the police a licence to do what they want," said Jeyakumar, who said the phrasing of Clause 13 is "unparliamentary language".
He also pointed out the danger of samples being kept in the database over indefinite periods and the lack of safeguards.
"We need a Bill where you need permission to collect samples. You just can't whack the person up to collect them," said Jeyakumar, who expressed his support for a proposal by an earlier speaker, criminal law expert Datuk’ V. Sithambaram, who suggested that an adverse inference could be drawn by the court from suspects who refused to give a sample.
"When you look at this Bill, you have to look at it in the Malaysian context. How have our police and Attorney–General conducted themselves? Are they professional, are they independent? Are they at that level of integrity that you give them such a powerful weapon and put it in their hands," asked Jeyakumar.
Both speakers were backed by Nanyang Institute of Education's DNA Centre head, Dr Koh Chong Lek, who identified possible uses of the Bill for crime solving and identification of missing persons.
"(But) there must be 'confidence in the database, confidence in the competence use ... to convict the guilty and exonerate the innocent'. There is is no clear purpose defined in the Bill," he said, cautioning that the use of DNA–based evidence was a "double–edged sword".
"DNA evidence is very useful, if it is used properly, well and good. But if it is not used professionally, it can be misinterpreted and lead to miscarriages of justice," said Koh who reminded that such incidents have already happened in countries with DNA databases.
However, this view was disputed by ACP Yew Chong Hooi of the Forensics Division of the Royal Malaysia Police and Chemistry Department forensic unit director Primulapathy Jaya who argued that the collection of DNA would simplify police work by allowing detectives to trace patterns in crime, and aid in solving difficult cases.
"If you don't have legislation, how do you legally collect a sample?" asked Yew, who had earlier said the use of DNA was essential in identifying serial patterns, or in eliminating suspects from a crime.
Sun (Used by permission)