It was recently reported that the Royal Malaysia Police (“PDRM”) is urging the Government to reconsider taking DNA samples of newborn babies for them to be kept in a databank as a way to assist in criminal investigations.1
The Malaysian Bar acknowledges the positive utility derived from a DNA databank. The use of DNA for identification purposes is an integral tool in criminal investigations. Malaysia is currently equipped with a Deoxyribonucleic Acid (DNA) Identification Act 2009 (the “Act”) that provides for, among others, the establishment and governance of a DNA databank in Malaysia. The primary objective of the DNA databank is for human identification in relation to forensic investigations, and provides great assistance to the police in solving crimes more quickly.
We are nevertheless perturbed by this proposition of taking DNA samples of newborn babies for them to be kept in a databank as this could potentially open Pandora’s Box and may encroach on the privacy and civil liberties of the rakyat, even when one is not suspected of a crime.
A watershed case is the European Court of Human Rights (“ECHR”) decision of S. and Marper v. the United Kingdom2 — where the ECHR held that holding the DNA samples of arrested individuals who were arrested but acquitted or have had their charges dropped is a violation of their right to privacy under the European Convention on Human Rights. The Court took the view that the blanket and indiscriminate nature of the powers of retention of fingerprints, cellular samples and DNA profiles of those suspected but not convicted of offences, constituted an interference into the private lives of citizens as necessary in a democratic society. The Malaysian Bar agrees with this decision, and finds that it will be difficult for the police to justify its reasons for obtaining DNA samples from a newborn baby.
Such sensitive and private genetic information of those who are not suspected or convicted of crimes should not be placed in the hands of the police for the reasons stated above, as these are matters that pertain to the bodily integrity and privacy of individuals, and should be respected. There is a need for balance between public and private interests, and the Malaysian Bar stands by the view that taking DNA samples from babies to be stored in a databank is incommensurate and disproportionate.
A G KALIDAS
5 July 2021
1 “PDRM urges govt to reconsider DNA databank for newborns”, The Star Online, 30 June 2021.
2 European Court of Human Rights, 4 December 2008.