After seven years of preparation, the Deoxyribonucleic Acid (DNA) Identification Bill has finally reached Parliament and is expected to be
debated this week. But two senior lawyers tell ANIZA DAMIS about their reservations.

IF you have watched the popular television series Crime Scene Investigation (CSI), you will have learnt that if a person even so much as sneezes, spits, urinates or puts his sweaty hands against a wall, he will have left enough evidence for forensic investigators to identify him.

Provided that they can match the left-behind sample with a sample obtained from that person.

The science that takes these seemingly inconsequential discards of human activity and scrutinises them in a forensics laboratory, singling the samples out to one genetic identity is known as DNA profiling.

Deoxyribonucleic Acid (DNA) can be found in almost every cell in the body, and contains information of that living being’s genetic profile, which is unique to that being, except in cases of identical twins.

In simple terms, your DNA is your genetic finger pr int.

It is DNA profiling t h at sometimes complements criminal investigation in identifying a rapist, murderer, or missing child.

So, if it could help solve crimes or find a missing loved one, who could possibly object to a law that would make it easier for scientists to match their samples? Not surprisingly, it comes from the people who most say, “Objection, my lord!” — lawyer s.

It is not the solving of a crime that they object to.

Rather, it is the belief that the DNA Identification Bill, which is going to be debated in Parliament this week, does not have enough safeguards to protect the rights of suspects or accused persons.

The Bill proposes to legalise the taking of DNA samples from certain categories of people, as well as setting up a DNA Databank to keep the DNA profiles and information.

The lawyers — one is a criminal lawyer who is preparing a report on the Bill for the Bar Council’s human rights committee (who cannot be named, but will be referred to as Ceb) and the other, a senior constitutional law lawyer, Tommy Thomas — b e l i e ve that more thought needs to be given into how the sample can be taken, which category of persons can be targeted, and how the personal information of these people can be protected from abuse.

Their focus of unhappiness rests mainly on Clause 3(3), C.12, C.13, C.14, C.16, C.17, C.18, and C.24.

Ceb says the Bill should not be tabled before the Data Protection Act is in place, as the collection, processing and storing of personal and highly sensitive information on the people involved needs to be properly regulated.

Thomas believes Clause 24 makes it impossible for a defence counsel to argue the case if there is DNA evidence.

“The DNA testing itself is subject to human beings.

From the process of picking the hair from the accused’s head, until somebody testifies in court, it’s human beings implementing the DNA testing process. And they can make mistakes, be careless or dishonest.

“So, during trial, if the DNA expert says that he has examined the samples and in his opinion it matches with the accused’s, then, by Clause 24, the judge has to allow it.

“W h at ’s a defence lawyer to say? The accused is found guilty immediately.

The prosecution doesn’t need to prove anything more.” This, says Thomas, is too much of a shift, because it doesn’t allow for human er ror.

Ceb says the clause doesn’t give the court the option of weighing the evidence.

“This conclusive evidence clause fetters the judicial process, and limits the right of the accused to question the credibility of the DNA prof ile.” There is no provision in the Bill that allows for the accused to do his own independent DNA test from the same sample, and no opportunity is given for the accused to test the authenticity of the sample which is said to have contained the accused’s DNA profile, he says.

Both lawyers want the category of persons in Clause 3(3) who can be asked to give a DNA sample to be restricted, as it is too wide.

To begin with, the fact that anyone reasonably suspected of committing any offence can be asked to give a DNA sample means that even a shoplifter might be asked to give it.

So, for the Suspected Persons Index (SPI), Ceb says, before a person is asked to give a sample, the police must first show that a bodily substance was found at the crime scene, that there is other evidence (other than bodily substance) that the person by other evidence the person is suspected to have committed the offence.

And that the forensic DNA analysis of the sample provided will show evidence of whether the bodily substance obtained was from that person.

And, the convicted offenders index (COI) should only involve certain serious crimes, and not just any offence, says Ceb.

But while he has no arguments with the missing persons index, crimes scene index, nor voluntary index, Ceb says the detainee index and the drug dependants index should not be allowed, since detainees under emergency laws and drug dependants have not been convicted of any crime, and so, there would be no reason for any investigation that requires DNA samples.

The provision allowing for the taking of intimate or non-intimate samples from a convicted prisoner in Clause 16 is “highly unfair”, because it is a retroactive application of the Bill, and a person convicted of a crime before the passing of this law should not be subjected to it, Ceb said.

Both Thomas and Ceb are against the fact that a suspect who is asked to give a non-intimate sample has no choice in the matter.

“The very first of the fundamental liberties in the Federal Constitution is the Liberty of the Person. And Article 5(1) says that ‘no person shall be deprived of his life or personal liberty save in accordance with law’.” In the adversarial system, among the starting principles of criminal law is that the burden of proving the case rests on the prosecution, and it has to prove its case beyond reasonable doubt.

This burden never shifts to the accused.

“The accused is not required to assist the prosecution, and it is up to the prosecution to prove the case, without co-operation from the accused.

“Which is why they are supposed to warn you that you can remain silent at the time of arrest and before the trial. And neither the prosecution nor the judge can adversely comment on his right to silence.

“All these are entrenched principles of criminal law.

But Clauses 24 and 14 reverses all these pr inciples,” says Thomas.

Ceb says the DNA evidence should only be used to confirm other evidence already discovered, which points to the guilt of the accused, instead of as the primary source of evidence.

Thomas questions whether there is even any need for the distinction between a non-intimate sample and an intimate sample.

“In DNA science, do you need an intimate sample to make a match?” he asks.

The answer, says a senior forensics expert, is no.

“If the non-intimate sample is fresh and taken correctly, then it makes no difference.

You will get a DNA profile.

“However, if not taken correctly, then the non-intimate sample might not be able to get the full profile, whereas with intimate samples, whichever way you take it, yo u ’re guaranteed to get a full profile,” said the expert who has worked with the gover nment.

Until all the issues raised are settled, Ceb believes the Bill should be withdrawn, and a parliamentary select committee should be set up to look into the matter.

Stakeholders, including the Bar Council, should be consulted, as well as scientists, criminologists and police, and the government should do research on whether the use of DNA Databank would significantly increase the rate of crime detection or conviction of suspects.

The controversial clauses

Clause 3(3): This allows for the setting up of seven DNA indices, which cover crime scenes, missing persons, voluntarily given samples, suspected persons, convicted offenders, Internal Security Act and Emergency Ordinance detainees, and drug dependants.

Clause 12: This states the procedure for obtaining an intimate sample from either a person reasonably suspected of committing an offence, a detainee, or a drug dependant. But, the sample can only be taken with the consent of that person.

Clause 13: It states the procedures for obtaining a non-intimate sample from the same category of people, but does not require consent.

If the person in Clause 13 refuses to give the sample, or refuses to allow the sample to be taken, or obstructs the taking of the sample, Clause 14 says that person has committed an offence, which, on conviction, is punishable with imprisonment not exceeding one year, or a fine of not more than RM10,000, or both.

But, even if the person resists giving a non-intimate sample, Clause 13(7) says, “A police officer may use all means necessary for the purpose of taking or assisting the taking of a non-intimate sample from a person.”

Clause 16: This allows for an intimate or non-intimate sample to be taken for forensic DNA analysis from any convicted prisoner.

Clause 17: This assigns the responsibility of deciding on the storage or disposal of the samples to the Head of the DNA Databank (a very senior police officer appointed by the Internal Security Minister).

Clause 18: This clause prescribes in which instance the sample taken from a person reasonably suspected of having committed an offence may be removed from the index.

Clause 24: This states: “Notwithstanding any written law to the contrary, any information given from the DNA Databank shall be admissible as a conclusive proof of the DNA identification in any proceeding in any court.”

Excerpts from the DNA identification bill

Definitions

“Authorised officer” means any police officer not below the rank of Deputy Superintendent of Police;

“Non-intimate sample” means” (a) a sample of hair other than the pubic hair; (b) a sample taken from a nail or from under a nail; (c) a swab taken from any part of person’s body other than a part from which a swab taken would be an intimate sample; or (d) saliva;

“Intimate sample” means: (a) a sample of blood, semen or any other tissue or fluid taken from a person’s body, urine or pubic hair; or (b) a swab taken from any part of a person’s genitals (including pubic hair) or from a person’s body orifice other than the mouth.

Objective of DNA Databank

4. (1) The primary objective of DNA Databank is to keep and maintain the indices referred to in subsection 3(3) for purpose of human identification in relation to forensic investigation.

(2) in addition to subsection (1), the DNA Databank profiles and any information in relation thereto kept and maintained in the DNA Databank may be used in assisting- (a) the recovery or identification of human remains from a disaster or for humanitarian purposes; and (b) the identification of living or deceased persons.

Taking of intimate sample

12. (1) The procedures for the taking of an intimate sample of any person under this Act shall be in accordance with the provisions of this section and as precr ibed.

(2) An intimate sample of: (a) a person reasonably suspected of having committed an offence; (b) a detainee; or (c) a drug dependant, may be taken for forensic DNA analysis only if- (A) an authorised officer authorises it to be taken; and (B) an appropriate consent in the prescribed form is given by the person from whom an intimate sample is to be taken.

(3) Subject to an appropriate consent being given under subparagraph (2)(B), an authorised officer shall only give his authorisation under subparagraph (2)(A) if: (a) he has reasonable grounds for: (i) suspecting that the person from whom the intimate sample is to be taken has committed an offence; and (ii) believing that the sample will tend to confirm or disprove the commission of the offence by that person; (b) an arrest has been effected on or a detention order has been made against a detainee under any law made pursuant to Article 149 or 150 of the Federal Constitution; or (c) an order or a decision has been made pursuant to the Drug Dependants (Treatment and Rehabilitation) Act 1983 against a drug dependant.

(4) An authorised officer: (a) Shall give his authorisation under subsection (3) in writing; or (b) where it is impracticable to comply with paragraph (a), may give such authorisation orally, in which case he must confirm it in writing as soon as may be possible.

(5) A person from whom an intimate sample is taken shall be entitled to the information derived from the analysis of the sample taken from him.

(6) An intimate sample shall only be taken by a government medical officer.

Taking of non-intimate sample

13. (1) The procedures for the taking of a non-intimate sample of any person under this Act shall be in accordance with the provisions of this section and as prescr ibed.

(2) A non-intimate sample of: (a) a person reasonably suspected of having committed an offence; (b) a detainee; or (c) a drug dependant, may be taken only if an authorised officer authorises it to be taken.

(3) An authorised officer shall only give his authorisation under subsection (2) if: (a) he has reasonable grounds for: (i) suspecting that the person from whom the non-intimate sample is to be taken has committed an offence; and (ii) believing that the sample will tend to confirm or disprove the commission of the offence by that person; (b) an arrest has been effected on or a detention order has been made against a detainee under any law made pursuant to Article 149 or 150 of the Federal Constitution; or (c) an order or a decision has been made pursuant to the Drug Dependants (Treatment and Rehabilitation) Act 1983 against a drug dependant.

(4) An authorised officer: (a) shall give his authorisation under subsection (2) in writing; or (b) where it is impracticable to comply with paragraph (a), may give such authorisation orally, in which case he must confirm it in writing as soon as possible.

(5) The person from whom a non-intimate sample is taken shall be entitled to the information derived from the analysis of the sample taken from him.

(6) A non-intimate sample shall only be taken by: (a) a government medical officer; or (b) a police officer or a chemist.

(7) A police officer may use all means necessary for the purpose of taking or assisting the taking of a non-intimate sample from a per son.

Refusal to give sample

14. If a person from whom a non-intimate sample is to be taken under this Act: (a) refuses to give such sample; (b) refuses to allow such sample to be taken from him; or (c) obstructs the taking of such sample from him, commits an offence, and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding one year or to both.