The DNA Identification Bill 2008 has been a contentious one since it was introduced in Parliament on August 17. Lots of Malaysians would not have remarked much on it since everyone’s attention was focused on the Permatang Pauh by-election.
It was passed in principle barely 11 days later, after the second reading, on Aug 28, 2008. The Opposition MPs in Parliament even staged a walkout to protest the move.
A DNA Databank is good, don’t you think? I think so too. However, this is an area covering liberty and freedom. And in Malaysia, more often than not these days, your freedom depends on whether the Police and the Home Minister think you are a threat or not.
Not whether you have been convicted of a crime.
At a time when the public confidence in the Police and the Home Ministry is at an all time low, provisions in the DNA Bill is worded to give them carte blanche.
This is the gist of the arguments against the passing of this Bill by the Opposition. Also, the manner in which it was rushed in Parliament (cutting queue) over the Universities and Colleges Bill also raises concern, especially since Anwar Ibrahim’s trial was due to start on September 12.
You may think the manoeuvres are just political, for a political end. But consider this, whatever law passed by Parliament will have repercussions in the future well beyond what you and I can fathom at this moment. Hence the worry.
Let’s examine some of the clauses, provisions and other stuff.
Function of DNA Databank
5. The function of the DNA Databank is to store DNA profiles and any information in relation thereto from any forensic DNA analysis carried out by the Chemistry Department of Malaysia or Forensic Laboratory of the Royal Malaysia Police, or any agency or body as may be designated by the Minister from time to time by order published in the Gazette.
Power of Minister to designate agency or body to carry out forensic DNA analysis
6. (1) The power of the Minister to designate any agency or body to carry out forensic DNA analysis under section 5 shall only be exercised in the event the Chemistry Department of Malaysia or Forensic Laboratory of the Royal
Malaysia Police is unable to carry out any forensic DNA analysis.
(2) The Minister may, in the order referred to in section 5, specify that the forensic DNA analysis to be carried out by the agency or body so designated shall only be for the purposes mentioned in subsection 4(2) subject to such terms and conditions as he may impose.
Wow! Home Minister is really directing things here.
Appointment of Head of DNA Databank, Deputy Head and other officers
7. (1) The Minister shall appoint a police officer not below the rank of Deputy Commissioner of Police as Head of the Forensic DNA Databank Malaysia for such period and on such terms and conditions as may be specified in the instrument of appointment.
The Head has to be a POLICE OFFICER! And wait, it gets better and better.
Sec 13 (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 person.
ALL means necessary. You figure out the permutations of that implication. To make it more vivid, imagine yourself accused of a crime.
Sec 15 talks about the administration of samples given voluntarily. But it is somewhat schizophrenic when you consider that in Sec 14 there is this clause.
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.
I’m sure most of you English-literate readers have heard of of the term Catch 22. This section encapsulates that Joseph Heller-coined phrase. You’re screwed, whatever you do.
Information from the DNA Databank to be conclusive
24. Notwithstanding any written law to the contrary, any information from the DNA Databank shall be admissible as a conclusive proof of the DNA identification in any proceedings in any court.
Now this gets really scary. What this section is telling you is that if your DNA is found at a scene, it places u there. Suppose you cry on some guy’s shoulder and he later on goes somewhere and gets killed, you are a suspect, based on the DNA from your tearstains.
And how can this be conclusive? DNA evidence around the world are meant to be corroborative and has to work with other evidence, circumstantial or otherwise, in determining guilt or innocence of the accused. DNA fingerprinting itself is not foolproof, as numerous instances how.
Remember that the earlier sections authorised a police officer to employ “all means of getting your DNA”. Now tell me, shouldn’t you worry?
Protection against actions and legal proceedings
25. No action, suit, prosecution or other proceedings shall lie or be brought,
instituted or maintained in any court against―
(a) the Minister;
(b) the Head of DNA Databank;
(c) the Deputy Head of DNA Databank;
(d) DNA Databank officers;
(e) a government medical officer; or
(f) a chemist,
in respect of any act, neglect, default or omission done by him in good faith in carrying out his powers, functions and responsibilities under this Act in such capacity.
So, say you are innocent and yet was made to suffer as a suspect, you can’t even seek redress in a court of law. So tell me, under the full might of the government, you are worth nothing. So you’re innocent of the crime? Oops, too bad.
Savings and transitional
27. Any existing DNA profile and any information in relation thereto kept and maintained by the Chemistry Department of Malaysia or Royal Malaysia Police, immediately before the coming into operation of this Act shall, on the coming into operation of this Act, be deemed to have been kept and maintained in and to form part of the DNA Databank established under this Act in accordance with
That just means this law is retroactive. That means all those who had been examined and had their samples taken before by the police, will come under this rule.
Even when you watch CSI you would see a lot of instances of evidence deemed inadmissible in court because improper procedure and not following the safeguards that the law put in place so that the innocent is not persecuted and procsecuted.
This Bill, in its current form, has not taken into account all the safeguards necessary. We do need a DNA Bill. It has to be looked at and debated and thoroughly examined so that it does not compromise that one important thing. JUSTICE.
To that end, I implore you readers to reject this bill in its current form. Let’s get the AG’s chambers to work harder for a comprehensively researched work that will stand the test to time. After the way they botched the Batu Putih case, I am sorry my confidence in them is nonexistent.
To record your disagreement with the bill, go here.
I am no lawyer, but this bill already looks dodgy to me. Do you wonder why the Penguins are up in arms?
This Bill gives too much powers to the police at a time when they stand accused of brutality and heavy handedness with the public. They are behaving like thugs and you wanna put this time bomb in their hands?