Unravelling the DNA bill

IN 1985, Professor Alec Jeffreys of Britain’s Leicester University discovered the technique for Deoxyribonucleic Acid (DNA) profiling and storing. He had no way of knowing then that his discovery would open the door to changes in criminal prosecutions, and raise the ire of human rights and privacy advocates around the world.

Malaysia is a relatively late entrant into the DNA profiling and storing scene. It took seven years before the DNA Identification Bill was finally tabled in parliament on 18 Aug 2008, stirring up a variety of responses in the Dewan.

In fact, opposition leader and Parti Keadilan Rakyat advisor Datuk Seri Anwar Ibrahim led opposition Members of Parliament (MPs) on a dramatic walkout during the second reading of the DNA Bill on 27 Aug.

Anwar has alleged that the legislation that would force suspected criminals to give DNA samples was targeted at him. He had previously refused to provide a DNA sample to facilitate investigations into a sodomy charge he is currently facing; but if the Bill becomes law, such defiance would be punishable by a RM10,000 fine or maximum one year in jail.

Anwar’s trial starts on 10 Sept.

The Bill also came under immense fire from lawyers, criminology and forensic experts, human rights activists, lawmakers and even the average rakyat.

The government was forced to defend its move to table the Bill, and Minister of Home Affairs Datuk Seri Syed Hamid Albar came out strongly to deny allegations that the Bill was rushed through to target Anwar, or that it was severely flawed.

He has, however, agreed to hear the various views on the Bill, though he reiterated in a report in The Star on 8 Sept that he doesn’t think there are loopholes in it.

So why is the DNA Bill so divisive? Why is the government so intent on pushing it through, while so many seem so dead set against it?

The answers lie in certain clauses in the Bill, as well as the things that are missing from it. And to understand this, it is necessary to see how such bills are handled in other countries.

DNA is to the 21st century what fingerprinting was to the 20th
(© scol22 / sxc.hu)Fingerprints? How vintage!

In the early 1980s, the United States enacted laws that required offenders convicted of sexual offenses and other violent crimes to provide DNA samples.

But it was only in the 90s that legislative guidelines for the setting up of a central DNA database called the Combined DNA Index System (Codis) and profiling procedures were put into place.

In 1994, the US enacted its DNA Identification Act and scrapped the need for fingerprint identification. As of August 2007, the database contained over five million DNA profiles in its Convicted Offender Index.

“DNA is to the 21st century what fingerprinting was to the 20th,” said Deborah Daniels, assistant US attorney general for justice programmes in an interview with USA Today on 15 April 2003. “The widespread use of DNA evidence is the future of law enforcement in this country.”

As a safeguard, several companion legislative acts were passed in the US to prevent forensic researchers from manipulating the stored samples for any other purposes. Among these included the Genetic Privacy and Non-discrimination Act (1995), Genetic Confidentiality and Non-discrimination Act (1996), and the most recent Genetic Information Non-discrimination Act (2008).

So though DNA profiling is actively used in the US, there’s a strict protocol that is followed, with enough regulations built in to ensure that civil society concerns about privacy are addressed.

The Malaysian DNA Identification Bill, on the other hand, pays scant regard to such concerns. Yet, it is important for the country to move forward with plans for a DNA databank.

Primulapathi Jaya Krishnan, forensic division director of the Chemistry Department (JKM), explains to The Nut Graph why the bill should be passed.

“DNA identification is a great tool in solving crime. The information from the DNA databank can and should be allowed to be used in court as evidence.”

“In the US and the UK, DNA identification has helped solve thousands of cases. And the actual procedure is very thorough. In our case, if proper procedure is followed, there should be no fear [to pass the DNA Bill],” he says.

When asked if JKM was consulted in coming up with the draft of the bill, Primulapathi replies: “Yes, we were consulted on the technical part of it. And we’re going to be working jointly and linked with the Royal Malaysian Police (PDRM) in the setting up of the DNA databank [should the bill be passed].”

DNA fingerprint (© Fl vio Takemoto / sxc.hu)Chairperson of the KL Bar criminal practice committee Datuk N Sivananthan also believes that “in principal, the DNA Identification Bill is a good bill [to be used in any modern country].

“Firstly, it helps [the police] solve crime and reduces the possibility of prolonged hearings [due to inconclusive evidence]. Secondly, it would make it easier for the police to trace their suspects. Thirdly, it could easily exonerate the innocent. And finally, it could prevent the trauma of trials if it involves child witnesses [by using DNA matching to pinpoint the perpetrator].”

On how our DNA Identification Bill stacks up when compared with other countries such as the US, Sivananthan says: “The DNA Act in the US uses the provision of a special DNA Profiling Unit, which is independent of its police force. And the personnel involved are credible experts in the units. The big question is: do we even come close here?”

Primulapathi’s answer is a definite “yes”.

“We can even start tomorrow if they (the government) want. Our facilities are already on par with some of the other forensic laboratories in the world,” he says, pointing out that Prof Jeffreys, during a visit to the department in 2005, agreed.

The forensic director quotes Jeffreys as saying: “Your facilities and the technology you are using are excellent. One thing you are lacking — the Criminal DNA Database.”

“JKM is accredited to the American Society of Crime Lab Director — Laboratory Accreditation Board (ASCLD / LAB),” Primulpathi says. “We are ready in that sense [to cope with the DNA Act]. The expertise of our staff is up to international standards.”

What’s the fuss all about?

Surprisingly, the idea of having a DNA database as a crime-solving tool is positively shared by all parties, even those who are against the Bill. However, there are still sparks of uncertainty lingering in the hearts of the rakyat. All it boils down to is a question of safeguards. The Bill in its present form does not provide this.

Edmund Bon: There needs to be a parallel independent body to foresee overall activity of the DNA databank Edmund Bon, a member of the Human Rights Committee (HRC) of the Bar Council, tells The Nut Graph: “The DNA databank is useful to identify offenders. However, it must be implemented with sufficient safeguards.

“The DNA Identification Bill should not be hastily tabled in Parliament without the presence of a data protection regime and privacy act. Malaysia needs to have [these] first, so that we have a complete legal architecture,” Bon explains.

At least in this case, the government appears to be taking heed of the criticisms. Syed Hamid announced that a Data Protection Bill will be tabled by the end of the year to address the weaknesses found in the DNA Identification Bill.

“I intend to bring the Data Protection Act [to Parliament] so everybody will feel safe,” he is reported to have said in theSun in a report on 28 Aug.

“The DNA Bill is just a framework act; when the government drafts the rules and regulations, we will take into account all the suggestions and views expressed in Parliament,” he clarified.

Sonya Liew, also with the Bar Council’s HRC, believes the ministry is putting the cart before the horse. “In the European Union, they started off with enacting the Data Protection Act and EU Human Rights Act before passing the DNA Identification Act. The UK has its endemic Human Rights Act 1998.

Checks and balances must be in place to ensure non-abuse of the provisions in the DNA Bill, says Sonya Liew“This is a check and balance against the abuse of harvesting DNA samples. But Malaysia [without passing any Data Protection or Privacy Act] is tabling a DNA Identification Bill without looking at these two first,” she remarks.

By right, she says, “it should be in sequence and must be justified accordingly.”

Who’s got the power?

Another point of contention is Section 7 of the Malaysian DNA Identification Bill, which empowers the Home Minister to appoint a police officer not below the rank of Deputy Commissioner of Police as the head of the Forensic DNA Databank.

This sparked numerous debates as it clearly defies the appropriate separation of power. And with the credibility and impartiality of the Malaysian police under scrutiny, it is a matter that cannot be easily swept under the carpet.

Sivananthan opines that “even the Inspector General of Police accepts the reality that there is corruption within PDRM. Therefore, one should imagine [what could happen] if this power is given completely to them. The only way to stop this is to have a clear check and balance.”

The decision to grant absolute power to PDRM in collecting and storing DNA samples is also hotly debated among the HRC members. Bon says the perception of deteriorating public confidence in the police force makes the idea of turning over absolute power to the police to control and manage the DNA databank “very frightening”.

“The Ministry of Home Affairs can set what regulations that it deems fit, but there is a need to have a parallel independent body to oversee the overall activity [of collecting, storing, profiling and destroying of DNA samples],” he tells The Nut Graph.

Even next-door neighbour Singapore seems to have realised this. Its Registration of Criminal Act or RCA was amended in 2002 to provide for the Singapore Police Force DNA Database, which was officially passed in July 2004.

DNA markers (sxc.hu)But the Singapore police’s jurisdiction is only limited to the collecting of the samples. The tasks of analysing, uploading, matching and storing of the samples collected falls on the shoulders of its Health Science Authority DNA lab, which is not directly connected to the police force.

Over here, the process is quite different. Primulapathi explains: “JKM’s task is to analyse samples sent to us [by PDRM], develop the DNA profile [for a particular sample] and get the report for the police.

“Once done, the exhibits are returned to the police. The physical sample is not kept by us. We have a designated protocol for the disposing of all DNA extracts. We only keep the print-out (hard copy) of the profiles in our case reports.”

Though this explanation does go some way towards allaying fears, it does not sweep away doubts completely. A case in point is Section 24 of the Bill, which states that any information from the DNA databank shall be admissible as conclusive proof of DNA identification in any court proceeding.

This “conclusive evidence clause” will automatically oust the power of the court to question the procedures of justice.

According to Sivananthan: “The Bill ousts the court’s jurisdiction. But the court’s power cannot be excluded. [In this case] it should maintain the power to question all procedures to ensure check and balance.”

Datuk N Sivananthan, chairperson of the KL Bar criminal practice committeeBon isn’t at all content either. He mentions that “DNA-matching results should be secondary evidence instead of a conclusive one.”

Primulapathi too, agrees. Although DNA identification technology is always accurate, as humans are involved, there is always the faint possibility of error, he says.

“That is why we have controls and other strict procedure to ensure that this does not occur. Although [DNA matching] is 99.9% correct, DNA evidence alone can’t prove that the crime has been committed by the person.

“DNA evidence is corroborative, not conclusive. It does not prove innocence or guilt. It is the court that decides whether a person is guilty or innocent,” he says.

Attempts to get comments from the Home Affairs Ministry and the PDRM forensic department were not successful at this time.

In the final reckoning, there is no doubt that the introduction of the DNA Identification Bill is a crucial step towards setting up a DNA database, which in turn will be a great tool to solve crimes. But safeguards need to be built in to prevent manipulation of samples, and to address privacy concerns. They should not be an afterthought. Only then can the rakyat truly rest easy.