Malaysiakini : DNA bill: Why the fuss?

The DNA Identification Bill 2008 will be a "legal and human rights disaster" if key provisions are not amended, according to opposition parties which staged a protest walkout in Parliament last week.

PSM MP Dr Jeyakumar Devaraj has labelled the proposed DNA legislation as a ‘Draconian New Act' in calling for public interest groups to campaign against it.

Make no mistake, this is a bad law with very serious implications," said Devaraj, who defeated MIC chief S Samy Vellu at the March 8 general election to become Sungai Siput MP.

Opposition political parties, civil society and the Bar Council have slammed the bill for placing excessive powers in the hands of the police and the home minister.

The groups have also objected to the proposed law since it was pushed forward for debate over another pending legislation - the Universities and University Colleges Act amendment.

Last week, opposition MPs failed to get the DNA Bill be sent to a select committee for reconsideration before being debated further in Parliament.

No court action

The DNA Bill, they claimed, exposes suspects to both police and political manipulation. Under the proposed Section 7, the home minister is empowered to appoint a senior police officer to head the Forensic DNA Databank.

"Some of us objected to this - there should be clear separation of powers," said Jeyakumar, who is a trained doctor.

"Collection, storing and testing of body fluids of suspects should be handled by a body that is independent of the police."

Meanwhile, Selayang MP Willam Leong said under Section 10, the home minister is empowered to give "directions" to the head of the DNA Databank.

"This section offends the principle because the minister is given the power to interfere with the exercise of the powers of the head of DNA databank," said Leong.

Another controversial and hotly-debated clause, Section 25 states that no action or prosecution can be brought in any court against the minister or any DNA Databank personnel in respect of "any act, neglect, default or omission done by him in good faith".

Open to abuse

Under proposed Section 13, which deals with the collection of non-intimate samples such as scalp hair, buccal swabs and saliva, "a police officer may use all means necessary for the purpose of taking of a non-intimate sample".

"What does ‘all means necessary' mean in the case of a suspect who is in police custody?" asked Jeyakumar.

Another controversial clause states that "any information from the DNA Databank shall be admissible as conclusive proof" of DNA identification in any court proceedings.

"This seems to mean the person being charged cannot ask for an independent review of the DNA evidence. The opinion of the DNA bank cannot be queried in a court of law," said Jeyakumar.

As the judge is compelled by law to accept the DNA evidence tendered by the prosecution, the right to challenge the evidence and the judge's discretion to weigh all the evidence are thus compromised, he added.

Jeyakumar also said the bill does not contain any section that deals with the handling of leftover samples, for example, on how should these be destroyed.

"The possibility of the police keeping some of that material to later implicate that person in another crime is something that cannot be ruled out," he said.

Leong,. a trained lawyer, said a DNA sample matching the suspect did not necessarily equate to commission of a crime and the underlying principle should remain that a person is innocent until proven guilty.

DNA evidence can be contaminated - deliberately and accidentally - by improper identification, control and documentation of the exhibits, or during the transportation of criminal DNA stains, such as walking through or touching the crime scene, or when the handling the suspects, he added.

Leong also said environmental factors such as sunlight, heat, humidity or contamination by exposure could also degrade the quality of a DNA sample.

DNA not infallible

Leong rebutted the government's view that DNA was an "absolute science", without error.

He said in addition to the susceptibility of DNA samples to corruption by environmental factors, mistakes such as "under-" and "over-amplification" could also distort the interpretation of DNA tests.

According to Leong, even if only one person in a million had the same DNA profile, the statistical probability was not strong enough to deduce the suspect was indeed the criminal beyond the shadow of a doubt.

"Malaysia has a population of 27 million, then there are 27 persons in Malaysia who share that characteristic," Leong said.

"If no fact is known about the suspect other than he was in Malaysia at the time of the crime, the DNA evidence tells us no more than that there is a statistical probability that he was the criminal in 1 out of 27 likely suspects."

A DNA profile consisted of only a small section of an individual's DNA and therefore the sample might not be unique, he added.

"It is possible that two individuals other than identical twins could have the same sample. It is more likely that such a chance match would occur among close relatives," Leong said.

news courtsey of Malaysiakini