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MALAYSIA: Genetic Fingerprinting Bill Under Flak
By Baradan Kuppusamy
KUALA LUMPUR, Sep 10 (IPS) - A major controversy is brewing over a rushed parliamentary bill that gives enormous powers to Malaysia’s police and the home minister to use a person’s DNA profile as evidence in criminal offences.
Resistance to the bill, in its second reading in parliament, was so intense that all 82 opposition members led by newly minted opposition leader Anwar Ibrahim walked out on Aug. 28 after the government refused to withdraw the legislation and refer it to a parliamentary select committee for further study.
At dispute are several provisions which the government says are necessary but the opposition argues are draconian and seriously erode fundamental rights, privacy and safety against collusion and abuse by the authorities.
Even government backbenchers are speaking up against the sweeping reach of the bill which they say is frightening.
"Believe me this bill is one bad and scary bill with provisions that clearly invades privacy and fundamental rights," said opposition lawmaker Dr. Jeyakumar Devaraj. "There is a clear case to hold back and send the bill to a select committee for reevaluation," he told IPS.
But the government remains adamant with home minister Syed Hamid arguing that the bill has been under expert study since 2001 and replicates provisions found in similar bills in other countries.
"The DNA bill was not thought up last month. It is at least six years in the making and a lot of study and research had gone into it and, further, the bill is based on similar laws in other advanced countries," Hamid told parliament before the walkout.
"The bill is not going to prove anything that you have not done...DNA profiling will not bluff it can only tell the truth," he said.
The authorities say the bill also regulates and governs the procedures for taking, storing and producing profiles and the setting up of a DNA data bank. They say such data banks are common in the world now and a powerful tool to fight crime. "The whole procedure is highly professional and completely transparent and scientific," Hamid said.
Opposition to the ‘DNA Identification Bill 2008’ is both legal and political.
Opposition lawmakers argue that several provisions in the bill are unacceptable and dangerous and should be repealed.
Among the main reservations is a provision that empowers a senior policeman to be selected as the head of the DNA databank. That, lawmakers say, is dangerous because it allows police, who have a vested interest in convicting suspects, to handle collection, storage and testing of specimens.
Another clause in the bill allows a policeman to "use all means necessary" when taking non-intimate DNA samples, i.e. saliva or hair samples, nail clippings from a suspect.
The very word "suspect" is loosely defined. "Anybody can be a suspect, even traffic offenders," said opposition lawmaker William Leong who is leading the parliamentary campaign to have the bill referred to a select committee.
Even political prisoners detained under the Internal Security Act or ISA and held without trial are considered "suspects" and must provide samples for DNA profiling.
"ISA detainees are clearly political prisoners and have never committed any criminal act but they too have to give samples for DNA profiling," he told IPS. "This provision alone is a serious violation of fundamental human rights."
Refusal to give samples entails a fine of RM10,000 (2,891 US dollars) or a year in jail.
Another severely criticised provision is that any data offered from the bank is to be accepted as incontrovertible evidence by a court. The judge has no discretion to accept or reject or even weigh the evidence.
The assumption behind these provisions is that DNA profiling is an exact, perfect science and infallible and, therefore, the findings are absolute and cannot be questioned. It puts the accused, his lawyers and the judge and the very principle that one is innocent until proven guilty, subject to the findings of a laboratory technician.
The truth, Leong said, is that DNA profiling has flaws. ‘’Mistakes happen, samples are mixed up and innocent people have been sent to prison.’’
"The bill fails to provide any safeguards to keep the integrity and accuracy of the extracted DNA information," said Leong. "Without the safeguards, the credibility of both the bill and the procedures to extract, store and use DNA profiles are compromised and unacceptable."
Besides, he said, Malaysia employs the death sentence for a variety of crimes and once an innocent person is wrongly convicted on the basis of DNA profiles, there is no way to undo the injustice.
"This tragic possibility alone is enough to reason to hold back and let a select committee examine the law," he said. Such a committee must have both government and opposition lawmakers as members empowered to call individuals to give expert evidence.
With all round participation in the committee, it can reshape the bill and add the required safeguards in the interest of human rights and justice, the critics argue.
DNA profiling is not new in Malaysia and has always been used in combination with other evidence. Further, the judge has the discretion to weigh all the evidence presented to him before coming to a decision.
"DNA testing is too powerful a tool to be placed in the hands of a police force that has shown that it can be swayed by the executive to go after political opponents," said Jeyakumar. "There is no haste in enacting this bill. It needs urgent review."
The political dimension of the bill is another cause of opposition with some lawmakers seeing it as personally directed at opposition leader Anwar who is aiming to engineer defections and topple the government by this month.
The former deputy prime minister is facing charges of sodomising a former aide in a case that comes up for hearing on Sep. 10.
He has refused to give the police a fresh DNA sample. Whether or not the bill will be reviewed is set to be decided mid-October when parliament, now in Ramadan recess, reconvenes.
(END/2008)
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