S Manikavasagam is first time Member of Parliament Malaysia, Kapar(P.109).He stood under the ticket of Parti Keadilan Rakyat(PKR). He also sits in PKR's Supreme Body Council and PKR's Political Bureau Member .
The BN Government has postponed further discussion – the committee stage - of the DNA bill to after the Budget. However the government has already got the DNA Bill through the Policy stage.
There are several aspects o the DNA Bill that should worry all right minded Malaysians. Let me enumerate some of these
- Section 7 of the proposed bill empowers the Minister of Home Affairs to appoint a police officer not below the rank of Deputy Commissioner of Police as the Head of the Forensic DNA Databank.
Some of us objected to this saying that there should be clear separation of powers. A body that is independent of the police should handle collection, storing and testing of body fluids of suspects.
- Section 13 which deals with the collection of non-intimate samples such as scalp hair, buccal swabs and saliva, states under subsection 7, that “a police officer may use all means necessary for the purpose of taking of a non-intimate sample”.
Several among us brought this up. What does “all means necessary” mean in the case of a suspect who is in police custody?
- Section 14 of the proposed bill states that anyone who refuses to give a sample, or obstructs the taking of such sample, commits on offence and upon conviction can be fined up to RM10,000 or imprisoned for a period of up to a year!
How will the police fail to get a sample given section 13(7)?
- Section 24 of the Bill states that “not withstanding any written law o the contrary, any information from the DNA Databank shall be admissible as conclusive proof of the DNA identification in any proceedings in any court.
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.
- Section 25 specifies that no action or prosecution shall 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.
In addition to these, there are no sections dealing with the handling of left over samples. Details of how they should be destroyed etc. The possibility of police keeping some of that material to later implicate that person in another crime is something that cannot be ruled out.
DNA testing is a powerful tool – too powerful to be placed in the hands of a police force that has shown that the executive to go after political opponents can sway it, and I am not referring to only Anwar Ibrahim. So many of the people arrested under the ISA faced a hostile police force that concocted considerable evidence to justify their arrest and detention.
As the government has postponed the committee stage of the Bill’s passage to the sitting in October, there is still time to make representation to the Minister. I would therefore urge public interest groups to take up these issues with the government while at the same time highlighting it to the public.
Make no mistake, this is a bad law with very serious implications.
received by email. Comments Made by YB Sg Siput
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Sep 3, 2008 at 16:46:54
Monday September 1, 2008
Case for a select committee
COMMENT
By BARADAN KUPPUSAMY
The controversial DNA Identification Bill has been said to have many areas of concern, triggering a walkout among Opposition MPs. Is there merit for the bill to be discussed further?
THE DNA Identification Bill is under a cloud after Opposition MPs walked out of Parliament on Tuesday over some of its provisions.
The Government argues that the bill was not just thought up last month, but was at least six years in the making and a lot of study and research had gone into it.
Furthermore, it is based on similar laws in other advanced countries.
Home Minister Datuk Seri Syed Hamid Albar told Parliament the bill is not “going to prove anything that you have not done”. In a nutshell, DNA profiling will not bluff, it can only tell the truth.
It also regulates and governs the procedures for taking, storing and keeping a DNA data bank. The Government says such a bank is common in the world now and is a powerful tool to fight crime.
“The whole procedure is highly professional and completely transparent and scientific,” Syed Hamid said.
Despite these assurances, Opposition MPs walked out, saying there is clearly a case for the Government to send the controversial Bill to a select committee to review several of the provisions that intrude on privacy, human rights and established legal principles.
The MPs argued that people should be scared of the wide-ranging powers the bill gives to the police and the future head of the proposed DNA Data Bank and the minister who has powers to direct the bank chief.
Particularly, two provisions were singled out – one allowing a senior police officer to head the data bank, and second that the data, when produced in court, is absolute and must be accepted as unquestionable evidence by the judge.
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, experts say, is that DNA profiling has setbacks, as argued by Selayang MP William Leong in and outside Parliament.
Mistakes happen, samples can get mixed up and innocent people have been sent to prison, he said.
It is understandable that police are mesmerised by the power of the new tool to nail criminals and win easy convictions in court, but experience across the world shows that the tool can be easily misused.
“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,” he added.
Besides, he said, Malaysia employs the death sentence for a variety of crimes and there is no way to undo the injustice once an innocent person is wrongly convicted based entirely on DNA profiles, as the new law would allow.
This possibility alone is enough reason to hold back and let a select committee examine the law, he said.
Such a committee will have both government and the opposition lawmakers as members and the power to call individuals to give expert evidence.
With all-round participation in the committee, it can reshape the bill and add the required safeguards.
DNA profiling is not new and is already in use but always in combination with other evidence, and the judge has the discretion to weigh all the evidence before him.
Under the proposed legislation, the judge is compelled by law to accept DNA evidence, thus in one blow removing the accused’s right to challenge the evidence and the judge’s discretion to weigh all the evidence.
Again, almost anybody can be a suspect – even traffic offenders – and be required to give blood samples for DNA profiling, failing which offenders can be punished with a RM10,000 fine or a year in jail.
“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 Sungei Siput MP Dr Jeyakumar Devaraj.
“Make no mistake, this is a bad law with very serious implications,” he said.
Currently, the Chemistry Department does DNA profiling and their officers appear in court to present their findings and are questioned by defence lawyers, who often bring outside experts to rebut.
There is therefore a clear case, opposition lawmakers argue, to not rush the bill but pull back and let a parliamentary select committee review several provisions to add safeguards in the interest of justice and human rights.
http://thestar.com.my/news/story.asp?file=/2008/9/1/nation/22205248
Sep 4, 2008 at 11:46:59
DNA evidence can go terribly wrong: lawyer
Fauwaz Abdul Aziz | Sep 3, 08 5:20pm
A lawyer who has successfully argued against the seemingly incontrovertible findings of DNA evidence in one court case said it is “unthinkable” for the government to treat such evidence as irrefutable and absolute.
MCPX
puravalen pc on missing pi balasubramaniam 180708 m puravalenM Puravelan (right), who represented G Sara Lily, had in 2006 successfully fought for the court to recognise a body that had been kept for two years at the Universiti Malaya Medical Centre mortuary was that of her deceased son, Francis Udayappan.
Despite a testimony by a DNA expert to the contrary, the presiding magistrate Nazran Mohd Sham said the clothes, height, gender, relevant period of death and discovery of the body meant there were “reasonable grounds to suspect” that the deceased was indeed Sara Lily’s son Francis.
Puravelan said the government failed to learn from that episode judging by its attempt to bulldoze the DNA Identification Bill 2008 through without placing legal safeguards to prevent or correct deliberate and accidental errors of scientific evidence.
“No doubt, there are uses for DNA as it is a valuable tool of evidence. But just as with other forms of proofs, DNA evidence must also be subject to the normal rules of evidence, and that includes being able to subject it to cross-examination and so on,” he said when contacted.
DNA evidence considered conclusive proof
Last week, opposition MPs failed to force the DNA Bill to a special committee for reconsideration before being debated further in Parliament.
dna bill some contentious provisions 020908The DNA bill, they claimed, exposes suspects to both police and political manipulation.
Among their concerns with the DNA Identification Bill is Section 24, which states that DNA evidence should be admissible as “conclusive proof” in court.
Recollecting the Udayappan case, Puravelan said the Chemistry Department had “certified” its finding - that Udayappan was not Sara Lily’s son - despite its own expert’s admission that there imbalances, degradations and deteriorations of quality had occurred in the DNA sample.
He also pointed out that justice Nazran in his verdict said the DNA report, which had denied any link between the recovered body and Sara Lily, could not be relied upon due to the possibility of contamination.
“It’s unthinkable what may happen if they allow DNA evidence to be exempted from being challenged in court - it goes against all cornerstones of law,” said Puravelan.
Australian police review 7,000 DNA-related cases
In Australia early last month, Victoria’s police announced they were reviewing 7,000 cases that had used DNA evidence after it was found that DNA evidence used to convict a murder suspect, Russell John Gesah, was contaminated.
Gesah was earlier convicted of a 1984 murder of a mother and her young daughter.
The contamination reportedly occurred when clothing containing Gesah’s DNA - from an unrelated offence - were examined on the same day as the clothing from the murder case.
The Australian police have subsequently apologised to Gesah.
Accidental contamination of DNA can occur anywhere during the handling of DNA samples such as during its collection, testing, analysis, and storage.
What more when the police force - in which corruption is said to be rampant - is in control of DNA forensics, said Puravalen.
According to him, a mistaken conviction based on DNA evidence that goes unchallenged in court can have an effect more disastrous than merely imprisoning the wrong man.
“We have to remember that in Malaysia, we have a mandatory death sentence for certain offences. It’s frightening to think what can happen (if such evidence is deemed as conclusive),” he said
http://www.malaysiakini.com/news/89021