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Monday, September 1, 2008

Why You Should Oppose the DNA Bill

There are many reasons, including the 10 reasons that the Bar Council has raised here - http://www.malaysianbar.org.my/legal/general_news/dna_bill_tabled_and_opened_for_debate_despite_opposition_protests.html

Bloggers have even blogged on it here:

Even one BN MP has raised concerns on it, in a party known to whip its members into absolute conformity - http://www.themalaysianinsider.com.my/index.php/malaysia/8230-anifah-attacks-dna-bill

Hence, I do not intend to repeat what's been said.

However, I intend to share with you just some of my thoughts on the DNA Database and some of the implications.

My question is how do they intend to "manage" this DNA Database? Will it be managed like a "permanent criminal record"?

For example, imagine this "DNA collection" scenario. Imagine a security guard was shot dead from a distance at night when there was no witnesses. Forensics came in the next day to collect DNA evidence to nail down suspects. They found 100 different DNA around the scene of the crime, because it was a public place. It included yours, because you happened to be there at the scene of the crime a few hours before the murder occurs, and a strand of your hair dropped / you shed some dead cells (which occurs everyday) and the place was not yet cleaned by the cleaners. Or maybe it was planted there?

Technically, that makes you along with 100 other people suspects.

What could be some of the implications that would arise as a result of this?

1. Under what circumstances would the Police choose whether to follow-up this lead or not? Would most of these not followed-up due to the sheer volume of work - surely not all 100 are suspects when only 1 guard is shot? Would the police only act when ordered by superiors to follow up certain leads?

2. When the Police visits you, they may then ask you to prove your innocence by telling them your whereabouts together with alibis. For those who are innocent, sometimes, this is not an issue, if the Police force is efficient, works fast and promptly, and your cooperation would help them narrow down the list of suspects from 100 to 99. But if you can't account for it for privacy or any other reasons, what happens then? Are you then guilty until proven innocent? What if they don't visit you and instead summoned you to the Police Station to give your statements and it is across town? If you don't go, will you then be deemed guilty? Can you see how ridiculous and not just inconvenient this will become at a society level?

3. Even in the best case scenario - where you failed to account your whereabouts, but they manage to nail down the killer - will your "suspect record" be wiped off, or will it remain "forever" in the DNA databank? In other words, you remain in there for life? According to Bar Council - "The destruction of the sample is at the discretion of the DNA bank director, which is unacceptable and it does not meet the international standards"

4. If it's there for life, how will society view this? For example, if your employer knows that you have records in the DNA databank, would he view you differently from another person who don't have any? What if you or your parents found out that your fiance/fiancee have a DNA databank record? What if you find out that your neighbour have such a record?

5. The bigger issue is where the burden of proof lies. According to experts, apparently, the DNA Bill to shift the burden of proof from the prosecutor to the accused. Currently, the burden is on the Prosecutor to prove your guilt. But under the proposed DNA Bill, it seems the burden is now on you to prove your innocence! This has far reaching implications that must be clearly understood!

6. What if you happen to be someone whom the government wants to prosecute you even if what you say is the truth but they want to silence you? Does this Bill not give them hugely additional powers to do so, hypothetically speaking?

7. Consider an even worse scenario. Imagine your DNA sample was collected and stored permanently in the DNA Databank. Imagine no follow up, but over the next 5, 10 years, without your knowledge, more of your DNA samples continue to be collected.

Then, one day, you find yourself in the "bad list" of the government of the day. The government checks the DNA databank, and found that you are a suspect in at least 10 unsolved crimes. They now claim that they have "over-whelming" evidence to charge you since there is now a collection of 10 which they point as a "pattern". How are you going to prove your innocence in practice? Is there a time limit where if the Police have not charged you, the "old DNA evidence" becomes obsolete? Or are they in there "forever"?

Do you think you can remember where you were over the past 10 years if I were to pick randomly 10 dates in the past? Will you be able to supply alibis who can remember? If you are lucky, great! But the odds are against you. Under the proposed DNA Bill, if you are unable to prove your innocence, does that mean you are guilty and will be sentenced accordingly?

Ridiculous isn't it? Yet, it's now past 2nd Reading, and upon 3rd Reading will become law!

8. How do you know whether the DNA evidence is not planted or fabricated? Who in Malaysia is able to tell the difference whether it is genuine or not? Are there specialists? Are they in abundant supply? How much would it cost to engage the services of such people? Will they be within the reach of the average Malaysian?

9. According to the Bar Council, you don't even have the opportunity to do an independent test of the DNA sample that they've collected. And the costs is most likely to be prohibitive to most Malaysians.

10. This assumes the DNA databank is collected and maintained by a fully competent and professional team, with safeguards, checks and balances in the system, with full integrity. If someone planted the DNA record into the Databank to be associated with the crime, can you challenge that it is not collected professionally? Or is the burden of proof now shifts to you, to prove that it was planted?

11. Will we see increased bribery situations? For example, how much will it cost to erase these DNA records from the Databank? If simple things like immigration records can be erased, what about the more damning DNA Databank records? Won't this give the Police and the government too much power to potentially abuse?

12. Obviously, I have only scratched the surface since I haven't thought much about the DNA Bill - this is just an amateur's comments.

13. But what I do know is that there is clearly a strong need for greater public consultation. More public feedback and feedback from all stakeholders especially the experts. This is not something that should be rushed, because once it is law, it will be a long time before it can be undone, and by then, a lot of damage could have occured.

14. The public must have adequate protection - checks and balances - that goes beyond individual personalities and be structured into the system, so that the absence of any one individual does not corrupt the integrity of the entire system.

15. Why is the BN government in such a haste to implement this DNA Bill, despite protests from the public?

16. You may find this article interesting also - http://www.indybay.org/newsitems/2006/10/26/18323702.php. There are so many implications, that I really don't see the need to even have a DNA Bill.

17. Another reason which I failed to understand why we need the DNA Bill? Isn't DNA evidence already an acceptable evidence in court? Isn't it treated in the same manner and rank as other evidence in court currently? If so, why the need to raise DNA evidence to be above other evidence? What is the meaning of "DNA being a conclusive evidence"? Does the courts continue to have the ability to "weigh other contrary evidence?" Why does the DNA Bill need to refer to this when this is already an existing point in law?

18. In short, because I have too many questions, and I can imagine too many common situations where this will be abused, I strongly oppose to the proposed DNA Bill.

Shouldn't you oppose to the proposed DNA Bill?

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