Why The Unholy Haste?

Many, including the opposition, are troubled by the unholy haste with which the DNA Identification Bill is being rushed through parliament. Their complaint is founded on two concerns. First, that the bill is not well thought through and substantially erodes fundamental safeguards intended for an accused under the criminal justice system. Secondly, that it appears that the principal aim of the exercise to target Anwar Ibrahim. To that end, he may be its first casualty.

That the timing is convenient cannot be disputed. It not unreasonably lends to an inference that the Government, and by that I mean the Barisan Nasional and more particularly UMNO, hope to be able to harness the significant prosecutorial advantage that the proposed statute offers to its own political benefit. However, in as much as one may question the propriety or even the morality of the decision to table the bill in the way it has been and the apparent complicity of the Speaker in that process, there is no legal obstacle to their doing so. The Speaker controls parliamentary process and the Barisan Nasional has a majority in parliament.

As such, if the Barisan Nasional has its way, and it appears that it will, the bill will be law very soon. This does not however necessarily mean that the law is constitutional. I do not think it is for rendering the right of an accused to a fair trial predicated on the presumption of innocence illusory. In this, I share the reservations so succinctly expressed by Mr Edmund Bon, Chairman of the Bar Council’s Human Rights Sub-Committee. These were set out in Malaysiakini (DNA Bill tabled for second reading; August 26th 2008) and I take the liberty of setting them out here:

• There are no safeguards in relation to the storage and testing of DNA samples and for DNA profiles as well as how they are to be handled. No regulations were prescribed.

• No provision for the accused to do his or her own independent DNA test which means that the accused have no way of testing the authenticity of the DNA sample claimed to be his or hers.

• Categories of persons from whom samples may be taken from are to arbitrary and wide meaning that regardless of whether or not one is being investigated for an offence, DNA sample can be extracted from them.

• Criteria and power safeguards are lacking in relation to suspected and convicted persons rendering it susceptible to manipulation

• Privacy rights is illusory and those who refuse to provide samples will be subject to punishment and criminalisation

• The bill would mean that those who have not been charged or convicted prior to the passing of the bill would be affected by it

• Destruction of samples should not only be permissive but mandatory after a certain period of time as this provision will leave the head of the DNA databank discretionary powers to do anything with it.

• Clause 18 of the bill gives no assurance that the extracted DNA sample is not to be used and stored somewhere else after it has been used for a particular case.

• Clause 24 of the bill states that the extracted samples are conclusive evidence which means that the court and the accused have no authority to question the process of the DNA profiling.

• Without proper DNA data protection laws, the power to export DNA samples to foreign law agencies should be curtailed all together.

I do not take issue with the need for law on the subject, many other jurisdictions have legislation in place to allow for DNA profiling and testing. Any law introduced to achieve the stated aims must however not undermine the rights of an accused person. The proposed law regrettably does exactly that. As noted by Tommy Thomas, a senior constitutional lawyer, in an interview with Aniza Damis of the New Straits Times (Spotlight: CSI Malaysian style; 24th August 2008) the proposed law in effect allows for a reversal of the presumption of innocence. It will compel an accused person to prove his innocence by battling the purported conclusiveness of evidence collected. These are serious concerns that warrant closer scrutiny.

In the current climate, the fact of judicial scrutiny being brought to bear is not sufficient to assuage these very grave reservations. The trial courts will apply the law as enacted and, judging by recent precedents, will be compelled to take an unduly narrow view of the freedom of an individual to a fair trial in these circumstances on the basis of parliamentary, as opposed to constitutional, supremacy. Added to this is the fact that serious concerns have arisen as to the independence of the Judiciary, particularly in light of the conclusions of the Lingam Commission of Enquiry. Confidence in the judiciary is at an all time low and measures aimed at restoring confidence are still very much on the drawing board.

The provisions of the proposed law also give significant powers to the police, an institution whose integrity was brought into serious question by the findings of two prior Royal Commission of Enquiry, one pertaining to an assault on Anwar Ibrahim. As with the Judiciary, recommended measures are still merely a matter of rhetoric.

Given that the implementation of the measures in the proposed law are left to institutions which, as a matter of public record, have been shown to be amongst other things open to abuses of power, including on matters pertaining to Anwar Ibrahim, it is not unsurprising that many fear the worst where the trial of Anwar Ibrahim is concerned. Circumstance lends legitimacy to the fears being expressed.

For all these reasons, it would be a matter of common sense for the Government to stay its hand on the bill to allow for the more comprehensive consideration that so many stakeholders are calling for as well as implementing measures aimed at restoring confidence in these institutions. The Government has, after all, already waited some seven years and, surely, a while longer will not cause any further harm. Conversely, further damage will be done to the Barisan; its already low levels of support may be eroded further by what is being perceived as a display of belligerence and unfairness.

MIS