Malaysia

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Overview

The Malaysian national forensic DNA database was formally established by legislation enacted in 2009. The DNA Bill was passed by a razor thin 48-47 majority in June 2009 in the context of the controversial Anwar trial. The legislation allows the database to contain profiles from anyone suspected or convicted of any crime, and unidentified crime scene stains. The police are empowered to coercively collect DNA samples from anyone “reasonably suspected” of having committed any crime. Both genetic profiles and samples may be stored indefinitely, except when an individual has been acquitted or when further investigation reveals that they were not involved in the commission of any crime.

Implementation of the DNA database was then delayed pending development of detailed regulations and data protection laws. Regulations were adopted in 2012. They require removal of innocent people's DNA profiles in accordance with Section 17 of the Act and destruction of DNA samples once the individual's DNA profile has been uploaded.

The 2008 Interpol survey reports that 300 crime scene DNA profiles were held in Malaysia at the time of the survey. According to Interpol, a total number of 10,000 profiles were held in Malaysia in 2011.

Resources


Detailed Analysis

I. Law on Point

The Deoxyribonucleic Acid (DNA) Identification Act of 2009[1] establishes the “Forensic DNA Databank Malaysia.”[2] The DNA Databank is under the management of the Head of DNA Databank.[3]

II. Entry Criteria

Malaysian law states that the primary objective of the DNA Databank is for the purpose of human identification in relation to forensic investigation.[4] However, it is lawful to utilize the DNA profiles and any information in relation thereto kept in the DNA database for the purpose of identifying any “living or deceased person[].”[5]

The Forensic DNA Databank Malaysia consists of six indices: (1) a crime scene index, (2) a suspected persons index, (3) a convicted offenders index, (4) a detainee index, (5) a drug dependants index, (6) a missing persons index, and (7) a voluntary index. The a crime scene index contains DNA profiles and any information in relation thereto derived from an intimate sample or a non-intimate sample that is found on anything or at any place where an offence was committed, on or within the body of a victim of an offence, on anything worn or carried by the victim of an offence at the time when the offence was committed, or on or within the body of any person reasonably suspected of having committed an offence.[6] The suspected persons index contains DNA profiles and any information in relation thereto derived from an intimate sample or a non-intimate sample taken from persons reasonably suspected of having committed an offence and includes suspects who have not been charged in any court for any offence.[7] The convicted offenders index contains DNA profiles and any information in relation thereto derived from an intimate sample or a non-intimate sample taken from persons convicted of any offence under any written law.[8]

The detainee index contains DNA profiles and any information in relation thereto derived from an intimate sample or a non-intimate sample taken from a detainee.[9] The drug dependants index contains DNA profiles and any information in relation thereto derived from an intimate sample or a non-intimate sample taken from a drug dependant.[10] The missing persons index contains DNA profiles and any information in relation thereto derived from an intimate sample or a non-intimate sample taken from the body or parts of the body of an unidentified deceased person, anything worn or carried by a missing person or the next of kin of a missing person if so required.[11] Finally, the voluntary index contains DNA profiles and any information in relation thereto derived from an intimate sample or a non-intimate sample taken from a person who volunteers to submit the same for the purpose of storage of the DNA information in the DNA Databank.[12]

Any existing DNA profile and any information in relation thereto kept and maintained by the Chemistry Department of Malaysia or Royal Malaysia Police, immediately before the coming into operation of this Act shall, on the coming into operation of this Act, be deemed to have been kept and maintained in and to form part of the DNA Databank established under this Act in accordance with indices applying.[13]

III. Sample Collection

An intimate sample of a person reasonably suspected of having committed an offence, a detainee[14], or a drug dependant[15], may be taken for forensic DNA analysis only if an officer authorizes it to be taken and an the appropriate consent[16] is given by the person from whom an intimate sample is to be taken.[17] Malaysian law defines an intimate sample as “(a) a sample of blood, semen or any other tissue or fluid taken from a person’s body, urine or pubic hair; or (b) a swab taken from any part of a person’s genitals (including pubic hair) or from a person's body orifice other than the mouth.”[18] What’s more, an “offense” includes “any act or omission punishable by any law.”[19] A non-intimate sample of a person reasonably suspected of having committed an offence; a detainee, or a drug dependant, may be taken only if an authorized officer authorizes it to be taken. Unlike the case of intimate samples, there is no consent requirement for the taking of a non-intimate sample.[20]

Subject to an appropriate consent being given when required, an authorized officer shall only give his authorization if he has reasonable grounds for suspecting that the person from whom the intimate sample is to be taken has committed an offence and believing that the sample will tend to confirm or disprove the commission of the offence by that person, an arrest has been effected on or a detention order has been made against a detainee, or an order or a decision has been made pursuant to the Drug Dependants (Treatment and Rehabilitation) Act 1983 against a drug dependant.[21] An authorized officer shall give his authorization under subsection in writing, or where it is impracticable to do so, may give such authorization orally, in which case he must confirm it in writing as soon as may be possible.[22] If a person from whom a non-intimate sample is to be taken under this Act refuses to give the sample or refuses to allow the sample to be taken from him without good cause or the sample cannot be obtained despite all reasonable efforts taken, that person may be taken before a magistrate and the magistrate may, if satisfied that there is reasonable cause to believe that the sample tends to prove or disprove the commission of an offence by that person, order that person to provide his non-intimate sample.[23] The law is silent on what would constitute “good cause” for refusing consent.

Furthermore, an intimate sample or a non-intimate sample may be taken for forensic DNA analysis from any person who is serving his term of imprisonment in connection with an offence of which he has been convicted. The law is silent on the issue of consent, and thus it is likely not required in this case.[24]

IV. Removal Criteria

Where an intimate sample or a non-intimate sample has been taken in accordance with this Act from a person reasonably suspected of having committed an offence and investigations reveal that he was not involved in the commission of any offence, the charge against him in respect of any offence is withdrawn, he is discharged by a court of an offence with which he has been charged, at trial or on appeal, he is acquitted of an offence with which he has been charged, at trial or on appeal, or he is not charged in any court for any offence within a period of one year from the date of taking of such sample from him, the Head of DNA Databank shall, within six months of so being notified by the Officer in Charge of a Police District of the fact, remove the DNA profile and any information in relation thereto of such person from the DNA Databank.[25]

V. Sample Retention

The Head of DNA Databank shall safely and securely store all intimate samples and non-intimate samples that are collected for the purpose of forensic DNA analysis, the portions of the samples that the Head of DNA Databank consider appropriate and without delay destroy any remaining portions.[26]

VI. Database Access

Genetic profiles stored in the DNA database are derived by analysis carried out by the Chemistry Department of Malaysia or Forensic Laboratory of the Royal Malaysia Police.[27] Access to, a communication about or use of DNA profiles or any information in relation thereto stored in the DNA Databank is limited to the Head of DNA Databank, Deputy Head of DNA Databank DNA Databank officers or any chemist. Moreover, the law prescribes that such use shall only for the purposes of forensic comparison with any other DNA profiles or information in the course of an investigation of any offence conducted by any enforcement agency, administering the DNA Databank; or making the information available to the person to whom the information relates.[28]


References

  1. Deoxyribonucleic Acid (DNA) Identification Act of 2009, Malaysian Government Gazette of September 3, 2009, Malaysia Act 699.1 et seq. (LEXIS) (hereinafter “Act 699”).
  2. Act 699, § 3(1)
  3. Act 699, § 3(2)
  4. Act 699, § 4(1)
  5. Act 699, § 4(2)(b)
  6. Act 699, § 3(3)(a)
  7. Act 699, § 3(3)(b)
  8. Act 699, § 3(3)(c)
  9. Act 699, § 3(3)(d)
  10. Act 699, § 3(3)(e)
  11. Act 699, § 3(3)(f)
  12. Act 699, § 3(3)(g)
  13. Act 699, § 25
  14. Malaysian law defines detainee as any “person arrested and detained under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 [Ord. 5/1969] or the Dangerous Drugs (Special Preventive Measures) Act 1985 [Act 316].” See Act 699, § 2.
  15. Malaysian law defines a drug dependent as any “person who is subject to such order or decision made pursuant to the Drug Dependants (Treatment and Rehabilitation) Act 1983 [Act 283].” See Act 699, § 2.
  16. Malaysian law defines appropriate consent “(a) in relation to a person who is under the age of eighteen years, the consent in writing of his parent or guardian; (b) in relation to a person who has attained the age of eighteen years, the consent in writing of that person; or (c) in relation to a person in whom there is a condition of arrested or incomplete development of mind or body whether such condition arises from inherent causes or is induced by disease or injury and who is incapable of understanding the general nature and effect of a forensic DNA analysis or is incapable of indicating whether he consents or does not consent to give his intimate sample or non-intimate sample, the consent in writing of his parent or guardian.” See Act 699, § 2.
  17. Act 699, § 12(2)
  18. Act 699, § 2
  19. Act 699, § 2
  20. Act 699, § 13(2)
  21. Act 699, § 12(3)
  22. Act 699, § 12(4)
  23. Act 699, § 13 (7)
  24. Act 699, § 15
  25. Act 699, § 17(a) to (d)
  26. Act 699, § 16
  27. Act 699, § 5
  28. Act 699, § 11(1)(a) to (1)(c)