Malaysian Bar says cops’ proposal to take DNA samples from newborns violation of privacy

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File picture shows a robotic DNA sample automation machine working on DNA samples in Tarrytown, New York, March 24, 2015. — Reuters pic
File picture shows a robotic DNA sample automation machine working on DNA samples in Tarrytown, New York, March 24, 2015. — Reuters pic

KUALA LUMPUR, July 5 — The Malaysian Bar said today the police’s proposal to take DNA samples from newborn babies for identification purposes violates a person’s privacy and civil liberties and may pave the way for more onerous purposes in the future.

Its president A G Kalidas said that the Bar is perturbed by the proposal which the police said can assist in criminal investigations.

“This could potentially open Pandora’s Box and may encroach on the privacy and civil liberties of the people, even when one is not suspected of a crime,” he said in a statement.

He cited a watershed case by the European Court of Human Rights (“ECHR”) decision of S. and Marper v. the United Kingdom— where the ECHR held that holding the DNA samples of arrested individuals who were arrested but acquitted or have had their charges dropped is a violation of their right to privacy under the European Convention on Human Rights.

“The court took the view that the blanket and indiscriminate nature of the powers of retention of fingerprints, cellular samples and DNA profiles of those suspected but not convicted of offences, constituted an interference into the private lives of citizens as necessary in a democratic society,” he said.

He said the Malaysian Bar agrees with the findings and decision, and finds that it will be difficult for the police to justify its reasons for obtaining DNA samples from a newborn baby.

“Such sensitive and private genetic information of those who are not suspected or convicted of crimes should not be placed in the hands of the police for the reasons stated above, as these are matters that pertain to the bodily integrity and privacy of individuals, and should be respected.

“There is a need for balance between public and private interests, and the Malaysian Bar stands by the view that taking DNA samples from babies to be stored in a databank is incommensurate and disproportionate,” he said.

Kalidas acknowledged the positive side of a DNA databank, saying that Malaysia is currently equipped with a DNA Identification Act 2009 that provides for, among others, the establishment and governance of a DNA databank in Malaysia and that it could be a “great assistance” to the police in solving crimes more quickly.

Last week, Bukit Aman Criminal Investigations Department (CID) director, Datuk Seri Abd Jalil Hassan urged the government to reconsider the proposal that DNA samples of newborn babies be taken and stored in the interest of society

The proposal was already made in 2001 but it was then rejected on several grounds, namely, human rights and fear of it being abused.

However, he said that a DNA databank could be beneficial in providing justice to the victims with the availability of DNA profiles in the databank, citing a rape and robbery case which occurred in Cheras in 1999, that was solved through profile matchings from the DNA databank in 2019.

The DNA Identification Act 2009 specifies that DNA can only be taken at the scene of an incident, from suspects, convicts, detainees, drug addicts, missing persons and volunteers.

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