DEOXYRIBONUCLEIC ACID (DNA) IDENTIFICATION ACT 2009

Deoxyribonucleic Acid (DNA) Identification LAWS OF MALAYSIA REPRINT Act 699 DEOXYRIBONUCLEIC ACID (DNA) IDENTIFICATION ACT 2009 As at 1 September 2019 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 2019 1 2 Laws of Malaysia Act 699 DEOXYRIBONUCLEIC ACID (DNA) IDENTIFICATION ACT 2009 Date of Royal Assent … … … … Date of publication in the Gazette … … 19 August 2009 3 September 2009 Deoxyribonucleic Acid (DNA) Identification 3 LAWS OF MALAYSIA Act 699 DEOXYRIBONUCLEIC ACID (DNA) IDENTIFICATION ACT 2009 ARRANGEMENT OF SECTIONS Part I PRELIMINARY Section 1. Short title and commencement 2. Interpretation Part II FORENSIC DNA DATABANK MALAYSIA 3. Establishment of DNA Databank 4. Objectives of DNA Databank 5. Function of DNA Databank 6. Power of Minister to designate agency or body to carry out forensic DNA analysis Part III HEAD OF DNA DATABANK, DEPUTY HEAD OF DNA DATABANK AND DNA DATABANK OFFICERS 7. Appointment of Head of DNA Databank, Deputy Head and other officers 8. Functions and powers of Head of DNA Databank 9. Rectification of particulars in DNA profile and information 10. Power of Minister to give directions 11. Access of DNA profile or information 4 Laws of Malaysia Act 699 Part IV TAKING, STORING, DISPOSING OF INTIMATE AND NON-INTIMATE SAMPLES AND REMOVAL OF DNA PROFILE AND INFORMATION Section 12. Taking of intimate sample 13. Taking of non-intimate sample 14. Sample given voluntarily 15. DNA sample of prisoner 16. Storage and disposal of intimate and non-intimate samples 17. Removal of DNA profile and information from suspected persons index Part V OFFENCES 18. Offence of tampering, abetting or attempting to tamper with sample 19. Unauthorized use or communication of DNA profile or information 20. Obligation of secrecy 21. Offence of tampering, abetting or attempting to tamper with DNA profile or information Part VI GENERAL 22. Cooperation with foreign law enforcement agency 23. Protection against any legal proceedings 24. Regulations 25. Savings and transitional Deoxyribonucleic Acid (DNA) Identification 5 LAWS OF MALAYSIA Act 699 DEOXYRIBONUCLEIC ACID (DNA) IDENTIFICATION ACT 2009 An Act to provide for the establishment of a Forensic DNA Databank Malaysia, the taking of DNA samples, forensic DNA analysis, the use of DNA profiles and information in relation thereto, and for matters connected therewith. [1 September 2012, P.U. (B) 271/2012] ENACTED by the Parliament of Malaysia as follows: Part I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Deoxyribonucleic Acid (DNA) Identification Act 2009. (2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette. Interpretation 2. In this Act, unless the context otherwise requires— “chemist” means any chemist attached to the Chemistry Department of Malaysia, and includes any science officer attached to the Chemistry Department of Malaysia; “forensic DNA analysis” means any analysis carried out for the purpose of determining a person’s identity; 6 Laws of Malaysia Act 699 “DNA Databank” means the Forensic DNA Databank Malaysia established under section 3; “prescribed” means prescribed by the Minister by regulations made under this Act; “DNA” means deoxyribonucleic acid; “appropriate consent” means— (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; “offence” means any act or omission punishable by any law for the time being in force; “Head of DNA Databank” means the Head of Forensic DNA Databank Malaysia appointed under section 7; “Minister” means the Minister charged with the responsibility for internal security; “detainee” means a 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]; “authorized officer” means any police officer not below the rank of Deputy Superintendent of Police; *NOTE—Emergency (Public Order and Prevention of Crime) Ordinance 1969 [Ord. 5/1969] ceased to have effect on 21 June 2012 pursuant to Clause (7) Article 150 of the Federal Constitution. Deoxyribonucleic Acid (DNA) Identification 7 “government medical officer” means a registered medical practitioner in the public service and includes a registered medical practitioner in any teaching hospital of a university established under the Universities and University Colleges Act 1971 [Act 30]; “police officer” means any member of the Royal Malaysia Police; “drug dependant” means a person who is subject to such order or decision made pursuant to the Drug Dependants (Treatment and Rehabilitation) Act 1983 [Act 283]; “DNA profile” means genetic information derived from a forensic DNA analysis; “non-intimate sample” means— (a) a sample of hair other than the pubic hair; (b) a sample taken from a nail or from under a nail; (c) a swab taken from any part of a person’s body other than a part from which a swab taken would be an intimate sample; or (d) saliva; “intimate sample” means— (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. Part II FORENSIC DNA DATABANK MALAYSIA Establishment of DNA Databank 3. (1) A DNA databank by the name of “Forensic DNA Databank Malaysia” is established. 8 Laws of Malaysia Act 699 (2) The DNA Databank shall be under the management, control and supervision of the Head of DNA Databank. (3) The DNA Databank shall consist of the following indices: (a) a crime scene index which shall contain DNA profiles and any information in relation thereto derived from an intimate sample or a non-intimate sample that is found— (i) on any thing or at any place where an offence was committed; (ii) on or within the body of a victim of an offence; (iii) on any thing worn or carried by the victim of an offence at the time when the offence was committed; or (iv) on or within the body of any person reasonably suspected of having committed an offence; (b) a suspected persons index which shall contain 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; (c) a convicted offenders index which shall contain 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; (d) a detainee index which shall contain DNA profiles and any information in relation thereto derived from an intimate sample or a non-intimate sample taken from a detainee; (e) a drug dependants index which shall contain DNA profiles and any information in relation thereto derived from an intimate sample or a non-intimate sample taken from a drug dependant; Deoxyribonucleic Acid (DNA) Identification 9 (f) a missing persons index which shall contain DNA profiles and any information in relation thereto derived from an intimate sample or a non-intimate sample taken from— (i) the body or parts of the body of an unidentified deceased person; (ii) any thing worn or carried by a missing person; or (iii) the next of kin of a missing person if so required; and (g) a voluntary index which shall contain 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 and for such other purposes referred to in paragraph 15(2)(a). Objectives of DNA Databank 4. (1) The primary objective of the DNA Databank is to keep and maintain the indices referred to in subsection 3(3) for the purpose of human identification in relation to forensic investigation. (2) In addition to subsection (1), the DNA profiles and any information in relation thereto kept and maintained in the DNA Databank may be used in assisting— (a) the recovery or identification of human remains from a disaster or for humanitarian purposes; and (b) the identification of living or deceased persons. Function of DNA Databank 5. The function of the DNA Databank is to store DNA profiles and any information in relation thereto from any forensic DNA analysis carried out by the Chemistry Department of Malaysia or Forensic Laboratory of the Royal Malaysia Police, or any agency or body as may be designated by the Minister from time to time by order published in the Gazette. 10 Laws of Malaysia Act 699 Power of Minister to designate agency or body to carry out forensic DNA analysis 6. (1) The power of the Minister to designate any agency or body to carry out forensic DNA analysis under section 5 shall only be exercised in the event the Chemistry Department of Malaysia or Forensic Laboratory of the Royal Malaysia Police is unable to carry out any forensic DNA analysis. (2) The Minister may, in the order referred to in section 5, specify that the forensic DNA analysis to be carried out by the agency or body so designated shall only be for the purposes mentioned in subsection 4(2) subject to such terms and conditions as he may impose. Part III HEAD OF DNA DATABANK, DEPUTY HEAD OF DNA DATABANK AND DNA DATABANK OFFICERS Appointment of Head of DNA Databank, Deputy Head and other officers 7. (1) The Minister shall appoint a public officer who shall have the qualification and experience in DNA science as Head of DNA Databank for such period and on such terms and conditions as may be specified in the instrument of appointment. (2) The Minister shall appoint a public officer who shall have the qualification and experience in DNA science as Deputy Head of DNA Databank as may be necessary for the purposes of this Act who shall be subject to the control and direction of the Head of DNA Databank and may exercise the powers and perform the functions of the Head of DNA Databank under this Act. (3) The Minister shall appoint such numbers of DNA Databank officers as may be necessary for carrying out the purposes of this Act from amongst public officers who shall be subject to the control, direction and supervision of the Head of DNA Databank. Deoxyribonucleic Acid (DNA) Identification 11 (4) The Head of DNA Databank may in writing, subject to such conditions, limitations or restrictions as he thinks fit to impose, delegate all or any of his powers or functions under this Act to the Deputy Head of DNA Databank or to DNA Databank officers. (5) A delegation under subsection (4) may be revoked at any time by the Head of DNA Databank and does not prevent the Head of DNA Databank from exercising the powers or performing the functions so delegated under that subsection. Functions and powers of the Head of DNA Databank 8. (1) The Head of DNA Databank shall have the following functions: (a) to be responsible for the general conduct, administration and management of the DNA Databank; (b) to establish mechanisms to facilitate the collection, storage and dissemination of data in connection with DNA profiles and an