Congressional Perspectives of DNA Databasing in the Philippines

I. Importance of DNA Technology

II. DNA Technology in Law Enforcement
III. Improvement in DNA Technology
IV. Implementation Challenges / Concerns
V. DNA Technology in PH Setting - Adoption in PH Courts
VI. DNA Database in Other Jurisdictions
VII. DNA Database in the Philippines
VIII. Safeguards and Standards
IX. Important Matters for Consideration
X. Closing

I. Importance of DNA Technology

‘Genes are considered to be good predictors of many facets of human identity’

(Janasoff, 2006).1 Hence, when DNA samples are kept and retained in any databases,
it is possible to gather the most personal information about any individual with regard to
the following:

a. human physical traits (for example, eye colour)

b. predisposition to certain diseases (for example, heart disease, inherited breast
cancer)
c. genetic conditions that affect intelligence (for example, phenylketonuria) but
sometimes not the degree to which a genetic condition may manifest itself (for
example, Down Syndrome)
d. predisposition to certain mental illnesses (such as schizophrenia)
e. information regarding ‘a series of behavioural characteristics, ranging from thrill-
seeking to aggression’ and ‘the propensity for aggressive, addictive, or criminal
behaviors’ (debatable)
f. information regarding familial lineage’ or pedigree (debatable)

1
Sheila Jasanoff, 'Just Evidence: The Limits of Science in the Legal Process' (2006) 34 Journal of Law,
Medicine and Ethics 328, 329.
II. DNA Technology in Law Enforcement

The use of DNA technology is important in ensuring the accuracy and fairness in the
disposition of cases, especially when biological evidence exists.

During the mid-1980s, the potential application of DNA typing or profiling was
initiated by laboratories in the United Kingdom (UK), the United States (US), and
Canada.

The modern forensic DNA typing invented by Professor Alec Jeffrey was first used
in the Colin Pitchfork case in 1985 in the UK. This was the first criminal case in which
DNA was used in the UK and the resolution of this case provided an effective
demonstration of this method’s potential. It also demonstrated for the first time how a
small DNA sample could be used to identify a perpetrator from amongst a large
population.

By the late 1980s the technology was being used in the US by commercial laboratories
and the Federal Bureau of Investigation (FBI).2

As identified by British scholars Robin Williams and Paul Johnson, the benefits of DNA
Technology include:

a. the potential to make speedy and robust suspected offender identifications

through automated profile comparisons in centralized databases;
b. the ability to confidently eliminate innocent suspects from investigations;
c. the increased likelihood of generating reliable and persuasive evidence for use in
court;
d. the reduction in the costs of many investigations;
e. the likely deterrent effect of DNA databasing on potential criminal offenders;
f. and a possible increase in public confidence in policing and in the judicial
process as a whole.

III. Improvements in DNA Technology

DNA analysis is a complex area of forensic science that relies heavily on statistical
predictions. In the early cases in the United States where jurors were presented with
reams of evidence heavily laden with mathematical formulas, it was easy or defense
attorneys to create doubt in jurors’ minds. Since then, a number of advances have

2
http://classic.austlii.edu.au/au/journals/UWSLawRw/2013/5.pdf
allowed criminal investigators to perfect the techniques involved and ace down legal
challenges to DNA fingerprinting. Improvements include:

a. New testing procedures RFLP (Restriction Fragment Length Polymorphism)

analysis required large amounts of relatively high quality DNA. Newer procedures
require ar less DNA and can be completed aster.

b. Source of DNA Science has devised ingenious ways of extracting DNA from
sources that used to be too difficult or too contaminated to use.

c. Training Crime labs have developed normal protocols or handling and

processing evidence, reducing the likelihood of contamination of samples. On the
courtroom side, prosecutors have become more savvy at presenting genetic
evidence, and many states have come up with specific rules governing its
admissibility in court cases.

d. Science education In recent years, a number o debates have erupted around

the world over issues like using DNA evidence, cloning animals or selling
genetically modified crops. Since that time, classroom study of DNA and its
properties has in many places become more indepth and widespread.3

IV. Implementation Challenges/Concerns

A. Violation of Right to Privacy

Police access to human DNA data, which can identify individuals as well as contain
personal information, has some obvious consequences in terms of a right to privacy.

Australian police can lawfully obtain a person’s DNA profile without either a court
order or consent. They can do so by collecting that person’s body sample from an item
the person has touched.

England and Wales are given extensive powers under section 64(1A) of the PACE Act
to retain DNA samples and data derived from suspects indefinitely. The implication of
this is that the police are never required to destroy samples that they have legitimately
collected.

3
The Evolution and Anatomy of the Philippine Rule on DNA Evidence, Peter P. Ng., MD,LL.B, PhD.
Another concern on DNA databases with regards to invasion of privacy is sourced from
the fact that DNA samples and profiles contain private information about health and
genetic relationships (including paternity and non-paternity).

B. Discriminatory Social Profiling

Release of sensitive genetic information could have some far-reaching familial and
social implications. It could, for example, influence placement decisions by adoption
agencies or allow prospective spouses to select their mates based on perceived genetic
advantage and so on.

It could also give rise to discrimination against and stigmatisation of an individual or

groups. Moreover, such biological information could give rise to another class in society:
a ‘genetic minority’ or an underclass of those perceived as genetically inferior. This
could mean that solely on the basis of biological information, society could discriminate
against individuals deemed ‘substandard’ subjecting such persons to custodial
arrangements or to specific eugenic measures designed to eliminate those whose DNA
manifested the undesirable trait.4

There are concerns that the Chinese government is using DNA testing to oppress the
country’s predominantly Muslim Uighur minority. Human rights groups say that that
China has built up a vast DNA database of Uighurs living in Xinjiang province, collecting
samples without consent from nearly 36 million people as part of a free medical check-
ups programme.

China wants to make the country’s Uighurs, a predominantly Muslim ethnic group, more
subservient to the Communist Party. It has detained up to a million people in what
China calls “re-education” camps, drawing condemnation from human rights groups and
a threat of sanctions from the Trump administration.5

C. Issues with Bodily integrity

There is apparent threat to the bodily integrity of citizens who are subject to the forced
and non-consensual sampling of their genetic material. The potential further use of DNA

4
Page 49 http://classic.austlii.edu.au/au/journals/UWSLawRw/2013/5.pdf
5
https://www.hrw.org/news/2017/12/13/china-minority-region-collects-dna-millions
data stored in DNA databases further constitutes a potential threat to bodily integrity
and genetic privacy.

Bodily integrity is the inviolability of the physical body and emphasizes the importance
of personal autonomy and the self-determination of human beings over their own
bodies. It considers the violation of bodily integrity as an unethical infringement,
intrusive, and possibly criminal. (The Limits of Bodily Integrity Ruth Austin Miller - 2007)

D. Threat to Freedom of Speech and Information

Technology can subject humankind with ‘an all-pervasive monitoring system’ leading
towards a “surveillance society.” People who have their DNA profiles stored on a
forensic DNA database lose privacy, freedom and autonomy, and may be reluctant to
engage in active citizenship (such as in protests) given the ability to identify them
(Jasanoff, 2010: xxii).

V. DNA Technology in Philippine Setting: Adoption in Philippine Courts

As early as 1995, in the case of People vs. Teehankee, the appellant was convicted of
murder based on the testimony of three eyewitnesses. The High Court, in an obiter
dictum stated that

“while eyewitness identification is significant, it is not as accurate

and authoritative as the scientific forms of identification evidence
such as the fingerprint or the DNA test result.”

But it was in 2002 when Philippine jurisprudence acknowledged the admissibility and
authoritative evidence of DNA in the case of People vs. Vallejo where the rape and
murder victim’s DNA samples from the bloodstained clothes on the accused were
admitted in evidence.

Despite the absence of legislation adopting the use of DNA technology, the Supreme
Court went ahead in the promulgation of the Rule on DNA Evidence, which set the
guidelines with respect to the admissibility, relevance and probative value of DNA
evidence. Further, it paved the way for the possibility of post-conviction DNA testing to
reopen final and executor cases to overturn wrongful conviction.

VI. DNA Database in other Jurisdictions

CHINA

In the early 2000s, the Chinese Ministry of Public Security started building a searchable,
national DNA database called the “Forensic Science DNA Database System” also
known as “National Public Security Agencies DNA Database Application System”, as
part of a larger police information project known as the Golden Shield.

By late 2015, the Ministry of Public Security had accumulated 44 million “miscellaneous
data entries.” The government claims it is the biggest in the world. It includes data from
more than 40 million individuals, while 1.5 million entries refer to physical evidence
related to crime scenes. The Ministry of Public Security runs a second, separate
“Combat Trafficking DNA Database” with more than 513,000 DNA entries. Authorities
have stated that the DNA databases are used for solving crimes, including terrorism and
child trafficking, as well as to identify bodies and vagrants.

IRELAND

Ireland recently incorporated the DNA Database System into law, under the Criminal
Justice (Forensic Evidence and DNA Database System) Act 2014. In the case of Irish
DNA Database System, there are four main ways that a person’s DNA profile can
lawfully appear on same (O’Briain, 2014: 9): (1) If a person is detained for a relevant
offence; (2) If a person is an offender or former offender; (3) If a person volunteers to
provide a sample and then allows the profile to be entered onto the System; and, (4) If a
DNA profile was generated under the previous statutory regime, then it may be entered
onto the System under transitional provisions.

UNITED KINGDOM

In 1994, the UK created the legal basis for a national DNA database of people who
have been convicted of all but the most trivial offences. Since its creation one year later,
the National DNA Database (NDNAD) has grown to include DNA samples from 2.7
million individuals—about 5.2% of the UK population (Home Office, 2006)—many of
whom have never been charged with, or convicted of, any offence. It is the oldest,
largest and most inclusive national forensic DNA database in the world. Under current
law, it might expand to include 25% of the adult male population, along with about 7% of
adult women (Williams & Johnson, 2005a).6

6
Wallace (2006). https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1490298/
In the United Kingdom, the implementation of such laws is more permissive than
elsewhere in Europe and “any recordable offence” can be included in the database.7

Scotland has its own DNA database, but it exports profiles to the National DNA
Database (NDNAD). Most profiles from Scotland must be removed if a person is
acquitted, although some can now be retained for up to five years. The permanent
retention of all profiles was recently rejected by the Scottish Parliament. DNA profiles
stored in Northern Ireland are also being transferred to the NDNAD, but new profiles will
only be routinely exported once its forensic science service has accreditation.

RWANDA

Rwanda has proposed the world’s first country-wide DNA database, a project that will
involve collecting samples from all of the country’s 12 million citizens in an effort to
crack down on crime.

KUWAIT

In 2015 Kuwait passed the world’s first law that required all citizens and visitors to
submit samples of their DNA, but it was revoked before it came into force.

It was introduced with the aim of identifying terrorists but, in 2017, the country’s
Constitutional Court ruled that the law violated Kuwait’s constitutional guarantee of
personal liberty.

VII. DNA Database in the Philippines

The PNP Crime Laboratory was first organized as a Fingerprint Section of the G-2
Division of the Military Police Command Armed Forces in the West Pacific of the United
States Army (AFWESPAC) in May 19, 1945.

It was upgraded into a branch and was renamed as Crime Laboratory Branch of the
Criminal Investigation Service, which was the investigative arm of the Philippine
Constabulary (PC).

From being a small Fingerprint Section in 1945, the Philippine Crime Laboratory have
notably evolved to a technically-competent organization comprising eight (8) divisions

7
https://jme.bmj.com/content/26/4/266
today, namely, medico-legal, chemistry, physical identification, firearms identification,
question document, polygraph, fingerprint identification, and forensic photography.

Months ago, the PNP lab in Davao, envisioned to be the “Mega-laboratory of

Mindanao”, and the DNA and chemistry laboratory in Cebu have already been
operationalized.

Simultaneously, we are looking ahead to the establishment of a crime lab in Western

Visayas that will be the site of data recovery of all system — an automatic fingerprint
identification system, DNA laboratory, bullet comparison microscopes for firearms
identification, and many other services.

Despite the availability and use in court of DNA technology in the Philippines, its use
has yet to be adopted as part of routine investigations.

The biggest challenge thereto is the lack of support and recognition as to its vital role as
embodied by the fact that Congress has not prioritized the passage of a DNA database
measure. This measure is not new as the first DNA measure was filed as early as 2001.
Eighteen years later, we are looking to finally passing a legislation that will regulate the
collection, use and preservation of biological samples. Equally important is the
establishment of a DNA database with the corresponding safeguards against misuse
and abuse.

VIII. Safeguard and Standards

What is critical in legislating the establishment of a DNA database is the provision of

reasonable and adequate safeguards to ensure its integrity.

For a measure to pass the scrutiny of Congress, it must clearly establish the following:

1. The circumstances that would allow the collection, storage and use of DNA
samples and profiles;
2. Confidentiality and security of all DNA-related information
3. The technical standards that must be met by the DNA profiles before they
are included in the database;
4. The chain of custody in the handling of DNA samples;
5. The quality assurance procedures to be followed by laboratories in charge
of analyzing DNA samples;
6. Procedure for destruction of samples or records if no longer needed;
7. Other safeguards that may be adopted based on laws and practices abroad;
We cannot give more emphasis to the need to establish and adopt the best practices in
the collection of DNA and quality assurance procedures to avoid contamination of
evidence and protect the chain of custody of the evidence from the crime scene to the
laboratory to the court.

When we talk of practices and procedures, we expect wide information dissemination,

extensive training and mastery of the guidelines among law enforcement personnel in
charge of gathering data. Any laxity or disregard to the procedures can defeat the
purpose of this legislation either by contamination of the evidence or by breaking the
chain of custody which is the leading cause for acquittals in drug related cases. The
effectivity of this measure and the reliability of DNA evidence can easily be watered
down by lapses on the side of enforcement.

IX. Other Matters to Consider

Equally important – look into the budgetary requirements. Current proposed bill
submitted by the PNP is vague (see section 28). Apart from guidelines, the success /
efficiency of the law will also depend on how much the government is willing to invest.

a. Basic Infrastructure Support - Some public crime laboratories still need

assistance to help them obtain equipment and material to conduct the basic
processes of DNA analysis - extraction, quantitation, amplification and analysis -
and to help them meet various accreditation requirements.

b. Providing Support for the Retention and Storage of Forensic Evidence:

Forensic evidence must be stored in a manner that ensures its integrity and
maintains its availability throughout criminal investigations and judicial
proceedings. Appropriate evidence storage conditions require costly equipment
such as security systems, environmental control systems, ambient temperature
monitors, and de-humidifiers.
c. Research & Development ; Improving DNA Technology - Forensic DNA
analysis is rapidly evolving. Research and development of tools that will permit
crime laboratories to conduct DNA analysis quickly is vital to the goal of
improving the timely analysis of DNA samples. Smaller, faster, and less costly
analysis tools will reduce capital investments for crime laboratories while
increasing their capacity to process more cases