Govt to review APNU+AFC’s DNA Bill amid concerns from legal fraternity

Attorney General Anil Nandlall
Attorney General Anil Nandlall

Attorney General and Minister of Legal Affairs Anil Nandlall says the government will be revising the proposed amendment to the Police Act which would permit the taking of DNA samples from any person who might be in lawful custody.

His commitment comes in light of concerns raised by the Guyana Bar Association (GBA) regarding the current state of the DNA Bill, which it said creates room for ‘misuse and mischief’.

When contacted on Tuesday, Nandlall explained that “this piece of legislation was inherited by the Home Affairs Minister from his predecessor.”

The Attorney General said he had yesterday asked former Public Security Minister Khemraj Ramjattan about the origin of the legislative amendment and the policy direction that would have required such an amendment.

“He indicated to me that he cannot recall,” Nandlall said. Nevertheless, he said government has taken note of the concerns raised by the GBA and will seek to have them addressed.

“I have already discussed with my colleague, Minister Robeson Benn and he has agreed that the proposed amendment will be reviewed in order to address some of the concerns which have been raised,” the Attorney General said.

In a strongly-worded statement issued on Monday night, the GBA said the proposed amendment to the Police Act with regards to the collection of DNA samples of persons who are in lawful custody is very troubling.

The said Bill proposes to amend part of the Police Act, to empower a member of the Police Force, for the purpose of identification, to take the DNA of any person who may from time to time be in lawful custody.

The Bar Association, contends however, that the proposed amendment, if passed in its current form, can result in the gross erosion and infringement of a person’s constitutional rights. It was pointed out that Article 143 of the constitution protects against the search of a person without his/her consent or an Order of the Court.

The Bar Association said therefore finds it wholly unacceptable that the power to obtain DNA from the body, would be placed in the hands of a member of the Police Force without oversight and sufficient safeguards.

The Association further lamented that the act makes provision in the case of refusal of a person to submit DNA samples, to be taken before a Magistrate.

But the Association contends: “…the threshold is low as the Magistrate only needs to be satisfied that the person is in lawful custody. No consideration is required to be given to any other factor or circumstance including whether the ‘DNA’ is required in connection with the offence, there is sufficient evidence to ground a charge, the nature of the offence and or how the DNA is to be obtained or secured.”

It also contended that the obtaining of that information merely on arrest, without consent or Order of Court, is alarming and dangerous.

The Association also explained that generally, ‘DNA’ can only be obtained from the body by invasive means, which also raises concerns of state sanctioned assault, if done without consent.

It said: “The proposed amendment is so wide that it lays fertile ground for much mischief in the event of its misuse, without due and proper safeguards.”

“The Bar Association expresses its deep concern on the said proposed amendment in its current form and calls for its forthwith withdrawal; to be reconsidered with due and proper consultation, which is expected and required in a democratic society. The said proposed amendment does not have the support of the Bar Association and will be met with challenge should it proceed in its current form,” the Association added.