Courts, ulema debate admissibility of DNA tests

LAHORE: Although Pakistan has fine DNA testing laboratories, these facilities remain closed to the public and results obtained from them are not recognised by the Islamic clergy and the judiciary.

Fierce debates are going on in the country among clerics, jurists and social scientists on the admissibility of DNA tests — that establish genetic links — as evidence in court. There are apprehensions of adverse fallouts from allowing the people free access to the tests.

The concept of DNA testing in criminal cases is relatively new in Pakistan and was introduced by the government to meet security challenges facing the country as well as global powers engaged in the ‘war-on-terror’ in Afghanistan.

In 2001, the research laboratory of the Centre for Excellence in Molecular Biology (CEMB) at the Punjab University was suddenly notified as the first official laboratory for DNA testing. The CEMB director, Dr. S Reazuddin, was declared director of the laboratory for conducting crime-related DNA testing and for determining paternity cases.

While the utility of DNA testing cannot be denied in Pakistan where suicide bombings and anti-terrorist raids— including those against Al-Qaeda terrorists — are common, its advent has raised serious concerns in this highly conservative society.

DNA technology has wide application and can be used for identity determination in mass disasters such as an earthquake, in searches for missing persons, solving inheritance issues, medicine and in scientific and archaeological research.

There were no objections when DNA testing was used to identify the remains of Wall Street Journal reporter, Daniel Pearl, who was kidnapped and beheaded by terrorists in Karachi, in 2002. Similarly, the people were unconcerned when DNA tests were used to determine whether Ayman al-Zawahiri, Al-Qaeda’s second-in-command, was among those killed in a US military air-strike inside Pakistan’s territory, in January.

But eyebrows are invariably raised whenever there is a demand to resort to DNA testing in deciding cases that touch on adultery and paternity — sensitive issues in the Pakistani society.

Muhammad Imtiaz, a criminal lawyer, told IPS that so far there is no clear-cut policy on admissibility of DNA tests as evidence in Pakistani courts. Different courts have come out with different observations, he pointed out. The Lahore High Court handed over a two-year-old child Rohail to Sahazad Ali on April 27, 2005, after a DNA test proved him to be the biological father. Shahzad had told the court that he had been living with the mother of the child without marrying her.

But, in another case, the same court observed on May 20, 2005, that DNA testing is not acceptable as evidence to establish adultery for which Hudood laws (Islamic jurisprudence) call for the direct testimony of four ‘pious’ male eyewitnesses against an accused.

To make matters worse, the government has not yet amended the Criminal Procedure Code (CrPC) to allow DNA test results to be made admissible as evidence in criminal cases. Civil and family courts of the country, that are burdened with cases of inheritance and paternity disputes, cannot benefit from DNA tests.

As the debate goes on, the government succeeded, earlier this month, in establishing its first DNA test laboratory in Islamabad, meant solely to investigate complicated terrorism and criminal cases. The one at CEMB is basically an academic research laboratory.

The newly-established laboratory has facilities for testing cases related to microbiology, ballistics and explosives, chemical examination and toxicology. It has been established by the National Police Bureau, under its National Forensic Science Programme (NFSP), with the help of China that provided the technology and the basic equipment.

Amjad Ali, a social activist, says that giving the people access to DNA testing laboratories can prove disastrous. “In a society where people can kill their wives on mere suspicion of being disloyal, what will they do once they have irrefutable evidence is anybody’s guess,” he says.

The rights lobby Amnesty International has noted that in Pakistan hundreds of women are known to die each year as a result of honour killings. Many more cases go unreported and almost all go unpunished. Police almost invariably take the man’s side in honour killings and rarely prosecute killers. Even when men are convicted, the judiciary ensures that they get off with a light sentence, reinforcing the view that men can kill their female relatives with impunity.

Ali thinks that DNA testing was promoted in Pakistan at the behest of the US without consulting local groups and creating awareness among the masses. Had this been done, the level of tolerance and acceptance among people would have been higher. “They just want to equip Pakistan to fight their war against terror. Beyond this, they have no concern whatsoever,” he said.

Siddique Akbar, a cleric, told IPS that replacing the condition of eyewitnesses in establishing adultery charges with DNA test results would be like waging a war against God. “The condition to provide four eye witnesses cannot be done away with. Technology or no technology, we have to stick to the divine dictates.”

On the use of DNA tests to determine a child’s paternity, he says this would create problems for many. “Our religion prohibits us from publicising others’ sins. Publicly declaring someone illegitimate or of having fathered a child outside marriage is no service at all.”

Reazuddin, said that, initially, his laboratory was open to the people but the facility is now restricted. Depending on the sensitivity of the issue, the laboratory has been directed by the government to conduct tests only on samples forwarded by courts or in cases registered with the police.

“In the past, several private tests conducted here have removed doubts regarding their legitimacy. While this is a great service, problems arise when the situation is otherwise,” said Reazuddin. “Telling someone that the child he is bringing up was fathered by someone else is difficult. Besides, we cannot hide facts as this would be tantamount to committing professional dishonesty.”—Dawn/IPS News Service