National Dna Database Act

Socidit TWENTIETH CONGRESS OF THE ) REPUBLIC OF THE PHILIPPINES First Regular Session AUG -4 P5:31 SENATE RECEIVE! S. No.. Introduced by Senator Jinggoy Ejercito Estrada AN ACT ESTABLISHING THE NATIONAL DNA DATABASE AND APPROPRIATING FUNDS THEREFOR EXPLANATORY NOTE Since its initial success in identifying and prosecuting a suspect in the rape and murder case of two British schoolgirls in 1986, the use of DNA (deoxyribonucleic acid) fingerprinting and analysis in conducting criminal investigations in many countries (such as the United Kingdom, United States, Canada, Germany, Japan, Australia and New Zealand) has become routine. 1 In the Philippines, DNA technology has become an invaluable tool in the identification of a person. It is through DNA that the identities of international terrorists Zulkifli bin Abdul Hadir (also known as Marwan) and bomb-maker Abdul Basit Usman were confirmed.? DNA tests have also confirmed the death of Abu Dar, the last surviving leader of Isis-affiliated Maute Group who helped plan the Marawi Siege in 2017.3 1 "Forensic Analysis in Criminal Investigations." Maria Corazon A. De Ungria. https://philjournalsci.dost.gov.ph/images/pdf/pjs pdf/vol132no1/pdf/forensic DNA analysis.pdf 2 PNP Directorate for Investigation and Detective Management DIDM Investigative Directive Number 2015-05 3 "Leader of Isis in Philippines killed, DNA tests confirm." 14 April 2019. https://www.theguardian.com/world/2019/apr/14/leader-of-isis-in-philippines-killed-dna-tests-confirm

In 2009, the DNA-assisted identification process launched by the National Bureau of Investigation (NBI) proved helpful in positively identifying more than 400 victims of the tragic sinking of MV Princess of the Stars ferry during the onslaught of typhoon Frank, and enabled the remains to be returned to their loved ones. 4 This bill aims to establish a comprehensive and secure National DNA Database to be managed by the Philippine National Police (PNP) that will be capable of performing comparative searches for crime prevention and crime solution, prove the innocence or guilt of a person allegedly involved in the commission of an offense, and assist in the identification of missing persons or unidentified human remains. This measure also proposes the following: • Mechanisms on collection, handling, storage and disposal of biological samples and DNA records; • Creation of a National DNA Database Scientific Advisory Committee which will develop DNA testing database quality assurance standards, including standards for testing the proficiency of forensic laboratories; and • Penalties against tampering, improper disclosure, unauthorized access and intentional breach on DNA records database. This legislation was prepared and reported out by the Senate Committee on Public Order and Dangerous Drugs and was already approved on Third Reading during the 19th Congress. Immediate approval of this measure is earnestly sought. JINGGOY EJERCITO ESTRADA 4 "INTERPOL and ICMP mark one year anniversary of Philippines ferry disaster. 21 June 2009. https://icmp.int/press-releases/interpol-and-icmp-mark-one-year-anniversary-of-philippines-ferry-disaster/

Other of in e TWENTIETH CONGRESS OF THE ) REPUBLIC OF THE PHILIPPINES First Regular Session ) AUb -4 P5:31 SENATE RECENED BY: S. No.. Introduced by Senator Jinggoy Ejercito Estrada AN ACT ESTABLISHING THE NATIONAL DNA DATABASE AND APPROPRIATING FUNDS THEREFOR Be it enacted by the Senate and the House of Representatives of the Philippines in Congress assembled:

Section 1. Short Title. - This Act shall be known as the "National DNA Database

Act".

Sec. 2. Declaration of Policy. - It is hereby declared the policy of the State to

4 establish and maintain a fair, responsible, ethical, and efficient criminal justice system. 5 The State likewise reaffirms the goals of the United Nations in the field of crime 6 prevention and criminal justice, specifically, more efficient and effective law 7 enforcement and administration of justice, respect for human rights and fundamental freedoms, and the promotion of the highest standards of fairness, humanity, and professional conduct.

Sec. 3. Definition of Terms. - As used in this Act, the following terms shall

mean: a) "Biological or deoxyribonucleic acid (DNA) sample" refers to any organic material originating from a person's body, including those found in inanimate objects, that is subjected to DNA testing; b) "Buccal swab" refers to a sample of cellular material taken from the inside of a person's mouth;

c) "Certified DNA collector" refers to a police officer or a person who has successfully completed the training prescribed and certified by the Philippine National Police (PNP) Forensic Group, in respect of the taking of buccal sample and biological DNA sample; d) "Crime scene sample" refers to physical evidence retrieved from the crime scene or any other place where evidence of the crime may be found and may include physical evidence collected from the body of a person involved in an offense or crime; e) "DNA" refers to the chain of molecules found in every nucleated cell of the body. The totality of an individual's DNA is unique for the individual, except in identical twins; f) "DNA evidence" refers to the totality of the DNA profiles, results, and other genetic information directly generated from DNA testing of biological samples; g) "DNA profile" refers to genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person; h) "DNA profiling or DNA typing" refers to a process where a minute sample of genetic DNA material is taken from a human biological sample and is given an analyzed numeric value; i) "DNA testing" refers to the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples to determine with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); j) "Foreign law enforcement agency" refers to the law enforcement agency of a foreign state and includes any recognized international organization established by government or states of which the Philippines is an official member, or any international organization; k) "Forensic DNA analysis" refers to analysis of the DNA from a body or crime scene sample to determine its forensic DNA profile;

1) "Forensic DNA profiles" refer to the result obtained from forensic DNA analysis on a body or crime scene sample, providing a unique combination of genotypes obtained from DNA analysis testing of multiple loci to provide identity reference; m) "Intimate sample" refers to (1) a sample of blood, semen, or any other tissue or fluid taken from a person's body, urine or public hair; or (2) swab taken from any part of a person's genitals (including pubic hair) or from a person's body orifice other than the mouth; and n) "Non-intimate sample" refers to (1) a sample of hair other than the pubic hair; (2) a sample taken from a nail or from under a nail; (3) 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 (4) saliva.

Sec. 4. Establishment of National DNA Database. - A DNA database under the

PNP, to be known as the National DNA Database, shall be established. The database shall consist of the following indices: a) A crime scene index which shall contain DNA profiles derived from intimate or non-intimate samples found on anything where an offense was committed, within the body of a victim of an offense, or on anything worn or carried by the victim or suspect at the time when the offense was committed; b) A convicted offenders index which shall contain DNA profiles derived from intimate or non-intimate samples taken from persons convicted of any offense; c) An elimination person index which shall contain DNA profiles derived from intimate or non-intimate samples taken from persons who had lawful access to the crime scene for comparison with evidence for elimination purposes; d) A law enforcement personnel index which shall contain DNA profiles of all employees of law enforcement agencies, derived by means of forensic DNA analysis of a donor's buccal or blood sample; e) A military personnel index which shall contain DNA profiles of all members of the Armed Forces of the Philippines (AFP) derived by means of forensic DNA analysis of a buccal or blood sample;

f) A missing person index which shall contain DNA profiles and any information related thereto derived from intimate or non-intimate samples taken from - (1) anything worn, carried, or used by a missing person; or (2) biological relatives of a missing person if so required; g) An unidentified human remains index which shall contain DNA profiles and any information related thereto derived from intimate or non-intimate samples taken from the body or parts of the body of an unidentified deceased person; and h) A voluntary person index which shall contain DNA profiles and any information related thereto derived from intimate or non-intimate samples taken from a person who volunteers to submit the same for storage of the DNA information in the DNA Databank.

Sec. 5. Objectives of the DNA Database. - The objective of the DNA Database

is to establish, keep, and maintain a comprehensive national DNA database in order to perform comparative searches for the following purposes: a) Serve as a tool for crime prevention and crime solution; b) Identify person/s who might have been involved in the commission of an offense; c) Prove the innocence or guilt of a person allegedly involved in the commission of an offense; d) Exonerate a person wrongly convicted of an offense; or e) Assist in the identification of missing persons or unidentified human remains.

Sec. 6. Management of DNA Database. - The PNP Forensic Group - DNA

Laboratory Division (PNP-FG DNA Laboratory Division) shall manage the DNA Database, and shall have such power as may be necessary for, in connection with, or incidental to the performance of its functions under this Act, including the following: a) Conduct, administer, and manage the DNA Database; b) Establish mechanisms to facilitate the connection, storage, and dissemination of data and related information on DNA profiles stored in the DNA Database;

c) Ensure that DNA profiles and any information related thereto are secure and confidential at all times; d) Store and dispose samples taken for the purpose of forensic DNA analysis in accordance with the provisions of this Act; e) Cooperate with both local and foreign law enforcement agencies in accordance with the provisions of this Act; and f) Carry out any other functions under this Act and those incidental or consequential to the functions specified in this section or in furtherance of the objectives of the National DNA Database.

Sec. 7. Access to and Confidentiality of DNA Profiles and Information. - The

access to a communication or use of DNA profiles and any information related thereto stored in the National DNA Database shall only be for the following purposes: a) Administering the database; b) Comparing DNA profiles or information in the course of an investigation conducted by any law enforcement agency or during judicial or quasi- judicial proceedings; and c) Making the information available to a person to whom the information relates. DNA profiles and all results or other information obtained from DNA testing shall be confidential and covered by the provisions of Republic Act No. 10173, otherwise known as the "Data Privacy Act of 2012."

Sec. 8. Biological Samples or Genetic Markers Derived from DNA as Evidence.

- The biological samples or genetic markers contained in or derived from DNA for identification may be submitted through expert testimony and/or used as evidence in any court or proceeding in the country subject to the judicial rules on DNA evidence.

Sec. 9. Mandatory Collection of DNA Sample. - The following shall be required

to provide a biological sample: a) Those ordered by a court of competent jurisdiction to submit their DNA sample in relation to a pending case: Provided, That the court cannot order such a submission for the sole reason of adding a sample to the DNA database; and

b) Active members of the military, uniformed personnel, and other law enforcement agencies.

Sec. 10. Voluntary Collection of DNA Sample. - Any person may, voluntarily and

in writing, submit themselves for the taking of an intimate or non-intimate sample. Before the taking of any sample, the certified DNA collector shall inform the person from whom the sample is to be taken of the following: a) That the DNA profile and any information related thereto derived from the intimate or non-intimate sample may be stored in the National DNA Database and used for forensic DNA analysis, police inquiry, and for such other purposes referred to in this Act; b) That any person may make a request for access to one's information; and c) That any person may at any time demand the deletion of one's DNA profile in the database. Any person may also submit a written request to the PNP-FG DNA Laboratory Division for DNA testing as defined in this Act: Provided, That at least one (1) of the DNA profiles to be used in the requested DNA testing is the DNA profile of the person who requested the test or of any person under his/her legal guardianship. For this purpose, the PNP is hereby authorized to collect reasonable fees for 19 the collection of DNA samples and the processing and corresponding issuance of DNA 20 test results and other certifications.

Sec. 11. Handling of Collected Biological Samples. - The integrity of the

collected biological sample shall be maintained at all times through a clear, well- documented chain of custody from the time the sample is collected until its disposal. Such chain-of-custody document shall be retained in the laboratory record to reflect the integrity of the sample during its receipt, handling, storage, preparation, retention, and/or disposal to protect the interest of all parties.

Sec. 12. Storage and Disposal of Biological Samples. - The PNP-FG DNA

Laboratory Division shall preserve all biological samples, DNA profiles, results, or other genetic information obtained from the DNA testing. All biological samples collected under Section 9 must be destroyed not later than six (6) months after the DNA profile has been generated.

Sec. 13. Deletion of DNA Profile from the DNA Database Indices. - A person

2 whose DNA profile is contained in the voluntary or missing person's indices may request that their DNA profile, and any related information, be deleted from the DNA database at any time. Members of the military, uniformed personnel and other law 5 enforcement agencies may request the same upon retirement or resignation from the 6 service. The DNA Laboratory official in charge of the database shall, within six (6) months from the time of notification of such request, delete the DNA profile and any information in relation to the profile.

Sec. 14. Support from Voluntary Citizens. - To support the National DNA

11 Database, employees of both government and private institutions as well as private citizens are encouraged to submit DNA samples. The forensic DNA profiles and any information related thereto shall be included in the voluntary person index.

Sec. 15. National DNA Database Scientific Advisory Committee. - A National

DNA Database Scientific Advisory Committee (Committee) shall be established for purposes of developing DNA testing database quality assurance standards, including 17 standards for testing the proficiency of forensic laboratories and forensic analysts conducting forensic DNA analysis.

Sec. 16. Committee Members. - The Committee shall be composed of seven

(7) members with recognized expertise and competence to understand, develop, and adopt DNA quality assurance standards necessary for the maintenance of the National DNA Database. The Committee members shall be composed of one (1) representative each from the PNP, the Department of the Interior and Local Government (DILG), the Department of Justice (DOJ), the Department of Science and Technology (DOST), the Department of Heaith (DOH), the National Privacy Commission (NPC), and the Commission on Human Rights (CHR). The Committee shall be chaired by an official from the PNP being the repository of the database. The PNP-FG DNA Laboratory Division shall act as the secretariat of 29 the Committee.

Sec. 17. Prohibited Acts. - Any person found guilty of committing any of the

prohibited acts enumerated hereunder shall suffer the corresponding penalties as herein provided:

a) Tampering of DNA Records. - Any person who shall knowingly make any false entry or alter any DNA record or profile indexed or otherwise contained in the DNA database system, or who shall intentionally destroy, mutilate, conceal, remove, or otherwise impair the verity or availability of DNA records or profile without authority, shall suffer the penalty of one (1) to three (3) years imprisonment or a fine of not more than One hundred thousand pesos (P100,000.00) or both, at the discretion of the court; b) Tampering of, Abetting, or Attempting to Tamper with DNA Samples. - Any person who shall knowingly tamper with or cause the tampering of any intimate or non-intimate sample taken for the purposes of this Act or shall aid in the tampering of or the attempts to tamper with any intimate or non- intimate sample taken for the purposes of this Act, shall suffer the penalty of one (1) to three (3) years imprisonment or a fine of not more than One hundred thousand pesos (P100,000.00) or both, at the discretion of the court; c) Improper Disclosure of DNA Samples and Records. - Any person who, by virtue of employment or official position, has possession of, or access to, individually identifiable DNA information indexed or otherwise contained in the DNA database system and who knowingly and willfully discloses such information in any manner to any person or agency not legally entitled to receive it to the prejudice and detriment of the public or person from whom the said DNA sample or information was taken shall suffer the penalty of one (1) to three (3) years imprisonment or a fine of not more than One hundred thousand pesos (P100,000.00) or both, at the discretion of the court. d) Refusal to Give Sample. - Any person who unjustly refuses to give a non- intimate sample or obstructs the taking of such sample, when legally ordered by competent authority to do so, shall suffer the penalty of three (3) months to six (6) months imprisonment or a fine of not more than Fifty thousand pesos (P50,000.00) or both, at the discretion of the court; e) Improper Disposal or Removal of DNA Samples and Records. - Any person who, by virtue of employment or official position, has possession of, or

access to, individually identifiable DNA information indexed or otherwise contained in the DNA database system and who knowingly or negligently disposes of, removes, discards, or abandons such information in an area accessible to public or has otherwise placed any record or specimen container with personal information of an individual in a garbage bin for trash collection shall suffer the penalty of imprisonment ranging from one (1) to three (3) years and a fine of not less than One hundred thousand pesos (P100,000.00) but not more than Five hundred thousand pesos (P500,000.00) or both, at the discretion of the court. f) Unauthorized Access or Intentional Breach. - Any person who knowingly and unlawfully violates data confidentiality and the security of the DNA database system shall suffer the penalty of imprisonment ranging from three (3) to six (6) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00). g) Offense Committed by a Public Officer, - When the offender or the person responsible as defined in the Administrative Code of the Philippines is in the exercise of his or her duties, an accessory penalty consisting of disqualification to occupy public office for a term double the term of criminal penalty imposed shall be applied.

Sec. 18. Cooperation with Other Law Enforcement Agencies. - The PNP, the

National Bureau of Investigation (NBI), and other law enforcement agencies shall establish a system to ensure coordination and integration of the DNA Database in their respective agencies. Government agencies not engaged in law enforcement may be authorized by the PNP-FG DNA Laboratory Division to access or otherwise use the DNA database for as long as such use is legitimate and the concerned government agency ensures the privacy of the DNA information.

Sec. 19. Cooperation with Foreign Law Enforcement Agency. - The PNP may,

upon request by a foreign law enforcement agency, compare a DNA profile received from the foreign law enforcement agency with the DNA profiles in the DNA Database to determine the existence of any record therein. The PNP shall then communicate this and any relevant information to the foreign law enforcement agency.

Sec. 20. Transitional Provision. - Any existing DNA profile and any information

related thereto kept and maintained by the PNP, immediately before the effectivity of this Act, shall form part of the National DNA Database in accordance with this Act. Any subsequent DNA database established by law and attached to government 5 agencies other than the PNP shall form part of the National DNA Database under this 6 Act and shall possess specifications that allow for inter-agency access and use for any legal purpose.

Sec. 21. Appropriations, - The amount necessary for the effective

implementation of the provisions of this Act shall be taken from the current year's appropriation of the PNP. Thereafter, such sums as may be needed for the continued implementation of this Act shall be included in the annual General Appropriations Act.

Sec. 22. Implementing Rules and Regulations. - Within one hundred twenty

(120) days from the effectivity of this Act, the PNP, in consultation with government agencies and other law enforcement offices, shall promulgate the rules and regulations 15 to effectively implement the provisions of this Act.

Sec. 23. Separability Clause. - If any portion or provision of this Act is declared

unconstitutional, any provisions not otherwise affected shall remain in force and effect.

Sec. 24. Repealing Clause. - Any law, presidential decree or issuance, executive

19 order, letter of instruction, rule, or regulation inconsistent with the provisions of this 20 Act is hereby repealed or modified accordingly.

Sec. 25. Effectivity. - This Act shall take effect after fifteen (15) days following

its complete publication in the Official Gazette or in a newspaper of general circulation. Approved,