DNA or deoxyribonucleic acid (abbreviated DNA) is a scientific and medical test that is capable of identifying a person’s genes, chromosomes or proteins. DNA test may indicate if a person has a genetic condition and chances of developing or passing on a genetic disorder by taking a sample of our blood, skin, hair, tissue or amniotic fluid. Apart from that, DNA may also be used to trace a person’s heredity and in other words, DNA may become a tool in determining the paternity of a person from his/her parents, grandparents, and back to the descendants.
In Malaysia, the only legislation on DNA test is governed under the Deoxyribonucleic Acid (DNA) Identification Act 2009 (the DNA Act). However, the DNA Act only applies to criminal proceedings and the Act does not provide for taking of samples in civil cases for the purposes of resolving paternity disputes, and there are no other specific provisions in any other statutes empowering the civil courts, particularly the High Court to order and compel parties to undergo a DNA test. Nevertheless, the applicability of the DNA Act in criminal proceedings still requires consent from individual concerned before the DNA samples can be taken for testing.
The question is whether the High Courts have the power to order for parties to undergo DNA test in civil proceedings?
Before further discussion, it is important to note that the power of the court to make any order compelling parties to undergo DNA test was originally vested from the English common law principle of parens patriae. The common law principle of parens patriae in its simple language means that the High Court has general inherent powers over a child to make any order that would be in the best interest of the child, and particularly in DNA test matter would include the power to order that a child undertake a DNA test for the purposes of determining his paternity.
In Re L (an infant) [1968][i], Lord Denning speaking for the Court of Appeal held that the High Court’s inherent jurisdiction over children is recognised in common law and it derives from the right and duty of the Crown as parens patriae to take care the children who are not able to take care of themselves:
I think that counsel takes altogether too limited a view of the jurisdiction of the Court of Chancery. It derives from the right and duty of the Crown as parens patriae to take care of those who are not able to take care of themselves…
Meanwhile in Malaysia, the early development of law was not really in favour of the idea that the High Court has the power to make an order to undertake DNA test. Judgments in local cases show that there is no general power provided by legislation or through common law for any court in Malaysia to order a person to undergo DNA test to ascertain one’s paternity. The High Court held in Peter James Binsted v Juvencia Autor Partosa[ii] that:
It is clear that there is no general power provided by legislation or through common law for any court in Malaysia to order a person to undergo a test to ascertain paternity. In the case of a DNA test, it is common knowledge that either a blood, tissue or bone specimen will be taken from the person for testing. If a person refuses to submit himself to such a testing he is perfectly entitled to do so; a person cannot be subject to hurt (ie suffer bodily pain, disease or infirmity) within the meaning of s 319 of the Penal Code against his will by submitting himself to such testing. Whoever carries out such testing without the person’s consent would violate s 323 of the Penal Code for voluntarily causing hurt to the person and a court cannot, in the absence of a specific legislative provision, order such person to submit himself to an unlawful act to be committed on his person.
In Lee Lai Cheng (suing as the next friend of Lim Chee Zheng and herself) v Lim Hooi Teik[iii], the High Court held that it cannot invoke its inherent jurisdiction and powers as it was of the view that the same are limited to prevent injustice or prevent abuse of process of the court:
[72] I am mindful that Zamani bin A Rahim J (now JCA) had previously in his decision ordered the defendant to do so pursuant to the inherent power of the court. Though I share his sentiments but I am, with respect, doubtful if I can properly so order. This is because the court’s inherent jurisdiction and power is a limited one to prevent injustice or to prevent abuse of process of the court; see O 92 r 4 of the Rules of Court 2012 and I H Jacob’s article ‘The Inherent Jurisdiction of the Court’ Current Legal Problems (1970) 23(1): A 23–52. It seems to me that the provision is only defensive in nature to abate procedural injustice. In other words, the inherent power cannot be utilised to invoke or facilitate a substantive right, albeit unjustly denied.
However, the law on DNA test has recently evolved and the courts began to recognize the power of the High Court to make an order for parties to undergo DNA test. In MPPL & Anor v CAS[iv] in which one of the issues in the Court of Appeal was whether the courts have the power to order DNA test on a child to determine paternity. Vazeer Alam, Gunalan Muniandy and Mohd Nazlan JJCA held that the High Courts have the inherent jurisdiction as parens patriae to make any order in the best interest and welfare of a child including to order parties to undergo DNA test to determine the child’s paternity:
[38] In India too, the Supreme Court had in several cases held that the High Court has the inherent jurisdiction to order a DNA test to determine a child’s paternity, and that the discretionary power must however be exercised sparingly in only the most deserving of cases where there is a strong prima facie case for ordering such a test …
[40] The learned trial judge had considered these English case authorities and had applied this English common law principle of antiquity that the High Courts have the inherent jurisdiction as parens patriae to make any order it deems appropriate in the best interest and welfare of a child, and that this includes an order to undergo a blood test to determine the child’s paternity …
[41] Thus, we concur with the findings and ruling of the learned High Court judge on the application of the common law principle that as parens patriae the High Court had general inherent powers over a child to make any order that would be in the best interest of the child, and that this would include the power to order that a child undertake a DNA test for the purposes of determining his or her paternity …
Although the Court of Appeal in MPPL & Anor v CAS case recognized the power of the High Court to make such order, the applicant must establish a strong prima facie case. This was the decision in Indian case of Selvi Vijayalakshmi v A. Sankaran and Another[v] where the court held that:
“33. Now, what follows from the above analysis of the ratios laid down in Goutam Kundu v. State of West Bengal (supra) and in Sharda v. Dharmpal (supra) is that it is not that the Courts have no power to order DNA test. It can order, but it cannot be a routine matter because it involves personal freedom of an individual. Only in rare cases and real cases such a test can be ordered, provided there is a prima facie case for ordering such a test. (See Bommi and Another v. Manirathanam (supra).”
[Emphasis added]
The examples of a strong prima facie cases were illustrated in Lim Hooi Teik v Lee Lai Cheng and CAS v MPPL & Anor:
In Lim Hooi Teik v Lee Lai Cheng, the Court of Appeal held that held that it is necessary to establish the fact of an intimate sexual relationship between the mother of the child and the alleged biological father. The court further held that once such fact is proven, the court would consider whether to order to compel the relevant parties to undergo a DNA test.
In CAS v MPPL & Anor, the trial judge in relying on the dicta in Lim Hooi Teik v Lee Lai Cheng held that proof of sexual relations between the first applicant and the respondent was sufficient for the court to order a DNA test. The High Court added a further requirement that the respondent had to establish a prima facie case that the sexual relations occurred during the period when the child was conceived, ie the conception period to support that assertion before the court grants the order that the relevant parties to undergo DNA testing to determine paternity.
In the appeal stage (MPPL & Anor v CAS), the Court of Appeal further held that apart from the addition to the fact of sexual relations during the conception period, the person asserting that claim of paternity may produce other supporting evidence to support that assertions:
… We also agree with the High Court that in addition to the fact of sexual relations during the conception period, the person asserting that claim of paternity may produce other additional evidence, oral or documentary, to support that assertion, before the court grants the order that the relevant parties, ie the child and the putative biological father, undergo DNA testing to determine paternity.
In conclusion, the High Court has general inherent power over a child to make an order to undertake a DNA test for the purposes of determining his paternity, the inherent power to make such order however bearing in mind that it should be exercised sparingly, particularly the burden is on the applicant to show that it is in his best interest and welfare for the court to make an order to compel parties to undergo DNA test and the applicant must establish a strong prima facie case.
[i] [1968] 1 All ER 20
[ii] [2000] 2 MLJ 569
[iii] [2017] 10 MLJ 331
[iv] [2023] 4 MLJ 51
[v] [2017] 4 MLJ (Madras Law Journal) 463
Authored by Hussaini Rozi
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