T
his is Part 2 of a series of articles exploring the issues surrounding drug decriminalisation in Malaysia.
At a police checkpoint one Saturday evening sometime in 2022, an officer waved a 20-something car driver to the side.
That it was the height of the COVID-19 pandemic was bad timing. The fact that Danial Hamid’s (not his real name) bag contained 100 grammes of marijuana was sheer bad luck. Possessing 200g or less is a criminal offence under Section 39A (2) of the Dangerous Drugs Act 1952. Any cannabis over 200g is considered trafficking.
Danial, who works in the media, sighed inwardly and stopped his car. He smiled nervously, his mind anxiously preparing for the coming confrontation.
A policeman came over and soon found the drug, which was in peach-sized clumps.
“It wasn’t much actually, but to their eyes, it looked like a lot,” Danial told Bernama via a telephone interview.
With much to lose – Danial was facing life imprisonment and caning upon conviction – the officer agreed to look the other way and let him go.
This would not be the only time Danial, who said he uses weed (the street name for marijuana) occasionally to treat his anxiety, had a brush with the law. He has had several encounters since then, and considers it part and parcel of using illicit drugs. So far, he has been able to charm his way out.
But if the Malaysian government decriminalises minor drug offences as part of its efforts to reduce the toll drug laws have taken on the Malaysian population, society and economy, any future interactions between Danial and law enforcement will go much differently.
Rather than ending the encounter with an arrest, the police officer would instead confiscate his stash and write a ticket to Danial requiring him to report to a drug counselling centre. An addiction expert there would ascertain his level of dependence and either give him advice or refer him to a rehabilitation centre. Danial would then leave the centre with information and help, and no criminal record.
DECRIMINALISE, NOT LEGALISE
“What many people do not understand is that decriminalising drugs does not mean legalising them,” Palani Narayanan, director of the Malaysian AIDS Foundation’s Drug Policy Programme Malaysia, said at Malaysia’s first Drug Policy Summit, held here in November.
In other words, drugs that the government deemed dangerous, such as heroin, cocaine, methamphetamines and amphetamines will still be illegal. Trafficking them will still be a crime.
Syabu (methamphetamine) . -- Photograph for illustrative purposes
Instead, the idea is to stop considering minor drug offences, such as drug possession for personal use and abusing drugs, as crimes and to treat them as “administrative offences” that may require counselling and health assistance.
This is how Portugal, which decriminalised minor drug offences and addiction in 2001, approaches drug decriminalisation. Their health-led approach has successfully reduced the number of drug-related deaths, arrests and drug use in Portugal, below the average in Europe.
Malaysia hopes to learn from the European country’s example, as well as from others with slightly different approaches.
“(In Portugal, minor drug offences are) considered an administrative offence pretty similar to driving offences, for example,” said Nuno Capaz, vice president of the Commission for the Dissuasion of Drug Addiction in Lisbon, Portugal. He was one of the speakers at the recent Drug Policy Summit.
Under Portuguese laws, possessing small amounts of drugs, or even abusing drugs, is not considered a crime or deserving of criminal punishment.
Capaz was quick to stress that decriminalisation does not mean it is an “open day for drugs” in Portugal, saying it is still illegal to possess drugs even if one did not end up in prison for it. Unlike many other countries, such as Thailand and some states in the United States, marijuana, as well as the so-called “hard” drugs, are still illegal in Portugal.
“There's no open store (in Portugal) where you can check in to buy the substance. It's an illicit act to be carrying the substance with you for personal usage (too). If you come across a police officer, the substance will be seized from you. You're not allowed to keep the substance in your possession even if it's for personal usage,” he said.
However, he warned against adopting Portugal’s model for drug decriminalisation wholesale, saying Malaysia needed a drug decriminalisation policy that fitted its needs and culture.
“But the most important thing is the political will,” he said.
COUNTERPOINT
Capaz had a point. While Portugal also suffered from prison overcrowding and drug-related illnesses such as HIV/AIDS even as the drug trade showed no sign of diminishing in the early 2000s, their drug user profile is somewhat different.
According to data from the EU, cannabis is the most popular drug in Portugal, followed by heroin and cocaine. In Malaysia, the most abused substance among inmates at the National Anti-Drug Agency (AADK) rehabilitation centres is amphetamine-like stimulants (ATS) such as ecstasy, ice and syabu, followed by opiates, and cocaine. Only four percent of the inmates used cannabis.
The data may not be accurate as it is based on the number of inmates at the rehabilitation centres. Research published in 2022 in the International Environmental Research and Public Health Journal found that cannabis was the most popular drug among Malaysian youths aged 15 to 40, followed by ATS and kratom.
At the Drug Policy Summit, experts from public health, legal, law enforcement and government sectors agreed that Portugal does not present a one-size-fits-all solution.
ACP Chandra Segaran Subramaniam, assistant director of the Investigation and Legal Division at the Narcotics Crime Investigation Department at Bukit Aman, who spoke at the Drug Policy Summit, supported decriminalising some drug offences, with caveats.
“We need to be very cautious... we only use Portugal as a model, you know, but we also have to look at other countries that decriminalised but failed,” he warned.
He said decriminalisation should not open the floodgates, but instead should go “step by step”, such as allowing some Malaysians who test positive for drugs – which comes under Section 15 of the Dangerous Drugs Act as drug use – but do not fall under the category of possession or trafficking of drugs to seek counselling from AADK. These people would not have a criminal record.
In this scenario, Danial would not have been able to get away either, as the cannabis in his car would have necessitated his arrest.
Others argued for more liberalisation of the drug policy, suggesting legalisation of certain less serious drugs, such as kratom (listed under the Poisons Act) and cannabis (listed as a banned substance under the Dangerous Drugs Act) that are also used for medical purposes.
“If we decriminalise, we'll solve some of the problems while maintaining some of them. When we legalise, we're going to have some different problems to deal with, but the bigger part of the trafficking problem will be gone,” said Dobby Chew Chuan Yang, human rights activist and chief executive officer of anti-death penalty group HAYAT.
However, Deputy Health Minister Datuk Lanisman Awang Sauni told Bernama that legalising medical marijuana was not in Malaysia’s drug policy reform plans.
LONG PROCESS
Many at the summit were also concerned with how law enforcement agencies would take to drug decriminalisation, should it happen. The police and other law enforcement personnel are crucial for drug decriminalisation to work as they are the ones who are most likely to encounter drug users and addicts.
Based on his experience, Rui Costa, who is the commander of criminal investigation in Lisbon, told Bernama that the police adapted to drug decriminalisation in Portugal within a few years. But he admitted there were a few police officers who did not like the steps involved in the decriminalisation process.
“Among law enforcement officers, they do have this idea that the decriminalisation makes a lot of police officers (act) like counsellors or social workers instead of police officers because they have to give a referral to the Commission (for the Dissuasion of Drug Addiction). And some of them feel like this is not police work. So they just let the people go,” he said via Google Meet.
Other than better data, experts say decriminalising minor drug offences would help reduce corruption – a goal the government has vowed to achieve.
Chandra Segaran said the police will follow the law as required. He also suggested the public report any police misconduct to Bukit Aman.
The road to drug decriminalisation will take a long time in Malaysia. Policymakers and stakeholders have to formulate what constitutes decriminalisation. The Cabinet has to agree. Laws have to be amended. Parliament has to pass the amendments.
But decriminalisation would be a relief to Danial and others like him. Always in the back of his mind is his life, his livelihood, his future, his relationships. If arrested, charged and convicted, he would have to serve time in prison or in a rehabilitation facility, and forever be recorded as a criminal and an “undesirable person” in Malaysia under current laws, something he finds galling.
“I mean the law, the law can (label) you a bad person (at the drop of a hat). That’s not nice at all,” Danial said with a small laugh.
