In conjunction with the National Anti-Drugs Day on 19 February 2021, Home Minister Datuk Seri Hamzah Zainudin announced that the Drug and Substance Abuse Act (“New Act”) will replace the Drug Dependence (Treatment and Rehabilitation) Act 1983 (“1983 Act”) later this year. This announcement then begs the following questions: What does this mean for the drug policy landscape in Malaysia? Are we finally seeing the end of the War on Drugs?
A. The War on Drugs
The War on Drugs ideology was first introduced in the US by the Nixon administration in the 1970s, declaring drug use as the public’s number one enemy. This comprised extensive government-led initiatives to stop drug use, distribution and trade by, amongst others imposing severe punitive responses such as arresting and incarcerating people who use drugs (“PWUD”) and not offering treatment and rehabilitation to those who needed it. Global evidence from the past 20 years shows that punitive drug policies have caused more harm than the drugs themselves, and therefore, new public health policy approaches are needed.
Malaysia declared the War on Drugs in the 1980s, and in over 40 years, little evidence suggests success in reducing drug use – in fact, it is quite the contrary. Statistics by the National Anti-Drugs Agency show that arrest rates relating to the Dangerous Drugs Act 1952 (“1952 Act”) steadily increased annually. The repercussions of these increasing arrests and punishments are now clearer than ever, particularly when examining prison conditions and capacities in light of COVID-19. In pre-pandemic December 2019, prisons were at more than 30% overcapacity, with more than half of its population being drug offenders. In the era of COVID-19, there are prisons running at over 200% capacity, with 60% of people in prisons incarcerated for non-violent minor drug-related offences.
The failure of the War on Drugs in Malaysia can also be seen through the increasing number of infectious diseases (COVID-19, tuberculosis, etc.) outbreaks amongst people in prisons and the wider community, further supporting the fact that drug policies are a fundamental aspect of public health.
B. The 1983 Act vs the New Act
The recent announcement on the New Act certainly signals a move in the right direction – but is it a leap forward, or a mere step?
Under the 1983 Act, a person reasonably suspected to be a PWUD may be detained and made to undergo drug tests. If found to be drug-dependent, the PWUD is then referred to a Magistrates’ Court. Upon evaluations of a medical practitioner opining the person to be a PWUD, the Magistrates’ Court may then order the PWUD to:
- undergo compulsory rehabilitation centre for a period of two (2) years, and thereafter to undergo supervision for another two (2) years; or
- undergo supervision by an officer for a period of not less than two (2) and not more than three (3) years.
The 1983 Act also contains provisions that criminalise the failure of PWUD to comply with the procedures set out in the 1983 Act, which includes a prison term of up to three (3) years and/or whipping of up to three (3) strokes. There is no denying these harmful and punitive elements of the 1983 Act.
The New Act, on the other hand, introduces rehabilitation and treatment programmes for drug dependents, instead of sending them to prisons. In a Facebook Live announcing the New Act, the Home Minister says that this shift in response is aimed at removing the prevalent stigma surrounding drug use and addiction, as well as reintegrating those concerned back into the community and giving them a second chance at life post-drug involvement.
At face value, this is a welcome change. However, in analysing the New Act, what is not yet clear is whether the proposed rehabilitation and treatment programmes are mandatory for PWUD. If mandatory, it could be argued that there is little difference to a prison sentence, with public health experts expressing that instead, ‘rehabilitation and treatment under the New Act should comprise a more voluntary and supportive model of treatment, care and support that is evidence-based’.
Further, most drug-related arrests are made under the 1952 Act, with only a small minority of those detained for drug use being under the 1983 Act. Therefore, by only repealing the 1983 Act with no review or reform of the 1952 Act, there is little progress towards drug policy reform overall as drug use cannot be discussed without addressing drug possession. The continued existence of the 1952 Act will, in essence, maintain the undesirable status quo: drug-related arrests will increase, prisons will continue to be populated by minor and low-level drug offenders, prison overcrowding will grow increasingly severe and infectious diseases outbreaks in prisons (and the wider community) will remain rampant.
C. Is Decriminalisation the Solution?
Evidently, the New Act itself is not enough for effective drug policy reform. In determining the way forward, the decriminalisation of drugs for personal use and personal possession is an imperative consideration. As a starting point, it is important to note that decriminalisation does not mean that drug usage becomes legal, but rather, it means that people are not criminalised for the personal use and personal possession of drugs. Decriminalisation defines drug use as a health and social issue, simultaneously reducing the stigma of PWUD, and tears away from treating drug use as a criminal justice or moral issue. A success story in this regard is Portugal’s decriminalisation of drugs since 2001.
Portugal’s decriminalisation of low-level possession and use of all illicit drugs involved eliminating criminal penalties for such drug uses and reclassifying these as ‘administrative violations.’ One found in possession of personal-use drugs of any amount can be referred to a voluntary treatment programme, asked to pay a fine or be imposed other administrative sanctions. In two decades of decriminalisation, among the celebrated outcomes are that Portugal has seen no major increases in drug use, there are fewer people arrested and incarcerated for drugs and most importantly, more people (who need it) are receiving drug treatment. Paired with the move to decriminalise, Portugal extensively expanded its harm reduction services, thus demonstrating that a health-centred approach to drug use can significantly improve public safety and public health.
To suggest that Malaysia adopt and culturally integrate Portugal’s model and adopt the decriminalisation of drugs, particularly all illicit drugs, will undoubtedly receive mixed responses from stakeholders and the wider community. Perhaps, a more immediate takeaway is to acknowledge and understand that Portugal is a testament to the success of implementing strong reforms based on science and not punishment, which is certainly the way Malaysia ought to strive towards too.
The New Act is an important step (but not yet a leap) in the right direction of ending the War on Drugs.
For truly effective drug policy reform, experts and community members must continuously work alongside the government and other key stakeholders. There is a need to comprehensively assess and reconsider the 1952 Act and other drug-related laws and to thereafter establish drug-related laws and policies centred around evidence.
This article is contributed by Hanna Haizal, who is currently a Research Assistant at the Centre of Excellence for Research in AIDS (CERIA), University of Malaya. She currently works on drug policy and prison reform.
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