Legal Challenges in Providing Treatment for People who Use Drugs (PWUDs) in Malaysia

In the early 2000s, Amphetamine Type Stimulants (ATS), primarily methamphetamine, started to dominate the illicit drug markets, including in Malaysia. In recent years, ATS use disorder accounts for most of drug-related treatment admissions in Asia (UNODC, 2019a). This shift in drug use patterns prompted changes in how drug enforcement and related government agencies address drug use problems. In this viewpoint, we argue that in Malaysia, application of existing laws by the law enforcement agencies, the Royal Malaysia Police detaining both drug traffickers/sellers and people who use drugs (PWUDs) and the National Anti-Drugs Agency detaining PWUDs, increase incarceration rates and penalties for ATS use.

Historically in Malaysia treatment and rehabilitation approaches for PWUDs were limited to abstinence-based institutional programmes (Narayanan et al., 2011). In the early 2000s, in response to the HIV epidemic, which was then concentrated among people who inject drugs, the government introduced and disseminated medical treatments for opioid use disorder (Vicknasingam et al., 2015). Additionally, needle and syringe programmes (NSP) and community-based services for PWUDs have been introduced (Reid et al., 2007). However, despite a marked increase in ATS use, the availability and access to medical treatments for ATS use disorder remained very limited (Chawarski et al., 2012). While there are no approved and highly efficacious medications for ATS use disorders, treatments combining evidence based medical and psychosocial interventions have demonstrated some efficacy and can be offered in existing healthcare and community settings (UNODC, 2019b).

Malaysian enforcement agencies use different laws with people who use opioids (PWUOs) and with people who use ATS (PWUAs). Section 3(1) of the Drug Dependants (Treatment and Rehabilitation) Act 1983 which allows an enforcement officer to take into custody any person reasonably suspected to be drug dependent is applied primarily for PWUOs. Under subsequent Section 6(1), the detained individual is evaluated by a government medical officer or a registered medical practitioner to be certified as drug dependent, defined by Section 2(1) of the act, before appearing before a court. Based on the recommendation of a National Anti-Drugs Agency officer, the court could order the detained person to either a) be sent to a Rehabilitation Centre for two years before undergoing community supervision for another two years, or b) receive community supervision by the National Anti-Drugs Agency, consisting of counselling and random urine drug tests, for two to three years.

However, because detained PWUAs often do not have clear symptoms indicative of physiological drug dependence (i.e., no physical withdrawal signs), medical officers are reluctant to legally certify ATS dependence in PWUAs, as defined by the Section 2(1) of the Drug Dependants (Treatment and Rehabilitation) Act 1983. Consequently, the enforcement agencies use Section 15(1) of the Dangerous Drug Act 1952 to detain PWUAs and to obtain a conviction. Under this section, consuming, taking, or self-administering any dangerous drugs, or being present in premises where dangerous drugs may be consumed, taken, or administered is punishable by a fine not exceeding MYR 5,000 (~ USD 1,240) or imprisonment not exceeding two years. Section 15(1) of Dangerous Drug Act 1952 is applied together with subsequent Section 38B(1) which states that after criminal punishment, the convicted individual should undergo two to three years of community supervision.

Data presented in Table 1 illustrates that between 2015 and 2020 there was an approximately ninefold difference in the numbers of PWUDs detained under Section 6(1) of Drug Dependants (Treatment and Rehabilitation) Act and under Section 15(1) of the Dangerous Drug Act 1952.

Table 1.

Number of PWUDs detained under Section 6(1) of Drug Dependants (Treatment and Rehabilitation) Act 1983 and Section 15(1) of Dangerous Drug Act 1952 between 2015 and 2020.

Year	Section 6(1)	Section 15(1)
2015	10,660	84,205
2016	9,928	85,004
2017	5,497	80,925
2018	8,147	75,465
2019	8,283	80,386
2020	8,027	62,318
Total	50,542	468,303

Source: National Anti-Drugs Agency 2020

Key differences between the two laws stem from the procedures used to determine which of the available interventions should be applied to detained PWUDs. PWUOs are examined by a medical practitioner to evaluate his/her opioid dependence, while for PWUAs often there is no medical assessment, and their subsequent legal status and applicable interventions are based solely on legal determinations and a urine drug test result. The legal process under Section 6(1) Drug Dependants (Treatment and Rehabilitation) Act 1983 is considered a court mandated treatment order, while application of Section 15(1) of Dangerous Drug Act 1952 results in a conviction recorded under the Registration of Criminals and Undesirable Persons Act 1969. Only after serving a sentence under Section 15(1) of Dangerous Drug Act 1952, is the treatment and rehabilitation component under Section 38B(1) for PWUAs is applied.

Recently, widespread and arbitrary use of the laws by the police in some jurisdictions was observed, where decisions to use Section 15(1) of Dangerous Drug Act 1952 in combination with subsequent Section 39C were made by the arresting officers. Section 39C imposes increased penalties for PWUDs with prior admissions or convictions. Specifically, two previous admissions and/or convictions under section 15(1)(a) can extend the prison term to between five to seven years and result in between three to nine whipping strokes. Additional previous convictions increase the years of imprisonment and the number of whipping strokes.

This net-deepening application of Section 39C to enhance prison sentences for those who have been previously convicted under Section 15(1)(a) increased from 430 cases in 2016, to 1,432 in 2017, 2,347 in 2018, and 2,552 in 2019 (Royal Malaysian Police, 2020). It is estimated that currently at least 35% of drug offenders are serving sentences under Section 15(1) of Dangerous Drug Act 1952 in Malaysian prisons who could have been subject to Section 6(1) and hence diverted to programmes under the National Anti-Drugs Agency (Malaysian Prisons Department, 2019).

The arbitrary use of laws by enforcement agencies with mostly prohibitionist and penitentiary approaches toward PWUDs, while limiting provision of community-based interventions and voluntary drug treatments, has also been reported in other Asian countries (International Drug Policy Consortium (IDPC), 2019). In Malaysia, the increased rates of people being arrested under section 15(1) of Dangerous Drug Act 1952 compared to those who are detained under section 6(1) of Drug Dependants (Treatment and Rehabilitation) Act 1983 needs urgent attention.

A national drug policy that decriminalises substance use and primarily focuses on provision of effective medical interventions for PWUDs, including a broader provision of effective treatment interventions for imprisoned drug offenders, should be implemented. While a full implementation of such a model may take time, the relevant stakeholders should examine how equitable treatment for PWUDs can be provided in Malaysia under the existing laws and regulations. The first challenge is for the enforcement agencies to embrace advances made by the international community in their generally accepted recognition of substance use as complex multifactorial problem, where public- and individual-health are the key factors that need to be addressed while maintaining the human rights of all affected individuals (IDPC, 2019). Recognition of substance use as a public health crisis should prompt the government to entrust management and support of PWUDs to the Health Ministry rather than the Home Ministry. Additional training and resources for law enforcement and government medical officers and other medical personnel to help them evaluate and diagnose the needs of PWUAs, along with increased capacity to provide treatment for PWUAs is also urgently needed.