Malaysia wants to decriminalize drugs. Does this mean you can smoke weed in public?

*Article originally written on 2 July 2019

Recently, the United Nations have voted to officially recognise cannabis as a medicine. It’s probably a high-ly anticipated news for some, but it’s still considered as a banned drug for non-medical use under United Nations law.

There’s no news yet on whether Malaysia would adopt a similar law, but there is a chance that our drug laws might change sometime in the future.

Back in 2019, you might have read in the papers that Malaysia is looking towards decriminalising drug possession for personal use. This was announced by our former Health Minister, Dr Dzulkefly Ahmad, who had this to say: 

“Malaysia is about to embark on a significant game-changer policy of decriminalisation of drug addicts and addiction.

"This is not to be mistaken for legalising drugs, and I again categorically emphasise that decriminalising does NOT mean that we are legalising drugs," – Dr Dzulkefly Ahmad, as quoted from The Star Online, 27 June 2019 [emphasis added]

Essentially, the minister is saying that decriminalising means that the government would be removing criminal penalties but, at the same time, this doesn’t mean that drugs would be legalised. You can read the news report linked above for more detailed information as well as the reasons they’re doing this, but unlike the image above – it doesn’t mean you can walk around KLCC smoking a blunt or swinging a bag of Molly in your hand. 

At this point, you might be thinking that this doesn’t make sense because, if it’s not a crime then doesn’t that make it……..legal?

You don’t have to go to jail, but you can still get punished for it

In order to make more sense of this, we spoke to lawyer Fahri Azzat to clarify the difference between decriminalization and legalization, as well as how the government may change the laws to reflect this new direction.

As a super simplistic explanation, there are actually two categories of wrongdoing that you can commit. The first is a civil wrongdoing, such as speeding on the highway or breaking a contract. These usually results in a fine or giving some sort of compensation to the other party. The second is a criminal wrongdoing (basically, a crime) which is a lot more serious and can result in penal punishments such as a prison sentence, whipping, or death sentence. 

So following this line of thought, we can now begin to see how decriminalization as legalization can be different:

• Legalization – It’s not a civil or criminal offence. You cannot be punished for it because you didn’t break any laws.
• Decriminalization – It’s no longer a criminal offence, but it’s still a civil offence. You’re still breaking the law and can still be punished, just that you won’t be facing penal punishments like prison, whipping, or death.

So in the context of drug possession, Fahri explains it as such: 

“Decriminalising means that the offence of drug possession will not be punished with penal punishments such as prison and whipping. It does not mean that it is not an offence - it is a civil offence as opposed to a criminal offence. Civil offences are usually punished with fines and maybe confiscation of the stuff. It's like being charged for a traffic offence now instead of 'drug trafficking' or 'drug possession' offence. 

Legalisation is when drugs are now legal to use. That means, there is no offence whatsoever - whether civil or criminal.” – Fahri Azzat, in an interview with ASKLEGAL

To help you visualise this better, the current law (under Section 12(3) of the Dangerous Drugs Act) punishes drug possession with a fine of up to RM100,000 or up to five years in prison. 

In contrast, decriminalization would mean that, for the same offence, you may be fined a certain amount and have your drugs confiscated (instead of getting jail time). However, it’s important to note that there are no details on the specific punishments yet – we’ll only know for sure if/when the government announces the actual changes.

Before you decide to reap the ganja-ran of these new rules by stocking up on drugs or holding a pot party, there’s one more thing you should know...

You can still go to jail (or worse) for drug trafficking 

If you noticed, our former Health Minister was rather specific with his words. Instead of just saying ‘decriminalising drug possession,’ he said the government would be decriminalising drug possession for personal use.

This is because there are actually three ‘categories’ of drug offences:

• Self-administration (for personal use)
• Drug possession
• Drug trafficking

So, this means that only self-administration will be decriminalized (we’ll talk about drug possession in the next section), but drug trafficking will still be a criminal offense that can land you with a death sentence. 

The next question is, how would the police know what you intend to do with the drugs? After all, if the police charge you with drug trafficking after finding 4kgs of ganja on you, you can always argue that you’re just a very heavy pot smoker stocking up for the long weekend...right? 

Well, the simple answer is that it all boils down to the weight of the drugs you were caught with, and something called presumption. 

You might have noticed that reports of drug busts always mention the amount of drugs seized down to the last miligram. That’s not an odd police flex but it’s just how they determine what you were thinking (intention) of using those drugs for. This is where presumptions come in. Section 37 of the Dangerous Drugs Act outline a list of conditions and weight of drugs that would constitute the crime of trafficking drugs. If you check enough boxes, the authorities can then presume that you had an intention to sell the drugs. 

For example, Section 37(da) puts the threshold for ganja (cannabis) possession at 200 grams. So because your 4kg of ganja far exceeds that threshold, the authorities can presume that you’re trafficking cannabis and charge you for the crime even if you truly-genuinely-cross-your-heart intended to smoke it all yourself. 

If you want more details on how presumptions work, check out the link below.

[READ MORE: 5 Things you need to know about Malaysia’s drug laws]

So we know for sure now that drug trafficking is a strict no-no… but what about self administration and drug possession?

We…. really don’t know how they’re going to change the law yet

Again, until the changes to the laws have been passed, there’s no real way of knowing what these changes will be or what kind of punishments will be introduced. In fact, we don’t even know for sure if ALL drugs will be decriminalized or just specific ones.

However, if you’re curious about how they’re going to change the law, we can offer some educated guesses with Fahri’s help. 

Very simply, self administration can be defined as possessing drugs to use it for yourself while drug possession can be defined as being in possession of drugs. As you can see, there seems to be a very thin difference between the two, so there’s a possibility that the sections within the DDA for both may be changed or repealed (removed).

“Both possession and self-administration go hand in hand. It seems silly to decriminalise one but not the other. That's why for me they have to look at Sections 6 and 15 of the DDA together. 

For both these provisions, the government can either limit it (prescribing a maximum amount of the drug or reducing the punishments) or repeal it.” - Fahri Azzat

The First Schedule of the Dangerous Drugs Act is basically a list of substances that lawmakers have classified as, well, dangerous. So this means that, if the government decides to decriminalize the private use of only a few substances, they can just remove them from the Schedule.

Using cannabis as an example:

 “If they want to decriminalize that, it means they recognize that cannabis is not a dangerous drug. So for me, it should not even be part of the act. [So they can] amend the First Schedule, probably Parts I and II, to remove cannabis.” 

Fahri then jokes that perhaps these substances can still be controlled by listing them under a new law:

“Maybe they need to come up with another Act after they remove cannabis from the DDA52 and incorporate a NDDA2019 - Non-Dangerous Drugs Act 2019. Haha” 

Again, this is just to give you an idea of how they might go around the decriminalizing process. If or when the time comes, the actual method, procedures, and punishments may be completely different from what’s mentioned above. 

Don’t go around carrying drugs yet!

Until and unless Parliament passes a new law or amends the existing Dangerous Drugs Act, the old laws are still in force.

This means that if you are caught with any amount of dangerous drugs on you, this would be a criminal offence under the Act and you may be sent to prison. 

Or worse.