A Legal Analysis of the Draft Bill Amending 1993 Narcotic Drugs and Psychotropic Substances Law
The draft bill introduces important changes to Myanmar drug law. Most significantly, it intends to place public health at the heart of the country’s drug control strategy, and lengthy prison penalties for drug use have been eliminated to facilitate access to health services for drug users. This is a positive improvement and must be applauded as a progressive measure. Nevertheless, the draft bill also contains a number of shortfalls that could be addressed with a few basic, although fundamental, adjustments.
This paper thoroughly analyses the draft bill, and looks in detail at its provisions in the light of UN drug control treaties, international human rights norms, and the latest evidence and international best practices. We hope that this document will be a useful tool for members of the Government, Members of the Parliament, and other policy makers who are taking part in the drug law and policy reform processes in Myanmar. In this way we believe it can help further improve the current legislation.
1. During their discussion on 16 August 2017, representatives from the upper house of Parliament (Amyothar Hluttaw) approved changes that eliminate prison penalties for drug use, reportedly to facilitate drug users’ access to health services. A provision that exempted drug users caught with small amounts of drugs for personal use, which was initially included in the draft bill, was, however, removed after discussions. This unexpected decision is, unfortunately, likely to jeopardise the entire reform, as using drugs necessarily involves possessing them in the first place. Indeed, it directly undermines the draft bill’s primary objective, which has been repeatedly asserted as placing the focus on public health rather than criminal justice. By eliminating prison penalties for drug use, policy makers have acknowledged that severe punishment is an obstacle for drug users to access health services. No significant gain can be expected for public health if drug users risk multiple years in jail for possessing small quantities for their own consumption.
It is critically important that representatives from the lower house of Parliament (Pyithu Hluttaw), who will discuss the draft bill in the near future, re-introduce the initial exemption clause, which is crucial for the success of the reform.
2. The current draft bill foresees that drug treatment remains compulsory in principle (“the drug user shall go under treatment...”). Although no prison penalty is foreseen for non-compliance with this requirement, forcing an individual to undertake treatment clearly violates individual fundamental freedoms and contradicts the right to health contained in the Constitution of the World Health Organization (WHO), as well as principles of drug dependence treatment advised by WHO and the UN Office on Drugs and Crime (UNODC). It also disregards scientific evidence and constitutes a waste of public resources, as the majority of drug users are actually not dependent users and therefore need no treatment.
The law should explicitly specify that treatment – and rehabilitation – should always remain voluntary, as this could easily lead to detention under the guise of treatment. Instead, efforts should focus on making access to voluntary treatment, information, counselling and harm reduction services more easily available to drug users who need them across the country.
3. The draft bill foresees no changes in relation to opium farmers, and continues to prescribe extremely harsh sanctions for people who cultivate illicit plants. This is problematic as it ignores the fact that hundreds of thousands of poor farmers, often living in highly insecure areas, still rely on small-scale poppy cultivation to survive. Even though subsistence farmers are rarely prosecuted, the existence of prison penalties puts them at serious risk of harassment and bribery by the police. Maintaining penalties also results in breaching international human rights (e.g. the right to be free from hunger, the right to live a life in dignity) and constitutes a significant barrier to development.
Ending prison penalties for small-scale cultivation, in conditions defined by the Government of Myanmar, should be considered, and milder and more proportionate sanctions, such as non-custodial measures or the imposition of fines or warnings as alternatives to incarceration, should be contemplated.
4. Although the draft bill foresees no prison penalties for drug use itself, it proposes no change regarding the prescribed prison penalties for other drug-related offences. Generally speaking, all sanctions prescribed in the law continue to be extremely harsh and grossly disproportionate. This is the case, as mentioned above, for small-scale opium farmers, but also for low-level dealers (‘user-dealers’) or drug carriers who can be punished with 20 or more years of imprisonment, even though it is well known that they have only a very limited role and responsibility in the drug trade. Proportionate sentences should not only be determined by quantities of drugs possessed or cultivated, but also by other important factors such as the extent of the harm caused by the offence, the role of the offender in the illicit drug market, or the existence of mitigating factors (e.g. first-time offence, absence of alternative livelihood options, sole caregiver to children or other dependents, absence of violence in committing the offence etc.). In addition to this, the use of mandatory minimum sentences (e.g. “from a minimum of 5 years imprisonment...”) is an obstacle to proportionate sentencing as it precludes a judge from taking into account all circumstances of the offence. Finally, the death penalty for drug offences is incompatible with both international human rights norms and international drug control treaties.
It is suggested that the law explicitly includes and considers all circumstances of the offence and the offender, thereby establishing culpability and deciding a proportionate sentence. Mandatory minimum sentences and death penalty for drug offences should also be removed.