Will Myanmar lead drug policy reform in Southeast Asia? A commentary on a draft bill recently proposed at Parliament

Change is in the air

Myanmar is better known for its serious drug problems - including large-scale illicit drugs production and trafficking and high rates of heroin use - than for implementing progressive drug policies that prioritise the health of its population. However, this could change in the near future. Last year, Police Colonel Myint Aung, head of the International Department of the Central Committee for Drug Abuse Control (CCDAC), commented in an interview that legislative changes were being considered to “make [drug use] a health issue, rather than a criminal one”.[1] More recently, Major General Aung Soe, the military-appointed deputy Minister for Home Affairs, declared to a Member of the Parliament that “prevention and judicial strategies are not enough to solve drug problems,” and that “the economy, social affairs, health and development must [also] be taken into consideration”.[2]

This changing approach to tackling drug issues is reflected in a draft bill that was approved by the upper house of the Parliament (“Amyothar Hluttaw”) on the 16th of August. The text proposes to introduce several amendments to 1993 Narcotic Drugs and Psychotropic Substances Law and, most notably, to eliminate prison penalties for drug use. In a country where failing to register as a drug user can lead to 3 to 5 years imprisonment, and where up to 74% of all inmates are in prison for – mostly minor – drug-related offences,[3] the step is  significant. However, if Myanmar policy makers really want drug users to be seen as people who need help and support, rather than as merely criminals, it is fundamental that they also extend the exemption from prison penalties to include the possession of small amounts of drugs for personal use.

The decriminalisation of drug use has long been advocated for by numerous organisations, including several local and international NGOs and UN Agencies.[4] In February this year, the Drug Policy Advocacy Group – Myanmar (DPAG), a civil society platform, also released a briefing that recommended ending the criminalisation of drug use and increasing access to health, harm reduction and voluntary treatment for drug users, among other interventions. Indeed, extensive evidence from around the world shows that, while the fear of prison penalties is not an effective deterrent against drug use,[5] it does have a substantial negative impact on the health of drug users and the community at large.[6]

What benefits can be expected from the current drug law reform?

The elimination of prison penalties for drug use will no doubt generate a debate in Myanmar. Already numerous people, including parents and teachers, are raising an important and legitimate question: what will happen if Myanmar stops arresting and incarcerating drug users? Won’t the country witness a further increase of drug use, especially among young people?

The best way to answer this question is to look at what has happened in the more than 30 countries that have already conducted similar reforms, albeit using very different models.[7] Among those, the case of Portugal is emblematic, as results have been closely monitored and speak for themselves.

In 2001, the Portuguese Government announced that it would decriminalise drug use and scale up health and social interventions for drug users. Opponents strongly criticised the Government’s decision and predicted a rampant increase of drug use among the youth, or even the impending transformation of Portugal into a haven for “drug tourists”. More than 15 years later, none of these predictions have materialised. Instead, Portugal’s policy has been saluted as one of the most successful in the world due to overwhelmingly positive results: the transmission of HIV and other blood-borne diseases sharply decreased; the number of deaths by overdose dropped; the number of drug users entering drug dependence treatment programmes increased dramatically, while the number of drug users and problematic drug users, especially among adolescents, fell. Finally, overcrowding in the criminal justice system reduced and crimes related to drug consumption, in particular petty thefts, declined.[8]

Several countries in Latin America have also carried out legal reforms that pursued the same objective and decriminalised drug use. In Southeast Asia, neighbouring Thailand is considering introducing similar changes to reduce prison overcrowding and respond more effectively to drug use related problems.[9] Myanmar’s decision to prioritise a public health and human rights approach, in line with the 2016 UNGASS Outcome Document, is a highly encouraging move that sharply contrasts with the intensification of the war on drugs and the increase of violence observed in the Philippines and a few other countries in the region.[10]

Of course, every context is unique, and it is always difficult to anticipate the impact of a given policy change. However, the numerous experiences around the world clearly show that the harms of criminalisation far outweigh those of decriminalisation.[11] The Myanmar government’s intention to eliminate prison penalties for drug use is therefore excellent news and must be applauded.

A closer look at the proposed changes, nevertheless, reveals that the draft bill recently approved by the upper house of the Parliament still contains problematic aspects. Four of them, in particular, require special attention: the continued criminalisation of drug possession for personal use; the imposition of compulsory treatment for drug users; the heavy criminalisation of small-scale subsistence poppy farmers; and the continued possibility of using the death penalty for drug related offences.

Fortunately, it is not too late to incorporate additional amendments to the text. The following sections propose calibrated but essential changes that Members of the Parliament could consider as priorities. These would assuredly help to improve the lives of tens of thousands of people suffering from drug related problems in the country.

Additional Proposed Amendments

Lifting prison penalties for drug use and possession for personal use: a fundamental prerequisite for sound public health programming

Representatives from the upper house of the Parliament approved an amendment that exempts drug users from prison penalties. They reportedly did so in an attempt to facilitate their access to health services. The possession of small amounts of drugs for personal use, which was initially also included in the provision, was, however, removed after discussions. This unexpected decision is, unfortunately, likely to jeopardise the entire reform. Indeed, it directly undermines the 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’ access to health services. Then, the exemption should also apply to the possession of small amounts of drugs for personal use. In fact, using drugs necessarily involves possessing them in the first place. The establishment, by the Ministry of Health, of threshold quantities deemed acceptable for personal use could effectively help the police and judges to distinguish between simple users and dealers, and in so doing, prevent any increase in trafficking.

No significant gain can be expected on the front of public health if drug users still risk multiple years or incarceration for the simple act of holding small quantities of drugs for their own consumption. It is therefore absolutely crucial for the success of the reform that representatives from the lower house of the Parliament (“Pyithu Hluttaw”), who will also discuss the bill in the near future, re-introduce the initial exemption clause.

Scaling up access to voluntary drug treatment

The new emphasis of the law on public health is a welcome improvement. However, the bill that was approved by the upper house contains an obligation for all drug users to undergo drug treatment (Section 9, sub-section a): “The drug user shall go under treatment at the Department or medical facilities approved by the Ministry of Health and Sports for this purpose”). This is problematic for two reasons.

First, medical science tells us that while the use of psychoactive substances always has the potential for harm, in practice most users will never experience any serious negative consequence from their drug use and may actually stop using at their own volition at some point in time. UNODC estimate that only about 10% of all drug users will ever develop a problematic pattern of drug use or become dependent on drugs.[12] Of course, this doesn’t mean that drug use cannot be harmful, and indeed in many cases it is. But it does tell us that treatment is actually not necessary for the great majority of drug users. It should, therefore, be offered only to people who really need it, that is, those engaging in problematic drug use, who have become dependent on drugs.

The second reason why making treatment compulsory is problematic is that this can lead to gross violations of human rights. Several countries in South East Asia – including Vietnam, Thailand, Cambodia, Malaysia and Lao People’s Democratic Republic - have been, for years, emphasising compulsory treatment for drug users in centres specifically designed for that purpose. Vietnam, for instance, decriminalised drug use in 2009, and replaced prison penalties with compulsory treatment in closed treatment centres. Interestingly, the Vietnamese Government used a similar language to that currently being used in Myanmar, arguing that drug users should not to be considered “criminals” anymore, but rather “patients”. In practice, the changes introduced turned out to be a mere continuation of repressive policies, with drug users still being detained, but this time in a different setting and under the guise of treatment.[13] Widespread violations of human rights, beatings and inhumane treatment were also reported. This led to an unprecedented call by 12 UN Agencies in 2012 for the immediate closure of all compulsory drug detention and rehabilitation centres, on the grounds that they violate human rights and threaten the health of detainees, and for the release of all detained individuals.[14]

In addition, evidence shows that compulsory treatment is highly ineffective: relapse rates as high as 90% have been reported following release from compulsory treatment centres in China, Cambodia or Vietnam.[15] Overall, the shortcomings of this approach became so severe that the Vietnamese Government decided in December 2013 to implement a partial pull back and initiated a transition from compulsory treatment in detention centres towards voluntary treatment in community-based settings.

This experience should serve as a warning for Myanmar policy makers about the risks of making treatment mandatory, repeating the mistakes of other countries in the region. Fortunately, Members of the Parliament still have the opportunity to review the wording of the relevant sections and can ensure that treatment remains voluntary in nature. Rather than making drug treatment an obligation, the Government should instead focus its efforts on making access to voluntary treatment, information, counselling and harm reduction services more easily available to drug users who need them.

Prioritising a development-led approach in opium growing areas

Another serious shortfall of the bill approved by the upper house of the Parliament is the fact that it does not address the situation of small-scale subsistence poppy farmers. No change or amendment has been proposed on this issue and poppy cultivation remains punishable with a minimum of 5 to 10 years imprisonment, regardless of the quantity cultivated or the circumstances of the offence. It is well known that most people who grow opium in Myanmar are not criminals but poor small-scale farmers who cultivate poppy as a way to survive.[16] Prescribing long-term prison penalties without addressing poverty, food insecurity, armed conflict, lack of basic infrastructure, land grabbing or the absence of viable employment opportunities, to name only a few of the difficulties faced by farmers, is both iniquitous and unrealistic.

The case of Thailand is, with this regard, an excellent example of good practice. In 1969, the Government of Thailand, under the leadership of the late King Bhumibol Adulyadej, invested significantly in development projects in poppy growing areas, bringing modern agriculture, market access and social services to highland communities. By 1985, opium cultivation had declined by nearly 80%, although this reduction can be partly attributed to the relocation of opium cultivation to other areas, notably including Myanmar – a phenomenon known as the “balloon effect”. Punishment and arrests of farmers remained minimal and forced eradication started only after the initial period of 15 years of sustained development. Today, opium production in Thailand has fallen to negligible levels.[17]

The Government and Members of the Parliament should seriously consider eliminating prison penalties for small-scale subsistence cultivation which takes place in the absence of sustainable alternative livelihood options. To prevent a potential increase of cultivation, limits and conditions could be defined by the authorities, in consultation with representatives from opium farming communities. At a minimum, milder and more proportionate sanctions should be contemplated as alternatives to incarceration for small-scale subsistence farmers, who should be differentiated from larger-scale commercial cultivators and investors. Generally, the Government should provide adequate sustainable development assistance before a farmer can be sanctioned for his or her dependence on the illicit drugs economy for basic subsistence.

Abolishing death penalty for drug offences

Although it is currently not used in Myanmar, the death penalty has been retained in the law for certain categories of drug offences. In this regard it must be noted that applying the death penalty to drug offences is both disproportionate and incompatible with international human rrights norms. In fact, the International Covenant on Civil and Political Rights, a major international human rights treaty, restricts the imposition of the death penalty only to the "most serious crime", to be understood as an offence that involves intentional killing or the taking of life. In other words, drug offences, of any nature or scale, do not constitute the most serious crime under international law. In addition, use of the death penalty for drug related offences is inconsistent with the objectives of the International Drug Control Treaties.[18] Finally, even in countries where the death penalty is being applied for drug offences, there is no evidence that it has any deterrent effect.[19] Retaining in law the option to sentence people to death for drug related offences could easily lead to actual executions. Myanmar policy makers are therefore strongly urged to reconsider the relevant section and abolish the death penalty for these offences.

The way forward: investing in health and development programmes

Beyond reviewing the law itself, it is equally critical that the Myanmar Government undertakes serious programmatic reforms. Indeed, the harms caused by problematic drug use and drug production cannot, and will not, be effectively mitigated without committing significant financial and human resources to health and social interventions for drug users, and to rural development programmes in opium growing communities.

Support harm reduction and increase access to voluntary, evidence-based drug treatment for drug users

One of the main public health risks associated with illicit drug use in Myanmar continues to be HIV and other blood-borne infections due to unsafe injecting practices.[20] To respond to this emergency, the Myanmar Ministry of Health has again included harm reduction services for people who inject drugs as a key priority of its third national strategic plan for HIV/AIDS (2016 – 2020). Local and international NGOs provide health services, such as needle and syringe exchange programmes or HIV testing and treatment, in regions most affected by drug use. However, coverage is still largely insufficient, and numerous barriers continue to exist for drug users attempting to access these services. In addition, several international donors who had traditionally funded harm reduction programmes in Myanmar announced their intention to significantly reduce their financial support.[21] In this context, it is all the more important that the Myanmar Government reaffirms its commitment to ensuring an adequate provision of harm reduction services in the country. Concretely, this should translate into the Government allocating dedicated resources to the provision of such services, either directly or indirectly. In addition, the Government should express clear political support and back the work of NGOs that operate in this sector, which often face opposition from local communities or authorities.

Besides harm reduction, the number of hospitals and specialised facilities that offer evidence-based drug dependence treatment services is disproportionally low, especially in regions that are severely affected by injecting drug use. As a matter of priority, methadone programmes, which have proved to be highly effective and are hugely appreciated by drug users,[22]should be urgently and massively scaled up across the territory. The introduction of other types of substitution treatment options, such as buprenorphine, could be considered too. In a similar way, the opening, under the technical supervision of the Ministry of Health, of voluntary, evidence-informed and community-based treatment programmes offering behavioural therapies would immensely benefit the increasing number of amphetamines users throughout the country. Voluntary rehabilitation programmes for drug users formerly run by the Ministry of Social Welfare should also be re-activated and resourced adequately.

Last but not least, all law enforcement agents, from top ranking to field level officers, should be systematically sensitised to the changes brought in by the amended law, and in particular to its concrete implications and the practice on the ground.

Promote alternative development projects in opium growing areas

Despite an intensification of poppy eradication efforts in the past few years, opium cultivation in Myanmar has almost tripled since 2006.[23] These apparently paradoxical results highlight the importance of addressing the driving factors of illicit crops cultivation, described above. Although the need for rural development is often endorsed in principle, very few communities have so far received any concrete support. In their last statement, the Myanmar Opium Farmers Forum invited “government officials to provide basic services and long-term support to develop communities, instead of only eradicating poppy fields and demanding bribes and illegal taxation”.

As the example of Thailand mentioned above illustrates, achieving a sustainable reduction of opium cultivation will require the Myanmar Government to make a considerable and sustained investment in rural development projects in impoverished poppy growing areas. Ideally, such development programmes should be integrated within a broader national rural development strategy. Clear policies stating that forced eradication of illicit crops should be avoided at least until people have access to sustainable alternative livelihood opportunities should also be adopted.

Conclusion: will Myanmar become the leader of progressive drug policy reform in South East Asia?

The myth that tough punishment is the only way to, once and for all, “eradicate the drug problem”, remains deeply entrenched in South East Asia. Several countries such as Thailand [24] and the Philippines have implemented their own “war on drugs”, using a combination of heavy prison penalties, harsh law enforcement, forced treatment, the death penalty and even extra-judicial killings of drug users. However, these methods are increasingly showing their limits: far from reducing the health related harms of drug use or protecting communities, they are only proving to exacerbate violence, fuel corruption, and severely undermine the rule of law.[25] The uncomfortable truth is that there are no easy fixes or miracle policies that would address all drug-related problems and issues. There are, however, drug policies that can significantly reduce those problems and bring immense benefits to both people using drugs and the community at large.

The Myanmar Government has acknowledged that criminalising drug use has been counter-productive in many ways and that public health should be a central element of its drug policies. This is significant progress. However, by choosing to exclude possession for personal use from the exemption from prison penalties, Members of the Parliament risk undermining the stated objective of prioritising public health and could even jeopardise the entire reform. Making drug treatment a compulsory requirement for all drug users is also problematic, and could result in simply reproducing the mistakes made by other countries in the region. Similarly, continuing to criminalise subsistence poppy farmers would mean reasserting unfair policies that have already proved to be a huge failure. Effective drug policies should be largely based on public health considerations. But they also need to consecrate human rights and development as equally important pillars. The provisions mentioned above, which are all still contained in the draft bill, directly contradict these two aspects.

Legal reforms are not conducted on a yearly basis, but only occasionally. The Myanmar Government has, now, a unique opportunity to put aside the failures of the past, and adopt evidence-based policies that can improve the lives of thousands of people. The important changes underway undoubtedly represent major progress. Nevertheless, further amendments to the 1993 drug law, in line with the suggestions above, should be seriously considered in order to make sure these changes have the desired impact. In addition, those legal changes will need to be accompanied by serious health and rural development interventions led by the Government.

The old “repressive reflex” may be embedded into many people’s minds. Yet there is nothing inevitable about it. Enlightened leaders and Governments are often at the forefront of legal changes that precede important social transformations. Experience shows that when ambitious reforms are conducted with determination and strong political will, the public rapidly embraces change and soon transitions towards more progressive views.

The real risk for the Government of Myanmar does not lie in its people opposing changes considered “too progressive,” but rather in merely conducting a partial reform, which will fail to deliver tangible results and ultimately backfire on those who approved it. Myanmar has a unique opportunity to make history and take the lead in drug policy reform in Southeast Asia. But in order to do so, it must not hesitate to complete its transition from a repressive to a supportive model, based not only on public health, but also on human rights and development.

[1] See article in Myanmar Times on 18 August 2016, http://www.mmtimes.com/index.php/national-news/yangon/22011-govt-crackd…

[2] See article published on Eleven newspaper on 5 August 2017, http://www.elevenmyanmar.com/politics/10931

[3] According to Myanmar National Human Rights Commission Vice Chair U Sit Myaing, talking to the Pyidaungsu Hluttaw on June 21, as reported in an article in the Myanmar Times on the 25th July 2017

[4] Various local and international organisations have organised workshops and other activities to advocate for a more humane drugs law. Many of them participated in the Legal Review Workshop on the 1993 Narcotic Drugs and Psychotropic Substances Law' (the Drug Law) in Nay Pyi Taw, from 16 to 19 February 2015, organised by the Central Committee for Drug Abuse Control (CCDAC), with support from UNODC and UNAIDS.

[5] Degenhardt, L., Chiu, W.T., Sampson, N., Kessler, R.C., Anthony, J.C. et al. (2008) ‘Toward a Global View of Alcohol, Tobacco, Cannabis, and Cocaine Use: Findings from the WHO World Mental Health Surveys’, PLoSMedicine, vol. 5, no. 7 www.plosmedicine.org/article/info:doi/10.1371/journal.pmed.0050141 Accessed 11.07.14

European Monitoring Centre for Drugs and Drug Addiction (2011) Looking for a relationship between penalties and cannabis use www.emcdda.europa.eu/online/annual-report/2011/boxes/p45 Accessed 08.07.14

Single, E., Christie, P. and Ali, R. (2000) ‘The impact of cannabis decriminalisation in Australia and the United States’, Journal of Public Health Policy, vol. 21, no. 21, pp. 157-186 www.ncbi.nlm.nih.gov/pubmed/10881453 Accessed 08.07.14

[6] Criminalisation – whether of drug use, possession of small quantities for personal use, or possession of drug paraphernalia – is a key driver of a range of health and social harms; see reports available to download from the website of the Global Commission on Drug Policy: www.globalcommissionondrugs.org/reports/

Accounts from PWID in Myanmar revealed that police harassment leads PWID resorting to unsafe injecting practices and hinders overdose treatment; National HIV legal review report, review of Myanmar’s legal framework and its effect on access to health and HIV services for people living with HIV and Key Affected Populations, September 2014; UNDP / UNAIDS / Pyoe Pin

[7] See report by Release “A quiet revolution: drug decriminalization across the globe”, authors Niamh Eastwood, Edward Fox, Ary Rosmarin, March 2016

[8] Domosławski A. Drug policy in Portugal: the benefits of decriminalizing drug use. Warsaw: Open Society Foundations; 2011 (https://www.opensocietyfoundations.org/sites/default/files/drug-policy-…, accessed 6 April 2016).

Hughes_and_Stevens,_"A Resounding Success or a Disastrous failure:_Re‐Examining the Interpretation of Evidence on the Portuguese decriminalization of illicit drugs”. 107 (Sicad). “Relatorio annual 2013 – a situacao do paisem material de drogas e toxico dependencias”

Hughes and Stevens, "What Can We Learn from the Portuguese Decriminalization of Illicit Drugs?," 999-1022; Mafalda Ferreira, Margarida Gaspar de Matos, and José AlvesDiniz, "Risk Behaviour: Substance Use among Portuguese Adolescents," Procedia - Social and Behavioral Sciences 29(2011): 486-92.

[9] See article in the Bangkok Post: https://m.bangkokpost.com/learning/advanced/1228730/drug-reform-thailan…

[10] See IDPC briefing paper: “How to capitalise on progress made in the UNGASS outcome document”, by Juan Fernandez Ochoa and Marie Nougier. http://fileserver.idpc.net/library/IDPC-briefing-paper_How-to-capitalis…

[11] Notably see reports: IDPC, International HIV/AIDS Alliance and ANPUD, “A public health approach to drug use in Asia: principles and practices for decriminalisation”

Release “A quiet revolution: drug decriminalisation across the globe”, authors Niamh Eastwood, Edward Fox, Ary Rosmarin, March 2016

[12] See https://www.unodc.org/unodc/en/data-and-analysis/statistics/drug-use.ht…

[13] International Harm Reduction Programme (2011), “Treated with cruelty: abuses in the name of drug rehabilitation” (New York: Open Society Foundations)

[14] For more information see UN joint statement on Compulsory drug detention and rehabilitation centers: http://www.unaids.org/sites/default/files/sub_landing/files/JC2310_Joint%20Statement6March12FINAL_en.pdf

[15] United Nations Office of Drugs and Crime, 2010 “Evidence from compulsory centres for drug users in East and South East Asia”. Background Paper prepared by UNODC RE EAP for the Regional Consultation on Compulsory Centres for Drug Users, 14–16 December, 2010, Bangkok, Thailand; 2010http://www.unaids.org.cn/pics/20130719153407.pdf. (accessed 04.11.14)

Yan et al., 2013

Yan, L., Liu, E., McGoogan, J.M., Duan, S., Wu, L.T., Comulada, S. et al. Referring heroin users from compulsory detoxification centers to community methadone maintenance treatment: A comparison of three models. BMC Public Health. 2013; 13: 747

DOI: http://dx.doi.org/10.1186/1471-2458-13-747

Human Rights Watch (2001), “The rehab archipelago: Forced labour and other abuses in drug detention centres in Southern Vietnam”

[16] Transnational Institute, “Bouncing back, relapse in the Golden Triangle”, June 2014.

UNODC – Southeast Asia Opium Survey 2015.

Statement of 4th Myanmar Opium Farmers Forum (MOFF), https://www.tni.org/en/publication/statement-of-the-4th-myanmar-opium-f…

[17] Opium cultivation in the Golden Triangle, Lao PDR, Myanmar Thailand – Thailand Opium Survey – 2006 – UNODC

[18] FIDH and World Coalition against the death penalty – The death penalty for drug crimes in Asia report – 2015.

https://www.fidh.org/IMG/pdf/asia_death_penalty_drug_crimes_fidh_wcadp_…

[19] See comparative studies on: http://www.abc.net.au/news/factcheck/2015-02-26/fact-check3a-does-the-d…

[20] HIV prevalence among PWID was estimated to be at 28.3% in 2014 – Source: Integrated biological and behavioural survey among people who inject drugs, Myanmar, 2014.

[21] Both the Global Fund and 3MDG, the two main donors supporting harm reduction programmes in Myanmar, have announced important cuts as early as January 2018

[22] See statement of Kachin drug users, https://www.tni.org/en/article/statement-of-kachin-state-drug-users

[23] UNODC – Southeast Asia Opium Survey 2015

[24] Thai former Prime Minister ThaksinShinawatra launched a “war on drugs” in 2003, leading to the arrest of dozens of thousands of drug users and dealers and the killing of almost 3,000 people, primarily by the police and military. See Human Rights Watch, Thailand: Not Enough Graves; and Human Rights Watch, “Thailand’s ‘War on Drugs.’”

Last year the President of the Philippines Rodrigo Duterte also launched a “war on drugs”, inviting the police and citizen to kill drug users and dealers. So far, more than 7000 people have been killed. See article by Wanda Felbab-Brown: https://www.brookings.edu/testimonies/the-human-rights-consequences-of-…

[25] See “The human rights consequences of the war on drugs in the Philippines”, by Vanda Felbab-Brown, 8 August 2017. https://www.brookings.edu/testimonies/the-human-rights-consequences-of-…