When the Myanmar Military Almost Decriminalised Drug Use

Author: Jacob Goldberg
Published:

In early 2017, Myanmar police raided a house in Yangon’s Thaketa township with a warrant to search for drugs. Underneath a Buddhist altar, they found 10 tablets of yaba—a stimulant containing methamphetamine and caffeine. Three housemates, one of whom was the target of the warrant, were arrested and charged under two sections of Myanmar’s 1993 drug law: Section 15, for failure to register as drug users, and Section 16(c), for possession of illegal drugs.

At the time of the raid, a fourth person was in the house: a woman in her 20s who had been hired to come over and style the housemates’ hair. She was also arrested, and when police tested her urine, they found the presence of drugs in her system. Despite having no drugs on her, no prior criminal record, and no apparent connection to the drugs found in the house, she was slapped with the same charges. In early 2018, a judge sentenced all four defendants to 10 years’ imprisonment with hard labour—four for failure to register, and six years for possessing a stash of pills worth less than US$4.

“It was a conviction and a sentence that we were very, very aghast at,” says Sam Roberts, an American public defender who assisted with the hairdresser’s defence as a fellow for the International Legal Foundation in Yangon.

To Roberts, the judge’s decision highlights the misguidedness of Myanmar’s brutal approach to drug control—an approach that treats drug users as criminals and funnels them into prisons by the thousands. Myanmar’s criminalisation of drug use, even personal use with no intent to sell, has deterred all but 3% of an estimated 300,000 drug users from seeking medical treatment. It’s also failed to bring down rates of dependency, disease transmission, and overdose. At least 50% of the country’s inmates are serving sentences for low-level drug offences.

“You are criminalising what’s essentially non-violent, ultimately non-criminal, addictive conduct that’s consistent with illness rather than bad intent, and you’re taking a lot of young people and putting them in prison for a long time,” Roberts says. 

“This is crippling communities, families, and society as a whole.”

The judge’s decision highlights the misguidedness of Myanmar’s brutal approach to drug control—an approach that treats drug users as criminals and funnels them into prisons by the thousands.

Myanmar’s carceral approach to drug control is typical of Southeast Asia, where governments have favoured “zero tolerance” approaches that range from long jail terms to capital punishment (or, famously in the case of the Philippines, even extrajudicial killings.)

What sets Myanmar apart is the fact that, between 2016 and 2018, the country’s military-controlled Ministry of Home Affairs had made plans to eliminate both of the laws that landed Roberts’s client in prison. It was a move that would have amounted to the decriminalisation of drug use, and catapulted Myanmar into a tiny cohort of countries that have abandoned the War on Drugs.

However, these plans were unexpectedly thwarted by the country’s democratised parliament and its ruling party, the National League for Democracy (NLD).

“Surprisingly progressive”

For decades, Myanmar’s military rulers viewed drug producers, smugglers, dealers, and users as equally dangerous combatants in the War on Drugs, and sought to destroy them. The country sits within the “Golden Triangle”—a name given to an area, bound by Myanmar, Laos, and Thailand, that’s known to be one of the largest opium producers in the world.

But with producers and other high-level operatives ensconced in “safe havens” controlled by ethnic separatist militias, only addicts and users have remained within the reach of the law, and they’ve borne the brunt of years of stigmatisation and criminalisation.

“In my community, I was taught that drug users are really bad, evil people; that there’s nothing good about them. This is the public perception, and police believe they shouldn’t be kind to them, or they’ll commit more crimes,” says Zaw Tu Hkawng, project manager at the Harvest Rehabilitation Center, located just outside Yangon.

Zaw Tu Hkawng is an advocate of harm reduction—the principle that drug control policies and programmes should seek to reduce the adverse health, social, and economic consequences of drug use, rather than seek to eliminate them through punitive measures.

“When I’ve been in the field, helping drug users, what I’ve found out is that stigmatisation and discrimination makes their lives worse. Showing love and support is more effective, and even if they continue to use drugs, they are less likely to overdose and more likely to seek medical help,” he says.

“When I’ve been in the field, helping drug users, what I’ve found out is that stigmatisation and discrimination makes their lives worse.”

In 2016, just as the NLD took control of Parliament, this concept of harm reduction caught the ear of Myanmar’s Ministry of Home Affairs, which is constitutionally subservient to the military rather than the ruling party. That April, an official from the ministry’s Central Committee for Drug Abuse Control (CCDAC) attended the UN General Assembly Special Session on the World Drug Problem (UNGASS) in Vienna, where 193 countries pledged to bring their national drug control policies into conformity with scientific evidence and international human rights laws. CCDAC’s leadership were inspired by the message and decided to draft a National Drug Control Policy based on the UNGASS framework. They reached out to the UN Office on Drugs and Crime (UNODC) for help.

“CCDAC and the police force are surprisingly progressive,” says Jeremy Douglas, UNODC’s regional representative for Southeast Asia and the Pacific. “When you fight a drug war as long as they have and you’re not successful, you start looking at your options.”

Government ministries, UN agencies, and civil society organisations spent a year hashing out the best ways to fight the drug trade without harming drug users. The final product was a document that explicitly calls for the decriminalisation of drug use and the centring of drug control policies around the principle of harm reduction.

Douglas credits the success of the process to the open-mindedness of the military officers who staff CCDAC.

“They left no stone unturned. They consulted every part of the government, NGOs, you name it—they’ve all been at the table,” he says. “They used to be much more top-down.”

In February 2018, the Ministry of Home Affairs adopted the document as the country’s first National Drug Control Policy, making Myanmar the first country in Southeast Asia to adopt the UNGASS framework at the national level. But while this document established the ministry’s ideology on drug control, decriminalisation and harm reduction couldn’t become law unless Parliament could be convinced to write them into an amendment to the 1993 drug law.

“User and possessor are not the same”

For months, such an amendment seemed within reach. Throughout the second half of 2017, UNODC educated lawmakers on the benefits of harm reduction. The Bill Committee in Parliament even accepted a document drafted by UNODC as the basis for an amendment. Two proposed revisions were aimed at decriminalising drug use: the first would rewrite Section 15 so that mandatory registration for drug users would be abolished. The second would rewrite Section 16(c) to eliminate prison sentences for drug possession. 

According to an unofficial translation of the draft obtained by New Naratif, the ban on possession in Section 16(c) would have concluded with:

This section shall not apply to any situation in which a drug user holds a certain amount of narcotic drugs or psychotropic substances not exceeding the amount stipulated by the Ministry of Health and Sports for the purpose of using it for himself/herself […].

The amendment was passed through the Bill Committee in August 2017, and Section 15 was amended as expected—someone proven to be a drug user will no longer be required to register as such. However, supporters of the amendment were startled to find that Section 16(c) remained unchanged. The result was a law that decriminalises drug use, but not possession.

“It’s kind of a clever distinction that isn’t a distinction,” says Roberts, the public defender, pointing out that since possession is almost always the main indicator that someone is a drug user, criminalising possession ends up criminalising all drug users. 

According to one drug policy reform advocate who asked not to be named, lawmakers’ decision not to amend Section 16(c) followed a directive from the office of Myanmar attorney general Htun Htun Oo, a member of state counsellor Aung San Suu Kyi’s cabinet.

However, experts believe many non-military lawmakers were never on board with decriminalisation to begin with. Zin Ko Ko Lynn, a national programme coordinator in UNODC’s Myanmar office, says opposition to decriminalisation in the Bill Committee may have come from ethnic minority parties that represent drug-producing areas, which have higher rates of drug abuse.

Most have had to rely on secondhand information that may not have fully disabused them of their belief in the effectiveness of jailing drug users.

“They have a different perspective, and some of them have personal feelings. Some of them view drug abuse as a moral issue,” says Zin Ko Ko Lynn.

Moreover, he says, whereas home affairs ministry officials have been studying harm reduction at international conferences over the last few years, lawmakers—most of them new to politics—have had to rely on secondhand information that may not have fully disabused them of their belief in the effectiveness of jailing drug users.

Nay Myo Tun, an NLD lawmaker who sits on the Bill Committee, tells New Naratif: “I proposed the amendment bill, but I did not recommend the rewriting of Section 16(c), which means it will stay in the law. If we know someone uses drugs, we can send him or her to the hospital. But if we know someone possesses drugs, we have to arrest them. User and possessor are not the same.”

“Technical versus populist”

Richard Horsey, an analyst who wrote a report for the International Crisis Group in January about Myanmar’s failure to stem the drug trade, says the contradiction between the ministry’s policy and Parliament’s amendment is a “classic technical-versus-populist split that affects the drug policies of many countries.” 

In other words, elected politicians have more to gain by appearing tough on drug users than unelected policymakers do.

Horsey’s analysis is supported by the recent populist tactics of President Win Myint—an appointee of NLD leader Aung San Suu Kyi. In a June 2018 speech, the president urged the public to “destroy narcotics by cooperating with the people, as narcotics have engulfed the whole of our society gradually, destroying our country’s dignity and future and the potential of our youth.” He boasted about the thousands of people who had been arrested for drug crimes the previous year.

Roberts insists that Myanmar’s wasteful war on drug users cannot be considered over until people caught with small amounts of drugs can avoid prison.

Even more tellingly, the president also announced the launch of the Special Anti-Drug Reporting Center—a hotline that allows any citizen to report suspected drug crimes. Every Wednesday, state-run newspapers publish the names of people who were arrested the previous week based on tips submitted through the hotline. These suspects are usually accused of “using, selling, and distributing illegal drugs.” Sometimes, however, they are only accused of using drugs and are charged under Section 16(c).

“If you look at the records carefully, many of them are small-scale users or dealers. They are clearly not the big-time dealers or traffickers whom the government has made its primary objective to control,” says Dr Nang Pann Ei Kham, coordinator of the Drug Policy Advocacy Group, one of 30 Myanmar-based organisations that unsuccessfully petitioned Parliament to amend Section 16(c). A report by the group argued that the failure to see the amendment through “directly undermines the bill’s primary objective of placing the focus on public health rather than criminal justice.”

“We give him a hug”

After Parliament thwarted the home affairs ministry’s decriminalisation efforts, UNODC began advising the government to adopt a bylaw that would bring the amended drug law into conformity with the National Drug Policy. But Troels Vester, UNODC’s country manager for Myanmar, insists that even in its current state, Parliament’s amendment represents significant progress.

“The amended law recognises harm reduction—this was never the case before. You also have the removal of the compulsory registration of drug users, which is also positive,” Vester says.

But Roberts insists that Myanmar’s wasteful war on drug users cannot be considered over until people caught with small amounts of drugs can avoid prison.

“The Section 15 change? That’s nice, but that’s not the ballgame,” he says. “You’ve got to decriminalise possession. It just doesn’t make sense otherwise—then all it is is PR.”

Meanwhile, Zaw Tu Hkawng continues his efforts to undo the damage caused by the continued mass incarceration of drug users.

“Their lives have been all about rejection, so when they first arrive at our centre after spending a long time in prison, we show them acceptance. We allow them to enroll in whatever job training courses they want. We make medical treatment available, but it is not compulsory,” he says. 

“And to every person who comes to our centre, we give him a hug. In Myanmar, we don’t really have a culture of hugging, but we do it to show that we love and accept our guests and understand their struggles. We believe they are hardworking and that they have dreams just like everyone else.”

CORRECTION: An earlier version of this article mistakenly referred to the organisation as the International Legal Fund, rather than the International Legal Foundation. We apologise for the error.

 

Jacob Goldberg

Jacob Goldberg is a multimedia journalist based in Yangon, Myanmar. His work can be found in The Guardian, Al Jazeera, and elsewhere.

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