KUALA LUMPUR – The use of medical marijuana in Malaysia remains a legal minefield for patients despite the health minister’s assurance that existing laws do not prevent its consumption for that sole purpose, a lawyer has indicated.
Farhad Read, of the firm Read & Co, said Khairy Jamaluddin was likely pointing to a provision commonly known as a “without lawful excuse” clause, when the minister said existing laws regulating cannabis and its byproducts do not hinder its usage for medical purposes.
The clause, Farhan said, is found in the offences of possession, consumption, and right up to trafficking.
Basically, if (marijuana) is in the possession of someone without a prior licence from the Health Ministry or a registered medical practitioner, the user is liable to prosecution under the Dangerous Drugs Act 1952 (DDA).
“It is the same as being in possession of a medication without prescription such as Adderall, or being in possession of a wholly unlicensed pharmaceutical product,” Farhan told The Vibes when contacted.
Responding to a parliamentary question fielded by Muar MP Syed Saddiq Syed Abdul Rahman on Monday, Khairy said the existing laws comprise DDA, the Poisons Act 1952, and Sale of Drugs Act 1952.
Syed Saddiq asked the health minister to state Malaysia’s position regarding the usage of hemp and medical marijuana as alternative medicine that can be offered to patients.
Khairy cited the three Acts as laws that allow the import and usage of medical marijuana products, as long as several legal requirements are met.
According to the Health Ministry, the product must be registered with the Drug Control Authority, in accordance with the Control of Drugs and Cosmetics Regulations 1984 (CDCR) under the Sale of Drugs Act.
The import and wholesale trading of the product must also be conducted by a licensed importer with a permit under CDCR, the Poisons Act, and DDA.
The sale or retail supply of such products for the purpose of medical treatment to patients must be carried out by a medical practitioner registered under the Medical Act 1971, or by a registered Type A licensed pharmacist, along with prescriptions.
The legalisation of medical marijuana has been the subject of debate since the Pakatan Harapan administration came into power in 2018.
In September that year, Health Director-General Tan Sri Dr Noor Hisham Abdullah said cannabis oil can be used only for research and not as an alternative form of medicine, as cannabis is still governed under DDA.
Dr Noor Hisham noted that, at the time, there was no substantial scientific evidence to support its use for medical treatment.
He said the use of morphine in hospitals requires a prescription by a qualified person and not just any doctors, as reported by The Star.
Apart from specialising in white-collar and general crime, Farhan also defends those prosecuted under DDA. His past clients include late actor Khaeryll Benjamin Ibrahim, who is better known as Benjy.
Looking at Sections 12, 14, and 15 of DDA, Farhan concluded that an individual may be authorised to possess a “dangerous drug”, which includes cannabis.
Farhan, in explaining Sections 14 and 15, noted that a person who administers any dangerous drugs to himself or any other person shall be guilty of an offence.
However, under Section 14, the law stipulates that it is legal for registered medical practitioners to administer or direct the administration of such drugs.
“In other words, if you get a direction from a medical practitioner that you may use such a drug, then Section 14(2) nullifies the offence under Section 15(1) of DDA.
“So, you have to read Sections 14 and 15 together. But to legally use it, there must be a direction from a medical practitioner.
“That direction from the registered medical practitioner applies to give you a lawful reason to possess and use the drug,” he said. – The Vibes, November 15, 2021
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