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Drug Abuse at The Workplace The Law and Practice in Malaysia
Drug Abuse at The Workplace The Law and Practice in Malaysia
MALAYSIA
Muzaffar Syah Mallow1
1 (Corresponding author). Senior Lecturer, Faculty of Syariah and Law, Universiti Sains Islam Malaysia (USIM).
muzaffarsyah.mallow@yahoo.com
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abuser will become addicted to the illegal the country number one enemy, steps
substance and begin to develop some kind must be taken to ensure the Malaysian
of dependency to the illegal substance. society are protected from being exposed
Depend on the amount and types to any kinds of illegal substance or any
of drug being abuse by the abuser, such substance which might bring potential
addiction and dependence will slowly harm to them. For this reason, the country
affect their mind and emotion stability. has enacted a very strict or harsh law to
The abuser normal attitude will also be deal with drug abuse cases.
effected. The abuser will become less focus The unauthorized possession of
in life and begin to exclude himself from any kind of drugs is seen as a serious
the society. This is widely known as “Anti offence in Malaysia. The offence over drug
– Social Behaviour”. (Mohamed Ibrahim, abuse will be deal under the Dangerous
Razak Lajis, and Mohd Isa Abdul Majid, Drugs Act 1952 [Act 234]. Dangerous
2004 and Ksir, Oakley Ray; Charles, 2002). Drugs Act 1952 [Act 234] regulates
In addition to possible physical, matters on the import, export,
social, and psychological harm, according manufacture, sale and use of opium,
to some study use of some drugs may also dangerous drugs and related materials.
lead the abuser themselves to criminal Under the Dangerous Drugs Act 1952 [Act
charge or penalties (Mosby’s Medical, 234] there are three circumstances on
Nursing & Allied Health Dictionary, 2002). which might lead a person into criminal
Mentioning about criminal responsibility, conviction and faced with harsh
it is important to know that Malaysia is one punishment or sentencing from the court.
of the world’s toughest countries when it The three common offences are
comes to drugs. self – administration of the drug, being in
For many years since gaining its possession of a drug and drug trafficking.
independent in 1957, Malaysia has been in (Joshua Tay, 2017). Each of these come
constant fight with drug abuse. It has been with different punishments and ways in
the Malaysian government long term goal which the court can determine whether
to create a country where there is no drug the perpetrator is guilty or not.
abuse and its people is free from becoming Self – administration of drug or
victim to drug addiction or abuse. Such basically drug for private use is governed
long term goal is widely known as “Drug under Section 15 of the Dangerous Drugs
Free Malaysia” (NADA, 2019, Afzan Ayub, Act 1952 [Act 234]. Section 15 of the
2011 and Sarina Mohamed, 2012). Dangerous Drugs Act 1952 [Act 234]
The main reason why Malaysian states:
government against drug abuse in the (1) Any person who (a) consumes,
country is due to the fact the negative administers to himself or suffers any other
impact it can bring to its people and the person, contrary to section 14 to
country as a whole. The issue concerning administer to him any dangerous drug
drug abuse had escalated in the country specified in Parts III and IV of the First
since the 1970s. Such escalation not only Schedule; or (b) is found in any premises
effect the life of adult, but also has effect kept or used for any of the purposes
the life of the country youth and even specified in section 13 in order that any
young children who are still in school such dangerous drug may be administered
(Farhana Syed Nokman, 2016). to or smoked or otherwise consumed by
Such escalation over the abuse of him, shall be guilty of an offence against
drug had prompted Malaysia to declare this Act and shall be liable on conviction to
drugs abuse as the “Nation’s Number 1 a fine not exceeding five thousand ringgit
Enemy” up to this day. (NADA, 2019). or to imprisonment for a term not
Since Malaysia has declared drug abuse as exceeding two years.
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(2) For the purpose of this section, shall, on his conviction under subsection
“consumes” includes eat, chew, smoke, (3) for contravening subsection (2), be
swallow, drink, inhale or introduce into liable to whipping of not more than three
the body in any manner or by any means strokes in addition to the punishment to
whatsoever. which he is liable under subsection (3).
Being in possession of a drug is The legal concept of “possession”
governed under Section 6 or Section 12 of requires three main ingredients to be
the Dangerous Drugs Act 1952 [Act 234] proven like custody, control, and
depending on the type of drug. Section 6 of knowledge. These three ingredients form
the of the Dangerous Drugs Act 1952 [Act both the act (actus reus) and the mental
234] states any person who keeps or has element (mens rea) (the intention or
in his possession, custody or control any knowledge of wrongdoing) necessary in
raw opium, coca leaves, poppy-straw or order to find someone guilty for the crime
cannabis or the seeds of the plants from of possession of drugs.
which they may be obtained either directly As stated earlier under Section 12
or indirectly, except under and in of the Dangerous Drugs Act 1952 [Act
accordance with an authorization such as 234], the punishment for drug possession
is referred to in sections 4 and 5 or with could vary from a mere fine to life
any regulation made under section 7 imprisonment and whipping, depending
thereof, shall be guilty of an offence on the weight of the drugs in question.
against this Act and liable on conviction to However, the most severe offence
a fine not exceeding twenty thousand under the Dangerous Drugs Act 1952 [Act
ringgit or to imprisonment for a term not 234] is the offence relating to drug
exceeding five years or to both. trafficking as it carries the mandatory
Section 12 of the Dangerous Drugs death penalty. However, important to note
Act 1952 [Act 234] states: that as of 2018, the law has now been
(1) No person shall except under the amended to change the mandatory drug
authorization of the Minister (a) import penalty to discretionary. (Joshua Tay,
into Malaysia any dangerous drug 2017, Denise, C. 2017, and Fernando Fong,
specified in Parts III, IV and V of the First Veena Babulal and Arfa Yunuf, 2017).
Schedule; or (b) export from Malaysia any In order to prove an offence of
dangerous drug specified in Parts III and drug trafficking, the prosecution must first
IV of the First Schedule. prove that the perpetrator were in
(2) No person shall have in his possession, possession of dangerous drugs and that
custody or control any dangerous drug to such possession is for the purposes of
which this Part applies unless he is trafficking in the said drugs (Joshua Tay,
authorized to be in possession, custody or 2017).
control of such drug or is deemed to be so According to Section 2 of the
authorized under this Act or the Dangerous Drugs Act 1952 [Act 234]
regulations made thereunder. trafficking includes the doing of any of the
(3) Any person who contravenes following acts, that is to say,
subsection (2) of this section shall be manufacturing, importing, exporting,
guilty of an offence against this Act and keeping, concealing, buying, selling, giving,
shall be liable on conviction to a fine not receiving, storing, administering
exceeding one hundred thousand ringgit dangerous drug. According to Section 39B
or to imprisonment for a term not of the Dangerous Drugs Act 1952 [Act
exceeding five years or to both. 234]:
(4) Any person who is a public officer (1) No person shall, on his own behalf or
employed at any prison, rehabilitation on behalf of any other person, whether or
centre, police lock-up or place of detention not such other person is in Malaysia (a)
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The impact over addiction on drug 1952 [Act 234] to deal with the issue
will also spill over to other people in the concerning self – administration of the
workplace particularly among the co – drug, being in possession of a drug and
workers. drug trafficking in the country we also
Due to potential rise of workplace have other criminal statute which be used
violence and harassment being committed against the drug abuser in the workplace
by the worker who is under the heavy like the Penal Code [Act 574] and Poisons
influence of drug, the co – worker will find Act 1952 [Act 366].
it to be difficult to give their full focus and Besides these criminal provision,
commitment to their job. there is also many administrative rules,
The working environment will regulations and even circular which can be
become hostile which can also lead to used to ensure the workers are not drug
immediate resignation by some worker abuser. It is crucial to note that besides
who are unable to cope with such hostile committing a crime, the worker who have
working environment. been subjected themselves to drug abuse
Such immediate resignation due to has also committed a very serious
hostile working environment may also misconduct which might lead to
give rise to legal action been taken against immediate dismissal from the
the employer who fail to prevent the organization.
working place from become hostile due to There are various employment
drug abuse problem among their own laws in the country which discussed about
worker by the resigned worker. this matter. (Ashgar Ali Ali Mohamed,
The impact over the drug abuse by 2014, Sharifah Suhanah Syed Ahmad,
the worker will also lead to unnecessary 2012 and Marilyn Aminuddin, 1990).
problem to third party like client or Under employment, misconduct can be
customer. The reputation of the regarded as a conduct which is improper
organization will also be effected. The and wrong (M. N. D’Cruz, 2003 at p. 26)
surrounding public will started to and refer also to the case of Syarikat
disregard the problematic organization Kenderaan Melayu Kelantan Sdn Bhd v
upon knowing the fact that the Transport Workers Union (1990) 1 MLJ 5).
organization worker has been involve There are various kind of
with illegal substance abuse. misconduct which can take place in a
Once the reputation of the workplace. Those types of misconduct can
organization has been effected, the fall under the category of minor
organization will start to suffer loss of misconduct as well as major misconduct.
income and eventually will also lead to There is no hard and fast rule on what
bankruptcy or closing or shutting down constitutes major misconduct or minor
permanently (Tomo Drug Testing, 2016). misconduct.
The existing countries legislations
EXISTING LAW AND PRACTICE IN are also silent to this regard. Companies
MALAYSIA generally like to differentiate major and
There are various kind of legislations minor misconduct by identifying different
which can be used not only to deal with the types of punishments for both categories
problem concerning drug abuse among of misconduct.
worker in a workplace but also as a In fact, the list of minor and major
prevention in order to prevent such misconduct is subjective and might vary
problem from becoming an issue in any depending on the nature of each business.
workplace in the country. For example, the act of smoking might not
Though we already have strong be a major misconduct in a legal firm but it
law in place like the Dangerous Drugs Act might be deemed as major misconduct in
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an oil and gas plant. As such, what really carry out by way of having an inquiry or
constitute a misconduct at workplace is domestic inquiry. Such inquiry being carry
very subjective in nature are subjected to out in order to investigate further all the
various circumstances. All issue on allegation been put forward against the
misconducts and acts of indiscipline must accused namely the worker and this
be investigated to identify whether they include the allegation pertaining to drug
are minor or major in nature. abuse committed by the accused worker.
The handling of misconduct and If the domestic inquiry panel finds
some of the related clauses is regulated that the accused worker in question has
under Section 12, 13, 14 and 15 of the been at fault, it will impose appropriate
Employment Act 1955 [Act 265] and also punishment which will commensurate
in Section 20 of the Industrial Relations with the magnitude of the fault and
Act 1967 [Act 177]. circumstances of the case.
Under Section 14 of the Further reference can be made to
Employment Act 1955 [Act 265] clearly the following case of Mohd Zaihan Mohd
states: Zain v Island & Peninsular Berhad
(1) An employer may, on the grounds of [2008] 4 ILR 155 and Malaysian Airlines v
misconduct inconsistent with the Teo Chui Ping [2005] 2 ILR 15. As the
fulfilment of the express or implied domestic inquiry is a purely internal
conditions of his service, after due inquiry process run by the organization, whether
(a) dismiss without notice the employee; the worker can appeal against the decision
(b) downgrade the employee; or (c) made by the domestic inquiry would
impose any other lesser punishment as he depend purely on the organization’s
deems just and fit, and where a policies and procedures.
punishment of suspension without wages If there is an appeal procedure set
is imposed, it shall not exceed a period of out in the organization’s policies, the
two weeks. organization must comply with it to avoid
(2) For the purposes of an inquiry under any perception that they are acting
subsection (1), the employer may suspend unfairly or prejudicial to the worker. If the
the employee from work for a period not worker feels they were unfairly
exceeding two weeks but shall pay him not terminated based on the finding of the
less than half his wages for such period: domestic inquiry, the worker may lodge a
Provided that if inquiry does not disclose complaint for unfair dismissal pursuant to
any misconduct on the part of the Section 20 of the Industrial Relations Act
employee the employer shall forthwith 1967 [Act 177].
restore to the employee the full amount of
wages so withheld. PREVENTIVE STEPS TO BE TAKEN
(3) An employee may terminate his Drug abuse problem among workers must
contract of service with his employer be taken seriously by all parties especially
without notice where he or his dependants those entities belonging to the
are immediately threatened by danger to organization like co – workers, employer,
the person by violence or disease such as and top management. Everybody must
such employee did not by his contract of play their role to prevent any of the
service undertake to run. workers to get involve with any illegal
From this particular section, it is substance which can destroyed their own
clear to us that, it is very important for the life and the life of other people.
employer to investigate all the allegation Organization must not permit
being submitted to him before the their workplace to become drug addict hot
employer take final decision on the future spot. Organization cannot simply ignore
of the worker and this is normally been such problem. Action must be taken in any
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way against any worker who have been equipment or clothing provided by the
subjected to drug abuse. Drug abuse in a employer for the purpose of preventing
workplace can jeopardize the working risks to his safety and health; and (d) to
environment and tarnish the reputation of comply with any instruction or measure
the organization. on occupational safety and health
Such action is not only something instituted by his employer or any other
which is morally obliged to everybody to person by or under this Act or any
do and perform but also a legal duty which regulation made thereunder.
has been stated clearly under existing law (2) A person who contravenes the
in the country. provisions of this section shall be guilty of
A simple reference can be made to an offence and shall, on conviction, be
the Occupational Safety and Health Act liable to a fine not-exceeding one thousand
1994 [Act 514] where the statute has lay ringgit or to imprisonment for a term not
down many duties and responsibilities on exceeding three months or to both. Based
the part of both employer and employee to on above explanation, it is clear to us that
ensure the safety and health at the both employer and employee must play
workplace. Section 15 of the Occupational active roles to ensure the organization is
Safety and Health Act 1994 [Act 514] not being use for any illegal activities.
clearly states: Everybody in the organization must
“It shall be the duty of every employer and constantly alert over their surrounding
every self – employed person to ensure, so and take immediate action to deal with
far as is practicable, the safety, health and such problem before it goes out of control.
welfare at work of all his employees”.
Such duty also include a duty to REFERENCES
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