Written by: Averroes
(1.0) Introduction
(1.1) Ketum
When we mention about Ketum (considered intoxicating), most that comes to mind are mixed concoctions of Coke and the said Ketum. It could cause a person consuming it to become drowsy and inebriated. However, Ketum could be drunk without a combination of other beverages as one could drink it by its own. To be clear, Ketum is not a drug, but a 'psychotropic substance' which will explained in the law sub-heading.
The issue of illegalising ketum has caught many attention. Padang Besar MP Zahidi Zainul Abidin urged the government to legalise the harvesting of hemp and Ketum plants. This was to emulate the stance made by Thailand, when they removed those two plants from the dangerous drugs list.
In Thailand, Ketum is known as 'Kratom' which a tropical, used as herbal medicine, but chided as 'potentially' harmful. Hence, 1000 people convicted in relations to the Kratom in Thailand would be released.
The MP claimed that lifting the illegality of the said plants could boost commercial activity as it has a high demand around the world. Despite the global market demand, the Food and Drug Administration (FDA) in the USA commented regarding its risky use, which leads to addiction and improper administration.
(1.2) Hemp
Hemp being the same species as Cannabis, it contains lower tetrahydrocannabinol (THC) levels. The MP states that Hemp has the same characteristics of those Kenaf (another cannabis variety), but consumption does not result in intoxication.
The benefits of Hemp is that, it is able to produce furniture, as well as a form of tar that could be used to treat cancer. Similarly, Hemp also has high demand internationally, which could be sold at a lucrative price. However, before legalising both Ketum and Hemp requires punctilious studies.
(2.0) Historical Background
Ketum in reality had been an actual practice or remedy for the Malay community in the past. However, the good could turn into the bad if not regulated or contained, leading to abuse. This plant could be found in not just Malaysia and Thailand, but Indonesia, the Philippines, Papua New Guinea and other countries with similar climate and temperature. It is known as Neithum in Laos.
The ingestion of Ketum in Thailand is more particular and famous among the Malay community in Southern Thailand which is part of their culture. Most of court cases related to Ketum is decided in the Southern Region of Thailand. It is also widespread in Bangkok. Mostly Malay men in Thailand that consumes Kratom, but Malay women prefer chewing betel nut which is legal instead.
According to the European Monitoring Centre for Drugs and Drugs Addiction (EMCDDA), Ketum is a scientific species known as Mitragnya Speciose which a 4 to 16 meter high tropical tree. The leaves are picked and boiled to cook or make the Ketum juice/drink. It is then packed into small packets for sale among consumers. The leaves can be chewed as well.
Conspiracy theorists suggest that the ban of Ketum was directly linked to British colonialists banning local drugs or plants as they are deemed to be addictive and uncivilised, which they seek to destroy Malay culture. This may have stemmed from the Opium Wars in China.
(2.1) Benefits of Ketum
Some suggest that the plant could improve work performance, increase sexual libido, enhance intellectual functions, increases stamina and treat various illnesses such as diabetes, coughing, diarrhea, terminal diseases and high blood pressures. Ketum or Mitragyna Intermis and Mitragnya Stipulveosa is widely used in West Africa as an effective traditional treatment.
The only problem is excessive intake of Ketum. For instances, social media. If we are able to use it for the better good such as extracting information and disseminating knowledge, it would not be a problem. The problem arises if social media is made as a platform to spread all malicious and foul intents.
In Thailand, agricultural workers consume Ketum to assist them to tender their works for prolonged hours. It has the energetic formula akin to caffeine to keep someone's energy at bay. It causes them to be extra attentive and focused for a long period of time.
Apart from mixing Ketum with Coke, syrup it is also added into tea with sugar, lemon and ice cubes or powdered into smaller particles, or formulated into capsules. Hence, consuming Ketum would also stimulate receptors to reduce bodily pain without affecting the human brain. It is very efficacious in handling weight loss and creates better sports performance.
Studies report that Ketum serves as an effective painkiller or analgesic, at par with their other counterparts such as opiates (morphine derived from opium) and endorphins.
(2.2) Side-effects of Ketum
In a clinical experiment conducted on humans, an oral dosage of 50mg of Ketum results in a euphoric mood, but then subsides into disorientation, tremoring in the face and feet. Also, 'excessive' use would also cause significant weight-loss, lethargy, constipation, convulsions, and cheek hyperpigmentation. One person may also experience sleeping disorder, anxiety, nausea, sweating and feel stoned or high (hallucination).
(3.0) The Law in Malaysia and Thailand
As of January 2018, neither the tree nor the alkaloid of Ketum is mentioned in any of the Schedules of the United Nations Drug Conventions, such as the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol and the Convention on Psychotropic Substances of 1971 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (Kratom (Mitragyna Speciosa) Drug Profile, 2019)
For ASEAN, Annex I: ASEAN Guiding Principles For Inclusion into or Exclusion from the Negative List of Substances for Traditional Medicines and Health Supplements, 2014 provides that Ketum cannot be included as health supplements to be traded among ASEAN countries.
From here, there is the lack of agreement by the international communities to regard Ketum as a drug. It is regarded as an ordinary tree, not grouped with marijuana, heroin, cocaine, amphetamines and methamphetamines and club drugs. However, countries such as Malaysia and Thailand have their own respective laws on Ketum.
Other countries in the world also regard it as dangerous and may pose as a threat to public safety, including countries of Europe such as Denmark, Latvia, Lithuania, Poland, Romania and Sweden.
(3.1) Civil Law (Malaysia)
In Malaysia, Ketum is defined as Mitragyninen Specios, which is a 'psychotropic substance' and poison, pursuant to the Third Schedule of the Poisons Act 1952.
Under the Poisons (Psychotropic Substances) Regulations 1989. ketum leaves is a psychoactive alkaloid which is called as mitragynine.
Section 30(3) of the Poisons Act 1952 [Act 366] (the Act) controls any form of import, export, sale, production, possession and use of 'psychotropic substances'. However, someone planting or harvests Ketum, is not a crime. Breaching this provision would provide for punishment under section 30(5) of the Act of not exceeding RM10,000 or imprisonment not more than 4 years or both.
Furthermore, section 30(4) of the Act stipulates the presumption that;
“In any prosecution for an offence under this section, any person who is found to have in his custody or under his control any psychotropic substance shall be deemed to have been in possession of the substance and to have known the nature of the substance, until he proves to the contrary”.
Hence, sections 30(3) to (5) of the Act is to be read with the Third Schedule of the same Act.
Fatwa by the Kedah Fatwa Committee Meeting, (only a statement, unless legally binding if gazetted by the State Legislative Assembly, refer to Sulaiman Takrib case) in their opinion decided that the consumption of Ketum juice 'until becoming intoxicated' is haram (forbidden). Other states have not issued their fatwa yet on this matter.
In fiqh, 'illah is the prohibition of alcohol. Taken as a synonymous analogy, drugs and Ketum when taken excessively is forbidden. Every edible food or beverage that endears intoxication is haram or forbidden including alcohol, tobacco and drugs alike, despite small or large quantities.
The Prophet's hadith on this issues follows that;
“Every intoxicant is alcohol and every alcohol is haram” (Ibn Majah n.d., Sunan Ibn Majah, Kitab al-Ashribah, Bab kullu muskurin haram, no: 3381).
“A thing which intoxicates in big quantity, if taken in small quantity will still be haram” (al-Tirmidhi, Sunan al-Tirmidhi, Kitab al-Ashribah, Bab ma ja’a askar kathiruh faqaliluh haram, no. 1788).
“Do not harm yourself and others” (Ibn Majah n.d., Sunan, Kitab al-Ahkam, no. 2341).
In Maqasid Syariah, there are five pillars or objective of 'avoiding harm'. It is an Islamic legal perspective or jurisprudence to safeguard society through the objectives of religion, life, intellect, lineage and wealth. To correlate, if excessive Ketum is taken, it could affect ones life and intellect, which is their physical and mental health.
(3.3) Thai Law
In Thailand, the Kratom Act 2486 which was passed, initially made the possessio add planting of Ketum leaves illegal in Thailand. The law was made effective as of 3rd August 1943. Though, in 2018, the Thai government legalised the production, import, export, possession and use of Ketum products for 'medicinal purposes'.
According to a Thai Development Research institute study, the decriminilisation, would save an estimated 1.69 million baht ($50 million) for prosecution costs. The problems of overcrowded prisons in Thailand could be resolved.
Take note, only for 'medicinal purposes' and not a complete decriminilisation. The issue of cultural rights for the Malays was not taken into account when the changes to the law were made. Despite being one of the countries in the world with strict drug laws, and the first in Southeast Asia to lift the illegality, this prompted Malaysia to take their action as a touchstone.
Apart from that, the Narcotic Drugs Act (NDA, 1979) was also passed in three Southern Provinces with Muslim majorities. A landwoner is guilty of possession if any Kratom plant grows on their private land. Kratom is classified as Category or Schedule 5 for narcotics which has the least restrictions and punitive sanctions. Its recreational use is still illegal, but 'medical use' is authorised.
Kratom is a restricted plant under the Forest Act (FA, 1975) which its destruction requires permission. Under the Local Government Act (B.E. 2457) community leaders have an obligation to look after the community members' well-being and solve problems in their community. They could also arrest people who contravene the law. Though it can be argued that local Malay leaders would not arrest them, since it embedded within their culture in Thailand.
Therefore, the status of Kratom remains an elusive and ambiguous position in Thai law from different sources of law, however, medicinal use is permitted.
(3.4) Solution
Apart from legal actions, medically speaking, doctors could intervene to supervise and prescribe the appropriate dosage of ketum. Ketum could only be confined to remedial, treatment and prevention purposes. It could be halal (permissible in Islam) as long as it does not cause adverse implications on the human health.
This position is expressed in unison with the Malaysian Ministry of Health (MOH). It is imperative to reiterate that, it may induce euphoric emotions and is sedative, but it could lead to addiction if not controlled. It is a problem if mixed with other substances that intensifies abusive effects, such as cough syrups (benzodiazepines).
Lately, the use of Ketum nowadays are abused by irresponsible individuals. Startlingly, the youths and children of our country have begun experimenting with Ketum and caused considerable immoral behaviours and attitudes, which escalated in the 1970s.
Interestingly, a child at the age of 17 was caught to have consumed Ketum by the police and possession of 1kg of Ketum. He went to trial and convicted to jail with other Ketum abusers. However, the 17-year-old boy scored fantastically well in his SPM examinations, but caught post-exams and wasted a year before taking the opportunity to seek for tertiary education.
Lastly, schools should be updated about their syllabus and courses on the topics of drugs and substances, including Ketum. This would ensure that our youth are always alerted about intoxicating drugs and substances and the repercussions of abuse.
MOH should coordinate with the the Royal Malaysia Police (RMP), National Anti-Drug Agency (NADA), Malaysia Drug Prevention Association (PEMADAM) to instill awareness among the public, especially children. This may be implemented through media, conferences, public forums, discussions and others. Even the National Fatwa Council should find an approach to answer on the issue of permissibility and forbiddance of Ketum, to set as a benchmark for other Malaysian States to reconsider.
(4.0) Conclusion
To conclude, before we legalise Ketum, we would have to scrutinise into account of a number of factors, based on health, safety, public interests and religious concerns. Once we have enough scientific and credible research as well as views from prominent religious figures, with a conclusive judgement, only then possible moves to revoke the illegality could be paved.
For now, we may create a legal exception that Ketum could be for 'medical purposes', similar to Thailand.
(5.0) References;
FMT Reporters. (August, 2021) Padang Besar MP calls for legalising of ketum, hemp farming. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/08/29/padang-besar-mp-calls-for-legalising-of-ketum-hemp-farming/
Mohd Izhar Ariff Mohd Kashim, Diani Mardiana Mat Zin, Mohd Nasran Mohamad & et. al (2019) THE LEGALITY OF USING KETUM LEAVES ACCORDING TO SHARIAH PERSPECTIVE. International Journal of Civil Engineering and Technology (IJCIET). (10) 2. Retrieved from, online at http://www.iaeme.com/ijciet/issues.asp?JType=IJCIET&VType=10&IType=02
Muzzafar Syah Mallow. (2020) KETUM ABUSE IN MALAYSIA: ITS LEGAL STATUS AND PROPOSED SOLUTION. Perdana: International Journal of Academic Research. (7) 1. Retrieved from, https://perdanajournal.com/index.php/perdanajournal/article/view/48/56
Sayamol Chareonratana, Cholnapa Anukul & Apinun Aramrattana. (2021) Attitudes towards Kratom use, decriminalization and the development of a community-based Kratom control mechanism in Southern Thailand. International Journal of Drug Policy. Retrieved from, https://reader.elsevier.com/reader/sd/pii/S0955395921000955?token=1C06475BD4B7953CA78DAD8ACAFEE979DAAFD95456E181FF64499D6CD613CDD3E5BABA28889B54B1F2B0927ECFFEEAC0&originRegion=eu-west-1&originCreation=20210829051841
Thailand takes kratom off illegal drug list (2021, August 24) retrieved 29 August 2021 from https://medicalxpress.com/news/2021-08-thailand-kratom-illegal-drug.html
Pascay Tanguay. (2011) Decriminalisation and Community Control? Transational Institute. Series on Legislative Reform of Drug Policies Nr.13. Retrieved from, https://www.tni.org/files/download/kratom-briefing-dlr13.pdf
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