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Control of Narcotic Substances in Pakistan

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Control of Narcotic

Substances in Pakistan

In modern times, one of the challenges for law and order machinery of a state is policing drugs. In its harmful effects, it is as fatal as any climate-induced calamity and has the potential of fuelling all other forms of crime that take place in the society. It is particularly pervasive in urban settings. Owing to its importance and the harms it caused to the West, one of the earliest international serious crimes that got imagination of international community in the last part of the twentieth century was drug control in all its manifestations – from its consumption to its trafficking and from its production to its laundered crime proceeds. The initiative of the international community was reciprocated by Pakistan and its Ministry of Foreign Affairs which shows the status of ratifications with respect to narcotics-related treaties on its website; the ratification of these treaties evidences Pakistan’s commitment to checking the menace of drugs in society and at international level. In line with its international commitments, it legislated on the subject in 1996 through a temporary legislation in the form of an Ordinance and then later on by introducing two pieces of legislation in the Parliament, i.e. the Anti-Narcotics Force Act, 1997 (ANF), and the Control of Narcotics Substances Act, 1997 (CNSA). These two pieces of legislation provided the much-needed substantive, procedural and administrative law on the subject. However, due to introduction of new types of drugs and owing to judicial review of the law related to CNSA, there was a pressing need to introduce amendments to the law so as to cater for new forms of synthetic drugs and psychotropic substances.
Catering to these new requirements, on 6th September 2022, the Control of Narcotics Substances (Amendment) Act, 2022, was enacted, which must be noted by the law-enforcement and civil society organizations. But before doing that, it may be noted that, essentially, the law-enforcement part of drugs control is a policing function. Accordingly, the ANF legislation conferred powers of police officers on ANF personnel and also created statutory linkages with police-related legislation. Nevertheless, due the perception that policing is a provincial subject, and not a concurrent one, as envisioned by articles 142 and 143 of the Constitution of Pakistan, the provinces have initiated provincial legislation on the subject (for example, introduction of KP CNSA, 2019), constraining the federal government to lay a constitutional challenge to the enactment before the Supreme Court of Pakistan. In this backdrop, and till the final determination by the apex court on the constitutionality of KP CNSA, the CNSA, 1997 holds the field as the chief enactment on drug control in the country. Police in the provinces and the ANF (within its own mandate of checking the wholesale sale, purchase and trafficking of drugs) enforce the law by prosecuting criminals under the CNSA, 1997. The latest amendments to the CNSA, therefore, require deeper appreciation, which may be carried out be exploring the legislation in a thematic manner:
1. Internationalization of CNSA
There are very few pieces of legislations in Pakistan that directly refer to international treaties in the text of the statute. Theoretically, international obligations undertaken by the Government of Pakistan must be written into the municipal legislation to give effect to the obligations undertaken. The latest amendments to the CNSA have added a new sub-section in definitions part of the statute and has developed textual link between the international law and national law on drugs control. The statute now defines ‘International Conventions’ as the Single Convention on Narcotic Drugs, 1961, the Convention against Psychotropic Substances, 1971, and the UN Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. It also has an enabling clause that links future international treaties with the municipal laws; the future undertaking of international commitments through national legislation is interesting jurisprudentially as it is difficult to see how future international obligations can be committed through a national legislation. At any rate, the clarity is good in the sense that it has expressed legislative intent to criminalize narcotics but has also the effect of importing international legal regime (like precursor system of import and export of controlled substances at international level) into the legal framework of Pakistan.
2. Penal and Sentencing Policy
The new amendments offer new penal and sentencing policy on narcotics, psychotropic substances and controlled substances. The earlier quantity-related regime was crude in the sense that it treated narcotics, psychotropic and controlled substances at par by linking punishment with quantity. This approach has been reviewed and the matrix of quantity and quality has been rationalized. The capital punishment has also been limited to only one instance, i.e. when an accused is found to have possession of heroin of more than 6000 grams or more. A good addition is that the new amendment obliges courts to impose maximum punishment in cases where narcotics are sold in or near educational institutions. In a similar fashion, the recidivism or repetition of offences has also been checked by taking away discretion of judges in sentencing and by binding them to impose maximum punishments for repeat offenders. With more nuanced penal and sentencing regime, it is hoped that judges will be imposing punishments in more systemic manner and this is surely going to strengthen the enforcement efforts to control supply and usage of drugs in the society.
3. Strengthening the Substantive Law Regime
Third area that must be noted is that new types of narcotics and psychotropic substances have been added to the schedule and made part of the legal framework. Earlier, there were instances when the defence lawyers attacked the prosecution cases on the basis of the type of drugs by stating that the particular drug was not covered in the law. With inclusion of new types of drugs like ‘ice’, the new amendments also provide enabling and delegating powers to the executive/federal government to amend the schedules listing drugs to suitably amend details through delegated legislation.
4. Money Laundering
The Anti-Money Laundering Act, 2010, declares the offences under CNSA Act, 1997, as predicate offences. This statutory linkage of the two enactments, when read with the United Nations Convention against Transnational Organized Crime (UNCTOC), creates intersections between laws related to money laundering, corruption, obstruction to justice, international cooperation and international architecture monitoring international sanctions regime. Whole gambit of these legal superstructures have consequences for diplomatic and political diplomacy affecting the international relations, and in this stead, Pakistan has served itself well by updating its legal framework. Crime proceeds of drugs are used for trafficking in persons as well as in smuggling of migrants, as the typologies of these offences would bear it out that these heinous forms of crimes are carried out by organized criminal gangs having partnerships with drug-supplying syndicates.
Way Forward
There is no gainsaying in the fact that drugs cannot be checked through law enforcement only. Comprehensive frameworks require that a systems approach be taken in curbing the use, supply and trafficking, as well as in tracking crime proceeds of drugs. All over the world, this is undertaken by creating national and international partnerships because organized crime world over requires regional and global response. Pakistan would be doing well if it puts together its act by bringing all enforcement, regulatory, communication and awareness paraphernalia at one place enabling a federal response to this menace of drugs instead of investing in piecemeal and fractured outcomes.

The author is an independent researcher and has done his BCL from the University of Oxford. Email: kamranadilpsp@gmail.com

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