In modern times, one of the challenges for the 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 to fuel all other forms of crime that take place in society. It is particularly pervasive in urban settings. Owing to its importance and the harm it caused to the West, one of the earliest international serious crimes that got the imagination of the 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 shows the status of ratifications with respect to narcotics-related treaties on its website; the ratification of these treaties is evidence of 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 temporary legislation in form of an Ordinance and then later on by introducing two legislations in the Parliament i.e. the Anti-Narcotics Force Act, 1997 (ANF) and the Control of Narcotics Substances Act, 1997 (CNSA). These two legislations provided the much-needed substantive, procedural and administrative law on the subject.
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However, due to the introduction of new types of drugs and owing to judicial review of the law related to CNSA, there was a need to review the legal framework related to the criminalization of drugs to cater to 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 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 that is carried out by a federal specialized police organization styled as ANF.
Accordingly, the ANF legislation conferred powers of police officers on ANF personnel and also created statutory linkages with police-related legislation. Nevertheless, due to the perception that policing is a provincial subject and not a concurrent subject as envisioned by articles 142 and 143 of the Constitution of Pakistan, the provinces have initiated provincial legislation on the subject (for example, the introduction of KP CNSA, 2019) constraining the federal government to lay a constitutional challenge to the enactment (i.e. KP CNSA, 2019) before the Supreme Court of Pakistan.
Against this backdrop and till the final determination by the apex court about 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 sale, purchase and trafficking of drugs) enforce the law by prosecuting criminals under the CNSA, 1997. The latest amendments to the CNSA, therefore, must be reviewed conceptually by exploring its salient features:
Internationalization of CNSA
There are very few legislations in Pakistan that directly refer to international treaties in the text of a 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 of the CNSA have added a new sub-section in the definitions part of the statute and have developed the textual link between international law and national law on drug control.
The statute now defines ‘International Conventions’ as the Single Convention on Narcotic Drugs, 1961, the Convention against Psychotropic Substances, 1971 and UN Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. It also has an enabling clause that links future international treaties with 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 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 an international legal regime (like the precursor system of import and export of controlled substances at the international level) into the legal framework of Pakistan.
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Penal and sentencing policy
The new amendments offer new penal and sentencing policies on narcotics, psychotropic substances and controlled substances. The earlier quantity-related regime was not sophisticated in the sense that ,it treated narcotics, psychotropics 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. 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 offenses has also been checked by taking away the discretion of judges in sentencing and by binding them to impose maximum punishments for repeat offenders. With a more nuanced penal and sentencing regime, it is hoped that judges will be imposing punishments in a more systemic manner and this is surely going to strengthen the enforcement efforts to control the supply and usage of drugs in society.
Strengthening the substantive law regime
The 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 defense 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 the 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.
The Anti-Money Laundering Act, 2010 declares the offenses under CNSA Act, 1997 as predicate offenses. 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.
The whole gambit of these legal superstructures has consequences for diplomatic and political diplomacy affecting 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 and this is evident from the typologies of these offenses that show how heinous forms of crimes are carried out by organized criminal gangs having partnerships with drug-supplying syndicates.
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Legislation and drugs
Pakistan is considered a country with a high rate of legislation; most of these legislations were conceptual and administrative in nature leaving much to be desired insofar as their impact on service delivery, protection of human rights and crime control. The latest amendments to the CNSA have, no doubt, added value to the existing legislative framework by strengthening the punitive side of the law. The systems’ approach vis-à-vis rehabilitation, reformation, and drugs in prisons and educational institutions require to be strengthened through budgetary allocations to match the legislative intent.
The demand side of drugs is usually checked by law enforcement in Pakistan instead of clamping down on the networks of the supply side. Most of the supply side is pegged into an international legal framework that strengthens administrative and prosecutorial regimes to check proceeds of crime i.e. drugs. At the international level, Pakistan must leverage its position to strike partnerships with other countries and international forums to introduce robust international cooperation and mutual legal aid arrangements. At the domestic level, the coordination between the federal and provincial police organizations to enforce CNSA needs to be improved drastically to ensure that these organizations do not work at the cross purpose and move in one direction by synchronizing their efforts.
Kamran Adil is currently serving as Deputy Inspector General of Punjab police. He studied law at Oxford University and writes and lectures on international law. The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.