Dilawar, a 65 years-old truck driver, is apprehended one day on his way to Kashmir and found to be carrying 380 kilos of cannabis. He is oblivious to the nature of the cargo, yet is able to identify with detailed precision, the people who had employed him to carry it. Although apprehended, these individuals are only detained and then released without any charges against them. Dilawar on the other hand, a man who would have needed 76 years just to earn the money required to buy that amount of drugs, was prosecuted and eventually handed a sentence for life imprisonment.
Dilawar’s case is not anomalous in the record of anti-narcotics enforcement in the country. The regime in Pakistan is rigged against those from the poorest and most vulnerable strata of society. In many cases this includes women and it also includes under-age minors and people with learning difficulties.
A report published earlier this year by the Foundation for Fundamental rights relied on extensive case reviews and interviews, to reveal the iniquitous operations of the Control of Narcotic Substances Act of 1997 (CNSA). The extensive research in the report does not reveal a single case, where a defendant had faced the harshest penalties under the act — death or life imprisonment — for the organization, management or financing of drug cartels. All death penalties handed out under the CNSA are for possession-based offences.
Ostensibly, the CNSA was implemented to control the “production and processing” of narcotics in addition to their trafficking. However, under the CNSA regime the focus has remained on making individual seizures of narcotics, rather than on building more complex investigations targeting senior traffickers and the disruption of criminal networks. This mislaid focus, which allows for expendable ‘drug mules’ to be arrested and convicted rather than the actual kingpins, is aided by the broad-brush nature of the law.
Such a focus on outputs instead of outcomes under the CNSA regime is the reason that more than 6.7 million Pakistanis remain dependent on or addicted to drugs according to UNODC. Despite these seizures and arrests, the flow of drugs through the country has not been significantly impacted
In the first place, the CNSA presumes that accused parties found carrying drugs are guilty under the Act. Section 29 particularly shifts the criminal burden of proof onto the accused so that he or she has to account satisfactorily for possession of a prohibited substance, failing which they are found to be guilty. In most cases testimonies from independent witnesses (those who are not on the ANF’s payroll) are not taken into account. Given the inability in most cases to pay for good legal representation, the accused has very little capacity to overcome this presumption of guilt. By making possession almost a strict liability offence, the quantum of punishment is solely determined by reference to the quantity of narcotics found on the person. Few, if any mitigating factors are considered.
Overall, the framework is itself flawed: from acts ranging from simple possession of drugs to management or financing of a cartel, courts can hand down the death penalty or life imprisonment. Given the low standard of proof required for convictions on possession, these account for the high success rate that the ANF counts for ‘drug busts’ in this country. Returning to the case of Dilawar above, it is clear that all the parties who organized, financed and managed this consignment of drugs remain at large. The life sentence awarded to Dilawar reflects the cumulative harm that such a large quantity of drugs would be ascertained to have if released into society; however, is it fair that Dilawar be the one from whom retribution is sought?
In many cases, carriers and transporters are often coerced, tricked or driven by deplorable socioeconomic circumstances into drug trafficking. Beyond the relatively small sums that they may in cases be paid, they cannot be understood to have financial stakes in the drug trade. The cartels that do have a stake continue to flourish in conditions of relative impunity. Yet, even when identified, kingpins go free and the drug trade continues on.
At a function held in December 2017, the Anti-Narcotics Force congratulated itself for burning roughly 136 Metric Tons of drugs during its continuous ‘Anti-Drug Drives’ in major cities in 2017. In his presentation DG ANF cited sizable amounts of various types of harmful drugs being seized. He reportedly lauded the enforcement authorities for “successfully” convicting 96 percent of the people caught for drug trafficking. Research, however, indicates that these statistics can be misleading as indicators of success.
At a function held in December 2017, the Anti-Narcotics Force congratulated itself for burning roughly 136 Metric Tons of drugs during its continuous ‘Anti-Drug Drives’ in major cities in 2017
Such a focus on outputs instead of outcomes under the CNSA regime is the reason that more than 6.7 million Pakistanis remain dependent on or addicted to drugs according to UNODC. Despite these seizures and arrests, the flow of drugs through the country has not been significantly impacted.
Unless reforms are introduced to make the statute fairer and more effective, and standards of justice in the CNSA courts are improved, the CNSA regime will continue to fall short of achieving its objectives and this figure will only go higher.
The FFR report suggests some solutions. These include a reworking of the statute to allow for more proportionate sentencing reflective of the severity of the offense committed, the willingness of the offenders to cooperate and identify kingpins, a co-consideration of the type and quantity of drug being carried. Given that it’s proven utterly ineffective in deterring couriers or cartel leaders, the inclusion of the death penalty as punishment in this statute needs to be reconsidered.
Instead, a combination of financial and custodial penalties targeting the assets and liberty of the traffickers (particularly the senior ones) can be more effective as punishment. Focus needs to be redirected towards senior traffickers and on dismantling organised drug trafficking networks rather than intercepting ‘mules’ who can be easily replaced.
The writer is Manager Communications at Foundation for Fundamental Rights (FFR), Islamabad and can be emailed at [email protected]
Published in Daily Times, October 19th 2018.