Narcotic Drugs and Penal Law
Author: Arnulfo Martinez Lavalle Licenciado
Pages: 16 to 18
Creation Date: 1951/01/01
Alternate Delegate of Mexico to the Commission on Narcotic Drugs
Human criminality is an individual and group phenomenon which has afflicted society from the earliest days. The exact form it takes will depend on the stage of the community's cultural evolution. A civilization may even be said to create forms of illegal conduct corresponding to its own degree of development. Crime adapts itself to the age, and in that sense is relative. It violates the cultural values protected by the law, but the form and characteristics of the violation are invariably dictated by the social conditions under which it takes place.
The illicit traffic in narcotic drugs clearly illustrates this point. Narcotics have, of course, been known from ancient times; but the advance of chemistry and the discovery of synthetic drugs have opened up a vast new field of action which has given all countries cause for perpetual Concern. The various systems of law throughout the world have been compelled to provide for these newest forms of crime, and a great many sections have been devoted to them in criminal law and penal codes.
According to modern concepts of criminal law the only weapon against crime, apart from the elimination of social factors which may give rise to criminal conduct or moral degeneration, is punishment, which under a system of safeguards can take place only after an offence has been committed. Consequently the creation of offences, essentially a legislative task, is of paramount importance in the fight against crime. The aim of criminal policy, as part of penal theory, is to frame the law as best to prevent, try and punish crime and deter and avert repetition. This is one of the most important functions of government, for its purpose is to prevent rupture of social bonds and change in the social order.
Offences connected with the use of narcotic drugs have necessarily been classified according to the particular forms they take. Legislators have had to survey the various types of criminal activity and toanalyse the offenders modus operandi. The classification arrived at is given below.
One form of criminal activity in this field is illicit traffic in narcotic drugs, by which is meant clandestine trade carried on outside the control of the health authorities. It has of course been necessary to classify the drugs which require such control because they are habit-forming and harmful. In Mexican law, as in almost all the world's legal systems, this subject is dealt with in the public health code, as is only natural, since medicine, not law, indicates which raw or manufactured substances possess harmful qualities. On that classification the legislator bases the scope of the penal law and decides when clandestine trade in such substances shall be considered a criminal offence not only because it is punishable as a breach of administrative regulations, but also because it suggests, and indeed-I emphasize-proves, the existence of activities injurious both to the individual and to mankind.
While Various forms of traffic should generally be regarded as a material activity conditioned by modern transportation facilities, traffic should be clearly, understood to mean the circulation of substances which, because of their harmful qualities, are classed as narcotic drugs subject to administrative control. In short, traffic means any trade in manufactured narcotics or in raw material or seeds from which alkaloids or narcotic drugs may be derived.
Because of the new modes of transportation in use today, illicit traffic presents an acute problem for criminal policy; consequently legislators tend to assess the various forms of this criminal activity in relation to the method of transport used, and to regard as traffic not only the actual trading but also the transportation which makes it possible. A new and important form of this crime is international traffic, which has called for the enactment of severe penalties. The Mexican Penal Code, for example, imposes heavier penalties for international traffic and for the production and manufacture of narcotics intended for import. It does so because of the need for the collaboration of all countries in the international prevention of the illicit traffic in narcotic drugs. Narcotic drugs are often produced and manufactured not for illicit consumption at home but for export to, and use in, other countries. Hence it should be noted that illicit traffic in narcotics provides a vast of field for criminal policy, which, when it deals with crime connected with narcotic drugs, in effect becomes an international criminal policy.
It should also be noted that while all systems of law contain general provisions with regard to smuggling, they place narcotic drugs in a special category and punish more severely any attempt, whether successful or unsuccessful, at international traffic in those commodities. This fact is of great importance, since crime connected with narcotic drugs is usually the work of international gangs, which exploit the shortage in some countries of narcotics and of the means of producing and manufacturing them.
If we define production simply as the process of obtaining opium, Indian hemp, coca leaf, or other substances, which may serve as raw materials for the chemical preparation of narcotic drugs, the proper criminal policy is to prevent them from being obtained illegally. They must of course be produced to satisfy medical and scientific needs, but such production should be strictly controlled and clandestine production severely punished. At present a highly commendable effort is being made, with the support of all the States signatory to the international conventions in this field and with the aid of the United Nations, to establish a world control of production of basic substances for medical and scientific needs only.
Legislatures have been obliged to make the clandestine production of basic substances and procurement of raw materials a criminal offence in order to control the total production and to cut off supplies to the illicit market.
Manufacture has so many features in common with production that when it is clandestine it too should be regarded as a crime and the operation of clandestine laboratories should entail condign punishment. The prevention of clandestine manufacture has a number of special aspects control: of lawfully operating laboratories; general investigation of the activities of professional and amateur chemists; and observation of the level of normal stocks required by each country for its medical and scientific needs.
These functions should be entrusted to both administrative and police authorities, so that the former may, apart from any penal action, revoke licences issued for the exercise of professions more or less closely connected with those functions. Administrative regulations should be based on statute and should be consistent with and likely to promote a criminal policy aimed at preventing illicit traffic in and clandestine production and manufacture of narcotic drugs.
Health authorities too should endeavour by regulations to prevent illicit traffic from utilizing legal channels. Such regulations should lay down the conditions under which physicians and pharmacists may dispense medicines containing narcotic drugs; the forms in which narcotic drugs may be prescribed for treatment; the provision that all medical prescriptions for narcotic drugs should be written on special numbered forms issued by the health authorities and that licences may be revoked administratively for prescribing narcotics on unofficial forms, without prejudice to prosecution in suitable cases; specification of the maximum quantity of a narcotic drug which may be prescribed as part of a chemical compound for the treatment of various diseases with regard to its effect and periodic use as required by the treatment; conditions under which properly-authorized establishments, such as pharmacies and Chemical laboratories, may purchase and sell narcotic drugs, to be dispensed on medical prescription, subject to periodic visits by health inspectors; strict prohibition of the sale of narcotic drugs not compounded in the proportions permitted by regulation, in order to prevent their use by addicts even on medical prescription, except for gradual disintoxication treatment in properly-supervised private or public institutions.
Administrative control should include the general regulation of imports of basic substances and manufactured narcotic drugs by means of import certificates. These certificates should be issued by the health authorities with due regard to the stock requirements previously declared by them and in accordance with the restrictions which the various international conventions impose on signatory and recommend to the attention of non-signatory States.
These measures represent the elementary requirements of a proper criminal policy in this field; they should by no means be regarded as exhaustive.
Close international co-operation is vitally neces-sary if the campaign against illicit traffic and the clandestine production and manufacture of narcotic drugs is to be successful. In view of the different constitutional sys-tems of the various countries, identical legislation for this problem is out of the question; hence international con-ventions must be concluded, laying down a minimum series of measures to reduce the illicit use of narcotic drugs and establishing systems of information exchange, control and penalties to be enacted for violation. Study of the new forms of criminal activity connected with the clandestine use of narcotic drugs and the need for imposing severe penalties on all such acts have led to the creation of new criminal offences in domestic systems of law. Thus certain new provisions have been introduced into the Mexican Penal Code dealing exhaustively with all criminal activities involving the use of narcotic drugs.
On theoretical grounds and for the sake of better classification, these criminal activities have been grouped under the general heading of "Offences against the public health". Such a classification makes it possible to regard as offences a wide range of activities, irrespective of the means of their performance, and encompasses all forms of crime which in any way injure health by the specific use of narcotic drugs. Consequently traffic, trade, possession, manufacture, purchase, transfer, gift and any act related to the acquisition or supply of or traffic in, seeds or plants having the character of narcotic drugs, are punishable; and any act amounting to general instigation, or the act of illicitly inciting, inducing or assisting another person to use narcotic drugs or seeds or plants of the same character, are likewise criminal offences. This provision, which results from a recent reform of the Penal Code, establishes a new type of offence known as "proselitism with regard to narcotic drugs". This provision covers two basic aspects: instigating the use of narcotic drugs, i.e., inducing a person to begin or continue the use of narcotics; and procuring the commission of acts connected with the production and manufacture of narcotic drugs. This provision of the Mexican Penal Code completes the full series of offences against the public health constituted by the handling of narcotic drugs or by related acts.
In accordance with the latest developments in penal law, the Mexican Penal Code does not itself give a scientific definition or a classification of narcotic drugs, but considers that these matters are technically and scientifically within the scope of the Public Health Code, the body of law defining and classifying narcotic drugs. Consequently the Penal Code regards as narcotic drugs those designated as such in the Public Health Code and in the international conventions which Mexico has signed or may sign in the future. Mexican criminal legislation on the matter thus obeys the precepts of penal theory in merely making an act a criminal offence when it forms part of the traffic in narcotic drugs. It is worth noting how Mexican criminal law regards and attempts to solve these problems in its provisions based on international conventions. In our times traffic in narcotic drugs, like traffic in persons and similar criminal activities, is part of the subject matter of an emerging international criminal law. It may therefore be said that Mexico's criminal policy embraces all possible kinds of illegal activity in regard to narcotic drugs. In pursuance of that policy, Mexico is a member of the United Nations Commission on Narcotic Drugs; it has signed all the relevant international conventions and scrupulously carries out all the resulting obligations.
Although criminal policy is regarded as a science subsidiary to penal jurisprudence, its usefulness, devel-opment and value in the teaching of law have been clearly demonstrated by the German criminologist Franz von Liszt in a number of learned studies and treatises. I regard it as a most important branch of penal jurisprudence because it helps to translate theory into practice and thus represents the teleological aspect of penal law -the determination and attainment of the ends for which penal law is established.
Scrutiny of the problem of criminal acts connected with narcotic drugs is an essential part of their prevention, and the whole world is now concerned with its solution. Hence the work of the United Nations Commission on Narcotic Drugs and of the Division of Narcotic Drugs is especially valuable, for they base it on high regard for the health of all mankind, and endeavour to direct an appropriate criminal policy against the use of narcotic drugs which injure and debase man. They are thereby carrying out the fundamental purposes of the United Nations Charter by promoting a better development of the various countries which constitute the world and which in the final analysis have but a single nationality: the human race.
Our present stage of cultural development obliges all nations to fight shoulder to shoulder against crime, and especially against crime connected with narcotic drugs, which is clearly becoming international. The nations of the world will recognize thereby that they are bound to depend on each other if they are to satisfy their common needs, since they are all parts of the same whole: humanity.