Penal measures for drug offences: perspectives from some Asian countries
Current sentences for drug-related crimes in various Asian countries
The death penalty
Other severe punitive sanctions
Research on penal strategies
Author: D. C. JAYASURIYA
Pages: 9 to 13
Creation Date: 1984/01/01
Attorney at Law, Colombo, Sri Lanka
The importance of penal measures in the control of drugs has been recognized by various Asian countries during the last three centuries. The countries of the Asian region referred to in this article have legislation providing for different penal measures against drug offences. Severe punitive sanctions, including the death penalty, have been prescribed for serious drug offences by Iran (Islamic Republic of), Malaysia, the Philippines, Singapore, Sri Lanka and Thailand. Several countries in the region have made legal provisions for the compulsory treatment and rehabilitation of drug dependent persons. There is, however, a paucity of research studies on the efficiency of penal measures and approaches in drug control. Given the long tradition of punitive measures and the wide variety of penal approaches adopted to cope with drug-related problems, various Asian countries can provide interesting cases for criminological research on the effectiveness of penal measures in combating drug problems.
As in the case of other branches of the law where sanctions are employed to deal with non-compliance with legal provisions, in the area of drug legislation penal measures have also been accorded a place of prominence.
The precise nature of the penalties to be prescribed for drug offenders has not been set out in the principal international drug control treaties. The Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961.1 and the 1971 Convention on Psychotropic Substances2 do not contain any indication of the magnitude or the range of punitive sanctions to be applied by countries in respect of those who transgress national drug laws. The Conventions require adequate punishment, particularly imprisonment or deprivation of liberty in some other form, for serious offences. 3,4
1 Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961(United Nations publication, Sales No. A/C/E/F/R/S.77.XI.3).
1 Convention on Psychotropic Substances 1971 (United Nations publication, Sales No. A/C/E/F/R/S.78.XI.3).
Historically, penalties have played a significant role in drug control. Sri Lanka, for instance, had a law on the statute book that provided for serious penalties for drug offenders, which was one of the earliest examples of such legal provisions. A law dated January 1675 provided for the dismissal from service of government civil servants convicted of drug offences. 5 More important was the provision for the deportation of foreigners convicted of drug offences, who were also liable to imprisonment if they returned to the country.
Countries in the Asian region have provided for a wide range of penal measures for drug offences. Fines and jail sentences are the two most common forms of punishment. The amount of the fine is often laid down in the law. Some countries fix the amount according to the nature of the controlled substance in respect of which the offence has been committed and the quantity of the substance involved. It is interesting to note a method of computing fines in Thailand, which was set out in the 1922 Drugs Act.6 Under this Act, for purposes ofcalculating fines, the price of the drug as sold by the Department of Public Health is regarded as its value. In the case of drugs that are not offered for sale by the Department, the market retail sales price is used as the basis.
The seriousness with which drug offences are perceived by some Asian countries is exemplified by the imposition of the death penalty for certain forms of drug-related crimes. The laws of several countries, such as Iran
(Islamic Republic of), 7 Malaysia, 8 the Philippines, 9 Singapore, 10 Sri Lanka 11 and Thailand, 12 have prescribed the death penalty for persons convicted of serious drug-related offences. Traditionally, the death penalty has been provided only for such crimes as murder and treason. However, the gravity of drug-related crimes and their social implications have led legislators of the above-mentioned countries to provide for the death penalty for certain drug offences.
3 B. Rexed and others, Guidelines for the Control of Narcotic and Psychotropic Substances in the Context of lnternational Treaties (Geneva, World Health Organization, 1984).
4 A. Noll, "Drug abuse and penal provisions of the international drug control treaties", Bulletin on Narcotics (United Nations publication), vol. 29, No. 4 (1977), pp. 41-57.
5D. C. Jayasuriya, Narcotics and Drugs in Sri Lanka: Socio-Legal Dimensions (Mount Lavinia, Associated Educational Publishers, 1977), pp. 4-5.
6 Harmful Habit Forming Drugs Act , B.E. (Buddhist Era) 2465, 1922.
Traditionally, long-term imprisonment has been imposed only for grave offences. At present, many countries prescribe this form of punishment for drug offences. For example, legislation in Singapore, provides for a 30-year maximum sentence of imprisonment.
The laws of Singapore and Malaysia provide for the death penalty, jail sentences and fines. Those two countries have also prescribed whipping as a form of punishment. Legislation in the Philippines provides for the deportation of foreigners convicted of drug offences and for the confiscation of land used for the cultivation of certain plants from which prohibited drugs are manufactured. Immigration authorities in Indonesia have been empowered to prohibit the entry of foreigners who have been involved in drug offences. Legislation was enacted in the Islamic Republic of Iran in 1969 13 for the withdrawal of certain concessions and privileges from those who did not give up their addiction within a given period of time. Under that legislation, employees, for example, were liable to dismissal and to forfeiture of the privileges granted under the Labour Law and Social Insurance Law, and students were compelled to discontinue their studies. The law also covered merchants and industrialists addicted to opium. They were liable to expulsion from government chambers of industry and commerce. In the Philippines, legal provisions exist which may result in the withdrawal of diplomatic privileges.
7Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs, Islamic Republic of Iran: the Law intensifying punishment of main perpetrators of the crimes mentioned in the Amendment Law of the Law Banning Poppy Cultivation and Permitting Abolition of the Prosecution and Punishment of the Other Perpetrators of the said Crimes, June, 1969 (E/NL.1970/24. 11 March 197D. Article (e).
8 Dangerous Drugs (Amendment) Act, No. A 293, 1975.
9 Dangerous Drugs Act, No. 6425, 1972.
10 Misuse of Drugs (Amendment) Act, No. 49, 1975.
11 Poisons, Opium and Dangerous Drugs (Amendment) Act, No. 13, 1984.
12 Narcotics Drugs Act, B. E. (Buddhist Era) 2522, 1979,
13 Laws and regulations promulgated to give effect to the provisions ofthe international treaties on narcotic drugs, Islamic Republic of Iran: the Law Permitting Limited Cultivation of Poppy and Export of Opium, 4 March 1969 (E/NL. 1970/17, 11 March 1971).
Measures for the compulsory treatment of drug-dependent persons have recently assumed importance in some Asian countries and territories, such as Burma, 14 Hong Kong, 15 Malaysia, 16 the Philippines 17 and Singapore, 18 which have legal provisions to compel drug-dependent persons to seek treatment. In some countries the period of treatment is in lieu of a jail sentence, while in others it is regarded as part of the sentence. The recognition of treatment as an alternative or in addition to conviction or punishment is an important development since it has both preventive and curative potential. Thus, the drug offender who is also an addict has an opportunity to receive treatment. The exposure to treatment in surroundings more congenial than in a prison may help the drug-dependent person to realize the hazards of drug abuse and, on discharge, to reintegrate into society.
On the whole, Asian drug laws include a variety of punitive provisions for drug-related crimes which may be of interest to legislators in studying penal strategies.
For centuries the application of penal provisions has been largely a mechanical process. Recently, however, attempts have been made to take a closer look at the sentencing policy and process. Research studies have questioned, for instance, the traditional wisdom of controlling drug abuse by increasing penalties. Attempts have been made to demonstrate that reducing maximum penalties would make it easier to detect offenders 19 Such matters as the deterrent effect of imprisonment and the need for differential sentencing policies deserve further research. The penal provisions relating to drug offences in Asian countries have not yet been sufficiently studied by criminologists. As a result, there is little evidence available to demonstrate the effectiveness of different penal strategies that have been implemented.
There is also a need to promote research on the relationship between drug offences and crop substitution programmes in certain Asian countries, such as Burma and Thailand, and further to examine the possibilities of utilizing community resources for the prevention and reduction of illicit drug demand and the impact of such demand on the frequency and forms of drug offences. If alternative strategies help to reduce the incidence of drug offences, it may even be necessary to reconsider the role and functions of the system of penal sanctions in the area of drug control.
14 Narcotics and Dangerous Drug Law, No. 5, 1974.
15 Drug Addiction Treatment Centres Ordinance, chapter 244 of the Laws of Hong Kong.
16 Dangerous Druas (Amendment) Act, No. A293. 1975.
17 Dangerous Drugs Act, No. 6425, 30 March 1972.
18 Misuse of Drugs Act, No. 5, 1973.
19J. F. Galliher, J. L. Macartney and B. E. Baum, "Nebraska's marijuana law: a case of unexpected legislative innovation", Law and Society Review, vol. 8, No. 3 (1974), pp. 441 - 455.
Asian countries have an impressive record of providing for a range of penal sanctions for drug offences. However, it is not an unqualified success story. Very little research has been carried out to determine the effectiveness of penal sanctions or to identify new sanctions that might yield successful results. Given the magnitude of current drug-related problems in a number of Asian countries and the long tradition of penal measures that have been adopted to deal with those problems, a closer look at the theory and practice of penal law systems in Asian countries and more research studies to assess their impact would undoubtedly add to the body of knowledge on the subject.