Recent developments in legislative and administrative measures in countries of the Association of South-East Asian Nations to counter the illicit traffic in drugs
ASEAN Narcotic Desk
Policy and strategy
Legislative and administrative measures
Changes in drug legislation
Confiscation of illegally acquired assets
Denial of passports to drug offenders
Reward for information
Common legislative programme
Promotion of training
Promotion of the exchange of information betweendrug law enforcement agencies
Author: J. L. OHARA, M. ZAWAWI SALLEH
Pages: 51 to 56
Creation Date: 1987/01/01
Recent developments in legislative and administrative measures in countries of the Association of South-East Asian Nations to counter the illicit traffic in drugsJ. L. OHARA* Senior Federal Counsel, Attorney Generals Chambers, Malaysia
M. ZAWAWI SALLEH* Legal Adviser, Anti-Narcotics Task Force, National Security Council, Prime Ministers Department, Malaysia
The member States of the Association of South-East Asian Nations (ASEAN) have adopted various legislative and administrative measures to combat the illicit traffic in drugs. Some of these measures have been adopted as part of a scheme that aims at establishing uniformity among the methods to be used by ASEAN member States to achieve the common goal of suppressing the illicit traffic in drugs. This article describes some of the latest developments in this area.
The Association of South-East Asian Nations (ASEAN) was established at Bangkok on 8 August 1967 by the Bangkok Declaration, which was signed by the foreign ministers of Indonesia, Malaysia, the Philippines, Singapore and Thailand. The objective of the Declaration is to foster cultural, economic, scientific, social and technical co-operation between member States. On 7 January 1984, Brunei Darussalam joined ASEAN.
The drug problem has not spared any of the ASEAN member States, which have responded to the problem with mutual co-operation. They have formulated common policies, approaches and strategies, and adopted programmes and measures to overcome the drug problem that suit the prevailing circumstances.
The ASEAN Declaration of Principles to Combat the Abuse of Narcotic Drugs was adopted at Manila in 1976. To translate this Declaration into
*The views expressed in this article are those of the authors and do not necessarily reflect the views of the Malaysian Government.
action, the first ASEAN Drug Experts Group Meeting was held in Singapore in 1976; the meeting was to be held annually at a site chosen from among the ASEAN countries on a rotating basis. In May 1984, the 5th ASEAN Standing Committee renamed the ASEAN Drug Experts Group Meeting, calling it the Meeting of ASEAN Senior Officials on Drug Matters; the first meeting held under the new name was at Kuala Lumpur in 1985.
The recommendations of these meetings in the field of legislation and law enforcement against illicit drug trafficking have strengthened the resolve and perseverance of the ASEAN States in their search for effective ways to suppress drug trafficking in the region.
In September 1982 the ASEAN Narcotic Desk was established at Jakarta. Its main objective is to serve as a clearing house in the ASEAN Secretariat for information on research, expertise and other activities related to drug matters within the ASEAN countries. The Narcotic Desk is operated by an officer chosen from among the ASEAN member countries on a rotating basis. This officer is also entrusted with the task of initiating activities that can assist in implementing and monitoring the projects recommended by the Meeting of ASEAN Senior Officials on Drug Matters and endorsed by the ASEAN Standing Committee. In addition, the Narcotic Desk Officer organizes such activities as meetings, courses and the exchange of information in order to assist ASEAN member countries in controlling drug problems.
The Narcotic Desk Officer plays an important role in developing co-operation and improving communication among ASEAN member States and serves as a focal point in collecting, compiling and disseminating data pertaining to the drug problem in these countries.
At the 16th ASEAN Ministerial Meeting, held at Bangkok in June 1983, the Narcotic Desk Officer was requested to study the problems of increased incidence in drug abuse and drug trafficking in the ASEAN countries and to recommend urgently needed measures to cope with such problems. In response, the Narcotic Desk Officer consulted the heads of the drug co-ordinating agencies in ASEAN member States. This resulted in a project entitled "The Mobile Seminar on National Drug Problems in the ASEAN Region". The project included recommendations and concrete proposals to harmonize certain differences between ASEAN countries concerning the principles, philosophies, systems and methods of combating the escalating drug problem, including the policy of moving towards uniformity in the provisions of drug legislation and their implementation so as to prevent any lacunae that might be used by drug traffickers to their advantage. Those recommendations and proposals were approved by the 8th ASEAN Drug Experts Group Meeting, held at Jakarta in 1984. Based upon this policy, the strategy of supply reduction, in which law enforcement is used to fight illicit cultivation, production, trade and distribution of narcotic and other dangerous drugs, was developed, in addition to the strategy of enhancing the legal control system, including uniformity in the enactment of significant provisions of drug legislation and their implementation.
Every member State has its own laws to counter illicit drug trafficking. These laws are updated and modified as required in order to keep abreast of the new and expanding patterns of trafficking in illicit drugs. This reflects the determination of the Governments of the ASEAN member States to prevent the drug problem from getting out of hand.
Under the Malaysian Dangerous Drugs Act 1952, the mandatory penalty for trafficking in illicit drugs is death. A person is presumed to be trafficking in illicit drugs if he is found to be in possession of 15 grams or more of heroin or morphine (or monoacetyl morphine), or a combination of the two drugs; 1,000 grams or more of raw or prepared opium or a combination of raw and prepared opium; 200 grams or more of cannabis or cannabis resin, or a combination of cannabis and cannabis resin.
In Singapore, under the Misuse of Drugs Act 1973, the mandatory death penalty is imposed upon conviction for trafficking in more than 30 grams of morphine or 15 grams of diamorphine. Death is also the maximum penalty for trafficking in illicit drugs in the other ASEAN member States.
In Brunei Darussalam, a recent amendment to the Misuse of Drug Enactment 1978 has enhanced powers given to the police to detain suspected drug offenders.
The Philippines Government is preparing through the Dangerous Drugs Board omnibus amendments to the Dangerous Drugs Act 1972 that are intended to promote greater efficiency and effectiveness in dealing with the changing patterns of drug trafficking in the Philippines.
Over the last two years, Thailand has also embarked on a campaign to strengthen and tighten up its drug legislation. Among the measures adopted are laws that prescribe steps to be implemented for effective co-ordination of activities against narcotic offences and provide for punishment of all those involved in any conspiracy to produce, import, export, dispose of or possess illicit drugs.
In order to complement the enforcement effort in the interdiction of illicit drug trafficking, some of the ASEAN member States use preventive detention as a measure against major known traffickers who mastermind, finance and reap huge profits from trafficking in illicit drugs. These individuals are usually not in possession of drugs and it is difficult to gather sufficient evidence, or willing witnesses, to bring charges against them in a court of law.
In the Philippines, preventive detention of criminals suspected of crimes against public order and other serious crimes, including drug trafficking, is permitted under a presidential decree promulgated under Amendment No. 6 of the Philippine Constitution.
In Malaysia, the Dangerous Drugs (Special Preventive Measures) Act 1985 provides for measures whereby even persons suspected of being involved in an activity related to trafficking in dangerous drugs may be detained for a period of up to two years; this period may be extended for a further two years. In Singapore, the Criminal Law (Temporary Provisions) Act 1955 provides for detention without trial of persons associated with activities of a criminal nature, including drug trafficking, for a period not exceeding one year, but this period may be extended for additional periods of one year.
In both Malaysia and Singapore, the measure of preventive detention is implemented by order of the minister charged with internal security. This measure has proved to be effective in dealing with major drug traffickers. The other ASEAN member States have shown a keen interest in enacting such a law. In an effort to update Narcotic Law No. 9 of 1976, the Indonesian Government is conducting a study on the feasibility of introducing a detention law similar to those in Malaysia and Singapore. Thailand is in the process of introducing an act on the suppression of narcotic offenders that would include provisions for the preventive detention of major drug traffickers.
Since 1979 the ASEAN member States have recognized the need to introduce legislation on the confiscation of the property and assets of drug traffickers and the proceeds of drug trafficking, and some of the States have taken steps to introduce such legislation. In Malaysia, a draft bill called the Dangerous Drugs (Confiscation of Property) Act 1986 has been prepared by the Attorney Generals Chambers and has been submitted to the Anti-Narcotics Task Force of the National Security Council for consideration before being tabled in Parliament. This legislation, in addition to providing for civil and criminal forfeiture, would make offences out of such activities as laundering funds and owning, receiving, possessing or controlling illegally acquired property. In Thailand, the Suppression of Narcotic Offenders Act, which is to be introduced, includes provisions for confiscating the assets of drug traffickers. Other ASEAN member States have expressed interest in promulgating similar laws relating to the confiscation of property derived from drug trafficking so that the full force of concerted action taken by all ASEAN member States against illicit drug trafficking might deter the traffickers from continuing their operations.
Confiscating passports of convicted drug traffickers or individuals suspected of being involved in drug trafficking, together with refusing to issue passports to such persons, has been found to be an effective measure in the fight against drug crimes. The primary aim of this measure is to prevent drug traffickers from carrying out their operations across frontiers. In Indonesia, Immigration Law No. 8/1955 provides for the confiscation of passports of convicted drug traffickers; passports are also denied to persons who have a record of drug trafficking. In Malaysia, the provisions of the Passports Act 1966 and the Immigration Act 1959/63 authorize the Minister of Home Affairs to decide whether or not the issue of a passport to a convicted drug trafficker will be denied or delayed or whether a passport belonging to such an individual will be confiscated. In the Philippines, Executive Order No. 1 Series 1946, issued by the President, provides for the cancellation, revocation or invalidation of passports of persons charged in courts of law with any crime. There is, however, no law to deny the issuance of passports to convicted drug traffickers who have served their sentences. The Singapore Passport Regulations of 1971 prohibit the issuance of passports to Singapore nationals convicted of drug trafficking within Singapore or of any drug offence overseas, as well as the renewal of passports of such individuals.
In Thailand, there is no law providing for the denial of passports to convicted drug traffickers, but the Ministry of Foreign Affairs has prepared a draft passport act to prevent persons who have records as drug offenders from leaving the country.
The offering of rewards for information leading to the seizure of illicit drugs and the arrest of individuals involved in drug trafficking has also been found to be an effective measure against illicit drug trafficking syndicates. In Malaysia, Singapore and Thailand, rewards are paid to both the informers and law enforcement officers effecting such arrests. In the Philippines rewards are paid to the informers only, but the individuals who provide information about marijuana plantations are not entitled to such rewards. At present, the authorities are studying a draft provision to pay rewards to both law enforcement officers and civilians for services rendered in disclosing drug offences.
The ASEAN Interparliamentary Organisation has recognized the growing menace of drug abuse and drug trafficking and has recommended a common legislative programme for more effective drug control in ASEAN member States. It has resolved to include in the legislative programme of each country such measures as preventive detention, the seizure of assets of major drug traffickers and the confiscation of passports of convicted drug traffickers.
The need for drug law enforcement training has, for a long time, been recognized by ASEAN member States as being essential in combating drug trafficking. An ASEAN training centre was established in Thailand in 1980 to provide intensive training for narcotic law enforcement officers in order to enhance their knowledge, skills and co-operation in combating the drug problem. Courses are conducted at the centre each year for this purpose.
The Narcotic Desk Officer prepared in September 1985 a code booklet for drug law enforcement officers in ASEAN countries that was aimed at satisfying the need for drug law enforcement agencies to provide feedback for their counterparts; facilitating the disclosure of information about the arrests of individuals from one ASEAN country in another; and establishing a standard procedure that would allow the free flow of drug information between ASEAN member States.
The above-mentioned measures have strengthened the resolve and perseverance of those involved in the search for effective solutions to the problem of illicit drug trafficking in ASEAN countries. However, drug trafficking is still increasing and more effective concerted action is required. A certain degree of co-ordination and uniformity among the ASEAN member States has been achieved and, if this trend continues, it should provide the necessary momentum for a more comprehensive effort in drug control and in the prevention of drug abuse in the ASEAN member States.