The Khyber Pakhtunkhwa government introduced the KP Control of Narcotics Substance Bill, 2017, in the provincial assembly on Sept 19. The bill is aimed at repealing a two-decade old anti-narcotics law and curtailing the jurisdiction of Anti-Narcotics Force (ANF) and police department in narcotics-related cases in the province.

The bill has raised many eyebrows and also generated a debate whether a federal law could be repealed in this province in the light of the Constitution (Eighteenth Amendment) Act, 2010, which provides for greater provincial autonomy; and, whether the Control of Narcotics Substance Act, 1997, is a special law or a criminal law.

This move of the provincial government has also raised questions specially whether ending the jurisdiction of ANF and curtailing powers of police in KP in narcotics cases would not affect the overall anti-narcotics efforts of the government. Many critics believe that if the present bill is passed by the assembly it would result into legal complications and would also go in favour of narcotics traffickers.

The proposed law suggests setting up of a Narcotics Control Wing within the Directorate General of the Excise, Taxation and Narcotics Control Department. It provides that the said Wing shall be headed by a director, under the supervision and control of the director general.

Presently, the excise department is empowered to seize narcotics, but has no power of investigation and prosecution and it has to refer a case to the concerned police station in whose jurisdiction the seizure is being made. After passage of the law, the situation would be vice versa.

The bill provides that in case, any police officer arrests an accused with narcotics substance, such accused along with the recovered narcotic substance shall be handed over to the Narcotics Control Wing (NCW) or the investigation officer.

Another controversial provision is Section 45 (3) which provides that the ANF, established under the ANF Act 1997, shall have no jurisdiction in the offences under this Act, except the transportation of the narcotics substances from and to Pakistan or beyond the frontiers of the Province. After the passage of this bill, the ANF would only exercise jurisdiction on the airports or frontiers of this province.

“If this law was enacted it will prove disastrous. How could powers be taken away from Anti -Narcotics Force which was specifically trained for this purpose, and the police department which is having presence all over the province,” said a senior advocate Nasrun Minallah, who is an expert on narcotics laws.

He said that ANF was creation of ANF Act, 1997, whereas through the present bill the provincial government intends only to repeal the CNS Act, 1997, to the extent of this province. He questioned how the powers of ANF be curtailed in this province when there was no mention of repealing the ANF Act in the proposed law.

He pointed out that the police were not only arresting narcotics traffickers rather they had also been nabbing drug sellers, which included smalltime sellers on village and mohallah levels. He added that if the powers of investigation and prosecution were taken away from the police and they were only left with seizures, it would discourage them and they would be no longer interested in arresting drug sellers.

Before the Constitution (Eighteenth Amendment) Act, 2010, both the federal and provincial legislatures were empowered to legislate on issues mentioned in the Concurrent Legislative List. After the said constitutional amendment the Concurrent Legislative List ceased to exist and now only on matters related to criminal law, criminal procedure and evidence both the federal and provincial legislatures could legislate.

The erstwhile Concurrent Legislative List was having 47 entries and both federal and provincial governments had powers to legislate on subjects mentioned therein. The erstwhile Entry 19 of the said list included “opium, so far as regards cultivation and manufacture.” Similarly, Entry No 20 included “Drugs and medicines”; whereas Entry No 21 included “poisons and dangerous drugs.”

The framers of the present bill believe that as the Concurrent List no longer exists, now only the provincial legislature is empowered to legislate on subjects mentioned in it and that are not part of the Federal Legislative List.

The Constitution of 1973 in its present form only includes the “Federal Legislative List”.

Now only three matters are left over which both the federal and provincial legislatures could legislate. These include criminal law, criminal procedure and evidence. Article 142 (b) of the Constitution states: “Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have powers to make laws with respect to criminal law, criminal procedure and evidence.”

Furthermore, Article 143 provides that if an Act of a provincial assembly is repugnant to any provision of an Act of Parliament, which the Parliament is competent to enact, then the Act of Parliament shall prevail and the Act of provincial assembly shall, to the extent of the repugnancy, be void.”

Some of the legal experts believe that Control of Narcotics Substance Act (CNSA) is a criminal law, and therefore the provincial government is not empowered to enact a law on the same subject which is in conflict with the federal law.

However, some of the supporters of this bill claim that enacting an anti-narcotics law shall be considered a special law and not a criminal law. They believe that following the passage of the Constitution (Eighteenth Amendment) Act, 2010, the enactment of special laws for matters concerning the provinces, which was earlier mentioned in the Concurrent Legislative List of the Constitution, had now been exclusive domain of the provinces.

From time-to-time different anti-narcotics laws were introduced in the country. Finally, the CNSA, 1997, was enacted through which all the previous laws were repealed including: The Opium Act, 1857, The Opium Act, 1878, The Dangerous Drug Act, 1930, and the Control of Narcotics Substance Ordinance, 1997.

Experts believe that as Khyber Pakhtunkhwa is one of the major routes of drug trafficking, therefore, the provincial government should act with caution and should not make any law in haste.

Published in Dawn, October 9th, 2017