PESHAWAR: The Peshawar High Court has rejected a petition challenging the recent enactment of a special anti-narcotics law in the province and declared it in line with the Constitution.

A bench consisting of Chief Justice Waqar Ahmad Seth and Justice Mohammad Naeem Anwar pronounced a short order for the dismissal of the petition after the completion of arguments.

A citizen, Asmatullah, had contended that in the presence of the federal law, Control of Narcotics Substance Act (CNSA), 1997, a provincial law on the subject could not be enacted.

The petitioner requested the court to declare the KP Control of Narcotics Substance Act (KPCNSA), 2019, unconstitutional, illegal and without jurisdiction.

The KPCNSA was passed by the assembly on Aug 27 and received the assent of the governor on Sep 2.

Petitioner claims provincial govt can’t legislate on a matter if federal law exists on it

Passing the law, the government had claimed that it had incorporated specific provisions for checking the growing use of ice drug or crystal meth in the province.

The petitioner’s counsel, Noor Alam Khan, said the federal government had enacted the CNSA 1997, which was a comprehensive law and had provided therein special provisions for curbing the menace of narcotics.

He said the CNSA 1997 was a very rigid special law wherein extreme punishment of death or imprisonment for life had been provided. He added that the provision of bail had also been ousted by CNSA besides the vehicles used in the offence were also confiscated to the State.

Despite the presence of CNSA, he contended that the provincial government recently passed the KPCNSA.

He argued that the CNSA 1997 had already been extended to whole of Pakistan and thus in its presence the provincial assembly had no authority to pass a law on same subject.

He said through the provincial law the CNSA was repealed within Khyber Pakhtunkhwa to the extent of cultivation, possession, selling, purchasing, delivery and transportation of narcotics.

He argued that although the Concurrent Legislative List of the Constitution has been omitted from the Constitution through the Constitution (Eighteenth Amendment) Act, 2010, a mini concurrent list was still available in Article 142 relating to criminal law, criminal procedure and evidence, so if any law was made by a provincial legislature on these subjects, it would be against Article 143 of the Constitution and the federal law on the subject would prevail.

Advocate Noor Alam Khan contended that under the doctrine of ‘occupied field’, the federal law of narcotics was already there and was applicable to the entire Pakistan, which had been implemented by well-trained and experienced officers of Anti Narcotics Force (ANF).

Acting advocate general Atif Ali Khan opposed the petition and contended that after the passage of the Constitution (Eighteenth Amendment) Act, 2010, the concurrent legislative list was abolished. He added that now the federal legislature was empowered to legislate on subjects mentioned in the federal legislative list, whereas remaining subjects were in the jurisdiction of provincial legislature.

Mr Atif said on the subject of the criminal law, criminal procedure and evidence law, the federal government was empowered to legislate for Islamabad and former Federally Administered Tribal Areas but after the merger of Fata with KP, the federal government could only legislate for Islamabad.

Atif Ali argued that under Article 270AA, all the laws with respect to any of the matters enumerated in the former Concurrent List, which were in practice before the Constitution (Eighteenth Amendment) Act, 2010, should continue to remain in force until altered, repealed or amended by the competent authority. He added that the provincial legislature was the competent authority now to amend or repeal those laws including the CNSA.

Deputy attorney general Mohammad Habib Qureshi represented the federal government and contended that Pakistan had ratified the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.

He said Entry 32 of the Federal Legislative List pertained to the international treaties, conventions and agreements and international arbitration, so only the federal government was empowered to legislate on it.

Mr Qureshi said under that provision, the federal government was answerable to the international forum and not the provincial government, so the federal law could not be repealed on the subject.

Published in Dawn, November 22nd, 2019