Thailand Law Journal 2018 Spring Issue 1 Volume 19
False assumptions - the case for redefining drug offences in South East Asia
By Marcus Baltzer
In the global debate around drug policy and its interface with criminal justice, there is a wide spectrum of viewpoints. At the one end, there is the idea that the drug market can be minimised, even eradicated, by deterring people from taking part in it. This is a position of many governments around the world. Governments of countries like Singapore attribute the relatively limited scale of the drug market in their countries to what in this paper refers to as ‘high deterrence policies’. At the opposite end of the spectrum it is argued that high deterrence policies (sometimes associated with the ‘the war on drugs’) have been an epic failure, and that the best way to manage drug markets is to legalise and regulate them with a view to mitigating the harm caused.
Most countries, however, find themselves somewhere in-between these two extreme points on the scale. Laos and many of its neighbours in the South East Asia region are, in different ways, useful examples of this category of countries. The social and economic costs of high deterrence policies are evident, yet for a host of reasons, it is difficult for these governments to abandon their high deterrence policies in relation to drugs. There are powerful conservative political blocks that remain favourable to the high deterrence stance on ideological grounds, and a significant segment of public opinion probably demands a ‘tough response’ to drug crime. There might be a reluctance to acknowledge problems with existing policies (sometimes described as ‘losing face’), but ultimately, there is a genuine belief that high deterrence policies have indeed been effective and are appropriate in given social, cultural, and economic contexts.
This paper puts forward an alternative, which would satisfy constituencies demanding the retention of high deterrence policies, yet avoid many of their costly side effects. This could be achieved by defining drug offences with reference to the role of a person in the drug industry, as opposed to defining drug offences mainly or exclusively with reference to the quantity of drugs that a person is in possession of. This option would allow criminal justice resources to be concentrated on offenders with a leading role in the drug industry while freeing up the vast resources that are currently being spent pursuing offenders who have relatively minor roles.
1. Introduction – the possession-based drug offence
Many jurisdictions around the world distinguish between two broad categories of offences pertaining to illicit drugs: (a) trafficking, sale and supply of drugs, and; (b) possession and use of drugs.1 What in practice distinguishes the two categories of offences from each other is typically the drug quantities involved. The Singapore Misuse of Drugs Act (1973) is an illustrative example. Section 17
states that ‘any person who is proved to have had in his possession more than — (a) 100 grammes of opium; (b) 3 grammes of morphine; (c) 2 grammes of diamorphine; (d) 15 grammes of cannabis [and the list goes on] … shall be presumed to have had that drug in possession for the purpose of trafficking unless it is proved that his possession of that drug was not for that purpose.’ A person who is proven to have been in possession of lesser quantities than the thresholds listed above would be guilty of the simple possession offence.2 Drug quantity thus serves as a proxy and typically the main evidence as to the accused person’s intentions,3 or the mens rea of the offence. In both categories, the act, or the actus reus of the offence is to be in physical possession of a controlled substance.4
In many jurisdictions, both in Asia and beyond, the law looks very much like the example cited above, with a fixed threshold quantity demarcating the boundary between the offence of possession for presumed personal use and possession for presumed trafficking.5 The trafficking offence is then in turn subdivided, with threshold quantities as benchmarks for levels of culpability and severity of accompanying sentences. In this paper, I refer to this model of illicit drug legislation as the ‘possession-based' model or approach.
There are historical and socio-economic explanations for why drug offences are constructed in this way (Fleetwood 2011). Moreover, from a law enforcement point of view, these possession-based offences are expedient. It is easy to prove possession; hence possession based drug cases require relatively little investigative effort and a high probability of conviction. This is a particularly attractive proposition in jurisdictions where police and prosecution officials are under pressure to fill quotas and reach numerical targets for convictions.6 However, over the last decade or so, the problems with this approach have also become ever more apparent. These problems, it is argued, stem partly from a series of false assumptions around the links between drug quantities possessed and the degree of culpability on the part of people found to be in possession of drugs.
1 A third category of drug offences, with which this paper is not directly concerned, are offences related to the cultivation, processing and manufacturing of illicit drugs.
2 See section 8, Misuse of Drugs Act (1973)
3 Threshold quantities can be devised in different ways, which can significantly affect what impact they have. Of note, some countries, such as Singapore, use thresholds that are tied to deeming provisions (deemed supply laws). Under such laws, possession can be sufficient evidence to charge and sentence someone for drug trafficking. However many countries that employ drug threshold laws use quantity as one marker of the offence (trafficking versus possession for personal use) along with other evidence before deciding to whether to charge someone with drug trafficking or possession for personal use. Intent or evidence of intent is thus a crucial part of most threshold systems. There can be still further variation that affects impact such as what quantities are chosen. This variation is important as it means that not all threshold systems are the same.
4 The 1973 Act, again just used as an example, states in section 5(2) ‘a person commits the offence of trafficking in a controlled drug if he has in his possession that drug for the purpose of trafficking.’
5 In jurisdictions in which possession for personal use is either de facto or de jure decriminalised, as it is in, e.g. Laos, it is still the quantity of the drugs that determines culpability, and that is used to distinguish between a user with no criminal liability and a presumed criminally liable supplier.
6 A prosecutor in Cambodia explained how he could secure at least 20 convictions for drug offences in the time it took to secure one conviction for domestic violence or rape – two examples of cases in which it was far more difficult and time-consuming to secure convictions. Interview, Prosecutor, Seam Reap, May 5th, 2014. Similar explanations have been put forward in informal conversations with prosecutors and police in Malaysia and Laos.