• Exacerbating the ‘drug problem’ via counter-productive legal amendments

By Ambika Satkunanathan   While most civic activists and human rights defenders are preoccupied with the ongoing UN Human Rights Council sessions, the Government has placed amendments to the Poisons, Opium and Dangerous Drugs Ordinance, on the Order Paper of Parliament. These amendments, which the Government will claim are aimed at ‘eradicating the drug menace,’ will instead be counter-productive and result in increased human rights violations.    Moving from ‘bail is the exception’ to ‘bail is impossible’   The amendment proposes the denial of bail to those suspected or accused of offences that attract the death penalty or life imprisonment under the Act. At present, the Act states that for anyone suspected or accused of offences under certain sections of the Act, bail can be awarded only by High Court under exceptional circumstances. According to the proposed amendment, persons who have more than 5 gm of certain drugs will not be eligible for bail even in exceptional circumstances, as 5 gm is the threshold which attracts the death penalty or life imprisonment.  Over the years, the Attorney General has issued instructions to the Police regarding the legal provisions to be used to charge persons for drug offences, which will determine whether the person is eligible for bail. The Attorney General has also issued instructions on whether state counsels should object to bail being granted in High Court. One of the conditions to be met to be eligible for bail according to these instructions is that there should be no evidence of trafficking. Hence, the instructions purportedly aim to prevent those who have a drug dependency from being imprisoned. The proposed amendments would nullify these instructions and result in the imprisonment of such persons.    Default answer to every problem: Administrative and arbitrary detention    A new section which allows for initial administrative detention of up to 12 months is proposed. The provision does not however state the manner in which the detention is to be authorised, i.e. whether it is via a detention order and if so, who will issue it and under which law.  It further states that the High Court can extend the detention by another 12 months. Although the power to extend the detention is given to the judge, it appears the detention will be administrative, i.e. it will not be in prison (judicial custody). If the detention is in Police custody, the person will not be produced before the judge regularly, and hence the person will not have the protection of judicial oversight. The proposed amendment states persons will not be prosecuted in the following circumstances: 

1. If  the quantity  of drugs is less than 1 gm; 
2. Person agrees to undergo treatment for ‘de-addiction and rehabilitation’;
3. Where the Attorney-General has stayed prosecution

The first option, i.e. (a) formalises/legalises existing practice, where persons who are found to be in possession of less than 1 gm are fined and released. The second option, though it may appear progressive, entails sending persons to compulsory rehabilitation by default, since persons will agree to rehabilitation to escape prosecution. Although this may be viewed as progressive, compulsory rehabilitation violates international human rights standards, which is why the United Nations has repeatedly called upon countries to cease it, and instead provide health and human rights-based voluntary treatment options with community-based support. Moreover, there is substantive evidence that compulsory rehabilitation drives persons to relapse and hence is counter-productive.  It should be noted that numerous human rights violations have been recorded at the two military-run drug rehabilitation centres – Kandakadu and Senapura – to which persons are sent for compulsory rehabilitation. Although the two centres are within the purview of the State Ministry of Prison Reform and Prisoners Rehabilitation, they are operated by the military. In its statement at the conclusion of its visit to Sri Lanka in 2017, the UN Working Group on Arbitrary Detention expressed concern regarding the involvement of military personnel in drug treatment and rehabilitation.  It pointed out that strenuous physical exercise was the core component of compulsory drug treatment, while there is a lack of trained professionals to monitor the health of people in detention. Furthermore, the statement highlighted the irregularities in the judicial process by which persons were sent to the centre without a medical assessment being carried out. Persons who were sent for compulsory treatment at the Kandakadu and Senapura centres spoke of the everyday nature of violence to which they were subjected from the point of admission. They said they often did not know the reason they were beaten and that the use of collective punishment was common. The most recent incident at Kandakadu in June 2022 resulted in the death of one person, allegedly due to violence by military officers.  The proposed amendment empowers a Police officer to refer a person to a Government Medical Officer (GMO) to determine the ‘extent’ of drug dependence.  Firstly, there is no medical test to prove drug dependence; it is only possible for tests to detect the presence of drugs in the body at the time the test is conducted. Hence, any assessment made by the GMO is not based on a scientific method but a personal assessment based on subjective criteria. An assessment of drug dependence requires an evaluation conducted by a psychiatrist, a psychologist, or licensed alcohol and drug counsellor based on information voluntarily provided by the person concerned. The importance of consent is reiterated in the Alcohol, Smoking and Substance Involvement Screening Test (ASSIST) Manual for Use in Primary Care, published by the World Health Organisation (WHO) and the International Standards for the Treatment of Drug Use Disorder published by WHO and UN Office on Drugs and Crime (UNODC). The amendment also bestows power on the Police to refer persons to a designated treatment centre if the GMO report finds the person is drug dependent. There is no involvement of a judge in the process and the power rests entirely in the hands of the Police.  It is not the mandate of the Police to refer persons for drug treatment, nor are they trained or have the expertise to do so. Moreover, given the allegations of corruption and abuse of power by the Police and evidence from legal proceedings of such wrongdoing, this provision can be used to arbitrarily arrest, detain, and send persons to treatment centres.  The amendment states that if the person fails to complete treatment, the person is liable to be prosecuted. Treatment for drug dependency is a difficult process and relapse is a normal part of it. For instance, the recovery rate, which is defined by the National Dangerous Drugs Control Board (NDDCB) as ‘not relapsing,’ is 25-30% according to counsellors. Hence, 70% of those that receive treatment reportedly use drugs after release. Although there is no public data on the rate of relapse of all persons who receive treatment at State-run facilities, the rate of relapse is in line with the findings of an NDDCB study of 170 persons.  Prosecuting a person for not completing treatment shows a lack of knowledge about drug dependency and treatment, as a result of which a health issue is being criminalised. Furthermore, the right to the highest standard of attainable health includes consent to treatment as well as the right to withdraw from treatment if one chooses.    Criminalising children   The amendment states that if a person is under the age of 18 when committing an offence, although the person cannot be sentenced to the death penalty or life imprisonment, they shall be imprisoned for not more than 10 years and sent to compulsory rehabilitation. The involvement of a child in offences is likely to be due to various socio-economic circumstances, and there would be several mitigating circumstances that would have to be taken into account. Yet, instead of addressing the root causes and enabling the child to rebuild their lives, this provision criminalises children who would have become involved in such acts due to poverty, discrimination, and marginalisation. Moreover, it appears that even in instances the child’s offence is involved with manufacturing or trafficking or sale etc, i.e. the child is not drug dependent, the child will still be sent to compulsory drug treatment.    The right to a fair trial and the death penalty   The amendment proposes the inclusion of a new section, which requires the judge to authorise the Police Narcotics Bureau (PNB) or any other person authorised by the judge to photograph the evidence and order the PNB or any person authorised by the judge to destroy it. Destruction of evidence prior to the conclusion of the trial is particularly concerning given incidents of evidence tampering and break in the chain of custody confirmed in several judgments and reported by legal practitioners appearing for persons accused of drug offences. Hence, this amendment can potentially adversely impact the right to free trial of the accused.  This is deeply concerning given that the death penalty has been retained in the law, although the amounts for which a person can be sentenced to death have been increased, for example, from 2 gm to 5 gm for heroin and cocaine. Further, whereas at present, synthetic substances do not attract the death penalty, the amendment proposes the death penalty for methamphetamine. Yet again, the Government adopts a punitive and carceral approach instead of a health and human rights-based approach, which will not address drug dependence or trafficking.   (The writer is a human rights advocate and the former Commissioner of the Human Rights Commission of Sri Lanka)