Author:	Greg Swensen LLB
Subjects:	Drug Abuse Asia Drug Abuse Government Policy Narcotic Laws China Narcotic Laws Singapore
Issue:	Volume 6, Number 1 (March 1999)
Category:	Current Developments

Contents

• Introduction
• International context of drug problems
• People's Republic of China
• Singapore
• Conclusion
• Notes

Introduction

1. The production, distribution and use of illegal drugs pose a major challenge to governments throughout the world. This article considers the judicio-legal framework utilised by two nations with distinct legal systems, Singapore and the People's Republic of China (PRC), to deal with those who use illegal drugs.

2. There are a number of apparent contradictions in being able to compare these two different legal systems. The first contradiction is that Singapore's legal system is steeped in many of the principles of the common law system inherited through it being a former British colony whereas the PRC has a history deeply steeped in Confucianist values. Divergence between the two nations is even more sharp as the PRC's legal system has experienced ongoing reform through a number of iterations after the 1949 revolution.

3. The second contradiction is that in spite of the marked differences between the legal systems of the PRC and Singapore, both follow a policy of 'zero tolerance' which uses severe criminal sanctions to punish users of illicit drugs and rely heavily on detention by administrative action of such individuals in detoxification centres.

4. The third contradiction is that as there are sharp differences in wealth and literacy, it is to be expected the provision of comprehensive treatment programs would vary between Singapore and the PRC. Singapore has a population of only 3.4 million, very high levels of literacy and has a technologically advanced economy with one of Asia's highest per capita incomes. Accordingly, as a country with a modern health care system, it may be expected that Singapore would offer a very broad range of medically oriented inpatient and outpatient programs to treat those afflicted with drug problems, as is the case in other countries with comparable standards of living, such as Australia and the United Kingdom.

5. There are other significant advantages if drug policy is developed within a medico-health framework rather than from a criminal justice framework. For instance, in many nations since the mid 1980s there has been a growing understanding of the profound public health concerns associated with using illegal drugs, due to the spread of blood borne viruses (such as HIV, Hepatitis B and Hepatitis C).[1]

6. In contrast to Singapore, the PRC with its population of 1.2 billion, high rates of unemployment, patterns of marked social disadvantage and high rates of illiteracy, especially in the countryside, would appear to have a limited capacity to provide costly treatment programs. However, both countries follow a similar approach to assist those affected with drug problems of emphasising removal of the individual from society. This approach is encapsulated in a statement by the Singapore Prison Service:

   The management philosophy guiding the Department in its management of the prisons and drug rehabilitation centres (DRCs) is that inmates must be accommodated in living conditions which are spartan but not an affront to human dignity; that imprisonment and the subsequent deprivation of liberty constitutes adequate punishment for the offences committed; and that ample opportunities must be afforded to inmates, who desire to turn over a new leaf, to change their values, thinking and lifestyles so that they may return to society as law abiding and useful citizens.[2]

7. The fourth contradiction is the different political systems of the two countries. Singapore is a parliamentary republic and is usually regarded as being a democratic state, whereas the PRC is regarded as having an authoritarian political system underpinned by a system of tight administrative controls exercised by a group with a narrow membership base drawn from of the Chinese Communist Party, the People's Liberation Army and security agencies.

8. The paper is also intended to outline some of the main features of the Singaporean approach towards those using illicit drugs, as there is some contemporary support in the Australian community for the enforced detention and punishment of those involved in illicit drug use. This is commonly referred to as the 'Singapore Model'. For instance, a number of submissions to the Western Australian Legislative Assembly's Select Committee Into the Misuse of Drugs Act 1981, advocated the introduction of the Singaporean model in Western Australia.[3]

   International context of drug problems

9. The increasing international nature of the trade in drugs like cocaine, cannabis, opium, heroin and amphetamines creates a tension between satisfying national concerns about illicit drugs against the growing importance of and need for uniform international standards to be overseen by an international supervisory body. This is now referred to as the United Nations Drug Control Program (UNDCP) which was established in 1991, following the amalgamation of a number of separate UN programs.

10. The UNDCP means signatory states such as Singapore and the PRC must put in place a range of measures to:
    • disrupt trans-shipment of drugs from adjoining opium producer countries;
    • prevent the domestic production of psychotropic drugs like methamphetamine;
    • guard against the corruption of the country's law enforcement agencies; and
    • restrict the use of their financial systems to launder money.

11. While it is not possible to deal with this issue in sufficient depth here, there are a number of considerations that impact on the participation of the PRC and Singapore in the current UN sponsored system of controls on illicit drugs. The current operative conventions are the 1961 Single Convention on Narcotic Drugs, 1971 Convention of Psychotropic Substances and the 1988 Convention Against Illicit Traffick in Narcotic Drugs and Psychotropic Substances.

12. First, in the mid 19th century following the Opium Wars in the 1840s and 1860s, a number of Western powers forced China to trade in opium and grant trading concessions at a number of its ports. As a result of this subjugation about 4,000 tons of opium was sold to China each year, with attendant widespread social and health problems.

13. Second, the United States has been the dominant player since the beginning of this century in the system of international controls on illicit drugs. It has been noted these have been largely shaped by domestic American historical and political issues, such as prohibitionism and strident opposition to prescribing substitute narcotics to opioid dependent individuals.[4] This system of controls which is now embodied in the UNDCP, can be traced to the 1912 Hague Convention. Accordingly it might be expected that a nation such as the PRC would be especially reluctant to become a party to the three key UN conventions.

14. By becoming a party to the three UN conventions a nation is obliged to implement measures and pass legislation consistent with the provisions contained in each convention. For instance, the 1961 Convention, as modified by a 1972 protocol, requires parties to provide treatment and rehabilitation as alternatives or in addition to incarceration or other punitive measures. The 1988 Convention requires parties to establish mechanisms to prevent money laundering and to enable extradition of those who traffic in drugs. The PRC is a party to these three key UN drug conventions. However, Singapore is only a party to the first two and has not acceded to the 1988 Convention.

15. Third, the role of organised syndicates is a critical factor in the movement of large quantities of drugs such as cocaine and heroin from producer countries to meet demand in consumer markets, such as in Western Europe, the United States and Australia. A recent UN report estimated that in 1994 the total value of the world illicit drug trade was $400 billion, being larger than the value of international trade in iron and steel and motor vehicles and about the same as the international trade in textiles.[5] In 1995 the International Narcotics Control Board (INCB), the principal United Nations body that monitors compliance by parties to the three UN drug conventions, visited Singapore. In respect of implementation of the 1961 and 1971 Conventions, the INCB was especially critical of the lack of control measures in free ports and zones in relation to narcotic drugs and psychotropic substances, given the importance of Singapore as a major trans shipment point.[6]

    People's Republic of China

16. A study of the PRC's legal framework that has developed to deal with those who use illegal drugs presents a number of challenges to the Western scholar. First, primary sources of law are not readily accessible, may not be fully rendered in written form, and not always translated into English. Second, the PRC has experienced a series of revolutionary transformations, especially since the early 1980s, which have spawned a large number of laws and administrative provisions. Third, in spite of the many reforms there is concern whether many have been implemented. "The problem is that many statutes are not enforced strictly, corruption is rampant and some internal systems are yet to be reformed".[7] Fourth, in the PRC's court system, especially at the higher levels, there are few qualified legal practitioners, as judicial officers are chosen for their political skills. Fifth, as the PRC had in its formative years eschewed the role of intellectuals, there are relatively few trained legal practitioners.[8]

17. According to Carlos Wing-hun Lo there is the difficulty of understanding the legal system itself as it consists of an overriding ideology that contains four strands which do not sit easily with one another. These can be summarised as follows:
    • a 'communitarian' view which sees recourse to law 'fa' as evidence of the failure of prescribed social mores 'li';
    • an 'ultra-humanistic' view which reduces all legal statutes and acts simply to the actions of legislators;
    • a view which originated from Soviet legal theory, which contends law represents the interests of a dominant class; and
    • as "law has increasingly mirrored commodity relations, with the transition to communism law will be transcended".[9]

18. Another hurdle to be surmounted in identifying those laws which are applicable to illicit drugs is that in the first 30 years of the country's history it did not have a substantive criminal code. It has been noted:

    This phenomenon was unprecedented not only among communist countries, but also in Chinese history. When the Western world was in the chaotic medieval age, the Chinese empire of the Tang Dynasty (AD 618-907) enacted a comprehensive legal code.[10]

19. At the July 1979 National People's Congress two cogent pieces of legislation were enacted, a Criminal Code and the Criminal Procedure Code, both of which were promulgated and came into force on 1 January 1980. Article 171 of the 1979 Criminal Code states:

    A person who manufactures, sells or transports opium, heroin, morphine or other narcotics shall be sentenced to either fixed term imprisonment for not more than five years of detention; a fine may be concurrently imposed.
    A person who, persistently or in bulk, produces, sells or transports narcotics of the preceding paragraph shall be sentenced to fixed term imprisonment for not less than five years; a fine may be concurrently imposed.

20. The consolidation of Deng Xiaoping as the country's leader supported the development of a system of criminal laws, including the reaffirmation of public trial and judicial process, alongside the program of economic, social and legal reforms. The critical juncture in the development of current criminal laws can be traced to the trial of the Gang of Four in November 1980.[11]

21. Another writer has noted:

    In 1985, Deng formally concluded that the major error of the Cultural Revolution was to take class struggle to an extreme. Economic construction was at the top of the Party agenda as the motive force of social development. Remembering their bitter political experiences, all top party leaders who survived class struggle in the Cultural Revolution were obsessed with political stability, and that took precedence even over economic prosperity. The only legitimate means for resolving contradictions was through the legal system which was outside class struggle. Hence a legal order was required to replace the former struggle-oriented society.[12]

22. The process of economic revival experienced by the PRC over the past decade has brought with it threats to social cohesion and pressure for political freedoms. Of significance, China has also been faced with the spectre of significant levels of drug use by its citizens and serious crime generated by the illicit drug trafficking across its borders. In the 1960s and 1970s, when illegal drug use was prevalent in many other countries, the PRC seemed to be the exception. More recently this perception has been dispelled as in December 1990 the Standing Committee of the National People's Congress passed a new anti drug law. This is an acknowledgment China has had a serious drug problem for some time, probably since the early 1980s, given the large number of people who have been dealt with.

    In 1991 more than 220,000 people in one province alone were found to abuse drugs, and from 1983-1990, at least 1284 drug smugglers and dealers were executed. The Chinese central government has admitted that the Chinese society is facing a severe challenge from drug problems and a nation-wide war has been launched.[13]

23. In 1995 further provisions were introduced which codified a practice that had operated for a number of years, that any one who used or was dependent on illicit drugs be taken to a Centre of Forcible Termination of Drug Use (CFTDU) and remain there for up to 12 months until they become abstinent.

24. The approach of detaining drug users in a CFTDU is justified by the PRC legal system as the use of illicit drugs satisfies a threshold test of posing a threat to social order. In the PRC's legal system "conduct constitutes a crime only if it poses a sufficiently serious 'dangerousness to society', measured in terms of harmful social consequences or, if no actual harm resulted, the state of danger the conduct created".[14]

25. The loss of freedom by forced admission to a CFTDU is justified because the use of illicit drugs is regarded as conduct that is dangerous to Chinese society on two grounds. First, use of such drugs is regarded as criminal conduct and considered a threat to social order, as it has the quality of social dangerousness (shehui weihaixing). Second, such drug use also involves individual dangerousness (renshen weixianxing), the likelihood of relapse and reoffending, arising from the drug user's character and tendencies.

26. The duration of stay at a CFTDU is typically from three to six months, with all decisions as to the rehabilitation process resting with the police. If an individual relapses after release from a CFTDU, they can be sentenced to an Institute of Education Through Labour, a more rigorous form of labour camp.[15]

27. It has been reported there has been a marked increase in the number of people dependent on drugs admitted to CFTDUs. For instance, in 1994 there were 251 CFTDUs which admitted 50,000 people and a further 75 centres in prisons which held 30,000 people. Official information indicates there were 520,000 registered drug addicts in the PRC in 1995, increasing to 540,000 in 1998.[16]

28. In 1990 the PRC launched a vigorous 'People's War on Drugs', the hallmarks of which include severe penalties, ranging from the death penalty to shorter periods of imprisonment, depending on quantity of the drug involved and whether the individual was involved in organised activities. This campaign was apparently ineffective, as in April 1996 the Ministry of Public Security launched a nation wide initiative, Yanda (Strike Hard), targeted at drug-related crime.

29. There has been sustained criticism by Amnesty International and Asia Watch of the PRC's extensive use of the death penalty and a growing number of crimes which attract capital punishment. A further concern is that crimes which attract the death penalty are subject to a shortened time between conviction and sentence:

    Under this legislation, defendants can be tried without warning, without being given a copy of the indictment in advance and without notification of the trial being given to all parties concerned. This means, among other things, that defendants can be tried without the assistance of a lawyer and without knowing exactly what accusations they face until their trial.[17]

30. In 1995 there were 3,610 death sentences passed, which resulted in 2,535 executions. In the following year, reflecting the impact of 'Strike Hard', there were more than 6,100 death sentences which resulted in 4367 executions. "This campaign is further evidence of the Chinese authorities increased reliance on the death penalty as a tool to tackle growing crime resulting from economic and social changes".[18]

31. In response to the growing number of serious drug-related offences, for example, importing or producing illicit drugs, an amendment to the Criminal Code was promulgated in 1997:

    Smuggling, selling, transporting or producing drugs in large quantities (opium more that 1000 gms and heroin more than 50 gms) shall make an offender liable to 15 years imprisonment, life imprisonment or the death penalty, and the offender's property shall be confiscated.
    It is forbidden for anyone to illegally possess drugs. Illegal possession of more than 1000 gms of opium or more than 50 gms of heroin shall be sentenced to 7 years imprisonment or life imprisonment and a fine.

    Singapore

32. The Singaporean approach of dealing with the use of illegal drugs requires an understanding of the government's intense preoccupation with national security since independence from Britain. A system has developed which is reliant on the continued use of powers originally intended to deal with risks related to nationalist movements and Communist insurgency in the South East Asian peninsula in the 1950s. The People's Action Party (PAP), which has had a monopoly on power since independence, sees no difficulty with the continuation of these provisions to muffle dissent as:

    it is entirely possible for the government to enact legislation and execute actions which they claim are necessary for national security, economic progress and ethnic harmony without justifying them on the basis of, for instance, its adherence to the principles of the Rule of Law.[19]

33. The key instrument used to quell legitimate political and ethnic dissent is the Internal Security Act (ISA), which provides for arrest without warrant and detention without trial for indefinite periods. The ISA was passed in 1960 to ostensibly deal with the Malayan emergency, having been modelled on the former British colonial government's Preservation of Public Security Ordinance 1955. The ISA became part of Singapore's domestic law when it joined the Federation of Malaysia in 1963 and was retained as received law when Singapore became a republic after cession from the Federation in 1965.

34. Why has there been muted criticism of Singapore by western governments over the manner in which it has used the powers of the ISA in such a heavy handed and arbitrary fashion, to the extent of jailing members of opposing political parties?[20] It has been suggested the PAP has successfully remained in government as it has tapped a deeply held view held by a significant proportion of the population of "a sense in which the Chinese have traditionally seen the law as something used by the state against the individual. Law conveys the thought of penalty and unpleasantness".[21]

35. The constitutional validity of the wide powers under the ISA to detain without trial is supported by Article 149 of the Singaporean Constitution, enabling the Government to pass laws that "prevent organised violence, promotion of anti government feeling, provoke racial or class antagonism, or undermine Singapore's security".[22]

36. The extensive powers of administrative detention under the ISA have largely been immune to serious challenge as the Government has been able to curtail basic human rights through a number of other measures. These include tight controls over the freedom of the press, severe restrictions on the formation of trade unions and associations, the abolition of jury trials, and removal of the independence of the judiciary:

    Underpinning these controls are 'the constant statements made by Government spokespeople concerning the need to maintain national security against any incursions. Within this is the line that the situation in Singapore is unique, and therefore reference to western notions of freedom and democracy is not applicable. Instead, constant invocations to the 'Asian' system of values are made, which include 'Confucian' values, even though these have been distorted to suit the government's purpose.[23]

37. As well as curbing political dissent by defining it as a threat to Singapore's national security, citizens can also be arrested without warrant and detained without trial under the Criminal Law (Temporary Provisions) Act (CL(TP) Act) if they are 'suspected of criminal activity'. This provision has been utilised to deal with the use of illicit drugs, especially heroin, cannabis, and more recently the use of methamphetamines and ecstasy. For instance, in August 1989, of the 1,228 people detained under the CL(TP) Act, 60% were detained for narcotics-related matters and 40% were detained for other reasons, for example, suspected membership of prohibited organisations.[24]

38. The use of the legislation specifically intended to deal with national security concerns strongly indicates the use of illicit drugs is regarded as being a fundamental threat to society which must be punished rather than as a manifestation of a medical or public health problem. The organ of government charged with dealing with illicit drug users is the Central Narcotics Bureau (CNB), which utilises powers in the Misuse of Drugs Act to require any person to submit to urinalysis testing. A positive drug test is in itself sufficient justification for the detention of a person in a Drug Rehabilitation Centre (DRC) for an initial six-month period.

39. DRCs are run by the Singapore Prisons Department which has adopted a perspective that drug use is not regarded as involving medical or psychological factors:

    The Singapore Prisons Department do not subscribe to the concept that drug addiction is a medical problem. As in the case of a criminal, we view drug addiction as a social and behavioural problem. The addict is responsible for the consequences of his [sic] own action and it is up to him/her to make a determined effort to kick his [sic] drugtaking habit. If he [sic] is not amenable, no amount of treatment and rehabilitation can wean his [sic] drug addiction.[25]

40. Release from a DRC is conditional and involves supervision by the CNB initially for up to two years. Supervision requires attendance at a police station to provide urine specimens for ongoing and frequent analysis for the presence of heroin as well as other illicit drugs.

41. For the past two decades the primary emphasis has been on the identification, registration, detention and ongoing supervision of Singaporeans who use or are dependent on heroin. This approach to dealing with illicit drug use commenced with 'Operation Ferrett', launched in April 1977. Before this operation it was estimated there were about 13,000 heroin dependents in Singapore. Mr Tee Tua Ba, Commissioner of Police and the CNB's director from 1978 to 1981, recently reflected that "(t)he greatest achievement in Operation Ferrett was that we contained the problem and stopped the spread of drug addiction".[26]

42. The CNB's Director at that time, Mr Poh Geok Ek who is now Director of Prisons, referred to Operation Ferrett being a 'round up' of all drug users in Singapore. 'Operation Ferrett' continues up to the present and was augmented in February 1994 by 'Operation Dragnet', which had the object of "hunting down drug absconders who have relapsed and are likely to be pushing drugs to sustain their habit".[27]

43. The Singaporean system which had been designed to target heroin users has had to be modified, as over recent years young Singaporeans have become involved in other patterns of drug use - similar patterns of recreational use of substances such as hallucinogens, ecstasy and methamphetamines as have occurred in other developed countries.

44. However, with subsequent drug problems a similar approach has been followed, of the CNB 'rounding up' identified users in intensive public campaigns, followed by detention and supervision after release from a DRC. For instance in the 1980s was the growing prevalence of the sniffing of glue and other volatile substances by young Singaporeans. There was one such official case recorded in 1980, which had increased to over 100 cases per month in 1987. A specific law, the Intoxicating Substances Act 1987, was passed to prosecute shopkeepers selling glues and thinners to young people and included a provision for shopkeepers to keep registers of customers suspected of being volatile substance abusers (VSAs).

45. Since the early 1990s the use of methamphetamines and ecstasy by young Singaporeans has become prevalent. Those who have used these substances are likely, if detected, to be severely dealt with. A November 1997 Associated Press report quotes the Minister for Law and Home Affairs (Mr Ho Peng Kee) as announcing that first time users of ecstasy should expect to be imprisoned in a DRC for 12 to 18 months. In the same news item the Singaporean Government announced more severe sanctions for drug users:

    'New laws will soon make repeat offenders face mandatory terms of seven to 13 years in prison plus caning', Ho Peng Kee said. More than half of the some 3000 addicts admitted for treatment last year had been there at least three times before. 'Long term imprisonment will deter addicts from persisting in their addiction and also take them out of circulation for long periods so that they will not contaminate the innocent or commit crimes to feed their addiction,' Ho said in a speech.[28]

46. In January 1995 the Singapore Government established a National Council Against Drug Abuse (NCADA), made up of civic leaders, to advise government and support educational and preventive programs. This recent development represents a broadening of official action to address growing tolerance of drug use by young people. A key NCADA role has been to spearhead a 'Partnership for a drug free Singapore', by mobilisation of the wider community, whilst adhering to underlying principle of 'zero tolerance'.[29]

47. A recent critic has made the following observation of the approach that has been followed in Singapore:

    The drug problem in Singapore has brought out the fact that mere punishment is not an adequate solution and that drug 'crimes' are not confined to any particular section of society. Unless something is done to eradicate or alleviate the social, economic and environmental problems which cause crime, deterrent punishments will only have a short-term effect.[30]

48. Very limited official data makes it very difficult to obtain prevalence data or to identify the scale of the response to those detected who have used specific illegal drugs in Singapore. In a recent publication the CNB stated that in 1994 over 6,000 persons were arrested for using illegal drugs. In subsequent years there has been a decrease in the total number of persons arrested, with 5,744 arrests (1,421 of whom were first time offenders) in 1996 and 4,752 arrests (1,134 of whom were first time offenders) in 1997.[31]

    Conclusion

49. There are surprising similarities in the approach in Singapore and in the PRC of dealing with those who use or become dependent on illicit drugs, by reliance on administrative detention in prison-like institutions and extended supervision after release. Both countries embrace similar values and assumptions that drug problems stem from individual shortcomings and failings which can only be corrected through compelled participation in strict and regimented programs which have as their goal the reform of the deviant.

50. Surprisingly, in spite of apparently divergent political systems, 'totalitarian' versus 'democratic', markedly varied levels of national wealth and different levels of educational standards, both countries regard law enforcement personnel and prison-like institutions as necessary to rehabilitate by coercion those with drug problems.

51. Policies adopted by both countries do not appear to be particularly effective, as over recent years there has been increasingly severe consequences for those who use illicit drugs. Once an individual is identified as a user of illicit drugs, he or she is likely to experience a hierarchy of increasingly punitive measures and longer periods of enforced detention if further drug use is detected. These measures include corporal punishment.