The super-body

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Now that the dust has settled around the Lam Shang Leen report on the Commission of Inquiry on Drugs, it’s time to take a dispassionate look at what is arguably the crown jewel of the report: merging the ADSU and the anti-drug division of Customs under a new super-body to be known as the National Drug Investigations Commission (NDIC). So far, there has been little analysis of this particular and far-reaching recommendation since everybody is wary about criticising the report for fear of being painted as being ‘soft’ on drugs. But the potential implications of creating this body are too great to ignore.

First off, the report calls for the NDIC to be headed by a Supreme Court judge or an experienced magistrate, followed by two deputy chairpersons, one of whom will be either a magistrate or a law officer and the other at least a chief inspector in the police force. This super-body will have the power to arrest, search, tap phones and pore over banking documents and phone records without needing a warrant. This in itself is a dramatic departure from a safeguard currently built into the investigation system: right now an investigation authority such as the police gathers its evidence, or makes the reasons for its suspicions known to a magistrate, who then, on the strength of that evidence or reasoning, decides whether to give a warrant or not. The idea is to draw a balance between the need to get ‘quick results’ while at the same avoiding an investigation authority from turning into an untrammelled posse. This is not to say it always works: magistrates can be lazy and sign off on anything, or policemen can get chummy with the judge, but theoretically, this is supposed to be the way it works. What the Lam Shang Leen report does is erase the substantial distinction between a judge deciding whether or not on the basis of evidence and a balance of probabilities to give a warrant and conducting the investigation himself! Lost in the middle is the moderating need for a warrant and the checks and balances it implies. Coupled with the fact that the NDIC is not answerable to anyone, the potential for abuse is too astounding to ignore.

Second point: there is a logic for creating specialised investigation agencies. The FIU for financial crime is one example, and it’s usually headed by someone conversant with finance. But based on what domain expertise are drug investigations being lumped off to the judiciary?  Judges interpret and apply the law. They are not experts in investigation techniques, nor in drugs. For that, they will have to turn to those people already experienced in conducting such investigations; in other words the now disgruntled former ADSU and Customs officials. Inspector Jaylall Boojhawon is correct to bring up this point. But if the investigations on the ground are going to be run by the same chaps, then is this not yet another instance of simply creating more institutions for no ostensible purpose?

The third point is a relatively simple one: the NDIC would muddle the line between an investigation authority and the judiciary. In effect, this example of judicial overreach would put us in the absurd (and potentially conflicting) situation of having the judiciary direct a drug investigation and the judiciary judging that evidence and deciding the verdict. It hardly needs explaining what kind of possible abuses this can entail. 

One can understand the need for tackling drugs, but turning the judiciary into a souped-up police posse is not the answer.

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