Justice at the Crossroads: Proportionality, Islamic Jurisprudence, International Law and Drug-Control Legislation Reforms in Pakistan

Abstract

The drug-control regime in Pakistan operates at the intersection of criminal law, public health, constitutional law, Islamic jurisprudence and international human rights law. This paper examines how Pakistan can strengthen drug control while moving towards proportionate, individualized and publicly defensible sanctions. It adopts a qualitative doctrinal and theoretical approach based on international drug-control treaties, the International Covenant on Civil and Political Rights (ICCPR), United Nations guidance, Pakistani legislation, reported judicial decisions, Islamic legal scholarship, criminological literature and selected comparative materials. The central argument is that the international drug-control conventions require States parties to criminalize specified forms of illicit conduct, but they do not prescribe a uniform sentencing scale or require the imposition of excessively severe penalties.

The Human Rights Committee’s interpretation of Article 6 of the ICCPR is particularly significant because it restricts the death penalty, where retained, to the “most serious crimes,” understood narrowly as crimes involving intentional killing. Drug offences do not meet this threshold. The Control of Narcotics Substances (Amendment) Act, 2023 is therefore significant because it removed death as a prescribed punishment from the relevant provisions of Section 9 of the Control of Narcotics Substances Act, 1997 (CNSA). Nevertheless, the removal of capital punishment does not by itself resolve proportionality concerns where lengthy or mandatory imprisonment may limit individualized sentencing. Islamic jurisprudence also provides a flexible normative framework through taʿzīr and maqāṣid al-sharīʿah, under which sanctions may be differentiated according to the nature of the offence, culpability, harm and public interest. The study therefore argues for differentiation between high-level organized trafficking, commercial distribution, lower-level participation and drug-use disorders; greater certainty and quality of enforcement; structured judicial discretion; and evidence-based treatment, rehabilitation and social reintegration.