THE LEGAL AND INTERNATIONAL CHALLENGE
Based on the foregoing, bearing in mind its terms of reference, and weighing carefully the issues raised and the arguments presented to us, the Commission has come to the unanimous conclusion that ganja should be decriminalised for adult personal private use.
Its criminal status cannot be morally justified, notwithstanding the known ill effects it causes in some people. It contravenes natural justice, seeing that it has been, like other natural substances, a part of the folk culture in Jamaica for decades prior to its criminalisation, a part of recognised medical practice for centuries, and a part of herbal lore for millennia in other parts of the world. Nor was its criminal status first recommended by scientific evidence, in any way remotely resembling the proliferation of research, some of it of questionable value, now being called on to justify its current status. Totally ignored is the centuries of accumulated folkways, which through common sense and native wisdom make up for what they lack in modern scientific rigour, and have developed their own modes of uses and limitations, providing valuable clues to well-being for the scientific community.
The Commission takes the view that, ironically, the criminal status of ganja poses a serious danger to society. By alienating and criminalising hundreds of thousands of otherwise law-abiding citizens, and by making the State in their view an instrument of their oppression rather than their protection, the law and its prosecution create in them disrespect for the rule of law. When the rule of law goes, anarchy sets in. Any law that brings the rule of law into disrepute is itself thus a threat to the stability of society.
Thirty years ago the eminent jurist, the late Aubrey Fraser, concluded that cannabis use could not be controlled by the punitive sanctions of the law. Thirty years on, from all the available evidence ganja use not only has spread, but has become defiantly more open. The justice system is severely challenged, its manpower diverted from focusing on more serious crimes, and its material resources consumed in the prosecution of a war that it cannot win.
The inequity that governs the legalisation and control of tobacco and alcohol, but the illegality of ganja cannot be rationally justified, and is indeed iniquitous, given that from all available medical evidence it is the least deleterious and harmful of all. Thousands of people die from cirrhosis of the liver due to alcohol abuse and from lung cancer caused by excessive, chronic smoking of tobacco, but from our research and the evidence presented to the Commission not a single death has ever been recorded from the use or abuse of cannabis.
This is not to say that ganja is not harmful. The Commission is convinced, in the face of the folk anecdotal and medical scientific evidence before it, that many, if only a small percent, of those who use or have attempted use of it are victims of harmful psychological effects. Of great concern are those of school age, many of whom are reported to experience a fall in motivation, that intellectual and emotional condition for educational achievement.
One group that has made recognised contribution to the development of the arts, and through it brought to our country wide international recognition and acclaim, deserve to be heard for the claims they make on the spiritual significance of ganja to them. It would be a sign of grave disregard and rejection not to accept as serious the meanings which the Rastafari attach to ganja use. That would be like appropriating the inspired achievements of Bob Marley for the glory he has brought our country, but dismissing as trivial and of no consequence the source of his inspiration, namely his religion.
The Commission is persuaded also, given the deeply rooted place of ganja in the culture of the people, that its decriminalisation could provide a buffer against the spread of the evil cancer, crack/cocaine. Decriminalisation separates it from cocaine and heroin, and offers a much better framework in which to focus the efforts against those substances. Under its criminal status ganja is classified alongside the others, even though its effect is nowhere the same. If it were declassified, we think ganja users could be enlisted in the fight against drugs, while at the same time become more open and receptive to sustained education as to its harmful effects.
And so, we turn to the knotty question, how is ganja to be decriminalised. Were it simply a matter for our country alone to decide, a simple repeal or amendment of the laws is all that would be necessary, seeing that there is such wide consensus. However, if Jamaica is not to isolate itself from the international community or to ignore geo-political sensibilities, it has to take careful account of its obligations.
There are six Acts relevant to ganja in Jamaica, all of them the results of ratifying certain United Nations Conventions. The Acts are:
The Dangerous Drugs Act
The Money Laundering Act
The Drug Offences (Forfeiture of Proceeds) Acat
The Mutual Assistance (Criminal Matters) Act
The Sharing of Forfeited Property Act
The Drug Court (Treatment and Rehabilitation of Offenders) Act, and The
Drug Court Regulations.
The Dangerous Drugs Act addresses measures required under the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961.
The remaining five Acts address measures required under the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. A third Convention to which Jamaica is a party is the 1971 Convention on Psychotropic Substances. As this Convention seeks to control of psychotropic chemical substances, including certain derivatives of cannabis sativa, rather than cannabis sativa itself, it need not detain us.
For the purposes of this Commission the Dangerous Drugs and the Drug Court Acts are the relevant statutes.
Dangerous Drugs Act
The Dangerous Drugs Act responds to the legislative and administrative measures parties to the 1961 Convention are required to adopt to limit the production, manufacture, export, import, distribution of, trade in, use and possession of drugs, except for medical and scientific purposes. The drugs defined by the Convention include cannabis, cannabis resin, extracts and tinctures of cannabis. In conformity, the Dangerous Drugs Act includes under its purview all parts of the plant known as ganja (cannabis sativa) from which the resin has not been extracted, as well as any resin, extract or tincture obtained from the plant.
Part IIIA of the Act renders it unlawful to import, export, or take steps to export ganja, and imposes a fine of up to $500 for each ounce of the substance on conviction before the Circuit Court, or imprisonment of up to thirty-five years, or both. On conviction before a Resident Magistrate, the maximum fine is between $300 and $500 for each ounce, but not exceeding one-half million dollars, or three years imprisonment, or both.
The Act prohibits as well cultivating, gathering, producing, selling or otherwise dealing in ganja. It prohibits using the premises one owns or occupies for such purposes, or knowingly permitting such premises to be so used, and bans using a conveyance for transporting, selling or otherwise dealing in ganja, or knowingly permitting a conveyance to be so used.
But it is the prohibition of possession and smoking that is most relevant to the work of the Commission. Sections 7C and 7D of the Act state:
7C. Every person who has in his possession any ganja shall be guilty of an offence and-
on conviction before a Circuit Court, shall be sentenced to a fine or to imprisonment for a term not exceeding five years or to both such fine and imprisonment; or on summary conviction before a Resident Magistrate, shall be liable-to a fine not exceeding one hundred dollars for each ounce of ganja which the Resident Magistrate is satisfied is the subject-matter of the offence, so, however, that any such fine shall not exceed fifteen thousand dollars; or to imprisonment for a term not exceeding three years; or to both such fine and imprisonment.
7D. Every person who-
being the occupier of any premises knowingly permits those premises to be used for the smoking of ganja; or
is concerned in the management of any premises which he knows is being used for such purpose as set out in paragraph (a); or
has in his possession any pipes or other utensils for use in connection with the smoking of ganja; or
smokes or otherwise use ganja,
shall be guilty of an offence and shall be liable on summary conviction before a Resident Magistrate, in the case of a first conviction for such offence, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment, and in the case of a second or subsequent conviction for such offence, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.
These are the Sections of the Dangerous Drugs Act which thousands of our citizens run afoul of and are punished. They are mainly young persons, but there have been cases of men of advanced years who have been hauled before the courts.
Decriminalisation would require amending the Act in such a way as to allow for possession of small amounts for personal private use by adults.
The Drug Court Act
The Drug Court (Treatment and Rehabilitation of Offenders) Act, consistent with the 1988 Convention, adopts a health-related, rather than a punitive approach to drug use. It provides for the establishment of a Drug Court aimed at facilitating treatment and rehabilitation of drug offenders. It comprises a Resident Magistrate and two Justices of the Peace, one of whom must be a woman, specially appointed by the Minister. Those brought before the Drug Court must be persons who appear to be dependent on the use of drugs but are of sound mind.
Where ganja is concerned, the Drug Court will hear cases involving smoking or otherwise using the substance, possession of utensils in connection with smoking, and possession of up to eight ounces of the matter. An approved treatment provider will provide the Court with an assessment of the person charged and pleaded guilty, in order to enable the Court to decide whether to order a prescribed treatment. On successful completion of the treatment he will be discharged and the offence not form part of his criminal record, unless convicted more than twice. Failure to comply or to complete the prescribed programme would result in the imposition of sentencing.
If the Dangerous Drugs Act were to be amended as indicated above, in order to provide for adult, private use of ganja, the Drug Court Act would have to be similarly amended. Provisions could be made to allow entry into the treatment and rehabilitation programme of persons who voluntarily seek such, or who have been referred by a competent authority, such as parents in the case of minors, or medical personnel, where it can be established that ganja is the cause of acts inimical to the safety of others.
But would such amendments be possible without breaching the 1961 Single Convention and the 1988 Convention?
1961 Single Convention
The 1961 Convention, Article 4, is explicit on the general obligations of the parties:
The parties shall take such legislative and administrative measures as may be necessary:
To give effect to and carry out the provisions of this Convention within their own territories;
To co-operate with other States in the execution of the provisions of this Convention; and
(c) Subject to the provisions of this Convention, to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.
Under Article 4(c), the use and possession of cannabis, one of the Scheduled substances, is limited to medical and scientific purposes. And again, under Article 28(3), which speaks specifically to the Control of Cannabis, "The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant"
But it is Article 36, on Penal Provisions, specifically paragraphs 1 (a) and 1 (b), and Article 38, on Measures Against the Abuse of Drugs, that frame in greater detail the obligations of Parties. Article 36, paragraph 1 (a) reads:
Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of the Convention, shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.
Use is not mentioned here as an offence, thus in theory it could be thought of as being excluded, making it possible to decriminalise use without contravening the Convention.
Paragraph 1 (b) of the Article presents the Parties the choice of conviction and punishment or treatment and rehabilitation. This is followed in greater detail in Article 38, where preventive measures, education, treatment and after-care, and training of personnel are called for.
The Commission sought the advice of international law expert, Dr Stephen Vasciannie of the University of the West Indies, and in a well-researched and thorough brief, this is what he wrote relative to the 1961 Single Convention.
"[W]hen Articles 36 (1) (a) and (b) are read together, the legal situation seems to be as follows: (a) the Single Narcotics Convention requires States to subject certain activities concerning marijuana to criminal sanctions (including the cultivation, production, manufacture, possession, exportation and importation of that drug); (b) the Convention does not require States to prohibit the use (or consumption) of marijuana per se; and (c) in the event that an abuser of marijuana has committed an offence that would require criminal sanctions when committed by a non-abuser of the drug, it is open to the State to forego the application of criminal sanctions against the abuser.
On this reading of the Single Narcotics Convention, it would be possible for Jamaica to amend its national legislation in order to decriminalise marijuana use, and make its private use legal, without necessarily placing the country in breach of its obligations under the Convention."
But, notes Dr Vasciannie, the difficulty that would arise from such a step would be the contradiction whereby ganja use would be legal but its procurement illegal. In his opinion, "[t]his seems quite unworkable." However, the Commission has before it the experience of the Dutch, who, without being cited as breaching any of the Conventions, have adopted a contradictory, if pragmatic policy, giving restricted decriminalised status to cannabis distribution and consumption of small quantities, while applying penal sanction to its production, importation and trafficking.
According to A Guide to Dutch Policy put out by the Foreign Information Division of The Netherlands Ministry of Foreign Affairs, in cooperation with the Ministries of Health, Welfare and Sport, Justice, and Interior and Kingdom Relations, "[t]he use of drugs is not an offence under international agreements. Nor is it an offence in Germany, Italy, Denmark or, indeed, most countries of the European Union" (2000, p. 6). The Government sees itself in compliance with the UN Conventions of 1961, 1971 and 1988, not to mention other bilateral and multilateral agreements on drugs. The policy is based on the "principle of expediency", whereby authorities are given "discretion to decide, on the grounds of the public interest, not to bring criminal action in a given case." High priority is given to suppressing the sale of hard drugs and trafficking of large quantities of drugs, hard and soft, while low priority is given to curbing the sale and possession of soft drugs for personal use. In this context "soft drugs" refer to cannabis and its derivatives.
Thus, notwithstanding the evident contradiction of decriminalising personal use while suppressing the sale and trafficking, a half-way position, which some would reject, is nonetheless possible under the 1961 Single Convention, which does not explicitly prohibit use. Noted retired Solicitor General, Dr Kenneth Rattray, in verbal communication with the Chairman of the Commission, argues that the omission of sanctions against personal consumption was not an oversight by the Parties to the Convention, but rather an attempt to set a threshold beyond which actions of the State could be deemed to be in breach of certain fundamental human rights. In this regard, there are three principles of human rights that governed and have governed this and other similar Conventions: the principles of the right to personal privacy, and the right to religious freedom, and the principle of proportionality, by which the sanction should be proportionate to the offence. That the Parties to the Convention would have been mindful of these constraints is clearly evident in the interpretations given the Convention by the Secretary-General's Commentary on the Convention and by the International Narcotics Control Board, according to both of which the Single Convention intends the criminalisation of possession for the purposes of illicit trafficking and not for personal use.
Although Dr Vasciannie argues that had the negotiating Parties intended to limit possession to illicit traffic they would have said so, and therefore "[t]he fact that they did not must carry considerable significance in directing us to interpret Article 36(1) in keeping with the plain meaning of its text," Dr Rattray, with considerable experience in international law, emphasises the contextual and interpretive framework of negotiated agreements and treaties. He is therefore of the opinion that the interpretation of the International Narcotics Control Board carries weight.
In addition, Dr Rattray argues, the interpretation of the Conventions must be done in the context of the obligations assumed under International Human Rights Conventions, which have been long recognised as an aid to interpretation, particularly in cases of uncertainty or ambiguity.
He further contends that there is a growing body of international jurisprudence, which recognises that International Human Rights Conventions are of a superior order to obligations under other Conventions, and that in case of a conflict or inconsistency between such obligations, the obligation under the Human Rights Conventions must prevail.
Since Jamaica is a Party to the International Convention on Civil and Political Rights, which protects against invasion of privacy as well as protects freedom of religion, those obligations would have to be considered in the determination as to whether any obligations under the Drug Conventions must yield to Jamaica's obligations under the International Convention on Civil and Political Rights.
In sum, therefore, decriminalisation of possession for personal use and of use itself does not breach the 1961 Single Convention.
The 1988 Convention also does not explicitly criminalise personal consumption, but by bringing under the purview of the criminal justice system cultivation, purchase and possession for personal use, it goes further than the 1961 Single Convention. The relevant article is Article 3, paragraph 2, which reads:
"Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention."
Translated into practice, it would have to be argued that by the strict letter of the law, the possession of an unlit spliff would constitute a criminal offence, but the smoking of it not. According to Dr Vasciannie, the same contradictions noted in respect of the 1961 Convention would also apply, for
"Article 3 (2) would mean that all important stages preceding consumption, but not consumption itself, must be subject to the criminal law: the cultivator, the purchaser and the person in possession are all guilty of criminal offences in the perspective of the 1988 Convention. For parties to this Convention, therefore, decriminalisation for personal consumption would appear to be a position possible in form but implausible in practice."
He examines other legal options available to Jamaica. Amendment as a possible route would require the Secretary-General to notify the Council and all the Parties of the amended text. A decision may be taken on the basis of the comments of the Parties, or the Council may convene a conference, whether or not objections are raised. If the amendment is not rejected within eighteen months of its circulation, it enters into force. Given the fact that so many countries have seen it fit to ratify the Conventions (157 in the case of the 1961 Single Convention, 154 in the case of the 1988 Convention), and given also the relatively recent adoption of the 1988 Convention, it is hardly likely, Dr Vasciannie believes, that Jamaica could muster enough support to carry such an amendment.
The other legal option for which provision is made is denunciation. By denunciation, the Secretary-General is advised by written instrument of the withdrawal of consent, which would then take effect the year following its submission. Legally, this is open to Jamaica to do, but, opines Dr Vasciannie, from a geo-political perspective it would make little sense. The Commission agrees.
The Commission does not, however, agree with his conclusion that while "the main drug conventions…do not in themselves require Jamaica to subject criminal sanctions to marijuana use…this does not necessarily permit decriminalisation in a manner that would be workable in Jamaica", and that therefore "the status quo, with all its deficiences, ought to be recommended."
Given the clear intent of the Convention not to violate certain fundamental human rights, a workable if untidy arrangement is possible, which would seek no significant change in the status quo at present other than relief to the thousands who annually are brought before the court for personal use. The suppression of the growing, large scale trafficking and export of ganja would and must continue, not least to guard against decertification by the United States. The suppression of public use would also continue. What would cease is the prosecution of adults for the possession of small amounts for private use.
By itself that would not be enough, if we are to allay the fears of our partners that we are reneging on our international obligations or to reduce the abuse of ganja, not to mention other substances. It would require, also, a sustained education campaign, to deepen the work already going on at community levels and in the schools. Such an approach is actually quite consistent with both the letter and spirit of Article 38 of the 1961 Single Convention, on Measures Against the Abuse of Drugs.
The Parties shall give special attention to and take practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and social reintegration fo thepersons involved and shall co-ordinate their efforts to these ends.
The Parties shall as far as possible promote the training of personnel in the treatment, after-care, rehabilitation and social reintegration of abusers of drugs. The Parties shall take all practicable measures to assist persons whose work so requires to gain an understanding of the problems of abuse of drugs and of its prevention, and shall also promote such understanding among the general public if there is a risk that abuse of drugs will become widespread.
In the context of Jamaica, given the place of ganja in social and cultural life, decriminalisation represents the first step towards prevention, early identification, treatment and education. This is the unanimous position of all those working in the area of drug abuse. In the words of the Chief Medical Officer of Health, decriminalisation becomes a platform-one might say the only realistic platform, for demand reduction.
A realistic education campaign would seek to present in as balanced a way as possible the available experience and scientific knowledge of ganja, treating it as distinctly separate from all other substances, legal and illegal. It would continue to target, but now with greater confidence of success, young males who now needing no longer to fear condemnation and ostracism would be more ready to discuss it openly.
Decriminalisation will also require diplomatic efforts to join ranks with a growing number of Parties who unilaterally are taking measures to ameliorate their own anti-marijuana practices with respect to possession and use, our aim being to get the international community appropriately to amend the Conventions. In the Caribbean, where, according to a report by the Caribbean drug control Coordination Mechanism on 1999/2000 drug trends in the region, cannabis "is, in fact, the drug of choice" and "[u]nlike crack cocaine or cocaine…is, to a large extent, socially acceptable," diplomatic intiatives to get CARICOM to adopt a single position will undoubtedly strengthen Jamaica's ability to exert greater influence at the international level.
It will require, finally, practical proof that the country remains committed to the suppression of all drugs. Police interdiction of cocaine trafficking and use would need to be stepped up, which, if the Member of Parliament who appeared before the Commission is to be believed, is a matter of will.
The Commission has good reason to believe that it is the failure to do this that will threaten the country's certification status with the United States, and not the decriminalisation of personal possession and use of ganja. Were even a single cocaine trafficker to be caught, tried and sentenced, it would enhance the country's standing. The decriminalisation being recommended would free up more of Jamaica's human and financial resources to focus on the trafficking of cocaine. According to a well-informed source, this is where the Americans are frustrated with Jamaica.
Decriminalising on the basis that the Conventions do not prohibit use does not constitute the only justifiable rationale. There may be a better way. The Commission is grateful to Lord Anthony Gifford for opening up the following consideration.
All the relevant articles of the Conventions are prefaced by constitutional limitations, variously phrased. For example, Paragraph 1 (a) of Article 36 of the 1961 Single Convention on Narcotic Drugs, is qualified by the clause: "Subject to its constitutional limitations, each Party shall adopt such measures as will ensure etc."
Paragraph 2 of Article 3 of the 1988 Convention Against Illicit Traffic is similarly prefaced: "Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures etc." In other words the Conventions pay due regard to the peculiarities of each country, such as would be reflected in its supreme law, the Constitution.
The Constitutional guarantees to individual rights and freedoms could normally have been invoked to allow personal use of ganja, as an expression of religious freedom or of the right to privacy, or other right, without breaching international obligations. Unfortunately, such a loophole would not now apply to Jamaica, because of a saving clause which allows the Jamaican Constitution to be superseded by any statute in existence prior to the appointed day when the Constitution came into effect. In the case of Dennis Forsythe v. the Director of Public Prosecutions and the Attorney General, in which Forsythe argued that his constitutional right to freedom of religion as a Rastafarian who used ganja for sacramental purposes, and his right to the privacy of his home were violated when he was charged with possession of the prohibited substance, the Supreme Court handed down judgment which included among other reasons the fact that Section 26 (8) of the Constitution plainly declared that "any law in force immediately before the appointed day shall not be held to be inconsistent with any of the provisions" of Chapter III of the Constitution which sets out the Rights and Freedoms of the Jamaican citizen. The Dangerous Drugs Act being in force prior to the appointed day was judged by the Supreme Court to be not inconsistent with the Constitution, and so Dr Forsythe's motion was dismissed. Thus, Jamaica cannot at the present time make use of the constitutional limitation clause allowed by the Conventions.
However, the Charter of Rights being debated for adoption by Parliament were it to take effect, would replace the existing chapter of the Constitution, override the saving clause of Section 26 (8) of the Constitution and pave the way for Jamaica to take advantage of the Constitutional Limitation clause. There are two Drafts, one by the governing People's National Party, the other by the Opposition Jamaica Labour Party.
The Government's Draft at Section 13 (2) reads:
Save only for laws that are required for the governance of the State in periods of public emergency, or as may be demonstrably justified in a free and democratic society, Parliament shall pass no law and no public authority or any essential entity shall take any action which abrogates, abridges or infringes--
(b) the right to freedom of conscience, belief and observance of religious and political doctrines;
(l) the right to protection for privacy of home and other property; enjoyment and beneficial ownership of property.
The Opposition Draft at Section 14 (1) reads:
Save only for laws that are required for the governance of the State in periods of public emergency or public disaster or as may be demonstrably justified in a free and democratic society, Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes:
the right to freedom of conscience, belief and observance of religious and political doctrines;
(k) the right to enjoyment and beneficial ownership of property; the right to respect for private and family life, privacy of the home and of communication.
Ganja could be decriminalised for personal use and justified under the constitutionally protected right of enjoyment of the privacy of one's home, and possession in limited quantities for such private use likewise decriminalised. Also to be decriminalised in like manner would be the possession and use of ganja in pursuit of the right to freedom to manifest religious doctrines.
As Lord Gifford points out in his written submission, in effect supporting the above point of Dr Rattray, international human rights conventions as well as recent judicial decisions in other jurisdictions add some weight to the argument.
The rights to privacy and to the freedom to manifest one's religion as contained in both Drafts of the Charter of Rights are consistent with Articles 17 and 18 of the International Covenant of Civil and Political Rights, and Articles 11.2 and 12.1 of the American Convention on Human Rights. These rights are not absolute, and both Drafts include provisions to override them, although the Opposition Draft Section 19 of the Opposition's Draft goes so far as to make void any law or rule of law if:
it requires or authorizes anything to be done in contravention of any provision of this chapter [i.e. the Charter];
it prohibits the exercise of any right or freedom protected by this chapter; or
if it restricts the exercise of any such right or freedom in a manner not authorized by this chapter.
The overriding provisions are, in the first place, those contained in the qualifier "Save only for laws, etc.", which cover emergency situations or such laws "as may be demonstrably justified in a free and democratic society." It is hard to see what kind of emergency could make it necessary to ban the private use of ganja, and equally how, given its cultural entrenchment and medical status, the criminalisation of ganja possession for personal use and the use itself could be "demonstrably justified in a free and democratic society." But the Constitutional Court would be called on to judge.
But secondly-and this is spelt out in the Government's Draft, the private possession and use of ganja would be subject to any law "which is reasonably required-
in the interests of defence, public safety, public order, public morality, public health…;
for the purpose of protecting the rights or freedoms of other persons."
It is conceivable that ganja use, even in private, could be challenged as being against public morality and public health, or for infringing the rights and freedoms of others. But here again the issue would be subject to argument before the Constitutional Court.
Recent decisions in the United States and Canada also strengthen the case for decriminalisation. We quote extensively from Lord Gifford's written submission:
In US v Bauer and others, cited as 1996 WL 264776 (9th Cir. [Mont]), the United States Federal Court of Appeal had to consider a plea from Defendants charged with trafficking and possession of marijuana, that they had the right to a `religious use' defence. They relied on the Religious Freedom Restoration Act, a U.S. statue which guaranteed freedom of religion. The District Court had held that the relevant marijuana law `substantially burdened the free exercise of the Rastafarian religion', but decided that `the Government had an overriding interest in regulating marijuana.' The Court of Appeal reversed the District Court's decision. The court held that if the freedom of a person's exercise of religion is substantially burdened, the Government had to meet two tests: (a) a `compelling governmental interest; and (b) that the application of the law is `the least restrictive means of furthering that compelling governmental interest.' The Court found that the Government had not shown that a universal law against marijuana was the `least restrictive means' of preventing the distribution of marijuana. Accordingly the defendants who were charged with simple possession would be re-tried, and they would have a defence if they could show that the use of marijuana was part of their religious practice as Rastafarians. The defendants charged with trafficking would have no such defence, since religious freedom was not involved.
The conclusion drawn by Lord Gifford is that "even in the United States, the possession of marijuana may be found to be legal by the courts if it is associated with the exercise of a fundamental right such as religious freedom."
In the Canadian case of R v Terrance Parker (Docket C28372, decided on 31st July 2000), the issue concerned the use of ganja for medical purposes. The Ontario Court of Appeal considered the evidence concerning the harmful as well as the therapeutic effects of ganja, and in making its ruling applied Section 7 of the Charter of Rights, according to which only by virtue of `the principles of fundamental justice' may the right to liberty and security of the person be infringed.
The Court found that "the marijuana laws did infringe Parker's security in preventing him from undertaking a safe medical treatment for his condietion of epilepsy. It held that a blanket prohibition did breach the `principles of fundamental justice'", and so permitted the possession of marijuana for medical use. Significantly, the Court of Appeal took note of the fact that the United Nations 1988 Convention had, as the Convention stipulated, to be subject to Canada's constitutional principles and basic concepts of its legal system.
A year later, Canada became the first state to pass legislation making "medical marijuana" legal.
Clearly, then, a strong legal case for the decriminalisation of ganja for personal, private use exists once both Government and Opposition are agreed on the terms of the Charter, and it becomes law by Act of Parliament. Once it becomes law, the decriminalisation of ganja for personal use, based on the right of privacy of the home, and its decriminalisation for religious use, based on the right of observance of religious doctrines, could then be covered by the Constitutional limitation respected by the United Nations Conventions. Decriminalisation would not remove the patent contradiction exposed by Dr Vasciannie above, but it would be the more satisfactory of the two options in providing a sounder legal basis.