Marijuana: the legal headache

So I'm getting my hair palm-rolled, while half-listening to the radio this morning and managed to catch the news saying, "Bob Marley's youngest daughter, Makeda Jah-nesta Marley, pleaded guilty to growing 12 marijuana plants in her home." Immediately the usual question came to mind:

"Why are people still facing incarceration for ganja?"

GENERAL VIEW
-------------------
My general view, for which I make no apology, is quite simple. Decriminalise Marijuana, thus making it at most a civil offence. Note, I do not propose to go as far as to legalise it.(To me that would be a bridge we cross some time in the future, if ever). In other words, what I propose at the moment is that the use and possession of small amounts of marijuana would remain illegal, but jail sentences and criminal records would be replaced with fines. It is my belief that the current penalties are too harsh and are in fact disproportionate to the crime itself, especially when it remains hard to deny that alcohol has far more adverse effects on the human body and mind than Marijuana, yet it remains legal and sold on almost every street corner in the region.

A criminal record causes employment difficulties, issues when attempting to pursue further education and problems with international travel. In other words, a couple spliffs could ruin one individual's entire future prospects under the current legal regime.

Incarceration for Marijuana possession operates to take otherwise productive persons in society and lock them away. I take issue with this, for quite a few reasons. Not only are you exposing such person to far more sinister criminal elements but you are, more often than not, dealing with someone who is between 16-60 and therefore are sure to have obligations and prospects that would be better served with them remaining functioning members of society. Where they are employed- they contribute with taxes to supporting our social systems. Also, we ought not to discount the social impact it has on families when members are removed under such circumstances.

Moreover, recent reports indicate that it costs in the region of $69 BDS per day to maintain an inmate at H.M.P Dodds. Why should a State continue to spend that amount of money to incarcerate individuals who do not NEED to be incarcerated, insofar as they are no danger to others or themselves? Furthermore, too much of the criminal justice system's resources are now directed at law enforcement, when they could be better spent on the public health and education aspects of marijuana use and addiction- prevention is better than cure, is it not? Where more attention and resources are channeled toward the health and education sides of the Marijuana issue this creates a much greater opportunity to look at the possibility of use for medicinal and religious purposes.

In my view, it is Marijuana's continued legal status that encourages most of the negative elements around the drug. A more liberal approach to its regulation would also go a long way towards undermining black market trade in the long run.Naturally the nay-sayers will argue that any change in legal regulation of the drug would increase its use but there is nothing to prove that; on the contrary its criminalization has clearly done nothing to reduce it. Whereas this proposed approach would facilitate improved regulation of its use.



SPECIFIC VIEW
----------------

Marijuana & Religious Minority Rights
----------------------------------------

Makeda, subject to correction, is a practicing Rastafarian, therefore I put it to you that the law against marijuana infringes her right to freedom of Religion.

I dealt with this very issue as a small part of my Independent Research Paper for my Bachelors of Law. Under the rubric of: ‘Equality in the Caribbean: The Animal Farm Story’, the paper presented an exploration of Commonwealth Caribbean States’ failure to ensure equal protection of the law, particularly marginalized groups such as indigenous people, Rastafarians, homosexuals and the mentally ill- properly identified as minorities within mainstream society, thus undermining the Rule of Law. I hypothesised that the Rule of Law is often denied to those who fall into ‘non-majoritarian’ classifications resulting in an application of fundamental human rights where ‘all animals are equal, but some animals are more equal than others.’ Just as it was in George Orwell’s famous satirical tale of Soviet Totalitarianism. It was and is my view that the prevailing legal regime is arguably an example of systematic abuse of logic and language to mask discrimination, such that, the concept of equality is treated as relative rather than absolute.


Religious liberty is, in a pluralistic society, an important part of political justice, with special primacy in Western constitutional thought. Nonetheless, one of the more controversial illustrations of inequality in our Caribbean societies, even without delving into the blatant discrimination in the workforce, courts and beyond, pertains to the use of the illegal substance marijuana by the Rastafarian faith and its human rights implications. Most international statements of principle, including the Universal Declaration of Human Rights (UDHR), proclaim the right to freedom of thought, conscience and religion, which includes the freedom of a person to change his religion and to manifest it in public or private, in teaching, practice, worship and observance.

Furthermore, cannabis use predates its prohibition, evidence of which can be found throughout history and across various cultures, notably without the severe adverse social effects often used to justify its illegality. In fact, largely economic and political reasons such as the preservation of the paper, chemical and pharmaceutical industries and racism against immigrants of Mexican and African descent largely associated with the drug’s use have been cited as the underlying reasons for its illegal status in the most of the Western world. As such, prohibition of marijuana use is an illustration of discrimination in respect to the practice and manifestation of religion and therefore a violation of human rights without legitimate reason.

An interesting case on point, People of Guam v. Benny Toves Guerrero 2001 WL 34095018 (C.A.9)., emanates from the United States Court of Appeals, Ninth Circuit. The respondent, whose religious name was Ras Makahna, was criminally prosecuted for his religious practices. The court held not only was Rastafarianism a legitimate religion entitled to protection under the Guam Organic Act and the Religious Freedom Restoration Act but that the use of Cannabis is an important and sacred practice for Rastafari, even if the practice is not mandatory as a matter of Rastafarian doctrine. Indeed, Guam’s Organic Act required that when a statute substantially burdens religious exercise, the government must demonstrate that it has a compelling interest, and that the statute represents the least restrictive means of furthering that interest. This standard is reflective of the DeFreitas test for legitimate limitation within our Constitutional legal system. Quite tellingly, the courts found that this standard was not met, in that, absolute prohibition was not the least restrictive means of furthering the interest. Moreover, it is submitted that, all things considered, the interest was not itself compelling to begin with. This is supported by the more recent case of Huang which sought to emphasise the need for critical analysis of the public interest aspect implicit in the DeFreitas criteria.

It is clearly indisputable that for Rastafari, cannabis use is sacramental, despite any mainstream view that it is detrimental. Furthermore, (quoting from the judgment in that case)

‘[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.’

Religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to be entitled to protection, otherwise where would be the freedom? Unfortunately, this faith enjoys a level of recognition and protection in US Courts it does not in the Caribbean- its origins, where the Rastafarian daily reality is social discrimination and stereotyping compounded by unequal protection of the law.

Even in light of arguments that the UDHR is not legally binding and similar instruments are unincorporated into our domestic systems, the Caribbean Court of Justice (CCJ) in Boyce, has established that the right to protection of the law is special, in that, it is so ‘broad and pervasive’ it could not be encapsulated in a section. On the aforementioned grounds prohibition of the use of marijuana for religious purposes is a violation of the right to freedom of thought, conscience and religion. Even where we accept the dualist argument with respect to the rules that operate in domestic and international law, one may argue that under our constitutions, which grant similar rights, violations thereof also constitute constitutional breaches. Basically, even where the relevant international instrument is unincorporated, courts may still rely on the Constitutional provisions to identify and remedy violations.

In the expanding definition of human rights there appears to be room for this line of reasoning to be successful in a bold enough court. It is well-established that a right does not come into existence because it is recognised by a State, but rather is recognised by the State because it exists. Therefore the entitlement of the Rastafarian faith to the manifestation and practice of their religion, inclusive of marijuana use and even its cultivation for such use, ought to be recognised as a matter of fundamental human rights- the apex of legal entitlement. It follows then that marijuana’s illegality ought not to be used as a barrier to the achievement of equal protection of the law as our legal systems, being founded on clearly naturalist tenets, provide for the repeal of unjust laws as was the case with laws institutionalising slavery.


Implications
---------------
Clearly, the above arguments strike at the legitimacy of our legal system but it is simply not a matter of black and white. States have a responsibility to address the social, political, moral and economic values of society via public policy considerations. Therefore, objections to the proposed reforms may fairly include a basic floodgate argument to the effect that to allow small tears in the moral fibre of society would be to encourage further undesirable activities to eventually destroy it. Undeniably, overzealous application of any right, however noble, could have serious implications for the order of society and even infringe other rights, as previously mentioned.

The law’s purpose is to order society. Hence, as held by the court in Forsythe (unreported) 27 October 1997, S.C. Jamaica (No. M44 of 1997), an unhindered freedom of religion taken to its logical conclusion could mean human sacrifices as a religious practice would be unobjectionable- an untenable result.Clearly, the underlying consideration of most public policies is the ancient conflict of law and morality. Essentially, whether there is a public morality which cements society which ought to be preserved. Proponents such as Plato and Aristotle have provided respectable work suggesting that law is not merely to provide the opportunity to lead a morally good life, but to see that society does. Hart identifies that morality as the commonly held beliefs of the society- mainstream thought. Therefore in our regional context, for many States, the issue is whether the moral fibre of the society should be compromised for equality or simply if deviant desires of a minority should be allowed to dictate standards for a largely unreceptive society.

Fortunately, the Caribbean has already found the apparatus for the necessary balancing exercise in the aforementioned DeFreitas [1998] 3 WLR 675 test and therefore should critically assess any allegedly discriminatory law by that standard. Any law which fails to satisfy does not have a sufficiently compelling moral or public policy foundation and thereby is simply unjust and ought to be struck down.

The laws relating to Marijuana use are just that.