The Jeff Cumberbatch Column – For Medical, Religious and Private Purposes
The decision that the court makes today is not to be taken as undermining the
State’s legitimate interest in the war on illegal and dangerous drugs. The
constitutional issues in this case are narrow ones, and focus only on the use,
possession and cultivation of cannabis by adults for use in the Rastafari religion and
also the use, possession and cultivation of cannabis by adults in private for personal
consumption. They do not touch or concern the issue of trafficking in cannabis,
illegal drugs or other illegal activities.
–per Ventose J. in Ras Sankofa Maccabbee v Commissioner of Police and AG of St Christopher and Nevis
The current local governing administration appears none too keen on the radical reform of the marijuana laws. From a purely political viewpoint, this is understandable. Should the experiment go horribly wrong, modern political thought would abhor the notion of being the party responsible for the catastrophe. An identical concept exists with the five hundred pound gorilla of the devaluation of the Barbados dollar. For a political administration to have been associated with this latter phenomenon would most assuredly sound its death knell in local politics. I am persuaded that a similar consequence might attend the reform of the marijuana laws should there be any adverse social fallout as a result.
Hence, so far we have heard tentative official word of a proposal to legalize the substance for medical purposes only and, as I recall it, not to broach the issue of recreational use at all. Subsequently, there has been no further word on the matter, until last week when we heard, not from the Prime Minister or the Attorney General or the Minister of Health or the Minister of Agriculture, but from the Minister with responsibility for Home Affairs, that the issue of decriminalization (sic) will now be decided by the people of Barbados in a referendum.
The Minister does not appear from the press report to specify whether the decriminalization refers to recreational or medical use but, allowing for a construction of his words de bene esse, it may be surmised that he might have been referring to purely recreational use. This is reinforced by his reliance on statistics from the Criminal Justice Research and Planning Unit in its 2015 report that “indicated a strong correlation between early marijuana use and criminal behaviour”. He also described as “worrisome” the correlation between adverse psychiatric reaction and illegal substance abuse, a viewpoint that suggests a no vote, certainly on the Minister’s part, to any referendum on decriminalization of the substance for recreational use.
Any such referendum as proposed will of course be problematic, apart from the entire debate being unfortunately and inevitably perceived as a partisan exercise, given the popular ignorance of what precisely is meant by the concepts of decriminalization and legalization. And then there is the formulation of the question itself, an issue about which there is certain to be some pedantic nit-picking as was the case when, sometime ago, a referendum was proposed on Barbados’s formally “becoming” a republic by having a native Head of State.
Barbados traditional caution in the area of marijuana reform appears to differ, at least slightly, from that of its neighbours, some of whom have already passed or are in the process of decriminalizing some of the existing offences where the substance is consumed for medical or religious purposes or is less than a stipulated amount. Indeed, it can be asserted that the current regional public opinion hews towards the reform of the current marijuana laws, by making exceptions for, as the title states, medical religious and private purposes.
Some individuals are not even prepared to await legislative reform, but are choosing rather to enforce their use of the substance as a fundamental right that is being infringed by the current laws.
One such instance occurred two Fridays ago when in a carefully reasoned judgment, my erstwhile Faculty colleague and now honourable judge of the Eastern Caribbean Supreme Court based in St Kitts Nevis, Eddy Ventose, ruled that those sections of the anti-drugs law in that jurisdiction including cannabis in the list of controlled drugs and criminalizing the possession and cultivation of cannabis infringed the Claimant’s constitutional right to freedom of conscience and religion under sections 3 and 11 [sections 11 and 19, (Barbados)]of the Constitution to the extent to which it made no exemption for the possession or cultivation of any amount of cannabis by an adult member of the Rastafari religion for religious use by adults in the Rastafari religion.
He also made a declaration that those aspects of the Act referred to above likewise infringed the Claimant’s constitutional right to privacy under sections 3 and 9 [sections 11 and 17 (Barbados )] of the Constitution to the extent to which it made no exemption for possession by an adult in a private place of any amount of cannabis for his or her personal use in private.
More controversially, he also suspended the declarations made for a period of 90 days from the date of the judgment to allow the National Assembly to remedy the constitutional defects set out therein. This is controversial, in my view, in that the separation of powers doctrine makes it clear that legislation is a parliamentary and not a judicial process, so that the tacit suggestion to the Parliament by a judge as to what should be its legislative agenda does appear to smack of judicial overreaching. Against this however, I suppose that it may be argued that the provisions of the Act having been declared unconstitutional by the competent authority, the state having already signaled its intention to reform the law accordingly by the introduction of a draft Bill and on light of the concession made by the Attorney General, there should be no contestation on this issue. As the learned judge observed:
After the draft of this judgment was prepared, I was able to read the provisions of the Cannabis Bill 2019 published by the Saint Christopher and Nevis Information Service website (https://www.sknis.kn/cannabis-bill-2019/). Part II of the proposed Cannabis Bill is entitled “Cannabis for Religious Purposes”. It contains 10 sections regulating the use of cannabis for religious purposes.
I am also mindful that the National Assembly may need additional time to cure the defects in the Drugs Act in respect of the personal use and consumption of cannabis by adults in private. The Attorney General proposed that a period of 90 days should be sufficient to enable the necessary legislation to be amended and passed by the National Assembly.
I propose to attempt an analysis of the judgment in coming essays, but I should wish, first, to thank my learned friend, Philip Nicholls Esq.. for having supplied me with a copy of the judgment and second, to close with a personal recollection of an encounter with the late Mr. Seymour Nurse who shuffled off this mortal coil last week.
It was the evening for net practice on the big field and I was batting. The bowlers kept bowling the ball at my pads and I was on driving with some aplomb, I thought. Afterwards, Mr Nurse who was observing, called me over. “That looked good”, he said. My chest swelled with pride. I could not imagine a loftier compliment. And then, with his keen perceptive eye, he observed, “But you are falling forward when playing the shot. Imagine what it would be like if you kept your balance”. He then showed me how. May he rest in peace.
To be continued…