Fri | May 26, 2017

Deciphering decriminalisation of weed

Published:Sunday | May 17, 2015 | 5:32 AMAlfred McPherson
McPherson
In this August 29, 2013, photo, farmer Breezy shows off the distinctive leaves of a marijuana plant during a tour of his plantation in Jamaica’s central mountain town of Nine Mile. While legalisation drives have scored major victories in recent months in places like Colorado and Washington – and the government of the South American nation of Uruguay is moving towards getting into the pot business itself – the plant is still illegal in Jamaica, where it is known popularly as “ganja.”
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It appears to be fair comment from a legal, and I dare say, from the social and economic perspectives, that the decriminalisation of ganja in Jamaica has been long in coming.
The cultivation, selling and consumption of cannabis (ganja), as well as other drugs, have been illegal in Jamaica since 1913.
Despite this illegality, a 2001 study by the National Council on Drug Abuse (NCDA) on the use of ganja in Jamaica disclosed that more than half the population had tried this prohibited substance in one form or the other. It is very likely that a current study/survey might disclose that this number has increased appreciably rather than diminished.
The decriminalisation of ganja is not a new agenda item that has eventually culminated in the Dangerous Drugs (Amendment) Act, 2015.
As far back as 1977, the government of the day established a joint select committee commissioned with the mandate to “consider the criminality, legislation, uses and abuses, and possible medical properties of ganja and to make appropriate recommendations. Whereas this committee overwhelmingly rejected the notion of legalising ganja, their position mainly might have been as a result of the terms of the 1961 UN Single Convention on Narcotic Drugs, to which Jamaica is a signatory.
Despite the 1977 joint committee’s recognition of the constraints in terms of adherence by Jamaica to the specific Articles of the Convention, this group was bold enough to recommend some 38 years ago that ganja should be decriminalised in the following circumstances:
- Personal, private use by adults.
- Use as sacrament for religious purposes.
- Possession of up to 2 ounces for personal consumption in a private setting.
- Use for medical purposes.

One cannot help but observe that these recommendations are the very genesis of the amendments to the Dangerous Drugs Act which have recently been passed into law in April 2015.

The entire question of the decriminalisation of ganja has been on the tracing board of successive administrations. Possibly, the lengthy incubation period before taking the bold initiative to lead the charge in effecting the recommendations for decriminalisation was as a direct consequence of the fear of condemnation by external forces, particularly from the United States of America (which coincidentally have effected several initiatives in decriminalising marijuana use in several states).
Amendments to our laws have now been passed and it is therefore trite to focus on the sphere of the US influence in dictating our course as it relates to decriminalisation, bearing in mind, particularly, that the ambit of the amendments are not quite as far-reaching as it may at first glance appear!
Certainly, the amendments are nowhere close to the 1998 recommendations of the Independent Jamaica Council for Human Rights, which presented a case for removing ganja from the schedule of dangerous drugs altogether. The council, in fact, recommended that “every individual should be able to cultivate, possess, sell, smoke and use ganja, that Rastafarians should not need any special permit to use it for their religious purposes, and that the court should have the power to treat addiction as a medical problem”.

Once the amendments heralding the decriminalisation of ganja are clearly understood and appreciated by the public at large, it will bring into stark focus the fact that this bold step of the legislators does not nearly amount to a blanket ‘legalise it’, but the amendments attempt to “fly the gate” only so far as to the beach front of our coastlines, and certainly not over and beyond our shores to traverse the ocean corridors of the world.
From a strictly legal perspective, deciphering the amendments will result from the interplay between the judges and lawyers in legal proceedings which may ensue and necessitate statutory interpretations and judicial rulings on the meaning and import of aspects of the amended legislation.
Aside from those provisions that may lend to varying interpretations, the aspects of the legislation that are considered literal and straightforward should not need to be deciphered, but rather should be strictly adhered to.
Additionally, there are several aspects of the new law that cannot be effected until companion regulations have been promulgated in order to bring clarity and understanding to the rules, regulations and procedures which will provide efficacy to the new law.
In the most general terms, the new provisions seek to cover the possession and smoking of ganja of the public at large, the use in particular by persons of the Rastafarian faith, and even more persuasive and poignant from a socio-economic perspective, the use of ganja for medical, therapeutic and scientific purposes.
One of the amendments that appear to be of major interest to the public, generally, is the fact that possession of two ounces or less of ganja will no longer be a criminal offence, which will result in a criminal record. Possession of this quantity however, MAY be ticketable. It would therefore seem that the police officer has discretion whether or not to issue the ticket.

It may appear trifling and/or amusing to this audience – but the question has been asked – will all police officers now be armed with state-of-the-art scales? How is two ounces to be determined with certainty other than with a measuring device? Will the ticketing system be treated by the public with as much contempt as the traffic ticketing system? These are but a few of the concerns expressed by the man in the street.

The determination of adherence to the Rastafarian faith is yet another burning issue. What exactly is the process of determination? Appearance? Attending religious meetings? My non-attendance at church services does not make me any less an Anglican or a Christian, for that matter. Arguably, it may make me a bad Anglican or bad Christian (if the latter is possible), but no less an Anglican by religious affiliation.
The determination of adherence to the faith should be interesting, if not challenging and bereft with subjectivity.
The legislators will have to attempt to clarify terms such as ‘religious purposes’, ‘sacrament’, etc. Also, there ought to be clear guidance as to the quantum that is deemed permissible for such designated purposes.

The cultivation by householders of five ganja plant or more ought to meet with some innovative spins over time and the justice system may be clogged with indictments for overcropping!
Some questions that could arise – does my live-in domestic helper not constitute a separate household? Is she not therefore entitled to her independent five plants? Are my adult sons who just occupy certain rooms under a common roof not regarded as a separate household? Are they not entitled to their five plants? What about the so-called ‘tenement yards’? Are not all the separate households contained therein entitled to their five plants? Further, who exactly will be charged with the responsibility to monitor cultivations in individual households? In practical terms, therefore, will this limitation be adhered to?
The truth be told, over several decades the experience with the Dangerous Drugs Act as it pertains specifically to ganja created a large burden for law-enforcement agencies, the prison system and the courts prior to the recent amendments.
With this in mind, it is only fair to give this bold and interesting bit of legislation an opportunity to mature and evolve rather than condemn same to certain failure coupled with resultant tyranny for scarce benefits and spoils to be derived from a plant that can garner tremendous benefits for socioeconomic growth and prosperity, if managed in a fair and unbiased manner.
Due adherence to the amended legislation could, no doubt, have positive results. As with all things new, an ageing process is necessary in order to really test the veracity of the subject.
The legislators should be applauded for bringing to fruition this bold and long overdue initiative, and with the development of accompanying regulations, the passage of the Dangerous Drugs (Amendment) Act, 2015 has the potential to herald a new and positive dimension in our developing legal system. 

-Alfred McPherson is dean of the Faculty of Law at the University of Technology, Jamaica. Email feedback to columns@gleanerjm.com.