A REPORT

OF THE

NATIONAL COMMISSION ON GANJA

TO

Rt. Hon. P.J. PATTERSON, Q.C., M.P. PRIME MINISTER OF JAMAICA

PREPARED BY:

Professor Barry Chevannes, Chairman

Reverend Dr. Webster Edwards

Mr. Anthony Freckleton

Ms. Norma Linton, Q.C.

Mr. DiMario McDowell

Dr. Aileen Standard-Goldson

Mrs. Barbara Smith

August 7, 2001

CONTENTS

EXECUTIVE SUMMARY

The National Commission of Ganja, pursuant to its terms of reference and after a period of exhaustive consultation and inquiry from November 2000 to July 2001, involving some four hundred persons from all walks of life, including professional and influential leaders of society, is recommending the decriminalisation of ganja for personal, private use by adults and for use as a sacrament for religious purposes.

The Commission, after reviewing the most up-to-date body of medical and scientific research, is of the view that whatever health hazards the substance poses to the individual — and there is no doubt that ganja can have harmful effects, these do not warrant the criminalisation of thousands of Jamaicans for using it in ways and with beliefs that are deeply rooted in the culture of the people. Besides, there is growing evidence that the substance does have therapeutic properties.

The Commission interviewed over three hundred and fifty persons in all the parishes, and received written submission from over forty. The overwhelming majority of these share the view that ganja should be decriminalised for personal, private use. Many of them are personally opposed to the smoking of it. The Commission is persuaded that the criminalisation of thousands of people for simple possession for consumption does more harm to the society than could be done by the use of ganja itself. The prosecution of simple possession for personal use and the use itself diverts the justice system from what ought to be a primary goal, namely the suppression of the criminal trafficking in substances, such as crack/cocaine, that are ravaging urban and rural communities with addiction and corrupting otherwise productive people.

Decriminalisation of ganja will require appropriate amendments to the Dangerous Drugs Act, in particular Sections 7C and 7D.

The Commission, after very careful consideration of the legal issues involved, concludes that decriminalisation will in no way breach the United Nations Drug Conventions, which have been ratified by Jamaica. Especially is this so, when arguments of human rights, including the proposed Charter of Rights being discussed by Parliament, are taken into account.

Accordingly, the National Commission is recommending:

1. that the relevant laws be amended so that ganja be decriminalised for the private, personal use of small quantities by adults;
2. that decriminalisation for personal use should exclude smoking by juveniles or by anyone in premises accessible to the public;
3. that ganja should be decriminalised for use as a sacrament for religious purposes;
4. that a sustained all-media, all-schools education programme aimed at demand reduction accompany the process of decriminalisation, and that its target should be, in the main, young people;
5. that the security forces intensify their interdiction of large cultivation of ganja and trafficking of all illegal drugs, in particular crack/cocaine;
6. that, in order that Jamaica be not left behind, a Cannabis Research Agency be set up, in collaboration with other countries, to coordinate research into all aspects of cannabis, including its epidemiological and psychological effects, and importantly as well its pharmacological and economic potential, such as is being done by many other countries, not least including some of the most vigorous in its suppression; and
7. that, as a matter of great urgency Jamaica embark on diplomatic initiatives with its CARICOM partners and other countries outside the Region, in particular members of the European Union, with a view (a) to elicit support for its internal position, and (b) to influence the international community to re-examine the status of cannabis.

ACKNOWLEDGEMENT

The National Commission on Ganja acknowledges with gratitude the hundreds of people, old and young, male and female, artisans, workers, farmers, clerical workers, health, legal and other professionals, managers, unskilled and unemployed persons, policemen, clergy, self-employed, and visitors, who thought the work of the Commission serious and worthwhile enough to be interviewed or to send written submissions, letters and electronic mail.

We thank the Staff of the Office of the Prime Minister (OPM), in particular Mrs Deta Cheddar, the Secretary to the Commission, for facilitating our work, to the OPM in Montego Bay, and to the Local Government Officers and Social Development Commission staff in the parishes, who provided logistic and other support. The Jamaica Information Service made invaluable contribution by bringing the work of the Commission to the general public. Our thanks go as well to the various members of the communications media, who kept alive public interest in the work of the Commission.

Our thanks are extended also to Chantal Ononaiwu and Natalie Ebanks for providing summaries of the laws and oral depositions, respectively, and to Ethnie Miller and Sonjah Stanley for surfing the Internet. Jacqui Getfield, an Assistant to the Dean of the Faculty of Social Sciences at the University of the West Indies, Mona, worked closely with the Chairman. We thank her and other members of the Dean’s Office for their support. A special thanks to Dr Stephen Vasciannie and Lord Anthony Gifford for preparing briefs at the Commission’s request.

Without the verbatim transcripts provided by the team of stenowriters led by Mrs Lilleth Haughton, the Commission’s report would have been seriously handicapped. Special thanks, therefore, to Mrs Winnifred Mannaham and Ms Marjorie Goodgame, and to Miss Elaine Walker, Mr Garfield McKoy, Mrs Yvonne Jenkins, Mrs Clementina Barrett, Mrs Dorothy Ramsay and Ms Ursela Farquharson.

Professor Barry Chevannes, Chairman

Reverend Dr. Webster Edwards

Mr. Anthony Freckleton

Ms. Norma Linton, Q.C.

Mr. DiMario McDowell

Dr. Aileen Standard-Goldson

Mrs. Barbara Smith

PREFACE

For well over a hundred years, ganja has become the subject of considerable debate and investigation, beginning with the much celebrated India Hemp Commission of 1894, which was followed by no fewer than ten landmark Commissions and studies. Notable among these was the Commission of scientists and experts set up by Mayor La Guardia of New York in 1938, which took six years to complete its Report. Despite the favourable reviews of both these Commissions, yet another study was commissioned by the United States National Institute of Mental Health, subsequently renamed the National Institute of Health, on the long term effects of cannabis use. Led by Dr Vera Rubin of the Research Institute for the Study of Man and Professor Lambros Comitas of Columbia University, the study assembled a panel of United States and Jamaican scientists from the University of the West Indies, and carried out their extensive study in Jamaica from in 1970 and 1971. This study did not find any negative effect that might be attributable to chronic ganja use, but although it provided a basis for some States in the United States to ameliorate their positions, the debate has not only continued but intensified, in the wake of considerable increase worldwide in the smoking of cannabis, especially in the North Atlantic countries.

Then in 1977 the Jamaican Government set up a Joint Select Committee "to consider the criminality, legislation, uses and abuses and possible medicinal properties of ganja and to make appropriate recommendations." The Committee while rejecting legalisation, on account of Jamaica’s obligation to the 1961 Convention, unanimously concluded that "[t]here was however a substantial case for decriminalizing the personal use of ganja." It recommended specific amelioration of the law, and that there should be "no punishment prescribed for the personal use of ganja up to a quantity of 2 ozs. by persons on private premises." It further recommended that ganja be lawfully prescribed for medicinal use.

The fact that these recommendations have been shelved, and that the work of reputable scientists have been ignored would lead the sceptic to suggest that that could well be the fate of the present Commission. Contributing in no mean way to the scepticism is the factual consideration that the original proscription against ganja was never based on medical evidence, but now medical evidence is being sought to justify its continued ban.

In recommending decriminalisation for personal use, we do not share the pessimism.

After nine months of consultation and reflection, visits to every parish and hearings amounting to 3776 pages of transcriptions, the Commission is convinced that its recommendations will not go the way of those of all previous commissions and studies, notwithstanding the difficulties that will confront the Government due to Jamaica’s ratification of UN Conventions that seek to prohibit cannabis, except for research and medical-scientific purposes. The reason for the Commission’s sanguineness is what it has uncovered as an overwhelming national and growing international consensus that cannabis should be decriminalised, or at least differentiated from other banned substances.

Nationally, the consensus reaches across the lines that once divided us historically, and that continue to divide us socially, to wit party, class and religion, where none seemed to have existed before, even at the time of Joint Select Committee twenty-five years ago.

Internationally, hardly a week goes by without some intimation of changing attitudes to cannabis. In many States of the United States of America the use of cannabis for medical purposes has been declared legal. Earlier this year Health Canada, Canada’s Ministry of Health, issued regulations to create a government-regulated system for using cannabis for medical purposes, the first country to do so. This action has been quickly sanctioned by Parliament which now makes cannabis legal in Canada for terminally ill patients and those suffering certain painful debilities. In June 2001 the British press reports on the launch of a pilot scheme in London in which cannabis offenders are simply warned and sent on their way, instead of being cautioned, arrested, charged and tried. A British Parliamentary Committee is soon to review the matter. British practice lags far behind those of the Dutch and of a growing number of other European countries which have simply decriminalised the personal use of small quantities of cannabis. Portugal, according to press reports, has taken the very bold step of decriminalising the use of all banned substances. An international momentum is clearly underway.

The Report seeks to capture the extent of this national consensus. This is set out in Chapter 3, the main body of the report, but not before a discussion of the methodology (Chapter 1) by which we have undertaken our work and arrived at our conclusions, and a review of the most up-to-date scientific reports (Chapter 2). Having presented this, the Report turns to consider the legal and political implications of our general recommendation, in Chapter 4. One critical issue raised by many experts and witnesses is the attitude of the United States, and this too is taken into account in the context of discussion on our international treaty obligations. The Report concludes with a summary of the recommendations, in Chapter 5, which is followed by the Appendices.

TERMS OF REFERENCE

Whereas there has been long and considerable debate in Jamaica regarding the decriminalisation or non-decriminalisation of ganja in well-defined circumstances and under specific conditions,

Whereas differing views have been urged on the advisability of allowing the possession of specified quantities of ganja, its permissible use by adults within private premises, while continuing to prohibit its smoking by juveniles or by anyone on premises to which the public ordinarily has access,

Whereas some Groups have proposed that its use as a sacrament for religious purposes ought to be sanctioned,

Whereas there is a body of scientific opinion which attests to its medicinal qualities and clinical value,

Whereas serious questions have been raised as to its impact on health, on patterns of social behaviour, its implications for the economy and possible effects relating to crime and security,

Whereas there are international treaties, conventions and regulations to which Jamaica subscribes that must be respected,

In consideration thereof a National Commission is hereby established, with the following of Reference:

1. To receive submissions or memoranda, hear testimony, evaluate research and studies, engage in dialogue with relevant interest Groups, and undertake wide public consultations with the aim of guiding a national approach.
2. To indicate what changes, if any, are required to existing Laws or entail new legislation, taking account of the social, cultural, economic and international factors.
3. To recommend the diplomatic initiatives, security considerations, educational process and programme of public information which will need to be undertaken in light of whatever changes may be proposed.
4. To consider and report on any other matter sufficiently relating to the foregoing.
5. To make such interim reports as it may deem fit and a final Report within a period of nine months from the first sitting.

September 2000

CHAPTER 1

METHODOLOGY

1. Guided by our Terms of Reference the National Commission of Ganja (NCG) visited every parish capital except one, in addition to several other townships. Exception was Black River, the capital of St Elizabeth, substituting instead, on advice, the market town of Santa Cruz and the seaside village of Treasure Beach.
2. Hearings were of two sorts. The first was in camera, in order to provide those who wished the privacy to state their own views in confidence, and without fear of intimidation, recrimination or exposure.

3. The Commission also held hearings in public, in squares, markets and street corners of inner city communities and rural townships, in an effort to reach people who might not have been aware of the Commission or its presence, or who, though aware would otherwise not bother to respond.

4. Aware that a Commission set up to look into the decriminalisation of ganja at the present time would necessarily attract more of those in favour of changing the laws than those against any change, and fearing that in the midst of a vocal majority in favour of decriminalisation those against any amelioration might be inclined to be reticent, the Commission made it a special point of inviting the views of those it believed held conservative positions. Thus, apart from declared Christians interviewed as part of the general public, the Commission interviewed members of the Linstead Baptist Church, the President and students of the United Theological College of the West Indies, His Grace the Archbishop of Kingston, the Lord Bishop of Jamaica, the Chairman of the Church of God in Jamaica, the Reverend Dr Garnet Brown, and two theologians of St Michael’s Seminary.

5. Written submissions were also received voluntarily from many persons, most of them living in distant parts of Jamaica or abroad, by post or electronic mail.

6. Scores of organisations and professionals were targeted and invited to submit. While no more than 40% of organisations responded, due largely, we believe, to the fact that most had not worked through a position, those that did were of enormous import to the Commission.

7. The Commission also undertook a literature review, focusing on the most up-to-date summaries, owing to the voluminous corpus of medical and scientific studies that have been on-going all over the world in the course of the last twenty-five years.

8. A comprehensive review of the relevant laws and United Nations Conventions was made, and expert advice sought from legal luminaries.

9. Finally, the Commission availed itself of the opportunity of one of its members on a business trip to The Kingdom of The Netherlands to familiarise itself with practices in that country, one of a few in Europe to have de facto decriminalised and regulated cannabis use in small quantities.

CHAPTER 2

THE MEDICAL-SCIENTIFIC LITERATURE

INTRODUCTION AND BACKGROUND

Cannabis sativa plant is called ‘ganja’ in India and Jamaica, ‘marijuana’ in North America, 'hif’ in North Africa and ‘dagga’ in South Africa. The plant produces a resin often referred to as ‘hashish’.

As early as 2737 BC the Chinese Emperor Sheng Nun described cannabis as a superior herb and for centuries it was embraced unreservedly (Cole 2000). There are records of its use in Arabic medicine dating back to the 8^th century. Cannabis sativa was used for over a thousand years as a textile and medicine in Arabia, Mesopotamia, Persia, Egypt, China, India and extensive areas of Europe (Lozano 2001). In 1901 a United Kingdom Royal Commission concluded that cannabis was relatively harmless and not worth banning (Cole 2000).

Cannabis sativa was classified in the 18^th century by Carl von Linne. It was first admitted to western pharmacopoeias in the 1800s. In 1839 W.B. O’Shaghnessy at the Medical School of Calcutta observed its use in the indigenous treatment of various disorders and found that tincture of hemp was an effective analgesic, anticonvulsant and muscle relaxant (Grinspoon 2000). It was included in the British, United States and Indian Pharmacopoeias up to 1932, 1941 and 1966, respectively.

Ganja was brought to the West Indies in the middle 19^th century by East Indian labourers who came primarily to Guyana, Trinidad and Jamaica. Up until the early years of the 20^th century it was widely used as a folk medicine and did not appear to constitute a major social problem.

Beginning in the 1920s, interest in cannabis as a recreational drug grew. During the 1960s and 1970s there was a large increase in the use of smoked cannabis as an intoxicant in the USA and Europe. Starting in the 1980s there has been renewed interest in the potential medicinal uses of cannabis and its derivatives.

RESEARCH

There have been many commissions over the years looking at the effect of cannabis. Some of these are:

There is also extensive research at a number of levels. The use of cannabis engenders strong feelings and many of the research reports reflect this. There is a strong body of opinion that sees cannabis as harmful and advances 'scientific evidence’ to prove this. On the other hand there is an equally strong body of opinion that feels that cannabis has been unnecessarily vilified and that it has relatively minor harmful effects and great potential for medicinal use. This group also advances ‘scientific evidence’ to prove its point. It is therefore necessary to analyse the ‘scientific evidence’ bearing in mind the source and especially to note those items agreed on by both groups and done by independent groups such as the World Health Organization (WHO).

EPIDEMIOLOGY OF GANJA USE IN JAMAICA

Ganja is widely used for recreational, medicinal (folk medicine) and religious purposes in Jamaica. The 1990 Carl Stone study among respondents age 15 and over island wide showed 47% in the Metropolitan areas and 43% in the rural areas who had ever used ganja. The usage was higher among males than females but cut across all social, educational and economic groups. In the upper income group 46% of males and 25% of females had tried ganja, the figures for the middle income group were 33% of males and 10% of females, and for the lower income group 52% of males and 18% of females.

A national lifestyle survey carried out by the Ministry of Health in 1993 reported that among Jamaicans 15 — 49 years old 37% of the men and 10% of the women had ever used ganja.

A 1997 survey by Ken Douglas among 8,000 in-school adolescents, grades 9 to 13, found 27% had had lifetime ever-use of smoked ganja, a significant increase from the 20% reported in a 1986 school study. In the 1997 study 20% reported ever use of ganja tea. Turning to current use over the preceding 30 days, the study showed 8% had smoked ganja and 6% had had ganja tea.

Recent data coming out of Treatment and Rehabilitation Centres published in the National Council on Drug Abuse Infosum for October 2000 shows that some of the clients admitted with a history of smoking ganja had their first use as early as between 5 and 9 years old.

Of 282 clients who went into treatment for a ganja habit in 1999-2000, 4% started using the drug from age 5 to age 9, 26% from age 10 to age 14 and 3% from age 15 to age 19, that is one-third of them started smoking ganja at the age of 19 or below. These figures show the widespread use of ganja in Jamaica and the early age of initiation.

Other studies have sought to look at any link between traffic accidents, trauma and drug use. The role of alcohol is well recognised but the possible causative role of ganja is less clear. Francis et al. (1995), in a pilot study of alcohol and drug-related traffic accidents and deaths in two Jamaican parishes, found evidence of alcohol intake in 77.5% of fatalities and 35.5% had alcohol levels above the legal acceptable limits; 22.5% of road traffic fatalities tested positive for cannabis and 3.2% for cocaine.

McDonald et al. (1999) took sera and urine samples from 111 trauma patients seen at the Accident and Emergency Department of the University Hospital of the West Indies, Jamaica, over a three-month period. Alcohol levels were tested in the blood and the urine was tested for metabolites of cannabis and cocaine. Results showed 38% of patients negative for any drug, 62% positive for one or more drugs; 15% for alcohol only, 15% for alcohol and cannabis, 25% for cannabis only, 5% for cannabis and cocaine, 1% for cocaine only, and 1% for all three.

Many patients admitted to the psychiatric services on the island report ganja use. For example, approximately 60—80 % of males admitted to the Cornwall Regional Hospital Acute Psychiatric Unit in 1999 gave a history of ganja use, although this was not necessarily the reason for their admission (Abel 2001).

PHARMACOLOGY

Cannabis sativa contains 400 known chemicals. The family of chemically related 21-carbon alkaloids found uniquely in the cannabis plant are known as cannabinoids. There are sixty different cannabinoids. One of these, delta-9- tetrahydrocannabinol (THC), is the most abundant and accounts for the intoxicating properties of cannabis. THC dissolves readily in fat but not in water. When smoked, THC is rapidly absorbed into the blood stream, giving perceptible effects within minutes. When taken by mouth peak effect may not occur for hours but last much longer. The THC also persists in the brain longer than in the blood, so that psychological effects persist for some time after the level of THC in the blood begins to fall.

THC is widely distributed in fatty tissue of the body, whence there is slow release, thus producing low levels of THC in the blood for several days after a single dose, although there is no evidence that any significant pharmacological effects persist for more than 4-6 hours after smoking and 6-8 hours after ingestion.

It is now recognised that THC interacts with a naturally occurring system in the body, known as the cannabinoid system. THC takes effect by acting upon cannabinoid receptors. Two types of cannabinoid receptors have been identified, namely the CB1 receptors and the CB2 receptors.

CB1 receptors are present on nerve cells, in the brain and spinal cord as well as in some peripheral tissues; CB2 receptors are found mainly in the immune system and are not present in the brain (NCDA1998).

The CB1 receptors are distributed differentially in the various regions of the brain, in a pattern that is similar throughout a variety of mammalian species, including humans. Most of the receptors are in the basal ganglia, cerebellum, cerebral cortex and hippocampus. A rough correlation appears to exist between the distribution and some of the effects of cannabis. For example, binding sites in the hippocampus and cortex are linked to the subtle effects of cannabis on cognitive function, while those in the basal ganglia and cerebellum may be associated with cannabis-produced ataxia (WHO 1997).

From animal experiments, CB1 receptors seem to mediate pain relief, memory impairment, control of movements, lowering of body temperature and to reduce gut activity. It is also assumed that they mediate the intoxicant effects of THC (NCDA 1998).

Little is known about the physiological role of the more recently discovered CB2 receptors, found in macrophages (white blood cells) in the spleen, but they seem to be involved in the modulation of the function of the immune system.

The presence of this cannabinoid system has implications for further research into the effects of cannabis on the body and the potential beneficial uses of cannabis.

EFFECTS OF CANNABIS

Acute effects

A state of euphoric intoxication is induced. There is mild intoxication, relaxation, increased sociability, heightened sensory perception and increased appetite. In higher doses acute effects can include perceptual changes, depersonalisation and panic (WHO 1997).

Other behavioural changes associated with cannabis intoxication include loss of time sense, sensation of ‘high’, anxiety, tension and confusion (Matthew et al. 1993).

Intoxication with cannabis leads to slight impairment of psychomotor and cognitive function, which is important for those driving a vehicle, flying an aircraft or operating machinery. Subtle impairment of cognitive function may persist for twenty-four hours.

There is sufficient consistency and coherence in the evidence from experimental studies and studies of cannabinoid levels among accident victims to conclude that there is an increased risk of motor vehicle accidents among persons who drive when intoxicated with cannabis (WHO, 1997). Cannabis can impair various components of driving behaviour, such as braking time, starting time, and reaction to red lights or other danger signals. However, persons under the influence of cannabis may perceive that they are impaired and where they can compensate, they do so.

Such compensation may not be possible when they are presented with unexpected events and hence the risk of accidents remains higher following cannabis use (WHO 1997).

A study carried out on the effects of cannabis on aircraft pilot performance showed that cannabis use impaired flight performance at 0.25, 4, 8, and 24 hours after smoking. These results suggest that human performance while using complex machinery can be impaired as long as 24 hours after smoking as little as 20mg of THC, and that the user may be unaware of the drug’s influence (Leirer et al. 1991).

There is a short-term effect on the cardiovascular system. There can be an increase in the heart rate and lowering of the blood pressure. This would be of concern in persons with ischaemic heart disease (angina).

A single dose of cannabis for an inexperienced user, or an over-dose for a habitual user, can sometimes induce a variety of intensely psychic effects, including anxiety, panic, paranoia and feelings of impending doom. These effects usually persist for only a few hours.

Signs of intoxication include blood-shot eyes, lack of coordination, enhanced sensations and perceptions, increased appetite, dry mouth, possible dizziness and nausea.

Effects on the Brain–Psychiatric/Psychological

Cannabis (THC) is said to affect the neurons (brain cells) in the information processing section of the hippocampus, the part of the brain that is responsible for memory and the integration of sensory experiences with emotion and motivation.

Literature on both sides recognise that short-term memory can be affected in the acute phase of ganja intoxication. This does not seem to affect recall of previously learned items but does appear to interfere with the learning of new material. Researchers note great variation in results to cognitive testing and point out that individual response to marijuana varies considerably (Zimmer and Morgan 1997).

Marijuana’s effect on cognition in the real world seems to depend on the time and place people choose to use marijuana and the tasks they are performing. In the laboratory, marijuana temporarily impairs short-term memory and learning. In real world structured settings, such as the classroom, it is likely to have similar effects (Zimmer and Morgan 1997).

Several studies have shown that cannabis appears to increase the perceived rate of the passage of time. Cannabis is also known to impair psychomotor performance in a wide variety of tasks, such as handwriting and tests of motor coordination.

There is less agreement about the long-term effects of ganja on the brain. Some authorities state that chronic marijuana use interferes with the interplay of chemical and electrical impulses between brain cells, causes shrinkage and death of brain cells. However, other authorities point out that the experiments showing death of brain cells were carried out in animal models exposed to concentration of THC about 100-fold higher than even a heavy marijuana user would be exposed to. It is stated that in other studies exposing monkeys to amounts equivalent to 4-5 marijuana cigarettes a day for a year these findings could not be replicated (Zimmer and Morgan 1997). The early claims of gross anatomical changes in the brains of chronic cannabis users have not been substantiated by later studies with high-resolution computerized tomography, in either humans or primates (Rimbaugh et al.1980; Hannerz and Hindmarsh 1983).

It is felt that learned behaviours, which are dependent on the hippocampus, deteriorate after chronic exposure to THC and that chronic abuse of cannabis is associated with impaired attention and memory. It is also reported that prenatal exposure is associated with impaired verbal reasoning and memory in pre-school children (Abel 2001).

Zimmer and Morgan point out that during the past thirty years, researchers have found, at most, minor cognitive differences between chronic marijuana users and non users, and the results differ substantially from one study to another. Based on this evidence, it does not appear that long-term marijuana use causes any significant permanent harm to intellectual ability. Even animal studies, which show short-term memory and learning impairment with high doses of THC, have not produced evidence of permanent damage.

Studies (Fletcher et al. 1996) have shown that the long-term use of cannabis leads to subtle and selective impairment of cognitive functioning. Prolonged use may lead to progressively greater impairment, which may not recover with cessation of use for at least 24 hours (Pope and Yurgelum-Todd 1995) or 6 weeks (Solowij et al. 1991), and which could potentially affect functioning in daily life.

Not all individuals are equally affected. The basis for individual differences needs to be identified and examined. There has also been insufficient research to address the impact of long-term cannabis use on cognitive functioning in adolescents and young adults, and on different age groups and genders (WHO 1997).

The Diagnostic Statistical Manual IV for classification of disorders and diseases recognises the following conditions:

Cannabis Dependence
Cannabis Abuse
Cannabis Intoxication
Cannabis Induced Psychotic Disorder
Amotivational Syndrome
Cannabis Induced Anxiety Disorder
Cannabis Induced Mood Disorder.

Cannabis dependence is seen as compulsive, habitual use and not a physiological dependence or addiction. Tolerance to most of the effects of cannabis has been reported in individuals who use cannabis chronically (Abel 2001).

Studies conducted over many decades in a variety of settings have found that when high-dose marijuana users stop using the drug, withdrawal symptoms rarely occur and when they do, they tend to be mild and transitory (Zimmer and Morgan 1997). The presence of withdrawal symptoms is one of the markers for addiction. It is therefore felt that cannabis is a weakly addictive drug but does induce dependence in a significant minority.

However, in the WHO report, Cannabis: a health perspective and research agenda, it is stated that clinical and epidemiological research has clarified the status of the cannabis dependence syndrome. A reduced emphasis on the importance formerly attached to tolerance and withdrawal symptoms in diagnostic criteria for dependence has removed a major reason for scepticism about the existence of a cannabis dependence syndrome.

Research using standardised diagnostic criteria has produced good evidence of a cannabis dependence syndrome that is characterized by impairment, or loss of control over use of the substance, cognitive and motivational handicaps which interfere with occupational performance and are due to cannabis use, and other related problems such as lowered self-esteem and depression, particularly in long-term heavy users. As with other psychoactive substances, the risk of developing dependence is highest among those with a history of daily cannabis use. It is estimated that about half of those who use cannabis daily will become dependent (Anthony and Helzer 1991).

Since tolerance and withdrawal symptoms are still widely regarded as diagnostic criteria of substance dependence, it is worth noting that there is abundant experimental evidence of tolerance to many of the effects of cannabis. There is not yet universal agreement about the production of a withdrawal syndrome (WHO 1997).

Apart from the acute psychic effects noted previously, cannabis intoxication in some instances may lead to a longer lasting toxic psychosis involving delusions and hallucinations that can be misdiagnosed as schizophrenic illness. This is transient and clears up within a few days of termination of cannabis use.

It is well established that cannabis can exacerbate the symptoms of those already suffering from schizophrenic illness and may worsen the course of the illness (NCDA 1998; WHO 1997).

The occurrence of an "amotivational state" in long term heavy cannabis users with loss of energy and the will to work has been postulated. However some feel that this represents nothing more than an ongoing intoxication (NCDA 1998).

Studies of high school students show that heavy marijuana use is associated with academic failure. Heavy marijuana users have lower grades and lower career aspirations than occasional users or nonusers. Heavy marijuana users are also more likely than occasional users or nonusers to drop out of school before graduation. However, most high school students who use marijuana heavily were performing poorly in school before they began using marijuana. Most have a number of emotional, psychological, and behavioural problems, often dating back to early childhood (Zimmer and Morgan 1997). It is therefore possible that the underlying problems lead to the marijuana use rather than the marijuana being the cause of all the problems. When studies control for other factors marijuana use makes no significant contribution to high school student’s academic performance (Zimmer and Morgan 1997).

It is noted that there are a number of factors that influence the effects cannabis may have on an individual. These include:

• Potency of the cannabis (the THC content of marijuana is said to have increased from the 1960s to the present time and varies among different plants)
• The route of administration
• The smoking technique
• The dose
• The setting
• The user’s past experience
• The user’s unique biological vulnerability to the effects of cannabis.

Effects on other organ systems

Respiratory System

Tobacco smoking causes a number of lung diseases, including chronic bronchitis, emphysema and cancer. Except for their active ingredients–nicotine and cannabinoids–bacco smoke and marijuana smoke are similar with a greater concentration of the carcinogenic benzathracenes and benzpyrenes in marijuana smoke.

In the United States, marijuana smokers typically inhale more deeply and retain smoke in their lungs longer than tobacco smokers. As a result, marijuana smokers deposit more dangerous material in the lungs each time they smoke. However it is said to be the total volume of inhaled toxic material over time that matters and not the amount inhaled per cigarette. It is further postulated that even heavy marijuana smokers never reach the smoke consumption levels of heavy tobacco smokers (Zimmer and Morgan 1997).

Theoretically, the risks to the respiratory tract of smoking marijuana are similar to those of tobacco smoking. In human studies, it has been shown that the principal respiratory damage caused by long-term cannabis smoking is an epithelial injury of the trachea and major bronchi (WHO 1997). The alveolar macrophage, the key cell in the lung’s defence against infection, has been shown to be impaired by cannabis smoke in both animal and human studies (WHO 1997). Studies suggest that regular cannabis consumption reduces the respiratory immune response to invading organisms. Further, serious invasive fungal infections as a result of cannabis contamination have been reported among individuals who are immuno-compromised, including a series of patients who were affected by AIDS (Denning et al. 1991).

These findings suggest that persistent cannabis consumption over prolonged periods can cause airway injury, lung inflammation, and impaired pulmonary defence against infection. Epidemiological studies that have adjusted for sex, age, race, education, and alcohol consumption, suggest that daily cannabis smokers have a slightly elevated risk of respiratory illness compared to non-smokers.

Reproductive System

Studies, including a Jamaican study, have shown lowered sperm count and motility in ganja smokers compared to non-smokers (NCDA 2001). There is no demonstrable difference in testosterone level or levels of female sex hormones. In neither male nor female have researchers produced evidence of permanent harm to reproductive function from either acute or chronic marijuana administration. There is no convincing evidence of infertility related to marijuana consumption in humans (Zimmer and Morgan 1997).

Results from research looking at effects of cannabis smoking in pregnancy vary. Some reports point to an increased risk of early foetal death, decreased foetal weight and premature birth. In animal studies, THC has been shown to produce spontaneous abortion, low birth weight and physical deformity–but only with extremely high doses, only in some species of rodents, and only when the THC is given at specific times during pregnancy. Studies with primates show little evidence of foetal harm from THC (Zimmer and Morgan 1997).

There is reasonable evidence that cannabis use during pregnancy impairs foetal development, leading to a reduction in birth weight, perhaps as a consequence of shorter gestation, and probably by the same mechanism as cigarette smoking, namely, foetal hypoxia (WHO, 1997).

There is ongoing research, for example the Ottawa Prenatal Prospective Study, looking for possible effects of prenatal exposure to cannabis on later development. So far there is no consistent evidence of any significant difference in the development of children exposed to prenatal cannabis as against those not so exposed. The study suggests that any long-term consequences of prenatal exposure to the child are very subtle. (Fried 1980; Fried 1995).

Another study suggests that in utero exposure to cannabis can affect to some degree the mental development of the growing child (Day et al. 1994).

MEDICINAL USES OF CANNABIS

The medicinal uses of cannabis are well documented in the modern scientific literature. Using either smoked cannabis or extract preparations from the cannabis, researchers have conducted controlled studies.

The broad range of potential therapeutic applications of cannabinoids reflects the wide distribution of cannabinoid receptors throughout the brain and other parts of the body. The possibility of distinct subtypes of cannabinoid receptors and the probable development of new compounds to bind selectively to these receptors, as either agonists or blockers, may well open the door to the selective treatment of a number of disorders.

Areas in which cannabis has been shown to have therapeutic use are:

• Reducing nausea and vomiting
• Stimulating appetite
• Promoting weight gain
• Diminishing high intraocular pressure from glaucoma

There are also reports of use of cannabis for:

• Reduction of muscle spasticity from spinal cord injuries
• Reduction of muscle spasticity and tremors in multiple sclerosis
• Relief of migraine headaches
• Depression
• Seizures
• Insomnia
• Chronic pain

Although an anti-emetic effect of THC had been suggested as early as 1972, the first report of a placebo-controlled trial came in 1975 from one of the top oncology centres in the USA (Hollister 2001). An oral preparation, dronabinol, has been used especially in cancer chemotherapy patients for control of the side effects of nausea and vomiting. Although smoked marijuana is often preferred by the patients, whether it is superior to orally administered THC has not been tested in controlled comparisons (Hollister 2001). Smoked cannabis is more immediate in its effects than oral THC. Cannervert is also available for use in motion sickness.

The use as an appetite stimulant is of particular use in cancer and AIDS patients. In the USA, approximately 16 per cent of the total AIDS population suffer from the progressive anorexia and weight loss known as AIDS wasting syndrome. An open pilot study of dronabinol in patients with AIDS-associated wasting syndrome showed it effective in increasing weight as well as being well tolerated (Hollister 2001).

The international literature recognises the role cannabis can have in reducing intraocular pressure in glaucoma. Local researchers, Professor Hon. Manley West and Dr. George Lockhart developed the extract Cannasol, which is now registered and used in the treatment of glaucoma. Another product, Asmasol, was developed based on the Cannasol research, for the treatment of cough, cold and bronchial asthma. There was also work done by the late Professor Sir John Golding and Professor West towards developing a protocol for use of a cannabis preparation in the control of pain in terminally ill patients (NCDA 1998).

In Europe, cannabis has been anecdotically reported to help in the symptoms associated with multiple sclerosis. Published trials have shown some positive results especially for spasticity, the pain associated with spasticity, tremor and urinary bladder control (NCDA 1998). An antispasmodic action of THC was confirmed by the first clinical study (Petro and Ellenberger 1989).

There is undoubtedly need for much further research into the potential of the medicinal use of cannabis and its extracts.

CONCLUSION

Information on the effects of cannabis on physical and psychological functioning has increased greatly, as has knowledge of the extent and patterns of use. However, there is still a need for further research in several important areas, including clinical and epidemiological research on human health effects, chemistry and pharmacology, and research into the therapeutic use of cannabinoids. Moreover, there are important gaps in knowledge about the health consequences of cannabis use (WHO, 1997).

There needs to be continued objective research and ongoing public education about all aspects of Cannabis sativa use.

CHAPTER 3

THE FINDINGS

A. WIDE PUBLIC CONSULTATION

The overwhelming majority of persons appearing before the Commission feel that ganja should be decriminalised, but are united in restricting its use to private space and to adults. Their arguments are presented in this section.

(1) personal benefits

(2) God and the natural order

(3) not a crime

(4) inequity

(5) alleviation of stress

(6) criminalising the non-criminal

crack/cocaine

B. VIEWS OF EXPERTS AND INFLUENTIAL LEADERS

(1) Professional and volunteer workers with Addicts

1. the fact that ganja is not manifestly harmful for the majority of people who use it in one form or another;
2. the inability to suppress it by legal means;
3. the wasteful use made of the criminal justice system, in terms of its human and financial resources; and
4. the compromising of the anti-drug message.

(2) Counselling Psychologist

(3) CODAC

Under the National Council on Drug Abuse, scores of Community Development Action Committees (CODACs) operate at community level. The Commission heard from individual members in several areas of the country, all of them supporting decriminalisation. One of the most persuasive, however, was the Coordinator of a CODAC from a working-class community in Kingston.

"The community supports conditionally the decriminalisation of possession of ganja for personal use, not because it is harmless–all smoking is harmful, but under the present law otherwise law-abiding persons are treated as criminals. The smoking of ganja should be a health concern and not a criminal matter; not an act for punishment but a matter of medical instruction and help. In addition, for every individual arrested and charged, several are not apprehended. One youth is held at a corner and taken to the police lock-up, but hundreds of individuals blow ganja smoke in the face of other spectators at the National Stadium unchallenged. Feelings of partiality and injustice are harboured and people lose respect for the system of law."

The Coordinator addressed several critical issues. One was the gap created between the community and the police. Young men refrain from joining the well organised Police Youth Clubs because as ganja smokers the clubs bring them too close to the police, who they feel more easily frame a smoker than a non-smoker.

The women also–mothers, sisters, girlfriends–dislike the police for harassing their sons, brothers and spouses over a splif "while they, the police, are having dealings with the ganja men."

More critical is the need to look beyond the fact that young people are using cannabis, to why they are using it. Faced with deep emotional and psychological problems, some of them peculiar to their stage of development, others to their social and economic status, they turn to ganja.

The CODAC’s answer is a strategy that focuses not on the evils of ganja but on demand reduction, in the context of attending to the root problems. In this way the respect of the youths is won and they are inclined to take advice. Such a strategy, however, necessarily demands decriminalisation as the first step, before being able to tackle the emotional and social problems. Hence, the CODAC’s recommendations:

(4) The National Council on Drug Abuse (NCDA)

(5) Medical Association of Jamaica

(6) The Chief Medical Officer

(7) Political Leaders

The Commission presents the views of two leaders in representative politics, one a medical practitioner and member of the Jamaica Labour Party (JLP), the other a practicing attorney and member of the People’s National Party (PNP).

1. According to Dr Horace Chang, from a professional point of view "I don’t see the risk involved in the use of ganja justifies it being made an illegal drug." He reminded the Commission that from as early as the 1970s a youth organisation he had established within the JLP called for decriminalisation. This position was taken to Parliament by Dr Percy Broderick, and resulted in the setting up of a Joint Select Committee of the House and Senate. Nothing came of it, however, so "we have kind of come full circle twenty-three years later".

   The medical problem with ganja, as far as he saw, was ganja

   psychosis, which affected no more than 0.5% of users. Most legal drugs had side effects, anyhow, often more serious and far-reaching than ganja. It was better, he felt, to educate around the risks than to ban wholesale a substance that was quite clearly cultural.

   He raised what he saw as a far greater problem, that of cocaine, and shared with us his opinion that for the amount of cocaine seemingly passing through Jamaica, the number of persons addicted ought to have been greater. That it was not he attributed to ganja. "Culturally the strongest opponents [of cocaine] I find at the street level and in our poorer socio-economic group are people who actually use ganja. I find [they] just take a position that the ‘white lady’ will ensnare them". In other words, the culture around ganja functions as a buffer against the spread of cocaine.

2. According to Mr Ronald Thwaites, ganja use by the young people in the constituency he represents in the city of Kingston, "is very much an antidote to boredom, a sense of uselessness and an inability to, by other means of occupation and recreation, actualise [their] best dreams."

   He cites the example of some young men taken from his communities, the type who would have been smoking ganja, many of them with criminal records, put through the National Youth Service programme of personal discipline and social reconstruction, and who were so completely rehabilitated, that they were able to move into positions of assistant sports masters in primary schools. Thus, once gainfully employed they have little need ganja.

   For him, the prosecution of ganja, especially with respect to small

   quantities, and the way the interdiction is carried out, only serves to bring the law into disrepute. "One thing that the law must never do is fly in the face of the mores of a people for an extended period of time, where despite consistent interdiction, education and a standard being maintained by the law, it is still consistently at odds with their dominant social pattern".

   Of far greater concern is crack/cocaine. "If I", said Mr Thwaites, "were ever to resile from being an abolitionist [as far as capital punishment is concerned], it would not be so much for murder as for the purveyors of the hard drugs, and cocaine especially. Those who spread cocaine in this community and crack, are not only murderers, they are mass murderers. And it is a reproach to the system of Government and the canons of law-abiding behaviour that we spend our time and our money voted for national security running after small quantities of ganja when I can identify for you–and I have identified for the police and the Ministry of National Security, at least four crack houses in this constituency, and nothing has been done!" This double standard, he was sure, was not lost on the people. It set "their teeth on edge against the law, against the whole tissue of social authority."

   He concluded that, though not personally in favour of the use of ganja, it ought no longer to be proscribed by criminal law.

(8) Law Enforcement Officers

Also not to be ignored are the views of law enforcement officers. We first interviewed a retired Assistant Commissioner of Police, and a Sergeant of Police.

1. The retired Assistant Commissioner of Police, with forty active years in the JCF at all levels, interacting with the general public, observing the changes in beliefs over the period, and being party to the enforcement efforts before, during and after the period of mandatory sentencing, comes to the position that the possession of cannabis below a certain weight should not be a crime. That it has remained for so long on our statutes as a crime, which, aside from the sentence one serves, remains on one’s record "is one of the most destructive aspects", one that has "a most deleterious effect on our young people".

   In support of decriminalisation for private purposes, he is of the opinion that the relations between police and citizen, in particular the poor, was flawed by our failure at Independence to inculcate within the Force "a deep respect for the individual and the individual’s home, however humble". The power to enter and search a home is a power that normally should not be granted easily in legislation to the law enforcers.

2. "To be frank", according to a Sergeant of Police of a very large station, "for the small amount I think it costs the Government more to bring a person to court, than it costs the person. Because the paper that you write it on maybe costs more."

(9) His Grace the Most Reverend Roman Catholic Archibishop of Kingston

(10) His Lordship, the Anglican Bishop of Jamaica

(11) Lord Anthony Gifford

(12) The Rastafari

(13) Independent Jamaica Council for Human Rights (1998) Limited

(14) Dr Ronald Lampart

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.

The Laws

There are six Acts relevant to ganja in Jamaica, all of them the results of ratifying certain United Nations Conventions. The Acts are:

1. The Dangerous Drugs Act
2. The Money Laundering Act
3. The Drug Offences (Forfeiture of Proceeds) Acat
4. The Mutual Assistance (Criminal Matters) Act
5. The Sharing of Forfeited Property Act
6. 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:

7D. Every person who–
1. being the occupier of any premises knowingly permits those premises to be used for the smoking of ganja; or
2. is concerned in the management of any premises which he knows is being used for such purpose as set out in paragraph (a); or
3. has in his possession any pipes or other utensils for use in connection with the smoking of ganja; or
4. smokes or otherwise use ganja,

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:

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.

Legal Expertise

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.

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.

1988 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.

1. 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.
2. 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.
3. 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.

Human Rights

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:

(c)the right to freedom of conscience, belief and observance of religious and political doctrines;

(k) the right to enjoyment and beneficial ownership of property;

(l)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:

(a) it requires or authorizes anything to be done in contravention of any provision of this chapter [i.e. the Charter];
(a) it prohibits the exercise of any right or freedom protected by this chapter; or
(b) 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–

(a)in the interests of defence, public safety, public order, public morality, public health…;
(d)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 (9^th 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 31^st 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.

CHAPTER 5

CONCLUSIONS AND RECOMMENDATIONS

The National Commission on Ganja accepts that ganja is not entirely safe. Despite its proven folk medicinal qualities, its use can be injurious to health. There is evidence that for those who smoke it the inhalation of tar and other compounds can affect the lungs; that users can experience short term memory loss and delayed reaction time; and that among young people it can retard the learning process. There is also documented evidence that the substance can produce in some people a mentally disturbed state of ganja psychosis.

Notwithstanding these and other ill effects, the Commission is of the view that many, if not most, persons who use ganja in moderation suffer no apparent short or long term debility. Not only that, but its reputation among the people as a panacea and a spiritually enhancing substance is so strong that it is must be regarded as culturally entrenched. As a result, the practice of criminalising the users of small quantities does far more harm than good to the society as a whole. The Commission is mindful also that there are legally available substances that have been shown to have physiological and psychological ill-effects that, based on current evidence, are more injurious than those of ganja. Such is the case with alcohol and tobacco.

It is the view of the Commission that the punitive sanctions administered by the justice system to users of small quantities is not only unjust but is a major source of disrespect and contempt for the legal system as a whole. Moreover, the punishment meted out to such offenders has not had and is not likely to have the desired effect of a deterrent. Administering the present laws as they apply to possession and use of small quantities of ganja not only puts an unbearable strain on the relationship of the police with the communities, in particular the male youth, but also ties up the justice system and the work of the police, who could use their time to much greater advantage in the relentless pursuit of crack/cocaine trafficking.

Accordingly the Commission recommends as follows:

1. that the relevant laws be amended so that ganja be decriminalised for the private, personal use of small quantities by adults;
2. that decriminalisation for personal use should exclude smoking by juveniles or by anyone in premises accessible to the public;
3. that ganja should be decriminalised for use as a sacrament for religious purposes;
4. that a sustained all-media, all-schools education programme aimed at demand reduction accompany the process of decriminalisation, and that its target should be, in the main, young people;
5. that the security forces intensify their interdiction of large cultivation of ganja and trafficking of all illegal drugs, in particular crack/cocaine;
6. that, in order that Jamaica be not left behind, a Cannabis Research Agency be set up, in collaboration with other countries, to coordinate research into all aspects of cannabis, including its epidemiological and psychological effects, and importantly as well its pharmacological and economic potential, such as is being done by many other countries, not least including some of the most vigorous in its suppression; and
7. that as a matter of great urgency Jamaica embark on diplomatic initiatives with its CARICOM partners and other countries outside the Region, in particular members of the European Union, with a view (a) to elicit support for its internal position, and (b) to influence the international community to re-examine the status of cannabis.

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