intervene because of the saving law clause, consequently calling upon the Legislature to make the necessary changes so as not to offend human rights.190 8.8. Moreover, not all CARICOM countries are hindered by these saving law clauses. In the case of Francis v AG of Antigua and Barbuda,191 the court noted that this restriction did not apply. The argument here turned on whether there was enough evidence to demonstrate that the law was not reasonably required in the interest of public health and public safety, the test for constitutional propriety. The reasoning in Forsythe similarly relied on the element of a public health justification to uphold prohibitive laws on cannabis. However, the decisions in both cases, in light of the scientific and medical evidence about cannabis properties today, is now suspect. Moreover, in Forsythe, the court refused to consider the health benefits or otherwise of cannabis and further, did not balance the use of cannabis against any harms perceived. It is unlikely that if argued today, in the light of the considerable medical advancements, that these public health rationales would be on firm ground to deny human rights, particularly since a high threshold is required to deny constitutional rights. 8.9. While the applicant in Francis did not win his case, the decision scored an important victory for Rastafarianism as the court officially recognised it as a religion. This was in contrast to earlier cases like Grant and Chin v The Principal of John A Cumber Primary School et al.192 where the Grand Court of the Cayman Islands inquired into whether Rastafarianism was a religion, and came up with a negative.193 8.10. The recognition of Rastafarianism as a religion in Francis paves the way for a stronger case on human rights to be made and also provides the basis for law reform to make special provisions for the Rastafarian religious practitioners.
Proportionality in Administration of Justice Approaches to Cannabis
8.11. When we examine the imperatives of justice and equality, one of the key rights principles that comes to the fore, is that of proportionality. Public law has embraced this principle as fundamental to fairness in the administration of justice. Proportionality, which mandates the legal system to take the approach which is least invasive of human rights (and not use a sledgehammer to kill an ant), is pertinent to the marijuana question and the overall concerns of inequality, inherent bias and unfairness in the legal system. The treatment of cannabis/ marijuana in the legal system and administration of justice offends the principle of proportionality in several ways. First, it is clear that Caribbean citizens can have their fundamental rights disturbed in much more deep and harmful ways for smoking a ‘joint’ that they can for what most will agree is more harmful and serious offences against society, including assault and the like. 8.12. Secondly, the fact that cannabis/ marijuana users are penalised severely when users of alcohol and tobacco, proven to be harmful substances, are not, offends the fundamental fairness and proportionality objectives of the justice system. This inconsistency undermines the legitimacy of the system. In addition, the harsh penalties that cannabis/ marijuana attracts, often with no flexibility or discretion, violate the proportionality principle and core tenets of the legal system. The fact that substances more harmful than cannabis/ marijuana, like cocaine, are scheduled similarly under law, is also disproportionate and unfair. 8.13. Further, as discussed above, the fact that, within drug policy enforcement, there are discriminatory enforcement patterns compromises the fairness of the system. It is felt that, typically, it is the users and not the traffickers or big time dealers that the criminal justice system confronts. This is a concern for all kinds of drug offences – that it is the ‘little man’ who is persecuted and prosecuted, while the ‘fat cats’ remain free and undisturbed. See Johnson v Balwant, for example . . . when saved laws in Trinidad and Tobago which permitted female police officers to be dismissed because of family responsibilities, were complained about by the Court, but it noted that it could do nothing because of the saving law clause and called upon Parliament to change the law. 191 Civil Suit No. 191 of 1996, dec’d September 2001, high Court of Antigua and Barbuda. 192 29 (1999) CILR 307. 193It viewed Rastafarianism more in the nature of a ‘socio-political movement than a religion,’ emphasising an approach which relied on faith and worship of a particular God or deity in defining a religion. 190
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