Legalize Ganja Campaign
Tuesday November 25, 1997
Jamaica Daily Observer. November 25, 1997.
GOOD HERB SMELLS BETTER THAN ROSES
Barbara Makeda Blake Hannah
The report has
finally been handed down from Chief Justice Lensley Wolfe, Justice Ellis and Justice
Clarke, giving the reason for their dismissal of the challenge by Dr. Dennis Forsythe of
the constitutionality of the Dangerous Drugs Act where it applies to the smoking of ganja
by members of the Rastafari faith as part of their religious sacrament. This case
was heard in the Supreme Court, May 12 to 16, 1997 and the justices' report was delivered
on October 27.
As one who attended the entire four days of submissions, it is a report I have eagerly awaited. Sitting in the courtroom before a stage centred on the highest lawmen in Jamaica, my assessment of the three bewigged faces convinced me even then that closed minds had been brought to the issue. The determined set of jaws, when Dr. Forsythe presented certain aspects of his testimony, made it a foregone conclusion what the decision of the learned judges would be.
It only remained to have them put their reasons in writing, so that the grounds for rejection of this bid for religious freedom would be placed in the open - not remain merely in the conversation and decision of three men.
Beginning the second paragraph of his report, Justice Wolfe displayed the insulting and arrogant attitude he brought to a case without a criminal, the exercise of a citizenšs right to question the propriety of the rules by which he is governed, when he writes:
Let me at the outset put to rest the fallacy which the applicant and his sympathisers have sought to convey to the public of Jamaica through the electronic and printed media of Jamaica. This case is not about whether ganja is more or less harmful than tobacco or alcohol. Neither is the court concerned with the possible economic benefits which could be derived from the legalising of ganja ... those matters are red herrings drawn along the trail with the sole object of confusing the issues.
At no time did
Dr. Forsythe seek to convey anything surrounding his case except its religious
justification. Indeed, the entire presentation was based around this rastafarian
religious position, as Dr. Forsythe's petition claimed that his arrest under the Dangerous
Drugs Act contravened his rights in the constitution to his religious observation and
sacrament. The fact that there was opportunity to reconsider the Dangerous Drugs Act
in light not only for the religious reasons presented by Dr. Forsythe, but also because of
its therapeutic and economic benefits, was included as support information to convince the
court that it - as the supreme head mandated to administer Jamaican law - should recommend
with justification a rethink of this dated, useless and counter-productive law.
Justice Wolfe's most conclusive statement places responsibility for the law at the feet of government, saying:
These arguments are more properly advanced before the Bar of Parliament, in an endeavour to convince the legislators on the question of legalising ganja.
That is definitely a route that will and must be taken, but that does not negate the validity of Dr. Forsythe challenging as unconstitutional a law, the breaking of which placed him before the courts, over which Mr. Wolfe is the Chief Justice. As Justice Wolfe accurately continues:
The issue is not the beneficial or deleterious effect of the "weed", but the constitutionality or unconstitutionality of the Dangerous Drugs Act as it affects the personal use of the "weed", or more appropriately, the "herb".
(Knowing that to
be the more appropriate term, Justice Wolfe nevertheless presents his insulting choice of
words, typical of the tone and attitude of a man who is supposed to be unbiased,
displaying his contempt of the case and the waste of time he considered it to be.
Elsewhere in the report he refers to Dr. Forsythe as a "rastafarian"
three times in a paragraph, where he would not have written "Catholic" or
He later concedes that:
....the applicant's challenge is based upon the premise that these previous of the Act deny him the right to practise his religion as a rastafarian. The provisions, the applicant contends, are a denial of the constitutional right to freedom of conscience as guaranteed in Section 21(1) of the Jamaican Constitution...
decisions in Australian and Canadian courts, Justice Wolfe informs us that in 1974
"Lord Diplock opined that the enactments of the Dangerous Drugs Act were legislated
in the interest of public health."
Obviously Justice Wolfe feels that this decision was so correct that, 23 years later, despite the weight of evidence continually being presented in Jamaican courts that the law needs revision and change, in his opinion the law should stand. He asks: "On what basis could the court find the sections repugnant to the Constitution? Dr. Forsythe's presentation did not provide a basis, thorough though it was."
Justice Wolfešs logic continues:
The Dangerous Drugs Act was first enacted in 1924 and rastafarianism emerged after that date, rastafarianism emerged against the background that the personal use of ganja was prohibited. The enactments of the statute are not aimed against the practise by the applicant of his religion. He is free to practise his religion. The applicant's contention that he must be free to practise his religion unhindered is untenable. His understanding of the freedom of conscience is misguided.
Here follows one of the most misguided, and dangerous, arguments presented by the Supreme Court, when Wolfe illogically states:
Taken to its logical conclusion, it would mean that the offering of human sacrifice in the practice of a religion would be unobjectionable.
ridiculous. First, because it opposes the most basic premise of law, that is, that
each case must be tried and judged on its own merits.
Moreover, all world religions share the same fundamental laws against what can be termed "the seven deadly sins" and by this yardstick a religion can be judged. The rastafarian religion has been measured by this same yardstick by eminent international theologists, sociologists, authors and others, and judged to be a religion in its own right. That Justice Wolfe - as head of a legal system which has given the formerly racist and polygamous Mormon Church full rights to practise as a religion in Jamaica - should now seek to equate rastafarianism with the possibility of a human sacrifice religion, demonstrates again the contemptuous attitude and disrespect for justice which nourished the Supreme Court verdict, and which Justice Wolfe has amply displayed in recent times.
Quoting an Australian court decision, Justice Wolfe agrees that:
the controversy before the court is a legal controversy. It is not for this or any court to prescribe policy or to seek to give effect to any views or opinion upon policy. (Why not?) We have nothing to do with the wisdom or expediency of legislation. (No? Then why and how to legal matters come before the Supreme Court?) Such actions are for parliament nd the people.
Thus washing his
hands of the matter, Justice Wolfe completes his statement.
Justice Ellis quotes in his submission a case concerning a dreadlocked lawyer who had been refused permission to practise in Zimbabwe because his hairstyle contravened the court's mode of dress. The court agreed with his challenge of the contravention of his constitutional right to religious freedom, saying, however, that:
...if the refusal to admit the applicant to practise were based on the authority of any law, the refusal would be unchangeable constitutionally
I therefore adopt the decision of the Zimbabwe Supreme Court and in applying it to this case, I find that against which Dr. Forsythe complains was done under law and is saved by Section 21(6) of the Jamaican Constitution.
This is the same
section which Dr. Forsythe challenges, so we are back to the beginning - again.
Justice Clarke, in his section of the report, declares that:
In light of the unchallenged and compelling evidence, I am prepared to hold that the practice of his religion involves the personal and sacramental use of ganja and chillum pipe.
But quoting the same Section 21(6) of the Constitution which Forsythe's challenge desires to change he concludes:
Whilst the right to freedom of religion including the right to practise it is a fundamental right, it is not absolute. That is why the courts of justice may uphold the constitutionality of laws or acts done ... if such laws satisfy the criteria set forth in the subsection ... the courts must, on the other hand, be prepared to strike down as unconstitutional, laws which infringe religious freedom...
Forsythešs request, that the court strike down this unconstitutional section of the law.
However, Clarke maintains that Forsythešs arrest under the Dangerous Drugs Act.
...Was done under law and is saved by Section 21(6) of the Jamaican Constitution...
In other words,
Justice Ellis is upholding as correct the same Section which Dr. Forsythe claims infringes
his freedom to practise his religion - which Justice Ellis admits "involves the
personal and sacramental use of ganja and chillum pipe." In other words, he is
saying: Yes, the law is wrong, but I support the law.
Displaying once again the total unconcern of these senior legal luminaries for the weight of evidence supporting the positive therapeutic benefits of ganja reported daily in the media, Justice Ellis boldly states that:
The purpose of the act ... has been neither religious nor sectarian. It remains aimed at promoting public health and public safety...
without explaining what public health is endangered by its
use - especially as a religious sacrament - or how its use contravenes public safety,
except where users are liable to be subjected to police brutality for using ganja.
As Justice Clarke concludes: "So, despite his valiant and, I believe, sincere attempt before this court, Dr. Forsythe has a claim for 'constitutional exemption' from otherwise valid legislation."
Thus ended a modern, professional, legally technical and morally-just motion for recognition of the rastafarian religion, dismissed on the basis of a 50-year-old law, and justified by a British Law-Lord's judgement made a quarter century ago.
Since submission of his case to the Supreme Court and its dismissal, Dr. Forsythe has been found guilty of possession of less than one ounce of ganja and a chillum pipe; he has been fined $600 and is now a convicted criminal. He has also recently undergone triple by-pass open heart surgery, from which he is recovering well, thanks - he claims - to the continued therapeutic benefits of his use of ganja.
The next step is to take the issue to Parliament, and request a debate by all sides of the House on this most important Jamaican law. It is still acknowledged that rastafarian human rights are continually being denied by the continued and determined efforts by legal, social and political dinosaurs to denigrate and ignore the reality of the religion.
By so doing, these dinosaurs demonstrate their inability to exercise with justice the god-like power they have been given, and make a mockery of the so-called democracy in which we live.
The judgement goes down as a pyrric victory, in which the winner loses all glory, respect and honour, while the vanquished emerges smelling like a rose - or better yet, like a good draw of fine herb.
Legalize Ganja Campaign
P O Box 357
Jamaica, West Indies.
LEGALIZE GANJA CAMPAIGN [Jamaica]
MISSION: To campaign by all legitimate and democratic methods to bring
about reforms in the laws of Jamaica relating to ganja, and in particular to secure that
no person should be punished under law for simple possession, use or cultivation of ganja.
DIRECTORS: Sandra Alcott . Paul Chang . Sydney daSilva . Dr. Dennis Forsythe . Lord Anthony Gifford . Barbara Blake-Hanna . Antonnette Haughton-Cardenas . Dr. Ronnie Lampart . Junior Manning
TEL:  924-1787 FAX:  924-2500 E-MAIL: email@example.com
MAIL: POB 357 . Kingston 10 . Jamaica . West Indies