REFLECTING ON THE CRIMINAL REGULATION OF MARIJUANA

I: Cancer, drugs and the long arm of the law

On more than one occasion Helen Suzman spoke out against arbitrary and abusive laws criminalising the production and use of marijuana. In this series of briefs, we revisit these issues in three parts. In the first brief, Matthew Kruger provides some context, by commenting on the prosecution of a married couple for their production and personal use of medical marijuana.

He also explores the neglected value of freedom, explaining that sometimes the state can only fulfill its duty to respect and protect our rights by leaving us alone. In the second brief, Arvitha Doodnath considers the science relating to and social impact of the marijuana and debunks some common myths. The series concludes with Kimera Chetty considering how we should go about regulating actions that do in fact negatively affect the interests of others, but whose criminal prohibition would also cause harm to individuals and the community.

Introduction

Mrs. Smit [1] has been terminally ill for more than six years. She suffers from chronic pain and illness. Ordinary pharmaceutical drugs have been ineffective in diminishing the symptoms of her cancer. After doing some research about alternative medicines, Mr. Smit, her husband, began cultivating marijuana at their home. Mrs. Smit used the produce for medicinal purposes for about five years. It has been effective in sustaining her life, improving her prognosis, and providing her with a quality of life that was unmatched by legally sanctioned treatment.

In May 2014, following a police raid, they were charged with possession and dealing of cannabis (the latter charge based on a legal presumption, rather than actual evidence).

The NPA decided to prosecute them. For growing a plant that millions of South Africans, tens of millions worldwide, have at some stage quite openly smoked or ingested, they face the full might of the law. A cancer patient is suffering the indignity of criminal prosecution for doing what was necessary to stay alive, to lessen her pain. A husband is facing prosecution for doing the little he could to care for the woman he loves. [2]

If the law can be an ass, then so can its agents. What were the police and prosecutor thinking?

Two concepts of freedom and two concepts of rights

One of the arguments that their lawyers, who are acting pro bono, have raised in defence is that the absence of any exception for situations of this kind is unconstitutional. They argue that the law limits Mrs. Smit’s right to dignity, life, healthcare and control over her own body. Legally, morally and emotionally, these are powerful arguments. It is difficult to see the courts, in good conscience, not managing somehow to find in their favour.

In this brief, this litigation is used as the springboard for exploring a more general issue, namely, the legitimate reach of the law to regulate our actions. There are many ways to approach such a controversial issue, but the focus here is on a concept, value and right that has unfortunately been somewhat neglected for the last while: freedom.

In an early decision of the Constitutional Court—Ferreira v Levin—Justice Laurie Ackerman penned a judgment that still has few rivals when it comes to philosophical insight and analytical rigour. [3] In it, he explored the nature, meaning and extent of the constitutional right to freedom and security of the person. Relying on the work of Kant and Isaiah Berlin, he distinguished freedom from the conditions that must exist before this freedom can meaningfully be exercised. Whilst the Constitution obliges the state to take positive steps to ensure that each person can live a meaningful life, it cannot interfere with the choices that we make when exercising our freedom. This latter, negative, freedom is not unlimited, but extends only so far as its exercise is consistent with the equivalent freedom of others.

In short, the Constitution empowers and disables the state at the same time; and though we are free to act as we think best, to not have obstacles to possible choices and activities placed in our way, this freedom is always subject to the equivalent freedom of others.

Liberals often rely on these ideas when they criticise state action. Sometimes their arguments, even when well-made, confront a tough question: ‘When is the exercise of a freedom consistent with the equivalent freedom of others?’ The question is important, for the answer bears on what the state legitimately can do when it is trying to create the conditions in which its citizens can flourish. It is difficult, though, for various reasons—in particular because there is more than one way to approach the question. In what follows, two such approaches are considered, both of which emphasise the concept of rights.

Like all political concepts, the nature of rights is disputed. Two popular accounts are provided by Joseph Raz and Ronald Dworkin. According to Raz, a person has a right if her interests are such that they justify imposing a duty on another. Bound up with the idea of rights, therefore, is the idea of interests. If we can identify a person’s interests, we will be able to determine the content of their rights. Dworkin, contrarily, thinks that rights act as ‘trumps’. Ordinarily, laws and other political acts must serve the interests of a community—they must be in the public interest. What distinguishes rights from related concepts, however, is that they prohibit actions that might achieve this goal. They trump laws and policies that would ordinarily be desirable—that would be in my, your or our interests.

In his judgment, Ackerman J endorsed the notion that the rights in the Constitution must be understood in light of the interests that they are meant to protect. This notion lends itself to Raz’s account of rights. It also suggests how to go about answering the question as to when an exercise of freedom is consistent with the freedom of others.

If rights reflect important individual and group interests, it will be rare that one set of interests does not conflict with some other set. This is recognised by Ackerman J, who dismissed the idea that rights can be fully harmonised. When interests conflict they must be balanced against each other, as envisaged by section 36 of the Constitution. The outcome of this exercise determines the scope or extent of our rights. Always relevant to an exercise of negative freedom, therefore, is the affect an action has on the state’s efforts to comply with its duties under the Constitution—such as the duty to provide ‘access to health care services’, which it ‘is obliged to provide and to carry the costs of, if necessary’. [4]

This approach to the idea of freedom is reflected in many subsequent judgments, but it is not the only way to deal with exercises of freedom that affect others. An alternative, suggested by Dworkin, would be to say that certain actions, no matter their impact on particular interests, cannot be prohibited. Since they cannot be prohibited, there is no need to balance conflicting interests. In fact, legally speaking, there is no conflict at all. Since rights trump interests—that is, because rights must be satisfied before we consider interests at all—the issue as to whether a particular action can legitimately be prohibited is resolved without having to explore the relative significance of different interests.

Whilst this approach has not been the preferred one, it has not been explicitly ruled out. Its fate has been one of neglect, not rejection.

This alternative approach, arguably, provides a better account of certain constitutional rights, such as the right to life, the right not to be subjected to slavery, and the freedoms of conscience, religion, thought, belief and opinion. This claim cannot be justified in this brief, but intuitively it seems perverse to say that the right not to be a slave, the right to be alive, and the right to think, rest on the outcome of a balancing of conflicting interests. There is no balancing in such cases for these rights, or at least aspects of these rights, are absolute. They are absolute because they are constitutive of our humanity. Without them, talk of interests does not make sense. By their nature they preclude any examination of the relative importance of conflicting interests. As such, they trump otherwise desirable goals, such as maximising the interests of individuals and groups.

This is not to say that all rights act as trumps. Nor does it mean that a right can exist only as a trump, or only as a reflection of an important interest. Rights can have multiple aspects, some grounded in interests and others that trump an examination of such interests. The two concepts of rights discussed are not mutually exclusive. [5] That said, it is important to know which rights, or aspects of these rights, act as trumps and which only reflect important interests. To see why, let us return to the Smit litigation.

Regulating the production, use and distribution of marijuana

One of the defences raised by their lawyers is that the criminalisation of marijuana limits Mrs. Smit’s right to have control over her own body. This right is codified in section 12(2)(b) of the Constitution. It is preceded by the more familiar right of persons to make decisions concerning reproduction, and it is followed by the right not to be subjected to either medical or scientific experiments without consent.

How should we understand this trilogy of rights? Do they reflect important interests? Of course they do. But, do they do more? Do they also establish absolute limits on what the state can do when trying to fulfill its positive obligation to respect, protect, promote and fulfill the rights in the Bill of Rights?

These rights are borne of a history of exploitation of the bodies and minds of vulnerable persons and groups—always, so it was claimed, for the sake of the common weal. The Constitution, however, rejects the treatment of persons in this way. As creatures of dignity, we cannot be treated merely as means, or as being incapable of deciding our own fates. To treat us in this way is to deny our humanity. These rights, or aspects of them, exist as absolute limits on what the state can do to us, or do for us. They limit what the state can do even when it is acting in good faith, that is, when it is trying its best to promote the interests of an individual or the interests of the public.

The state is not always its citizens’ keeper.

If this is correct, what does it mean for the regulation of substances like marijuana? As a general rule, the state may not prohibit production or use, save where this is necessary to ensure others’ freedoms. There are four related points to note in this regard.

1. Only other ‘trumping rights’ are relevant when determining the legitimacy of regulations of the right to control over one’s body. [6]

2. Assuming it has physical and/or psychological effects that warrant active concern on the part of the community, this alone does not empower the state to prohibit its personal use. This is despite its duty to provide healthcare, and the possibility that use might burden its efforts to do so—recall that the right to have control over one’s body trumps the positive (interest-based) duties of the state. [7]

3. If it is addictive, the state may interfere with personal use only if it causes actual harm of the type contemplated above in (2), and if the addiction has disabled the capacity of a person to make a rational, informed choice about subsequent use.

4. If use of marijuana is harmful and addictive in the ways discussed in (2) and (3) above, regulation of its distribution to others would be legally permitted.

If these points are correct, the existing legislative scheme regulating the production and use of marijuana is probably unconstitutional. Undoubtedly, the contemplated prosecution of the Smits entails an unconstitutional limitation of their rights.

Conclusion

In a community that is beset by so many social ills, where centuries of historical wrongs continue to exert enormous influence on the present, and in which economic injustice is constitutive of our daily lives, it is expected that lawyers, activists and academics have focused on what positive steps can and should be taken to cure these ills, rectify such wrongs and remedy this injustice.

As is often the case, when we focus our attention in this way, we sometimes neglect other related issues. Emphasis mutates into priority, followed closely by our mistaking an important insight as the whole truth. Such might well be the fate of the value, right and political concept of freedom. We have spent so much time talking about what the state must do, we sometimes forget that there are certain things that it cannot do; or we forget the reasons why it cannot do these things. We have overlooked the fact that for the state to respect and protect our rights, for it to treat each of us as a creature of dignity, it must sometimes leave us alone.

When we neglect or overlook issues in this way, injustice is never far behind. The prosecution of the Smits is not a case where the law is helpless in the face of injustice. It is one where the law is extending its long, coercive reach in a way that actively perpetrates and perpetuates injustice. Fortunately, the victims have managed to obtain good legal representation. Thousands of others have not been so lucky.

Matthew Kruger is Legal Researcher at the Helen Suzman Foundation.

This article first appeared as an HSF Brief.

Footnotes:

[1] This is a pseudonym.

[2] Pending the resolution of the constitutional question, the NPA has suspended the prosecution process.

[3] See here.

[4] Cf. British American Tobacco South Africa (Pty) Ltd v Minister of Health [2012] ZASCA 107 at para 26 (see here.)

[5] Part of the difficulty in recognising this point may be the fact that we analyse rights by looking at the purpose or interests they are meant to serve. Rights, though, are not just instrumental. Without life, self-determination, freedom of expression and control over one’s body, we would not be fully human. These rights do not just serve our interests; they also acknowledge and codify those characteristics that make us human in the first place. To infringe them, therefore, is to attack not just our interests, but our status as creatures that can have such interests.

[6] Much work must be done to establish which rights, or aspects of these rights, act as trumps and which only reflect important interests. A straightforward example of how the right to control one’s body can be regulated in this way are the laws prohibiting actions that physically harm or threaten to harm others—such as laws prohibiting assault, rape, murder and reckless driving.

[7] Where action destroys or seriously threatens the conditions necessary for freedom to be exercised by others, prohibition might be justified. There is no evidence that the use of marijuana has such an effect or that it presents such a threat (cf. the second brief in this series), which is why I have relegated this point to a footnote