Jan 07, 2016 News
…Nigel Hughes says Ramjattan misconceived the difference between the law and sentencing guidelines.
By Jeanna Pearson
The new Narcotic Drugs and Psychotropic Substances (Control) (Amendment) Bill 2015, which proposes lighter sentencing for possession of ganja, is not an issue of the decriminalization of the narcotic but a sentencing matter, says Attorney Nigel Hughes.
Hughes is one of the lawyers who drafted the legislation following the sentencing and imprisonment of national football coach, Vibert Butts, for possession of marijuana. Butts was sentenced to three years imprisonment for possession of 46 grams of ganja, which he claimed was for private use.
The Bill, which has come under much scrutiny in the past two months, could have its first reading in the National Assembly today when APNU+AFC Member of Parliament, Michael Carrington, moves a motion for its introduction and reading in the House.
“I am disappointed that there is confusion on what is clearly a sentencing issue and not decriminalization matter…There is nothing in the proposed amendment that addresses the issue of the decriminalization of cannabis,” Hughes argued.
He added that he was despaired that the National Security Minister, Khemraj Ramjattan, had “totally misconceived” the difference between the law and sentencing guidelines.
Ramjattan had stated that while he was in support of the amendment, he believed that it was more of a sentencing matter than a need to revise the Act.
Therefore, he proposed for the Bill to be further evaluated at the Cabinet level before there is widespread approval.
Ramjattan said the absence of a comprehensive sentencing policy is an issue that needs to be addressed by the judicial system and that clearer sentencing guidelines ought to be worked out for the ruling of first offenders.
Hughes, on the other hand, said that he was disappointed that the Minister was inviting the chancellor to give guidelines which were clearly not consistent with the law. He said that sentencing guidelines follows the law, not the other way around.
He explained that the Act indicates that once a person is found in excess of 15 grams of cannabis, it is mandated that he/she should be sentenced to a minimum of three years’ imprisonment. “So the imprisonment is a matter of the law not sentencing guidelines,” he said, suggesting that it was therefore “illegal” for the minister to ask something like that of the chancellor.
“This is not a matter of policy, it is the law,” he said.
The proposed legislation is listed under the private members’ business on the Order Paper; it is expected to remove provisions of the Narcotic Drugs and Psychotropic Substances Control Act 1988, which requires Magistrates to imprison anyone who pleads guilty to or has been found guilty of possession of marijuana.
Presently, the narcotic Act specifies that anyone found in possession of marijuana is liable to a fine of $10,000 or three times the monetary value of the drug.
Ramjattan stated that while the amendment was commendable, increasing the amount of cannabis considered to be a trafficking offence would be unwise since it would spur school children to smoke. He said small amounts of marijuana are usually trafficked to students and the vulnerable in society.
“I support the amendment but I do not support the increase from 15 grams…The amount is not too strict but the penalty is. Fifteen grams could be used for trafficking so how would we know when it is being trafficked or when it is being used for personal use? These small amounts of marijuana are trafficked to school children and people who are vulnerable…so why should we sanction that?” he charged, insisting that the issue should be pursued cautiously.
Hughes, however, rebuffed Ramjattan’s assertion, citing that it was a very unfortunate interpretation. He stated that section (6) of the Act indicates that any person who traffics narcotics to a child was illegal, and if that child dies as a result of the drug, the trafficker would be sentenced to death.
“Therefore the Act already covers that…there is nothing within the amendment that seeks to appeal that,” he added, noting that he was perplexed that is much talk that the bill would require a Cabinet deliberation.
He stated that he was surprised that “in this day and age” people were still of the belief that only Cabinet is capable of proposing appropriate legislation for the country. “This is a private members bill and therefore they are put forward to the consideration of the entire House to see if the proposed amendments to the law are suitable and necessary for the good governance of the country,” Hughes explained.
“I thought Cabinet has more important things to do…but whether or not it is approved, it is not a prerequisite for the consideration of the National Assembly,” he stated, adding: “it’s a new day and age and we must find different ways of confronting our old problems.”
He said further, that this debate can have the benefit of scientific data on the number of persons incarcerated and the percentage of persons involved in other criminal activities after they would have been released from prison on a narcotic sentence.
Therefore, he stated that it is expected that there should be a rational debate rather than an “emotional outburst” that is not based on scientific evidences.
“We have the obligation to start making sure that we don’t create unnecessary criminals in our society as a result of oppressive laws,” Hughes insisted.
Almost daily, many persons are tried and sentenced for possession of small amounts of marijuana; most of them are first-time offenders and youths. Several Rastafarian organisations and social activists have cried out against the severe penalty and have called for it to be relaxed.
Many critics have come out to state that possession of small amounts of marijuana should not attract custodial sentences.
This Bill is founded on the experiences of several citizens—primarily youths who have been incarcerated for small quantities of cannabis or cannabis resin, and who as a result of their incarceration have been unnecessarily economically and socially disadvantaged.
The legislation is divided into three sections: Amendment of Section 4 of the Principal Act; the Amendment of Section 5 of the Principal Act; and the Amendment of Section 12 of the Principal Act.
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