While recreational cannabis has been legal in California since 2018, public consumption remains expressly prohibited. Consumption lounges are coming to West Hollywood, but the goal of cannabis being treated for all purposes like cigarettes, as in Uruguay, remains a distant hope. Colombia’s entrance this month to the very select “public consumption club” (technically, only a duo), perhaps indicate that the winds are slowly shifting on legalizing public consumption.
Given the right wing government of President Iván Duque, few imagined this paradigm shift in Colombia, of all places. But the conservative administration was dealt another joker from its self-imposed, repressive drug policy deck of cards when Colombia’s Constitutional Court overruled a ban on the consumption of cannabis in public.
The court declared President Duque’s Police Code unconstitutional and a violation of citizens’ constitutional rights, despite arguments that many of its provisions existed to protect the public safety of children. Although the use of medical cannabis was legalized in 2016 with Law 1787, followed by regulations and a licensing framework in 2017, public consumption was illegal. Present law allows each Colombian household to grow up to 20 plants; sales and purchases remain illegal.
Colombia’s unique route to legalization came not through a referendum initiated by its citizens or by laws passed by its legislature. Instead, legalization came in the form of a ruling by Colombia’s judicial branch, which focused on the public health and not the issue of public security. Portions of Colombia’s National Narcotics Statute were overruled in 1994 by the Constitutional Court, which ruled “the punishing of drug use violates the right to privacy, an individual’s autonomy and the free development of personality” [as articulated in Article 22 of the UN’s Universal Declaration of Human Rights].
“The Police Code was put into effect in 2017 as a political attempt to limit and punish cannabis usage after medical use was approved, and many portions of its code are considered onerous and unjustified” said opposition Senator Gustavo Bolivar. Although supporters have positioned the ruling as a historical precedent, the ruling is based upon technical legislative errors.
As one commentator wrote, “The portions of the code were so poorly drafted that the court was given no choice but to overthrow it. If the code was upheld, a beer at noon at a family picnic in the park, could have justified the same treatment by police as a person consuming or selling a kilo of cocaine in front of a school. The court’s decision forces Congress to rewrite rules it previously approved that authorized abusive behavior.”
Per the court’s opinion, “A law can not create general restrictions on freedom; it must be specific regarding time, place and circumstance and subject to reasonableness and proportionality.”
President Duque stated that he “accepts and respects” the Constitutional Court’s ruling but, in an attempt to appeal to his conservative base, stated that “the ruling would violate children’s rights” — a theme repeated continuously by the Duque government whenever the issue of legalization arises. The president further stated that, “The free determination of personality is not above the free determination of drug addiction and that the police would continue to confiscate drugs and impose penalties on those carrying drugs, even if doses are considered legal for personal use.” The Constitutional Court’s ruling confirmed that the consumption of cannabis is a fundamental right of Colombians that may not be unreasonably restricted by federal officials.
The Duque administration could be faced with another embarrassing blow later this summer when the Congress and Senate return to open its new session. On July 20, 2019, a multi-party coalition recently formed to expedite drug policy legal reform will propose new legislation. It’s led by Sen. Bolivar, who is presently overseeing the drafting of legislation modeled after Portugal’s progressive criminal justice drug policy and Canada’s adult-use legislation. It is expected to include numerous provisions in the areas of social justice and social equity.
Considering ongoing efforts by Los Angeles and other cities to incorporate social equity in its cannabis regime and the recognition that cannabis should be treated no worse than cigarettes in other legal jurisdictions, is it time for California’s state, municipal and city authorities to reconsider the ban on public consumption?