Section 25(1) and the Dangerous Drugs Decrees

How do we assess disproportionality in relation to a punishment imposed by the legislature?

It is not enough that the judge considers the sentence to be unfairly disproportionate. The sentence must be grossly or severely disproportionate. In interpreting section 25(1) in relation to a particular sentence, the court should prefer a construction which promotes the purpose or object underlying the provision (a purposive approach) and must "promote the values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law applicable to the protection of the rights" (section 43(2) of the Constitution).

The clearest statements of how one is to approach the question of "disproportionality" come from the United States, Canadian and Namibian authorities.

In Canada the first consideration is the purpose and effect of the law challenged. Was the purpose a constitutionally valid one? Lamer J in Smith -v- The Queen (supra) said:

"In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. Dickson J in R -v- Big M. Drug Mat Ltd. (1985) 1 SCR 295 speaking for the majority of this Court said at p.331: "In my view both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation."

The judiciary has a traditional deference to Parliament. It is for Parliament to pass laws, and for the judiciary to give effect to them. Most legislation will have a valid constitutional purpose because it would have been passed after much research, discussion and debate. A recommendation for legislative change normally comes from a group or department after a need for the change has been acknowledged. A Minister, having discussed the matter with his/her own Ministry will then present a Cabinet paper. The matter will be discussed in Cabinet before it is prepared in Bill form. Once in Bill form, it is published so that the public and concerned parties can discuss it and make representations to their Member of Parliament. The Bill, if it is not channelled to a Sector Committee for Parliament to hear further representation from the public and from government, will be debated in Parliament, both in the Lower and Upper House. It is only after this process that a Bill might become law. The law when passed by Parliament, and assented to by the President, has the status of a law passed through a democratic process. There is an assumption that Parliament speaks for the people and passes laws with the assent of the people. This is the essence of democracy. It is a powerful reason why the judiciary should defer to the will of Parliament. Legislation passed by Parliament reflects in principle, the will of the people.

However, as counsel for the Human Rights Commission submitted, the mandatory minimum sentence under the Drugs Act was not imposed by the legislature. It was imposed by an executive act. It was passed by decree. There was no public discussion, no Parliamentary debate, and no opposition.

In the context of a decree, not only is it more difficult to ascertain a legislative purpose, but the customary deference to legislation must surely give way to a very close scrutiny of the constitutional effect of what is an executive act, albeit acknowledged and saved by section 195 of the Constitution.

State Counsel suggested that given the very real problem of drug use, growth and trafficking in Fiji, deterrence was the "legislative" purpose of the Decree. Counsel for the Human Rights Commission suggested that because the Decree was the brain child of the Health Ministry, the purpose of the Decrees was to protect people from the harmful effects of drug-taking.

It is not clear what the purpose of the Decrees was. However, it would be safe to assume that the Decrees were a response to the increased incidence of marijuana use in Fiji. In terms of the sentences imposed, trafficking and growing are seen as more serious than possession which carries a three month minimum term.

Mr Ridgeway suggested that the mandatory penalty for possession of less than ten grams of Indian hemp must be considered in the social context of Fiji including the damage done to society by drugs and the heavy costs involved in dealing with the consequences of drug use and abuse.

Insofar as sentencing policy generally reflects one or more of the four main purposes of punishment, that is, deterrence, prevention, rehabilitation and retribution, any of these aims, if reflected by the Drugs Act (Amendment) Decrees would be valid from the point of view of the justice system. Furthermore the reasons why mandatory minimum terms of imprisonment are adopted, are well-known to criminal justice personnel. They are, that punishment should fit the crime, that serious offenders should be incapacitated to protect the community, that it eliminates inconsistent sentencing and induces defendants to co-operate with authorities (see South African Law Commissions Issue Paper 11 "Sentencing Mandatory Minimum Standards")

These purposes are not unconstitutional per se. As I have already said in this judgment, mandatory imprisonment is not unconstitutional per se. As such, although the question of constitutional validity is based on an assumption that those who drafted and agreed to the Drugs Act (Amendment) Decree were concerned with legitimate sentencing goals, I am prepared to accept that the purpose of the Decrees was not unconstitutional.

However, no matter how well-intentioned the executive or the legislature might be, if the effect of the law is unconstitutional, in that it offends the provisions of the Bill of Rights, it is invalid to the extent of its inconsistency.

What was the effect of the Decrees? And is the effect severely disproportionate to the offence? It is not in dispute that the majority of offenders prosecuted under section 8(b) of the Drugs Act, are young first offenders. Some are children, normally entitled to the "imprisonment as last resort" protection under the Juveniles Act. Nor is it in dispute that most offenders prosecuted under section 8(b), are in possession of very small amounts of marijuana. It is not difficult therefore to find the "reasonably hypothetical offender." Counsel for the Defendant submitted that the effect of imprisonment on a young, first offender who may otherwise have a bright future, has resulted in public unease and discomfort amongst criminal justice professionals. He submitted that in removing a judicial discretion to give a non-custodial sentence for possession of small amounts of marijuana, the Decrees have an unconstitutional effect.

Although the legislature is entitled to provide for sentences which reflect its view of the seriousness of the offence, it cannot do so (and whether it is by Act or by Decree is irrelevant) if it results in a severely disproportionate sentence, or according to the test of the Canadian Supreme Court in Smith (supra), if it results in a punishment which is so excessive that it outrages standards of decency.

What are the principles of proportionality in considering the constitutional validity of the effect of a law? The Canadian courts have considered firstly, the gravity of the offence, secondly, the circumstances of the offender, thirdly, a consideration of the appropriate range of sentences for such offences, fourthly, a comparison with other crimes within the jurisdiction, and fifthly, whether in the case before the court, the sentence would be grossly disproportionate. (Smith (supra) ).

The Namibian Courts consider whether the punishment is startlingly inappropriate, for the reasonably hypothetical offender and whether in the context of Namibian society, the punishment is grossly disproportionate. The U.S. Supreme Court test is whether the punishment is so severe that it is degrading to the dignity of human beings, or that it is arbitrarily inflicted, or that it is unacceptable to contemporary society, or that it is excessively severe.

Applying these principles to the amended section 8(b) of the Dangerous Drugs Act, I consider that the offence of possessing less than 10 grams of Indian hemp, to be the least grave of the offences created by the Act. Clearly, possession of larger amounts of Indian hemp, cocaine and heroin are more serious, as are cultivating, selling and trafficking in drugs. The "real mischief" under the Drugs Act is not the possession of small amounts of Indian hemp, but the acts of those who financially benefit from, and prey upon, the drug dependence of others. This is implicit in the State's further submissions. The thrust of the Drugs Act is against those responsible for the scourge of drugs in Fiji, not the children and young people who are the victims of the growers, dealers and traffickers.

The penological purposes of the mandatory minimum of three months is as I have said, not clear because the amendment was by way of Decree. However, if the purpose of the Decree was to deter, protect the public and/or rehabilitate, than that purpose could adequately be met by penalties which are non-custodial. The Community Work Act for instance would admirably satisfy these penological purposes.

Furthermore, comparing section 8(b) of the Dangerous Drugs Act with other offences in Fiji, there are no minimum mandatory sentences for rape under section 149 of the Penal Code, which is seen as a far more serious offence, or for manslaughter, or for theft, robbery with violence or receiving stolen property. A first offender who commits the offence of larceny in dwelling-house, or simple larceny will usually get a non-custodial sentence in accordance with sentencing principles. A rapist on the other hand will not, the gravity of the offence outweighing good character.

Children up to the age of 17 years, for all other offences will invariably get a non-custodial sentence. Section 30 of the Juveniles Act provides that a custodial sentence should not be imposed on children. Section 30 of the Act provides:

"No child shall be ordered to be imprisoned for any offence."

Section 31 of the Juveniles Act provides that a juvenile may be imprisoned if found guilty of murder, attempted murder or manslaughter or of wounding with intent if the court is of the view that none of the other methods of dealing with him or her is suitable. The Act therefore allows the court to give a juvenile a non-custodial sentence for murder. The Dangerous Drugs Decrees provide for no such discretion under section 8(b).

The difference between murder traditionally seen as the most heinous of crimes, and possession of less than 10 grams of marijuana, is vast. There is no comparison. A person who takes a life with malice aforethought cannot be put in a comparable category as a school student found with a "roll" containing a minute amount of Indian hemp.

It is also of some relevance that while the word "possession" in section 8(b) does not create an absolute liability offence, the law is that all the prosecution has to prove is that the accused consciously had something in his possession, and that that something was Indian hemp. As Lord Pearce said in Warner -v- Metropolitan Police Commissioner (1969) 2 AC 256, 305:

"I think the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities and that ignorance or mistake as to its qualities will not excuse. This would comply with the word 'possess'."

The offence under section 8(b) of the Dangerous Drugs Act creates an offence akin to an absolute liability offence once conscious custody is proved. This fact is also relevant to the question of proportionality of sentence.

This application is of course limited to the effect of section 8(b), and the possession of small amounts of marijuana, and has no effect on the other provisions of the Act. Suffice it to say, the more serious the offence, the better chances a mandatory sentence has of surviving a challenge under section 25(1). This is because the question of gross disproportionality depends greatly on the seriousness of the offence in relation to the seriousness of the penalty.

Therefore, in the case of a reasonably hypothetical offender, that is a young first offender found in possession of a small amount of Indian hemp, who is more likely than not to be the accused in each case, and for whom a non-custodial sentence would be the norm, is a mandatory sentence of 3 months imprisonment so disproportionate to the offending that it offends ordinary standards of decency?

In this regard, a consideration of what is severely disproportionate in Fiji is relevant. Although some caution must be applied by the judiciary in embarking on what the Namibian Supreme Court called a "value judgment" (Mahomed JA in Re Corporal Punishment (supra) ), the 1997 Constitution requires the courts to make just such an assessment. Section 3(b) provides that in the interpretation of a provision of the Constitution, "regard must be had to the context in which this Constitution was drafted and to the intention that constitutional interpretation take into account social and cultural developments, especially:

(1) developments in the understanding of the content of particular human rights; and
(2) developments in the promotion of particular human rights."

In the context of Fiji society, is the sentence disproportionately severe? It cannot be disputed that all cultures in Fiji emphasise the nurturing of the young, the respecting of the elderly, and the protecting of the weak. It is this respect for humanity that forms the basis of our Constitution. The Bill of Rights protects the young, the weak, the disempowered and the disadvantaged from unjust and arbitrary behaviour. It is this compassion and belief in the nurturing and protecting of our youth, that is the backbone of the Juveniles Act which provides that juveniles must not be imprisoned except for the most grievous of crimes and only if there is no other option.

In the context of this society, our Fiji society, the punishment of mainly young first offenders many of them children, for a mandatory term of 3 months imprisonment irrespective of the circumstances of their offending and in the absence of a significant mens rea, or evidence of intention, is clearly grossly and disproportionately severe. It offends the compassionate humanitarian spirit of the Bill of Rights.

For the purposes of section 8(b) I consider that the possession of small amounts of Indian hemp, an offence akin to an absolute liability offence, by young people many of whom are first offenders, and whose personal circumstances are usually widely different, is an offence which cannot constitutionally lead to a mandatory term of imprisonment. There is no doubt that some offenders may deserve a term of imprisonment, and no doubt will be given one in the ordinary exercise of judicial discretion. However, the act of imprisoning all offenders regardless of good character, extreme youth, differing amounts of the drug and different circumstances explaining the possession, is a sentence which is grossly disproportionate to the offence. It is so disproportionate that it offends public standards of decency in Fiji, and is "startlingly inappropriate."

The amended form of section 8(b) insofar as it applies to the possession of Indian hemp below 10 grams, is therefore in violation of section 25(1) of the Constitution.

Having made this finding, what results from it? In Namibia, in S -v- Vries (supra) the High Court said that where a punishment is found to be startlingly inappropriate or "shocking", in a reasonably hypothetical case, there are four options open to the court (per Frank J. Gibson J concurring).

(1) To declare the provision to be of no force and effect for all purposes;
(2) To declare the provision to be of no force or effect only in a particular class of cases;
(3) To declare the provision to be of no force or effect in respect of the particular case before the court;
(4) To allow the legislature to cure the defect.

In that case, the court found nothing objectionable with a term of imprisonment, what was objectionable was the length of it. There was therefore a "reading down" to allow the court to impose a lesser term of imprisonment.

In this case, it is the mandatory imprisonment, that is objectionable, or "startlingly inappropriate" for reasonably hypothetical offenders in Fiji's context.

It is therefore not possible, given the clear words of the Decrees, to give the provision a restrictive interpretation as provided by section 43(3) of the Constitution. Nor is it practical at this time in Fiji's history to await amendment through the legislative process. In the circumstances, I see no option other than to declare the amendment by Decrees No. 4 of 1990 and No. 1 of 1991 to section 8(b) of the Dangerous Drugs Act insofar as it applies to a minimum sentence for the possession of Indian hemp under 10 grams, to be unconstitutional and invalid. I do so in accordance with the powers of this Court under section 195(3) of the Constitution and section 41(3) of the Constitution. The maximum term of 24 months imposed by the Decrees for the offence remains.

Part Six: Audie Pickering, Conclusion

back to top

This page last updated 4th May 2004