Blame the law, not the magistrates!

Feb 01, 2015 Features / Columnists, Peeping Tom

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This year is an important year for constitutional law. It marks the 800th anniversary of the Magna Carta, the document which introduced the principle that even the King should be subject to the law.
Ironically, the original Magna Carta was prorogued not long after it was signed, but it is still today, eight hundred years after, credited with the evolution of the constitutional principle that everyone is subject to the law.
Of course this evolution took time. It was not always this way. Today, however, it is generally accepted that everyone should be subject to the law. A related concept not attributable to the Magna Carta is the principle of equality before the law. This too has found broad acceptance in both ordinary law and in constitutional law. In most democratic jurisdictions, all are now subject to the law, and all are conceived as being equal before the law.
Recently, a letter appeared from a group of women associated with Red Thread. The signatories needled the judiciary for what they perceived as harsh sentencing for women who were convicted of narcotic-related offences. A plea was made for greater leniency to be exercised, especially when it comes to women with small children.
This is a humane plea that springs from the best intentions: consideration of the effects of harsh custodial sentences on the children of convicted moms. However, from a legal perspective, all are equal before the law, and unfortunately, a similar argument can be made about the effects on children when the breadwinners of families are sent to jail. Unfortunately, we cannot rewrite the law to give special consideration to women alone. That would be an affront to the principle of equality before the law. But where there is discretion involved, the judicial authorities can consider the likely impact of a custodial sentence on dependent relatives.
In this regard, it is unfortunate that the judiciary was subject to criticism, because it is not the judicial authorities in Guyana that are at fault but the very law which they are compelled to obey.
The magistrates in Guyana do not have the discretion in Guyana to do what the aforementioned letter writers want them to do. There is mandatory sentencing involved when it comes to the possession or trafficking of narcotics.
The Narcotic Drugs and Psychotropic Substances ( Control) Act provides that upon summary conviction, anyone in possession of narcotics shall be liable to a fine not less than $30,000 together with imprisonment for no less than three years and no more than five years.
If the conviction is on indictment, the custodial aspect is just harsher. The same trend follows in dealing with trafficking offences. The point is that the law does not grant any latitude to the judicial authorities to vary, based on the circumstances of the convicted, the sentence dictated by law. There is mandatory jail time for possession and trafficking of narcotics. However, Janet Jagan, that fine woman who so many love to hate, had promulgated an amendment to Guyana’s marijuana laws that gives to the Courts discretion in providing non- custodial sentences for persons found using small amouns of marijuana.
Our narcotics laws are extremely harsh. They impose mandatory jail time for possession and trafficking. They offer no discretion to the judicial authorities to consider mitigating circumstances. It is jail upon conviction.
A person caught with a small amount of narcotics can spend the same jail time as someone caught with a far larger amount. Should sentencing not ideally be based on the amount of the substance being trafficked or in possession of the accused?
This is a matter that should be considered when the 11th Parliament is convened. Already many countries are decriminalizing marijuana and it seems inevitable that eventually marijuana is going to be decriminalized in Guyana.
The government has wisely opted for caution. This is not a process that should be rushed. Some countries have done so only to find out that the capacity to regulate legal possession and sale of marijuana is lacking.
To rush into the decriminalizing of marijuana would be a reckless step. But at least, the laws should be amended to either remove the need for mandatory sentencing of persons found in possession of small amounts of narcotics or the judicial authorities should be given greater latitude in sentencing such persons.
Also, sentences should be dependent on the amount of drugs found. One size should not fit all.  But when it comes to preferential treatment for women relative to men, we should defer to the evolved spirit of the Magna Carta.

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